UNIT-
I`
1.
Various
powers of Courts. What are the modes of conferring and withdrawals of powers?
INTRODUCTION:-
Chapter III of the code deals with Powers of Courts to take cognizance of the
offences. For this purpose the offences are divided into two groups, i)
Offences under IPC and ii) offences under any other law. The courts by which
these offences are triable are specified below:-
Courts
by which offences are triable:- As per
provisions laid down in section 26
the courts by which offences are triable:-
1.
a) Any offence under
IPC-45 may be tried by High Court. B) Session Court. c) Any other court by
which such offence is shown in the first schedule to be triable.
2. Any
offence under any other law, when any Court is mentioned in this behalf in such
law, be tried by: i) High Court. ii) Any other court by which such offence is
shown in the first schedule.
Section
27: Jurisdiction in the case of Juveniles:
Any offence not punishable with death or imprisonment for life who at the date
when he appears or is brought before court under the age of 16 years may be
tried by the court of CJM or any other court which specially empowered.
Sentences
which High Courts and Session Judges may pass:
- As per provision laid down in Sect. 28
of the code that:- (i) High Court may pass any sentence authorized by law. (ii)
Session Judge or ADJ may pass any sentence authorized by law but any sentence
of death passed by such judges shall be subject to confirmation by the High
Court.
Sentences
which Magistrates may pass:- Sec.29 of Code, The court of
CJM may pass any sentence authorized by law except sentence of death or of
imprisonment for life or imprisonment for a term exceeding 7 years.
The court of Magistrate of Ist.Class may pass a sentence of
imprisonment for a term not exceeding three years or of fine not exceeding
Rs.10, 000.
The court of 2nd Class Magistrate
may pass an imprisonment for a term not exceeding One year or of fine not
exceeding Rs.5000/- or of both.
Sentence
of Imprisonment in default of fine:-The court of Magistrate may
award such term of imprisonment in default of payment of fine as authorized by
law under sec.30 of the code, not
exceeding one fourth of the term of imprisonment and also not excess of the
powers of the Magistrate u/s 29.
Sentence
in cases of conviction of several offences:- Under Section 31 of code, when a person
is convicted at one trial of two or more offences the court may subject to the
provisions of section 71 of IPC
sentence him for such offences to the several
punishments prescribed therefore which such court is competent to inflict and
pass such order and may direct unless the court directs that such punishments
shall run concurrently, provided that:
1. In no
case shall such person be sentenced to imprisonment for a longer period than
fourteen years. 2. The aggregate
punishment shall not exceed twice the amount of punishment which the court is
competent to inflict for a single offence.
3. For the purpose of appeal by a convicted person the aggregate of
constructive sentences passed against him shall be deemed to be a single sentence.
MODE OF CONFERRING POWERS:-1. In
conferring powers under this code the High Court or the State Government as the
case may be by order empower person especially by name or in virtue their
offices or classes of officials generally by their official titles.
2. Every such order shall take effect from the date on which it is communicated to
the person empowered.
WITHDRAWAL
OF POWERS:-Section 34 of the code described that The High
Court or the State Government as the case may be may withdraw all or any of the
powers conferred by it under this code on any person or by any officer
subordinate to it.
2. Any
powers conferred by the CJM or the District Magistrate may be withdrawn by the
respective magistrate by whom such powers were conferred.
Powers
of judges & Magistrates exercisable by their successors-in-office:-
Under sec.35 of this code, the
powers and duties of a judge or Magistrate may be exercised or performed by his
successor-in-office.
2. When there is any doubt as to who is
the successor-in-office of any additional or Assistant Session Judge, the
Sessions Judge shall determine by order in writing the Judge who shall for the
purposes of this code or of any proceedings or order there under be deemed to
be successor-in-office of such Addl. Or Assistant Sessions Judge.
3. When there is any doubt as to who is
the successor-in-office of any Magistrate the CJM or the District Magistrate as
the case may be shall determine by order in writing the proceeding or order
there under be deemed to be successor-in-office of such magistrate.
2. Under
what circumstances has a wife got to get maintenance from her husband? Can this
right be exercised by parents and legitimate children? Explain.
Dharamshastras have described the maintenance of
wife, children and parents a moral duty of every person. Manusmriti in its
chapter has confirmed this statement and also agreed to it that every person
should maintain his wife, minor children and parents even after performing 100 obligations.
Law also provides for maintenance of person.
Right
to maintenance of Wife, children and parents:-Sec125
of the Criminal Procedure Code, lays down the provisions of wife’s, children’s
and parent’s right to maintenance. According to it: - If any person having sufficient means neglects or refuses to
maintain:-
a)
His wife unable to
maintain herself.
b)
His legitimate or
illegitimate minor child, whether married or not, unable to maintain herself.
c)
His legitimate or
illegitimate child (not being a married daughter)
Who has attained majority, where such
child is by reason of herself.
d)
His father or mother,
unable to maintain himself or herself. Rohtas
Singh V/s. Smt. Remendri-2000.
Right
of Maintenance of Illegitimate Child:-Sec.
125 (1) (b) and (c) of the code provides the right of maintenance to
illegitimate son from his father if:-
a)
He is unable to
maintain himself or is a minor.
b)
If major then is unable
to maintain him due to physical or mental abnormality injury. Smt.YamunabaiAnantraoV/sAnantraoShivram-1988.
Parent’s
right of Maintenance:- Sec. 125 (1) (d) of the
code provide parents the right of maintenance from their son, provided that:-
a)
They are unable to
maintain themselves, and
b)
Son has the sufficient
means to maintain.
Dr.
Smt. Vijay ManoharArbatVsKashiraoRajaramSawai-1987.
Section
125(4) of the code provides that wife shall
not be able to take maintenance from his husband in following situations:-
a)
When she lives in
adultery.
b)
When she refuses to
live with husband without any sufficient reason.
c)
When they live
separately by mutual consent. Dev
Narayan HalderV/s Smt. AnushreeHalder-2003. Wife can claim maintenance when
she lives separately from husband with sufficient reasons. T.C ChakoVsAnnamma-1994.
Following are
considered sufficient reasons for living separately:-
a)
When husband has
contracted marriage with another women.
b)
When husband keeps
concubine and behaves with cruelty.
c)
When the husband is
unable to have sexual intercourse due to impotency.
Amount of Maintenance:-The
amount of maintenance has not been fixed under Sec.125 of the code. Earlier, this amount of Rs. 500/- maximum for
every person, but by the Criminal Procedure Code (Amendment) Act, 2001, the
maximum limit has been abolished. Now this amount depends upon the discretion
of the magistrate.
Magistrate can order for the amount of
maintenance which it considers sufficient. Generally the amount is fixed
considering the position of parties, necessities, income of the husband etc. The
amount of maintenance could be altered under Sec. 127 when there is change in the circumstances. This amount can
be increased or decreased.
When
shall be the Maintenance paid:-Sec.125 (2)
of the code provides that the amount of maintenance shall be paid:-From the
date of order, or from the date of application.
Application
for Maintenance:-Sec.126 of the code provides that proceeding under 125 may be taken against any person in
any district:- a)Where he is or where he or his wife resides. B) Where he last
resided with his wife, or as the case may be, with the mother of the illegitimate child. Case KumudumV/skanappam-1999.
Consequences of
Non-Compliance of Order:-Sec.125 (3)
of the code provides that if any person fails to comply with the order without
sufficient cause, then the magistrate may, for every breach of the order, issued
a warrant for levying the amount and after the execution of the warrant may
sentence such person for the whole or any part of each month’s allowance
remaining unpaid, to imprisonment for a term which may extend to one month.
3. what are the cases
in which a person is required to execute bond for maintaining peace for good
behavior? Illustrate your answer.
Peace and Good behavior
are two important expectations of a civilized society. It is also the duty of
state to attempt to maintain peace and good behavior. The sec. 106 to sec. 110
of the Criminal Procedure Code, 1973 takes a step in this direction. Provision
related to peace and good behavior is following.
1.
Security for keeping peace on Conviction:- Sec.106 provides for
security for keeping peace on conviction. According to it-when a court of
session or court of first class magistrate convicts any person for any of the
following offences or of abetting such offence and is of the opinion that it is
necessary to take security from such person for keeping peace, then the court
may order him to execute a bond, with or without sureties’ for keeping the
peace for such period not exceeding three years:-
a)
Any offence which consists of assault or
using criminal force ore committing mischief. B) Any offence of criminal intimidation. c) Any other offence which caused, or was intended or known to be
likely to cause, a breach or peace. Inder
Singh VsHarbans Singh-1955.
2. Security for keeping peace in Other Cases:- Sec.
107
of the code lays down the provision for demand of security for keeping peace in
certain matters. According to it: - a)
A breach of peace. b) Disturb the
public tranquility. c) Any wrongful act that may probably
occasion a breach of peace or disturb the public tranquility. Then he may
ordered that he shall execute a bond with or without sureties for keeping peace
for such period not exceeding one year. (Ramnarayan
Singh V/s State of Bihar-1972.
3. Security
for good behavior from persons disseminating Seditious Matters:-Sec 108 lays
down provision for taking security from person disseminating seditious matters.
a)Any
matter the publication of which is punishable under section 124-A or Sec 153A
or Sec 153B or Sec 295A or the Indian Penal Code (45 of 1860). b) Any matter concerning a judge acting
or purporting to act in the discharge of his official duties which amounts to
criminal intimidation or defamation under the Indian Penal Code (45 of 1860). Then
such magistrate may demand such person to execute a bond, with or without sureties’,
for his good behavior for such period not exceeding one year. This system has
been declared constitutional in the public interest Kedarnath Singh V/s State of Bihar, 1962.
4.
Security for good behaviour from Habitual Offenders:- Sec. 110 of
the code lays down the provision for demand or security for good behaviour from
habitual offenders. According to it, when an executive magistrate receives
information that there is within his local jurisdiction a person who:- a)Is by habit a robber, house-breaker,
thief, or forger, b)Is by habit a
receiver of stolen property knowing the same to have been stolen.
c)
Habitually protects or harbors thieves, or aids in the concealment or disposal
of stolen property. d) Habitually
commits, or attempts to commit, or abets the commission of, the offence of
kidnapping, abduction, extortion, cheating or mischief. e) Habitually commits or attempts to commit, or abets the
commission of, offences, involving a breach of peace.
f)
Habitually commits, or attempts to commit, or abets the commission of any
offence under:-Then such may require such person to execute a bond with
sureties for his good behaviour for such period not exceeding three years.
Procedure:-Sec.111 to Sec 124 of the Criminal
Procedure Code, 1973 lays down the procedure for taking security keeping peace
and good behavior:-
1. When the magistrate receives any
information under sec 107,108, 109 or sec 110 then the magistrate shall order
him explaining the following points i) with the intention to require him to
show cause why he should not execute a bond for keeping peace or good behavior Banarsi V/s Neelam-1969.
a. If such person
is not present in the court, then he shall be issued a summon and if such
person is in custody than a warrant directing the officer in whose custody he
is to bring him before the court shall be issued(Sec 113). b. Every summons or warrant shall be accompanied by the copy of
order (Sec 114). c. If upon such
inquiry, it is proved that it is necessary for keeping peace and maintaining
good behaviour that such the magistrate shall require such bond (Sec 117). Here it is important that the ordered bond and amount of bond
should be justifiable. It should not be so much that the related person cannot
execute a bond of such amount.(Mohammed)
1. The bond to be executed by any person shall bind him to keep the peace
or maintain good behaviour, and if such person commits later any offence or
attempts to commit or its abetment then it shall be considered the breach of
bond (Sec. 120) 2. The period of
bond shall commence on the date of such order. If such person is undergoing
imprisonment then such period shall commence on expiration of such
sentence.(Sec 119).
Here, it is important
that:- a) A magistrate may refuse any surety
on the ground that it is unfit but before doing so an inquiry shall be
conducted (Sec 121) b) If any person
fails to give security then such person shall be send to the prison (Sec 122).
4 Define the term Arrest.
When a Police Officer can arrest a person without a warrant or without the
order of the Magistrate? What the rights of an arrested person?
Introduction:-
Generally, a person is arrested by the
order of the magistrate or by a warrant. A police officer cannot arrest a
person arbitrarily or without the order of magistrate or without warrant. But
this rule has few exceptions to it which means that under certain circumstances
a person can be arrested without the order of the magistrate or without
warrant.
Arrest
without warrant:- Sec. 41 of the Criminal Procedure
Code 1973 provides that a police officer can arrest a person without the orders
or warrant of the magistrate in following situations:
(1)
When any person has
been concerned in any cognizable offence or against whom a reasonable complaint
has been made or credible information has been received or a reasonable
suspicion exists. Of his having been so concerned.
(2)
When any person has in
his possession without lawful excuse any implement of house-breaking.
(3)
When any person in
whose possession anything is found which may reasonably be suspected to be
stolen property and who may reasonably be suspected of having committed an
offence with reference to such things.
(4)
When any person
obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape from lawful custody.
(5)
When any person is
reasonably suspected of being a deserter from any of the armed forces of the union.
(6)
When any person being a
released convict, commits a breach of any rule made under sub-section (5) of
section 356;
(7)
When for any persons
arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specifics the person to be arrested.
Thus, in this way a police officer under sec 41(1) can
arrest any person without the order or warrant of a magistrate.
Arrest
of Suspected or Habitual Offenders:-Sec 41(2)
provides that a police officer can also arrest any person without the order or
warrant from magistrate:-
a) Who belongs to the category of suspected offenders
under sec 109 of the Code.
b) Who belongs to the category of Habitual offenders
under sec 110 of the Code. Arrest on
Refusal to give Name and Residence:- Sec 42(1) of the code provide that a
police officer can also arrest any person without the order or warrant from
magistrate.
D) The person who gives a name or residence which
such officer has reason to believe to be false residence of such person have
been ascertained, then he shall be released on a bond with or without sureties.
Devkinandan V/s Emperor-1941.
Arrest
to prevent a cognizable offence:-Another
situation of a police officer arresting any person without the order or warrant
from magistrate has been provided in sec 151 of the code. A police officer knowing of
a design to commit any cognizable offence may arrest, without orders from the
Magistrate and without a warrant, the person so designing, if it appears to
such officer that the commission of the offence cannot be otherwise prevented. Thus
sec 151(1) provides a police officer the powers to arrest a person without the
order from the magistrate or without a warrant, when generally a person cannot
be arrested without the order of magistrate and without warrant. (A.K GopalanV/s State-1962.
RIGHTS
OF THE ARRESTED PERSON:- Sec. 41D of the
code:- 1.When any person is arrested and interrogated by Police he shall be
entitled to meet an advocate of his
choice during interrogation though not throughout interrogation. 2. Arrestee has the right to nominate his
relative or any friend for giving information to him about his arrest.
UNIT – II
5. When may a criminal complaint be filed before
the Magistrate? Discuss the power of Magistrate to decide criminal complaint.
INTRODUCTION: Sec. 200
says, that the preliminary procedure which a Magistrate shall follow on
receiving a complaint. It is obligatory
to examine the complainant and the witnesses and a summary dismissal without
them is not legal. The substance of such examination shall be reduced to
writing and shall be signed by the complainant and the witnesses and also by
the Magistrate. If a public servant acting or purporting to act in the
discharge of his official duties or a court has made the complaint or the
magistrate makes over the case for inquiry or trial to another Magistrate under
sec.192.
1. Procedure by Magistrate
not competent to take cognizance of the case: If
a complaint made to a Magistrate who is not competent to take cognizance of the
offence he shall return it for presentation to the proper court with an
endorsement to that effect or where the complaint is not in writing then he
will direct the complainant to the proper court as provided in sec.201 of Cr.P.C.Case of Rajender Singh v/s State of Bihar, 1989.
2.
To
Postponement of issue of Process:- Sec.202 of the code provided that where
it appears to the magistrate that the offence complained is triable exclusively
by the court of Sessions or where the complaint has not been made by a court
unless the complainant and the witnesses present have been examined on oath
under sec.200. If an investigation is
made by a person not being a Police officer he shall have for that
investigation all the powers conferred by this code on an officer in charge of
a police station except the power o arrest without warrant. Sec. has provided
to ascertain the following: i) to
ascertain the facts constituting the offence.
ii)
To prevent abuse of process
resulting in wastage of time of the court and harassment to the accused.
iii)
To help the magistrate to judge if there is sufficient ground for calling the
investigation and for proceeding with the case. Case: Balraj Khanna v/s Motiram-1971.
3. Dismissal of
Complaint:- A Magistrate may dismiss a
complaint if after considering the statement on oath of the complainant and of
the witnesses and the result of inquiry or investigation under sec.202. But where there is sufficient
ground for preceding the Magistrate cannot dismiss the complaint under sec.203
of the code. If he finds that no offence has been committed, if he distrusts
the statement or if he distrusts the complainant may direct for further
inquiry. In such cases he may refuse to issue process. Case Sulab Chandra v/s
Abdula-1926. These are the provisions under sec.203 of Cr.P.C.
4. No sufficient ground
for proceeding:- When on the basis of evidence
adduced no prima facie case is reasonable made out against the accused there is
no sufficient ground for proceeding. It
would be just wasting of time to proceed further in the case. The complaint
could be dismissed as held in the case
of Dabendra Nath v/s State of W.B1972.
5. Recording of Reasons :-
An order of dismissal of a complaint under this section is no bar to the
entertainment of a second complaint on the same facts but it will be
entertained only in exceptional circumstances which provide that the previous
order was passed on an incomplete record or misunderstanding of the nature of
the complaint.
6.
Dismissal
of complaint in default:- If the dismissal of
the complaint was not on merit but on default or the complainant to be
present. Then there is no bar in the
complainant moving to the Magistrate again with a second complaint. But if the dismissal of the complaint was on
merits then the position could be different.
In such cases the contention cannot be countenanced that the complainant
lacked bona fides as he suppressed the fact of dismissal of the first
complaint.
6. What
do you mean by FIR? In what circumstances a Magistrate can make an order for
investigation of an offence? OR What
are the ingredient of FIR? What are the effects of delay in filing FIR?
INTRODCTION:-First
information report and investigation plays an important role in administering
of criminal justice. It is expected that it should be recorded with utmost care
and caution. It should be recorded without any delay so that doubt does not arise.
FIR & Investigation determines that a prima facie case exist against the
accused or not? Sections 154 of Cr.P.C.-1973 described in detail about FIR.
ESSENTIALS OF F.I.R.
Although
the definition of FIR is no given in the Cr.P.C. however it may be as follows:-
i)
It is information which
is given to the Police Officer In- charge of the Police station. But it is not
necessary to give always to Officer-in-charge. R. P. Kapoor v/s Sr.Partap Singh Kairon, 1961.
ii)
Information must relate
to a cognizable offence.
iii)
It is information first
in point of time.
iv)
It is on the basis of
this information that investigation into the offence commences.
v)
The FIR could be in any
type i.e. written or oral. It can also be given on telephone. Sunil v/s State of MP, 1997.
OBJECT OF F.I.R.:- The
first and main object is to complain of any offence to a Police Officer so that
criminal law could be applied. Hasib v/s
state of Bihar, 1972.
COMPONENT
PART OF F.I.R.:- Generally it is essential that a
detailed explanation of the happening should be given in FIR. But the
prosecution cannot be dismissed merely
on the basis that FIR does not contains the complete explanation of happening
as in a case of Navratan Mahanto v/s
State of Bihar-1980. Only gist of the happening in factual position needs
to be mentioned.
ENTRIES
IN THE FIR REGISTER:- As soon as the
Officer-in-charge receives information of commission of a cognizable offence
entry to this effect must & immediately be made in the Register concerned
without delay. State of Haryana v/s
Choudhary Bhajan Lal, 1992. If any information is given orally, it should be recorded and then to read and obtained
the signature of the person giving information. As described in a case of State of A.P v/s P. Ramulu, 1993 that
FIR cannot be refused to be recorded
on the ground that the offence was committed not within the jurisdiction. There
should be no delay in registering FIR.
Delay causes doubts. Gnash Bhawan Pated
v/s State of Maharashtra, 1979.
CIRCUMSTANCES
WHEN MAGISTRATE ORDERSFOR INVESTIGATION:
- Investigation begins with the FIR. If
the FIR is regarding any non-cognizable offence then such information shall be
recorded in the concern register and the person who is giving the information
will be referred to the Magistrate. Meaning thereby that the investigation
cannot be done without the order of the Magistrate. Section
155 of the Code of criminal procedure provides that:-
1. No
Police Officer shall investigate a Non-cognizable case without the order of the
Magistrate having power to try such case or commit the case for trial.
2. Any
Police officer receiving such order may exercise the same powers in respect of
the investigation (except the power to arrest without warrant) as an
Officer–in-charge of a police station may exercise in cognizable case.
3. Where
a case relates to two or more offences of which at least one is cognizable, the
same shall be deemed to be a cognizable case, notwithstanding that the other
offences are non-cognizable.
4. An
investigation in a non-cognizable offence made under the order of Magistrate is
treated as in investigation under chapter-XII and the report will be submitted
to the Magistrate under section 173(2).
In cases of cognizable
Offences, there is no need of the orders of the Magistrate to begin the
investigation. However it has also been
made clear by the Supreme Court a new
provision under the code under section 155(4) which incorporates a view of
Supreme Court that where a case relates to two or more offences of which at
least one is cognizable the case shall be deemed to be a cognizable case, in-spite
of the fact that other offences are non-cognizable, where there are both
cognizable and non-cognizable offences mixed together the Police Officer can
investigate even if there is single cognizable offence.
7. Discuss the provisions relating to
Information to the police and their powers to investigate.
INTRODUCTION:
- Section 154 speaks of information
relating to the commission of a cognizable offence given to an officer-in-charge
of a Police Station. This section has a three-fold object that to inform the
District Magistrate and Supdtt. Of Police who are responsible for maintaining
peace and safety of the District. It is also pertinent to brought it in the
notice of judicial officers before whom the case is ultimately tried. And the most important to safeguard the
accused against subsequent variations or additions.
1.
INFORMATION
IN CONIZABE CASES:- Every information
relating to the commission of a cognizable offence if given orally to an
officer-in-charge of a Police Station, shall be reduced to writing by him or
under his direction and be read over to the informant. Every such information, whether given in
writing or reduced to writing as aforesaid, shall be signed by the person
giving it. The officers receiving make the entries of the substance thereof in
the prescribed Register available with him.
2.
Copy
of the Information as recorded shall be
given forthwith free of cost to the informant.
3.
Refusal
to record the information:- If any
officer-in-charge of police station refuses to record the information the
informant may send to substance of such information to the Supdtt. Of Police
concern who further on his satisfaction will investigate the case himself or
direct to his subordinate.
4.
The
information given to Police Office and
reduced to writing as required under the section is called FIR. When any information discosing cognizable offence is
laid before the Officer I/c of a Police
Station, he has no option but to register the case of that base as held in
State of Haryana v/s Ch.Bhajan Lal-1992.In
a case of Gurpreet Singh v/s State of Punjab-2006:- It was held that merely
non-disclosure of the names of witnesses in the daily diary as well as mortuary
register cannot affect the prosecution of case.
Case State of A.P. v/s V.V. Panduranga Rao-2009: It
was held that statement given on telephone is to be treated as FIR because
cryptic telephonic message of cognizable offence received by Police would not
constitute FIR. The mere fact that the telephonic message was first in point of
time does not by itself clothe it with character of FIR.
5.
Where
FIR is lodged and what Object:- Generally the
information about the offence committed is given to the Police Station of the
place concern, but it does not mean that it cannot be lodged elsewhere. In a case of
Punati Raube v/s State of
A.P.-1993: The police constable refused to record the compalaint on the
ground that the said police station had no territorial jurisdiction over the
place of crime. Any lack of territorial jurisdiction could not have prevented
the constable from recording information about the cognizable offence and forwarding
the same to concern police station.
6.
The
object of FIR: the main object of the FIR is to
complain of any of the offence to a Police officer so that criminal law could
be applied. Where the FIR was found o have been written after the inquest
report was prepared the court held that it has lost its authenticity in the
case of Balaka Singh v/s State of
Punjab-1975.
7.
IMPORTANCE
OF FIR:- On consideration its important from
every angle it is noticed that FIR is a very important from the occurrence of
an offence. It should be given immediately after the offence is committed. The
delay in giving information is viewed with grave suspicion as held in the case
of Modivalappa -1966. There is no need to give the names of
witnesses or other minute detail.
8.
Duty
to register FIR:- In a case of Rajender Singh
Katoch v/s Chandigarh Administration & Others-2008, that although the
officer-in-charge of Police station is legally bound to register a FIR in term
of sec.154. It was also held in Aleque Padamsee and Others v/s Union of
India-2007:- that in case of inaction of police officials in registering
FIR person aggrieved can adopt modalities contained in sec.190 read with 200 Cr.P.C by laying complaint before the
magistrate concern to take cognizance of offence.
9.
Delay
in filing FIR: - Delay in giving FIR can be
condoned if there is satisfactory explanation as held in Apren jospeh v/s State of Kerla-1973.
Whether the
delay is so long as to throw a cloud of suspicion on deeds of the
prosecution case must be depend upon a variety
of actors, Case Ram Jog v/s State of
UP-1974.
10. Delay in lodging FIR
in rape cases:- In State Of Himachal Pradesh v/s Shreekant Shekari-2004: That mere
delay in lodging FIR does not anyway render prosecution version brittle.
11. Powers to
investigate:-Under section156 the police is
empowered to investigate into a cognizable offence without order of a
Magistrate or without a formal first information report. If the police do not
investigate the Magistrate can order for the investigation as in case of Abhyanand Jha v/s Dinesh
Chandra-1968. Sec. 156(2) provides that no proceeding of a Police Officer
in any such case shall at any stage be called in question on the ground that
the case was one which such officer was not empowered under this sec. to
investigate, case Hari Singh v/s State
of UP-2006. Sec.156(3) Any
magistrate is empowered under sec.190 may order such an investigation , case Bateshwar Singh v/s State of
Bihar-1992.
8. Brief the Jurisdiction of criminal Courts in
inquiries &Trials. OR “Every offence shall ordinarily be inquired and tried
by court within the local limits of whose jurisdiction It was committed.” Explain
the statement and state its exception.
INTRODUCTION:
- A Magistrate within whose local jurisdiction the offence is committed is
competent to take cognizance and to try the case. The jurisdiction of the
Magistrate does not come to an end by transfer of the locality, where the crime
was committed to another district. The court having jurisdiction to try the
offences committed in pursuance of the conspiracy can try the offence of
conspiracy even if it was committed outside its jurisdiction under section 177.
It
makes it clear that an offence shall be inquired and tried by a court within
the local limits of whose jurisdiction the offence was committed. B.Patnaik v/s Smt.Binand, 1970, it was
held that court decided that offences shall be tried by a court within the
local limits of whose jurisdiction the offence was committed.
1.
Place
of inquiry or trial in certain matters:- Sec.178,
when it is uncertain in which of several local areas an offences was committed.
The offence is committed partly in one local area and partly in another. Where
an offence is continuing one and continues to be committed in more local areas
than one. Then it may be inquired or tried by a court having jurisdiction over
any of such local areas. State of M.P.
v/s K.P.Ghiyara-1957.
2.
Offence
triable where act is done:- An act is an offence by
reason of anything which has been done and of a consequence which has ensued
the offence may be inquired into or tried by a court within whose local
jurisdiction such thing has been done or such consequence has ensued under sec. 179. Case Lal chand v/s State -1961is
suitable example a gang was created for dacoity in a district but was committed
in another district, it was decided that the case can be tried by the court of
any of the two districts.
3. Place of trial act is
offence by reason of relation to other offence:- When
an act is an offence by reason of its to any other act which is also an offence
or which would be an offence if the door were capable of committing an offence the
offence which is done first may be inquired into or tried by a court within
whose local jurisdiction either act was done, under sec.180. Munna Lal v/s State of Rajasthan-1964: committing
theft and receiving stolen property, such matter can be tried by a court of any
of the two places.
4.
Place
of trial in case of certain offences:-Any
offence of being a thug or murder committed by a thug of dacoity, of dacoity
with murder of belonging to a gang of dacoits or of escaping from custody may
be inquired into or tried by a Court within whose local jurisdiction the
offence was committed or the accused person is found. Under sec.181. Jaswant Singh
v/s Emperor, 1918, in a matter of abduction of married woman for the
purpose of unlawful intercourse, it can be tried that court within whose local
jurisdiction the woman was detained.
5.
Offences
committed by Letters etc:- Any offence which
includes cheating may if the deception is practiced by means of letters o
telecommunication message be inquired into or tried by any court within whose
local jurisdiction such letters or messages were sent or were received and may offence
of cheating and dishonesty including delivery of property may be inquired into
or tried by a court within whose local jurisdiction the property was delivered
by the person deceived or was received by the accused person under sec.182. Tekumalla Muneiah v/s C.B.Ammanamma, 1991: it was a case of bigamy
the court held the complainant could be entertained by the court having
territorial jurisdiction over that place.
6.
Offence
committed on journey or voyage:- When an offence
is committed while the person by or against whom or the thing in respect of which the offence is committed
is in the course of performing a journey or voyage the offence may be inquired
into or tried by a court through or into whose local jurisdiction that person
or thing passed in the course of that journey or voyage, u/sec.183.
7.
Place
of trial for offences triable together:- Sec.184 says, where
the offence committed by any person are such that he may be charged with and
tried at one trial for each such offence by virtue of the provisions of
seec.219 or sec.220 or sec.221. The offence or offences committed by several
persons are such that they may be charged with and tried together by virtue of
the provision of sec.223.Case: Pursottam
Dalmiya v/s State of W.B.-1961.
8. Offences Committed Outside
India:- When offences is committed outside India
by a citizen of India, whether on the high seas or elsewhere or by a person not
being such citizen on any ship or aircraft registered in India, he may be dealt
with in respect of such offence as if it had been committed at any place in
India at which he may be found.
9. Discuss the
provisions as to maintenance of Pubic order tranquility in the case of Public
nuisances.
INTRODUCTION:
- The cases of public nuisance which sec.133
of Cr. P. Code deals only for the public cases not in the nuisance of private
cases. These cases are referred to Civil Courts. The proceeding under section 133 should be
taken when in case of emergency where public shall be put to great
inconvenience and shall suffer an irreparable injury. It can also be taken
where the obstruction or nuisance has been in existence for a long period. Sec.
133 empowers a Magistrate to take action where there has been invasion of
public rights. He cannot proceed when existence of public right is denied.
1.
Scope of Section 133:- The unlawful
obstruction or nuisance to any way river or channel lawfully used by the public
or to public place. The conduct of any
trade or occupation or the keeping of any goods or merchandise injurious to the
health or physical comfort of the community. A building, tent or a structure or
tree as is likely to fall and cause injury to persons. Unfenced tank, well near
a public way or place and a dangerous animal requiring destruction.
In
Shri Ram v/s State of U.P.-1992: Magistrate
passed the order to remove the construction on public path. The opposite party
denied the existence of public path itself.
It was held that failure on the part of Magistrate to record whether
such denial was correct or not would make the order of removal illegal.
In
Kachrulal Bhagirath Agarwal v/s State of Maharashtra-2004:
The allegation was that red chilies were stored in godown in residential locality
and loading unloading thereof was causing physical discomfort and injury to the
health of people in the locality. The sub divisional magistrate upon
considering evidence of residents in locality came to conclusion that people in
general suffered. It was held that SDM should conduct inquiry on the basis of
reliable evidence and take action accordingly.
In
Municipal Council Ratlam v/s Vardhichand and others-1980:
Supreme Court examined the scope of section 133 and held that where there
existed a public nuisance in a locality due to open drains, heaps of dirt, pits
and public excretions by human for want of lavatories and consequential
breeding of mosquitoes. The court further held that the Cr.P.C operates against
statutory bodies and other regardless.
2.
Service or Notification of order:- The order should be served to the person for
whom it is made in the manner provided for the service of a summons. If such
order cannot be served it shall be notified by proclamation published in such
manner as the State Government may by rules direct and a copy of the same be
stuck up at such place or places as may be fittest for conveying the
information to such person under section
134 of the this code.
3.
Person to whom order is addressed to obey or showcause:
- U/S-135, on basis of instructions
given in the order the person whom the order is given shall perform within the
time and in the manners specified in the order. Case Nagarjuna Paper Mills Ltd. v/s S.D.M & R.D. Officer-1987 it was
held that the water act has not taken away the power of S.D.M. under section 133 and he can pass order under
sect.136 to close a factory causing
pollution when appreciation certificate is not produced.
4.
Consequnces of his failing to do so:-
Provisions have been made in sec.136
that if such person does not perform such act or appear and show cause, he
shall be liable to the penalty prescribed in that behalf in sec. 188 of the IPC
and order shall be made absolute.
5.
Proceedure where existence of public right is denied:-
Where an order is passed for the purpose of preventing obstruction nuisance or
danger to the public in the use of any way river, channel or place, the
Magistrate shall on the appearance
before him of the person against whom
the order was made. A case of Santosh Kumar
sharmav/s Moti lal Mahawar-1993, it was held that it is absolutely clear
that the Executive Magistrate before taking recourse to the proceedings laid
down under sec.137.
6.
Procedure where he appears to show-cause:- U/s 138,
the magistrate is bound to take evidence as in a summon case. If on taking
evidence the magistrate is satisified that it is reasonable and proper he can
make the conditional order absolute otherwise further proceedings may be
stopped.
7.
Power of magistrate to direct local investigation and examination of an expert:-
Under sec.139 Magistrate may direct
local investigation from such person as he thinks fit he may also summon and
examine an expert.
8.
Power of Magistrate to furnish written instructions etc.:-
Under sec.140, may furnish such
person with such written instructions or declare by whom the whole or any part
of the expenses on local investigation shall be paid.
9.
Procedure on order being made absolute and consequences of disobedience
under sec. 141 of the act, magistrate
can give notice and order him to perform he act within the time to be fixed in
the notice.
10.Injunction
pending inquiry:- Sec.142, measures to prevent imminent danger or injury of a serious
kind to the public. Magistrate must see that the injunction of the kind reqired
and it was issued against whom has failed to obey the same as held in case of Amar Krishna saha v/s Bipra charan dey-1965.
11.
Magistrate may prohibit repetition or continuance of public nuisance:- u/s 143 says
that Distt. Magistrate, SDM or Executive Magistrate may order any person not to
repeat or continue a public nuisance.
12.
Power to issue order in urgent cases of nuisance or apprehended danger:
- U/s144 it deals with urgent cases of nuisance or apprehended danger Madhu Limaya v/s SDM, Manglyr-1971,
Magistrate was in bona fide exercise of his power & legal.
UNIT-III
10.
DISCUSS THE JOINDER OF CHARGES UNDER CODE OF CRIMINAL PROCEDURE.
INTRODUCTION:-
The object of the rule embodied in the sec. 218 of Cr. P. C., is to ensure a fair trial and to see that the
accused is not bewildered or perplex to confuse by having been asked to defend
several unconnected charges or distinct offences lumped together in one charge
or in separate charges. We will read the rules relating to joinder of charges
described in different part of this section. There is no exception to the rule
that there should be separate charge for each offence. The detail study of this section is as under:-
DEFINITION:
- For every distinct offence of which any person is accused there shall be a
separate charge and every charge shall be tried separately. Where the accused person by an application in
writing, so desires and the Magistrate is of opinion that such person is not
likely to be prejudiced thereby, Magistrate may try together all or any number of the charges famed against such
person.
1. Effect of Contravention
of Sec.218:- The effect of the contravention of
the provisions of this sec. has been considered by the Supreme Court in
following number of cases:- Sushil Kumar
v/s Joy Shankar-1971: It was held that charges under 408 and 477A of IPC
could be tried together. In this case several persons accused on several items
of embezzlement were tried jointly. There was no failure of justice in
consequence of the joinder of charges had occurred. In V.N. KAMDAR v/s DELHI MUNICIPALITY-1973: It was held, “that the
provisions of sec. 218 to 224 would
indicate that separate charge and separate trial for such distinct offence is
the normal rule and joint trial is an exception when the accused have committed
separate offence.”
2.
Failure
to Explain injuries on the accused:- When
the prosecution fails to explain satisfactorily the injuries sustained by the
accused there are number of judicial pronouncements on this point. Case State of Gujrat v/s Bai Fatima-1975: It
was held that the accused had inflicted the injuries on the members of the
prosecution party in exercise of the right of self-defence.
3.
Three
offences of the same kind within year may be charged together:-
under section 219 of Cr. P. C. when
a person is accused of more offences than one of the same kind committed within
the space of twelve months from the first to the last of such offences, he may
be charged with and tried at one trial for any number of them not exceeding
three. Provisions of section are only enabling provisions, it applies where
offences are of the same kind but it does not apply where offences are not of
the same kind such as criminal breach of trust and falsification of accounts. Rahmat v/s State of U. P.-1980.
4.
Trial
for than one offence:- If in one series of
Acts so connected together as to form the same transaction more offences than
one are committed by the same person, he may be charged with and tried at one
trial for every such offence as provided under section,220 of the Cr. P.C. Case
Krishna Murthy v/s Abdu Subhan- 1965.
Case of Kanshiram v/s Jhunjhunwala-1935,
with the same it was necessary to ascertain whether they are so connected
together as to constitute a whole which can properly be described as a
transaction.
5.
Where
it is doubtful what offence has been committed:
- Sec.221 provides for the cases
where it is doubtful what offence has been committed. It applies to the cases
in which the facts are not doubtful but the
application of law to the facts is doubtful as held in a case of Abdul Hamid -1935. This sec. applies
where the doubt is about the nature of the offence and not about the facts as
held in case Jatinder Kumar v/s State of
Delhi-1992.
6. When the offence proved
included in offence charged: - Sec.222
considered the conviction of minor offence included in the offence charged in
either of two cases, where the offence charged consists of several particulars
and combination is proved but the remaining particulars are not proved as held
in Maung Ba v/s the King-1938. And where the facts are proved which
reduce the offence charged to a minor offence as held in case of, Emperor v/sAbdul Wahab-1945.
7. What persons may be
charged jointly:- Under sec.223 joint
trail of several persons is permissible and applies only to trials and not to
inquires. A joint trial of several persons under this section is not vitiated
merely by the facts that at the end of the trial the facts found happen to be
different from those on the basis of which the charges were originally framed
as held in case of Trilokchand v/s Rex-1949. It was also held in case of
A.R.Autulay v/s R.S.Nayak-1988.
8. Withdrawal of remaining
charges on conviction on one of several charges: -
When a charge containing more heads than one is framed against the same person
and when a conviction has been had on one or more of them, the complainant or
the Officer conducting the prosecution may with the consent of the Court
withdraw the remaining charge or charges. The court of its own accord may stay
the inquiry into or trial of such charges. Court may proceed with the inquiry
into or trial of the charge or charges so withdrawn.
11.
Discuss the provisions of trail before a Court of Session.
INTRODUCTION:
- The procedure of trial of offences
before court has been described in section 225 to sec. 237 of the Criminal
Procedure Code-1973. Here it is important that any matter does not come
directly for trial before the Court of Sessions. Such matter is committed for
trial to Court of Session. Any matter is
committed to Court of Session when it has the exclusive jurisdiction to try
such offence.
1.
CONDUCTION
OF TRIAL:- In every trial before a Court of
Session, the prosecution shall be conducted by a Public Prosecutor as laid down
in sec.225 of the code.
2.
OPENING
THE CASE FOR PROSECUTION:- When the accused
appears or brought by before the Court in pursuance of a commitment of the case
under section 209 the prosecutor shall open his case by describing the charge
brought against the accused and stating by what evidence he purposes to prove
the guilt of the accused under sec. 226
of Cr. P. C. case of Hukam Singh v/s
State of Rajasthan-2001.
3.
DISCHARGE:
- If upon the consideration of the record
of the case and the documents submitted therewith and after hearing the
submission of the accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for proceeding against the
accused he shall discharge the accused and record his reasons for doing so. As
held in case of T.V.Sharma v/s
R.Meeriah-1980. It is called charge arguments; court has to consider the
complete case carefully before giving order to discharge State of J&K v/s Romeshchandra-1997. These are the provisions
of sec.227.
4.
Framing
of charge: - While framing charges court shall
only see that there is a prima facie case against accused or not. At this
juncture there is no need for praising witnesses as held in case of State of M.P. v/s S.B. Johri-2000. Where the judge frames any charge, the
charge shall be read and explained to the accused and accused shall be asked
whether he pleads guilty of the offence charged or claims to be tried as
provided in section 228 of Cr. P.C.
5.
Conviction
on Plea of Guilty: - If the accused
pleads guilty the judge shall record the plea and may in his discretion convict
him thereon. The plea of guilty only
amounts to an admission that the accused committed the acts alleged against
him. It was held in case of Tyron
Nazarath v/s State of Maharashtra-1989. This is more so in case persons
tried jointly when some plead guilty and the others claim to be tried, case of Bantra Kunjana-1960. These are
provisions available in sec. 229 of
Cr.P.C.
6.
Date
for Prosecution Evidence:- If the accused refuses
to plead or does not plead or claims to be tried or is not convicted under sec.229, the Judge shall fix a date for
the examination of witnesses and may on the application of the prosecution
issue any process for compelling the attendance of any witness or the
production of any document or other thing. Case Mukipad Mandal v/s Abdul Jabbar-1973, it is the duty of court to
take all necessary steps to compel the attendance of witnesses. The accused
cannot be acquitted on the ground of failure of the witnesses to appear before
the court, under sec. 230.
7.
Evidence
for Prosecution:- On the date fixed, the judge
shall proceed to take all such evidence as may be produced in support of the
prosecution sec.231. when any
witness appears before the court there shall be no delay as possible in his
examination but if any delay happens in
the examination of any witness the merely on this ground the prosecution matter
cannot be suspended case of Bunty
urf Guddu v/s State of M.P-2004.
8.
Acquittal:
- If after taking the evidence for the
prosecution examining the accused and hearing the prosecution and he defence on
the point the Judge considers that there is no evidence that the accused
committed the offence the judge shall record an order of acquittal under sec. 232. The accused can either be
convicted or acquittal but not discharged.
9.
Entering
Upon Defence :- Where th accused is not acquitted
under sec.232 he shall be called upon to enter on his defence and adduce any
evidence he may have in support thereof.
It the accused puts in any written statement the judge shall file it
with the record. If the accuse applies for the issue of any process for
compelling the attendance of any witness or production of any document or thing
the judge shall issue such person unless he considers such application for the
purpose of vexation or delay or for defeating the ends of justice. Case State of MP v/s Badri Yadav-2006. These
are the provisions in sec.233.
10.
Arguments:-
When the examination of witnesses for the defence is complete the prosecutor
shall sum up his case and accused shall be entitled to reply. During his
process where any point of law is raised by the accused the prosecutions mazy
with the permission of judge make his submissions with regard to such point of
law under sec. 234. It is called arguments.
11.
Judgment:-After
hearing both the parties the judge shall give a judgment in the case under sec.235.Case:Alluddin Mian Sharif Mian v/s State of Bihar-1989.
12.
Previous
Conviction: - If the accused is charge of
previous conviction and the accused does not admit that then judge may take
evidence in respect of the alleged previous conviction and record a finding
thereon under sec. 236.
13.
Procedure in cases instituted under Sec.
199:-Sec.237 of the code provides the procedure for
trial of such matters which have been instituted under sec.199 (2). Sec.199 (2) provides for prosecution of
defamation matters. If any matters of
defamation is alleged to have been committed against the President of India,
Vice-President, Governor of State, Administrator of UT, Minister of Union or
State or Any other Public servant. If during trial court finds scope of
acquittal he may pass such orders.
12.
For
every distinct offence of which any person is accused there shall be a separate
charge and every such charge shall be tried separately. Explain are there any
exceptions to this rule, if so what?
INTRODUCTION:-
Provisions relating to charge are aimed
at giving complete information to the accused about the offence of which he is
being charged. It gives the accurate
precise information about the accusations made against him. Every charge shall state the offence with
which the accused is charged. The charge shall be written in the language of
the Court. The language of the charge should be specific and clear.
WHAT
IS CHARGE: - Sec.2 (b) of Cr.P.C.-1973 provides
the definition of charge but it is neither definition as per dictionary meaning
nor it is directing any meaning. It only
says that, “Charge induces any head of charge when the charge contains more
heads than one.” Charge is such a
written statement of the information of offence against the accused person
which contains the grounds of charge along-with time, place, person and things
in relation to which offence is committed. The charge is a precise formulation
of the specific accusation of an offence against the accused person. Accused prepares his defences on the basis of
it.
Components of Charge:-
Sec.211 says that:-
1.
Every charge shall
state the offence with which the accused is charged.
2.
If the law which
creates the offence gives it any specific name, the same may be described by
that name, like theft, robbery, dacoity or murder etc.
3.
If law does not give
any specific name so much of the definition of the offence must be stated for
giving the notice to accused.
4.
The Law and section of
the law against which the offence is committed shall be mentioned in the
charge.
5.
The fact that the
charge is made is equivalent to a statement that every legal condition required
by law to constitute the offence is fulfilled.
6.
The charge shall be
written in the language of the court. Case of Krishan v/s State of Kerla-1958.The court said that charge should
be in Court’s language.
7.
The previous conviction
if any of the accused must be stated in the charge i.e. place, date and the
fact of the offence.
According to Sec. 212:-
Particulars as to time place and person:-
1. The time of commission of the
offence be given in the charge.
2. The place of commission of the
offence may also be recorded in charge.
3. The person against whom or thing in
respect of which it was committed.
4. The manner of committing offence must be
stated in the charge u/s 213.
5.
The words must be of sense of law under which offence is punishable u/s214.
Effect
of Errors: - Section 215 of the code says that
there should be no error in stating either the offence or the particulars required
to be stated in the charge, there should also be no omission to state the
offence or those particulars which at any stage of the case as material unless
the accused was in fact misled by such error or omission which may results the
failure of justice. Then such charge shall be considered faulty and the trial
on the basis of such charge shall also be faulty.
Court
May alter the charge: Under sec.216, any court may alter or add to
any charge at any time before the judgment is pronounced.
Recall
of Witnesses when charge altered:- under section 217, whenever the charge is
altered or added to by the Court after the commencement of the trial the
prosecutor and the accused shall be allowed to recall or re-summoned and
examine the alteration and addition any witness who may have been examined.
Separate
charges for distinct offence: - The object of
sec.218 is to ensure a fair trial and to see that the accused is not bewildered
by having been asked to defend several unconnected charges or distinct offences
lumped together in one charge, case of Aftab
Ahmad Khan v/s State of Hydrabad-1954.
Same
offences of same kind within one year may be charged together:
- sec. 219 provides that offences
punishable under sec.379 and 380 IPC
shall be deemed to be offences of the same kind. Criminal breach of trust and
falsification of accounts, when the offence is committed by a single accused
and is not applicable where several persons are tried jointly.
Trial
for than one offence:- Sec.220 provides
If in one series of acts so connected
together as to form the same transaction, more offences than one are committed
by the same person, he may be charged with, and tried at one trial for every
such offence. Case State of Biahar v/s Simranjit Singh-1987.
Framing
of charge where it is doubtful what offence has been committed:-
sec.221 of the code provides for the
framing of charge in those matters where there is doubt of what offence has
been committed. In such matters, charge shall be framed as follows:-
All
offences committed as a result of the nature of Act.
All or any of such offences charged in the
alternative with having committed some one of the said offences. Goverdhan v/s Kanilal-1953.
When
offence proved included in offences charged:-
When a person is charged with an offence consisting of several particulars or
an offence and facts are proved which reduce it to a minor will be convicted of
the minor, case of State of Maharashtra
v/s Rajendra Jawanmal Gandhi-1997, Sangarobina Sreenu v/s State of A.P.-1997. These are the provisions of
Sec.222 of the code.
Withdrawal
of remaining charges on conviction on one of several charges:- Sec.224
of the code says that when a charge containing more heads than one is framed
against he same person and when a conviction has been had one or more of them
the applicant or prosecution with the consent of court withdraw the remaining
charges or court of its own accord may stay the inquiry or trial.
13. Difference between procedure of trial for
warrant case and Summon Case?
INTRODUCTION:
- Police report is defined in this Code
and according to these provisions ‘Police report means a report forwarded by a
police officer to a Magistrate under sec. 173 of the code. When in any warrant
case instituted on a police report the accused appears or is brought before a
Magistrate at the commencement of trial. Magistrate shall satisfy himself that
he has complied with provision of the code.
There
are two categories in which the criminal cases can be classified on the
provisions laid down in the code:-
i)
Summon
Case:- Definition of summon case is given in
Sec.2(x) means, Summon case means a
case relating to an offence not being a warrant case.
ii)
Warrant
Case: Means a case relating to an offence
punishable with death, imprisonment for life or imprisonment for a term
exceeding two years.
The
criteria of summons case and warrant case determines the duration of punishment
in any offence is punishable with fine of Rs.50/- then such matter is summon
case, a case of Public Prosecutor v/s
Hindustan Motors, AndhraPradesh-1970.
The
issue of summon or warrant in any case does not change the nature of the case,
supposing warrant is issued in a summon case is does not make the case a warrant
case, in case of Padamnath v/s Ahmad Dobi-1970.
A.
Procedure
of trial of Warrant Case:- lays down the
procedure for a warrant case:-
i)
Cases
must be instituted upon police report:-Sec.238 of the code lays down the
procedure of trial of warrant cases instituted upon police report and according
to it procedure of trial is as under :-
a) Copy
of the police report and other document to be provided to the accused on
institution of any warrant case when the accused appears or brought before a
magistrate at commencement of the trial.
b) Discharge of accused on
groundless charges: - On receiving the
police report & other documents and providing of the accused the magistrate
shall consider the each report. He shall provide reasonable opportunity of
hearing to accused and prosecution (it is commonly called charge argument); the
magistrate shall examine the accused if necessary. If the magistrate finds that
the charge against the accused is groundless he shall discharge the accused
under sec.239. He will also check
the prima facie of the case. Case of
State v/s Sitaram Dayaram-1959.
c) Framing of charge:-If
the magistrate is of the opinion that there is a ground for presuming that the
accused has committed an offence and is competent to try such offence which can
adequately punish the accused in his opinion. Then the charge shall be framed
against the accused in writing and trial will start. Case of Col.S.Kashyap v/s State
of Raj.-1971.
d) Conviction of plea of
guilty:-if the accused pleads guilty the magistrate
shall record the plea and may in his discretion convict him.
e) Evidence for
prosecution: - If the accused refuses to plead
guilty and claims to be tried, the magistrate shall fix a date for the
examination of the witnesses, u/s 242, and case State v/s Suwa-1962.
f) Evidence for defence:-
u/s 243 on completion of prosecution
witnesses, defence witnesses produces by the accused, the expenses on
compelling the attendance of the witnesses shall be borne by the accused.
B.
Cases
instituted otherwise than upon police report:
- The procedure of trial for summons
cases is less brief in nature.
ii)
There is no need of framing
of formal charge in summons cases.
iii)
Accused can be
convicted or acquitted.
iv)
Summons case cannot be
reopened after completed once.
v)
Complainant can withdraw
his complaint in summons case. Its
effect would be acquittal of accused.
vi)
In summon cases summons
are generally issued to the accused.
vii)
Accused is not required
to be heard on the question of sentence in summon case.
viii)
In summon cases there
is no need of arguments generally before substance prosecution.
ix)
In summon case if the
accused pleads guilty the Magistrate shall record the plea and may convict him
on that basis under sec.252.
x)
In summons case if the
magistrate does not convict the accused on his plea of guilty he shall proceed
to hear the prosecution and take all evidence. He will also hear the accused
and take all evidence produced by the accused under sec. 254(1).
xi)
u/s 257, on
satisfaction of the magistrate he may permit the complainant to withdraw his
complain thereupon the accused shall be acquitted.
xii)
In a summon case no
provisions authorizing the magistrate to permit the cross-examination of any
prosecution witnesses to be deferred or recall of any witness for further
examination.
xiii)
In summon case when
summon has been issued to complainant and he fails to appear on fix date the
accused may acquit unless for some reasons he thinks to adjourn the hearing of
the case to some other day u/s 257.
14.
Discuss in brief the general provisions as to inquiries and trails under the
Criminal Procedure Code-1973.
INTRODUCTION:
- A Magistrate within whose local
jurisdiction the offence is committed is competent to take cognizance and to
try the case. A Magistrate has no jurisdiction to take cognizance of a case
which has wholly been committed outside his jurisdictional limits. The jurisdiction of the magistrate does not
come to an end by transfer of the locality, where the crime was committed to
another district. The followings provisions are laid down in the code:-
1.
Ordinary
place of inquiry and trial: - Every offence shall
ordinarily be inquired into and tried by a court within whose local
jurisdiction it was committed. Word ordinarily means except in the cases
provided hereinafter to the contrary. Under sec.
177 of the code. Case of Ramnarayan kapur-1936 and Nurumal v/s State
of Bombay-1960.
2. Place of inquiry or trial:
- Where an offence is committed partly in
one local area and partly in another or is a continuing one and continues to be
committed in more local areas than one and where it consists of several acts
done in different local areas court having jurisdiction over any of such local
areas, under sec.178 of the code. Case HiraLal v/s Emperor-1946.
3. Offence triable where
act is done or consequence ensues:-When
any act is an offence by reason of anything which has been done and of
consequence which has ensued the offence may be inquired into or tried by a
Court within whose local jurisdiction such thing has been done or such
consequence has ensued under sec.179
of the code. State v/s Dhulaji
Bavaji-1963.
4. Place of trial where
act is an offence by reason of relation
to other offence:-When an act is an
offence by reason of its relation to any other act which is also an offence or
which would be an offence it the doer were capable of committing an offence the first mentioned
offence may be inquired into or tried by a court within whose local
jurisdiction either act was done, under sec.180
of the code.
5. Place of trial in case
of certain offences: - Where it is difficult
for the complainant to find out as to where the misappropriation actually
occurred jurisdiction lies at the place where the property had to be delivered.
Sec.410 of IPC gives a wide meaning to stolen property. These are the
provisions of sec.181 of the code.
Case of Emperor v/s Laxman-1926.
6. Offences committed by
letters etc.:- Sec.182 of the code says that, Any
offence which includes cheating may if the deception is practiced by means of
letters or telecommunication message be inquired into or tried by any court
within whose local jurisdiction. Case Bhola
nath v/s State-1982.
7. Offence committed on
journey or voyage: Sec. 183 provides that the
expression journey & voyage under this section does not include a voyage on
the high seas or in a foreign territory of India. Case of Queen v/s Piran-1874.
8. Place of trial for
offences triable together: - There are provisions in
the section 184 of the code that
where an offence is committed in pursuance of conspiracy, the court having
jurisdiction to try that offence may try the offence of conspiracy even if it
was committed outside its jurisdiction. Case L.N.Mukerjee v/s State of Madras-1961.
9. Power to order cases to
be tried in different sessions divisions: - Notwithstanding
anything contained in the preceding provisions, the state government may direct
that any cases committed for trial in any district may be tried in any session
division, under sec.185. Case of Supdt.
Of Police v/s Ferozuddin Basheeruddin-1993.
10.High Court to decide in
case of doubt, where inquiry or trial shall take place:- Sec.186 provides
that where two or more courts have taken cognizance of the same offence and a
question arises as to which of them ought to inquire into or try that offence
this will be decided by the High Court.
11.Power to issue summons
or warrant for offence committed beyond local jurisdiction :- When
a magistrate of first class sees reason to believe that any person within his
local jurisdiction has committed outside jurisdiction an offence which cannot
under the provisions of sections or any other law for the time being in force
be inquired into or tried within his local jurisdiction and compel the person
to appear before him or send him to the Magistrate under whose jurisdiction the
offence is committed, under sec.187.
12. Offence committed
outside India:- Section l88 of the code says that
when an offence is committed outside India by a citizen of India whether on the
high seas or elsewhere and also by a person not being such citizen on any ship
or aircraft registered in India. He may be dealt with in respect of such
offence as if it had been committed at any place within India at which he may
be found. Case of Emperor v/s
Maganlal-1882.
13.Receipt of evidence
relating to offences committed:-Sec. 189
of the code says that, when an offence alleged to have been committed in a territory
outside India is being inquired into or tried under the provision of sec. 188, the court holding such
inquire or trial in any case in which such court might issue a commission for
taking evidence as to the matters to which such depositions or exhibits relate.
UNIT- IV
15
What do you mean by Judgment? What are the contents of judgment? Discuss the
powers of High court to confirm death sentence?
INTROUDCTION:
- After hearing both the parties the Judge give a judgment in the case. The
judgement in every trial in any criminal court of its own jurisdiction shall be
pronounced in the open court by the presiding officer immediately after the
termination of the trial or at some subsequent time of which notice shall be
given to the parties or their pleaders.
1.
Section 353 of the cr. procedure code-1973 provides:-The
judgment in every trial in any criminal court in its own jurisdiction shall be
pronounced in open court by the presiding officer immediately after the
termination of the trial or at some subsequent time of which notice shall be
given to the parties or their pleaders. Case Anthony v/s State-1993. It
was also held in a case of Yelchuri
Manohar v/s State of A.P-2005, that electronic media cannot provide any
guiding factors.
2.
Language and contents of Judgment: - That
every judgment shall be written in the language of the Court. It may also
contain the point or points for determination, the decision thereon and the
reasons for the decision, as provided in sec.
354 of the code. Case of Ram Bali
v/s State of U.P. -2004. The language and the contents of the judgment must
b self-contained and must also show that the court has applied its mind to the
facts and the evidence, as held in case of Niranjan
V/s State -1978. Failure to signing
of judgment at the time of pronouncing it is only a procedural irregularity curable
as per instructions provided in the code.
3.
Judgment of Metropolitan Magistrate:
- That instead of recording a judgment in the manner provided a metropolitan
magistrate shall record the serial number of the case, the date of commission
of the offence along-with the name of the complainant. The name of the accused person his parentage
and residence mentioning the plea and examination of accused. The date of final
order may also be recorded as provisions laid down in sec.355.
4.
Order for notifying address of previously convicted offender:
- Sec. 356 of the code provides
that, when any having been convicted by a court in India of an offence
punishable. If such conviction is set aside on appeal or otherwise such order
shall become void. State Govt., can make rules to carry out the provisions
relating to the notification of residence.
5.
Order to pay compensation:-The quantum of
compensation is to be determined by taking into consideration the nature of the
crime, injury suffered and the capacity of the convict to pay in case of Manish Jalan v/s State of Karnatka-2007. These
are the provisions of the section 357.
6.
Scheme for compensation to victim:-In
every state with the coordination with the central Govt., shall prepare a
scheme for providing funds for the purpose of compensation to the victim or his
dependents who have suffered loss or injury as a result of the crime and who
require rehabilitation under sec.357A.
7.
Compensation to persons groundlessly arrested:
- Sec. 358 provides that whenever
any person causes a police officer to arrest another person if it appears to
the Magistrate by whom the case is heard that there was no sufficient ground of
causing such arrest. The Magistrate may award such compensation not exceeding
1000/- rupees as held in case of Parmod
Kumar v/s Golekha1986.
8.
Order to pay costs in non-cognizable cases: - Sec.359
says that whenever any complaint of a non-cognizable offence is made to a
court, the court if it convicts the accused can order to pay the penalty
along-with cost incurred by the complainant and in case of default of payment
the accused can sentence simple imprisonment for a period not exceeding 30
days.
9.
Order to release on probation of good conduct after admonition:-Sec.360
says that this section is a piece of beneficent legislation. It applies only to first offenders. It
enables the court under certain circumstances to release the accused who has
been convicted on probation of good conduct as in a case of Ved Parkash v/s State of Haryana-1981.
10.
Special reasons to be recorded in certain cases: - Where
in any case the court could have dealt with an accused person under the
provisions of offenders Act a youthful offender may tried by any other law for
the time being in force for the treatment training or rehabilitation of
youthful offenders as held in case of Nanna
v/s State of Rajasthan-1989, under sec. 361.
11.
Court not to alter Judgment:- According to section 362 of
the code that any other law for the time being in force no court when it has
signed its judgment or final order disposing of a case shall alter or review
the same except to correct a clerical or arithmetical error, case of Naresh & others v/s State of U.P.-1981.
12.
Copy of the judgment to be given to the accused and other persons: - Section
363 says that a copy of the judgment shall
immediately after the pronouncement of the judgment be given to him free of
cost, as held in case of Ladli Parsad
Zutsi-1932.
13.
Judgment when to be translated: - Sec.364 provides
that the original judgment shall be filed with the record of proceedings and
where the original is recorded in different language from that of court and so
requires it may be translated in to the language of the Court.
14.
Court of Session to send copy of finding and sentence to District Magistrate: -
In the case tried by the court of
session or a CJM the court or such magistrate as the case may be shall forward
a copy of its or his finding and sentence if any to the District Magistrate as
said in sec. 365 of the code.
14
Submission of death sentences for confirmation:-Sec.366When
a Court of Session passes a sentence of death the proceedings shall be
submitted to H/C, it cannot be executed unless it is confirmed by H/C. Sec.371 procedure laid down that the
Proper officer without delay after the order of confirmation or other order has
been made by H/C send a copy of the order under seal of H/C duly attested to
S.Court
16
Examine the law relating to appeal in criminal case. Make a difference between
Appeal & Revision in criminal cases.
INTRODUCTION:-Appeal
is an important remedy for person’s dissatisfied from judgment finding and
orders of the trial court. Under section
372 of the Cr.P.C., it is provided that relation to appeal it is necessary
to know that no appeal shall lie from any judgment or order of a criminal court
except as provided by this code or any other law for time being in force, case Garikapati v/s Subhash coudhari-1957.
However the provisions regarding making an appeal are the following:-
1.
Appeal from orders requiring security or refusal to accept or rejecting surety
for keeping peace or good behavior: - Any
person who has been ordered to give security for keeping the peace or for good
behavior or who is aggrieved by any order refusing to accept or rejecting a
surety on the basis of sec.373.
2.
Appeals from Convictions: - According to section 374 of code that any person
convicted on a trial by a H/C in its extraordinary original criminal
jurisdiction may appeal to Supreme Court similar any person convicted by
session judge or on a trial held by any other court which sentence or
imprisonment is more than 7 years
may appeal to High court. Case Panchi
v/s State of U.P.-1998, In C.Gopinathan
v/s State of Kerala-1991
3. Appeal by State against sentence: - Under
sec.377, the state Government may in any case of conviction on a trial held by
any court other than a H/C direct the Public Prosecutor to present an appeal
against the sentence on the ground of its inadequacy to Court of Session if the
sentence is passed by the Magistrate or to the H/C if the sentence is passed by
any other Court. When an appeal is filed against the sentence on the ground of
its inadequacy court shall not enhance the sentence except after giving to the
accused a reasonable opportunity of sowing cause against such enhancement. Case
of Nadir Khan v/s State-1976.
4.
Appeal in case of Acquittal :- In an appeal
against acquittal under sec.378 the
H/C has full power to review at large the evidence on which the acquittal is
based and to reach the conclusion that the order of acquittal should be
reversed as held in case of Mohandas v/s
State of MP-1973, but exercising his power the H/C should give proper
weight and consideration to the view of the trial judge as to the credibility
of witnesses, presumption of innocence in favour of the accused. And a right of
the accused to the benefit of any doubt. It was also held in State of U.P. v/s Gambir Singh-2005
case of appeal against acquittal if on same evidence two views are possible,
the one in favour of accused must be preferred.
During
the hearing of appeal from the order of
acquittal it should be taken into consideration that there is no miscarriage of
justice, case Allahrakha K. Mansuri v/s
State of Gujrat-2002. The order of acquittal cannot be dismissed merely on
the ground that a second approach could have been applied in the case and it
means that the accused could have been convicted on considering another view a
case of Chandra Singh v/s State of
Gujrat-2002.
5.
Appeal
against conviction by H/C in certain cases :-Where
an H/C has on appeal reversed an order of manifest on record of acquittal of an
accused person and convicted him and sentenced him to death or to imprisonment
for life or to imprisonment for a term of ten years or more, he may appeal to
the Supreme Court under sec. 379.
6. Special right of appeal
in certain cases:- In Shingara Singh v/s State of Haryana-2004, when
more persons than one are convicted in one trial and an appealable judgment or
order has been passed in respect of any of such persons, under section 380.
7. Appeal to court of
session how heard:- Appeal to the court of
session shall be heard by the sessions judges or by ASJ u/s 381.
8. Petition of appeal:-Every
appeal shall be made in the form of a petition in writing presented by the
appellant or his pleader u/s 382.
DIFFERENCE BETWEEN
APPEAL & REVISION
APPEAL
1.
Any person convicted on a trail held
by H/C may appeal to S/C.
2.
Any person convicted on a trial by a Session
judge or on a trial held by any other court for more than 7 years may appeal
to the High Court
3.
Any person convicted on a trial held by metropolitan Magistrate or Magistrate
Ist. Class may appeal to Session Judge.
4.
If the appellant is in jail he present his petition of appeal through Officer
I/c jail.
5.
Pending an appeal by accused person the appellate court shall suspend the
execution of order of sentence & if he is in confinement he be released
on bail.
|
REVISION
1.
The correctness, legality or
proprietary of any finding sentence or order of any lower court.
2.
The regularity of any proceedings of
such court.
3.
The powers of revision cannot be used
through interlocutory orders.
4.
During the hearing of Revision argue
of the person applying for revision should be considered seriously even
though it they are too brief. Case Pal George v/s state-02.
|
17:
What is bail? State the provisions of Bail under Cr.P.C. Can a person get order
to be released on Bail without judicial or Police custody? Refer case law.
INTRODUCTION:-It
is travesty of justice that many poor accused i.e. ‘little Indians’ are forced
into long cellular servitude for little offences because the bail procedure is
beyond their meagre means and trails don’t commence and even if they do, they
never conclude. Our bail system suffers from a property oriented approach which
means to proceed on the erroneous assumption that risk of monetary loss is the
only deterrent against fleeing from justice.
What
is bail?-When any person who is accused of any
offence other than non-bailable offence, he shall be released on bail under
sec.436 of the code provided he has been arrested or detained without warrant
by an Officer I/C of Police station or he appears or is brought before a court
and he must be prepared any time whine in the custody or at any stage of the
proceeding before a court.
However the following are the provisions of
getting Bail under Cr.P.C. Offences can be classified into two classes on the
basis of bail:-
i)
Bailable
offences: - Bailable offences are of general
nature and in these offences it is right of accused to be released on bail. Sec.436 of Cr.P.C. pertains to Bailable
offences.
ii)
ii)
Non-Bailable offences: - These offences are
of severe nature and bail cannot be claimed as right in them. In such cases
bail depends upon the discretion of the court. Sec. 437 relates to Non-bailable
offences.
1. Grant of Bail in
Non-bailable offences: - Sec. 437 provides that when any person accused of or suspected of
commission of any non bailable offence is arrested or detained without warrant
by an Officer I/C of a Police station or appears or is brought before a court
other than the High Court or court of Session he may be released on bail. Thus section 437 empowered a Magistrate to
take bail in non bailable offences. The provision of this makes it clear that
bail in non bailable offences depends upon the discretion of the court.
i)
When
bail shall be granted: - sec.437 (1) lays down two situation in which bail shall not be
granted by magistrate:1) reasonable grounds for believing that he has been
guilty of offence punishable with death or imprisonment for life. 2. When
offence is cognizable and he had been convicted with death, imprisonment for
life or imprisonment for 7 years or more or he has been convicted on two or
more occasion.
ii)
There
are exceptions to receive bail:- this section
also provided with few exceptions where magistrate can receive bail in
following cases:-
a) Where
the accused is under the age of 16 years.
b)
If she is a woman.
c)
Sick or infirm
Thus in the above cases the bail
application can be accepted even though the accused in guilty of offence
punishable with death or imprisonment for life or has been convicted earlier.
Case Venkataramanappa v/s State of
Karnatka-1992.
Conditions
for Bail:- Under sec. 437(3) that where a person accused or suspected of the
commission of an offence punishable with imprisonment which may extend to 7 years
or more or for an offence, abetment of
or conspiracy or attempt to commit any such offence is released on bail,
the court may impose any condition which the court considers necessary, as in
the case of Gurbaksh Singh v/s State of Punjab-1980:-
·
In order to ensure that
such person shall attend in accordance with the conditions of the bond executed
under this chapter.
·
That such person shall
not commit an offence similar to an offence of which he is accused or
suspected.
·
That otherwise in the
interest of Justice.
Can a person get order
to be released on Bail without judicial or Police custody:-
Where any person has reason to believe that he may
be arrested on accusation of having committed a non-bailable offence he may
apply to the High Court or the Court of Session for a direction under sec. 438 that in the event of such
arrest he shall be released on bail.
*It was held in Adri
Dharam dass v/s State of W.B-2005; it was held that it is exercised in case
of an anticipated accusation of non-bailable offence. The object of this
section is that the moment a person is arrested if he has already obtained an
order from High court of Court of Session he shall be released immediately on
bail without being sent to jail.
*It was also held in Vaman Narain Ghiya v/s State of Rajasthan-2009, direction u/s 438 that the applicant shall be
released on bail whenever arrested for whichever offence whatsoever such a
blanket order should not be passed.
It
was further observed that direction under sec.438 is to be issued at pre-arrest
stage, with some conditions:-
i) That the person shall make himself available for
interrogation by a Police officer as and when required. ii) The person shall
not directly or indirectly make any inducement, threat or promise to any person
acquainted with the facts of the case. iii) That the person shall not leave
India without the previous permission of the court. iv) If such person is
thereafter arrested without warrant by Police on such accusation and is
prepared either at the time of arrest or at any time while in the custody of
police station to give bail, he shall be released on bail.
18:-Discuss the
provisions relating to revision to criminal cases. Can High Court exercising
revision powers?
INTRODUCTION:
- Revision is also a judicial remedy which
has been mentioned in sec.397 of the
code. The main object of revision is to
examine the purity, validity, relevancy or regulation or any order, finding or
sentence. This section gives powers to High Court and the Session Judge to call
for and examine the record of any proceeding before any inferior Criminal Court
within its or his local jurisdiction. The followings are the provisions
regarding when the revision shall be
done:-
1.
Calling for records to exercise powers of revision:
- The High court or the Session Judge may call for and examine the record of
any proceeding before any inferior criminal court of his jurisdiction for the
purpose of satisfying as to the correctness, legality or propriety of any
finding, sentence or order recorded or passed, u/s 397 of the code. Case Johar
& Others v/s Mangal Prasad and another-2008, it was held that trial
court is not found to be passed without considering relevant evidence or by
considering irrelevant evidence.
In a case of
Badri Lal v/s State of M.P.-1989:
The powers under this section are undoubtedly wide and the Session Judge can
take up the matter suo motu, it must be seen that the criminal law is not used
as an instrument of private vengeance.
Kuldeep
Singh v/s State of M.P.-1989: It was held that the
order framing charge could not be lightly interfered with in revision.
In
vinod kumar v/s Mohawati-1990: That the court of Session has similar powers as of High Court
in revision and as the High Court is authorized to take additional evidence in
revision.
In Gram Sabha
Lakhanpur v/s Ram Dev-1993:- It
was held that the complainant may or may not have a legal right of being heard
but the rule of prudence and natural justice requires that the aggrieved party
must be afforded an opportunity of hearing.
In a case of Mahavir
singh v/s Emperor-1944: The regularity of any proceedings of such inferior
court where the finding sentence or order is illegal or improper and where the
proceedings are irregular.
Case of T.B.Hariparsad
v/s State-1977, it was held that the powers of revision cannot be used
through interlocutory orders passed in any appeal inquiry, trial or other
proceedings under sec. 397(2).
In a case of Paul
George v/s State-2002, it was held that during the hearing of Revision
argue the person applying for revision should be considered seriously even
though if they are too brief.
2. Order of Inquiry:-
Sec. 398 of the code provides powers of issuing order of inquiry to High Court
or court of Session. Accordingly on examining any record under sec.397 or otherwise the High Court or
Session Judge may direct CJM by himself or by any of Magistrate subordinate to
him to make inquiry of any complaint which has been dismissed under sec.203 or
the case of any person accused of an offence who has been discharged.
3.
Powers of Revision of Court of Session:
- Sec.399 provides powers of revision to court of session in the case of any
proceeding the record of which has been called for by himself. The session
judge may exercise all or any of the powers which may he exercised by the High
Court.
Where an
application for revision is made by or on behalf of any person before the
session judge the decision of the session judge
shall be final and no further proceedings by way of revision a the
instance of such person shall be entertained by the High Court or any other
court. These powers of revision have been provided to the Addl. Session Judge
under sec.400.
4.
Powers of Revision of High Court: - Sec.401
of the code provides powers of revision to High Court that in case of any
proceeding the record of which has been called by itself or which otherwise
comes to its knowledge, the High Court may exercise any of the powers conferred
on a court of appeal by sec. 386, 389, 390 and 391 or on court of session by
sec. 307. Thus during revision High Court shall be able to exercise all powers
which an appellate court can do. In case of Vimal Singh v/s Khuman Singh-1998:
Supreme Court restricted the area of revision generally the order of acquittal
is not interfered. Powers of revision can be exercised in following situations:-i)Where severe illegality has occurred
by trial court.
ii)
Where the order of trial court has failed to provide justice.
iii)
Where the trial court has tried a case which fall beyond its jurisdiction.
iv)
Where the trial court has stopped taking evidence unlawfully.
Here it is pertinent to mention
that any party has applied for revision believing that no appeal lies there but
an appeal lies there then the court shall consider such application for appeal
in the interest of justice u/s 401(2). The order of acquittal cannot be
reversed into an order of conviction in revision as held in case of Singher Singh v/s State of Haryana-2004,
u/s 401(3).
5.
Power of High Court to withdraw or transfer revision cases:-whenever
one or more persons convicted at the same trial makes an application to High
Court for revision. The High Court shall direct that the applications for
revision made to it be transferred to the Session Judge who will deal with the
same as if it were an application made before him, under sec. 402 of this code.
6.Copy
of the order to be send to lower court:- Sec. 405 of the code provides that where any case is revised by
High Court or court of session, it or he shall in the manner provided by sec.388, certify its decision or order
to the court of by which the finding, sentence or order revised was recorded or
passed and the court to which decision or order is so certified shall thereupon
make such orders as are confirmable to the decision so certified and if
necessary record shall be amended in accordance there with.
19.Discuss the
provisions of Judgment. Can court alter its own Judgment?
INTRODUCTION:
- It must contain the judgment comes out
from every trial in any criminal court of its original jurisdiction which is to
be pronounced in open court by the presiding officer immediately after the
termination of the trial. Judgment can be delivered in whole or the operative
part of the judgment and explaining the substance of the judgment in a language
which is understood by the accused. The provisions however are as under:-
1. Contents of Judgement:-
Section 353 of cr.P.C-1973 provides that the
judgement in every trial in any criminal shall be pronounced in the open court
by the presiding officer just after the completion of the trail or at some
subsequent time which notice shall be given to the parties or their advocates. It
can be delivered as a whole of the judgement or can by reading out the of
judgement. If may also be byreading the
operative part of the judgement in such language which easily be understood by
the accused or his advocate.
a)Each and every page of
judgment when it is made should be singed, mentioning the date of delivery of
the judgment in open court.
b) No judgment which is
delivered by any criminal court shall be deemed to be invalid by reason only of
the absence of any party or his advocate on the day or place notified for the
delivery of the judgment.
c) As soon as the
judgment is pronounced a copy of the same immediately be made available for the
perusal of the parties free of cost.
d)If the accused is in
the custody he shall be brought up to hear the judgment pronounced. And if the accused
is not in custody he shall be required by the court to attend to hear the
judgement pronounced.
e)
Where there are more accused than one and one or more of them do not attend the
court on date on which the judgement is pronounced. Presiding officer to avoid
delay in the disposal of the case pronounce the judgement even their absence.
2.Language & contents of Judgement: -
According to sec.354 the judgement should be written in language of court which
contains points for determination, the decision thereon and the reasons for the
decision. If it be a judgement of acquittal, shall state the offence of which
accused is acquittal and direct that he be set at liberty. Sec.354(3) when all the murderers are to be sentenced with death
sentence will become a dead law as held in a case of Muniappan v/s State of Tami Nadu-1981.
3 Order for notifying address of previously
convicted offender: - When any person having been convicted by a court in
India of an offence punishable which relates to criminal intimidation with
imprisonment for a term of three years or upwards is again convicted of any
offence punishable Court may order that his residence and any change of such
residence after release be notified. Such rules may provide for punishment for
the breach thereof, under sec.356.
4.Order to pay
compensation: - When a court imposes a sentence
of fine or a sentence including sentence of death of which fine forms a part
the court may at the time of passing judgement the whole or any part of fine
recovered to be applied. In the payment to any person of compensation for any
loss or injury caused by the offence when compensation is in the opinion of the
court recoverable by such person in a civil court. At the time of awarding
compensation in any civil suit relating to the same matter the court shall take
into account any sum paid or recovered ass compensation on the provisions laid
down in this sec.357, in case of Mangilal v/s State of MP-2004. In
Sube singh v/s State of Haryana-2006, is a fit case to award compensation.
5. Special Reasons to
be recorded in certain cases:- As per provisions laid down in sec.361 of
cr.P.C.,where in any case the court could have
deal with an accused person under sec.360
under the provisions of probation of offenders Act or a young offender under
children act or any other law for the time being in force for the treatment,
training or rehabilitation of young offenders has not done so. It must be
recorded in judgement giving special reasons for having not done so, as held in
a case of State of Himachal Predesh v/s
Lat Singh-1990.
6. Court not to alter
judgement:- Provisions lays in the sec. 362 or by any other law for the
time being in force, no court when it has signed the judgement or final order
disposing of a case shall alter or review the same except to correct clerical
or arithmetical error. In case of Naresh
& others v/s State of U.P.-1981.
7. Copy of the
Judgement to be given to the accused & other persons:-When
the accused is sentenced to imprisonment a copy of the judgement shall
immediately after the pronouncement of the judgement be given to him free of
cost. In case of Ladli Prasad Zutshi v/s
State of Allahbad-1931, it was held that even public has a right to obtain
a copy of the judgement of any criminal court. This has been provided in sec. 363 of Cr.P.C.-1973.
8. Judgement when to be
translated: - As per instructions u/s 364 it is said that the original
judgement shall be filed with the record of the proceedings and where the
original is recorded in a language different from that of the court and the
accused so requires a translation thereof into the language of the court shall
be added to such record.
9. Court of Session to
send copy of finding and sentence to District Magistrate:- The
cases tried by the court of Session or a CJM the court or such Magistrate shall
forward a copy of its or his finding and sentence if any to the District
Magistrate within whose local jurisdiction the trial was held as provided in sec. 365 of Cr.P.C.-1973.
20: Analyse the
provisions of grant of Anticipatory bail. Can anticipatory bail be allowed in
Murder case? If so when?
INTRODUCTION:
- Anticipatory bail has an important place
in the series of Bail. Its main object is to protect the innocent persons from
arrest under sec. 438 of the
criminal procedure code-1973 lays down the provisions regarding grant of
anticipatory bail.
·
What
is Anticipatory Bail: - In-spite of the fact
that the Cr.P.C., has not defined Anticipatory Bail but it means that when a
person has a reason to believe that he may be arrested on accusation of having
committed a non-bailable offence, he may apply to High Court or to the court of
Session that in the event of such arrest he shall be released on bail at that
time it is anticipatory bail. It is also called Apprehension Bail on the basis
of provisions laid down in sec. 438 of
cr.P.C.
·
Object
of the Anticipatory Bail:- The object of Anticipatory
bail is to protect a person from arrest. A person against whom a warrant of
arrest has been issued shall first be arrested kept in custody for few days and
then released on bail, it means where there is no purpose for the arrest he
shall not be arrested.
·
When
anticipatory Bail would be Accepted:-
Section 438(1) says that, “when any person has reason to believe that he may be
arrested on an accusation of having committed a non-bailable offence, he may
apply to the High Court or court of Session for a direction under this
sec.438(1) and court if thinks it fit, can direct that in event of such arrest
he shall be released on bail.” Case of
Gurbaksh Singh v/s State of Punjab-1980, he was not granted anticipatory
bail merely on fear of arrest. In a similar
case of Ashok kumar v/s State of
Rajasthan-1980, that anticipatory bail should not accepted until there is a
definite fear of arrest and such fact has come before the court.
It
is pertinent to mention here that reason to believe does not mean mere fear, i.e.
mere ‘fear’ is not sufficient cause. Grounds on which belief is based must be
capable of being examined.
·
Who
shall accept the Anticipatory Bail:- Sec. 438 (1)
that the following authorities may accept the anticipator bail application:
i.
High Court ii. Court of Session
That any accused of an offence and in
custody be released on bail on acceptance of bail application in the above said
courts u/s 439 of Cr.P.C.
·
Conditions
of Grant Anticipatory Bail:-Court can impose
reasonable conditions for grant of anticipatory bail. Those conditions have
been mentioned in section 438(2). When
the High Court or Court of Session make a direction with some conditions in the
light of the facts of the particular case as it may think fit for bail:-
a.
That the person shall not leave India without previous permission of the court.
b.
That person directly or indirectly make
an inducement threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the court or to any
police Officer.
c.
That the person shall make himself available for interrogation by a police
officer as and when required.
d.
That any such other condition as may be imposed under sec.437 if the bail is
granted under this section.
ANTICIPATORY BAIL IN MURDER CASE: - There is no set principle fixed for
grant of anticipatory bail. It is basically depends upon the facts and
circumstances of every case and the nature of the case. Generally the
anticipatory bail is not to be granted in the matters like murder, unnatural
death, dourly death.
A case if SamunderSingh v/s State of Rajasthan -1987, the court held that the
anticipatory bail cannot be accepted in dowry death cases especially where
father-in-law and mother-in-law caused unnatural death of the daughter-in-law.
Similarly refusing to grant of anticipatory
bail in the matters of atrocities to schedule tribe and schedule caste was
held to be constitutional in a case of State
v/s Ram kishore Batolia-1995.
Anticipatory
bail has also been refused in the matters of FERA, a
case of Dukhishyam Venupanni v/s Arun
Kumar Bajoria-1998.
Even
the facts mentioned above the anticipatory bail can be granted in Murder cases
on the basis of following circumstances:-
i)When
there is no apprehension about the absconding of the accused.
ii)
When there is no apprehension of inducing or enticing witnesses by the accused.
iii)
When there is no apprehension of the accused for moving abroad.
iv)Where
the offence is not the severe or deadly nature.
HEARING OF
PROSECUTION
The prosecution must be provided an opportunity of
hearing while considering the anticipatory bail as held in the case of State of Assam v/s R.K.Krishankumar-1998.
UNIT-V
INTRODUCTION:-Offences
can be classified into two classes on the basis of bail:
Bailable
offences: - Bailable offences are of general
nature and in these offences it is right of accused to be released on bail. Sec.436 of Cr.P.C. pertains to Bailable
offences.
Non-Bailable
offences: - These offences are of severe nature
and bail cannot be claimed as right in them. In such cases bail depends upon
the discretion of the court. Sec. 437 relates to Non-bailable offences, under
section 437 and 439 relates to non-bailment offence.
Grant
of Bail in Non-bailable offences: - Sec. 437 provides that when any person
accused of or suspected of commission of any non bailable offence is arrested
or detained without warrant by an Officer I/C of a Police station or appears or
is brought before a court other than the High Court or court of Session he may
be released on bail.
Thus section 437 empowered a Magistrate to
take bail in non bailable offences. The provision of this makes it clear that
bail in non bailable offences depends upon the discretion of the court.
When
bail shall be Granted:- Sec. 437(1) of the
code lays down the following situations in which bail shall not be granted by the
Magistrate:-
i)
When the Magistrate believes
that there are reasonable grounds of guilty of offence punishable.
ii)
If person has been
previously convicted of an offence punishable on two or more times.
CONDIIONS FOR BAIL
1 Sec. 437(3) of the code provides that
where a person accused or suspected of the commission of an offence
punishable which may extend to seven year or more or of an offence defined in IPC and any such offence the
accused is released on bail the court however may impose any condition which
the court considers necessary:-
1. That
such person shall attend in accordance with conditions mentioned in the bond
executed by him.
2. Such
person shall not commit an offence of the similar to an offence of which he is
accused or is suspected.
ARREST OF A PERSON
Introduction:
- Generally, a person is arrested by the
order of the magistrate or by a warrant. A police officer cannot arrest a
person arbitrarily or without the order of magistrate or without warrant. But
this rule has few exceptions to it which means that under certain circumstances
a person can be arrested without the order of the magistrate or without
warrant.
Arrest
without warrant:- Sec. 41 of the Criminal Procedure
Code 1973 provides that a police officer can arrest a person without the orders
or warrant of the magistrate in following situations:
(8)
When any person has
been concerned in any cognizable offence or against whom a reasonable complaint
has been made or credible information has been received or a reasonable
suspicion exists. Of his having been so concerned.
(9)
When any person has in
his possession without lawful excuse any implement of house-breaking.
(10)
When any person in
whose possession anything is found which may reasonably be suspected to be
stolen property and who may reasonably be suspected of having committed an
offence with reference to such things.
(11)
When any person
obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape from lawful custody.
(12)
When any person is
reasonably suspected of being a deserter from any of the armed forces of the
union.
(13)
When any person being a
released convict, commits a breach of any rule made under sub-section (5) of
section 356;
(14) When
for any persons arrest any requisition, whether written or oral, has been
received from another police officer, provided that the requisition specifics
the person to be arrested.
Thus, in this way a police officer under sec 41(1)
can arrest any person without the order or warrant of a magistrate.
CHARGE
INTRODUCTION:
- The object of the rule embodied in the sec. 218 of Cr. P. C., is to ensure a fair trial and to see that the
accused is not bewildered or perplex to confuse by having been asked to defend
several unconnected charges or distinct offences lumped together in one charge
or in separate charges. We will read the rules relating to joinder of charges
described in different part of this section. There is no exception to the rule
that there should be separate charge for each offence. The detail study of this section is as
under:-
DEFINITION:
- For every distinct offence of which any person is accused there shall be a
separate charge and every charge shall be tried separately. Where the accused person by an application in
writing, so desires and the Magistrate is of opinion that such person is not
likely to be prejudiced thereby, Magistrate may try together all or any number of the charges famed against such
person.
1. Effect of Contravention
of Sec.218:- The effect of the contravention of
the provisions of this sec. has been considered by the Supreme Court in
following number of cases:- Sushil Kumar
v/s Joy Shankar-1971: It was held that charges under 408 and 477A of IPC
could be tried together. In this case several persons accused on several items
of embezzlement were tried jointly. There was no failure of justice in
consequence of the joinder of charges had occurred. In V.N. KAMDAR v/s DELHI MUNICIPALITY-1973: It was held, “that the
provisions of sec. 218 to 224 would
indicate that separate charge and separate trial for such distinct offence is
the normal rule and joint trial is an exception when the accused have committed
separate offence.”
2.
Failure
to Explain injuries on the accused:- When
the prosecution fails to explain satisfactorily the injuries sustained by the
accused there are number of judicial pronouncements on this point. Case State of Gujrat v/s Bai Fatima-1975: It
was held that the accused had inflicted the injuries on the members of the
prosecution party in exercise of the right of self-defence.
3. Three offences of the
same kind within year may be charged together:-
under section 219 of Cr. P. C. when
a person is accused of more offences than one of the same kind committed within
the space of twelve months from the first to the last of such offences, he may
be charged with and tried at one trial for any number of them not exceeding
three. Provisions of section are only enabling provisions, it applies where
offences are of the same kind but it does not apply where offences are not of
the same kind such as criminal breach of trust and falsification of accounts. Rahmat v/s State of U. P.-1980.
Trial
for than one offence:- If in one series of
Acts so connected together as to form the same transaction more offences than
one are committed by the same person, he may be charged with and tried at one
trial for every such
APPELS & ITS
LIMITATION PERIOD
INTRODUCTION:-Appeal
is an important remedy for person’s dissatisfied from judgment finding and
orders of the trial court. Under section
372 of the Cr.P.C., it is provided that relation to appeal it is necessary
to know that no appeal shall lie from any judgment or order of a criminal court
except as provided by this code or any other law for time being in force, case Garikapati v/s Subhash coudhari-1957.
However the provisions regarding making an appeal are the following:-
1.
Appeal from orders requiring security or refusal to accept or rejecting surety
for keeping peace or good behavior: - Any
person who has been ordered to give security for keeping the peace or for good
behavior or who is aggrieved by any order refusing to accept or rejecting a
surety on the basis of sec.373.
2.
Appeals from Convictions: - According to section 374 of code that any person
convicted on a trial by a H/C in its extraordinary original criminal
jurisdiction may appeal to Supreme Court similar any person convicted by
session judge or on a trial held by any other court which sentence or imprisonment
is more than 7 years may appeal to
High court. Case Panchi v/s State of
U.P.-1998, In C.Gopinathan v/s State
of Kerala-1991
3. Appeal by State against sentence: -
Under sec.377, the state Government may in any case of conviction on a trial
held by any court other than a H/C direct the Public Prosecutor to present an
appeal against the sentence on the ground of its inadequacy to Court of Session
if the sentence is passed by the Magistrate or to the H/C if the sentence is
passed by any other Court. When an appeal is filed against the sentence on the
ground of its inadequacy court shall not enhance the sentence except after
giving to the accused a reasonable opportunity of sowing cause against such
enhancement. Case of Nadir Khan v/s
State-1976.
4.
Appeal in case of Acquittal :- In an appeal
against acquittal under sec.378 the
H/C has full power to review at large the evidence on which the acquittal is
based and to reach the conclusion that the order of acquittal should be
reversed as held in case of Mohandas v/s
State of MP-1973, but exercising his power the H/C should give proper
weight and consideration to the view of the trial judge as to the credibility
of witnesses, presumption of innocence in favour of the accused. And a right of
the accused to the benefit of any doubt. It was also held in State of U.P. v/s Gambir Singh-2005
case of appeal against acquittal if on same evidence two views are possible,
the one in favour of accused must be preferred.
During
the hearing of appeal from the order of
acquittal it should be taken into consideration that there is no miscarriage of
justice, case Allahrakha K. Mansuri v/s
State of Gujrat-2002. The order of acquittal cannot be dismissed merely on
the ground that a second approach could have been applied in the case and it
means that the accused could have been convicted on considering another view a
case of Chandra Singh v/s State of
Gujrat-2002.
COMPLAINT CASE
DEFINITION:
- Sec.
200 says, that the preliminary procedure which a Magistrate shall follow on
receiving a complaint. It is obligatory
to examine the complainant and the witnesses and a summary dismissal without
them is not legal. The substance of such examination shall be reduced to
writing and shall be signed by the complainant and the witnesses and also by
the Magistrate. If a public servant acting or purporting to act in the
discharge of his official duties or a court has made the complaint or the
magistrate makes over the case for inquiry or trial to another Magistrate under
sec.192.
1. Procedure by Magistrate
not competent to take cognizance of the case: If
a complaint made to a Magistrate who is not competent to take cognizance of the
offence he shall return it for presentation to the proper court with an
endorsement to that effect or where the complaint is not in writing then he
will direct the complainant to the proper court as provided in sec.201 of Cr.P.C.Case of Rajender Singh v/s State of Bihar, 1989.
2.
To
Postponement of issue of Process:- Sec.202 of the code provided that where
it appears to the magistrate that the offence complained is triable exclusively
by the court of Sessions or where the complaint has not been made by a court
unless the complainant and the witnesses present have been examined on oath
under sec.200. If an investigation is
made by a person not being a Police officer he shall have for that
investigation all the powers conferred by this code on an officer in charge of
a police station except the power o arrest without warrant. Sec. has provided
to ascertain the following: i) to
ascertain the facts constituting the offence.
ii)
To prevent abuse of process
resulting in wastage of time of the court and harassment to the accused.
iii)
To help the magistrate to judge if there is sufficient ground for calling the
investigation and for proceeding with the case. Case: Balraj Khanna v/s Motiram-1971.
3. Dismissal of Complaint:
- A Magistrate may dismiss a complaint if
after considering the statement on oath of the complainant and of the witnesses
and the result of inquiry or investigation under sec.202. But where there is sufficient ground for preceding the
Magistrate cannot dismiss the complaint under sec.203 of the code. If he finds
that no offence has been committed, if he distrusts the statement or if he
distrusts the complainant may direct for further inquiry. In such cases he may
refuse to issue process. Case Sulab Chandra v/s Abdula-1926. These are the
provisions under sec.203 of Cr.P.C.
ANTICIPATORY BAIL
INTRODUCTION:
- Anticipatory bail has an important place
in the series of Bail. Its main object is to protect the innocent persons from
arrest under sec. 438 of the
criminal procedure code-1973 lays down the provisions regarding grant of
anticipatory bail.
What
is Anticipatory Bail: - In-spite of the fact
that the Cr.P.C., has not defined Anticipatory Bail but it means that when a
person has a reason to believe that he may be arrested on accusation of having
committed a non-bailable offence, he may apply to High Court or to the court of
Session that in the event of such arrest he shall be released on bail at that
time it is anticipatory bail. It is also called Apprehension Bail on the basis
of provisions laid down in sec. 438 of
cr.P.C.
Object
of the Anticipatory Bail:- The object of Anticipatory
bail is to protect a person from arrest. A person against whom a warrant of
arrest has been issued shall first be arrested kept in custody for few days and
then released on bail, it means where there is no purpose for the arrest he
shall not be arrested.
When
anticipatory Bail would be Accepted:-
Section 438(1) says that, “when any person has reason to believe that he may be
arrested on an accusation of having committed a non-bailable offence, he may
apply to the High Court or court of Session for a direction under this
sec.438(1) and court if thinks it fit, can direct that in event of such arrest
he shall be released on bail.” Case of
Gurbaksh Singh v/s State of Punjab-1980, he was not granted anticipatory
bail merely on fear of arrest. In a similar
case of Ashok kumar v/s State of
Rajasthan-1980, that anticipatory bail should not accepted until there is a
definite fear of arrest and such fact has come before the court. It is pertinent to mention here that reason
to believe does not mean mere fear, i.e. mere ‘fear’ is not sufficient
cause. Grounds on which belief is based must be capable of being examined.
1.
Who
shall accept the Anticipatory Bail
a. Sec. 438 (1) that
the following authorities may accept the anticipatory bail application: High Court, Court of Session.
That any accused of an offence and in custody be
released on bail on acceptance of bail application in the above said courts u/s
439 of Cr.P.C.
Conditions
of Grant Anticipatory Bail:-Court can impose
reasonable conditions for grant of anticipatory bail. Those conditions have
been mentioned in section 438(2). When
the High Court or Court of Session make a direction with some conditions in the
light of the facts of the particular case as it may think fit for bail:-
a.That
the person shall not leave India without previous permission of the court. b)That
person directly or indirectly make an inducement threat or promise to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the court or to any police Officer. c. That the person shall make himself
available for interrogation by a police officer as and when required.
POWERS OF CRIMINAL COURTS
INTRODUCTION:
- Chapter III of the code deals with
Powers of Courts to take cognizance of the offences. For this purpose the
offences are divided into two groups, i) Offences under IPC and ii) offences
under any other law. The courts by which these offences are triable are
specified below:-
Courts
by which offences are triable: - As per
provisions laid down in section 26
the courts by which offences are triable:-
3.
a) Any offence under
IPC-45 may be tried by High Court. B) Session Court. c) Any other court by
which such offence is shown in the first schedule to be triable.
4. Any
offence under any other law, when any Court is mentioned in this behalf in such
law, is tried by: i) High Court. ii) Any other court by which such offence is
shown in the first schedule.
Section
27: Jurisdiction in the case of Juveniles:
Any offence not punishable with death or imprisonment for life who at the date
when he appears or is brought before court under the age of 16 years may be
tried by the court of CJM or any other court which specially empowered.
Sentences
which High Courts and Session Judges may pass:
- As per provision laid down in Sect. 28
of the code that:- (i) High Court may pass any sentence authorized by law. (ii)
Session Judge or ADJ may pass any sentence authorized by law but any sentence
of death passed by such judges shall be subject to confirmation by the High
Court.
Sentences
which Magistrates may pass:- Sec.29 of Code, The court of
CJM may pass any sentence authorized by law except sentence of death or of
imprisonment for life or imprisonment for a term exceeding 7 years.
The court of Magistrate of First Class may pass a sentence of
imprisonment for a term not exceeding three years or of fine not exceeding
Rs.10, 000.
The court of 2nd Class Magistrate
may pass an imprisonment for a term not exceeding One year or of fine not
exceeding Rs.5000/- or of both.
Sentence
of Imprisonment in default of fine:-The court of
Magistrate may award such term of imprisonment in default of payment of fine as
authorized by law under sec.30 of
the code, not exceeding one fourth of the term of imprisonment and also not
excess of the powers.
SUMMARY TRIALS
On the basis of provisions under section 260 of the code, power to try
summarily: - notwithstanding anything contained in this code, Any CJM, Any metropolitan Magistrate or any
Magistrate of the first class specially empowered in this behalf by the High
Court, may if thinks fit try a summary way in all or any of the following
offences. Summary trial can also be done by the magistrate of second class u/s 261 of the code; the High Court may
confer on any magistrate invested with the powers of a Magistrate of the second
class. If any from the above Magistrate’s thinks fit, may try in a summary way
for all or any of the following offences:-
1. Offences
not punishable with death imprisonment for life imprisonment for a term
exceeding two years.
2. Theft
under sec. 379, 380 and 381 of IPC where the value of the property stolen does
not exceed two thousand rupees.
3. Receiving
of retaining of stolen property under sec.411, IPC, where the value of the
property does not exceed two thousand rupees.
4. Assisting
in the concealment or disposal of stolen property under sec. 414 of IPC, where
the value of such property does not exceed two thousand rupees. 5. Offences
under section 454 and 455 of IPC.
6. Insult with intent to provoke a breach of the
peace under sec. 504 and with imprisonment for term which may extend to two
years or with fine or with both, under sect. 506 of IPC. 7. Abetment of any of
the foregoing offences. 8. An attempt to commit any of the foregoing offences
when such attempt is an offence.
The mode of trial is sought to be altered under this
sub-section the trial must from its inception to be conducted in the regular
manner, case of State v/s D.N.Patel-1971. The Magistrate under this section as a
discretion o try the offences specified in this section in a summarily way.
Procedure
of summary trials: - Under sec. 262 of
the code is related to the procedure for summary trial, shall be the same as in
summons case except in so far as it is modified by the provisions. In the case
of summary trial the limit of term of sentence of imprisonment is three months.
However if the court is considers it necessary that a longer sentence is necessary
in the interest of justice in any case the trial should be held as in a warrant
case or as a summon case according to the nature of the offence.
PLEA BARGAINING
Under section 265A of the
code, described that the application of the provisions of this section in
respect of accused against whom the report has been forwarded by the officer in
charge of Police station under sec.173, the offence appears to have been
committed by him and the Magistrate has taken cognizance of an offence on
complaint other than an offence for which the punishment of death or life
imprisonment or imprisonment for a term exceeding seven years and examining
complainant and witnesses issued the process as per law.
Application
for plea bargaining: Sec.265B of the code lays that a person
accused of an offence may file application for plea bargaining in the court in
which the offence is pending for trial. The application accompanied by an
affidavit sworn by the accused stating therein that he has voluntarily
preferred after understanding the nature and extent of punishment provided
under the law for the offence the plea bargaining in his case and that he has
not previously been convicted by a court in a case which he had been charged with
the same offence.
FINALITY
OF THE JUDGEMENT:- The judgment delivered by the
court under section 265G shall be
final and no appeal except the special leave petition under article 136 and writ petition under article 226 and 227 of the constitution
shall lie in any court against such judgment.
POWER
OF THE COURT IN PLE BARGAINING:- A court shall have for the purposes of
discharging its functions under the provisions in section 265H, all he powers vested in respect of bail, trial of offences
and other matters relating to the disposal of a case in such court on the basis
of above provisions.
🎯Get - Law Notes, Bare Acts, Syllabus, Law Vacancies and Important Ruling. 🎯 From 🎓 *Law Student India* 🍁App for your preparations 🍁 Click link to download 👇
ReplyDeletehttps://goo.gl/FuoNby
🍁 Like & Share to others...
Super notes ThanQ
ReplyDeleteSuperb notes
ReplyDeletePlease share chapter-6 of process to compel appearance.
ReplyDeleteSuperb note thank you
ReplyDeleteCan I get notes in PDF form ??
ReplyDeleteI'm so benefited with this note,short and include everything
ReplyDeleteWhy hire Lawyers for Business Acquisition?
ReplyDeleteThank you so much
ReplyDeleteno person can say that he is responsible only for what he did but his responsibility to will be those consequences that are direct results of the criminal intention object of the group explain with the suitable example and case laws
ReplyDeleteNice blog! This is useful for those who is looking for the Family Lawyer in Gold Coast. Keep Sharing such information blog.
ReplyDeleteThanks for sharing such a great information Defence Solicitor Sheffield
ReplyDelete