criminal procedure law, Schemes and Mind Maps of Criminal procedure

Download criminal procedure law and more Schemes and Mind Maps Criminal procedure in PDF only on Docsity! CODE OF CRIMINAL PROCEDURE About the author Krishna Murari Yadav an Assistant Professor at LAW CENTRE-1, Faculty of Law, University of Delhi is very passionate and disciplined. He has inspired many students and is respected by all. He has completed his Bachelor of Laws from Faculty of Law, Banaras Hindu University and Master of Laws from Faculty of Law, University of Delhi. He has written many Articles on Topics related to Law on various platforms and has attended many International and National Seminars all across India. He has also been an Assistant Professor at Puducherry and Gangapur, Varanasi. His Experience of living in University Hostels in Delhi and Varanasi and Travelling to Different Cities across India helps him understand students from different cultures better. He has also successfully cracked exams like NET and JRF. He condemns any kind of discrimination among Students and is always available to help them. He believes in hard work and according to him it is the only key to success. i Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Krishna’s Criminal Procedure iv Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. DEDICATED TO MY BROTHER AND EARTHLY GOD Mr. Kailash Nath Yadav v Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. FOREWORD TO THE FIRST EDITION I am very glad that Mr. Krishna Murari Yadav has brought out a really useful book on Criminal Procedure Law. It is a branch of law which is being increasingly developed to control abuse or misuse of power and to do justice. The object of the code is to ensure a full and fair trial in the accordance with the Principles of Natural Justice. The Rule of Law, which runs like a golden spirit of the our Constitution, requires that every person of the State must act in the interest of other, because we are living in a modern welfare State and public welfare should be the ultimate goal of law.. To deal with the crime, we need law courts and impartial judge. We also need a code prescribing the lucid procedure to be followed in the law courts. Every procedure (civil or criminal) which governs the court proceedings before it arrives at that conclusion has to be such as is fair, inspires confidence and at same time is not such as provides aisle for the guilty. Law always developed like an infant and depends upon proper interpretation of our Hon’ble Judges. All procedural laws should be designed in a way to do justice with accused & and at same time with victims and society. Fair trial is triangle. Witnesses are eyes and ears of justice delivery system. Witnesses must be protected. I would like to mention an example of fair procedure, the Supreme Court in S. Nambi Narayan v. Siby Mathews (September 14, 2018) & Bilkis Yakub Rasool v. State of Gujarat and Others (April 23, 2019) directed compensation in the sum of Rs. fifty lakhs to pay victims in each case. It seems very difficult to do fair justice without a lucid procedural law in a country like, India. Mr. Murari’s book contains a lucid framework of Criminal Procedure law in easy words, which unquestionably reflects from his hard work in this book. The way of introducing recent judgements and their ratio really impressed my heart. I have no doubt that this book will be useful for not only to law students but also professionals of law. The value of book lay in the fact that it was not merely a compendium of case law and section, but that the views expressed by the author on the various aspects of criminal procedure and their development in a lucid way. He used to explain section in very organized manner by dividing them into various parts and his way of forming exception is really brilliant and easy to understand. Once again, I congratulate Mr. Krishna Murari Yadav on bringing out a refreshing book on criminal procedure law. Place - Varanasi Date - May 17, 2020. Name & Designation Prof. (Dr.) Chaturbhuj Nath Tewari (Former Head & Dean, Faculty of Law, Mahatma Gandhi Kashi Vidyapith, Varanasi) vi Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Preface to the First Edition This book is a sincere attempt to place before the aspirants of various judicial examination and Law students who are pursuing their law degree, a comprehensive volume which will enable them to acquire a detailed understanding of the various aspects of the Criminal Procedure. I thank my students; it is their interest and appreciation which inspires me to write the quality book for law students. An effort has been made to make the contents of the study material relevant, to the point, up-to-date and authentic. I have also used tables and diagrams to make the presentation clearer and easier. I used to explain section in very lucid manner by breaking section into parts which definitely going to help students. The chapter-wise question is designed (with explanation) in such a way to help the students to test their understanding of the chapter and major area of different state judicial examination for both preliminary and mains prospective. The questions are framed in accordance with the trends in various state judicial service examinations. Every step in this book is a little effort towards easy understanding of Law and its application in day to day life. After the commencement of Jammu and Kashmir Reorganisation Act, 2019 Code of Criminal Procedure, 1973 is applicable to the whole of India. I have tried to write latest judgments. For example, I have discussed duration or life of mandatory bail with the help of Sushila Aggarwal and others v. State (NCT of Delhi) and another (January 29, 2020). I may state that I have made all efforts to make the study scientific, systematic, useful and organized by help of recent judgements of Hon’ble Supreme Court by referring important ratio. I hope and trust that student community and men in public will find it useful, reliable and trustworthy. I welcome constructive comments and suggestions from our esteemed readers. New Delhi May 17, 2020 KRISHNA MURARI YADAV FACULTY OF LAW UNIVERSITY OF DELHI, DELHI ix Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. TABLE OF CASES A A.C. Aggarwal v. Ram Kali…………………………………………………………………… 160 Abdul Karim v. State of Karnataka………………………………………………………….. 245 Abdul Wahab K. v. State of Kerala…………………………………………………………… 245, 258 Abhinandan Jha & Ors v. Dinesh Mishra…………………………………………………… 55 Adri Dharan Das v. State of West Bengal…………………………………………………… 148 Aghnoo Nagesia v. State of Bihar……………………………………………………………. 34, 43378, 404 Ajay Kumar Parmar v. State of Rajasthan………………………………………………….. 202, 207 Anuradha Bhasin & Ghulam Nabi Azad v. Union of India And Ors…………………….. 397 Arnesh Kumar v. State of Bihar……………………………………………………………….. 52, 60, 61, 62, 69, 79, 81, 366 Atma Ram and Ors. v. State of Rajasthan…………………………………………………… 263, 264 B B.S. Joshi v. State of Haryana………………………………………………………………… 342, 344 Bachan Singh v. State of Punjab……………………………………………………………… 219, 319, 320 Bairam Muralidhar v. State of A.P…………………………………………………………… 245, 256, 258 Balchand Jain vs. State of Madhya Pradesh….…………………………………………….. 123 Balvant Singh & Anr. v. State of Bihar………………………………………………………. 245 249 Bilkis Yakub Rasool v. State of Gujarat and Others……………………………………….. 278, 286, 313 Birichh Bhuian and Others v. State of Bihar………………………………………………... 174 C Central Public Information Office, SCI v. Subhash Chandra Agarwal………………….. 397, 400 Common Cause v. Union of India…………………………………………………………….. 296, 301, 318 Connelly v. Director of Public Prosecution…………………………………………………. 266, 271, 272 D Dagdu & Ors. v. State of Maharashtra………………………………………………………. 321 Dalbir Singh v. State of U.P…………………………………………………………………… 201 Delhi Judicial Service Association Tis Hazari Court, Delhi v. State of Gujarat and Ors………………………………………………………………………………………………… 72 Devarpalli Lakshminaryana Reddy & Ors. v. V. Narayana Reddy & Ors……………… 157, 166 Dharampal v. Ramshri…………………………………………………………………………. 345 Dinesh v. State of Rajasthan…………………………………………………………………... 396 Dr. Lal Chand Prasad v. UOI…………………………………………………………………. 404 Dr. Subhash Kashinath Mahajan v. State of Maharashtra and Anr……………………... 404 E Emperor vs. H.L. Hutchinson…………………………………………………………………. 108, 129, 372, 398 G x Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Gian Singh v. State of Punjab…………………………………………………………………. 344 Gorle S. Naidu v. State of A.P. and Ors,…………………………………………………….. 20 Gurcharan Singh and Ors. v. State (Delhi Admn.)………………………………………… 10, 111,131, 375, 399 Gurubaksh Singh Sibbia v. State of Punjab…………………………………………………. 143, 144 H Hardeep Singh v. State of Madhya Pradesh………………………………………………… 309, 312 Hardeep Singh v. State of Punjab & Ors……………………………………………………. 296, 298 HDFC Bank Limited v. J.J. Mannan…………………………………………………………. 148 Hussain @ Julfikar Ali v. The State (Govt. Of Nct) Delhi…………………………………. 287, 289, 290, 294 Hussainara Khatoon & Others v. Home Secy., State of Bihar……………………………. 287 I Inder Mohan Goswami & Another v. State of Uttaranchal & Others…………………… 240 J Joginder Kumar v. State of Uttar Pradesh…………………………………………………... 62 Joseph Shine v. Union of India………………………………………………………………... 189 K K.L. Verma v. State & Anr…………………………………………………………………….. 148 K.M. Nanawati v. State of Maharashtra…………………………………………………….. 6 K.P. Raghavan & Anr. v. M.H. Abbas and Anr…………………………………………….. 215, 216 K.S.Puttaswamy v. UOI……………………………............................................................ 319 Kaiser Otmar v. State of Tamil Nadu………………………………………………………… 90, 91 Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav………………………………. 110,112, 401, 402 Kasambhai Ardul Rehmanbhai Shaikh v. State of Gujarat & Anr……………………….. 327 Khatri vs. State of Bihar (Blinded prisoners Case) (Gangajal Case)…………………… 291 L Labhuji Amratji Thakor & Ors. v. The State Of Gujarat & Anr………………………….. 296, 304 Lalita Kumari v. Govt. of U.P…………………………………………………………………. 17, 20, 24, 25, 27, 366, 373, 375, 399 Lillu v. State of Haryana……………………………………………………………………….. 393 Lqbal Ismail Sodawala v. The State of Maharashtra and Ors……………………………. 2, 3 M M.H. Hoskot vs. State of Maharashtra……………………………………………………….. 291 M/S V.L.S. Finance Ltd. v. S.P. Gupta and Anr…………………………………………….. 245, 257, 258 Madhu Bala v. Suresh Kumar…………………………………………………………………. 17, 38, 39, 40, 367, 403 Madhu Limaye v. State of Maharashtra……………………………………………………… 345, 349, 394 Mahender Chawla and Ors. v. Union of India and Ors…………………………………… 263, 264 Maneka Gandhi v. Union of India……………………………………………………………. 26 xi Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Maniyeri Madhavan vs. State of Kerala…………………………………………………….. 172 Manohar Lal Sharma v. Narendra Damodardas Modi & Ors……………………………. 400 Manoj Sharma Manu v. State of NCT of Delhi & Anr……………………………………... 21 Mehmood Nayyar Azam v. State of Chhattisgarh,………………………………………….. 260, 309, 312 Mohammed Hussain v. State (Govt. of NCT Delhi)………………………………………… 260 Mohan Singh v. State of Bihar………………………………………………………………… 175, 201 Mohd. Ajmal Amir Kasab v. State of Maharashtra………………………………………… 260, 287, 294 Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi……………………….. 287, 289,290, 294 Moti Ram & Ors. v. State of M.P……………………………………………………………... 11, 96, 108, 113, 114, 115, 129, 372, 375, 389 Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani Jethmalani…………………………... 283, 403 Mrs. Neelam Katara v. Union of India………………………………………………………. 5, 260, 314 Muniappan v. State of Tamil Nadu…………………………………………………………… 219, 319, 314 Murlidhar Meghraj Loya Etc v. State of Maharashtra Etc……………………………….. 327 Musa Pradhan and Another v. State of Orissa……………………………………………… 202 N N.G. Dastane v. Shrikant S. Shivde…………………………………………………………… 316 Nandini Satpathy v. Dani (P.L.) and Anr……………………………………………………. 41, 367, 379, 403, 404 Naresh Kumar Yadav v. Ravindra Kumar…………………………………………………… 148 Narinder Singh & Ors. v. State of Punjab & Anr…………………………………………... 347, 351 National Textile Workers’ Union v. P.R. Ramakrishnan………………………………….. 32 Naveen Chandra v. State of Uttaranchal……………………………………………………. 396 Navtej Singh Johar v. UOI……………………………………………………………………. 392 Naz Foundation v. Union of India……………………………………………………………. 393 Nikhil Merchant v. CBI………………………………………………………………………… 343, 344 Niranjan Singh v. Prabhakar Raja Ram…………………………………………………….. 90, 93 Nirmal Jeet Kaur v. State of M.P. & Anr……………………………………………………. 148 P P.V. Narsimha Rao v. State……………………………………………………………………. 148 Pancham Yadav v. State of U.P………………………………………………………………. 34, 379, 404 Periyasami and Ors. v. S. Nallasamy………………………………………………………… 296, 304 Prahlad Singh Bhati v. NCT…………………………………………………………………… 110, 112, 373 Pramath Nath Talukdar v. Saroj Ranjan Sarkar……………………………………………. 168 Prem Shankar Shukla v. Delhi Administration……………………………………………… 83 Priyanka Srivastva v. State of U.P……………………………………………………………. 395 Puran, Shekhar and Anr. v. Rambilas & Anr.,……………………………………………… 119 R R. Rathinam v. State By DSP, District Crime Branch……………………………………… 119 R.R. Chari v. The State of Uttar Pradesh……………………………………………………. 157, 160 Rajesh Kumar v. State through Government of NCT of Delhi……………………………. 219, 319, 321 1 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Unit -I Introduction 41st Report (Sep. 1969) of Law Commission of India became basis of introduction of Code of Criminal Procedure, Bill. The Bill was introduced in the Rajya Sabha on 10th Dec., 1970. It was referred to the Select Committee. It received the assent of President on 25th January, 1974. The Code of Criminal Procedure, 1973 came into force on April 1, 1974.1 The Criminal Law (Amendment) Act, 2018 came into force on April 21, 2018.2 Code of Criminal Procedure, 1898 was substituted by Code of Criminal Procedure, 1973. Total Sections, Chapters and Schedules in Cr.P.C.1973 are Sections 484, Chapter XXXVII and two Schedules.3 Unique character of Cr.P.C.1973 is separation of Executive from Judiciary.4 This is in consonance of Article 50 of Constitution of India.5 After the commencement of Jammu and Kashmir Reorganisation Act, 2019 Code of Criminal Procedure, 1973 is applicable to the whole of India6. Jammu and Kashmir Reorganisation Act, 2019 came into force on 31 Oct. 2019.7 Only limited part of Cr.P.C is applicable to State of Nagaland and to the Tribal Areas (Tribal Areas means those areas which are mentioned in Sixth Schedule of the Constitution of India). Only Chapter VIII (Security for keeping the peace and for good behaviour, Sections 106 - 124) Chapter X (Maintenance of Public Order and Tranquility, Sections 129 - 148) Chapter XI (Preventive action of the Police, Sections 149-153) which are related to maintenance of peace and security are applicable to State of Nagaland and to the tribal areas. State Government of Nagaland and Tribal Areas may apply whole Cr.P.C. in these areas. Question (2020) – Consider the following statement (i) Cr.P.C. is applicable to whole of India except State of Jammu & Kashmir (ii) Chapters VIII, X and XI is not applicable to State of Nagaland and Tribal Areas. (iii) Cr.P.C. came into force on January 25, 1974. (iv) Chapter II is related to ‘Constitution of Criminal Courts and Offices’. Which are the abovementioned statements are correct? 1 M.P. Civil Judge, 1986, M.P.APO, 1993 and Uttarakhand Civil Judge, 2002. 2 UP (J) 2018. 3 MP Civil Judge, 1986. 4UPAPO 2002, 2007 and Raj. APO, 2011. 5 Article 50 .Separation of executive from judiciary. 6 Before the commencement of Jammu and Kashmir Reorganisation Act, 2019 Cr.P.C. was not applicable to the Jammu and Kashmir. Code of Criminal Procedure, 1973 is applicable to the whole of India except the State of Jammu and Kashmir. But now Cr.P.C. is also applicable to Union Territory of J&K. The Fifth Schedule, Table 1S.No. 9 of Jammu and Kashmir Reorganisation Act, 2019 provides – ‘In sub-section 2 of section 1, word “except the State of Jammu and Kashmir” shall be omitted. 7 Gazette of India is available at: http://egazette.nic.in/WriteReadData/2019/210412.pdf (Visited on January 6, 2020). 31st Oct. is birth anniversary Hon’ble Sardar Ballabhbhai Patel. 2 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. (a) (i), (ii) (iii) and (iv) (b) Only (ii) (iii) and (iv) (c) Only (ii) (iii) (d) Only (iv). Answer - (d) Only (iv). Chapter II is related to ‘Constitution of Criminal Courts and Offices’( Sections 6-25A). After commencement of Jammu and Kashmir Reorganisation Act, 2019 Cr.P.C. is also applicable to Jammu and Kashmir. Substantive laws v. Procedural laws8 Laws are mainly classified into two categories namely: (1) Substantive laws and (2) Procedural laws. Substantive law determines the rights and liabilities of the parties, while procedural law lays down the practice and procedure for enforcement of those rights and liabilities.9 IPC, Dowry Prohibition Act, 1961 Prevention of Corruption Act, Indian Contract Act, and Transfer of Property Act etc. are example of substantive law. CPC, Cr.P.C, Indian Evidence Act and Limitation Act are few examples of procedural law. Code of Criminal Procedure is a procedural law. It may be noted that the Code is not wholly procedural law. There are certain provisions of the Code which confer substantive rights e.g. section 125 confers substantive right of maintenance on wives, children and parents.10 It also deals prevention of offences (sections 106- 124, 129-132, and 144 – 153) and public nuisance. These are also part of substantive law. Importance of Criminal Procedure Summary – (1) Law Commission of India, 37th Report, (1967) (2) Lqbal Ismail Sodawala v. The State of Maharashtra and Ors (1974) - Justice H R Khanna (3) Joginder Kumar vs. State of U.P. (1994) - Chief Justice M.N. Venkatachalliah (4) Malimath Committee Report (2003) Code of Criminal Procedure is part of procedural law. Without it realization of rights and imposing of duties are not possible. This is based on principle of natural justice. According to Article 21 of the constitution of India, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Cr.P.C. deals procedure by which life and 8 This question is basic question for interview in law field. 9 CK Thakkar, Takwani Criminal Procedure 1(LexisNexis, Gurgaon 4th edn., 2015). 10 CK Thakkar, Takwani Criminal Procedure 2(LexisNexis, Gurgaon 4th edn., 2015). 3 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. liberty of person can be deprived after following procedure laid down in Cr.P.C. It creates confidence among all persons including poor. It also provides speedy law related to maintenance. It also lays down procedure for fair trial. Several rights and remedies are also available in favour of accused as well as victim. The Code of Criminal Procedure provides the machinery for the detection of crime, apprehension of suspected criminals, collection of evidence, determination of the guilt or innocence of the suspected person, and the imposition of suitable punishment on the guilty. It is further aimed at trying to provide a balance between the needs of the investigating and adjudicatory bodies to detect crime, maintain law and order and the rights of the accused. With the increasing complaints regarding abuse of powers of arrest by the police, custodial torture and death, denial of bail, etc., the course particularly focuses on investigation, arrest, bail and principles of fair trial. The provision relating to plea bargaining has been included to critically examine its operation under the criminal law which may be oppressive unless all the stakeholders are equally positioned.11 (1) Law Commission of India, 37th Report (1967)12 The importance of Code of Criminal Procedure is based on two considerations:- First – expense, delay or uncertainty in applying the best laws for the prevention and punishment of offences would render those laws useless or oppressive: Secondly – law relating to criminal procedure is more constantly used and affects a greater number of persons than any other law. (2) Lqbal Ismail Sodawala v. The State of Maharashtra and Ors13 (13 August, 1974) In the case of Lqbal Ismail Sodawala v. The State of Maharashtra And Ors Hon’ble Justice H R Khanna observed, “The Code of Criminal Procedure is essentially a Code of procedure and like all procedural laws, is designed to further the ends of justice. At the same time it has to be borne in mind that it is procedure that spells much of the difference between rule of law and rule by whim and caprice. The object of the Code is to ensure for the accused a full and fair trial, in accordance with the principles of natural justice.” Main purpose of procedural law is to establish rule of law. (3) Joginder Kumar v. State of U.P. (1994)14 Hon’ble Chief Justice M.N. Venkatachalliah observed, “The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of criminal law”. In this way criminal procedure is a measurement for civilization. 11 Course Material, LL.B., Faculty of Law, University of Delhi. Available at: http://lawfaculty.du.ac.in/files/course_material/II_Term/LB-203%20LawofCrimes_II_FinalContent2018.pdf 12 LCI, 37th Report on Code of Criminal Procedure, 1889, P.2 Para 4. Available at; http://lawcommissionofindia.nic.in/1-50/Report37.pdf 13 1974 AIR 1880 14 AIR 1994 SC 1349. 6 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. The Witness Protection Bill, 2015 has been introduced in Lok Sabha for protection of witnesses. (8) Society – Society has huge shareholders in criminal justice system. ‘Social Danger Theory’ has also been developed for the making difference between attempt and preparation. Fair criminal justice systems build up confidence in society and other member instead of taking revenge and taking law in his own hands take recourse of State sponsored criminal justice system. In the K.M. Nanawati case Supreme Court said that at the time of deciding ‘Grave and Sudden Provocation’ society of the accused must also be considered. (9) Members of the general public – Public are wider term than society. Terrorist attacks, economic offences, food adulteration cases effect public at large. Adversarial System26 v. Inquisitorial System (Malimath Committee Report) Introduction -There are two major systems in the world. There are adversarial systems which have borrowed from the inquisitorial system and vice versa. Inquisitorial system followed in France, Germany, Italy and other Continental countries is more efficient and therefore a better alternative to the adversarial system. The Inquisitorial System is certainly efficient in the sense that the investigation is supervised by the Judicial Magistrate which results in a high rate of conviction. Adversarial System The system followed in India for dispensation of criminal justice is the adversarial system of common law inherited from the British Colonial Rulers. The accused is presumed to be innocent and the burden is on the prosecution to prove beyond reasonable doubt that he is guilty. The accused also enjoys the right to silence and cannot be compelled to reply. The aim of the Criminal Justice System is to punish the guilty and protect the innocent. In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused. As the adversarial system does not impose a positive duty on the judge to discover truth he plays a passive role. The system is heavily loaded in favour of the accused and is insensitive to the victims’ plight and rights. Inquisitorial System In the inquisitorial system, power to investigate offences rests primarily with the judicial police officers (Police/ Judiciare). They investigate and draw the documents on the basis of their investigation. The Judicial police officer has to notify in writing of every offence which he has taken notice of and submit the dossier prepared after investigation, to the concerned prosecutor. If the prosecutor finds that no case is made out, he can close the case. If, however he feels that further investigation is called for, he can instruct the judicial police to undertake further investigation. The judicial police are required to gather evidence for and against the accused in a neutral and objective manner as it is their duty to assist the investigation and the prosecution in discovering truth. Exclusionary rules of evidence hardly exist. Hearsay rules are unknown in this System. If the prosecutor feels that the case involves serious offences or offences of complex nature or politically sensitive matters, he can move the judge of instructions to take over the responsibility of supervising the investigation of such cases. 26 Malimath Committee Report, Vol. 1, Page 23, Para 2.1. 7 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Definitions Syllabus in LL.B., DU – (1) Bailable Offence – Section 2(a) (2) Inquiry – Section 2(g) (3) Investigation– Section 2(h) (4) Summons-case – Section 2(w) (5) Victim– Section 2(wa) (6) Warrant Case– Section 2(x). Section 2 - Definitions. In this Code, unless the context otherwise requires,- Section 2 (a) “bailable offence” means an offence which is shown as bailable in the First Schedule27, or which is made bailable by any other law for the time being in force; and “non- bailable offence” means any other offence;28&29 Question (UP APO Spl. 2007) – Which of the following is not matching – (a) Police Report – Section 2 (r) (b) Cognizable Offence - Section 2 (c) (c)Bailable offence – Section 2 (c) (d) Investigation - Section 2 (h) Answer – C. Bailable offence has been defined under section 2(a). Section 2 (b) “charge” includes any head of charge when the charge contains more heads than one; Section 2 (c)30 “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force31, arrest without warrant,32 Section 2 (d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant; 27 Offences related to IPC. 28 MP APO 1993 and 2008, MP Civil Judge 2007. Meaning of bailable and non-bailable offence. 29 The Muslim Women (Protection of Rights on Marriage) Act, 2019. According to Section 7 of this Act, offences under this Act are ‘Cognizable’, ‘Compoundable’ and ‘Non- bailable’. Non- bailable offences means bail cannot be demanded as a matter of right. It depends upon discretion of court. 30 Uttarakhand Civil Judge, 2009 & 2011. Cognizable offence has been defined under section 2 (c). 31 For example Dowry Prohibition Act, 1961, Section 8 Every offence under this Act shall be cognizable, non-bailable and non-compoundable. 32 UP APO 2002, 2007, MP (J) 2005-2006 and MP APO 2008. In case of cognizable offence Police can arrest [section 2 (c)] and investigate (Section 156(1) without warrant. Under section 154 FIR is lodged regarding cognizable offences. Generally these are serious offences and punishable for three years or more than three years. But there are certain offences which are punishable less than three years but they are cognizable offences. 8 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Section 2 (e) “High Court” means,- (i) in relation to any State, the High Court for that State; (ii) in relation to a Union territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court; (iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India; Section 2 (f) “India” means the territories to which this Code extends; Section 2 (g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; Complaint – Sec. 2(d) Inquiry– Sec. 2(g) Trial -Not defined in Cr.P.C. Magistrate Magistrate or Court33 Magistrate or Court Inquiry is conducted by Magistrate or Court with a view to find out prima-facie case.34 Inquiry is conducted before framing of charge.35 Section 2(h) defines ‘investigation’.36 Purpose of investigation is collection of evidence.37It is not judicial proceeding.38 Investigation is conducted by (i) a police officer or (ii) by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.39 Section 2 (i) “judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath; Section 2 (j) “local jurisdiction”, in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code and such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify. Section 2 (k) “metropolitan area” means the area declared, or deemed to be declared, under section 8, to be a metropolitan area; Section 2 (l) “non- cognizable offence” means an offence for which, and “non- cognizable case” means a case in which, a police officer has no authority to arrest without warrant;40 Section 2 (m) “notification” means a notification published in the Official Gazette; 33 Chhattisgarh Civil Judge, 2002, MP APO 2009. Inquiry is conducted by either by Magistrate or Court. 34 UP HJS (Pre) 2009. 35 UK (J) 2002. 36 Uttarakhand Civil Judge 2009. 37 Uttarakhand Civil Judge 2002, 2010, UPAPO 2007, 2002 38 UPAPO 2002 39 MP APO 1997 40 The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013 Section 27 (3) Every offence under this Act shall be non-cognizable. On the issue of bailable and non-bailable offences this law is silent. It will be decided according to Schedule I , List II of Cr.P.C. 11 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Differences between Bailable and Non-Bailable Offences44&45 “The bail is rule, jail is exception.” This rule was laid down by the Supreme Court in Moti Ram & Ors. v. State of M.P.46 (August 24, 1978) by Hon’ble Justice V.R. Krishnaiyer. Bailable Offences Non-Bailable Offences Similarity Both have been defined in same section. Basis of classification of both is release of accused or suspected person. Offences under IPC Both have been shown First Schedule, First Part and Column 5. Offences other than under IPC Both have been shown First Schedule, Second Part and Column 3. Differences Differences Differences Definition Section 2 (a) -“Bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force. Section 2 (a) “non- bailable offence” means any other offence. “Non- bailable offence” means offence other than bailable offence. It is residuary. Offences other than IPC Second part of the First Schedule of the Code deals with offences other than that of IPC and provides that if the offence is punishable with imprisonment for less than 3 years or with fine only that offence shall be treated bailable offences. Second part of the First Schedule of the Code deals with offences other than that of IPC and provides that if the offence is punishable with death, imprisonment for life or imprisonment for 3 years or more that offence shall be treated non-bailable offences. Right v. Discretion In case of bailable offence, accused can claim bail as a matter of right. If he is fulfilling all other conditions, Court or Officer in Charge of Police Station cannot deny bail. In case of non- bailable offence, accused cannot claim bail as a matter of right. Court or Officer in Charge of Police Station may grant bail. It is discretion of Court or Officer in Charge of Police Station to grant bail. There are certain exceptional cases when granting of bail is mandatory in non- bailable cases for example section 167, section 437(2), section 437(6), and section 437(7) etc. Anticipatory Bail In case of Bailable offence, there is no provision for anticipatory bail. In case of Non-bailable offence, there is provision for anticipatory bail (Section 438). 44 UP (J) Mains 2015 Q. No. 8 Distinguish between bailable and non-bailable offence. 45 UP (J) Mains 2015 Q. No. 8 – Under Cr. P.C., 1973, section 2 how are bailable or non-bailable offences distinguished? Under what circumstances of section 437 of the Code, bail may be given in case of non-bailable offence? Discuss. 46 UP (J) 2018. 12 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Differences between Cognizable and Non-Cognizable Offence47 Classification of offences between cognizable and non-cognizable Offence is on the basis of power of police to arrest and investigate the matter. There are following differences between both – Basis Cognizable Offence Non-Cognizable Offence Provision Section 2( c) of Cr.P.C. Section 2( l) of Cr.P.C. Definition “Cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Section 2 (l) “Non- cognizable offence” means an offence for which, and “non- cognizable case” means a case in which, a police officer has no authority to arrest without warrant. “First Schedule or under any other law for the time being in force” are missing in the definition of Non-Cognizable Offence. Offences other than IPC Second part of the First Schedule of the Code deals with offences other than that of IPC and provides that if the offence is punishable with death, imprisonment for life or imprisonment for 3 years or more that offence shall be treated as cognizable offences. Second part of the First Schedule of the Code deals with offences other than that of IPC and provides that if the offence is punishable with imprisonment for less than 3 years or with fine only that offence shall be treated as non- cognizable offences. Arrest Arrest without warrant Arrest with warrant. Nature of offences Generally cognizable offences become serious and public matters. Generally non-cognizable offences become less serious and private matters. FIR Under section 154 FIR is registered related to cognizable offences. Information as to non- cognizable cases is recorded under section 155. Power of investigation Section 156 – After recording the FIR under section 154, any officer in charge of police station may, without the order of a Magistrate, investigate any cognizable case. Section 155 - No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. 47 UP (J) Mains 2015 Q. No. 8 Distinguish between Cognizable and Non-Cognizable Offence 13 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Differences between Summon Cases and Warrant Cases48 Basis Summon Cases Warrant Cases Provision Section 2(w) Section 2(x) Definition “Summons- case” means a case relating to an offence, and not being a warrant- case. “Warrant- case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Kind of Procedure for trial There is only one procedure prescribed for trial of summons cases (Sections 251 – 259). There are two types of procedure for trial of warrant cases by Magistrates namely: (1) Cases instituted on police report (Sections 238 – 243, 248-250) and (2) Cases instituted otherwise than on police report (Sections 244 – 247, 248-250). Framing of Charge Framing of charge is not necessary(Section 251) Framing of charge is necessary (Section 240 and section 246). Issue of process In summon cases summon shall be issued (Section 204(1) (a)). In warrant cases either warrant or summon may be issued (Section 204(1) (b)). Conversion According to Section 259 Trial of Summons Cases can be converted into trial of warrant cases. Trial of Warrant Cases cannot be converted into Summons cases Acquittal/ Discharge In case of non-appearance of complainant, Magistrate may acquit the accused. In case of non-appearance of complainant, Magistrate may discharge the accused in some case before framing of charge. Process to compel appearance Number of Copy Summon is issued in duplicate (two copies of summon). Section 61 Warrant is issued in one copy. Section 70 Kinds There is no kind of summon There are two types of warrant namely; (1) Warrant – section 70 (2)Bailable warrant- Section 71. 48 UP (J) Mains 2016 Q. No. 8 Distiction between trial of summons cases and warrant cases. 16 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Power of High Court – Under section 9, High Court has power to appoint Session Judge, Additional Session Judge and Assistant Session Judge. According to section 28(1) High Court may pass any sentence authorised by law. Punishment of death sentence passed by Session Judge / Additional Session Judge cannot be executed unless it is confirmed by High Court under section 368. High Court may authorize Judicial Magistrate First Class (Section 260) and Judicial Magistrate Second Class for summary trial. Under section 438 High Court and Court of Session have concurrence power to grant anticipatory bail. Only High Court has inherent power under section 482 of Cr.P.C. Duty – According to section 483 it is duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates. Power of Court of Session –All Assistant Sessions Judges (section 10), Chief Judicial Magistrate (section 15), the Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate (section 19) shall be subordinate to the Sessions Judge. The Sessions Judge may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges (section 10). It may pass any sentence authorised by law subject to confirmation of sentence of death by High Court (Section 28). A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him (section 409). Session Judge has also power to grant anticipatory bail (section 438) and bail (section 439). It has also appellate power. Duty - A Sessions Judge or Magistrate making an order under section 408, section 409, section 410 or section 411 shall record his reasons for making it (Section 412). 17 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Unit – II First Information Report Krishna Murari Yadav Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi Contact no. -7985255882 Krishnamurari576@gmail.com Question 1 (UP J Mains) - What is First Information Report? What is its evidentiary value?52 Question 2 (UP J Mains) – Distinguish between Police Report and FIR. LL.B. DU 2017 - Question 1 What is first information report? Whether a police officer who receives any information under section 154 or comes to know otherwise under section 157 is under an obligation to register an FIR or does he or she have discretion to conduct preliminary inquiry? Explain in the light of the case Lalita Kumari v. Govt. of U.P. (2013). LL.B. DU 2019 - Question 1(a) Registration of FIR is mandatory under section 154 of Cr.P.C if the information discloses commission of cognizable offence and no preliminary inquiry is permissible in this situation. If the information received does not discloses cognizable offence but indicates necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. Discuss with the help of case laws. Remark- Lalita Kumari v. Govt. of U.P. LL.B. DU 2019 - Question 2(a)  What is ambit of power of the magistrate under section 156(3) of the Cr.P.C., 1973?  Whether the aggrieved person has right to claim the offence be investigated by any particular agency of his choice? Discuss with the help of case law. Remark- Sakiri Vasu v. State of U.P. & Madhu Bala v. Suresh Kumar, 52 UP(J) Mains 2000 Q. 9. 18 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Question 1 - What is First Information Report? What is its evidentiary value? Answer - First Information Report (FIR) has not been defined in the Cr.P.C. FIR means first time reporting of information to the police regarding commission of cognizable offence. By this criminal law comes into motion. Ravi Kumar v. State of Punjab53 (SC, March 4, 2005) Hon’ble Justice Arijit Pasayat said “The First Information Report is a report giving information of the commission of a cognizable crime which may be made by the complainant or by any other person knowing about the commission of such an offence. It is intended to set the criminal law in motion. Any information relating to the commission of a cognizable offence is required to be reduced to writing by the officer-in-charge of the Police Station which has to be signed by the person giving it and the substance thereof is required to be entered in a book to be kept by such officer in such form as the State Government may prescribe in that behalf. The registration of the FIR empowers the officer in-charge of the Police Station to commence investigation with respect to the crime reported to him. A copy of the FIR is required to be sent forthwith to the Magistrate empowered to take cognizance of such offence.” Essential ingredients of FIR There are following essential ingredients of FIR under section 154 - (1) Information- There should be information (2) Cognizable Offence-That information must be related to commission of cognizable offences, (3) Officer in charge of a police station and woman police officer or any woman officer -It must be made to the officer in charge of a police station. If the informant is the victim (woman) of acid attack, outrage of modesty, rape or word intended to insult the modesty of a woman then such information shall be recorded, by a woman police officer or any woman officer. If the victim is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be. The recording of such information shall be video graphed. (4) Oral or written - It may be given either orally or written form. If it is 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. In our country near about 25% population is illiterate. So it has been provided that information may be given orally or in writing. (5) Signature of informant- Every such information, whether given in writing or reduced to writing (oral information) as aforesaid, shall be signed by the person giving it (informant), and (6) Entering of substance in book - The substance the information shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. ‘General Diary’ has been prescribed for this purpose. 53 Supreme Court, Division Bench, Hon’ble JJ. Arijit Pasayat & S.H. Kapadia 21 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. information received or other than by way of an informant Section 157(1) and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith. Jurisdiction – Every police station has own territorial jurisdiction. If cognizable offence is committed within territorial jurisdiction then FIR is registered and it contains date, time and place of occurrence, serial number etc. Zero FIR - Zero FIR can be registered by any Officer in charge of Police Station even he has no jurisdiction for investigation the offence. In such FIR serial number is put Zero and such FIR is forwarded to competent investigating police station. In case of Aasaram Bapu Rape case rape was committed in Jodhpur, Rajsthan. FIR was lodged in Kamla Market Police Station, New Delhi. This was the ‘Zero FIR’. It was transferred to Jodhpur for investigation. Manoj Sharma Manu v. State of NCT of Delhi & Anr. (Delhi H.C.13 April, 2017) In this case alleged offence against girl was occurred sector 11, Noida and not within the jurisdiction of PS New Ashok Nagar, New Delhi. By using section 156(3) Metropolitan Magistrate having territorial jurisdiction over the area of PS New Ashok Nagar directed SHO PS New Ashok Nagar to register zero FIR and thereafter to transfer the same to the concerned Police Station having jurisdiction in the matter as per procedure. Delhi High Court quashed the order of Metropolitan Magistrate and held that section 154(1) is different from section 156(3). Section 154 (1) Cr.P.C. unlike section 156(3) does not prescribe for a restriction on registration of FIR in respect of an offence committed within the territorial jurisdiction of the police station. Thus even if the offence may have been committed beyond the territorial jurisdiction of a police station, the officer in-charge of the police station would still register the FIR and investigate thereon, however, a Magistrate under section 156(3) cannot direct to an officer in-charge of a police station beyond its territorial jurisdiction. Judicial Magistrate cannot pass an order for Zero FIR by using section 156(3). Order of Judicial Magistrate was quashed. Officer in-charge of the police station shall register the FIR in case of need. Territorial Jurisdiction of P.S. and FIR State of Andhra Pradesh v. Punati Ramulu and Others (SC 19 Feb., 1993) Section 154 does not say anything regarding territorial jurisdiction. The police constable at the police station refused to record FIR on the ground that the said police station had no territorial jurisdiction over the place of crime. In this case Supreme Court “It was certainly a dereliction of duty on the part of the constable because any lack of territorial jurisdiction could not have prevented the constable from recording information about the cognizable offence and forwarding the same to the police station having jurisdiction over the area in which the crime was said to have been committed.” 22 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Telephonic Message Cryptic telephonic message cannot constitute FIR. Tapinder Singh v. State of Punjab (SC May 7, 1970) Facts- The person, giving the information on telephone, did not disclose-his identity; nor did he give any further particulars. When the police officer receiving the telephone message made further enquiries from him he disconnected the telephone. This report was entered in the daily diary at 5.35 p.m. Held - The telephonic message recorded in the daily diary of the police station was a cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence and could not, therefore, be treated as first information report. The mere fact that this information was the first in point of time could not by itself clothe it with the character of first information report. The question whether or not a particular document constitutes a first information report, has to be determined on the relevant facts and circumstances of each case. Advantage of immediate registration of FIR In case of Lalita Kumari Case (2013) Supreme Court discussed advantages of immediate registration of FIR. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages: (a) It is the first step to access to justice for a victim. (b) It upholds the Rule of Law inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State. (c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law. (d) It leads to less manipulation in criminal cases and lessens incidents of ante-dates FIR or deliberately delayed FIR. Delay in lodging FIR Delay in lodging FIR shall not affect credibility of FIR if there are justified reasons. In case of State of Himachal Pradesh v. Gyan Chand (May 1, 2001SC) Supreme Court observed, “Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.” 23 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Uploading of FIR on police website or official website of Government concerned Youth Bar Association of India v. Union of India and Others (Sep.7, 2016SC) Uploading of FIR on ‘Website’ No need to upload Mandatory uploading If offence is sensitive DSP will decide nature of offence 24 H. 48 H. 72 H. Writ petition for mandamus was filed under Article 32 of the Constitution of India by the petitioner, Youth Bar Association of India. Prayer was that the direction should be issued for the Union of India and the States to upload each and every First Information Report registered in all the police stations within the territory of India in the official website of the police of all States, as early as possible, preferably within 24 hours from the time of registration. Guidelines were issued by division bench comprises of Hon’ble Justice Dipak Misra and Justice C. Nagappan. These guidelines are following - (1) FIR on website within 24, 48, 72hours -The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty-four hours of the registration of the First Information Report so that the accused or any person connected with the same can download the FIR and file appropriate application before the Court as per law for redressal of his grievances. It may be clarified here that in case there is connectivity problems due to geographical location or there is some other unavoidable difficulty, the time can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and it is only relatable to connectivity problems due to geographical location. (2) DSP shall decide sensitive nature - The decision not to upload the copy of the FIR on the website shall not be taken by an officer below the rank of Deputy Superintendent of Police or any person holding equivalent post. In case, the States where District Magistrate has a role, he may also assume the said authority. A decision taken by the concerned police officer or the District Magistrate shall be duly communicated to the concerned jurisdictional Magistrate. (3) Not ground for anticipatory bail- If an FIR is not uploaded, needless to say, it shall not ensure per se a ground to obtain the benefit under Section 438 of the Cr.P.C. (4) Supply of copy of FIR to accused - An accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C. 26 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. (5) Advantages of immediate FIR - The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages:  It is the first step to access to justice for a victim.  It upholds the Rule of Law inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.  It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.  It leads to less manipulation in criminal cases and lessens incidents of ante-dates FIR or deliberately delayed FIR. (6) Relation between FIR and Arrest – Mandatory registration of FIR does not mean mandatory arrest. Section 151 of the Code empowers the police authority even without arrest. If a police officer misuses his power of arrest, he can be tried and punished under section 166. Even after registration of FIR police may deny investigation in certain circumstances mentioned in section 157 of the Code. These circumstances are- (1) There is no sufficient ground to investigate or (2) There is no ‘reason to suspect the commission of an offence’. Therefore, the requirements of launching an investigation under section 157 of the Code are higher than the requirement under section 154 of the Code. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence. (7) Relation between FIR (154 Cr.P.C.) & Article 21 of Constitution – In Maneka Gandhi v. Union of India (January 25,1978) Supreme Court held that the law which deprives a person of his personal liberty must be reasonable both from the stand point of substantive as well as procedural aspect . A delicate balance has to be maintained between the interest of the society and protecting the liberty of an individual. There are already sufficient safeguards provided in Cr.P.C. which duly protect the liberty of an individual in case of registration of false FIR. At the same time, section 154 was drafted keeping in mind the interest of the victim and the society. Therefore, we are of the cogent view that mandatory registration of FIRs under section 154 of the Code will not be in contravention of article 21 of the Constitution as purported by various counsel. 27 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Guidelines for registration of FIR In the case of Lalita Kumari v. Govt. of U.P.(2013)58 Supreme Court laid down following proposition for recording of FIR – (i) FIR discloses cognizable offence (Mandatory FIR) - Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. (ii) FIR does not disclose cognizable offence ( Preliminary Inquiry) - If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If ‘Preliminary Inquiry’ discloses ‘Cognizable Offence’ - If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. If ‘Preliminary Inquiry’ does not discloses ‘Cognizable Offence’ - In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. (iv) Non-register of FIR is crime - The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. Preliminary Inquiry Preliminary inquiry is possible in two circumstance –  If FIR discloses cognizable offence and that offence is related to MCMCD, and  If FIR does not disclose cognizable offence ‘Preliminary Inquiry’ can be conducted to ensure nature of offence. If in ‘Preliminary Inquiry’ it is concluded that offence is cognizable, then FIR shall be registered. (v) Purpose of ‘Preliminary Inquiry’- The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. (vi) ‘Preliminary Inquiry’ in MC, MCD (Matrimonial Commercial, Medical Corruption, Delay for three month) - As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The categories of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases 58 2013(13) SCALE 559 28 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.1 The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. (vii) ‘Preliminary Inquiry’ should be completed within 15 days - While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 15 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. (viii) Registration or preliminary inquiry must be mentioned in ‘General Diary’- Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above. . Timing (Lalita Kumari Case) One week In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. 15 Days ‘Preliminary Inquiry’ should be completed within 15 days. (Lalita Kumari casse 2013(7 days) was modified by Lalita Kumari case, 2014(15 days). Three month If information is given after three months for lodging an FIR, in this case preliminary inquiry may be conducted. 31 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Answer – Yes. Magistrate is empowered under section 156(3) to pass an order for re-opening of investigation even after submission of ‘Final Report Ratio of Judgment There are following ratio of this judgment - (1) Alternative remedies - In this case Hon’ble Justice Markandey Katju said, “If a person has a grievance that his FIR has not been registered by the police station under section 154(1) his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. …..It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere. He can approach High Court either through section 482 or with writ petition under article 226 of the Constitution of India.” Flow Chart Alternate remedy in case of non-registration of FIR under sec. 154(1) Art. 226 (Writ Jurisdiction of High Court. Writ u/ 32 is also possible) Sec. 482 (Inherent Power of H.C.) Sec. 200 (Judicial Magistrate) Sec. 156(3) (Judicial Magistrate) Sec. 36 (Police Officers superior to O.P.S e.g. DIG, IG, DGP) Sec. 154(3) (Superintendent of Police) Sec. 154(1) (Officer in charge of a police station) (2) No power of Magistrate to pass order for investigation by CBI - No doubt the Magistrate cannot order under section 156 (3) investigation by the CBI. But Supreme Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. Reason of this is word ‘abovementioned’ under section 156(3). The words ‘abovementioned’ refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station rather than any other investigating authority. 32 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. (3) Demand for investigation by Particular agency- A victim can demand for proper and speedy investigation. But he cannot demand investigation by special agency including CBI. The aggrieved person has no right to claim the offence be investigated by any particular agency of his choice. (4) Doctrine of implied power - It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Example- The power conferred on the Magistrate under Section 125Cr.P.C. to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period. (5) Power to pass an order for registration and proper investigation – Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes  the power to order registration of an F.I.R. and  of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. (6) Power of Magistrate to check the investigation - Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. (7) Relation between section 156(3) and section 173(8) - The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report under Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report. Conclusion Supreme Court dismissed the appeal. Doctrine of Updating Construction According to this doctrine law must be interpreted in such a way which should be according to moving society. Hon’ble Justice Bhagwati in case of National Textile Workers’ Union v. P.R. Ramakrishnan60 said “Law cannot stand still; it must change with the changing social concepts and values. Law must constantly be on the move adapting itself to the fast-changing society and not lag behind.” 60 (1983) 1 SCC 228 33 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Section 156(3) requires sending of substance to substance in writing and by post. When Cr.P.C, was enacted it was speediest and authentic mode to communicate to S.P. But after scientific development there are several other modes which provide quick mode for example email, WhatsApp and mobile call. So to interpret …in writing and by post. Doctrine of Updating Construction’ must be applied so that these modes can be covered. 36 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. State of Orissa v. Sharat Chandra Sahu (1996) This case is based on section 155(4). This section declares that in combination of cognizable and non-cognizable cases, whole cases must be treated as cognizable offence. In this case section 498A (Cognizable offence) and section 494 (Non-cognizable offence) were involved. Supreme Court held that High Court was wrong and all cases must be treated as cognizable offences. Fact of the case There was dispute between Husband & wife She made complaint against her husband for causing offence under section 498A and 494 IPC To Women’s Commission & Women’s Commission made complaint to Police. Wife did not directly approach to police Complaint to Police Station Police submitted Charge-sheet to SDJM (Sub-Divisional Judicial Magistrate). Decision of Court SDJM High Court Supreme Court Section 155(4) Section 198(1) (c) Section 155(4) Allowed – section 494 SDJM Allowed – section 498A Reason -Section 155(4) Did not allow – section 494 High Court Allowed – section 498A Reason –Section 198(1) (c) Allowed – section 494 Supreme Court Allowed – section 498A Reason -Section 155(4) Offence Section 494 Section 498A Non-cognizable Cognizable offence Section 155(4) – Cognizable + Non-Cognizable = Cognizable 37 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. SDJM - He took cognizance and framed charge for committing offence under section 494 and section 498A. High Court –Aggrieved by framing of charge, husband went to High Court under section 482, Cr.P.C. for quashing the proceeding. High Court emphasized on section 198(1) (c)62. This section says that in case of offences related to matrimonial offences only victim or his/her relative can make complaint and third persons are not allowed. Here bigamy (section 494) is related to matrimonial offence. In this case complaint was made by wife to Women’s Commission and Women’s Commission made complaint to Police. That Commission was not authorised under section 198(1) (c) to make complaint regarding commission of offence under section 494, IPC. Remarks – High Court was right on the point of section 198(1) (c) but committed wrong by ignoring section 155(4), Cr.P.C. Supreme Court – Appeal to High Court was preferred. Supreme Court held that decision of High Court was wrong. Supreme Court applied section 155(4) and held that both offences shall be treated as cognizable offence. 62 Section 198 - Prosecution for offences against marriage (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that - (c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's, brother or sister , with the leave of the Court, by any other person related to her by blood, marriage or adoption 38 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Madhu Bala v. Suresh Kumar, July 23, 1997 Hon’ble Justice M Mukherjee Here there were two complain i.e.  To CJM of Kurukshetra on 18/02/1988  To CJM of Karnal on 29/01/1994 Complain regarding two offence i.e.  Section 498A, IPC  Section 406, IPC Issue – Whether Magistrate had power under section 156(3)63 to give direction for registration of FIR. Answer-  Lower Court – Yes  High Court – No  Supreme Court – Yes Facts of Case First Complain to Kurukshetra –Madhu Bala filed complain to CJM, Kurukshetra against her husband regarding commission of offences under sections 406 & 498A, IPC on 18/02/1988. CJM by using his power under section 156(3) directed for lodging FIR. FIR was lodged and Police Report was submitted. CJM took the cognizance regarding commission of offence under section 406, IPC and regarding section 498A said that he had not territorial jurisdiction. Regarding this offence Karnal Court had jurisdiction. So please Madhu Bala go to the Karnal Court regarding section 498A. Second Complain to Karnal – Badhu Bala filed second complain to CJM, Karnal against her husband regarding commission of offence under section 498A, IPC on 29/01/1994. CJM by using his power under section 156(3) directed for lodging FIR. FIR was lodged and Police Report was submitted. CJM took the cognizance regarding commission of offence under section 498A, IPC Complain on 18/02/1988 CJM Kurukshetra took cognizance Section 406 Order u/s.156(3) to lodge FIR Complain on 29/01/1994 CJM Karnal took cognizance Section 498A Order u/s.156(3) to lodge FIR 63 Section 156 (3), Cr.P.C -Any Magistrate empowered under section 190 may order such an investigation as abovementioned 41 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Section 160 of Cr.P.C -Police officer’s power to require attendance of witnesses.- (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required: Provided that no male person under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person shall be required to attend at any place other than the place in which such male person or woman resides. (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence. UK (J) (Pre.) Question Question – Who cannot be called at police station during investigation? (1) Woman (2) male person under the age of fifteen years or above the age of sixty-five years (3) physically disabled person (4) All of the above. Answer - (4) All of the above. UK (J) (Pre.) Question Under which section woman cannot be called police station for examination during investigation- (1) Section 160 (1) (2) Section 160 (2) (3) Section 161 (1) (4) Section 160 (1) Provided. Answer - (4) Section 160 (1) Provided. Nandini Satpathy vs Dani (P.L.) and Anr. (7 April, 1978. Justice Krishnaiyer) is a leading case on section 160 and 161 of Cr.P.C. In this case a former Chief Minister of Orissa (1972-1976) and one time Minister at the National level Mrs. Nandini Satpathy was directed to appear at the Vigilance Police Station, Cuttack, in September, 1977 regarding corruption cases. She refused to answer by taking shield of Article 20(3) of the Constitution of India. One issue was whether ‘any person supposed to be acquainted with the facts and circumstances of the case’ includes only witness or accused also. Another issue was whether accused as mentioned in 20(3) also includes suspected person. Relation between sections 160& 161of Cr.P.C. and Article 20(3) were discussed. (1) Calling of woman at police investigation is violation of Section 160 (1) Provided. (2) Article 20(3) also gives protection during investigation. (3) The area covered by Art. 20(3) of the Constitution and section 161(2) of the Criminal Procedure Code are substantially the same. So much so, terminological expansion apart, sec. 161(2) is a parliamentary gloss on the constitutional clause. Section 161. Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. 42 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. DJS (Pre.) – 2019 - In the context of section 161 Cr. P.C which of the following statement is incorrect – (1) The statement of a female victim of a sexual offence can be recorded only by a woman police officer (2) The person so examined shall be bound to answer truly all questions relating to the case put to him by the police officer other than questions the answer to which would have a tendency to expose to him a criminal charge (3) Police officer has to record the statement and get it signed by the person so examined (4) All of the above. Answer - (3) Police officer has to record the statement and get it signed by the person so examined. Answer of this question depends upon sections 160, 161 and 162 of Cr.P.C. Section 162. Statements to police not to be signed64: Use of statements in evidence- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act , 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act. Explanation- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. 64 UP APO 2002, UK APO 2010, UK (J)2009 43 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Aghnoo Nagesia v. State of Bihar (SC, 4 May, 1965) -The words of section 162 are wide enough to include a confession made to a police officer in the course of an investigation. State of Rajasthan v. Teja Ram and Others (February 1, 2000) Fact-Son and mother were killed in night. Trial court, while convicting six accused, mainly relied on Ex. P31 and Ex.P32 which are the two dying declarations attributed to deceased Ram Lal (son) and Gamni (mother) respectively which were recorded by PW21, the Investigating Officer. High Court declined to accept two dying declaration and accused were acquitted. Supreme Court confirmed the decision of trial Court and Teja was conviced for murder. Disputed Fact- PW21 (Investigating Officer) after preparing the seizure memos Ex.P3 and Ex.P.4. obtained the signature of the accused concerned in both the seizure memos. It was contrary to section 162 which says prohibits taking or putting signature. Section 27 deals recover of facts. Section 27 of IEA is exception of 162, Cr.P.C. Issue –Whether taking such signature shall vitiated the seizure. Answer- No. Decision- Supreme Court observed following points-  Prohibition of signature is in peremptory terms. It is more a direction to the investigating officer than to the court because the policy underlying the rule is to keep witnesses free to testify in court unhampered by anything which the police claim to have elicited from them.  But if any Investigating Officer, ignorant of the said provision, secures the signature of the person concerned in the statement, it does not mean that the witnesses testimony in the court would thereby become contaminated or vitiated.  The Court will only reassure the witness that he not bound by such statement albeit his signature finding a place thereon.  The prohibition contained in sub-section (1) of section 162 is not applicable to any proceedings made as per section 27 of the Evidence Act. It is clearly provided in sub- Section (2) of section 162. HJS (Pre.) 2009 Question – Statement under Section 161 of Cr.P.C. can be used to (a) Corroborate the statement in court (b) Corroborate and contradict the statement in court (c) Contradict the statement in court (d) Cannot be utilized for any purpose. Answer -(c) Contradict the statement in court. Answer of this depends upon combined reading of sections 161 and 162 (1) Provided of Cr.P.C. and section 145 of IEA as mentioned in section 145 of Indian Evidence Act. 46 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video-graphed. (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. Similarities between recording of confession and statement Basis Confession Statement Statute Section 164 (1) & (6) Same Who can record? (MM or JM) Any Metropolitan Magistrate (For Metropolitan area) or Any Judicial Magistrate (For other than Metropolitan area) Same Timing (1) In the course of an investigation or (2)at any time afterwards before the commencement of the inquiry or trial.68 Same Jurisdiction Jurisdiction of Court is immaterial for recording confession/Statement. Same Difference between recording of confession and statement Basis Confession Statement Statute Section 164 (Clauses 1,2,3,4 & 6) Section 164 (Clauses 1,5, 5A & 6) Whom? Accused Victim/Accused Sign/Oath Sign Oath - Section 164 (5)69 Evidence Substantive Evidence Not Substantive Evidence. If he comes as a witness, his statement can be used under sections 145 and 157 of IEA. Duties of Magistrate To inform the accused that he is not bound to make confession and if he makes the confession, that confession may be used against him. He will ensure that the accused is making confession voluntarily. Here there are no such duties of Magistrate before recording statement. 68 DJS (Pre.) 2019. 69 Raj. APO2011 47 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Question 7 DJS (Pre.) 2019 Section 164 of Cr.P.C. provides for recording of a confession or statement: (1) in the course of an investigation only (2) at any time after the conclusion of investigation and before the commencement of the trial (3) during the course of an investigation or at any time afterwards before the commencement of the inquiry or trial (4) During investigation, inquiry or trial. Answer - (3) during the course of an investigation or at any time afterwards before the commencement of the inquiry or trial. Relation between section 29 of Indian Evidence Act,1872 & Section 164 of Cr.P.C. There are two types of confession namely, (i)Judicial Confession &(ii) Extra-Judicial Confession Section 29- If a confession is otherwise relevant, it does not become irrelevant merely because  he was not warned that he was not bound to make such confession, and  that evidence of it might be given against him. Section 164(4) (Old Cr.P.C 164(3)) - According to section 164(4) Cr.P.C., there are following duties of the Magistrate before recording confession –  to inform the person who is going to make confession that he is not bound to make confession, and  his confession may be used as evidence against him.  to ensure that confession was voluntarily. Section 29 says that warning is not necessary Section 164(4) says that warning is mandatory. Old Cr.P.C- Presidency Magistrate, Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government can record confession. New Cr.P.C. MM or JM can record confession State of Uttar Pradesh v. Singhara Singh&Ors.70 (DOJ August 16, 1963) This case was related to 302. The Magistrate who had recorded confession under section 164 gave his oral evidence. A Magistrate recording a confession under s. 164 of the Code is bound to follow the procedure laid down in it. Mr. Dixit, who recorded the confession in this case was a second class magistrate and he was not empowered by the State Government to record a statement or confession under s. 164 of the Code. So this confession was not admissible. A confession duly recorded under s. 164 would no doubt be a public document under s. 74 of the Evidence Act which would prove itself under s. 80 of that Act. In this case section 29 of IEA was neither discussed nor quoted. Conclusion – After combined reading of section 29, section 164 and Singhara Singh case, it can be inferred that section 29 is applicable only in case of extra-judicial confession and section 164 is applicable to judicial confession. 70 AIR 1964 SC 358 48 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Who can record confession or statement u/s 164? Any Metropolitan Magistrate or Any Judicial Magistrate Where? (Jurisdiction) When? Timing (Jurisdiction of Court is immaterial for recording confession/Statement) (1) In the course of an investigation or (2)at any time afterwards before the commencement of the inquiry or trial Confession (Accused) (Clauses 1,2,3,4, &6) Statement (Victim/ Accused) (Clauses 1, 5,5A & 6) (Sign by accused and Magistrate) (Oath taken by maker) Substantive evidence Not Substantive evidence (If maker comes as a witness) Section 145 and Section 157 Duties of Magistrate recording confession - The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if Section 164 Cr. P. C. (Confession/ Statement) Section 164 Cr. P. C. (Confession and Statement) Krishna Murari Yadav, Law Centre -1, FOL, University of Delhi 51 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi.  Even after expiry of 90 days, arrested person can claim bail. But it must be beorethe submission of Challan under section 173. Once Challan is submitted investigation complete. Section 167 is applicable only during investigation. Example 1- A was arrested for causing death of B. He was in custody. He was unaware about default bail. One day in ‘Outreach Programme’ of LSS, Law centre -1, Miss Nikita informed his relative about default bail as prescribed under section 167, Cr.P.C. He applied for default bail on 101st day. Police Report was submitted on 102nd day. There are following option – (a) A is not entitled to get default bail. (b) A is entitled to get default bail. (c) A is entitled to get default bail because still investigation was going on. (d) A is not entitled to get default bail because there was inordinate delay Answer- (c) A is entitled to get default bail because still investigation was going on. Example 2- A was arrested for causing death of B. He was in custody. He was unaware about default bail. One day in ‘Outreach Programme’ of LSS, Law centre -1, Miss Nikita informed his relative about default bail as prescribed under section 167, Cr.P.C. He applied for default bail on 102nd day. Police Report had been submitted on 101st day. There are following option – (a) A is not entitled to get default bail. (b) A is entitled to get default bail. (c) A is entitled to get default bail because still investigation was going on. (d) A is not entitled to get default bail because after submission of Police Report ‘Investigation’ had been completed and he had applied for bail after completion of investigation. Answer-(d) A is not entitled to get default bail because after submission of Police Report ‘Investigation’ had been completed and he had applied for bail after completion of investigation. (4) Bail- On the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail. Shardulbhai Lakhmanbhai v. State Of Gujarat (Gujarat High Court) Whether an accused person has an absolute right to be released on bail under proviso (a) to Section 167 (2) of the Code of Criminal Procedure, 1973 even after submission of the police report/charge- sheet, if the charge-sheet has been submitted after the period prescribed in the said proviso? In this case Gujarat High Court observed that compulsory bail under section 167 is available only during investigation. Once charge-sheet is submitted investigation closed. So the accused does not have right to be released on bail under proviso (a) to section 167 (2) once the investigation comes to an end by filing charge-sheet. Accused person must be ready to get bail. The accused has absolute right to be released on bail under the proviso (a) to section 167 (2) of the Code for the default of the prosecution in not completing the investigation within time limit 52 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. prescribed thereunder in the sense that he is entitled to be released on bail by showing that the investigation has not been completed or the charge-sheet has not been filed within the prescribed time limit, without anything more. Default Bail or Statutory Bail or Mandatory Bail This bail is granted due to default of investigating authority who could not file ‘Police Report’ or ‘Challan’ under section 173 of Cr.P.C. In the case of Rakesh Kumar Paul v. State of Assam (16 August, 2017) Supreme Court observed, “The significance of the period of 60 days or 90 days, as the case may be, is that if the investigation is not completed within that period then the accused (assuming he or she is in custody) is entitled to ‘default bail’ if no charge sheet or challan is filed on the 60th or 90th day, the accused applies for ‘default bail’ and is prepared to and does furnish bail for release”. (5) Cancellation of Bail- There is no specific provisions for cancellation of bail under section 167. But it has been provided that bail granted under section 167 shall be deemed to be granted under Chapter XXXIII. So it can be cancelled under section 439 (2) of Cr.P.C. Conclusion – In the case of Arnesh Kumar v. State of Bihar Supreme Court observed that before a Magistrate authorises detention under Section 167 Cr.P.C., he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused. Section 167. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.74 (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— (a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding - 74 Article 22 of the Constitution of India, 1950. 53 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. (2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2). Section 167 (1) Police Clause (1) will come into role when investigation could not be completed under section 5775 and further custody is necessary. Section 167 (2) Judicial Magistrate Clause (2) will come into role when all conditions of Clause (1) have been satisfied. Section 167 (2- A) Executive Magistrate It will come in extra-ordinary situation. Section 167(1) There are following ingredients of section 167(1) –  There must be arrest and custody rather than arrest and release.  it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 5776 and  there are grounds for believing that the accusation or information is well founded 75 Section 57 - Person arrested not to be detained more than twenty-four hours - No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. 76 Section 167 is supplementary to section 57. Intention of legislature is that investigation must be completed within 24 hours. 56 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. (II) Use by accused or his agent- Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court. There are two exceptions - (a) if they are used by the police officer who made them to refresh his memory, or (b) if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply. (III) Use by Police officer - Police officer may use it for refreshing memory. Section 172 Contents Manner Use Section 172(1) (1A) Section 172(1B) Section 172(2) &(3) USE By Court By Prosecutor By Accused Rule Exception Question –What is general diary? Answer –According to Section 44 of the Police Act, 1861, “It shall be the duty of every officer in charge of a police station to keep a general diary in such form shall, from time to time, be prescribed by the State Government and to record therein all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined”. FIR is registered in General Diary. Para 294 to 299 of UP Police Regulation also deal ‘General Diary’. Sections Important Words Remarks Section 154 FIR FIR is written in ‘General Diary’. It is also called ‘Police Diary’. Section 157 Preliminary Report 57 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Section 167 Default Bail/Statutory Bail Default of investigating officer Section 169 ‘Referred charge’, ‘Final report’, or ‘Summary’. There is no sufficient evidence Closure Report Section 170 Charge-sheet There is sufficient evidence Section172 Case Diary Section 173 Police Report or Challan/ Completion Report No Provision Only in practice Protest Petition77 protest petition is in the nature of a complaint, it is referable to the investigation already held by the vigilance police culminating in the final report There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice.78 Section 173. Report of police officer on completion of investigation.—(1) Every investigation under this Chapter shall be completed without unnecessary delay. (1A) The investigation in relation to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D,376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months79 from the date on which the information was recorded by the officer in charge of the police station. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Haryana J S (Pre) 2018. Question- Under section 173 of the Cr.P.C. as amended in 2018, the investigation into the offence of rape shall be completed within a span of : (a) Six Months (b) Four Months(c) One Month(d) two Months. Answer - (d) two Months. UP (J) (Pre) 2018. Which of the following section of the Cr.P.C. has been amended by the Criminal Law( Amendment) Act, 2018 (a) section 163 (b) section 173(c) section 183(d) section 193. Answer – (b) section 173. This amendment changed rape laws and investigation and submission of police report in rape cases. Question – What is ‘Police Remand’ and ‘Judicial Remand’? Answer - Sir, there are following differences between both- 77 Supreme Court stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. 78 Vishnu Kumar Tiwari v. The State of Uttar Pradesh , 9 July, 2019 79 ..“rape of a child may be completed within three months” was substituted in 2018. Now ‘shall’ word has been used. Three months has been substituted by two months. Earlier There was time bound investigation only in child rape cases. Now investigation within two months must be completed in all types of rape cases. 58 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. DIFFERENCE BETWEEN ‘POLICE REMAND’ AND JUDICIAL REMAND/ CUSTODY S.No. ‘Police Remand’ ‘Judicial Remand’ 1. Place after remand During the ‘Police Remand’ suspected person is kept into ‘Police Lock up’. During the ‘Judicial Remand’ suspected person is kept into ‘Jail’. 2. Period of remand According to section 167 of Cr.P.C. maximum period for which ‘Police Remand’ can be granted is 15 days except in special case for example under Maharashtra Control of Organised Crime Act, 1999 (Section 21) where 30 days for police remand is allowed. Section 167 also deals statutory/default bail. After 15 days judicial remand may be allowed. Magistrate may authorise detention beyond 15 day. But if the police report is not submitted in 90 days (where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years) or 60 days (where the investigation relates to any other offence) as the case may be, the accused shall be entitled for bail. 3. Interrogation He is interrogated. He is remanded for taking help in investigation. He is not interrogated. During Judicial Custody, the police officer in charge of the case is not allowed to interrogate the suspect except with permission of Court in special circumstances. 4. Responsibility A police officer in charge of a suspect may treat the suspect arbitrarily. In Police Custody, suspect becomes responsibility of Officer in charge of the Case. In Judicial Custody, suspect becomes responsibility of Court. 5. Authorizing authority Police authority cannot take ‘Police Remand’ suo motu. Only Court can authorise for ‘Police Remand’. Judicial authority authorizes ‘Judicial Remand’ Procedure for Investigation For the purpose of arrest and investigation offences have been divided into two parts namely (1) Cognizable offence, and (2) Non-cognizable offence. In cognizable cases person can be arrested and investigation can be started without order or warrant of Magistrate. In case of non-cognizable cases neither person can be arrested (except 42) and nor investigation can be started without order or warrant of Magistrate. There are following differences between both- 61 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. What are the provisions under Cr.P.C. for the investigation when it is not completed within 24 hours? Answer- 167. I have already discussed. Uttar Pradesh (J) 1997 Briefly describe the circumstances where under a police officer, a private person or a Magistrate may arrest a person without warrant. Uttar Pradesh (J) 2000 In what circumstances may a police officer arrest a person without an order from magistrate and without a warrant. Can an arrest be made by a person other than police officer? Explain and illustrate. Uttar Pradesh (J) 2013 When a Magistrate arrest a person without warrant, is he required to inform the person arrested of the grounds of such arrest? If so under which provision of Criminal Procedure Code? Explain. Uttar Pradesh (J) 2013 Discuss briefly the distinction between the procedure of investigation by a police officer in cognizable and non-cognizable offences. Uttar Pradesh (J) 2016 On the basis of decided cases discuss briefly the distinction between the procedure of investigation by a police officer in cognizable and non-cognizable offences. Specially for the protection of women against heinous crimes, what major amendments are made in the Cr.P.C by the Criminal Law (Amendment) Act, 2013. Discuss in brief. Effect of Arrest Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. In the Joginder Kumar Case Supreme Court observed, “Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self- esteem of a person.” In the case of Arnesh Kumar v. State of Bihar (2014) Supreme Court observed that arrest curtails freedom, brings humiliation and casts scars forever. So there is needed to make balance between individual liberty and social order. Justification of Arrest LL.B. DU Question 6(a) – 2017) Question - Discretion to arrest a person in cognizable matter is one things but justification of arrest is quite different. How the Supreme Court interpreted this position with specific reference to section 41A in Arnesh Kumar v. State of Bihar (2014)? Discuss. 62 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Answer – This question can be solved with the help of two leading cases namely; (1) Joginder Kumar v. State of Uttar Pradesh (April 25,1994) and Arnesh Kumar v. State of Bihar (July 2, 2014). Joginder Kumar v. State of Uttar Pradesh80 (DOJ April 25, 1994) Facts- Joginder Kumar who was 28yrs was an advocate. SSP Ghaziabad called him in his office for some inquiries. He along with his brothers reached to the office at 10 a.m. on January 7, 1994. When 12.55 P.M. inquiries was made, it was replied that he will be set free in evening. It was further informed that Joginder has been sent to Mussoorie. On 9-1-1994, in the evening when the brother of petitioner along with relatives went to P.S. Mussoorie to enquire about the well-being of his brother, it was found that the petitioner had been taken to some undisclosed destination. Under these circumstances, writ petition for habeas corpus was filed. The said Senior Superintendent of Police along with petitioner appeared before this Court on 14-1-1994. Judgment – It was laid down that his friend or relative shall be informed and who has been informed it shall be entered into prescribed book. In this case Supreme Court observed, “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.” Arnesh Kumar v. State of Bihar ( July 2, 2014) Facts - In this case section 498A, IPC and section 4 of Dowry Prohibition Act, 1961 were involved. Anticipatory bail was rejected matter reached to Supreme Court through SLP. Supreme Court discussed thoroughly sections 41(1)(b), 41A and section 167 of Cr.P.C. Certain guidelines were laid down regarding arrest of person and at the time of using section 167 of Cr.P.C. Judgment- Police officers make arrest as they believe that they possess the power to do so. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from the power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner 80 AIR 1994 SC 1349 63 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Supreme Court further observed, “In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated under section 41 is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.” Kind of Arrest Arrest may be divided into two parts namely; (1) arrest without warrant and (2) arrest with warrant. Rule is that cognizable cases person can be arrested without warrant and in case of non- cognizable cases cannot be arrested without warrant. But there are certain specific circumstance in which person can be arrested without warrant even in case of non-cognizable offences. For example section 42. Another example is under section 44 word ‘any offence’ have been used. It means it covers all types of offences whether cognizable or non-cognizable offences. Cognizable Offence – According to Section 2 (c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may arrest without warrant. Non- cognizable offence - According to Section 2(l) “non- cognizable offence” means an offence for which, and “non- cognizable case” means a case in which, a police officer has no authority to arrest without warrant. Issue of process- According to section 204 (1) in summons case, summons shall be issued and in warrant case either summons or warrant may be issued. There are three exceptional cases mentioned under section 87 when in summons case warrant may be issued. In these cases warrant may be issued either in lieu of or in addition to summons. These are – (1) If, before the issue of summons, the Court sees reason to believe that the person has absconded or will not obey the summons. (2) If, after the issue of the summons but before the time fixed for his appearance the Court sees reason to believe that the person has absconded or will not obey the summons. (3) If the person fails to appear on the fixed day for appearance even after receiving summons and he did not provide reasonable grounds for non-appearance. 66 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. life imprisonment or death sentence. Section 42 enumerates certain circumstances when police can arrest without warrant in non-cognizable cases. When police may arrest without warrant Section 41(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) Cognizable offence in presence - who commits, in the presence of a police officer, a cognizable offence; (b)81 Cognizable offence punishable less than or up to 7 yrs.(Arnesh Kumar Case on this point) - against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:- (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary- (a) To prevent further offence- to prevent such person from committing any further offence; or (b) To conduct proper investigation - for proper investigation of the offence; or (c) Evidence- to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) Witness- to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) Presence in court - as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. (ba) Cognizable offence punishable more than 7 yrs. or LI or Death Sentence - against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; (c) Proclaimed offender - who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) Stolen property in possession- 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 thing; or 81 Law Commission of India in its Report 177 (Dec.2001) recommended to substitute section 41 (b). This report is available on: http://lawcommissionofindia.nic.in/reports/177rptp1.pdf . Last visited on February 8, 2020. 67 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. (e) Obstructs a police officer in execution of duties- who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) Deserter from army - who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) Offence committed outside India - who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) Breach of rule - who, being a released convict, commits a breach of any rule made under sub- section (5) of section 356; or (i) Request to arrest from another police station- for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. Section 42 Arrest on refusal to give name and residence in non -cognizable case - (1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non- cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. 68 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Arrest without warrant by police (Sections 41(1) and 42) Section 41 Section42 (Non Cognizable) Cognizable offences other offences Offence committed in his presence Offence committed elsewhere Punishable less than or up to 7 yrs. Punishable more than yrs. or LI or Death Sentence Conditional (One + Five = Six ) Without any condition person can be arrested (1) Credible information (2) (i)to prevent further offence, or (ii) Proper investigation, or (iii) To prevent disappearance of evidence, or (iv) To prevent threat to witness, or (v) To secure presence of accused in court. (1) Proclaimed Offender, or (2) In possession of stolen property , or (3) Obstructs a police officer , or (4) Deserter from army, or (5) Offence committed outside India and now he/she is in India (6) Breach of section 356 (5) (7) Request to arrest from another police station Arrest on refusal to give name and residenc 71 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. offence is cognizable and non-bailable offence. So Family members and other villagers were not authorised to confine SHO. So Family members and other villagers had committed offence of wrongful confinement as defined under section 340 of IPC. Arrest by Magistrate Section 44–(1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant. Arrest by Judicial or Executive Magistrate (Sections 44) Within his local jurisdiction Sect. 44(1) Sect. 44(1) (Offence is committed in presence) (Offence is not committed in presence but competent to issue warrant for arrest). Difference between Section 44(1) and Section 44(2) Ground Section 44(1) Offence in his presence Section 44(2) Competent to issue warrant Similarity Local Jurisdiction Local Jurisdiction is sine qua non. In absence of local jurisdiction section 44(1) shall not be applied. Local Jurisdiction is sine qua non. In absence of local jurisdiction section 44(2) shall not be applied. Any Magistrate Either Executive or Judicial Either Executive or Judicial Differences In the presence Offence is committed in the presence of Magistrate Offence is not committed in the presence of Magistrate. But he is present in front of Magistrate. The Magistrate is competent to issue warrant for arrest. Commission of offence in his presence is necessary. Commission of offence in his presence is not necessary. But Magistrate must be competent to issue warrant for arrest. Custody Magistrate has power to commit him into custody. Such power is not conferred here. 72 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. If a Magistrate arrests a person he cannot detain for more than 24 hours. In case of exceeding 24 hours he must comply section 167 of Cr.P.C. Question - Mr. R is a judge in Patna. He came into Delhi. In his presence a girl was molested by Z in bus. Is R authorised to arrest Z? If yes, under which provision? Option – (1) R is not authorised. (2) R is authorised to arrest under section 44(1). (3) R is authorised to arrest under section 44(2). (4) R is authorised to arrest under section 43(1). Answer - R is authorised to arrest under section 43(1). Explanation – R as a judge is authorised to arrest under section 44. Offence has been committed in his presence. But other conditions of this section are not being fulfilled. For example Delhi does not come under his local jurisdiction. His local jurisdiction is confine to Patna. So R as a judge is not authorised to arrest under section 44. But he is authorised to arrest under section 43 of Cr.P.C. Judge outside his jurisdiction come under the category of any private person. R will come under the category of private person. Outrage of modesty comes under the categories section 354 which is cognizable and non-bailable offence. So R is authorised under section 43 of Cr.P.C to arrest Z. Note - Section 45 is an exception of section 41 to 44 of Cr.P.C. It provides special protection to army personal (section 45(1)) and State security personal (section 45(2)). Bihar (J) 2011 Question No. 10(b) What are guidelines laid down by the Supreme Court for the police while arresting a judicial officer? Answer – Guidelines for arresting judges were laid down by Supreme Court in the case of Delhi Judicial Service Association Tis Hazari Court, Delhi v. State of Gujarat And Ors. Delhi Judicial Service Association Tis Hazari Court, Delhi v. State of Gujarat and Ors. (Sept.11, 1991) Facts of Case Mr. N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He soon found that the local Police was not cooperating with the courts in effecting service of summons, warrants and notices on accused persons, as a result of which the trials of cases were delayed. He made complaint against the local police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete happened. On account of these complaints, Mr. S.R. Sharma, Police Inspector, Nadiad was annoyed with the Chief Judicial Magistrate and he withdrew constables posted in the CJM Court. In April 1989, the CJM filed two complaints with the Police against the Police Inspector and other Police Officials, Nadiad for delaying the process of the Court. On 25th July, 1989, the CJM directed the police to register a 73 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. criminal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since unqualified apology was tendered, the CJM directed the Police Inspector to drop the cases. The Police Inspector reacted strongly to the CJM’s direction and he made complaint against the CJM to the Registrar of the High Court through the District Superintendent of Police. On account of the aforesaid facts there was hostility between the Police of Nadiad and the CJM. On 25th September 1989, the Police Inspector met the CJM in his chambers to discuss a case where the Police had failed to submit the charge-sheet within 90 days. During discussion the Police Inspector invited the CJM to visit the police station to see the papers and assured him that he would mollify the sentiments of the police officials. At 8.35 p.m. on the said date, the Police Inspector sent a Police Jeep to the CJM’s residence and he went to the Police Station. According to the CJM when he arrived in the Police Station he was forced to consume liquor and on his refusal he was assulted, handcuffed and tied with rope by Police Inspector, Sub-Inspector, Head Constable, and Constable and that he was sent to Hospital for Medical Examination under handcuffs. A photographer was arranged to take his photograph which was published in the newspapers. The Police Inspector disputed these allegations and according to him the CJM entered his chamber at the Police Station in a drunken state, shouting and abusing him and since he was violent, he was arrested, handcuffed and sent to Hospital for Medical Examination. He himself wanted to be photographed and that is why the photographs were taken by the press photographer. Guidelines A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, Supreme Court issued the following guidelines - (A) Before arrest intimation to the District Judge or the High Court- If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be. (B) In case of necessity only formal arrest- If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected. (C) After arrest intimation to the District Judge and High Court -The facts of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court. (D) Not taken to Police Station without prior order of District & Sessions Judge - The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available. (E) Immediate facilities - Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers, including the District & Sessions Judge. (F)No statement, no panchnama, no medical test except in the presence of the Legal Adviser - No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn 76 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. interest litigation” category. Considering the importance of the issue raised in the letter being concerned by frequent complaints regarding custodial violence and deaths in police lock up, the letter was treated as a writ petition and notice was issued on 9.2.1987 to the respondents. Facts (2)- Ashok K. Johri Case – Shri D.K.Basu case was pending. A letter addressed by Shri Ashok Kumar Johri on 29.7.87 to the Hon’ble Chief Justice of (Justice R.S.Pathak) India drawing the attention of this Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody was received. That letter was also treated as a writ petition and was directed to be listed alongwith the writ petition filed by Shri D.K. Basu. Guidelines – After considering the gravity of custodial death eleven guidelines were laid down which are following - (1). The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2). That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3). A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4). The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the district and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5). The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6). An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7). The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. 77 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. (8). The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9). Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10). The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11). A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Failure to comply with the requirements - Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. Addition to the constitutional and statutory safeguards - The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee. Comparison between D.K.Basu Case and Cr.P.C as amended in 2009. Grounds D.K.Basu Case Cr.P.C as amended in 2009. 1st Guideline Clear identification of arresting uthority The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. Section 41B(a) Every police officer while making an arrest shall bear an accurate, visible and clear identification of his name which will facilitate easy identification; 2nd Guideline Preparation of memo of arrest & That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable Section 41B(b) Every police officer while making an arrest shall prepare a memorandum of arrest which shall be 78 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. The memo shall be attested by at least one witness and countersigned. person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; (ii) countersigned by the person arrested. 3rd Guideline Information to friend A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock- up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. Section 41B(c) Every police officer while making an arrest shall inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. 4th Guideline Notification or display about arrest and arresting authority The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the district and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. Section 41C (2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests. 8th Guideline The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. Section 54. Section 54 was substituted in 2009. When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made. 10th Guideline Meeting of advocate of his choice. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. Section 41D When any person is arrested and interrogated by the police, he shall be entitled to meet an 81 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Rights of arrested person Constitution Cr.P.C. Case Law Article 22 Joginder Kumar v. State Of U.P (1994) D.K.Basu v. State of West Bengal (1997) Arnesh Kumar v. State of Bihar (2014) Constitution of India Provisions Rights of Arrested Person Article 22(1) Right to be informed the grounds of arrest Article 22(1) Right to consult legal practitioner of his choice Article 22(2) Right to be produced before Magistrate Article 22(2) No detention beyond 24 hours. Code of Criminal Procedure Provisions Rights of Arrested Person Section 41B (c) Right to be informed his friend or relative(Section 41B ) Section 41D Right to meet an advocate of his choice Section 49 Right not to unnecessary handcuffed Section 50 (1) Person arrested to be informed of grounds of arrest Section 50 (2) Person arrested to be informed about right to bail Section 54 Right to be medically examined Section 56 Right to be produced before Magistrate without delay Section 57 No detention beyond 24 hours Leading Cases Leading Cases Guidelines Joginder Kumar vs State Of U.P (1994) (1) An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained. (2) The police officer shall inform the arrested person when he is brought to the police station of this right. (3) An entry shall be required to be made in the diary as to who was informed of the arrest. D.K.Basu v. State of West Bengal (1) Relative or friend must be informed (2) Medical Examination every 48 hours during his detention in custody (3) Meeting with his lawyer 82 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. Constitution of India There are following rights of arrested person under Constitution of India - (1) Right to be informed the grounds of arrest – According to Article 22(1) of Constitution of India no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. Article 22(1) of Const. Arrest with or without warrant Section 50 of Cr.P.C. Arrest without warrant Section 55 of Cr.P.C. Arrest without warrant by subordinate officer Section 75 of Cr.P.C. Arrest during execution of warrant Uttar Pradesh (J) 2013 Question - When a Magistrate arrest a person without warrant, is he required to inform the person arrested of the grounds of such arrest? If so under which provision of Criminal Procedure Code? Explain. Answer – R.V. Kelkar – According to R.V.Kelkar - A magistrate is authorized to arrest under section 44. The right to be informed of the grounds of arrest is recognised by sections 50, 55 and 75 of Cr.P.C. If the arrest is made without warrant under section 44 the case is neither covered by sections 50, 55 and 75 nor any other provisions of Cr.P.C. But this lacuna can be ratified by Article 22 of the Constitution. This Article deals with right of the arrest person to be informed ground of arrest and this right is available against every person including Magistrate. According to my opinion – Section 50 says “Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.” Under the category of ‘other person’. Magistrate will come. Section 46 also says…. In making an arrest the police officer or other person. Mode of arrest is same for all. These laws have been enacted to establish just, fair and reasonable procedure. So these sections must be liberally interpreted. Judges are also bound to arrest as per law mentioned under section 46 of Cr.P.C. (2) Right to consult legal practitioner of his choice- According to Article 22(1) arrested person shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice. Constitution (Article 22) Arrested person shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice. D.K.Basu Case The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. Section 41D of Cr.P.C When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation 83 Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, University of Delhi. (3) Right to be produced before Magistrate- According to Article 22(2) every person who is arrested and detained in custody shall be produced before the nearest magistrate. Article 22(2) Arrest in any circumstances either with or without warrant Section 56 of Cr.P.C. Arrest without warrant Section 76 of Cr.P.C. Arrest in execution of warrant (4) No detention beyond 24 hours. According to Article 22(2) arrested person shall not be detained in custody beyond 24 hours period without the authority of a magistrate. Arnesh Kumar v. State of Bihar(2014) An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 Cr.P.C. to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. Article 22(2) Arrest in any circumstances either with or without warrant Section 57 of Cr.P.C. Arrest without warrant Section 76 of Cr.P.C. Arrest in execution of warrant Code of Criminal Procedure (1) Right to be informed his friend or relative(Section 41B ) - According to section 41B every police officer while making an arrest shall inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. It was also observed in D.K.Basu Case (1996). (2) Right to meet an advocate of his choice (Section 41D) - According to section 41D when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation. It was also observed in D.K.Basu Case (1996). (3) No handcuffing without reasonable grounds – According to section 49 of Cr.P.C. the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Arrested person shall not be handcuffed without reasonable grounds. In the case of Prem Shankar Shukla v. Delhi Administration (1980) Supreme Court observed, “Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict ‘irons’ is to resort to zoological strategies repugnant to Art. 21.” If any police officer knowingly handcuffing, he will be liable under section 220 of IPC. (4)Person arrested to be informed of grounds of arrest - According to section 50 (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (5)Person arrested to be informed about right to bail - According to section 50(2) where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.