Module 13

MODULE 13
INTRODUCTION

The Code of Criminal Procedure, 1973 (the CrPC or the Code) is the procedural rule providing
the detailed procedure for punishment of offenders under substantive criminal law, and thus
enforces the Indian Penal Code, 1860, and other similar substantive criminal laws. The code
encompasses all the details about the procedure to be followed in every investigation, inquiry
and trial, for every offence under the IPC or any other law.

The CrPC, much like, its sibling, the Code of Civil Procedure, 1908 did not exist until the late
19th century. Until that point, that law of criminal procedure had varied based on region, and
there was little uniformity across the country until Criminal Procedure Code of 1882. This was
however quickly replaced by the Code of 1898. The act was amended in 1923 and then again in
1955.

This code was repealed by the Code of 1973 enacted by Parliament on 25th January, 1974 and
made effective from 1-04-1974 so as to consolidate and amend the law relating to Criminal
Procedure. It is therefore a complete code with respect to matters provided under it and therefore
must be deemed to be exhaustive. The Supreme Court has said “It is the procedure that spells
much of the difference between the rule of law and the rule of whim and caprice”1

Its purpose is to provide a process for determining the guilt of and imposing punishment on
offenders under the substantive criminal law, for example, the Indian Penal Code (I.P.C.). The
two Codes are to be read together, alongside the Indian Evidence Act, 1872. The CrPC strives to
ensure a fair trial where none of the rights of the accused are compromised nor are they
unjustifiably favoured. Furthermore, to ensure that the judge concerned hears all parties who are
relevant to the trial, their presence at the trial is obviously important. That is why an entire
chapter of the Code concerns itself with the process of ensuring the attendance of any person
concerned with the case, including an accused or a witness, through various measures, viz.
summons, warrant, proclamation and attachment of property. The latter two are used when the
former do not yield satisfactory results. Many would argue that the simplest way to ensure the



1 Iqbal v. State of Maharashtra (1975) 3 SCC 140.

presence of a person, especially an accused, would be to arrest him in all circumstances and
detain him so that his presence is beyond doubt. However, such an action would go against the
fundamental right that this Constitution provides with, the right to personal liberty under Article
21. Criminal law hinges on that right and no person can be deprived of this right unless very
cogent reasons are present which argue against his release. This is why the Code envisages both
warrant and summons to procure the attendance of persons concerned.

Therefore, though the Code majorly contains procedural provisions, implicit in such procedural
rights are underlying principles of substantive criminal law which affect the manner in which the
trial is to be conducted. Because the rights and the burdens refer with respect to criminal trials, a
special procedure is warranted. This is much like the Family Courts or the Army tribunals
employs their own set of procedures catered to the specific substantive law, and all codes do not
merely rely on the use of the Civil Procedure Code. The rights of the CrPC are rooted strongly in
general principles of law.

1.1. IMPORTANCE OF THE CRPC: - UNDERLYING PRINCIPLES

As you move forward with this module, it is important to keep in mind the goals of the CrPC go
beyond mere procedure and consolidation. The CrPC is also engaged in the balancing of rights.
The Code must balance the rights of the state to conduct investigation effectively for the
protection and well-being of those in society, but the right to conduct an investigation is
definitely not absolute. As discussed above, the Fundamental Rights enshrined within Articles 20
and 21, amongst others, protect individuals from an overbearing state. Such provisions also
employ restraints on the investigating authorities to ensure citizens are not subjected to an
autocratic rule where there is arbitrary behavior. At the same time, it must be remembered that
the CrPC does enable the police authorities to conduct investigations so that criminals may be
apprehended, tried and arrested in as fair a manner as possible. Therefore it cannot and should
not be asserted that the sole purpose is to protect the rights of individuals during the processes of
investigation, enquiry, or trial, but rather to achieve that perfect balance to maintain the well-
being of the society. Therefore, while it may seem that the Criminal Procedural Code is merely a
procedural code that students must drudge through, the underlying principles within the code are
extremely important.

1.2. OBJECT OF THE CRPC

In a nutshell: to ascertain the guilt or innocence of the accused; The CrPC seeks to provide a
machinery for the ascertainment of guilt or innocence in conjunction with the substantive
criminal law contained in the Indian Penal Code, 1860 (IPC). Thus, the CrPC was enacted to
circumscribe the different stages of criminal trial starting from the institution to the conduct and
disposal of criminal prosecutions.

1.3. SCOPE AND APPLICABILITY OF THE CODE

Section 4: Trial of offences under the Indian Penal Code and other laws − (1) All
offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into,
tried, and otherwise dealt with according to the provision hereinafter contained. (2) All
offences under any other law shall be investigated, inquired into, tried, and otherwise
dealt with according to the same provisions, but subject to any enactment for the time
being in force regulating the manner or place of investigating, inquiring into, trying or
otherwise dealing with such offences.

The jurisdiction of the ordinary criminal Courts under sub-section (1) of Section 4 is overridden
only when a “Special Act” excludes the jurisdiction of the ordinary courts to try particular cases
under the IPC by vesting such jurisdiction exclusively in a “Special” Tribunal. Where the
“Special Act” provides no special or different procedure, the procedure prescribed by the CrPC
should be followed. Examples of “Special” Acts include: Contempt of Courts Act, Foreign
Exchange Management Act (FEMA), Army Act, The Juvenile Justice (Care and Protection of
Children) Act etc.

Section 5 Saving.−Nothing contained in this Code shall, in the absence of a specific
provision to the contrary, affect any special or local law for the time being in force, or
any special jurisdiction or power conferred, or any special form of procedure prescribed,
by any other law for the time being in force.

This section does not nullify the effect of Section 4(2) but saves the special and local law from
being overridden. As an illustration: The Supreme Court has held that the right to maintenance

under Section 125 of the CrPC is not in conflict with nor does it affect the right to claim
maintenance under various personal laws (Hindu or Mohammedan); both laws stand together
(See Nandu Chand v. Chandra Kishore (1969) 3 SCC 802)

1.4. CONSTITUTION AND HIERARCHY OF CRIMINAL COURTS CLASSES OF CRIMINAL COURTS

The CrPC provides for the creation of a number of authorities who participate in the criminal
process including the criminal courts, the prosecuting authority. The code does not provide for
the institution of the police authorities or the prison authorities, as they are provided for within
the state authorities. It is important to understand several underlying principles. The hierarchy of
criminal courts is not such that the lowest courts will try all cases, and appeals move to higher
courts. Rather it is the law which is determinative in this regard, and the court of first instance is
guided by the classification of the offence. Students must refer to Schedule I of the Code to
understand the appropriate location. The highest court in the criminal process is the High Court.
The Supreme Court is a body created by the Constitution may only be approached in special
instances provided for within the Constitution itself. However the CrPC provides guiding
instances of when it can be approached.

Section 6: Besides the High Courts and the courts constituted under any law, other than this
Code, there shall be, in every State, the following classes of Criminal Courts, namely; (i) Courts
of Session; (ii) Judicial Magistrate of the first class and, in any Metropolitan area, Metropolitan
Magistrate; (iii) Judicial Magistrate of the second class; and (iv) Executive Magistrate.

1.4.1. COURT OF SESSIONS

Every State shall be a sessions division or shall consist of sessions divisions; and every sessions
division shall, for the purposes of this Code, be a district or consist of districts. The State
Government shall establish a Court of Session for every session’s division that shall be presided
over by a Judge, to be appointed by the High Court. Under the Code, every metropolitan area is a
separate sessions division and district, with the State Government being given the power to
declare any area in the State comprising “a city or town” whose population exceeds one million
to be a “metropolitan area”. In the case of Delhi, any area in the State comprising “a city or town
or part thereof” shall be a metropolitan area. A ‘Court of Sessions’ means a court that is presided
over by a Sessions Judge only, with courts being presided over by an Additional/Assistant

Sessions Judge not constituting an independent ‘Court of Sessions’. The High Court has the
power to issue a notification to hold a sitting of the Sessions Court at more than one place (See
Kehar Singh v. State (1988) 3 SCC 60, where the trial of the coconspirator in Indira Gandhi’s
assassination was held in Tihar Jail).

SEPARATION OF THE EXECUTIVE FROM THE JUDICIARY

In pre-independence India, both judicial and executive functions were performed by the same
class of Magistrates. Article 50 of the Constitution of India, 1950, clearly mandates that the State
must take steps to keep the Judiciary separate from the Executive in the public services of the
State. Thus, Section 6 of the CrPC clearly delineates the categories of Magistrates as ‘Executive’
and ‘Judicial’, with the former performing functions that are administrative and the latter
performing functions that are judicial. As criminal prosecutions are initiated by the State, it is
imperative that the judiciary is freed from any suspicion of executive control. Thus, the
independent functioning of the Judiciary is ensured as Judicial Magistrates, who are legally
qualified and trained, work under the complete supervision and control of the High Court.
Executive Magistrates perform magisterial functions allotted to the Executive, and work under
the complete supervision and control of the State Government.

1.4.2. COURTS OF JUDICIAL MAGISTRATES

In every district (not being a metropolitan area), there shall be established as many Courts of
Judicial Magistrates of the first class and of the second class, and at such places, as the State
Government may, after consultation with the High Court, by notification, specify. The High
Court must appoint a Judicial Magistrate (JM) of the first class to be the Chief Judicial
Magistrate (CJM) whose main functions are to guide, supervise and control other Judicial
Magistrates in the district in addition to trying important cases. If the jurisdiction and the powers
of the JM’s are not defined by the CJM, they shall extend throughout the district. The High Court
may also appoint Additional CJM’s and Sub-Divisional JM’s (SDJM) who shall have such
powers that the High Court may specify. The Sessions Judge shall exercise control over the CJM
who in turn exercises control over the SDJM, who in turn exercise control over the work of the

JM’s (other than Additional CJM’s) in their sub-division as the High Court may specify. The
CJM is not prohibited from taking cognizance of an offence committed within the local limits of
an area that has been assigned to another JM.

1.4.3. COURTS OF METROPOLITAN MAGISTRATES
In every metropolitan area, Courts of Metropolitan Magistrates may be established at such places
and in such number as the State Government may, after consultation with the High Court,
specify. The High Court must appoint a Metropolitan Magistrate of the first class to be the Chief
Metropolitan Magistrate (CMM) and Additional CMM’s who shall have such powers that the
High Court may specify. The High Court may define the extent of subordination of the
Additional CMM to the CMM. Sections 13 and 18 of the CrPC allow for the appointment of
those who are or have been in Government service as ‘Special’ Judicial and Metropolitan
Magistrates. These enabling provisions have been included to enable State Governments to
appoint Special Magistrates in remote areas where the available work may not justify the
appointment of a full-time Magistrate. Additionally, these Special Magistrates will ensure the
disposal of petty cases and increased access to justice for local inhabitants in remote areas who,
otherwise, would have to travel long distances to reach a Magistrate’s Court.

1.4.4. COURT OF SPECIAL JUDGE
It may be created under the Special Courts Act, 1979, and is in addition to the four types of
criminal Courts functioning under the CrPC. Under the CrPC, such a Court possesses powers
which a “Court of Original Jurisdiction” enjoys, except those powers which have been
specifically denied. The Court comes under the judicial and administrative control of the High
Court within whose jurisdiction it is created. Such Courts are created for the speedy trial of
certain offences i.e. fast-track Courts.

1.4.5. EXECUTIVE MAGISTRATES

The State Government may appoint as many persons as it thinks fit to the post of Executive
Magistrates and must appoint one of them to be the District Magistrate (DM). The State
Government may appoint any Executive Magistrate to be an Additional District Magistrate
(ADM) who will have the powers of a DM under the Code and will report directly to the State
Government. All Executive Magistrates (except the ADM) are subordinate to the DM, with all
Executive Magistrates (other than SDMs) exercising powers in a sub-division being subordinate
to the SDM, subject to the general control of the DM. The DM (subject to the control of the State
Government) may define the limits of the Executive Magistrates jurisdiction. The State
Government can also appoint ‘Special’ Executive Magistrates for particular areas or for the
performance of certain functions; they will have the same powers as ordinary Executive
Magistrates under the Code.

Usually, officers of the Revenue Department including the Indian Revenue Service (IRS) are
appointed to the post of DMs, ADMs and SDMs. Courts by which Offences are Triable Any
offence under the IPC may be tried by the High Court, Sessions Court or any other Court by
which such offence is shown in the First Schedule to be triable

1.5. COURTS BY WHICH OFFENCES ARE TRIABLE
Offences against the State, capital offences punishable with imprisonment for life, certain
counterfeiting offences, certain offences against the human body (murder, rape etc.) and arson
are triable exclusively by the Sessions Court. Under Section 26, offences of rape and gang rape,
should be tried by a Court that is presided over by a woman as long as it is practicable.

1.6. SENTENCING POWERS OF CRIMINAL COURTS

A High Court may pass any sentence authorised by law. A Sessions Judge or Additional Sessions
Judge may also pass any sentence authorised by law, but a death sentence must be confirmed by
the High Court. The CJM may not pass a death sentence, a sentence of imprisonment for life of
imprisonment for seven years or more. A Magistrate of the First Class may impose a sentence of
imprisonment for three years or less and/or a fine not exceeding rupees ten thousand. A

Magistrate of the Second Class may impose a sentence of imprisonment for one year or less
and/or a fine not exceeding rupees five thousand. The Court of the CMM has the powers of the
CJM, while that of a MM has the powers of a Magistrate of the First Class. Imposition of a term
of imprisonment in default of payment of fine is not a sentence but a penalty incurred on account
of nonpayment of fine.

1.7. FUNCTIONARIES UNDER THE CODE

1.7.1. THE POLICE
The Director-General of Police (DGP) is responsible for the administration of the police in the
State, while the District Superintendent of Police (DSP) is responsible for administration in the
districts and is under the control of the DM who is usually the ‘Collector’ of the District (See
Police Act, 1861). The underlying assumption of the CrPC is that there is a ‘police’ machinery in
place to discharge various functions under the Code. The term “police station” is defined by the
CrPC to include any post or place declared by the State Government to be a police station,
including any local area specified by the State Government. The duties of the “officer-in-charge”
of a police station (station house officer), in situations where the ranking officer is unable to
perform his/her duties, must be performed by the officer next in rank to the station house officer.
Wider powers are given to the officer-in-charge of a police station, with such an officer having to
perform duties in relation to prevention, detection and investigation of offences. Officers
superior in ‘rank’ to station house officers may exercise the same powers throughout the local
area to which they have been appointed; thus, DGP of Haryana can exercise powers throughout
the local area to which he has been appointed (i.e. Haryana).

1.7.2. PUBLIC PROSECUTOR
‘Public Prosecutors’ (PP), Additional Public Prosecutors, Assistant Public Prosecutors and
Special Public Prosecutors are appointed by either the Central or the State Government to
conduct prosecutions on behalf of the Government. Many States have appointed and continue to
appoint Police officers as Assistant Public Prosecutors resulting in the impartiality and fairness

of prosecutions being called into question. CrPC gives States the option of establishing a
‘Directorate of Prosecution’ which will be separate from, and independent of, the investigating
agency i.e. the Police Department,and consist only of legally qualified practitioners. Only a few
States such as Delhi, Haryana, Punjab, Kerala, Maharashtra and Karnataka have created separate
prosecution and investigation cadres PPs are ‘officers of the Court’, who must be detached and
must not seem to be ‘pushing’ for a conviction; they must be fair in presenting the facts of the
case; the impartiality of the PP is as important as the impartiality of the Court; they must not
suppress facts that exonerate the accused.
If the PP fails to disclose material facts that have a bearing upon the guilt or innocence of the
accused, the trial will be vitiated only if the nondisclosure amounts to a material irregularity and
causes irreversible prejudice to the accused (Sidhartha Vashisht v. State (NCT of Delhi) (2010) 6
SCC 1).

1.7.3. DEFENCE COUNSEL

Any person accused of an offence before a Criminal Court, or against whom proceedings are
instituted under the Code, may of right be defended by a pleader of his choice. Where, in a trial
before the Court of Session, the accused is not represented by a pleader, and where it appears to
the court that the accused does not have the means to engage a pleader, the court shall assign a
pleader for his defence at the expense of the State.The right to a defence is a hallmark of the
‘right to a fair trial’ guaranteed by the Constitution of India. The right to be defended by a lawyer
of one’s choice is also integral to the adversarial system of criminal trials adopted under the
Code. The Supreme Court has extended the right to free legal representation to cases where a
finding of guilt will result in a sentence of imprisonment. Where the accused is already
represented by counsel, failure to give the accused time to engage different counsel in order to
delay framing of charges does not violate Section 303 (Ashish Chadha vs. Asha Kumari AIR
2012 SC 431).

1.7.4. PRISON AUTHORITIES AND THEIR ROLE

Detention of undertrial prisoners in jail during the pendency of the proceedings. Providing the
machinery for execution of sentences imposed by the Courts. Aid to the Magistrates and the
Police

1.7.5. DUTY OF THE PUBLIC
There is a duty on the public assist Magistrates and Police. Members of the public must assist a
Magistrate or police officer “reasonably demanding” their aid under certain circumstances. These
circumstances include preventing the escape of an individual whom such Magistrate or police
officer is authorised to arrest; preventing or suppressing of a breach of the peace; preventing
damage to public property. What is “reasonable” depends upon the circumstances of each case.
Intentional omission to assist is punishable under Section 187 of the IPC.
They also have a duty to give Information of Certain Offences. “Every person” aware of the
commission/intention to commit offences such as ‘waging war against the State’, ‘offences
against public tranquility’, ‘offences relating to kidnapping’, ‘offence relating to criminal breach
of trust’, ‘offences of robbery and dacoity’ etc. has a duty to give information to the concerned
authorities. “Every person” does not include the perpetrator of the crime. When the police have
already secured information about the offence, the section is not to be invoked against any
person who omits to give information thereafter.

1.8. CLASSIFICATION OF OFFENCES
1.8.1. COGNIZABLE OFFENCES
Section 2 (c): “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.
In the case of a Cognizable Offences, Police officer can arrest alleged culprit without warrant
and can investigate into such a case without any orders or directions from a Magistrate. In the
case of a cognizable offence, it is the responsibility of the State and the police to bring the

offender to justice. ‘Police officer’ in this section means those officers as are bestowed with
unqualified power to arrest without warrant.

1.8.2. NON-COGNIZABLE OFFENCE
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 a warrant.
In such cases, police officers cannot arrest without a warrant in non-cognizable offences, nor do
they have the powers to investigate any such offence. If a Judicial Magistrate is of the view that a
non-cognizable case should be investigated into, he or she can order the police to carry out an
investigation. Non-Cognizable offences are generally considered private wrongs and prosecution
of the offender is left to the initiative of private citizens.

DISTINCTION BETWEEN COGNIZABLE AND NON-COGNIZABLE OFFENCES
There is no “test” to determine whether offence is cognizable or non-cognizable . Offences are
listed as cognizable or non-cognizable in the First Schedule of the CrPC. Generally, the more
serious the offence, the more likely it is cognizable. The seriousness depends upon maximum
punishment for the offence. Offences for which a maximum sentence in excess of three years
may be imposed are generally made cognizable. The Bombay High Court, in Rani Doshi v. State
of Maharashtra & Ors. (Unreported; 2013), has however held that a police officer can arrest a
person suspected of “drunk driving” if he refuses to subject himself to a breathalyzer test, despite
drunk-driving being non-cognizable under Section 185 of the Motor Vehicles Act, 1988. The
Bombay HC clarified that offences cannot be considered cognizable simply because they give
the police the power to arrest without a warrant.

1.8.3. BAILABLE OFFENCES AND NON-BAILABLE OFFENCES

Section 2 (a): (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;
and " non-bailable offence” means any other offence.
It is important to remember that non-bailable offences are not those for which no bail is available
– those accused of non-bailable offences may still acquire bail. If a person accused of a bailable
offence is arrested or detained without a warrant, he/she has a right to be released on bail. If a
person is arrested on a non-bailable offence, then granting of bail is left to the discretion of the
concerned authorities, and bail cannot claimed as a matter of right.

1.8.4. SUMMONS-CASE AND WARRANT CASE
Section 2: (w)"summons-case" means a case relating to an offence, and not being a
warrant-case; (x)"warrant-case" means a case relating to an offence punishable with
death, imprisonment for life or imprisonment for a term exceeding two years.

“Summons case can be tried as a warrant case if the Magistrate is of the opinion that in the
interest of justice it should be done. Similarly, if a case is tried as a warrant case but it is found
that it should have proceeded under the summons procedure, the Magistrate can use this
procedure in the midst of the case. The Magistrate, however, should indicate this by passing an
order in the Order-sheet. This has not been done by the learned Magistrate in this case. This
omission, however, is not fatal. As already stated, if a summons case is tried as a warrant case,
there is no illegality and it is a curable irregularity”
−Kishori Lal v, Mahadeo, 1993 CrLJ 1173 (All)