Module 2

MODULE 2

CRIMINAL PROCEEDINGS

2.1. OVERVIEW OF THE INVESTIGATION PROCESS

Before entering into the details of the criminal legal process, let us briefly
examine the various stages within the process in a chronological order. The
structure of the Code is not in this order, therefore, it is helpful to understand
the practical reality of proceedings.

[Sec. 154 – 159]: Firstly, a criminal trial will begin with the filing of a police
complaint to initiate an investigation. A complainant must file the complaint
to the police; the complaint may be oral, or written by the authority. If the
police complaint is cognizable, the details of the complaint are filed in a
register, and the police officer may proceed with the investigation. A
complaint which is non-cognizable is forwarded to the magistrate, who is
required to give an order to the police on whether to proceed with the
investigation or not. There are remedies within the Code if the complaint is
not accepted.

[Sec.40 – 105]: Once the police opens investigation, there are various legal
devices that the police authorities may employ to facilitate their investigation.
These include processes of arrest, summons, warrants, proclamation, remand,
inquest-proceedings, search-warrants, etc. so as to gather the appropriate
evidence to proceed with trial.

[Sec.173 – 224] Once the appropriate evidence is gathered, it is submitted to
a magistrate along with a charge sheet (all the charges the police authorities
see as relevant), and the magistrate then decides whether to forward the
complaint to the appropriate trial court or not, i.e. the magistrate either takes
cognizance of the offence or it does not. If it does, then it also frames the
charges that the accused will be tried for within the trial court. Note that the
cognizance-taking court (the magistrate in most cases) is theoretically
separate from the trial court. The former is an intermediary. It serves as a
check so that charge sheets which are frivolous are dismissed, and ensures
that the charges raised by the police are in fact the correct charges on the
facts of the case. The case is then transferred to the trial court which
examines the evidence in order to ascertain the guilt of the accused. Once
this is complete, the trial proceeds in the respective court. The CrPC sets out
different procedures for different courts.

Bail provisions are operative throughout the investigation and trial process
and apply wherever anyone is taken into custody.

2.2. INITIATION OF CRIMINAL PROCEEDINGS

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 complainant, and the police officer by
whom such report is made, shall be deemed to be the complainant.

“The scheme underlying the Code of Criminal Procedure clearly reveals that
anyone who wants to give information of an offence may either approach the
Magistrate or the officer in charge of a police station.”
- A.R. Antulay vs. R.S. Nayak (1984 ) 2 SCC 500
2.3. COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES

Section 204:(1) If in the opinion of a Magistrate taking cognizance of
an offence there is sufficient ground for proceeding, and the case
appears to be- (a) A summons-case, he shall issue his summons for the
attendance of the accused, or (b) A warrant-case, he may issue a
warrant, or, if he thinks fit, a summons, for causing the accused to be
brought or to appear at a certain time before such Magistrate or (if he
has no jurisdiction himself) some other Magistrate having jurisdiction.

2.3.1. ISSUE OF SUMMONS
The expression “sufficient ground” used in Section 204 of the Code means
that the Magistrate must be satisfied that a prima facie case has been made
out against the person accused of committing the offence. The Magistrate
need not be satisfied that the available evidence would lead to a conviction.
The Magistrate does not have to give reasons as to why he/she is accepting

one witness’s version over the other’s in making a determination as to
whether there is a prima facie case. If there is no prima facie case, Magistrate
may dismiss the complaint, but it is mandatory to record the reasons for
doing so.

2.3.2. SERVICE OF SUMMONS

Section 62: (1) Every summons shall be served by a police officer, or
subject to such rules as the State Government may make in this behalf,
by an officer of the court issuing it or other public servant.

(2) The summons shall, if practicable, be served personally on the
person summoned, by delivering or tendering to him one of the
duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required
by the serving officer, sign a receipt therefor on the back of the other
duplicate.

Section 64: Service when persons summoned cannot be found. Where
the person summoned cannot, by the exercise of due diligence be found,
the summons may be served by leaving one of the duplicates for him
with some adult male member of his family residing with him, and the
person with whom the summons is so left shall, if so required by the
serving officer, sign a receipt therefor on the back of the other
duplicate.

Section 65: Procedure when service cannot be effected as before
provided. If service cannot by the exercise of due diligence be effected
as provided in section 62…the serving officer shall affix one of the
duplicates of the summons to some conspicuous part of the house or
homestead in which the person summoned ordinarily resides, and
thereupon the court, after making such inquiries as it thinks fit, may
either declare that the summons has been duly served or order fresh
service in such manner as it considers proper.

2.3.3. ISSUE OF WARRANT

Section 87: A court may, in any case in which it is empowered by this
Code to issue a summons for the appearance of any person, issue, after
recording its reasons in writing, a warrant for his arrest-

(a)if either before the issue of summons, or after the issue of the same
but before time fixed for his appearance, the court sees reason to
believe that he has absconded or will not obey the summons; or

(b)if, at such time he fails to appear and the summons is proved to have
been duly served in time to admit of his appearing in accordance
therewith and no reasonable excuse is offered for such failure

Nothing in Section 204 is deemed to affect the provisions of Section 87.
While, in a summons case the Magistrate concerned shall issue a summons,
in a warrant case he may issue a warrant or (if he thinks fit) a summons. The
power to issue warrant is discretionary, but Magistrate must record reasons

for issuing warrant, failing which questions will be raised as to the validity of
the warrant and the arrest.
Where the order issuing the warrant did not even remotely indicate the
circumstances reflected in Section 87, the warrant is invalid and the
consequential arrest is illegal.
“…a warrant ought not to be issued where a summons can serve the purpose,
and…care should be exercised by the court to satisfy itself that upon the
materials before it, it was necessary to issue a warrant.”

- 37th Report of the Law Commission of India.

2.4. ARREST – ENSURING ACCUSED’S PRESENCE AT TRIAL
Arrest is the apprehension of a person by a “legal” authority resulting in
deprivation of his liberty. It is the most effective method of ensuring an
accused’s presence at trial, but it is neither desirable nor appropriate to use it
in each and every case.
There are two types of arrest: arrest with warrant and arrest without warrant.

2.4.1. WARRANT OF ARREST
A warrant of arrest is a written order issued and signed by a magistrate and
addressed to a police officer or some other person specifically named, and
commanding him to arrest the body of the accused person named in it. It must
clearly state the name and relevant particulars of the arrestee in addition to

specifying the offence with which he/she is charged. Issuing a warrant is left
to the discretion of the Magistrate. There are conflicting considerations:
whether accused likely to abscond vs. should not be subjected to
arrest/detention before guilt is established.

2.4.2. ‘BAILABLE’ WARRANT OF ARREST
A ‘bailable’ warrant is a warrant that includes a direction that if the person
arrested under the warrant executes a bond and gives security for his
attendance in court, he shall be released. A ‘non-bailable’ warrant is any
warrant other than a ‘bailable’ warrant. A ‘bailable’ warrant can be issued
both in the case of bailable and non-bailable cases;

2.4.3. SECTION 73 (1)
“Since warrant is and can be issued for appearance before the Court only
and not before the police and since authorisation for detention in police
custody is neither to be given as a matter of course nor on the mere asking of
the police, but only after exercise of judicial discretion based on materials
placed before him, (Counsel for the State) was not absolutely right in his
submission that warrant of arrest under Section 73 of the Code could be
issued by the Court solely for the production of the accused before the police
in aid of investigation.”
- State through CBI v.Dawood Ibrahim Kaskar 1997 SCC (Cri) 636.

2.4.4. THE NARAYAN SAI CASE.

The accused was booked under various IPC sections including rape,
unnatural sex, molestation etc.. The Gujarat High Court (HC) quashed the
non-bailable warrant (NBW) issued against Sai, as it was ‘bad in law’ as his
bail application was pending. As the NBW was quashed, Sai was never an
absconder and Section 73 (1) could not be invoked.

2.4.5. EXECUTING A WARRANT OF ARREST

Section 78: Warrant forwarded for execution outside jurisdictions

(1) When a warrant is to be executed outside the local jurisdiction of
the Court issuing it, such court may, instead of directing the warrant to
a police officer within its jurisdiction, forward it by post or otherwise
to any Executive Magistrate or District Superintendent of Police or
Commissioner of Police within the local limits of whose jurisdiction it
is to be executed; and the Executive Magistrate or District
Superintendent or Commissioner shall endorse his name thereon, and if
practicable, cause it to be executed in the manner hereinbefore
provided.

(2) The Court issuing a warrant under sub-section (1) shall forward,
along with the warrant, the substance of the information against the
person to be arrested together with such documents, if any, as may be
sufficient to enable the Court acting under section 81 to decide whether
bail should or should not be granted to the person.

2.4.6. PROCLAMATION AND ATTACHMENT- SECTIONS 82 AND 83

Only in cases where a warrant of arrest has been issued against an accused
person and there are reasons to believe that the accused person has absconded
or is concealing himself to avoid the execution of the warrant, can the court
publish a written proclamation under Section 82, requiring such person to
appear before it and attach his property under Section 83. If the accused
person fails to appear before the Court even after an order of proclamation,
the attached property may be sold by the State. It has been held by the
Allahabad High Court that unless 30 days have passed since the issuance of
the proclamation under Section 82, no attachment may be ordered under
Section 83.

2.4.7. ARREST WITHOUT WARRANT

Previously, a police officer was vested with the power to arrest a person
without a warrant or without an order from a magistrate when a person had
been, or was suspected to have been, concerned in a cognizable offence.

Under Section 41 (1) (a), as substituted by Criminal Amendment Act 2008, a
police officer may arrest any person who commits a cognizable offence in
his/her presence. Under Section 41 (b), as substituted by Criminal
Amendment Act 2008, the police may arrest any person against whom a
reasonable complaint has been made, or credible information has been

received, or a reasonable suspicion exists that he/she has committed a
cognizable offences punishable by a term of imprisonment of 7 years or less.

Conditions to be satisfied under Section 41 (1) (b)-
i. Arrest is necessary to prevent commission of further offences.
ii. Arrest is necessary to conduct a proper investigation to prevent the
tampering of evidence by the arrestee.
iii. Arrest is necessary to prevent the arrestee from making any
inducement /threat/promise to any person so as to restrain him from
disclosing facts/giving information related to the case to the police
and/or Magistrate;
iv. Arrest is necessary to ensure the presence of the accused in court.

Under Section 41 (1) (ba), as inserted by Act 5 of 2009, a person may be
arrested without a warrant by a police officer who has reason to believe, on
the basis of credible information received against that person, that he has
committed a cognizable offence punishable with imprisonment exceeding
seven years or with death.

“Credible Information or Reasonable Suspicion”: This depends on the facts
of each case. There must be an honest belief in the mind of the police officer
receiving such information that a cognizable offence has been committed.
The existence of the warrant is equivalent to credible information, and it does

not matter that the warrant was not addressed to the officer in question. Mere
registration of the FIR may not be sufficient to give rise to a ‘reasonable
suspicion’.

Section 42: Arrest on Refusal to give Name and Address: If name and
address of the offender is previously known to the police officer, this section
cannot be invoked.

Section 43: Arrest by a Private Person without a Warrant.

Section 44: Arrest by Magistrate:

Under Section 44(1) Magistrate himself has been given power to arrest a
person who has committed an offence in his/her presence and commit that
person to custody. Under Section 44(2), a Magistrate can arrest a person
suspected of committing an offence, but cannot commit that person to
custody; person should be produced before another Magistrate for obtaining
an order of remand to custody.

2.4.8. MAKING AN ARREST – SECTION 46

An ‘arrest’ consists of taking a person into ‘custody’ under authority
empowered by law, for the purpose of holding or detaining him to answer a
criminal charge and/or preventing the commission of a criminal offence.
Actual seizure or touch of a person’s body with a view to arresting is
necessary. If the movement of a detainee is restricted within the premises of
the police station, it is an arrest.

Section 46 (4):Arrest of Female Persons: Arresting authority must make all
possible arrangements to ensure presence of woman constable. If such
presence cannot be assured without causing prejudicial delay to the
investigation, arrest may be effected by male officer for lawful reasons at any
time of the night or day. Reasons for doing so must be recorded.

2.4.9. POST-ARREST PROCEDURES

There can be search of arrested person under Section 51, but only if arrested
person is not released on bail. The police officer making the arrest may
search such person and place in safe custody all articles, other than necessary
wearing apparel, found upon the person and submit a receipt showing the
articles taken. There can also be seizure of offensive weapons under Section
52 by any person making an arrest under the CrPC.

Medical Examination of Accused – Section 53: Medical examination of
arrested person under Section 53 when a request is made by a police officer
not below the rank of sub-inspector, on bona-fide (reasonable) grounds that
such an examination of the arrested person by a medical practitioner will
afford evidence as to the commission of the offence. Merely undergoing a
medical examination does not violate the privilege against self-incrimination.
The section permits the use of force as is reasonably necessary.

Medical Examination of Rape Accused - Section 53A: Provides statutory
sanction to the medical examination of rape accused. The prosecution must
order medical practitioner to conduct an examination and compile a report

furnishing details regarding age of the accused, marks/injuries on the body, a
description of material taken from person of accused for DNA profiling etc.

2.5. RIGHTS OF ARRESTED PERSONS TO BE INFORMED OF GROUNDS OF
ARREST/RIGHT TO BAIL

Under Article 22 (1) of the Constitution: “No person who is arrested shall be
detained in custody without being informed, as soon as may be, of the
grounds for such arrest…”.

Under 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.“Forthwith” under Section 50 (1) creates a stricter duty on the part of
the police officer making the arrest and would mean ‘as soon as possible’.

The arrested person must be informed of the bare necessary facts leading to
his arrest i.e. in respect of whom, date, time and place of offence, with the
burden of proving compliance under Article 22 (1) and Section 50 (1) on the
prosecution.

Under Section 50 (2), arrestee is to be informed of right to bail in bailable
offences.

Section 41B, 50A and 54 were enacted following the case of D.K. Basu v.
State of W.B. Under Section 41B, a memorandum of arrest is to be attested by
a member of the arrestee’s family or a respected member of the locality.
There is a duty on the police officer to inform arrestee that he has the right to

have a relative or friend named by him to be informed of the arrest. Section
50A casts an obligation on the police to inform the person so named by the
arrestee about the place where the arrestee is being held. Under Section 54, it
is obligatory for the arresting authority to ensure that the arrestee is examined
by a medical officer even is it is against the wishes of the arrestee.

Under Section 55A, there is a duty on the person having custody of the
accused to take reasonable care of the health and safety of the accused.

Sections 56, 57, 76 create a right to be brought before a Magistrate within 24
hours of arrest. Under Section 56, person arrested should be produced before
Magistrate or officer in charge of police station without delay. Under Section
57, person arrested without a warrant is not to be detained for more than
twenty-four hours, unless authorised by a special order of the Magistrate.
Under Section 76, person arrested under a warrant is not to be detained for
more than twenty-four hours, unless authorised by a special order of the
Magistrate.

It should be noted that production after 24 hours does not render the custody
illegal. Detention beyond 24 hours may be ordered by the Magistrate (this is
known as ‘remand’ and is discussed further ahead.)

Rationale behind these protections are as follows:

(i) to prevent arrest and detention as a means of extracting
confessions/information.

(ii) to prevent the use of police stations as prisons.

(iii) to afford an early recourse to a judicial officer independent of the
police on all questions of bail and discharge.

Right to Legal Counsel: Under 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 the interrogation.
Under Article 22(1) (of the Constitution, the arrestee has the ‘right to consult,
and be defended by, a legal practitioner of his choice’. Under Article 21,
there is a constitutional mandate to provide free legal aid from the time of
appearance before the Magistrate right to the trial.
Unless refused, failure to provide free legal aid to an indigent accused would
vitiate the trial entailing setting aside of the conviction and the sentence – Suk
Das v. Union Territory of Arunachal Pradesh (1986) 2 SCC 40.

2.5.1. NON-COMPLIANCE BY POLICE AUTHORITIES
Whether police officer making the arrest was acting within or beyond his
powers in effecting the arrest will not affect the innocence or guilt of the
accused. Thus, illegality or irregularity in making an arrest would not vitiate
the trial of the arrested person. Police officer may, however, be prosecuted
for wrongful confinement under Section 220 IPC and expose himself/herself
to a civil suit for false imprisonment.

Note: To determine whether an irregularity in the investigation or trial
process will make the trial or investigation void, students must refer to
Section 460 of the CrPC. Section 460 creates a list of those irregularities in
the proceeding which will make the proceeding void, and those which will
not. In those instances where proceedings are not void, or are not listed as
void, the failure to follow proceedings is not entirely ignored. Irregularities
which do not vitiate proceeding are considered by the trial court when
examining the veracity of the evidence placed by the prosecuting authority,
and will cast shadows of doubt on the claim of the prosecution.

2.6. PROCESSES TO COMPEL THE PRODUCTION OF THINGS
2.6.1. SECTION 91 (1)
Whenever any Court or any officer in charge of a police station considers that
the production of any document or other thing is necessary or desirable for
the purposes of any investigation, inquiry, trial or other proceeding under this
Code by or before such Court or officer, such Court may issue a summons, or
such officer a written order, to the person in whose possession or power such
document or thing is believed to be, requiring him to attend and produce it, or
to produce it, at the time and place stated in the summons or order.

2.6.2. SEARCH WARRANT UNDER SECTION 93
A search warrant is a written authority given to a police officer or other
person by a competent Magistrate or court for the search of any place, either

generally or for specified things or documents (or for persons wrongfully
detained). A search being a coercive method and involving an invasion of the
sanctity and privacy of a citizen’s home, the power to issue a search warrant
should be exercised with due care and circumspection.

2.6.3. SEARCH BY POLICE OFFICER UNDER SECTION 165

If the document(s) or thing(s) required for investigation are likely to be
found at a place and the Investigating Officer has reason to believe that such
documents or things cannot otherwise be obtained without undue delay, such
Officer may, after recording in writing the grounds of his belief and
specifying in such writing so far as possible, the document(s) or thing(s) for
which search is to be made, conduct a search of a place or dwelling u/s 165
CrPC for such document or thing. Copies of record made are to be sent
immediately to the nearest Magistrate.

The search shall, if practicable, be made by the Officer himself, but if he is
unable to conduct the search in person, he may, after recording in writing his
reasons for so doing, require any officer subordinate to him, by an order in
writing to make the search, with such order specifying the places to be
searched and as far as possible, the thing or document for which search is to
be made.

2.6.4. SECTION 100: GENERAL PROVISIONS RELATING TO SEARCHES

Use of force is permitted when denied ingress/entry. The search of individual
suspected of concealing about his person any article for which search should
be made must be conducted in the presence of two respected and

independent inhabitants of the locality. A nominee of the occupant is
permitted to witness the search.

House Searches (CBI Manual): House searches may be conducted only when
essential in the interest of the investigation of the case, after obtaining
permission from the Competent Authority, who permitted registration of the
case. In every case, wherein the Investigating Officer desires to search a
house or dwelling Unit, he will record in his Case Diary the reasons for doing
so. A house or dwelling Unit must not be searched, unless there are definite
reasons to believe that certain specific things or documents required for the
investigation of the case will be found there. The number of places to be
searched should be kept at the bare minimum.

2.6.5. SEIZURE UNDER SECTION 102

Under Section 102 (1), any police officer may seize any property which may
be alleged or suspected to have been stolen or which may be found under
circumstances which create suspicion of the commission of any offence.
Seizure under Section 102 means actually taking possession of property at a
particular moment in pursuance of a legal process.

2.6.6. CONSEQUENCES OF ILLEGAL SEARCH & SEIZURE

The Supreme Court has held that even if the search is illegal, it will not affect
the validity of the seizure or the investigation or the validity of the trial. Non-
Compliance with the search procedure would render the entry unlawful. Such
a person making an unlawful entry can be sued civilly for trespass, and also

be subject to such force as is legally justifiable in defence of property and
person.

2.7. INVESTIGATION

Investigation includes all proceedings under the Code, for the collection of
evidence conducted by a police officer or by any person other than a
Magistrate, who is authorised by the Magistrate in this behalf.

The object of an investigation is to find out if the alleged offence has been
committed and if so, who has committed it.

2.7.1. STAGES OF “INVESTIGATION

As held by the Supreme Court in H.N. Rishbud V. State of Delhi, the
investigation generally consists of the following steps:

(i) Proceeding to the spot;
(ii) Ascertainment of the facts and circumstances of the case;
(iii) Discovery and arrest of the suspected offender;
(iv) Collection of evidence relating to the commission of the offence

which may consist of:
a. the examination of various persons (including the accused) and

the, reduction of their statements into writing, if the Officer
thinks fit,
b. the search of places or seizure of things considered necessary for
the investigation and to be produced at the trial;

(v) Formation of the opinion as to whether on the material collected
there is a case to place the accused before a Magistrate for trial, and
if so, taking necessary steps for the same by filing of a charge-sheet.

2.7.2. FIRST INFORMATION REPORT (FIR)

Section 154 (1): Information in Cognizable Cases Every information
relating to the commission of a cognizable offence, if given orally to an
officer in charge of a police station, shall be reduced to writing by him
or under his direction, and be read over to the informant; and every
such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance
thereof shall be entered in a book to be kept by such officer in such
form as the State Government may prescribe in this behalf: …

Though, not mentioned in the CrPC, but it is understood to mean information
given to a police officer and recorded under Section 154(1). The FIR sets the
criminal law in motion and is an important document that may be utilised to
corroborate the oral evidence of the complainant at trial. Although, it is not
intended to be a catalogue of events, it is required to contain basic features of
the prosecution’s case.

2.7.2.1. EVIDENTIARY VALUE AND STATE OF MIND OF PERSON LODGING FIR:

The FIR does not constitute substantive evidence and can be used only to
corroborate or contradict its maker. It cannot be used against the maker if
he/she becomes the accused nor can it be used to corroborate or contradict

other witnesses. The mental state of the maker (usually the victim and/or
relatives/associates of the victim) has to be taken into consideration.

2.7.2.2. EFFECT OF DELAY IN LODGING FIR

Courts attach great importance to the lodging of prompt FIR as this ensures
that any possibility of the accused being falsely implicated and the witness
being tutored is minimized. However, the mere fact that FIR has been lodged
early does not rule out embellishment or falsehood in every case. Thus, no
duration of time in the abstract can be fixed as reasonable for giving
information to the police. The plausibility of the explanation for delay in
filing FIR is to be considered on a case by case basis. The normal rule that
the prosecution has to explain the delay and also prove that there is no
prejudice due to the delay, does not apply per se in rape cases.

2.7.2.3. LALITA KUMARI CASE:

Interpretation of “Shall” in s.154:

“Therefore, the context in which the word “shall” appears in Section 154(1)
of the Code, the object for which it has been used and the consequences that
will follow from the infringement of the direction to register FIRs, all these
factors clearly show that the word “shall” used in Section 154(1) needs to be
given its ordinary meaning of being of “mandatory” character. The provisions
of Section 154(1) of the Code, read in the light of the statutory scheme, do
not admit of conferring any discretion on the officer in-charge of the police
station for embarking upon a preliminary inquiry prior to the registration of

an FIR, In view of the above, we are satisfied that Section 154(1) of the Code
does not have any ambiguity in this regard and is in clear terms.”

Article 21 and Malicious Prosecution:

Conducting an investigation into an offence after registration of FIR under
Section 154 of the Code is the “procedure established by law” and, thus, is in
conformity with Article 21 of the Constitution. Accordingly, the right of the
accused under Article 21 of the Constitution is protected if the FIR is
registered first and then the investigation is conducted in accordance with the
provisions of law.

Another, stimulating argument raised in support of preliminary inquiry is that
mandatory registration of FIRs will lead to arbitrary arrest, which will
directly be in contravention of Article 21 of the Constitution.

The registration of FIR under Section 154 of the Code and arrest of an
accused person under Section 41 are two entirely different things. It is not
correct to say that just because FIR is registered, the accused person can be
arrested immediately. It is the imaginary fear that “merely because FIR has
been registered, it would require arrest of the accused and thereby, leading to
loss of his reputation” and it should not be allowed by this Court to hold that
registration of FIR is not mandatory to avoid such inconvenience to some
persons. The remedy lies in strictly enforcing the safeguards available against
arbitrary arrests made by the police and not in allowing the police to avoid
mandatory registration of FIR when the information discloses commission of
a cognizable offence.

The arrest of a person and registration of FIR are not directly and/or
irreversibly linked and they are entirely different concepts operating under
entirely different parameters. On the other hand, if a police officer misuses
his power of arrest, he can be tried and punished under Section 166.

The Authoritative Judgment:

It is true that a delicate balance has to be maintained between the interest of
the society and protecting the liberty of an individual. As already discussed
above, there are already sufficient safeguards provided in the Code 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.

Recourse if FIR not filed by Station House Officer:

In case an officer in charge of a police station refuses to exercise the
jurisdiction vested in him and to register a case on the information of a
cognizable offence reported and thereby, violates the statutory duty cast upon
him, the person aggrieved by such refusal can send the substance of the
information in writing and by post to the Superintendent of Police concerned
who if satisfied that the information forwarded to him discloses a cognizable
offence, should either investigate the case himself or direct an investigation
to be made by any police officer subordinate to him in the manner provided
by sub- section (3) of Section 154 of the Code.

Recourse may also be had s. 190 of the CrPC which allows a magistrate to
direct an enquiry. Therefore, an aggrieved individual may also approach the
magistrate.

It was held in Lalita Kumari that there is no preliminary inquiry under
Section 154 “…for offences under laws other than IPC, different provisions
can be laid down under a special Act to regulate the investigation, inquiry,
trial etc., of those offences. Section 4(2) of the Code protects such special
provisions…special provisions contained in the DSPE Act relating to the
powers of the CBI are protected also by Section 5 of the Code.”

Advantages in Making the Registration of FIR Mandatory:

The obligation to register FIR has inherent advantages:

i. It is the first step to ‘access to justice’ for a victim.
ii. 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.
iii. It also facilitates swift investigation and sometimes even prevention
of the crime. In both cases, it only effectuates the regime of law.
iv. It leads to less manipulation in criminal cases and lessens incidents
of ‘ante-dates’ FIR or deliberately delayed FIR.

2.7.3. INVESTIGATION OF NON-COGNIZABLE OFFENCES – SECTION 155

The officer, after registration of information which discloses the commission
of a non-cognizable offence, shall then refer the informant to the Magistrate.

The police have no further duty to investigate the case unless and until an
order of the Magistrate having the power to try such a case or commit the
case for trial compels them to do so. The magistrate must consider the totality
of the circumstances in determining whether it would be just and proper to
ask the police to investigate the non-cognizable offence. The Police exercise
same powers in investigating a non-cognizable case as an SHO investigating
a cognizable case (except arrest without warrant).

2.7.4. PROCEDURE TO BE FOLLOWED AFTER REGISTRATION OF FIR

“At the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence in compliance with the mandate
of Section 154(1) of the Code, the concerned police officer cannot embark
upon an inquiry as to whether the information, laid by the informant is
reliable and genuine or otherwise and refuse to register a case on the ground
that the information is not reliable or credible. On the other hand, the officer
in charge of a police station is statutorily obliged to register a case and then
to proceed with the investigation if he has reason to suspect the commission
of an offence which he is empowered under Section 156 of the Code to
investigate, subject to the proviso to Section 157.”

- Bhajan Lal Case.

2.7.5. POWER TO INVESTIGATE COGNIZABLE CASE - SECTION 156

Judiciary should not interfere in investigation unless the FIR does not prima
facie disclose a cognizable offence. It is only in cases where the police

decides not to investigate a case that a Magistrate can intervene to either
direct an investigation by the SHO or himself proceed or depute a Magistrate
subordinate to him to inquire into the case.
2.7.6. POWERS OF THE POLICE TO INVESTIGATE – SECTION 157 (1)

If, from information received or otherwise, an officer in charge of a
police station has reason to suspect the commission of an offence which
he is empowered under section 156 to investigate, he shall forthwith
send a report of the same to a Magistrate empowered to take
cognizance of such offence upon a police report and shall proceed in
person, or shall depute one of his subordinate officers not being below
such rank as the State Government may, by general or special order,
prescribe in this behalf, to proceed, to the spot, to investigate the facts
and circumstances of the case, and, if necessary, to take measures for
the discovery and arrest of the offender.
2.7.7. UNRECORDED ORAL INFORMATION
If oral information relating to the commission of the offence is given to the
officer in charge of a police station, but the same is not recorded, and the
police officer then records the statements of the witnesses at the scene of the
crime, none of these statements amount to an FIR. The FIR is the unrecorded
oral information given to the SHO.

‘FORTHWITH’

“The underpinnings of compulsory registration of FIR is not only to ensure
transparency in the criminal justice delivery system but also to ensure
‘judicial oversight’. Section 157(1) deploys the word ‘forthwith’. Thus, any
information received under Section 154(1) or otherwise has to be duly
informed in the form of a report to the Magistrate. Thus, the commission of a
cognizable offence is not only brought to the knowledge of the investigating
agency but also to the subordinate judiciary…The Code contemplates two
kinds of FIRs. The duly signed FIR under Section 154(1) is by the informant
to the concerned officer at the police station. The second kind of FIR could be
which is registered by the police itself on any 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.”

- Lalita Kumari Case.

2.7.8. INVESTIGATION WHERE NO FIR

Commencement of investigation is subject to two conditions:

(1)the police officer should have reason to suspect the commission of a
cognizable offence and;

(2)satisfy himself/herself , subjectively, as to the existence of sufficient
grounds for embarking on the investigation.

Therefore, the requirements of launching an investigation under Section 157
of the Code are higher than the requirement under Section 154 of the Code.

2.7.9. PROCEEDING WITH THE INVESTIGATION:

SHO is to proceed in person or depute a subordinate officer on his behalf to
proceed to the spot to investigate the facts and circumstances surrounding the
case. When information as to the commission of any such offence is given
against any person by name and the case is not of a serious nature, the officer
in charge of a police station need not proceed in person or depute a
subordinate officer to make an investigation on the spot. If it appears to the
officer in charge of a police station that there is no sufficient ground for
entering on an investigation, he shall not investigate the case.

2.8. EXAMINATION OF WITNESSES

2.8.1. POLICE OFFICER’S POWER TO REQUIRE ATTENDANCE OF WITNESSES –
SECTION 160(1):

Police officer is duly empowered to issue a written order requiring the
attendance before him/her of any person acquainted with the facts and
circumstances relevant to the commission of the offence under investigation.
The person to whom the order is issued must be within the limits of the police
station to which the investigating officer belongs, or within the limits of any
adjoining police station. Any person who intentionally omits to attend as
required by the investigating officer is liable to be punished under Section
174 IPC.

The police do not, however, have the power to use force to compel such a
person from attending, nor do they have the authority to arrest/detain such a

person. Exception to police’s power to require attendance by witnesses are:
men below 15 or above 65 years of age; women and differently abled
persons; evidence to be taken at residence of witness or at a place chosen by
the witness (Criminal Law [Amendment] Act, 2013).
“A bare reading of the above section makes it abundantly clear that a Police
Officer is empowered to direct any person to be present before him so as to
be available for interrogation who appears to be acquainted with the facts
and circumstances of the case provided that the said person is available
within the limits of his own or any adjoining station. The case of the
petitioner has been that he was residing in Dubai since 27th October, 1988
and so it cannot be said that he was residing within the jurisdiction of the
Investigating Officer. In these circumstances, it appears that the Investigating
Officer could not avail of the benefit of this Section.”
-Washeshwar Nath Chadha v. State.

2.8.2. POWER TO INTERROGATE – SECTION 161(1):
Police officer is given the power to orally examine any person acquainted
with the facts and circumstances of the case.

2.8.3. NANDINI SATPATHY CASE
Issues:

i. Does ‘any person’ in Section 161 include an accused person or only
a witness?

ii. Does tendency to expose a person to a criminal charge embrace
answers which have an inculpatory impact on other criminal cases
actually or about to be investigated or tried ?

iii. When does an answer self-incriminate or tend to expose one to a
charge?

Right not to self-incriminate - Article 20(3): “…for invoking the
constitutional rights against testimonial compulsion guaranteed under Art.
20(3), it is necessary that a formal accusation has been made against the party
pleading the guarantee and that it relates to the commission of an offence
which in the normal course may result in prosecution…the nature of the
accusation and its probable sequel or consequence are regarded as
important.” “Not all relevant answers are criminatory; not all criminatory
answers are confessions. Tendency to expose to a criminal charge is wider
than actual exposure to such charge…Every fact which has a nexus to any
part of a case is relevant, but such nexus with the case does not make it
noxious to the accused.”

On ‘Any Person’:

“We hold that ‘any person supposed to be acquainted with the facts
and circumstances of the case’ includes an accused person who fills
that role because the police suppose him to have committed the crime
and must, therefore, be familiar with the facts. The supposition may

later prove a fiction but that does not repel the section. Nor does the
marginal note 'examination of witnesses by police' clinch the matter. A
marginal note clears ambiguity but does not control meaning.
Moreover, the suppositions accused figures functionally as a witness.
'To be a witness', from a functional angle, is to impart knowledge in
respect of a relevant fact, and that is precisely the purpose of
questioning the accused under section 161 CrPC. The dichotomy
between ‘witnesses’and 'accused' used as terms of art,does not hold
good here.”

- Mahabir Mandal v.State of Bihar

Exposure to Self-Incrimination – Nandini Satpathy : “Let us hypothesize a
homicidal episode in which A dies and B is suspected of murder; the scene of
the crime being C. In such a case, a bunch of questions may be relevant and
yet be innocent. Any one who describes the scene as wellwooded or dark or
near a stream may be giving relevant evidence of the landscape. Likewise,
the medical evidence of the wounds on the deceased and the police evidence
of the spots where blood pools were noticed are relevant, but vis-a-vis B may
have no incriminatory force. But, an answer that B was seen at or near the
scene, at or about the time of the occurrence or had blood on his clothes will
be criminatory…Relevant replies which furnish a real and clear link in the
chain of evidence indeed to bind down the accused with the crime become
incriminatory and offend Art. 20(3) if elicited by pressure from the mouth of
the accused. If the, statement goes further to spell in terms that B killed A, it

amounts to confession…Article 20(3) strikes at confessions and self-
incriminations but leaves untouched other relevant facts.”

Right to Silence – Nandini Satpathy: “The prohibitive sweep of Art. 20(3)
goes back to the stage of police interrogation, and not, as contended,
commencing in court only. In our judgment, the provisions of Article 20(3)
and section 161(1) substantially cover the same area, so far as police
investigations are concerned. The ban on self-accusation and the right to
silence, while one investigation or trial is under way, goes beyond that case
and protects the accused in regard to other offences pending or imminent,
which may deter him from voluntary disclosure of criminatory matter. We
hold further that the accused person cannot be forced to answer questions
merely because the answers thereto are not implicative when viewed in
isolation and confirmed to that particular case. He is entitled to keep his
mouth shut if the answer sought has a reasonable prospect of exposing him to
guilt in some other accusation actual or imminent, even though the
investigation underway is not with reference to that…However, fanciful
claims, unreasonable apprehensions and vague possibilities cannot be the
hiding ground for an accused person. He is bound to answer where there is no
clear tendency to criminate.”

2.8.4. RECORDING OF STATEMENTS – SECTION 161(3):

The investigating officer may reduce into writing any statement made to him
in the course of the examination of a person. If they do so, he/she must make
a separate and true record of the statement of each such person whose
statement he records. If he/she records just one joint statement of several

witnesses during the investigation, while not rendering the witnesses
incompetent, it will affect the weight to be attached to their evidence.

Signing the Recorded Statements: Section 162 clearly mandates that “no
statement made by any person to a police officer in the course of an
investigation, shall, if reduced to writing be signed by the person making it.

The provision is intended as a statutory safeguard against improper police
practices, and a contravention will impair the value of the evidence of the
person signing it; No police officer shall prevent, by any caution or
otherwise, any person from making a statement of his own free will.

Delay in Recording Statements: The SC has held that there can be no rule of
universal application that if there is any delay in the recording the statement
of a particular witness, his or her version becomes suspect. If the explanation
offered for such delay is accepted by the Court as being plausible, there is no
prejudice caused to the accused. Further, the IO has to specifically be asked
as to what the reasons were for the delay in examination and/or recording the
statement.

2.8.5. SECTION 162: EVIDENTIARY VALUE OF STATEMENTS RECORDED BY THE
POLICE DURING COURSE OF INVESTIGATION

Such a statement can be used in the trial if the person making the statement is
examined as a prosecution witness. It, however, cannot be used if the person
making the witness is examined as a defence witness. It can be used for
contradicting the prosecution witness (by the defence or, with permission, by

the prosecution), but is not to be used for cross-examining such a witness.
Whether any omission in the written statement amounts to a contradiction is a
question of fact that varies from case to case.

2.8.6. MAINTENANCE AND USE OF “CASE DIARY”
Under the provision of Section 172, every Police Officer conducting an
investigation shall maintain a record of investigation done on each day in a
Case Diary in the prescribed Form. Case Diaries are important record of
investigation carried out by an Investigating Officer.
Any Court may send for the Case Diaries of a case under inquiry or trial in
such Court and may use such diaries, not as evidence in the case, but to aid it
in such inquiry or trial.
There is no uniform format for case diaries. The computerization of Case
Diaries of cases registered under different police stations of Bankura District
was started on a test case basis from February, 2011, to make the Case
Diaries legible, irrespective of the standard of handwriting of the I.Os, which
had been a cause of concern in the past. Courts can also rely more on legible
case diaries. Case Diaries can be easily transferred to the superior officers for
their perusal electronically.

2.9. PROCEDURE WHEN INVESTIGATION CANNOT BE COMPLETED IN 24
HOURS

2.9.1. POLICE V JUDICIAL CUSTODY

Police custody is defined as the immediate physical custody by the police of a
person who committed a crime. The person is arrested and brought to the
police station for processing and is then confined in the police station’s jail.

Judicial custody is ascribed by a judge or the court itself and is ordered by the
judge, depending on the circumstances of the case. Depending on the
situation, the judge may order the suspect back into police custody or into
judicial custody. Judicial custody is often granted if the suspect’s rights could
be at risk while in police custody. There is no interrogation of the detainee in
judicial custody without the prior permission of the judge.

2.9.2. REMAND TO CUSTODY

When an investigation cannot be completed within 24 hours despite the fact
that the accusation is well founded, the police officer is required to send the
accused and a copy of the case diary entries to the nearest Magistrate. The
object of producing the accused before the Magistrate is to determine whether
remand is necessary. When the person is produced before the Magistrate, the
Magistrate can remand the person to police or judicial custody for 15 days.
After the expiry of the first period of 15 days, further remand can only be in
judicial custody.

Remand to Judicial Custody: Remand in judicial custody shall not exceed
ninety days in cases where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term of not less than

ten years. Sixty days in cases where the investigation relates to any other
offence. The 60/90 period has to be computed from the date of detention as
per orders of the Magistrate and not from the date of arrest by the police.

Maximum Duration of Remand: There cannot be any detention in police
custody after the expiry of the 15 day period even in a case where some more
offences are found to have been committed in the same transaction at a later
stage; But, the person can be remanded to police custody from judicial
custody if the same arrested person is involved in a different case, arising out
of a different transaction.

It is not always necessary to physically produce the accused before the
Magistrate; However, accepting a rubber-stamped endorsement to the effect
that the accused could not be produced is illegal.

2.9.3. GROUNDS FOR GRANTING REMAND UNDER SECTION 167(2):

The reasons behind why detention beyond 24 hours is sought must be stated.
Some of the grounds may be:

i. The arresting officer is legally competent to make the arrest.
ii. If there is a report disclosing a cognizable offence.
iii. If a case has been registered for investigation.
iv. The particulars of the offence for which the person is arrested or

other grounds do exist and are well founded.
v. The Provisions of the Special Act in regard to the arrest of the

persons and production of the arrestee serve the purpose of Section
167(1).

2.9.4. REMAND ORDER/EXTENSION OF REMAND ORDER

A Remand Order under Section 167 is a judicial order. It must be passed on
‘application of mind’ to the contents of the remand report submitted by the
IO. The order should contain reasons for extending remand. In the absence
of any request by the police or jail authorities or in the absence of sufficient
grounds, the remand should not be extended and the Magistrate must inform
the accused that he/she can be released upon furnishing bail.

Written Reasons: Where a decision is to be taken after exercising judicial
discretion, it is generally desirable to record the reasons for the decision. In
the case of an Executive Magistrate who is authorised to remand a person for
a maximum of 7 days, it is mandated that such Magistrate can authorise
detention “for reasons to be recorded in writing”. Section 167(3) clearly
provides that a Magistrate authorising detention in the custody of the police
shall record his reasons for doing so. Any Magistrate other than the CJM
making an order of detention under Section 167(2) shall forward a copy of
his order, with reasons for making it, to the CJM.

Right to be Released on Bail: It is the duty of the Magistrate to inform the
accused that he/she has the right to be released on bail under the proviso to
Section 167(2). Notwithstanding the abovementioned period of 60/90 days,
the accused shall be detained in custody so long as he/she does not furnish
bail. On the expiry of the 60/90 days, accused’s further detention does not
ipso facto become illegal or void, but if the (final report-chargesheet) is yet to

be submitted to the Magistrate, the accused is entitled to be released on bail if
he is prepared to and furnishes bail.

Sections 167(5) and 167(6):

Section 167 (5): If in any case triable by a Magistrate as a summons-
case, the investigation is not concluded within a period of six months
from the date on which the accused was arrested, the Magistrate shall
make an order stopping further investigation into the offence unless the
officer making the investigation satisfies the Magistrate that for special
reasons and in the interests of justice the continuation of the
investigation beyond the period of six months is necessary.

Section 167 (6): Where any order stopping further investigation into an
offence has been made under sub-section (5), the Sessions Judge may,
if he is satisfied, on an application made to him or otherwise, that
further investigation into the offence ought to be made, vacate the
order made under sub-section (5) and direct further investigation to be
made into the offence subject to such directions with regard to bail and
other matters as he may specify.

2.10. PROCEDURE TO BE FOLLOWED ON COMPLETION OF INVESTIGATION

2.10.1. RELEASE OF ACCUSED

If no reasonable ground of suspicion of evidence to justify the forwarding of
the accused to a Magistrate, such police officer shall (if such person is in
custody) release him on executing a bond, with or without sureties, as such an
officer may direct, to appear, if and when so required, before a Magistrate

empowered to cognizance of the offence on a police report, and to try the
accused or commit him for trial.

2.10.2. FORWARDING ACCUSED TO MAGISTRATE – SECTION 170(1):
If, upon an investigation under this Chapter, it appears to the officer in charge
of the police station that there is sufficient evidence or reasonable ground as
aforesaid, such officer shall forward the accused under custody to a
Magistrate empowered to take cognizance of the offence upon a police report
and to try the accused or commit him for trial, or, if the offence is bailable
and the accused is able to give security, shall take security from him for his
appearance before such Magistrate on a day fixed and for his attendance from
day to day before such Magistrate until otherwise directed.

2.10.3. POLICE REPORT ON COMPLETION OF INVESTIGATION
As soon as the Investigation 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, stating:
(a) the names of the parties;
(b) the nature of the information;
(c) The names of the persons who appear to be acquainted with the
circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or
without sureties;

(g) whether he has been forwarded in custody under section 170.

Note: If the report alleges the commission of a crime by an accused person,
the report is commonly called the “charge-sheet”

2.10.4. INVESTIGATIONS, INQUESTS, AND INQUIRIES IN UNNATURAL DEATHS –
SECTION 174 - 176 :

In certain cases of special or suspicious circumstances, the executive
magistrate looks into the circumstances surrounding such death.

Section 177: Ordinary Place of Inquiry and Trial: The general rule is that
every offence shall ordinarily be inquired into and tried by a court within
whose local jurisdiction it was committed. Sections 178-184 provide for
alternative venues for inquiry and trial under certain circumstances and in
respect of certain types of offences. This is intended to minimise the
inconvenience that might be caused by strict adherence to the ‘general rule’
above. These rules are cumulative in effect so as to facilitate the prosecution
of offenders by providing a wider choice of venue for initiating the inquiry or
trial. All these rules are equally applicable for determining the jurisdiction of
the police by virtue of Section 156(1).

Section 178: Place of Inquiry or Trial:

(a) When it is uncertain in which of several local areas an offence was
committed, or

(b) where an offence is committed, partly in one local area and partly in
another, or

(c) where an offence, is a continuing one, and continues to be committed in
more local areas than one, or

(d) where it consists of several acts done in different local areas, it may be
inquired into or tried by a Court having jurisdiction over any of such local
areas.

Section 179: Offence Triable Where Act is Done or Consequence Ensues:
When an act is an offence by reason of anything which has been done and of
a consequence which has ensued, the offence may be inquired into or tried by
a Court within whose local jurisdiction such thing has been done or
consequence has ensued.

For example, if A is wounded by B in jurisdiction of Court X but dies in
jurisdiction of Court Y. The offence of culpable homicide committed by B
may be inquired into and tried by Court X or Y.

Section 180: Place of Trial Where Act is an Offence by Reason of Relation to
other Offence: When an act is an offence by reason of its relation to any other
act which is also an offence or which would be an offence if the doer were
capable of committing an offence, the first-mentioned offence may be

inquired into or tried by a Court within whose local jurisdiction either act was
done.

For example, if A gives B a knife to kill C within the local jurisdiction of
Court X and B kills C within the local jurisdiction of Court Y, the offence of
abetment by A can be inquired into by Court X or Court Y. However, if B
does not kill C, then the offence of abetment committed by A can only be
inquired into or tried by Court X.

Section 181(1): Any offence of being a thug, or murder committed by a thug,
of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of
escaping from custody, may be inquired into or tried by a court within whose
local jurisdiction the offence was committed or the accused person is found.

Section 181(2): Any offence of kidnapping or abduction of a person may be
inquired into or tried by, a court within whose local jurisdiction the person
was kidnapped or abducted or was conveyed or concealed or detained.

Section 181(3): Any offence of theft, extortion or robbery may be inquired
into or tried by a Court within whose local jurisdiction the offence was
committed or the stolen property which is the subject of the offence was
possessed by any person committing it or by any person who received or
retained such property knowing or having reason to believe it to be stolen
property.

Section 181(4): Any offence of criminal misappropriation or of criminal
breach of trust may he inquired into or tried by a court within whose local
jurisdiction the offence was committed or any part of the property which is

the subject of the offence was received or retained, or was required to be
returned or accounted for, by the accused person.

Section 181(5) Any offence which includes the possession of stolen property
may be inquired into or tried by, a court within whose local jurisdiction the
offence was committed or the stolen property was possessed by any person
who received or retained it knowing or having reason to believe it to be
stolen property.

Section 182(1) Any offence which includes cheating deception is practice by
means of letters or telecommunication message, be inquired into or tried by
any court within whose local jurisdiction such letters or message were sent or
were received; and any offence of cheating and dishonestly including
delivery, of property may be inquired into or tried by a court within whose
local jurisdiction the property was delivered by the person deceived or was
received by the accused person.

Section 182(2) Any offence punishable under section 495 or section 494 of
the Indian Penal Code (45 of 1860) may be inquired into or tried by a court
within whose local jurisdiction the offence was committed or the offender
last resided with his or her spouse by the first marriage 1 [or the wife by first
marriage has taken up permanent residence after the commission of offence].

Section 183 When an offence is committed, whilst the person by or against
whom, or the thing in respect of which, the offence is committed is in the
course of performing a journey or voyage, the offence may be inquired into
or tried by a court through or into whose local jurisdiction that person or
thing passed in the course of that journey or voyage.

Section 184 Where-

(a) The offences committed by any person are such that he may be charged
with, and tried at one trial for, each such offence by virtue of the provisions
of section 219, section 220 or section 221, or

(b) The offence or offences committed by several persons are such that they
may be charged with, and tried together by virtue of the provisions of section
223, The offences may be inquired into or tried by any court competent to
inquire into or try any of the offences.

Sections 185 and 186: The State Government may direct that any cases or
class of cases committed for trial in any district may be tried in any session’s
division.

This is an extraordinary power intended to be used only when some
consideration of public interest (e.g. maintenance of public order during the
trial of a sensational case) justifies the holding of a Sessions trial in a
different Sessions Division. Where two or more Courts have taken
cognizance of the same offence and a question arises as to which of them
ought to inquire into or try that offence, the question shall be decided by the
High Court to which the Courts are subordinate to. If the Courts are not
subordinate to the same High Court, then the High Court under whose
criminal appellate jurisdiction the proceedings were first commenced shall
adjudicate.

Section 187: When a Magistrate of the first class sees reason to believe that
any person within his local jurisdiction has committed outside such

jurisdiction (whether within or outside India) an offence which cannot, under
the provisions of sections 177 to 185 (both inclusive), or any other law for the
time being in force, be inquired into or tried within such jurisdiction but is
under some law for the time being in force triable in India, such Magistrate
may inquire into the offence as if it had been committed within such local
jurisdiction and compel such person in the manner hereinbefore provided to
appear before him, and send such person to the Magistrate having jurisdiction
to inquire into or try such offence.

Section 188:

In one case under this section, the appellant's wife argued that part of the
offence relating to dowry was committed in Indian soil and part of the
offence was committed abroad. Hence, the offence could be tried in Indian
courts. However, the appellant argued that he could not be tried without the
previous sanction from the Central government. Writing the judgment,
Justice Kabir pointed out that it was clear that the case relating to the alleged
dowry offences were committed outside India. But, since part of the offence
was committed in India, the court here could try the appellant and the High
Court was correct in rejecting his plea to quash the proceedings. The Bench
while asking the trial court to take up the case said, the trial would not
proceed without the sanction of the Central government as envisaged in
Section 188 CrPC.

2.10.5. FAILURE TO FOLLOW LOCAL JURISDICTION RULES

Although the investigative proceedings conducted by a police officer shall
not be called into question merely on the grounds of jurisdiction, the same

does not apply to the Courts. If a court which is not empowered to try a
particular offence does try that offence, the entire trial shall be void. This is
because the power to try offences is conferred by the Legislature on the
Courts keeping in mind the experience, capability and responsibility of the
Court. The higher the Court is in the hierarchy, the larger the jurisdiction over
various offences.

Section 462: A ‘Failure of Justice’: No finding, sentence or order of any
Criminal Court shall be set aside merely on the ground that the inquiry, trial
or other proceedings in the course of which it was arrived at or passed, took
place in a wrong sessions division, district, sub-division or other local area,
unless it appears that such error has in fact occasioned a failure of justice.

That being said, where the objection to the territorial jurisdiction has been
taken up before or at the time of commencement of the trial, no shelter can be
taken behind Section 462. Therefore, the complainant is not at liberty to go
“forum shopping” on the ground that no prejudice is caused to the opposite
party.