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Published by Enhelion, 2020-01-15 02:16:22

Module 15

Module 15




The Code does not define the term “cognizance of offence” or “taking cognizance of an
offence”, although the meaning of the term is well settled by the Courts. This is the process by
which the entire charge sheet filed by the police along with the case diary and other evidence
gathered during the course of the investigation is submitted to the magistrate to determine
whether there is an actual case at hand, or whether the charges are frivolous. Therefore the
cognizance-taking magistrate acts as a check on cases to ensure that the trial courts are not
overburdened and that the appropriate charges are framed to the appropriate trial court.

Therefore, the magistrate “applies his mind” to the suspected commission of an offence for the
purpose of proceeding to take subsequent steps (such as scrutinizing the complaint, issue of
process etc) towards inquiry and trial. When a Magistrate applies his mind for ordering an
investigation under Section 156(3) or issuing a search warrant, he cannot be said to have taken
cognizance of the offence.

“Applies His (or Her) Mind”:

“What is taking cognizance has not been defined in the Criminal Procedure Code and I
have no desire to attempt to define it. It seems to me clear however that before it can be
said that any magistrate has taken cognizance of any offence under Section 190(1)(a)
Criminal Procedure Code, he must not only have applied his mind to the contents of the
petition but he must have done so for the purpose of proceeding in a particular way as
indicated in the subsequent provisions of this Chapter - proceeding under Section 200
and thereafter sending it for inquiry and report under Section 202. When the Magistrate
applies his mind not for the purpose of proceeding under the subsequent sections of this
Chapter, but for taking action of some other kind, e.g.,ordering investigation under
Section 156(3),or issuing a search warrant for the purpose of the investigation, he cannot
be said to have taken cognizance of the offence.”

- Superintendent and Remembrancer of Legal Affairs, West Bengal v.Abani Kumar Banerjee

Section 190:

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, specially
empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon it police report of such facts;

(c) Upon information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take
cognizance under sub-section (1) of such offences as are within his competence to inquire into or
“May” Take Cognizance:

“We are unable to construe the word 'may' in Section 190 to mean 'must.' The reason is
obvious. A complaint disclosing cognizable offences may well justify a Magistrate in
sending the complaint, under Section 156(3) to the police for investigation. There is no
reason why the time of the Magistrate should be wasted when primarily the duty to
investigate in cases involving cognizable offences is with the police. On the other hand,
there may be occasions when the Magistrate may exercise his discretion and take
cognizance of a cognizable offence.”

– Gopal Dass Sindhi v. State of Assam AIR 1961 SCC 986

Any Magistrate of the First Class may take cognizance of any offence. Any Magistrate of the
Second Class, if specially so empowered by the CJM, may take cognizance of such offences as
are within his competence to inquire into or try. Except as otherwise expressly provided by the
Code or by any other law, a Sessions Court is not to take cognizance of any offence as a court of
original jurisdiction unless the case has been committed to it by a Magistrate.

Taking Cognizance After Lapse of Several Years:

“The FIR in the instant case was registered against the applicant on 7- 4-86…ground
was taken by the applicant for quashing the proceedings on the ground of delay as the
matter was initiated in 1986 and a charge was ordered to be framed in 1997.. It was for
the Court prima facie to appreciate the materials and to take cognizance and the Court
had taken cognizance and the case has reached the stage of charge-sheet and a judicial
decision has come from the court of sessions that materials were there not only for taking
cognizance but for framing charge as well. The order of cognizance and the order dated
25-6-98 are, therefore, not against the principles of law and the proceedings cannot be

– 1999 Cri LJ 1264.

Section 473: Condoning the Delay :
“Section 473 confers power on the Court taking cognizance after the expiry of the period
of limitation, if it is satisfied on the facts and in the circumstances of the case that the
delay has been properly explained and that it is necessary so to do in the interest of
justice…This discretion conferred on the Court has to be exercised judicially and on well
recognised principles. This being a discretion conferred on the Court taking cognizance,
where-ever the Court exercises this discretion, the same must be by a speaking order,
indicating the satisfaction of the Court that the delay was satisfactorily explained and
condonation of the same was in the interest of justice...”

- State of H.P. v. Tara Dutt (2000) 1 SCC 230

Section 191: Transfer of Case: When a Magistrate takes cognizance of an offence under clause
(c) of sub-section (I) of section 190, the accused shall, before any evidence is taken,be informed
that he is entitled to have the case inquired into or tried by another Magistrate,and if the accused
or any of the accused, if there be more than one, objects to further proceedings before the
Magistrate taking cognizance,the case shall ba transferred to such other Magistrate as may be
specified by the Chief Judicial Magistrate in this behalf..

A failure to tell the accused of his right to be tried by another Magistrate is an illegality that
vitiates the trial. Further the refusal of the accused’s person’s request for transfer is illegal.
Section 195(1)(a): Prosecution for Contempt of Lawful Authority of Public Servants:
After reading the section, consider the following case:
Tejpal is one of the seven inmates at Vasco's Sada sub jail,located 35 km from here, who were
found with a mobile phone during a surprise raid on Sunday (Feb 23). Tejpal,police said,was
booked late Thursday under Sections 120 (b), 130 and 188 IPC and violation of other sections of
the Prison Act.
Chief Minister Manohar Parrikar said Tejpal's prison cell was raided following a tip-off by
journalists based in Delhi, who informed the government about the Tehelka founder making calls
to the national capital every morning.

Section 195(1)(b): Prosecution for documents given as False Evidence:
In order to take cognizance of offences relating to fabricating false evidence, false statement
submitted in any Court etc., a complaint in writing of that Court, or of some other Court to which
that Court is subordinate is required. The purpose of this section is to bar private prosecutions
where the course of justice is sought to be perverted, leaving it to the court itself to uphold its
dignity and prestige.

Section 196(1): Prosecution for Offences against the State: The prior Sanction of the Central or
State Government is mandatory in such cases

Section 196(2): Prosecution for the Offence of Criminal Conspiracy:
No court shall take cognizance of the offence of any criminal conspiracy punishable under
section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit

3[an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term
of two years or upwards, unless the State Government or the District Magistrate has consented in
writing to the initiation of the proceeding:

Provided that where the criminal conspiracy is one to which the provisions of section 195 apply,
no such consent shall be necessary.

Prosecution of Judges and Public Servants:

When any person who is or was a Judge or Magistrate or a public servant not removable from his
office save by or with the sanction of the Government is accused of any offence alleged to have
been committed by him while acting or purporting to act in the discharge of his official duty no
court shall take cognizance of such offence except with the previous sanction.

"Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required
in case of a public servant accused of any offence alleged to have been committed under section
166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D,
section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509
of the Indian Penal Code.

It is therefore clear that under the new rape law, there is an exception to the norm of prior
sanction required for prosecution of judges and public servants.



If a complaint is presented to a Magistrate who is not empowered to take cognizance, he shall
direct the complainant to the proper court. If Magistrate applies his/her mind to with a view to
taking subsequent steps, must examine complainant under oath and reduce it to writing under
Section 200. If complainant is a public servant/judge acting in the discharge of official duties, or
case is made over to another Magistrate under Section 192, examination under Section 200 not

The Magistrate has to determine whether there is evidence in support of the allegations made in
the complaint, and not whether the evidence is sufficient to warrant a conviction. Any Magistrate
on receipt of a complaint, may, if he thinks fit, either inquire into case himself or direct police

officer to do so. No investigation is to be directed if offence is triable exclusively by a Sessions
Court. In such offences, a broad-based enquiry is to be conducted by the Magistrate who is
required to examine all the witnesses produced by the complainant on oath.


If after considering the statements of witnesses on oath (if any) or after the investigation or
inquiry, Magistrate may dismiss the complaint if he/she is of the opinion there are no sufficient
grounds for proceeding. In every such case, the Magistrate shall briefly record the reasons for
dismissing the complaint. A second complaint on same facts could be entered only if the order
was passed on an incomplete record or a misunderstanding of the nature of the complaint, or it
was manifestly absurd or unjust, or where new facts which, with reasonable diligence, have been
brought on record in previous proceedings,could not have been adduced.


No summons or warrant shall be issued against the accused under sub-section (1) until a list of
the prosecution witnesses has been filed. In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy
of such complaint.When by any law for the time being in force any process-fees or other fees are
payable, no process shall be issued until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.


(i) The police report
(ii) The first information report recorded under section 154
(iii) The statements recorded under sub-section (3) of section 161 of all persons whom the

prosecution proposes to examine as its witnesses, excluding there from any part in
regard to which a request for such exclusion has been made by the police officer
under sub- section (6) of section 173.
(iv) The confessions and statements, if any, recorded under section 164.
(v) Any other document or relevant extract thereof forwarded to the Magistrate with the
police report under sub-section (5) of section 173.

When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by
the Court of Session, he shall-
(a) Commit, after Complying with the provisions of section 207 or section 208 (relating to
supply of copies of statements),as the case may be, the case to the Court of Session, and subject
to the provisions of this code relating to bail, remand the accused the custody until Such
commitment has been made;
(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during,
and until the conclusion of the trial;
(c) Send to that Court the record of the case and the documents and articles, if any, which are to
be produced in evidence;
(d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a
complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial
held by him, that an investigation by the police is in progress in relation to the offence which is
the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of
such inquiry or trial and call for a report on the matter from the police officer conducting the
(2) If a report is made by the investigating police officer under section 173 and on such export
cognizance of any offence is taken by the Magistrate against any person who is an accused in the
complaint case, the Magistrate shall inquire into or try together the complaint case and the case
arising out of the police report as if both the cases were instituted on a police report.

3.5. BAIL – CHAPTER 33

Bail is an important concept within the CrPC and is continously present. it is given to those
accused who have been detained but are conditionally released, whether before trial or during it.
The purpose of Bail is to ensure that the detainee be readily available for investigation when
required and therefore the appropriate conditions are given. Keeping in mind this purpose, Bail is
rarely granted in those cases where the offence is grave and serious, there is history or possibility
of a repeated offence, there is possibility of tampering with evidence or witnesses, possibility of
escape or similar situation.

3.5.1. The Origins of “Bail”:

The concept of bail has a long history and deep roots in English and American law. In medieval
England, the custom grew out of the need to free untried prisoners from disease-ridden jails
while they were waiting for the delayed trials conducted by travelling justices. Prisoners were
bailed, or ‘delivered’, to reputable third parties of their own choosing who accepted
responsibility for assuring their appearance at trial. If the accused did not appeal, his bailor
would stand trial in his place.

3.5.2. The Concept of “Bail”:

“Bail” remains an undefined term in CrPC. Nowhere else has the term been statutorily defined.
Conceptually, it continues to be understood as a right for assertion of freedom against the State
imposing restraints…The dictionary meaning of the expression “bail” denotes a security for
appearance of a prisoner for his release…Bail may thus be regarded as a mechanism whereby the
State devolutes upon the community the function of securing the presence of the prisoners,and at
the same time involves participation of the community in administration of justice.”- Vaman
Narain Ghiya v. State of Rajasthan (2009) 2 SCC 281

3.5.3. Freedom of the Individual vs. The Interests of Justice:

“Personal liberty is fundamental and can be circumscribed only by some process sanctioned by
law…A balance is required to be maintained between the personal liberty of the accused and the
investigational right of the police. It must result in minimum interference with the personal
liberty of the accused and the right of the police to investigate the case. It has to dovetail two
conflicting demands, namely,on the one hand the requirements of the society for being shielded
from the hazards of being exposed to the misadventures of a person alleged to have committed a

crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of
innocence of an accused till he is found guilty.”

- Vaman Narain Ghiya v. State of Rajasthan (2009) 2 SCC 281

3.5.4. The Basic Rule when Exercising Discretion = Bail, Not Jail:
“The basic rule may perhaps be tersely put as bail, not jail,except where there are circumstances
suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in
the shape of repeating offences or intimidating witnesses and the like, by the petitioner who
seeks enlargement on bail from the Court. We do not intend to be exhaustive but only

- State of Rajasthan v.Balchand, (1977) 4 SCC 308

3.5.5. Bail and Article 21:
“…under the criminal laws of this country,a person accused of offences which are non-bailable,
is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in
accordance with law. Such detention cannot be questioned as being violative of Article 21 of the
Constitution, since the same is authorized by law. But even persons accused of non- bailable
offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution
has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to
be recorded that in spite of the existence of prima facie case, there is need to release such
accused on bail, where fact situations require it to do so”
- Kalyan Chandra Sarkar Vs. Rajesh Ranjan (2005) 2 SCC 42
3.5.6. Consequences of Pre-Trial Detention:
“The consequences of pre-trial detention are grave. Defendants’ presumed innocent are subjected
to the psychological and physical deprivations of jail life, usually under more onerous conditions
than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is

prevented from contributing to the preparation of his defence. Equally important, the burden of
his detention frequently falls heavily on the innocent members of his family.”

- Moti Ram v. State of M.P.,(1978) 4 SCC 47

3.5.7. Bail Provisions in the CrPC:

The law relating to bail is contained in sections 436 to 450 of chapter XXXIII of the Code of
Criminal Procedure, 1973. Section 436 deals with situation, in what kind of cases bail should be
granted. Section 436 deals with the situation when bail may be granted in case of a bailable
offence. Section 439 deals with the special powers of the High Court or the Court of Sessions
regarding grant of bail. Under sections 437 and 439 bail is granted when the accused or the
detenu is in jail or under detention. Section 438 deals with situations where the Courts of Session
or High Court may grant ‘anticipatory bail’.

3.5.8. Section 436: Bail Where Arrestee is Accused of Non-Bailable Offence:

(1) When any person other than a person accused of a nonbailable offence is arrested or detained
without warrant by an officer in charge of a police station, or appears or is brought before a
court, and is prepared at, any, time-, while-in, the custody of such officer or at any stage of the
proceeding before such court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, [may, and shall, if such person is
indigent and in unable to furnish surety, instead of taking bail] from such person, discharge him
on his executing a bond without sureties for his appearance as hereinafter provided:

[Explanation. –Where a person is unable to give bail within a week of the date of his arrest, it
shall be a sufficient ground for the officer or the Court to presume that he is an indigent person
for the purposes of this proviso.]

3.5.9. Section 436(2): Failure to Comply with Conditions When Released Under 436(1):

(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply
with the conditions of the bail-bond as regards the time and place of attendance, the court may
refuse to release him on bail, when on a subsequent occasion in the same case he appears before
the court or is brought in custody and any such refusal shall be without prejudice to the powers

of the court to call upon any person bound by such bond to pay the penalty thereof under section
“The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute
and indefeasible right. In bailable offences there is no question of discretion in granting bail as
the words of Section 436 are imperative. The only choice available to the officer or the court is
as between taking a simple recognizance of the accused and demanding security with
surety…There is no express provision in the Code prohibiting the court from re-arresting an
accused released on bail under Section 436 of the Code.”

– Rasiklal v Kishore AIR 2009 SC 1341

3.5.10. Section 436A: Maximum Period for Which Undertrials Can be Detained:
Section 436A of the CrPC provides that in cases other than cases where death sentence is
provided, once the prisoner during the period of investigations, inquiry or trial has undergone
detention up to half of the maximum period of imprisonment specified for that offence under the
law, he should be released by the court on his personal bond with or without sureties subject to
expectations as may be recorded for reasons in writing by the court. Further, no person can be
detained during the period of investigations or inquiry or trial for more than the maximum period
of imprisonment provided for the said offence under the law.

3.5.11. Judicial Custody, Chargesheet and Bail in NonBailable Cases:
“…If an accused person fails to exercise his right to be released on bail for the failure of the
prosecution to file the charge-sheet within the maximum time allowed by the law, he cannot
contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in
the meantime the charge-sheet is filed. But on the other hand he exercises the right within the
time allowed by law and is released on bail under such circumstances, he cannot be rearrested on
the mere filing of the chargesheet.”

– Sanjay Dutt v State II,(1994) 5 SCC 410

3.5.12. Other Situations Where Granting of Bail is Mandatory in Non-Bailable Cases:

Where there are no reasonable grounds for believing accused is guilty of nonbailable offence, but
sufficient grounds for further inquiry into his/her guilt, accused shall, pending such inquiry, be
released on bail, with written reasons being recorded by Court granting bail. If the trial of a any
non-bailable offence triable by Magistrate is not concluded within 60 days from the first date
fixed for taking evidence in the case, such person shall, if he has been custody for the duration of
the aforementioned period, be released by the Magistrate, unless for reasons recorded in writing
the Magistrate directs otherwise. The accused may also be released after the trial but before the
judgment, if the court is of the opinion that the accused is not guilty of the non-bailable offence.

3.5.13. Section 437(1): When Bail May be Taken in a NonBailable Offence:

(1) When any person accused of, or suspected of, the commission of any non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station or appears or is
brought before a court other than the High Court or Court of Session, he may be released on bail,

(i) Such person shall not be so released if there appear reasonable grounds for believing that he
has been guilty of an offence punishable with death or imprisonment for life;

(ii) Such person shall not be so released if such offence is a cognizable offence and he had been
previously convicted of an offence punishable with death, imprisonment for life or imprisonment
for seven years or more, or he had been previously convicted on two or more occasions of a
cognizable offence punishable with imprisonment for three years or more but not less than seven

3.5.14. May = “Discretion” in Granting Bail in Cases of Non-Bailable Offences:

“The provisions of CrPC confer discretionary jurisdiction on Criminal Courts to grant bail to
accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it
has to be exercised with great care and caution by balancing valuable right of liberty of an
individual and the interest of the society in general.”

– Sanjay Chandra v.CBI (2012) (“2G Case”)

3.5.15. “Reasonable Grounds for Believing”:
“It has also to be kept in mind that for the purposes of granting the bail the legislature has used
the words “reasonable grounds for believing” instead of “the evidence” which means the court
dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against
the accused and that the prosecution will be able to produce prima facie evidence in support of
the charge. It is not expected,at this stage, to have the evidence establishing the guilt of the
accused beyond reasonable doubt.”

- Prahlad Singh Bhati v.NCT,Delhi,(2001) 4 SCC 280

3.5.16. Factors to be Considered When Exercising Discretion:
“(i) whether there is any prima facie or reasonable ground to believe that the accused had
committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing,if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with;and
(viii) danger,of course,of justice being thwarted by grant of bail …While a detailed examination
of the evidence is to be avoided while considering the question of bail, to ensure that there is no
prejudging and no prejudice,a brief examination to be satisfied about the existence or otherwise
of a prima facie case is necessary.”

– Sanjay Chandra v CBI

3.5.17. Decision in the 2G Case:

“The (lower) Courts have refused the request for grant of bail on two grounds: - The primary
ground is that offence alleged against the accused persons is very serious involving deep rooted
planning in which, huge financial loss is caused to the State exchequer; the secondary ground is
that the possibility of the accused persons tempering with the witnesses. In the present case, the
charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose
of cheating using as genuine a forged document. The punishment of the offence is punishment
for a term which may extend to seven years… It is, no doubt, true that the nature of the charge
may be relevant,but at the same time, the punishment to which the party may be liable, if
convicted,also bears upon the issue…

“Therefore, in determining whether to grant bail, both the seriousness of the charge and the
severity of the punishment should be taken into consideration. The grant or refusal to grant bail
lies within the discretion of the Court. The grant or denial is regulated, to a large extent,by the
facts and circumstances of each particular case. But at the same time, right to bail is not to be
denied merely because of the sentiments of the community against the accused. The primary
purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State
of the burden of keeping him,pending the trial,and at the same time, to keep the accused
constructively in the custody of the Court, whether before or after conviction, to assure that he
will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is
required.When the undertrial prisoners are detained in jail custody to an indefinite period, Article
21 of the Constitution is violated. Every person,detained or arrested,is entitled to speedy trial,the
question is: whether the same is possible in the present case…

There are seventeen accused persons. Statement of the witnesses runs to several hundred pages
and the documents on which reliance is placed by the prosecution, is voluminous. The trial may
take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail
longer than the period of detention, had they been convicted. It is not in the interest of justice that
accused should be in jail for an indefinite period. No doubt, the offence alleged against the
appellants is a serious one in terms of alleged huge loss to the State exchequer; that, by itself
should not deter us from enlarging the appellants on bail when there is no serious contention of
the respondent that the accused, if released on bail, would interfere with the trial or tamper with

evidence.We do not see any good reason to detain the accused in custody, that too, after the
completion of the investigation and filing of the chargesheet…

We are conscious of the fact that the accused are charged with economic offences of huge
magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize
the economy of the country. At the same time, we cannot lose sight of the fact that the
investigating agency has already completed investigation and the charge sheet is already filed
before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be
necessary for further investigation. We are of the view that the appellants are entitled to the grant
of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.”-
– Sanjay Chandra v.CBI (2012) 1 SCC 40.

3.5.18. Section 437(1) (i) and The Case of Kanimozhi:

(i) Such person shall not be so released if there appear reasonable grounds for believing that he
has been guilty of an offence punishable with death or imprisonment for life;

Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released
on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:…

Rajeev Dhawan’s Lament: Bail for the ‘Rich and Famous:’ “(Kanimozhi’s) …case under the
woman exception was not considered because she came from the upper echelons of society, was
an MP and ‘therefore by no stretch of imagination can be said to be suffering from any
discrimination on the ground of being a woman’…This is fantastic.Nowhere in the CrPC is the
exception limited to exclude the well off or that the civil liberties of some women are to be
lightly regarded. Judge Saini also made light of the distinction between those charged in the main
and supplementary charge sheet. But surely this was to emphasise their co- conspiratorial role
and lesser punishments. Judge Saini made short of the CBI supporting bail in five cases. His
ultimate and real reason was that "those who continue to reap the benefits of the crime
committed do not deserve any indulgence; and any sympathy to them is not only being entirely
misplaced but also against the larger interest of society." This was even more fantastic. Judge
Saini had obviously found them prima facie guilty and, therefore, undeserving. All this runs
wholly against 'bail' being a fundamental constitutional right.”

On the Basis of “Parity” MP Kanimozhi got bail from the Delhi High Court in the 2G spectrum
allocation case on Monday on the principle of parity, with the Supreme Court having granted bail
to five corporate executives last week. She had been in jail for more than six months. In the case
of Ms. Kanimozhi, the judge took into consideration Section 437 of the Cr.PC (bail on the
ground of being a woman).:

“So far as Ms. Kanimozhi's case is concerned, she is entitled to invocation of additional ground
of being a woman as envisaged… in Section 437…. If the legislature in its wisdom has chosen
not to put any limitation on the power of the magistrate to grant bail to a specified category of
accused persons, it was incumbent [upon the Special Judge] to consider this provision liberally in
favour of the accused person Ms. Kanimozhi by the trial court, if there was no other factor
coming against the accused… To this extent, the order of the Special Judge is not sustainable,”
he said.

3.5.19. Section 437(1)(i):Death, Imprisonment for Life or for Seven Years or More:

Provided also that no person shall, if the offence allege to have been committed by him is
punishable with death, imprisonment for life, or imprisonment for seven years or more be
released on bail by the Court under this sub-section without giving an opportunity of hearing to
the Public Prosecutor.

“It is also clear that when an accused is brought before the Court of a Magistrate with the
allegation against him of an offence punishable with death or imprisonment for life, he has
ordinarily no option in the matter but to refuse bail subject, however,to the first proviso to
Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the
materials that the accused has not been guilty of such an offence. This will, however, be an
extraordinary occasion since there will be some materials at the stage of initial arrest, for the
accusation or for strong suspicion of commission by the person of such an offence…”

– Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118

3.5.20. Section 437 (3): Bail With “Conditions”:

When a person accused or suspected of the commission of an offence punishable with
imprisonment which may extend to seven years or more or of an offence under Chapter VI,

Chatter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or
conspiracy or attempt to commit, any such offence, is released on bail under subsection (1) the
Court shall impose the conditions,-

(a) that such person shall attend in accordance with the conditions of the bond executed under
this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or
suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make 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 any police officer or tamper with the evidence, and may also impose, in the
interests of justice, such other conditions as it considers necessary.

3.5.21. Bail Conditions in the 2G Case:

a. The appellants shall not directly or indirectly make any inducement,threat or promise to any
person acquainted with the facts or the case so as to dissuade him to disclose such facts to the
Court or to any other authority.

b. They shall remain present before the Court on the dates fixed for hearing of the case. If they
want to remain absent, then they shall take prior permission of the court and in case of
unavoidable circumstances for remaining absent, they shall immediately give intimation to the
appropriate court and also to the Superintendent, CBI and request that they may be permitted to
be present through the counsel.
c.They will not dispute their identity as the accused in the case.

d. They shall surrender their passport, if any (if not already surrendered), and in case, they are
not a holder of the same, they shall swear to an affidavit. If they have already surrendered before
the Ld. Special Judge, CBI, that fact should also be supported by an affidavit. e. We reserve
liberty to the CBI to make an appropriate application for modification/recalling the order passed
by us, if for any reason, the appellants violate any of the conditions imposed by this Court.


Policy behind “Anticipatory Bail” “The suggestion for directing the release of a person on bail
prior to his arrest (commonly known as “anticipatory bail”) was carefully considered by
us.Though there is a conflict of judicial opinion about the power of a court to grant anticipatory
bail, the majority view is that there is no such power under the existing provisions of the Code.
The necessity for granting anticipatory bail arises mainly because sometimes influential persons
try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes
by getting them detained in jail for some days. In recent times, with the accentuation of political
rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are
reasonable grounds for holding that a person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems no justification to require him first to
submit to custody, remain in prison for some days and then apply for bail.”

– Law Commission, 41st Report

Anticipatory Bail: A Misnomer “The term 'anticipatory bail' is a misnomer. It is not as if the bail
is presently granted by the court in anticipation of arrest. When the court grants anticipatory bail
it makes an order that in the event of arrest a person shall be released on bail. This somewhat
extraordinary power is exercised only in exceptional cases and is entrusted to the higher echelons
of the judicial service namely the court of Sessions and the High Court. ”

- Balchand Jain v. State of M.P. (1976) 4 SCC (Cri) 689

Therefore, it is only on arrest that the order granting “anticipatory bail” becomes operative

3.6.1. Section 438(1): Granting Anticipatory Bail:

(1) Where any person has reason to believe that he may be arrested on accusation of having
committed a non-bailable offence, he may apply to the High Court or the Court of Session for a
direction under this section that in the event of such arrest he shall be released on bail; and that
Court may, after taking into consideration, inter alia, the following factors, namely:- i) the nature
and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone
imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice;

(iv) where the accusation has been made with the object of injuring or humiliating the applicant
by having him so arrested, either reject the application forthwith or issue an interim order for the
grant of anticipatory bail;

3.6.2. “Reason to Believe”:
“Section 438 is a procedural provision which is concerned with the personal liberty of an
individual who is entitled to plead innocence, since he is not on the date of application for
exercise of power under Section 438 of the Code convicted for the offence in respect of which he
seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a
non-bailable offence. Use of the expression “reason to believe” shows that the belief that the
applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief ”
for which reason it is not enough for the applicant to show that he has some sort of vague
apprehension that someone is going to make an accusation against him in pursuance of which he
may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in
non-bailable offence must be capable of being examined.”

- Adri Dharan Das vs. State of W.B., (2005) 4 SCC 303

3.6.3. Procedure Relating to Grant of Anticipatory Bail:

Section 438 has been amended to the effect that the power to grant anticipatory bail should be
exercised by the Court of Session or High Court after taking into consideration certain
circumstances. If the Court does not reject the application for the grant of anticipatory bail, and
makes an interim order of bail, it should, forthwith give (‘short date’) notice to the Public
Prosecutor and Superintendent of Police and the question of bail would be reexamined in the
light of the respective contentions of the parties. The presence of the person seeking anticipatory
bail in the Court should be made mandatory at the time of hearing of the application for the grant
of anticipatory bail if, at the request of the Public Prosecutor, the Court considers it necessary in
the interests of justice.

3.6.4. Procedure Relating to Grant of Anticipatory Bail: “Sibbia” and “Mhetre”:
“The Constitution Bench in Sibbia's case (supra) has clearly observed that there is no
justification for reading into section 438 CrPC the limitations mentioned in section 437
CrPC…The proper course of action ought to be that after evaluating the averments and
accusation available on the record if the court is inclined to grant anticipatory bail then an
interim bail be granted and notice be issued to the public prosecutor. After hearing the public
prosecutor the court may either reject the bail application or confirm the initial order of granting
bail. The court would certainly be entitled to impose conditions for the grant of bail. The public
prosecutor or complainant would be at liberty to move the same court for cancellation or
modifying the conditions of bail any time if liberty granted by the court is misused. The bail
granted by the court should ordinarily be continued till the trial of the case.”

3.6.5. Section 438(2): Conditions
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may
include such conditions in such directions in the light of the facts of the particular case, as it may
thinks fit, including –

(i) a condition that the person shall make himself available for interrogation by a police officer
and when required;
(ii) a condition that the person shall not, directly or indirectly,- make 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 any police officer,
(iii) a condition that the person shall not leave India without the previous permission of the court;

(iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail
were granted -under that section.

3.6.6. Proviso to Section 438 (1) Read With Section 438(3):
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed
any interim order under this sub-section or has rejected the application for grant of anticipatory

bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the
applicant on the basis of the accusation apprehended in such application. If such person is
thereafter arrested without warrant by an officer in charge of a police station on such accusation,
and is prepared either at the time of arrest or at any time while in the custody of such officer to
give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence
decides that a warrant should issue in the first instance against that person, he shall issue a
bailable warrant in conformity with the direction of the court under sub-section (1).


(1) A High Court or Court of Session may direct.

(a) That any person accused of an offence and in custody be released on bail, and if the offence is
of the nature specified in sub-section (3) of section 437, may impose any condition, which it
considers necessary for the purposes mentioned in that sub-section;

(b) That any condition imposed by a Magistrate when releasing any person on bail be set aside or
modified: Provided that the High Court or the Court of Session shall, before granting bail to a
person who is accused of an offence which is triable exclusively by the Court of Session or
which, though not so triable is punishable with imprisonment for life, give notice of the
application for bail to the Public Prosecutor unless it is, for reasons to he recorded in writing, of
opinion that it is not practicable to give such notice.

3.7.1. “Concurrent Jurisdiction”:

“It is true that the High Court and the Court of Session have got concurrent jurisdiction to
entertain an application for grant of bail both under Sections 438 and 439 Cr. P.C. But, for that
reason, the matter cannot be left completely to the option of the accused person…Although the
High Court has concurrent jurisdiction with the Sessions Court to grant bail under either of the
aforesaid two sections, it is,according to me, desirable that the ordinary practice should be that
the lower court should be first moved in the matter, though in exceptional cases or special
circumstances, the High Court may entertain and decide an application for bail either under
Section 458 or Section 438, Cr. P. C, This is specially important because any expression of
opinion by the superior court is likely to prejudice, if not frequently, in cases few and far
between, the trial in the lower court.”

- Hajialisher v. State of Rajasthan

3.7.2. Exercising the Discretion under Section 439:

“The order of the High Court, howsoever brief it may be, should make it appear that the High
Court while forming opinion on prayer for bail was conscious of the reasons for rejection of
prayer for bail as assigned by the Sessions Court. A perusal of the impugned order of the High
Court does not show the above said requirement having been satisfied. The High Court has not
said a word as to why the reasons assigned by the Sessions Court for rejecting the prayer for bail
need to be ignored or are not relevant or why the High Court was inclined to exercise its power
favourably to the accused applicant in spite of the availability of grounds to the contrary set out
in the order of the Sessions Court…The impugned order of the High Court suffers from this

- Ram Pratap Yadav v. Mitra Sen Yadav (2003) 1 SCC 15

3.7.3. Section 389(1): Powers of Appellate Court in Granting Bail:

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be
recorded by it in writing, order that the execution of the sentence or order appealed against be
suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted
person who is convicted of an offence punishable with death or imprisonment for life or
imprisonment for a term of not less than ten years, shall give opportunity to the Public
Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the
Public Prosecutor to file an application for the cancellation of the bail.]

3.7.4. Exercising the Discretion under Section 389(1):

“The practice not to release on bail a person who has been sentenced to life imprisonment was
evolved on the basis that once a person has been found guilty and sentenced to life
imprisonment, he should not be let loose so long as his conviction and sentence are not set aside;
but the underlying postulate of this practice was that the appeal of such person would be
disposed of within a measurable distance of time so that if he is ultimately found to be innocent,

he would not have to remain in jail for an unduly long period. The rationale of this practice can
have no application where the court is not in a position to dispose of the appeal for five or six

- Kashmira Singh v. State of Punjab (1977) 4 SCC 291

Note: “Supreme Court” is not the “Appellate Court” under Section 389(1)

3.7.5. The Curious Case of “Lalu Prasad Yadav:

Lalu Prasad challenged the Jharkhand High Court's Oct 31 interim order rejecting his plea for
bail during the pendency of his appeal against the trial court order sentencing him to undergo an
imprisonment of five years and a two fines totalling to an amount of Rs.25 lakhs. Faulting the
high court order, Lalu Prasad in his petition has said that fellow accused R.K. Rana who too was
convicted for the same offence as he was and awarded five years rigorous imprisonment was
granted bail six days before his bail plea was rejected. He further said that while declining his
bail plea, the high court has "failed to exercise judicially, the discretionary power conferred on it
under Section 389 of the Code of Criminal Procedure" and it did not assign any reason for
rejecting the bail plea, he argued.

The Supreme Court overrules the “Appellate” Court: Senior advocate Ram Jethmalani appearing
for the politician, submitted Prasad had already spent 12 months behind bars, including two
months of his five-year sentence, and sought bail, saying the Jharkhand High Court before which
his appeal was pending would take at least seven to eight years to decide the case. A bench
headed by Chief Justice P Sathasivam granted bail after noting that several other similarly placed
convicts have already been granted bail in the case.

3.7.6. Section 437(5) and Section 439(2): Cancellation of Bail:

S. 437(5) Any court which has released a person on bail under sub-section (1), or sub- section
(2), may, if it considers it necessary so to do, direct that such person be arrested and commit him
to Custody.

S. 439 (2) A High Court or Court of Session may direct that any person who has been released
on bail under this Chapter be arrested and commit him to custody.

Situations Wherein Bail Can be Cancelled:

“…there are five cases where a person granted bail may have the bail cancelled and be
recommitted to jail:--(1) Where the person on bail, during the period of bail, commits the very
same offence for which he is being tried or has been convicted,and thereby proves his utter
unfitness, to be on bail…;(2) If he hampers the investigation as will be the case if he, when on
bail, forcibly prevents the search of places under his control for the corpus delicti or other
incriminating things; (3) If he tampers with the evidence, as by intimidating the prosecution
witnesses interfering with the scene of offence in order to remove traces or proofs of the crime,
etc. (4) If he runs away to a foreign country, or goes underground,or beyond the control of his
sureties;and (5) If he commits acts of violence, in revenge, against the police and the prosecution
witnesses and those who have booked him or are trying to book him.”

- The Public Prosecutor vs. GeorgeWilliams AIR 1951 Mad 1942

3.7.7. Violation of Bail Conditions in 2G Case:

The Supreme Court on Friday issued a notice to Unitech managing director Sanjay Chandra to
show cause in two weeks as to why his bail should not be cancelled. A Bench of Justices G.S.
Singhvi and S.J.Mukhopadhaya issued the notice after the CBI, in an application, sought the
cancellation of his bail on the ground that an inquiry had confirmed that he tried to sabotage the
trial in collusion with public prosecutor A.K. Singh. The CBI application said a preliminary
inquiry was registered on February 6 on the basis of a recorded conversation between Mr.
Chandra and Mr. Singh — then representing the CBI — who advised the Unitech MD about
crucial witnesses, and thereby compromised the prosecution’s strategy. "It is apparent the
freedom granted to accused by means of enlargement from custody has been misused by him and
that allowing him to continue unabated will be detrimental to the conduct of this trial and to the
greater public interest," the CBI said in its application.


3.8.1. Meaning of “Charge”

“In this Code, unless the context otherwise requires, - (b) “charge” includes any head of charge
when the charge contains more heads than one.”

Charge essentially means accusation. Whatever the nature and type of the trial, it is always for
the Court to frame the charge. In any trial of a warrant case, a formal charge in writing is
essential. In a summons case, it is sufficient if the substance of the accusation is stated to the

3.8.2. Section 211: Contents of Charge:

(1) Every charge under this Code shall state the offence with which the accused is charged.

(2) If the law that creates the offence gives it any specific name, the offence may be described in
the charge by that name only.

(3) If the law that creates the offence does not give it any specific name so much of the definition
of the offence must be stated as to give the accused notice of the matter with which he is

(4) The law and section of the law against which the offence is said to have been committed shall
be mentioned in the charge.

(5) The fact that the charge is made is equivalent to a statement that every legal condition
required by law to constitute the offence charged was fulfilled in the particular case.

(6)The charge shall be written in the language of the court.

(7) If the accused, having been previously convicted of any offence, is liable, by reason of such
previous conviction, to enhanced punishment, or to punishment of a different kind, for a
subsequent offence, and it is intended to prove such previous conviction for the purpose of
affecting the punishment which the court may think fit to award for the subsequent offence, the
fact date and place of the previous, conviction shall be stated in the charge; and if such statement
has been omitted, the court may add it at any time before sentence is passed.

Illustrations: (a) A is charged with the murder of B. This is equivalent to a statement that A’s act
fell within the definition of murder given in sections 299 and 300 of the Indian Penal Code (45 of
1860); that it did not fall within any of the general exceptions of the said Code;and that it did not
fall within any of the five exceptions to section 300, or that, if it did fall within Exception 1, one
or other of the three provisos to that exception applied to it.

(b) A is charged under section 326 of the Indian Penal Code (45 of 1860) with voluntarily
causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a
statement that the case was not provided for by section 335 of the said Code, and that the general
exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a
false property-mark. The charge may state that A committed murder, or cheating, or theft, or
extortion, or adultery, or criminal intimidation, or that he used a false propertymark, without
reference to the definition, of those crimes contained in the Indian Penal Code; but the sections
under which the offence is punishable must, in each instance, be referred to in the charge.

(d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally
obstructing a sale of property offered for sale by the lawful authority of a public servant. The
charge should be in those words.

3.8.3. Particulars as to Time, Place and Person:

(1) The charge shall contain such particulars as to the time and place of the alleged offence, and
the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as
are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of
‘money or other moveable property, it shall be sufficient to specify the gross sum or, as the case
may be, described the movable property in respect of which the offence is alleged to have been
committed, and the dates between which the offence is alleged to have been committed, without
specifying particular items or exact dates, and the charge so framed shall be deemed to be a
charge of one offence within the meaning of section 219:

Provided that the time included between the first and last of such dates shall not exceed one year.
3.8.4. Section 213: When Manner of Committing Offence Must be Stated :

When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not
accused sufficient notice of the matter with which he is charged, the charge shall also contain

such particulars of the manner is which the alleged offence was committed as will be sufficient
for that Purpose.

(a) A is accused of the theft of a certain article at a certain time and place the charge need not set
out the manner in which the theft was effected
(b) A is accused of cheating B at a given time and place. The charge must be set out the manner
in which A cheated B.

(c) A is accused of giving false evidence at a given time and place. The charge must set out that
portion of the evidence given by A which is alleged to be false.

(d) A is accused of obstructing B, a public servant, in the discharge or his public functions at a
given time and place. The charge must set out the manner obstructed B in the discharge of his

(e) A is accused of the murder of B at a given time and place. The charge need not state the
manner in which A murdered B.

(f) A is accused of disobeying a direction of the law with intent to save punishment. The charge
must set out the disobedience charge and the law infringed.

3.8.5. Alteration of Charge and Procedure Thereafter:
(1) Any court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is
not likely, in the opinion of the court to prejudice the accused in his defence or the prosecutor in
the conduct of the case the court may, in its discretion, after such alteration or addition has been
made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the
opinion of the court to prejudice the accused or the prosecutor as aforesaid, the court may either
direct a new trial or adjourn the trial for such period as may be necessary.

(5) lf the offence stated in the altered or added charge is one for the prosecution of which
previous sanction is necessary, the case shall not be proceeded with until such sanction is
obtained, unless sanction had been already obtained for a prosecution on the same facts as those
on which the altered or added charge is founded.

3.8.6. Section 217: Recall of Witnesses

Whenever a charge is altered or added to by the court after the commencement of the trial, the
prosecutor and the accused shall be allowed- (a) To recall or re-summon, and examine with
reference to such alteration or addition, any witness who may have been examined, unless the
court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the
case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or
for defeating the ends of justice; (b) Also to call any further witness whom the court may think to
be material.

3.8.7. Section 216 and 217 Read Together

“The Code of Criminal Procedure gives ample power to the courts to alter or amend a charge
whether by the trial court or by the appellate Court provided that the accused has not to face a
charge for a new offence or is not prejudiced either by keeping him in the dark about that charge
or in not giving a full opportunity of meeting it and putting forward any defence open to him, on
the charge finally preferred against him…In the present case the learned Judge of the High Court
did not intend nor did he direct a new trial;only an opportunity was given to the accused to
safeguard himself against any prejudice by giving him a opportunity to recall any witness and
adduce any evidence on this behalf…The offencewith which the appellant was charged
alternatively was the same…Therefore no prejudice was caused, nor was likely to be caused to
the accused by the amendment of the charge.”

- Kantilal v. State of Maharashtra (1969) 3 SCC 166

3.8.9. The Basic Rule (Section 218): Separate Charge for Each Distinct Offence:

(1) For every distinct offence of which any person is accused there shall be a separate charge and
every such charge shall be trie separately: Provided that where the accused person, by an
application in writing, so desires and the Magistrate is of opinion that such person is not likely to

be prejudiced thereby the Magistrate may try together all or any number of the charges framed
against such person.
(2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220,
221 and 223.
Illustration A is accused of a theft on one occasion, and of causing grievous hurt on another
occasion. A must be separately charged and separately tried for the theft and causing grievous
3.8.10. “Distinct Offence”:
“The expression 'every distinct offence' must have a different content from the expression 'every
offence' or "each offence'. A separate charge is required for every distinct offence and not
necessarily‘ for each separate offence. The question is, what is meant by 'every distinct offence' ?
'Distinct' means "not identical.' It stresses characteristics that distinguish while the word separate'
would stress the 'two things not being the same.' Two offences would be distinct if they be not in
any way inter-related. If there be some interrelation, there would be no distinctness and it would
depend on the circumstances of the case in which the offences were committed whether there be
separate charges for those offences or not.”

- Banwarilal’s Case AIR 1963 SC 1620
3.8.11. Policy Reason Behind Section 218:
“This section embodies the general law as to the joinder of charges and lays down a rule that for
every distinct offence there should be a separate charge and every such charge should be tried
separately. No doubt the object of section (218) is to save the accused from being embarrassed in
his defence if distinct offences are lumped together in one charge or in separate charges and are
tried together but the Legislature has engrafted certain exceptions upon this rule contained in
sections 219, 220, 221 and 223.”

- AIR 1954 SC 436

If the accused is to be tried in one trial upon different charges on different evidence, it is not
unlikely that the court might get prejudiced against the accused person. Thus, Section 218 aims
to avoid such a situation.

3.8.12. Section 223: Certain Persons May Be Charged Jointly:

The following persons may be charged and tried together, namely.

(a) Persons accused of the same offence committed in the course of the same transaction;

(b) Persons accused of an offence and persons accused of abetment of, or abetment to commit,
such offence;

(c) Persons accused of more than one offence of the same kind, within the meaning of section
219 committed by them jointly within the period of twelve months;

(d) Persons accused of different offences committed in the course of the same transaction;

(e) Persons accused of an offence which includes theft, extortion, cheating, or criminal
misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or
concealment of, property possession of which is alleged to have been transferred by any such
offence committed by the first-named persons, or of abetment of or attempting to commit any
such last-named offence;

(f) Persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of
1860) or either of those sections in respect of stolen property the possession of which has been
transferred by one offence;

(g) Persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860)
relating to counterfeit coin and persons accused of any other offence under the said Chapter
relating to the same coin, or of abetment of or attempting to commit any such offence; and the
provisions contained in the former part of this Chapter shall, so far as may be, apply to all such
charges: Provided that where a number of persons are charged with separate offences and such
persons do not fall within any of the categories specified in this section, the Magistrate of Court
of Session may, if such persons by an application in writing, so desire, and, if he is satisfied that
such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such
persons together.


(a) A rescues B a person in lawful custody, and in so doing causes grievous hurt to C, a
constable, in whose custody B was, A may be charged with, and convicted of, offences under
sections 225 and 333 of the Indian Penal Code (45 of 1860).

(b) A commits house-breaking by day with intent to commit adultery, and commits in the house
so entered, adultery with B’s wife. A may be separately charged with, and convicted of, offences
under sections 454 and 497 of the Indian Penal Code (45 of 1860).

(c) A entices B, the wife of C, away form C, with intent to commit adultery with B, and then
commits adultery with her. A may be separately charged with, and convicted of, offences under
sections 498 and 497of the Indian Penal Code(45 of 1860).

§ Three Offences of Same Kind within One Year May be Charged Together:
(1) When a person is accused of more offences than one of the same kind committed within the
space of twelve months from the first to the last of such offences, whether in respect of the same
person or not, he may be charged with, and tried at one trial for, any number of them not
exceeding three. (2) Offences are of the same kind when they are punishable with the same
amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any
special or local laws:

§ Offences Committed in the Course of the Same Transaction Section 220(1):

If, in one series of acts so connected together as to form the same transaction, more offences than
one are committed by the same person, he may be charged with, and tried at one trial for, every
such offence.

If persons A, B and C are tried for an offence of murder what intrinsic difficulty would there be
in trying X, Y and Z of abetment of the same offence? The transaction in which all of them have
participated is the same and the abetment by X, Y and Z of the offence committed by A, B and C
would itself establish the connection of their acts with those of X,Y and Z.

§ Same Act Falling Under Different Definitions of Offences:

Section 220(3): If the acts alleged constitute an offence falling within two or more separate
definitions of any law in force for the time being by which offences are defined or punished, the
person accused of them may be charged with, and tried at one trial for, each of such offences.

Illustration: (i) A wrongfully strikes B with a cane. A may be separately charged with and
convicted of, offences under sections 352 and 323 of the Indian Penal Code (45 of 1860).

§ Acts Forming an Offence, also Constituting Different Offences When Taken Separately
or in Groups – Section 220(4)

Several acts, of which one or more than one would by itself or themselves constitute an offence,
constitute when combined a different offence, the person accused of them may be charged with,
and tried at one trial for the offence constituted by such acts when combined, and for any offence
constituted by any one, or more, or such acts.

Illustration to sub-section (4) (m) A commits robbery on B, and in doing so voluntarily causes
hurt to him. A may be separately charged, with and convicted of offences under sections 323,
392 and 394 of the Indian Penal Code (45 of 1860).

§ Section 221: Where Offence Committed is Not Clear:

(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences
the facts which can be proved will constitute, the accused may be charged with having
committed all or any of such offences, and any number of such charges may be tried at once: or
he may be charged in the alternative with having committed some one of the said offences.

(2) It in such a case the accused is charged with one offence, and it appears in evidence that he
committed a different offence for which he might have been charged under the provisions of sub-
section (1), he may be convicted of the offence which he is shown to have committed, although
he was not charged with it.


(a) A is accused of an, Act which may amount to theft, or receiving stolen property, or criminal
breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal
breach of trust and cheating, or he may be charged with having committed theft, or receiving
stolen property or criminal breach of trust or cheating.

(b) In the case mentioned, A is only charged with theft. It appears that he committed the offence
of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal
breach of trust of receiving stolen goods (as the case may be) though he was not charged with
such offence.

(c) A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions
Court A states on oath that B never hit C. A may be charged in the alternative and convicted of
intentionally giving false evidence, although it cannot to be proved which of these contradictory
statements was false.

§ Section 222: When Offence Proved Included in Offence Charged:

(1) When a person is charged with an offence consisting of several particulars, a combination of
some only of which constitutes a complete minor offence, and such combination is proved, but
the remaining particulars are not proved, he may be convicted of the minor offence, thought he
was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor
offence, he may be convicted of the minor offence, although he is not charged with it.

(3) When a person is charged with an offence, he may be convicted of an attempt to commit such
offence although the attempt is not separately charged.

(4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where
the conditions requisite for the initiation of proceedings in respect of that minor offence have not
been satisfied.

Illustrations: (a) A is charged under section 407 of the Indian Penal Code (45 of 1860) with
criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did
commit criminal breach of trust under section 406 of that Code in respect of the property, but
that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust
under the said section 406.

(b) A is charged under section 325 of the Indian Penal Code (45 of 1860), with causing grievous
hurt. He proves that he acted on grave and sudden provocation. He may be convicted under
section 335 of that Code.

§ “Minor Offence”:

“We have perused the Trial Court’s record. We find that though charge for offence punishable
under Section 302 of IPC had been framed against appellant A-1, no such charge was framed
against appellant A-2,even with the aid of Section 34 IPC. The only charge framed against A-2
was for an offence punishable under Section 201 read with Section 34 of IPC. True that Section
222 CrPC clothes the Court with the power to convict a person of an offence which is minor in
comparison to the one for which he is charged and tried, but by no stretch of imagination,
offences under Sections 304-B and 498-A IPC, under which appellant A-2 was convicted by the
Trial Court, could be said to be minor offences in relation to that under Section 201 IPC, for
which he was charged.In fact, the three offences are distinct and belong to different categories.
The ingredients of the offences under the said Sections are vastly different. Therefore, Section
222 CrPC had no application on facts in hand.”

- Sukharam v. State of Maharashtra (2007) 3 SCC (Cri) 426.

§ Section 224: Withdrawal of Remaining Charges on Conviction on One or Several

When a charge containing more heads than one is framed against the same person, and when a
conviction has been had on one or more of them, the complainant, or the officer conducting the
prosecution, may, with the consent, of the court, withdraw the remaining charge or charges, or
the court of its own accord may stay the inquiry into, or trial of, such charge or charges and such
withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction
be set aside, in which case the said court (subject to the order of the court setting aside the
conviction) may proceed with the inquiry into, or trial of, the charge or charges so withdrawn.

§ Section 215: Effect of Errors:
No error in stating either the offence or the particulars required to be stated in the charge, and no
omission to state the offence shall be regarded at any stage of the case as material, unless the
accused was in fact misled by such error or omission, and it has occasioned a failure.

Illustration: A is charged under section 242 of the Indian Penal Code (45 of 1860), with “having,
been in possession of counterfeit coin, having known at the time when he became possessed
thereof that such coin was counterfeit,” the word “fraudulently”being omitted in the charge.
Unless it appears that A was in fact misled by this omission, the error shall not be regarded as

§ Section 464: Effect of Omission to Frame, or Absence of, or Error in Charge:

(1)No finding sentence or order by a court of competent jurisdiction shall be deemed invalid
merely on the ground that no charge was framed or on the ground of any error, omission or
irregularity in the charge including any misjoinder of charge, unless, in the opinion of the court
of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact
been occasioned, it may-

(a) In the case of an omission to frame a charge, order that a charge be framed and that the trial
be recommenced from the point immediately after the framing of the charge.

(b) In the case of an error, omission or irregularity in the charge, direct a new trial to be had upon
a charge framed in whatever manner it thinks fit: Provided that if the court is of opinion that the
facts of the case are such that no valid charge could be preferred against the accused in respect of
the facts proved, it shall quash the conviction.

§ “Prejudiced by the Charge”

“This Court has ruled in Willie (William) Slaney v. The State of Madhya Pradesh; that a mere
defect in the charge is no ground for setting aside a conviction. Procedural laws are designed to
subserve the ends of justice and not to frustrate them by mere technicalities. The object of the
charge is to give an accused notice of the matter he is charged with. That does not touch
jurisdiction. If the necessary information is conveyed to him and no prejudice is caused to him
because of the charges, the accused cannot succeed by merely showing that the charges framed
were defective…the essential question being whether the accused were prejudiced by the charge.

- Kahan Singh v. State of Haryana (1971) 3 SCC 226


b) A is charged with cheating B, and the manner in which he cheated B is set out in the charge,
or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the
transaction. The court may infer from this that the omission to set out the manner of the cheating
is not material.

(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the
charge. There were many transactions between A and B, and A had no means of knowing to
which of them the charge referred, and offered no d court may infer from such facts that the
omission to set out the manner oft was, in the case,a material error.

(d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the murdered
person’s name was Haidar Baksh, and the date of the murder was the 20th January. 1882. A was
never charged with any murder but one, and had heard the inquiry before the Magistrate, which
referred exclusively to the case of Haidar Baksh. The court may infer from these facts that A was
not misled, and that the error in the charge was immaterial.

(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh
(who tried to arrest him for that murder) on the 21st January, 1882. When charged for the murder
of Haidar Baksh, he wa tried for the murder of Khoda Baksh. The witnesses present in his
defence were witnesses in the case of Haidar Baksh. The court may infer from this thatA was
misled, and that the error was material.

§ Determining Prejudice: “Nature of the Objection and the Manner of the Defence”

“…to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a
legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the
goods of services in question may be inferred from the knowledge itself. This apart, the
prosecution has not to establish that a particular unlawful use was intended, so long as the goods
or service in question could not be put to any lawful use. Finally, when the ultimate offence
consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring
home the charge of conspiracy, that each of the conspirators had the knowledge of what the
collaborator would do so, so long as it is known that the collaborator would put the goods or
service to an unlawful use.”

- State Of Kerala vs P. Sugathan & Anr 1991 Cri LJ 2211 (Ker)

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