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Published by Enhelion, 2020-08-13 08:44:40

Module 1

Module 1

MODULE 1
INTRODUCTION

The Code of Criminal Procedure, 1973 (the ‘CrPC’ or the ‘Code’) is the
procedural rule providing the detailed procedure for punishment of offenders
under substantive criminal law, and thus, enforces the Indian Penal Code,
1860, and other similar substantive criminal laws. The code encompasses all
the details about the procedure to be followed in every investigation, inquiry
and trial, for every offence under the IPC or any other law.
The CrPC, much like, its sibling, the Code of Civil Procedure, 1908 did not
exist until the late 19th century. Until that point, that law of criminal
procedure had varied based on region, and there was little uniformity across
the country until Criminal Procedure Code of 1882. This was, however,
quickly replaced by the Code of 1898. The act was amended in 1923 and
then, again in 1955.
This code was repealed by the Code of 1973 enacted by Parliament on 25th
January, 1974 and made effective from 1-04-1974 so as to consolidate and
amend the law relating to Criminal Procedure. It is, therefore, a complete
code with respect to matters provided under it and must be deemed to be
exhaustive. The Supreme Court has said “It is the procedure that spells much
of the difference between the rule of law and the rule of whim and caprice”1

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

Its purpose is to provide a process for determining the guilt of and imposing
punishment on offenders under the substantive criminal law, for example, the
Indian Penal Code (I.P.C.). The two Codes are to be read together, alongside
the Indian Evidence Act, 1872. The CrPC strives to ensure a fair trial where
none of the rights of the accused are compromised nor are they unjustifiably
favoured. Furthermore, to ensure that the concerned judge hears all parties
who are relevant to the trial, their presence at the trial is obviously important.
That is why an entire chapter of the Code concerns itself with the process of
ensuring the attendance of any person concerned with the case, including an
accused or a witness, through various measures, viz. summons, warrant,
proclamation and attachment of property. The latter two are used when the
former do not yield satisfactory results. Many would argue that the simplest
way to ensure the presence of a person, especially an accused, would be to
arrest him in all circumstances and detain him, so that his presence is beyond
doubt. However, such an action would go against the fundamental rights
given under the Constitution like the right to personal liberty under Article
21. Criminal law hinges on that right and no person can be deprived of this
right unless cogent reasons are present which argue against his release. This
is why the Code envisages both- warrant and summons, to procure the
attendance of persons concerned.

Therefore, though the Code majorly contains procedural provisions, implicit
in such procedural rights are underlying principles of substantive criminal
law which affect the manner in which the trial is to be conducted. Because,
the rights and the burdens refer with respect to criminal trials, a special
procedure is warranted. This is much like the Family Courts or the Army

tribunals, which employs their own set of procedures catered to the specific
substantive law, and all codes do not merely rely on the use of the Civil
Procedure Code. The rights of the CrPC are rooted strongly in the general
principles of law.

1.1. IMPORTANCE OF THE CRPC: - UNDERLYING PRINCIPLES

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

1.2. OBJECT OF THE CRPC

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

1.3. SCOPE AND APPLICABILITY OF THE CODE

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

The jurisdiction of the ordinary criminal Courts under sub-section (1) of
Section 4 is overridden only when a “Special Act” excludes the jurisdiction
of the ordinary courts to try particular cases under the IPC by vesting such
jurisdiction exclusively in a “Special” Tribunal. Where the “Special Act”

provides no special or different procedure, the procedure prescribed by the
CrPC should be followed. Examples of “Special” Acts include: Contempt of
Courts Act, Foreign Exchange Management Act (FEMA), Army Act, The
Juvenile Justice (Care and Protection of Children) Act etc.

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

This section does not nullify the effect of Section 4(2), but saves the special
and local law from being overridden. As an illustration: The Supreme Court
has held that the right to maintenance under Section 125 of the CrPC is not in
conflict with, nor does it affect the right to claim maintenance under various
personal laws (Hindu or Mohammedan); both laws stand together (See Nandu
Chand v. Chandra Kishore (1969) 3 SCC 802).

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

The CrPC provides for the creation of a number of authorities who participate
in the criminal process, including the criminal courts, the prosecuting
authority, etc. The code does not provide for the institution of the police
authorities or the prison authorities, as they are provided for within the state
authorities. It is important to understand several underlying principles. The
hierarchy of criminal courts is not such that the lowest courts will try all
cases, and appeals move to higher courts. Rather, it is the law which is

determinative in this regard, and the court of first instance is guided by the
classification of the offence. Students must refer to Schedule I of the Code to
understand the appropriate location. The highest court in the criminal process
is the High Court. The Supreme Court is a body created by the Constitution
and may only be approached in special instances provided for within the
Constitution itself. However, the CrPC provides guiding instances of when it
can be approached.

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

1.4.1. COURT OF SESSIONS

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

over by a Sessions Judge only, with courts being presided over by an
Additional/Assistant Sessions Judge not constituting an independent ‘Court
of Sessions’. The High Court has the power to issue a notification to hold a
sitting of the Sessions Court at more than one place (See Kehar Singh v. State
(1988) 3 SCC 60, where the trial of the co-conspirator in Indira Gandhi’s
assassination was held in Tihar Jail).

SEPARATION OF THE EXECUTIVE FROM THE JUDICIARY

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

1.4.2. COURTS OF JUDICIAL MAGISTRATES

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

1.4.3. COURTS OF METROPOLITAN MAGISTRATES

In every metropolitan area, Courts of Metropolitan Magistrates may be
established at such places and in such number as the State Government may,
after consultation with the High Court, specify. The High Court must appoint
a Metropolitan Magistrate of the first class to be the Chief Metropolitan
Magistrate (CMM) and Additional CMM’s who shall have such powers that

the High Court may specify. The High Court may define the extent of
subordination of the Additional CMM to the CMM. Sections 13 and 18 of the
CrPC allow for the appointment of those who are or have been in
Government service as ‘Special’ Judicial and Metropolitan Magistrates.
These enabling provisions have been included to enable State Governments
to appoint Special Magistrates in remote areas where the available work may
not justify the appointment of a full-time Magistrate. Additionally, these
Special Magistrates will ensure the disposal of petty cases and lead to
increased access to justice for local inhabitants in remote areas who,
otherwise, would have to travel long distances to reach a Magistrate’s Court.

1.4.4. COURT OF SPECIAL JUDGE

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

1.4.5. EXECUTIVE MAGISTRATES

The State Government may appoint as many persons as it thinks fit to the
post of Executive Magistrates and must appoint one of them to be the District

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

Usually, officers of the Revenue Department including the Indian Revenue
Service (IRS) are appointed to the post of DMs, ADMs and SDMs.

Courts by which Offences are Triable- Any offence under the IPC may be
tried by the High Court, Sessions Court or any other Court by which such
offence is shown in the First Schedule to be triable.

1.5. COURTS BY WHICH OFFENCES ARE TRIABLE

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

1.6. SENTENCING POWERS OF CRIMINAL COURTS

A High Court may pass any sentence authorised by law. A Sessions Judge or
Additional Sessions Judge may also pass any sentence authorised by law, but
a death sentence must be confirmed by the High Court. The CJM may not
pass a death sentence, a sentence of imprisonment for life of imprisonment
for seven years or more. A Magistrate of the First Class may impose a
sentence of imprisonment for three years or less and/or a fine not exceeding
rupees ten thousand. A Magistrate of the Second Class may impose a
sentence of imprisonment for one year or less and/or a fine not exceeding
rupees five thousand. The Court of the CMM has the powers of the CJM,
while that of a MM has the powers of a Magistrate of the First Class.
Imposition of a term of imprisonment in default of payment of fine is not a
sentence but a penalty incurred on account of nonpayment of fine.

1.7. FUNCTIONARIES UNDER THE CODE

1.7.1. THE POLICE

The Director-General of Police (DGP) is responsible for the administration of
the police in the State, while the District Superintendent of Police (DSP) is
responsible for administration in the districts and is under the control of the
DM who is usually the ‘Collector’ of the District (See Police Act, 1861). The
underlying assumption of the CrPC is that there is a ‘police’ machinery in
place to discharge various functions under the Code. The term “police

station” is defined by the CrPC to include any post or place declared by the
State Government to be a police station, including any local area specified by
the State Government. The duties of the “officer-in-charge” of a police
station (station house officer), in situations where the ranking officer is
unable to perform his/her duties, must be performed by the officer next in
rank to the station house officer. Wider powers are given to the officer-in-
charge of a police station, with such an officer having to perform duties in
relation to prevention, detection and investigation of offences. Officers
superior in ‘rank’ to station house officers may exercise the same powers
throughout the local area to which they have been appointed; thus, DGP of
Haryana can exercise powers throughout the local area to which he has been
appointed (i.e. Haryana).

1.7.2. PUBLIC PROSECUTOR

‘Public Prosecutors’ (PP), Additional Public Prosecutors, Assistant Public
Prosecutors and Special Public Prosecutors are appointed by- either the
Central or the State Government to conduct prosecutions on behalf of the
Government. Many States have appointed and continue to appoint Police
officers as Assistant Public Prosecutors resulting in the impartiality and
fairness of prosecutions being called into question. CrPC gives States the
option of establishing a ‘Directorate of Prosecution’ which will be separate
from, and independent of, the investigating agency i.e. the Police
Department, and consist only of legally qualified practitioners. Only a few
States such as Delhi, Haryana, Punjab, Kerala, Maharashtra and Karnataka

have created separate prosecution and investigation cadres. PPs are ‘officers
of the Court’, who must be detached and must not seem to be ‘pushing’ for a
conviction; they must be fair in presenting the facts of the case; the
impartiality of the PP is as important as the impartiality of the Court; they
must not suppress facts that exonerate the accused.

If the PP fails to disclose material facts that have a bearing upon the guilt or
innocence of the accused, the trial will be vitiated, only if the nondisclosure
amounts to a material irregularity and causes irreversible prejudice to the
accused (Sidhartha Vashisht v. State (NCT of Delhi) (2010) 6 SCC 1).

1.7.3. DEFENCE COUNSEL

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

does not violate Section 303 (Ashish Chadha vs. Asha Kumari AIR 2012 SC
431).

1.7.4. PRISON AUTHORITIES AND THEIR ROLE
The role of prison authorities is detention of undertrial prisoners in jail during
the pendency of the proceedings. They also provide a machinery for
execution of sentences imposed by the Courts. They also aid the Magistrates
and the Police in trials.

1.7.5. DUTY OF THE PUBLIC
There is a duty on the public to assist Magistrates and the Police. Members of
the public must assist a Magistrate or police officer “reasonably demanding”
their aid under certain circumstances. These circumstances include
preventing the escape of an individual whom such Magistrate or police
officer is authorised to arrest; preventing or suppressing of a breach of the
peace; preventing damage to public property. What is “reasonable” depends
upon the circumstances of each case. Intentional omission to assist is
punishable under Section 187 of the IPC.
They also have a duty to give Information of Certain Offences. “Every
person” aware of the commission/intention to commit offences such as
‘waging war against the State’, ‘offences against public tranquility’, ‘offences
relating to kidnapping’, ‘offence relating to criminal breach of trust’,
‘offences of robbery and dacoity’ etc. has a duty to give information to the

concerned authorities. “Every person” does not include the perpetrator of the
crime. When the police have already secured information about the offence,
the section is not to be invoked against any person who omits to give
information thereafter.

1.8. CLASSIFICATION OF OFFENCES
1.8.1. COGNIZABLE OFFENCES
Section 2 (c): “cognizable offence” means an offence for which, and
“cognizable case” means a case in which, a police officer may, in accordance
with the First Schedule or under any other law for the time being in force
arrest without warrant.
In the case of a Cognizable Offences, Police officer can arrest alleged culprit
without warrant and can investigate into such a case without any orders or
directions from a Magistrate. In the case of a cognizable offence, it is the
responsibility of the State and the police to bring the offender to justice.
‘Police officer’ in this section means- those officers who are bestowed with
unqualified power to arrest without warrant.

1.8.2. NON-COGNIZABLE OFFENCE
Section 2 (l) : “non-cognizable offence means an offence for which, and
“non-cognizable case” means a case in which, a police officer has no
authority to arrest without a warrant.

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

DISTINCTION BETWEEN COGNIZABLE AND NON-COGNIZABLE OFFENCES

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

1.8.3. BAILABLE OFFENCES AND NON-BAILABLE OFFENCES

Section 2 (a): (a)"bailable offence" means an offence which is shown
as bailable in the First Schedule, or which is made bailable by any
other law for the time being in force; and " non-bailable offence”
means any other offence.

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

1.8.4. SUMMONS-CASE AND WARRANT CASE

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

“Summons case can be tried as a warrant case if the Magistrate is of the
opinion that in the interest of justice it should be done. Similarly, if a case is
tried as a warrant case but it is found that it should have proceeded under the
summons procedure, the Magistrate can use this procedure in the midst of the
case. The Magistrate, however, should indicate this by passing an order in
the Order-sheet. This has not been done by the learned Magistrate in this

case. This omission, however, is not fatal. As already stated, if a summons
case is tried as a warrant case, there is no illegality and it is a curable
irregularity”.

−Kishori Lal v, Mahadeo, 1993 CrLJ 1173 (All).


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