Model Q Ans For CR P C

Model Q. & Ans.
for Judicial Service Main Exams on

The Code of Criminal Procedure 1973 Q. 1 When police may arrest without order/warrant by magistrate? Mention the latest provisions amended by Act No. 5 of 2009. Ans Arrest without warrant Provisions regarding arrest without warrant are contained in sections 41, 41A, 41B, 41C and 41D of Cr.P.C, as amended by Act No- 5 of 2009 and further amended in August 2010 which provides: S- 41 Says (1) Any police officer may without an order from a magistrate and without a warrant, arrest any person (i) (ii) Who commits, in the presence of a police officer, a cognizable offence. Against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment up to 7 years, with or without fine and if police is satisfied that such arrest is necessary. Who has been proclaimed as an offender either under this code or by order of the state Govt. or Who is found in possession of any property suspected to be stolen. Who obstructs a police officer while in execution of his duty or who has escaped or attempts to escape from lawful custody, or Who is reasonably suspected to being a deserter from any of the Armed Forces of the Union
(iii) (iv) (v) (vi)
(vii) Who, being a released convict, commits a breach of any rule made U/S- 356 (5) Cr.P.C. (viii) For whose arrest any requisition, whether written or oral, has been received from any other police officer
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S.S. Law Academy, Civil & judicial, B-3/4, B-2, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09
S- 41-A deals with Notice of appearance before police officer S- 41-B deals with procedure of arrest and duties of officer making arrest S- 41-C deals with control room at districts and S- 41-D deals with Right of arrested person. Vide S- 42 (1) when any person, who in presence of a police officer has committed or has been accused of committing a non-cognizable offence, refuses on demand of such officer to his name and residence or gives false name and residence may be arrested without any order or warrant of magistrate. In Jogindera Kumar Vs the State of U.P, AIR 1994 the S.C held that it is the duty of police officer that he must ensure the enforcement of fundamental rights of a arrested person. It is right of every arrested person that he may give the information of his arrest to his friend or relative and may take advice of a legal practioner. The police officer arresting the person is duty bound to make sure the protection of fundamental rights of the arrested person. In D.K.Basu Vs State of W.B AIR 1996 the S.C has issued extensive guideline for protection of arrested person U/s 43, when private person makes arrest and hand over to police the police shall re-arrest the same Q. 2 What is the procedure after arrest provided under the code of criminal procedure 1973. Ans Procedure after Arrest Mainly Ss- 50 to 54A of Cr.P.C deal with the procedure after arrest. (1) S- 50 says every arrested person is informed of the ground of arrest and right to bail in bailable offences.
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(2) (3)
As per Section 50A information of arresting is made to any person nominated by accused either friend or relative. Section 51 says In a case accused is not released on bail, search of arrested person is made and if some articles are found, a seizure list is prepared and seized articles are placed in the safe custody. Search of female must be made by a female. As per requirement of the case, medical examination can be made U/S- 53, 53A or 54 of Cr.P.C. If required T.I parade can be held U/S - 54A. Section 55A was added to protect the health and safety of arrested person that it shall be duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. Vide Section 60-A of Cr.P.C. The arresting must be made in the light of the provisions of the code that no arrest shall be made except in accordance with the provisions of this code or any other law for the time being in force providing for arrest. In Joginder Kumar Vs State of U.P. (1994) 4 SCC 260 the apex Court had issued certain guidelines in respect of procedure after arrest as follows:
(4) (5) (6)
1.
An arrested person being held in custody, if he so requests to have one friend, relative or other person who shall be informed, who is known to him or likely to take an interest in his welfare told as far as it is practicable that he has been arrested and where is being detained The police officer shall inform the arrested person when he is brought to the police station, of this right An entry shall be required to be made in the diary as to who was informed of the arrest.
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2. 3.
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Q. 3 When proclamation of absconding and order of attachment is made under Cr.P.C ? Ans Proclamation & Attachment S- 82 of Cr.P.C deals with proclamation for person absconding. It says when the Summons and warrant could not serve the purpose, the Court may publish a written proclamation requiring the appearance of accused before the Court, within 30 days from the date of proclamation. As per S- 83 where the accused has not turned up inspite of proclamation U/S- 82, the Court may order the attachment of his property. Provided that where at the time of issuing proclamation, magistrate is satisfied that such person is about to (i) (ii) Dispose of whole property or any part of his property, or Remove it from the local jurisdiction of the Court, the magistrate may order attachment of property, simultaneously with proclamation.
Q. 4 Write short notes on the following topics: (i) (iii) Ans Sessions Trial Summons Trial and (i) Sessions Trial Ss- 225 to 237 Cr.P.C deal with trial before the Court of Session. Trial is conducted by the public prosecutor before the Court of Session. He opens the case. If the Court does not found sufficient ground for proceeding against accused, he discharges him. If prima facie case is make out, charge is framed in writing. If the accused pleads guilty, the Court may convict him, but when accused claims to be tried, Judge fixes a date for examination of witnesses. If prosecution fails to prove guilt, the Judge acquits the accused, but when prosecution succeeds, accused enters upon his defence. Then argument is made on part of both sides. Then Judge pronounces judgment of the acquittal or conviction. In case of acquittal, if the accused is in custody, Court directs
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(ii) (iv)
Warrant Trial by the Magistrate Summary Trial.
to release him. In case of conviction, the Judge hears the accused on the quantum of punishment, then he awards sentence basing on gravity of offence and on so many relevant circumstances. (ii) Trial of warrant cases by Magistrate Sections 238 to 243 deal with trial of cases instituted on police report, Ss- 244 to 247 deal with cases instituted otherwise than on a police report Ss- 248 to 250 deal with common provisions regarding conclusion of trial. If in any case in which a charge has been framed the magistrate does not found guilty the accused he makes order of acquittal and release of accused if he is in jail. If accused is found guilty, he is heard on quantum of punishment and sentenced in accordance with law unless he is submitted to higher Court for enhanced punishment U/S- 325 Cr.P.C or released on probation or after admonition U/S- 360 Cr.P.C. (iii) Trial of Summons Cases In summons cases formal charge framing is not required, so when accused comes before Court, he is asked that whether he pleads guilty or not? If he pleads guilty, then magistrate may convict him or release on probation or after admonition U/S- 360 Cr.P.C. If accused claim to be tried, the magistrate proceed to take prosecution evidence and also hears the defence. After hearing the both sides, magistrate acquits or convicts the accused. In case of conviction magistrate passes sentence upon him or submits the case to higher court for an in enhanced sentence U/S- 325 or release him on probation or after admonition U/S- 360 Cr.P.C As per S- 256 If on the appointed day or adjourned date of hea ring, complainant does not appear, the magistrate may dismiss the complaint case and may acquit the accused. U/S- 257 complainant may withdraw his complaint at any time before a final order is passed. (iv) Summary Trial: Ss- 260 to 265 Cr.P.C deal with Summary Trial. Any CJM, any metropolitan magistrate, any J.M Ist class especially empowered by High Court may try offences in a summary way, if the offence
(i) (ii) (iii) (iv) (v)
is punishable with sentence up to Rs. 2000/is related to theft of properties of value up to Rs. 2000/is punishable U/Ss 454, 456, 504, 506 of IPC. is related to abetment or attempt of above offences is related to section- 20 of the cattle trespass Act 1871. In summary trial, procedure of summons trial is followed, but no sentence more than 3 month can be awarded under summary trial. If accused does not plead guilty, the magistrate shall record the substance of the evidence and pass judgment containing a brief statement of the reasons of the finding.
Q. 5 Is it mandatory for Court to direct a new trial or adjourn the trial for some period in case of alteration of charge? Ans S- 216 Cr.P.C provides that any Court may alter or add to any charge at any time before judgment is pronounced. Sub- section (3) provides that 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. If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of Court, to prejudice the accused or the prosecutor as a fore said, the Court may either direct a new trial or adjourn the trial for such period as may be necessary, as provided under sub-section (4). In K. Prema S Rao Vs Yadla Srinivasa Rao, 2003, Cri.L.J 69 where a charge U/S- 306 IPC was not specifically framed by the Court, but all facts and ingredients constituting that offence were mentioned in the statement of charge framed U/Ss- 498A & 304B IPC. In the given situation, Court
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observed that no further opportunity of defence was required to be granted to the appellant, when he had ample opportunity to meet the charge U/S498A, IPC In view of above mentioned provisions of Cr.P.C and verdicts of court, it can be said that after alteration of charge, when Court opines that, same is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case, Court may proceed with the trial, otherwise, if the court finds that alteration of charge is going to cause to prejudice the accused or the prosecutor as aforesaid, the court may direct a new trial. Q. 6 When evidence may be recorded in the absence of the accused person? What is the value and use of such evidence in the subsequent trial of the accused person? Ans Evidence in absence of accused Absence of accused person may be either because he is at large or because his personal appearance has been exempted by the court during trial. Generally, courts do exempt personal appearance of accused in summons cases and order is passed for recording of evidence in absence of the accused when the accused has no objection to recording thereof in his absence and when his counsel under takes to appear before the court without fail. Statement of witnesses so recorded can be safely read into evidence. S- 299 Cr.P.C pertains to cases where accused persons are at large. It provides that when it is proved before court that an accused person has absconded and that there is no immediate prospect of arresting him the court competent to try or commit for trial, such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution and record their depositions. The deposition so recorded can be given in evidence against the accused person consequent upon his appearance, arrest and production before the court. In this respect, it is pertinent to mention that such an accused must have been duly declared proclaimed offender after following procedure laid down in S- 82 Cr.P.C So statements of such witnesses so recorded in absence of the accused can be given in evidence against such an accused, provided that entire
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procedure as laid down in S- 82 Cr.P.C has been duly followed while declaring the accused a proclaimed offender. Q. 7 Whether the Sessions Judge can summon a person as an additional accused prior to recording the prosecution evidence? Ans Generally, prosecution evidence is led when accused already before the court pleads not guilty For Court of Session, one stage to summon additional accused is where charge has already been framed and prosecution starts leading evidence in course of trial. In Sarojben Ashwin Kumar Shah Vs State of Gujrat, (2011) 13 SCC, Honble Judges have called out following legal position from the provisions of section 319 Cr.P.C (i) (ii) (iii) The Court can exercise the power conferred on it U/S- 319 Cr.P.C Suo motu or on an application by someone The power conferred U/S- 319 (1) applies to all courts including the sessions Court. The phrase any person not being accused occurring in section 319 does not exclude from its operation an accused who has been released by the police U/S- 169 Cr.P.C. The power to proceed against any person, not being the accused before the Court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The power conferred upon the court is although discretionary, but is not be exercised in a routine manner. In the course of inquiry, even prior to the framing of charge, Court of Session may suo moto or on application filed by the complainant or prosecution, record evidence for the purpose of inquiry on this point If it appears from such evidence recorded in the course of inquiry that an addition accused is required to be summoned, the Court of Session can summon additional accused.
(iv)
(v)
In other words when case is at the stage of inquiry, in view of specific provision of section 319 Cr.P.C, Court of Session need not wait for recording of evidence during trial and rather at this very stage of inquiry, Court can record evidence U/S- 319 Cr.P.C and summon an additional accused. In view of the above settled legal position, it can be said that Court of session is empowered to summon additional accused on the evidence of witnesses given in Court in the inquiry or trial i.e. even prior to recording the prosecution evidence. Q. 8 When a police officer can grant bail to accused. Can such an accused remain on bail when the trial is on? Ans Section 436 of Cr.P.C empowers officer-in-charge of a police-station to release a person accused of commission of bailable offence as and when he is arrested or detained without warrant. Such officer may even release such an accused on his executing a bond without surities for his appearance. Such a bond is furnished by the accused under taking to appear before the Court as and when called upon to do so. However on his appearance before the Court, such an accused is generally called upon to furnish fresh bonds before the Court undertaking to appear during pendency of the proceeding before such Court Such an accused can remain on bail when the trial is on. But when a person fails to comply with the conditions of bail as regards time and place of attendance, Court may refuse to release him on bail on a subsequent occasion he appears or is produced before the court in custody in the same case. Whenever there are circumstances for cancellation of bail, even his bail can be cancelled by the Court of Session or the High Court as provided U/S 439 (2) Cr.P.C. Q. 9 A is tried for causing hurt and convicted. The person injured afterwards dies. Can A be tried again for culpable homicide? Ans S- 300 Cr.P.C provides that A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquittal remains in force, not be liable
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to be tried again and for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made U/S- 221 (1) or for which he might have been convicted under subsection (2) thereof. Provisions of section 300 Cr.P.C are based on the principle that no mans life or liberty shall be twice put in jeopardy for the same offence on the same set of facts. S- 300 (3) provides that a person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted, maybe afterwards tried for such last mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time, when he was convicted. In the case in hand, A was tried for causing hurt and convicted, but the injured died afterwards. So when the death did not occur at the time of conviction of A and the injured succumbed to the injuries after A was convicted, in view of provisions of sub section (3), A can be tried again but only for the offence of culpable homicide. Q. 10- What precautions are to be taken before conducting Test Identification of an accused? Ans Test Identification Parade Test identification proceedings are conducted for help in moving in the right direction so as identity of the accused is concerned. Under Indian Evidence Act, evidence regarding identification of an accused or verification of identity of an accused is admissible. However in case of holding of T.I.P certain precautions are required to be taken so as to conceal the identity of the person produced before the court. It is necessary that the person produced before the court must be in muffled face. Accused should be informed that he is to keep his face muffled till the T.I.P proceedings are conducted. When produced in court culprit is required to be asked about his willingness to take part in the T.I.P. in case he shows his willingness to take
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part in the parade, date is to be notified in this respect with direction to the culprit to keep his face muffled so as to conceal his identity. In case the culprit shows his refusal to take part in the parade, an adverse inference might be drawn against him during trial. If the accused sticks to refusal, court must record his statement in this respect. In this manner, accused may put forth his reasons for refusal to take part in the parade. Generally, in case of accused in custody, T.I.P is held in jail. First of all verification of identity of the culprit is to be established by the superintendent of jail. At the time of holding of T.I.P, accuse is to be made to stand amongst 8 to 9 persons of his stature. At the time of holding of T.I.P, no police/jail official should be present around so as to avaid leakage of any information about identity of the accused to the witnesses. After that, witness(s) is/are called from outside for identification of the culprit one by one and not together. Special care is taken that the culprit or any other person present in the room where T.I.P is being held, is not in a position to threaten the witness. It is to be specifically mentioned in the report as to whether the witness correctly identified the culprit or not. At the time of parade, signature/thumb-impression of the witness is to be obtained in the proceedings in proof of his having participated in the proceeding. I.O is to be called to verify the identity of the witness. Ultimately, certificate is to be appended to the proceedings, copy of the report is to be supplied to the I.O and original is to be sent to the concerned Court along with the application for holding of T.I.P in sealed cover. Q. 11- An informant comes to the police station and informs of a shootout in a locality. Should the O/C of a P.S register an F.I.R or only make an entry in the Daily Diary Register and why? Ans S- 156 Cr.P.C provides that any officer-in-charge of a police station may, without the order of a magistrate, investigate any cognizable case. In State of Haryana V Bhajan Lal AIR 1992 the apex Court observed that At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of S- 154 (1) of the code, the concerned police officer cannot embark upon an
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enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. Thus if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of S- 154 (1) of the code, the said police officer has no other option except to enter the substance thereof in the prescribed from, that is to say to register a case on the basis of such information and it would not be suffice to enter the substance only in a daily diary. In the ordinary course of official duties, as and when such information is received, one or the other police officer reaches the spot. If information is received at police station, before leaving the police station, daily diary entry is recorded by way of departure entry about dispatch of the concerned officer or members of the party. Simply on receiving such information, without further details not made available to the police by then at the police station, no F.I.R can be registered. It is only on reaching the spot that the police officer or the party would come to know of more details of commission of one or the other offence, which may include a cognizable offence. If the injured or victim or any eye witness available at the spot provides more specific information about the offence, generally his or her statement is recorded and sent to the police station which leads to registration of case. If no more specific information about the offence is available to the police at the spot, police officer would not come to know as to what had let to the incident of shoot out and what was the outcome of the occurrence. Generally the police would try to contact and have information from the injured, eye-witness or complainant and then register case. The reason is that for registration of case, the information received by the police must disclose commission of cognizable offence otherwise scanty information like the present one would not disclose commission of a cognizable offence and in such situation recording of the information, whatever has been received; in daily diary register would be permissible.
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Q. 12- What are the principles taken into consideration while dealing with a bail application? Ans In a case of bailable offence, accused is entitled to bail as a matter of right. It is so provided U/S- 436 Cr.P.C, which says A police officer in his opinion or the court in its opinion in their discretion may release the person by taking only a personal bond without insisting surety for the appearance. But in case of non-bailable, accused cannot claim bail as a matter of right. S- 438 Cr.P.C empowers High Court and Session Court for issuing directions to release the person, against whom, there there is accusation of having committed a non-bailable offence, on bail in the event of Arrest. Article 21 of the constitution enshrines the fundamental right to individual liberty, but it dies not that mean liberty of individual cannot be curtailed. S- 439 of Cr.P.C confers special powers on High Court and Session Court regarding regular bail. They can make order to release any accused from the custody on furnishing bail bond with surities. In State of U.P Vs Amarmani Tripathi (2005) 8 SCC 21, Apex Court observed that following should be considered at the time of grant or refusal of bail: (i) (ii) (iii) (iv) (v) (vi) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; Nature and gravity of charge Severity of the punishment in the event of conviction. Danger of the accused absconding or fleeing, if released on bail. Character, behavior, means, position and standing of the accused; 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.
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Q. 13- Is it incumbent upon the magistrate to accept the report U/S- 173(2) Cr.P.C. If not, what is other option available to the magistrate? Discuss with reference to section 156 (3) Cr.P.C. Ans On completion of investigation, police is required to forward to the concerned magistrate a report U/S- 173(2) Cr.P.C. Section 173 (8) provides that nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the magistrate. It is well-settled that even a magistrate is empowered to order further investigation U/S- 173 (8) Cr.P.C. In State of Bihar Vs J.A.C. Saldana AIR 1980 SC 326, the S.C held that power conferred upon the magistrate U/S- 156 (3) Cr.P.C can be exercised by the magistrate ever after the submission of a report by the I.O which would mean that it would be open to the magistrate not to accept the conclusion of the investigating officer and direct further investigation. Even in case of a complaint, where the magistrate has ordered an investigation U/S- 156 (3) Cr.P.C and a police report is presented before the magistrate U/S- 173 (2), Cr.P.C, the magistrate is not bound to accept the conclusion in the police report. He may, thereafter do one of the there things: (i) (ii) He may decide that there is no sufficient ground for further proceeding and may drop action. He may take cognizance of the offence U/S- 190 (1) (b) on the basis of police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report and He may take cognizance of the offence U/S- 190 (1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses U/S- 200 Cr.P.C. If he adopts the third alternative, he may hold or direct an enquiry U/S- 202, if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be. In India Carat (p) Ltd Vs State of Karnataka AIR 1989 the S.C held that Upon receipt of police report U/S - 173 (8) Cr.P.C a magistrate is entitled to take cognizance of an offence under section 190 (1) (b), even if the
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(iii)
police report is to the effect that no case is made out against the accused ignoring the conclusion arrived at by the investigating officer. In such a situation, the magistrate is not section 200 and 202 of the code for taking cognizance of a case U/S- 190 (1) (a) though it is open to him to act U/S- 200 or 202 also. Q. 14 When a wife is entitled to claim maintenance from her husband and when she loses her this right of maintenance. Ans Vide S- 125 (1) Cr.P.C A wife is entitled to maintenance from her husband when she is unable to maintain herself and her husband neglects or refuses to maintain her. A magistrate of first class may upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such magistrate thinks fit and to pay the same to such person as the magistrate may from time to time direct. It may be mentioned here that wife includes a woman who has been divorced by, or has been obtained a divorce from her husband and has not re-married. So wife-applicant has to prove that (1) (2) (3) The husband respondent neglected or refused to maintain her. The applicant is unable to maintain herself and The husband respondent has sufficient means. Further S- 125(4) provides that wife shall not be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section, if she is living in adultery, or if without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.
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Q. 15- When an accused may plea bargaining. What is its procedure and effect? Ans Plea Bargaining Plea bargaining was inserted as new chapter 21A in Cr.P.C in 2005 for speedy trial. Plea bargaining is applicable only in offences punishable with imprisonment upto 7 years. Under the provision of plea bargaining, accused may file an application for plea bargaining in court in which trial is pending, stating briefly the description of case and offences. After receiving application, the court shall issue notice to the public prosecutor or complainant as the case may be and to accused to appear on the date fixed for the case. On such fixed date court shall provide time to parties to work out a mutually satisfactory disposition of the case, which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case. Where a satisfactory disposition of the case has been worked out, the court shall award the compensation to the victim in accordance with the disposition and hear the parties on the quantum of the punishment, releasing the accused on probation of good conduct or after admonition U/S- 360. After hearing the parties court may release the accused on probation or pass sentence on accused as minimum as may be practicable keeping in view the facts and circumstances of the case. Q. 16- Define change. What are its contents? Make a formal charge on an accused charging him U/S- 304B Ans Definition of charge A charge is the precise formulation of the specific accusation made against a person, who is entitled to know its nature at the earliest stage. S- 2(b) Cr.P.C Says Charge includes any head of charge, when the charge contains more heads than one. In V.C Shukla Vs CBI 1980, Cr.L.J 690 the Supreme Court observed that Charge serves the purpose of notice or intimation to the accused, drawn up according to specific language of law, giving clear and
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unambiguous or precise notice of the nature of the accusation that the accused is called upon to meet the course of trial. Contents of Charge Vide S- 211 Cr.P.C a charge must contain following ingredients : (1) (2) (3) (4) (5) The offence with which the accused is charged. Specific name of offence if provided under law. If specific name of offence is not provided under law, then so much of definition of the offence, that accused may get notice of it. The law and section of the law against which the offence is said to have been committed, shall be mentioned in the charge 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. Charge U/S 304B (1)(a) I Mr. XYZ an Addl. Session Judge IV, Allahabad hereby charge you Abc Singh S/O PQR as follows: (b) First that you on or about 3rd day of may 2012, at 9:30 pm under preplanning committed the death of your wife by poising in her night meal within four walls of your house, because she did not follow up your demand of motor cycle to get from her father. You committed this occurrence within 7 years of your marriage with victim lady. You have also committed cruelty with her just before poising her meal, and thereby committed an offence punishable under section 304B of the Indian Penal Code and within the cognizance of the Court of Session. And I hereby direct you be tried by this Court on the said charge Signature and Seal of the Date:
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(c)
Addl. Session Judge IV.

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Q. 17- What are main amendments brought in the code of criminal procedure vide the criminal law (Amendment) Act 2013. Ans The Criminal Law (Amendment) Act 2013 came into force on 3rd February 2013 and brought major amendments in IPC, Cr.P.C, Evidence Act and the Protection of Children from Sexual Offences Act 2012. Its chapter -III deals with Amendments to the Code of Criminal Procedure 1973. Some main amendments made in Cr.P.C are: (1) In Section 54A a proviso is inserted, which says provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a judicial magistrate, who shall take appropriate steps to ensure that such person identifies the person arrested using method that person is comfortable with: Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall e video graphed (2) Vide S -154 If information is given by the woman against whom an offence U/Ss -326A, 326B, 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E, or Section 509 of the IPC is alleged to have been committed or attempted, then such information shall be recorded by woman police officer or any woman officer. In S -161 following proviso is added Provided further that the statement of a woman against whom an offence U/S 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E, or Section 509 of the IPC is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer. (4) In S -164, after sub-section (5) following sub-section is inserted
(3)
(5A) (a) In cases punishable U/S -354 354A, 354B, 354C, 354D, 376(1) or (2), 376A, 376B, 376C, 376D, 376E or Section 509 of the IPC, the J.M 1 st class shall record the statement of person against whom such offence has been committed in
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the manner in sub-section (5), as soon as the commission of the offence is brought to the notice of the police. Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the magistrate shall take the assistance of an interpreter or a special educator in recording the statement. (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief and the maker of the statement can be crossexamined on such statement. In Section 273 a proviso is added as follows: Provided that where the evidence of a woman below the age of 18 years, who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the Court may take appropriate measures to ensure that such woman is not confronted by the accused, while at the time ensuring the right of cross-examination of the accused. (6) In Section 309 (1) the following has been substituted. In every inquiry or trial the proceedings shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournments of the same beyond the following day to be necessary for reason to be recorded: Provided that when the inquiry or trial relates to an offence U/S -376, 376A, 376B, 376C or 376D of the IPC, the inquiry or trial shall, as for as possible be completed within a period of two months from the date of filing of the charge sheet. (7) (8) The compensation payable by the state Government U/S -357A shall be in addition to the payment of fine to the victim U/S -326A or 376D of IPC. Vide S -357C All hospitals, public or private, whether run by the central Government, the State Governments, local bodies or any other person shall immediately, provide the first aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C,
19 Mo: 9899660723 S.S. Law Academy, Civil & judicial, B-3/4, B-2, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09
(5)
S.K. Shukla
376D or 376E of the IPC and shall immediately inform the police of such incident. Q. 18- Distinguish between the following: (1) (2) (3) (4) (5) (6) (7) (8) (9) Bailable and non-bailable offence Cognizable and non-cognizable offence Summons case and warrant case. Investigation. Inquiry and Trial. Complaint and F.I.R Acquittal and discharge. Compoundable and non compoundable offence. Reference & Revision. Ans. (1) (1) Distinction between Bailable & Non-Bailable offence
The accused of bailable offence is entitled to be released on bail, as a matter of right, while the release of accused of non-bailable offence on bail is a discretion of Court. Bailable offence is less serious in nature, while non-bailable is more serious in nature. Generally, offences punishable with imprisonment for less than three years are bailable offence and offences punishable with imprisonment with 3 years and more are non-bailable offences. An accused of bailable offence cannot apply for anticipatory bail, while an accused of non-bailable offence, may apply for anticipatory bail. Distinction between cognizable & Non-Cognizable offence. In case of cognizable offence, police may arrest the accused without warrant, while in case of non-cognizable offence, police has no such power Cognizable offence is more serious in nature while non-cognizable offence is less serious in nature
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(2) (3)
(4) (2) (1) (2)
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(3)
Offences punishable with imprisonment for 3 years and more are cognizable, while offences punishable with imprisonment for less than 3 years are noncognizable, except some exceptions. In matter of cognizable offence, police may investigate the case without order or direction of magistrate, while in non-cognizable cases police cannot investigate the case without order or direction of magistrate. In cognizable cases, F.I.R is lodged in a police station, while in noncognizable case complaint is lodged in Court of Magistrate. Distinction between Summon Case & Warrant Case. Summons Case is less serious in nature, while warrant case is more serious in nature. Offences punishable up to 2 years imprisonment are summons case and above 2 years is warrant case. In Summons case formally charge need not be framed, while in warrant case formal charge framing is essential. In warrant case defence may cross examine the prosecution witnesses, while in summons case, defences right of cross examination is reserved until charge is proved In Summons cases, the complainant can withdraw the case with the permission of court while in warrant case it is not allowed except in compoundable cases. In Summons case, if the complainant is absent on the date of hearing, the accused will be acquitted, while in warrant case, if the complainant is absent on the date of hearing, the accused may be acquitted in case of compoundable and non cognizable offence. But in other cases Court shall decide the case on the merit of the case.
(4)
(5) (3) (1) (2) (3) (4)
(5)
(6)
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(4) (1) (2)
Distinction between Investigation, Inquiry and Trial Investigation is the first stage; inquiry is the second stage, while trial is the third stage of any criminal proceedings. Investigation is conducted by police for collection of evidence; inquiry is made by magistrate or judge to scrutinize the evidences on record whether oral or documentary. Trial is held by court to find out guilt or innocence of accused. Investigation is purely non-judicial proceeding, Inquiry may be judicial or non-judicial proceeding, while trial is purely a judicial proceeding. Investigation ends with final form or charge sheet. Inquiry ends with charge or discharge. While trial ends with conviction or acquittal. Distinction between Complaint & F.I.R Complaint is an allegation made orally or in writing to a magistrate, while F.I.R is information given to police about any cognizable offence. Complaint is filed on oath, while for F.I.R oath is not required. Complaint itself is substantial evidence but F.I.R is not substantial evidence. Complaint may be filed in both cognizable and non-cognizable cases, while F.I.R is lodged only in cognizable cases. In complaint case investigation is not conducted, unless magistrate so directs, while in case of F.I.R, investigation is essential. In case of complaint, investigation is held only, on direction or order of magistrate while in case of F.I.R. for investigation, there is no need of order or direction of magistrate. Distinction between Acquittal & Discharge A person once acquitted cant be re-arrested while a person discharged can be rearrested and committed for a further enquiry & trial.
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(3) (4) (5) (1) (2) (3) (4) (5) (6)
(6) (1)
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(2)
An acquittal may result from absence of complainant, or withdrawal of complaint or compounding of offence, while discharge result from inquiry in absence of evidence on record in support of allegation. An order of acquittal is a judicial decision establishing the innocence of accused, while an order of discharge is merely an interlocutory order at the stage of enquiry. An acquittal bars a second trial on the same facts and for the same offence, while a discharge does not bar the institution of fresh proceeding, when new or better evidence become available against the accused. Compoundable & Non Compoundable offences In case of compoundable offences, the law allows compromise between the parties, while in case of non-compoundable offences; law does not allow the compromise of cases. Compoundable offences are of private nature, for which damages may be recovered in a civil action, while non-compoundable offences are of public nature. Once an offence is compounded lawfully, it has an effect of acquittal of the accused, but non-compoundable cases cannot be compounded. Generally compoundable cases may be compromised between parties, but for some cases permission of Court is required for compromise of case, while in non-compoundable cases, Court has no power to permit the compounding of an offence. Reference and Cri Revision: Reference is made by a subordinate Court to High Court to decide the validity of Act, Ordinance or Regulation or a question of law, which has not been settled by High Court or Supreme Court, while criminal revision lies only on a question of law relating to correctness, legality or propriety of any finding, sentence or order.
(3)
(4)
(7) (1)
(2)
(3) (4)
(8) (1)
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(2) (3) (4) (5)
Reference can be made only in pending cases, while criminal revision lies both in pending and decided cases. Reference can be made to High Court only, while criminal revision can be filed in High Court or in Sessions Court. Reference is made by subordinate court only, while criminal revision is done on petition filed by parties to cases or on Courts own motion. A subordinate court makes reference, only when it thinks that opinion of High Court is necessary to adjudicate the matter pending before it, while object of the revision is to confer upon High Court and Sessions Court a supervisory jurisdiction to prevent the miscarriage of justice. Criminal Appeal & Criminal Revision Criminal appeal lies only from any judgment or order of a criminal court, while criminal revision lies from any interlocutory order passed in any criminal proceedings. Criminal appeal can be filed in any superior court, while petition for criminal revision can be filed only in Sessions Court or High Court. Grounds for appeal are wider than grounds for revision. Appeal is decided only on petition of aggrieved party while criminal revision can be made by High Court or Session Court, on its own motion also. In an appeal, the appellant has a right to demand adjudication on a question of law and fact but in revision, interference by Court is only Courts discretion.
(9) (1)
(2) (3) (4) (5)
Q. 19- Write short notes on following topics: (1) Withdrawal of complaint. (2) Tender of pardon. (3) Compounding of offences (4) Withdrawal from prosecution (5) Release on probation (6) Powers of appellate Court (7) Reference (8) Revision (9) Cancellation of Bail (10) Procedural requirement f S -164 Cr.P.C (11) cognizance of offence. Ans
S.K. Shukla
(1) Withdrawal of complaint

S -257 Cr.P.C deals with withdrawal of complaint. It says If a complainant at any time before a final order is passed in any case under chapter XX, satisfies the magistrate that there are sufficient ground for permitting him to withdraw his complaint against the accused or if there are more than one accused against all or any of them the magistrate may permit him withdraw the same and shall thereupon acquit the accused against whom the complaint is so withdrawn. But S -257 applies only to Summons cases. It cannot be invoked in a warrant case. The magistrate has ample jurisdiction in this regard. (2) Tendor of pardon: S -306 to 308 Cr.P.C deal with tendor of pardon. Where a grave offence is alleged to have been committed by several persons and there is no evidence to fixup guilt on any one of them, the Court resort to tendor pardon to one of the accomplices, if that accomplice turns out as a witness for prosecution i.e turned approver. The very object of the tendor pardon is to obtain aid of evidence from the approver. A magistrate who tendors a pardon U/S -306 is to record his reasons for so doing. Every person accepting a pardon U/S -306 is to be examined in the Court of magistrate and in the subsequent trial if any. A person getting pardon U/S -306 is bound to make a full and true discloser of what he knows related to offence. S -306 Cr.P.C applies to any offence triable exclusively by the Court of Session or by the Court of special Judge, any offence punishable with imprisonment which may extend to seven years or with more severe sentences In N.C.R Choudhary & Anr. Vs. State of Maharashtra the Court held that 306 is applicable in case where the order of commitment has not been passed and S -307 would be applicable after commitment of the case, but before judgment is prounonced (3) Compounding offences: S -320 Cr.P.C deals with compounding of offences i.e settlement of case between the parties. Generally compounding of offences is possible in respect of non-serious offences. S -320 (1) provides a table containing the list of offence which are compoundable without the permission of court. S -320 (2) provides a table which contains a list of offences which are compoundable with the permission of court.
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The legal effect of compounding is an acquittal of accused. compromise once made cannot be withdrawn. When any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence may be compounded in like manner. When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of Court to which he is committed or as the case may be, before which the appeal is to be heard. No offence shall be compounded except as provided by this section (4) Withdrawal from prosecution: S -321 Cr.P.C empowers public prosecutor or Addl. public prosecutor to withdraw from the prosecution of any person at any time before the judgment. The withdrawal from the prosecution can be done only with the consent of Court and under prior permission of the Court. The court while granting consent shall exercise its judicial discretion. If the withdrawal is made before the framing of charge, the accused shall be discharged. If the withdrawal is made after the charge is framed or where no formal charge framing is required, the accused shall be acquitted. In Ghanshyam Vs State of M.P. (2006) 10 SCC 473 it was held that the discretion to withdraw from the prosecution is that of the public prosecutor and none else and so, he cannot surrender that discretion to anyone. The public prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence, but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. (5) (i) (ii) Release on Probation: S -360 Cr.P.C deals with release of accused on probation. It says at the time of conviction If the convicted person is below 21 years of age or woman and the offence is not punishable with death or life imprisonment or If the convicted person is not below the 21 years of age and offence is punishable with imprisonment up to 7 years
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And if the conviction is for the first time to the accused, he may be ordered to be released on bail with or without sureties for keeping peace and maintaining good behavior up to 3 years or after admonition as the case may be. S -360 is a piece of beneficial legislation and its object is to avoid sending the first time offender to prison for an offence which is not of a serious character and thereby running the risk of turning him into hardend criminal. This has become more important in recent times due to increasing emphasis on reformation and rehabilitation of the accused as a useful member of the society without subjecting him to deleterious effect of jail life. (6) (1) (i) (ii) (iii) (2) (i) (ii) Powers of appellate Court: As per S -386 An appellate Court: May dismiss an appeal if he finds no ground for interference or May reverse the order of acquittal and direct for further enquiry or for retrial as the case may be or May pass any sentence according to law. In an appeal from conviction: It may reverse the finding and sentence him or acquit or discharge the accused or order him to be re-tried or The Court may alter the findings, maintaining the sentence. Vide S -389 the appellate Court may suspend the sentence and may pass order to release the appellant on bail. Vide S -390 the appellate Court, in case of appeal against acquittal, may issue warrant, to arrest the accused and commit him to prison or admit him on bail during pendency of appeal. U/S -391 the appellate Court may take further evidence or direct it to taken by its subordinate Court.
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(7)
Reference: Reference is not defined in the Code. But S -395 Cr.P.C deals with reference. Generally when the question of validity any Act, Ordinance or Regulation is referred to High Court for its decision or opinion thereon, the process is called reference. S 395 says (1) when any Court is satisfied that a case pending before it, involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in any Act, ordinance or Regulation, the determination of which is necessary for the disposal of the case and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or bt the Supreme Court shall state a case setting out its opinion and the reasons therefore and refer the same for the decision of the High Court. Any Court making a reference to the High Court may, during the pendency of reference, either commit the accused to jail or release him on bail to appear when called upon. As per S -396 when such question referred, is answere d by the High Court, the referring Court shall dispose of the case in conformity with the order or opinion of the High Court.
(8)
Revision: S -397 Cr.P.C confers power on High Court and Sessions Court to exercise the powers of revision. The High Court and Sessions Court has power To call for and examine the record of any proceeding before a lower court To direct or to suspend execution of any sentence. S -399 deals with criminal revision by Sessions Court while S -401 deals with criminal revision by High Court. Both court has concurrent power in this regard. Where revision petition is filed under erroneous belief that no appeal lies thereto, High Court may convert the revision petition in to appeal and deal with same accordingly. High Court can exercise the revisional power suo-motu or on the petition of any aggrieved party. But under the revisional
(i) (ii)
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jurisdiction High Court cannot convert the finding of acquittal into one of the conviction. Where appeal lies, no revision petition can be filed by the party, who has right to appeal. No revision petition can be filed against revisional order of Sessions Court. The powers of revision shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. Addl. Session Judge shall have and may exercise all the powers of a Session Judge regarding revision petition. (9) Cancellation of Bail: If an accused person who has been released on bail attempt to obstruct the smooth progress of a fair trial, it would be just and reasonable that his bail bond should be cancelled and he is to be arrested and committed to custody . S -437 (5) and S -439 (2) deal with cancellation of bail. S -437 (5) Cr.P.C says that Any Court which has released a person on bail U/S -437 (1) or (2) may, if it considers it necessary, so to do, direct that such person be arrested and committed to custody. S -439 (2) Cr.P.C says The High Court or the Court of Session may direct that any person who has been released on bail under chapter 33 be arrested and commited to custody. One of the following conditions must be satisfied before bail is cancelled (1) (2) (3) The person released on bail has run away to a foreign country or went underground or beyond the control of him surities. Where the person on bail commits the very same crime for which he is being tried or has been convicted. When on bail, the accused forcibly prevents the search of places under his control for the detection of corpus or other in criminating things
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(4)
If accused tampers with the evidence by intimidating prosecution witness, interfering with the sense of offence in order to remove traces or proof of the crime etc. If the accused commits an act of violence in revenge, against the police and the prosecuting witnesses of those who have booked him or are trying to book him. Thus bail once granted should not be cancelled without sufficient grounds or reasons.
(5)
(10)
Procedural requirement of S -164 Cr.P.C: S -164 Cr.P.C as amended by Act No- 5 of 2009 makes the provision for recording of confession and statements of victim that
(1)
Any metropolitan magistrate or judicial magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a magistrate has been conferred under any law for the time being in force.
(2)
The magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so it may be used against him and the magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. If at any time before confession is recorded, the person appearing before the magistrate states that he is not willing to make confession, the magistrate shall not authorize the detertion of such person in police custody.
(3)
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(4)
Any such confession shall be recorded in the manner provided in section 281 Cr.P.C for recording the examination of an accused person and shall be signed by the person making the confession and the magistrate shall make a memorandum at the foot of such record. Cognizance of offence: the term taking cognizance is not defined in the code, but generally taking cognizance of offence means taking notice of the commission of an offence by a magistrate or judge. It may be on police report or on information given by any person or on own knowledge of magistrate or judge. Magistrate takes cognizance U/S -190 Cr.P.C while Court of Session takes cognizance U/S -193 after commitment of cases to him by the magistrate U/S -209. However the Court of Session may take direct cognizance in cases of defamation of High dignitaries and public servant, if the complaint is made in writing by the public prosecutor U/S -199 (2) and in some other specified cases. Viz under NDPS Act, & SC/ST Act etc. S -190 Cr.P.C says (1) Any magistrate of the 1st class and any magistrate of the second class specially empowered in this behalf under sub section (2) may take cognizance of any offence.
(11)
(a) (b) (c) (2)
Upon receiving a complaint of facts which constitute such offence. Upon a police report of such facts. Upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed. The CJM may empower any magistrate of 2 nd class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try In Manoranjan Tripathy Vs. Ganesh Prasad Singh 1994 Cr I L. J 204 Odisha H. C has held that At the stage of cognizance, the statement on evidence should not be shifted, yet Court is bound to apply strictly the standards of test to merely find out if the materials alleged are sufficient to make out a prima facie case of offence alleged to have been committed by the accused.
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S.K. Shukla

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Model Q Ans For CR P C

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for Judicial Service Main Exams on

(iii) (iv) (v) (vi)

(4) (5) (6)

Warrant Trial by the Magistrate Summary Trial.

(i) (ii) (iii) (iv) (v)

Addl. Session Judge IV.

(4) (2) (1) (2)

(5) (3) (1) (2) (3) (4)

(4) (1) (2)

(3) (4) (5) (1) (2) (3) (4) (5) (6)

(2) (3) (4) (5)

(2) (3) (4) (5)

(1) Withdrawal of complaint

(a) (b) (c) (2)

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