Unit 2

Que 1:- discuss the pre trial procedure.

Ans 1:-

First Information Report: Under Section 154 of the Code of Criminal Procedure,

a FIR or First Information Report is registered. FIR puts the case into motion. A
FIR is information given by someone (aggrieved) to the police relating to the
commitment of an offense.

Investigation: The next step after the filing of FIR is the investigation by the
investigating officer. A conclusion is made by the investigating officer by
examining facts and circumstances, collecting evidence, examining various
persons and taking their statements in writing and all the other steps necessary for
completing the investigation and then that conclusion is filed to the magistrate as a
police report.

Charges: If after considering the police report and other important documents the
accused is not discharged then the court frames charges under which he is to be
trialled. In a warrant case, the charges should be framed in writing.

Plea of guilty: Section 241 of the Code of Criminal Procedure, 1973 talks about
the plea of guilty, after framing of the charges the accused is given an opportunity
to plead guilty, and the responsibility lies with the judge to ensure that the plea of
guilt was voluntarily made. The judge may upon its discretion convict the accused.

Prosecution evidence: After the charges are framed, and the accused pleads
guilty, then the court requires the prosecution to produce evidence to prove the
guilt of the accused. The prosecution is required to support their evidence with
statements from its witnesses. This process is called “examination in chief”. The
magistrate has the power to issue summons to any person as a witness or orders
him to produce any document.

Statement of the accused: Section 313 of the Criminal Procedure Code gives an

opportunity to the accused to be heard and explain the facts and circumstances of
the case. The statements of accused are not recorded under oath and can be used
against him in the trial.

Defence evidence: An opportunity is given to the accused in a case where he is not

being acquitted to produce so as to defend his case. The defense can produce both
oral and documentary evidence. In India, since the burden of proof is on the
prosecution the defense, in general, is not required to give any defense evidence.

Judgement: The final decision of the court with reasons given in support of the
acquittal or conviction of the accused is known as judgement. In case the accused
is acquitted, the prosecution is given time to appeal against the order of the court.
When the person is convicted, then both sides are invited to give arguments on the
punishment which is to be awarded. This is usually done when the person is
convicted of an offense whose punishment is life imprisonment or capital
punishment.

Que 3:- Discuss about the examination of witness by Police and examination
of witness on oath with relevant provisions.

Ans 3:- The object of section 161 is to obtain evidence which may later be
produced at the trial. In case of trial before a court of session or in case of trial of a
warrant-case, a charge maybe framed against the accused on the basis of the
statement recorded by the police u/s 161.

This section empowers the police to examine witnesses during the course of an
investigation. Any person who is supposed to be acquainted with the facts and
circumstances of the case may be examined orally. The words “any person” used
in Section 161 (1) also include a person who may be accused of the crime and
suspects as held by the Privy Council in Pakala Narayana Swami v. Emperor.

Sub-section (2) bounds a person who is examined by police in course of

investigation, to answer all questions put to him truly other than questions the
answers to which are likely to incriminate him or expose him to a criminal charge.
This section as well as Article 20(3) of the constitution gives protection to such
person against questions exposing him to a criminal charge. Article 20(3) lays
down a fundamental right that no person accused of any offence can be compelled
to be a witness against himself.

In Nandini Satpathy v. P.L Dani, the Supreme Court held that the accused person
cannot be forced to answer questions merely because the answers thereto are not
implicative when viewed in isolation and confined to that particular case. He is
entitled to keep his mouth shut if the answers sought has a reasonable prospect of
exposing him to guilt in some other accusation, actual or imminent, even though
the investigation under way is not with reference to that.

Sub-section (1) prohibits an Investigation Officer from taking the signature of the
person questioned when his statement is recorded in writing. Violation of this
mandate may weaken the testimony of the witnesses in trial Court. This bar also
extends to the statements of the accused person. Such statements are not rendered
inadmissible because they necessitate need deeper scrutiny before being accepted
in evidence. The Supreme Court in Narpal Singh v. State of Haryana, held that the
statements made in inquest report are hit by Section 162 and are inadmissible in

evidence if the signatories were not examined, as witnesses.

In Laxman Kalu v. State of Maharashtra, the Supreme Court held that when a
person whose statement has been recorded under section 161, is not examined as a
prosecution witness but as a witness in defense, the proviso to Section 162(1) does
not come into play at all, and the prosecution cannot be allowed to confront a
defense witness with his previous statement recorded during the examination under
Section 161.

A statement recorded by a police officer during investigation is not given on oath

or tested by cross-examination. According to the law of evidence this is not
evidence of fact, so it cannot be treated as substantive evidence. Section 162 bans
the use of the statements collected by the police in the course of investigation for
corroboration. The reasons for the prohibition of the use of the statement made
before police during the course of the investigation for the purpose of
corroboration is that the police cannot be trusted for recording the statement
correctly and as they are often taken down in an undetermined manner in the midst
of confusion.

However, the proviso says that if the person giving the statement is called as a
witness in court, the statement can be used to contradict his testimony. Defense
witnesses cannot be contradicted using such statements. The proviso only applies
to prosecution witnesses.

Que 4 :- Discuss about the confessiory statement before the magistrate with
the help of relevant provisions.

Ans 4 :-

164. Recording of confessions and statements.

(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 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 as evidence 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.
(3) If at any time before the confession is recorded, the person appearing before the
Magistrate states that he is not willing to make the confession, the Magistrate shall
not authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281
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 to the following effect:-" I have explained to (name) that he is
not bound to make a confession and that, if he does so, any confession he may
make may be used as evidence against him and I believe that this confession was
voluntarily made. It was taken in my presence and hearing, and was read over to
the person making it and admitted by him to be correct, and it contains a full and
true account of the statement made by him.
(Signed) A. B. Magistrate".
(5) Any statement (other than a confession) made under sub- section (1) shall be
recorded in such manner hereinafter provided for the recording of evidence as is, in
the opinion of the Magistrate, best fitted to the circumstances of the case; and the
Magistrate shall have power to administer oath to the person whose statement is so
recorded.
(6) The Magistrate recording a confession or statement under this section shall
forward it to the Magistrate by whom the case is to be inquired into or tried.

Que 5:- what is meant by Search and Seizure, discuss broadly.

Ans5:- For a better understanding of the topic let us understand the meaning of the
following terms:

1. Summons– A summon is an order from court to an individual to appear before

it at a specified time and place. A summon can be issued in both criminal and in
civil cases.
2. Warrants– Warrant is legal document issued by a judge or magistrate,
empowering a police officer to make an arrest, search or seize premises or
undertake any action, concerning the administration of justice.

3. Search– The term ‘search’ denotes that action of government machinery which
includes looking through or examining carefully a place, area, person, object etc. in
order to find something concealed or for the purpose of discovering evidence of a
crime. Such search of a person or vehicle or premises or of any other thing can
only be done by taking proper and valid permission of law.

4. Seizure– The act of seizing is well known as seizure. It is a forceful action in

which an object or person is suddenly taken over, grabbed, removed, or
overwhelmed.

Gradually, it came to be recognized that the power of search and seizure was a
necessary power in the interest of the community and without it, the process of law
enforcement might suffer to the detriment of public interest and therefore,
subsequent legislation in England started conferring such power on the police and
various other officers from time to time. In India too, the power of search and
seizure for prevention and investigation of offences was for the first time conferred
under the Code of Criminal Procedure and since search and seizure is a process
exceedingly arbitrary in character, stringent statutory conditions were imposed on
the exercise of the power.

 The Madras High Court in the R.S. Jhaver v. Commissioner of Commercial Taxes,

case elucidates the point: “All that is necessary therefore, is that there should be a
balance struck, just and equitable, in all the circumstances between the sanctity of
the property or individual rights and the interest of the community in law
enforcement either in regard to tax collection or suppression of crimes or any other
by the insistence upon proper safeguard against oppression or violation of
guaranteed basic rights under the Constitution”

General Provision relating to search proceedings

Section 91- Summons to produce document or other thing and Section 92 –

Procedure as to letters and telegram-

It has been provided under these sections that in cases where any Court or any
Officer-in-charge of any police station considers the production of any document
or other thing to be crucial for the purpose of investigation, then in such situation
the person in whose possession or power such document or thing is believed to be,
is summoned i.e. a summon is issued to him which requires him to attend and
produce that important thing at the said time and place as ,mentioned in the
summon.

It is accepted under the code that if a person is required to produce certain

document or thing, produces the same even without personally being present there.

Section 93-

This section states the situations in which search warrants may be issued. The
situations are as follows-
a) Where the court has certain reasons to believe that any person to whom a
summon or requisition has been addressed, will not duly produce the said
document or the thing which is required,

b) In cases where the said document or thing is in possession of any person but is
not known to the court.

c) In cases where general search and inquiry are a must for carrying out inquiry,
trial or other proceeding.

d)In cases where only a specific place or part needs to be searched and inspected
then in that case the same shall be explicitly mentioned in the warrant.

e) However, any magistrate other than a district magistrate or chief judicial

magistrate shall not be authorised to search for any document, parcel or other thing
in the custody of postal or telegraph authority.

In the case of V. S. Kuttan Pillai v. Ramakrishnan, the constitutional validity of

search warrants was upheld, wherein it was opined that a search of the premises
occupied by the accused does not by any means results in compelling him to give
evidence against himself and hence was not violative of Article 20(3) of the
Constitution of India.

Section 94 –

This section contains provisions relating to search of place suspected to contain

stolen property, forged documents or any objectionable articles.
Before issuing a search warrant under Section 94, the Magistrate must satisfy that
there is some allegation or information which is sufficient to draw an inference that
a particular place is used for deposit of the stolen property or forging the
documents or manufacturing of counterfeit coins, false seals etc. He has also to
record the grounds on this belief. The order must, show that the application of
mind of Magistrate before ordering the search of the place.

The High Court of Andhra Pradesh has observed in Dinesh Auto Finance v. State,
that a search warrant under Section 94 can be issued only by District Magistrate,
Sub- Divisional Magistrate, or a Magistrate of the First Class and the person
authorised to search must be a police officer above the rank of a constable. Also,
before issuing the warrant, the Magistrate concerned must have reason to believe
that the place is used for deposit or sale of stolen property or forged documents etc.

Section 95-

This section deals with the power of the state government to declare by way of
notification, that the publication of the copies of the newspaper, book or any
document is forfeited in case it contains any matter which is punishable under the
following provisions of the Indian Penal Code:—

(1) Sedition (Section 124 A), or

(2) Promoting enmity between classes (Section 153-A) or

3) Imputations, assertions that are prejudicial to national integration (Section 153-
B), or
(4) Sale etc. of obscene books (Section 292)

(5) Obscene objects being sold to young persons (Section 293); or

(6) Insulting in a malicious manner the religion or the religious beliefs of any class
(Section 295-A)

In the case of Anand Chintamani Diglie v. State of Maharashtra, a notification for

the forfeiture of the book in all forms entitled Mee Nathuram Godse Bolto ahe (I
am Nathuram Godse speaking) including Gujarati translation was seized under
Section 95 by the State Government for reasons that circulation of the said book
will disturb public tranquillity, promote disharmony or feelings of enmity, hatred
or ill-will among different groups or communities.

Section 97-

This section states that if there is any such situation where the district magistrate,
sub-divisional magistrate or magistrate of the first class, believe that any person is
confined in such manner that such confinement may lead to an offence then in that
case a search warrant may be issued to start the search for such person so confined
and if such a person is found then shall be taken before a magistrate who shall
further take appropriate action.

However, in the case of Ramesh vs Laxmi Bai, it was held that a son in the custody
of his father will not be held to be in any illegal confinement and hence search
warrant for the same cannot be issued.
Section 98-

In case of abduction or unlawful detention of a woman or a female child under the

age of 18 years for any unlawful purpose and order of restoration of such woman
to her liberty by means of issuing a search warrant may be made.

It is to be noted that the provisions of section 38, 70, 72,74,77,78 and 79 of the
code may apply to every search warrant issued under section 93, 94, 95 and 97 of
the Cr.P.C.

Section 100-

This section directs the persons residing in, or being in charge of, any such place
where search or inspection is to be carried out shall allow the officer free ingress
and access to all reasonable facilities for such search.

In case of violation of the above by the owner, the officer may proceed according
to section 47(2) of the code of criminal procedure.

In cases where the owner of such places is suspected of concealing any article
which is of crucial importance for the search then in that case such person can also
be searched and in case such person is a woman then the search shall be made by
another woman strictly.

It is important that before making the search or inspection the officer is bound to
call upon two or more independent and respected members of the locality, where
the search is supposed to take place and in case if no such person is available or
they depict reluctance then in such situation an order is to be issued to them to
make them attend and witness the search.

The search is carried out in the presence of such witness and a list of all things
seized in the course is prepared and then it is signed by the witness. Anyhow, such
witness has no boundation to attend the court until unless summoned to do so.

Under this section, in the case of Sadhu Singh vs. State of Punjab, it has been
stated that in search or inspection of an enclosed area, public witness should not
join, however attempt can be made to make them join according to the situations
and in cases of reluctancy shown by public witness to join then genuine attempts
should be made.

Section 101- 

When a search warrant is being executed which is of any place beyond the local
jurisdiction of the court which issues such warrant then in that case, if the thing for
which the search is made is found, shall be immediately taken before the court
issuing the warrant. However if the magistrate which has jurisdiction in such case
has the court nearer then such thing shall be taken to that magistrate having
competent jurisdiction.

In Matajog Dobey vs. H.C. Bhari , the court has stated that in cases where salutary
provisions have not been complied with, then this may affect the weigh of
evidence in support of the search and may lead to disbelieving the evidence
produced unless the prosecution provides proper explanation for such lack of
compliance to provisions.
Procedure to be followed while carrying out search

 Without a valid search warrant issued by the proper authority, no search

of premises should be carried out
 The presence of a lady officer in the search team is not negotiable.
 The search and seizure should normally be done after sunrise and before
sunset. However if it is conducted after sunset and before sunrise, the
grounds as to why it was felt necessary to take such action and why it
was not possible to obtain a warrant should be recorded and copy of the
grounds so recorded must be sent within 72 Hours to the immediate
official superior. However, search, seizure and arrest may be carried out
any time if there is court warrant or if there is authorization from an
empowered gazetted officer or if the gazetted officer himself is carrying
out the same.
 The officers before starting the search are required to disclose their
identity by showing their identity cards to the owner of the premises and
by taking their signatures on the search warrant.
 It is also important to take signatures of at least two witnesses on the
search warrant and the search should be made in the presence of such
two independent and respected witnesses of the locality.
 A document known as the Panchnama / Mahazar, should be prepared on
the spot which contains the proceedings of the search. A list of all goods,
documents recovered and seized/detained should be prepared and
annexed to this Panchnama/Mahazar. This document and the list of
things seized needs to be invariably signed by the witnesses and the
owner of the premises before whom the search is conducted and also by
the officers who are carrying out the said search.
  After examination of the seized goods or things by the authority, the
original copy of the samples is supposed to be sent to the chemical
Examiner within 72 hours through a test memo for further research.
 It is mandatory here to prepare Form-F and to send it immediately to the
respective authorities.
 Once the search is over, the search warrant should be returned in original
to the issuing authority with a report regarding the outcome of the search.
It is necessary that the names of the officers who participated in the
search be mentioned in the search warrant.
 It is to be noted that a copy of the Panchnama / Mahazar, so formed
should be given to the person in- charge/owner of the premises being
searched under acknowledgement.

Que 6:- discuss about arrest and procedure to make an arrest with the help of
relevant provisions.

Ans 6:- The Criminal Procedure Code of 1973, however, that deals with the
aspects of arrests, has not defined the ‘Arrest’. When a person is arrested, then the
arrested person is taken into custody of an authority empowered by the law for
detaining the person.  The person is then asked to answer the charges against him
and he is detained so that no further crime is committed. 

At times, there is restraint by the legal authority but sometimes the person on his
own submits to the custody of the person making the arrest. 
As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint;
an exercise of the power to deprive a person of his or her liberty; the taking or
keeping of a person in custody by legal authority, especially, in response to a
criminal charge.”

In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as CrPC),

chapter V (Section 41 to 60) talks about Arrest of a person but it does not define
arrest anywhere.

Types of Arrest: Two types of arrest

1. An arrest made in view of a warrant issued by a magistrate

2. An arrest made without such a warrant but in accordance with some legal
provision permitting such an arrest

Who can arrest? 

The arrest can be made by police, magistrate and even a private person

Section 41(1) CrPC Says: Any police officer- may without an order from a
magistrate and without a warrant arrest any person who has committed a
cognizable offence, who is in possession of stolen property, or is a state offender,
who obstructs a police officer in discharge of his duty, who attempts to escape
from lawful custody, who is declared as a deserted from any of the Armed Forces
of the Union, who is a released convict and breaches his contract of release etc.
Section 42 authorizes a police officer to arrest a person for an offence which is
non-cognizable if the  person to be arrested refuses to give his name and residence.

Section 43 gives the right to a private person like you and me to carry out an arrest
of a person who in his presence commits a cognizable or a non-bailable offence or
who is a proclaimed offender. Section 44 arrest by magistrate as per section 44(1)
of CrPC, the Magistrate has been given the power to arrest an individual who has
committed an offence in his presence and also commit him to custody. 

It was held in the case of Bharosa Ramdayal vs Emperor, 1941, that if a person
makes a statement to the police admitting himself of committing an offence, he
would be considered to submitting to the custody of the police officer. Also, if the
accused goes to the police station as directed by the police officer, he has again
considered to have submitted to the custody. In such cases, physical contact is not
required.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held by the court  that
keeping a person in custody in the police station or confining the movement of the
person in the precincts of the police station amounts to arrest of the person.

Medha Patkar v. State (2007): This is a case in MP regarding the Sardar Sarovar
Project. Some landowners and other people who were affected by this project in
MP gathered on the road, shouting slogans, demanding land for land and other
rehabilitation measures.  The gathering was peaceful without disturbing public
order and peace but despite this the Police took it upon themselves to beat the
protestors and arrest all of them under Section 151 of CrPC and also summoned by
the Magistrate under Section 107 of [Link] were women and children too
among the protestors. When the protestors did not submit a personal bond then
sending them to jail, still amounted to the violation of Article 21 of the
Constitution of India.

Process of making an arrest

The mode of arrest is been mentioned under section 46 with or without warrant. In
making an arrest the police officer /other person making the same actually touches
or confines the body of the person to be arrested unless there be a submission to
custody by words or action.  When the police arrests a person in execution of a
warrant of arrest obtained from a magistrate, the person so arrested shall not be
handcuffed unless the police have obtained orders from the Magistrate in this
regard.

1. In making an arrest the police officer or other person making the same shall
actually touch or confine the body of the person to be arrested, unless there
be a submission to the custody by word or action.
Provided that where a woman is to be arrested, unless the circumstances
indicate to the contrary, her submission to custody on an oral intimation of
arrest shall be presumed and, unless the circumstances otherwise require or
unless the police officer is a female, the police officer shall not touch the
person of the woman for making her arrest.
2. If such person forcibly resists the endeavour to arrest him, or attempts to
evade the arrest, such police officer or other person may use all means
necessary to effect the arrest.
 3. Nothing in this section gives a right to cause the death of a person who is not
accused of an offence punishable with death or with imprisonment for life.
4. Save in exceptional circumstances, no women shall be arrested after sunset
and before sunrise, and where such exceptional circumstances exist, the
woman police officer shall, by making a written report, obtain the prior
permission of the Judicial Magistrate of the first class within whose local
jurisdiction the offence is committed or the arrest is to be made.

Que 7:- Discuss about the rights of the accused.

 Ans 7:- Rights of Accused in India

These are the rights of a person accused of a crime such that their freedom and
liberty are not hampered.

The first stage of a trial is the pre-trial stage. Here an FIR is filed on the basis of
which the police arrests a person, searches his property.

The stage prior to the commencement of a court trial is extremely crucial. So, any
person accused of a crime must be granted the following accused rights:

1. Right to know about the accusations and charges: Under the Criminal

Procedure Code (CrPC), 1973, the rights of an arrested person under CrPC
include to know the details of the offence and the charges filed against
him/her.
2. Right against wrongful arrest: The rights of accused in India are provided
only in cases where a warrant is issued. Section 57 of Cr.P.C. and Article
22(2) of Constitution provides rights of accused in CrPC, that he/she must
be produced before a Judicial Magistrate within 24 hours of arrest.
3. Right to accused of privacy and protection against unlawful

searches: The police officials cannot violate the privacy of the accused on a

mere presumption of an offence. As per right of accused in India, his/her
property cannot be searched by the police without a search warrant.
4. Right against self-incrimination: A person cannot be compelled to be a
witness against himself as per Article 20(3) of the Indian Constitution.
5. Right against double jeopardy: A person cannot be prosecuted and
punished for the same offence more than once as per Article 20(2) of the
Constitution.
6. The Right against the ex-post facto law: The rights of accused in India
also gives a person the authority where he/she cannot be tried for an offence
that was the earlier crime and now is not. This means that the retrospective
effect law is not applicable. An act that was not a crime on the day when it
was done, cannot be considered as an offence.
7. Bail as the rights of accused in India: The right of an accused person

allows them to file a bail application to be released from jail custody. There
are three kinds of bail under Indian law- anticipatory bail, interim bail and
bail by a bond. A bail application for normal bail can be filed only in case of
bailable offences. However, a person can also file an anticipatory bail
through his criminal lawyer, before his arrest.
8. Right to legal aid: In this, the rights of an accused person allow him/her to

hire a lawyer to defend them and in case, he is not able to afford a lawyer,
the State has to provide free legal aid to him for his representation in court.
9. Right to a free and expeditious trial: The rights of accused in India has the
right to fair trial in India and an expeditious trial, which is free of any bias or
prejudice.
 In, Nandini Sathpathy vs. [Link], wherein it was held that no one can
forcibly extract statements from the accused and thet the accused has the
right to keep silent during the cource of investigation(interrogation).

In, D.K. Basu vs. State of West Bengal, the Supreme Court, in this case,
issued some guidelines which were required to be mandatorily followed in
all cases of arrestor detention which include, the arresting authority bear
accurate, visible, and clear identification name tags with their degisnation,
the memo be signed by the arrestee and family member, the family or friend
must be told about the arrest of the accused, the arrestee may be permited to
meet his lawyer during interrogation, though not throughout the
interrogation and many other.

Que 8:- Discuss about the arrest without warrant with the help of
relevant case laws.

Ans 8:- Yes, a person can be arrested by police officers or any private person
without warrant ordered by the court. Particularly the police officers may arrest a
person without a warrant under certain conditions. The conditions to arrest a
person without warrant mentioned under Section 41 of the Code of Criminal
Procedure are as follows.

 A person who is concerned with any cognizable offences such as murder,

rape, theft etc. can be arrested without a warrant. Cognizable offences are
the offence, for which a police officer in accordance with the first
 schedule of CrPC or guided by any other law for the time being in force,
can arrest without warrant.
 Cognizable offences are those offences which are very serious in nature.
Example unnatural offences, rape, kidnapping etc. If any cognizable
offence has been committed, a police officer can investigate without the
magistrate’s permission.

Section 154 of CrPC provides that, “under a cognizable offenses, if the police

officer receives any information relating to the commission of a cognizable
offence, if given orally shall be reduced to writing and be read over to informant,
whether given in writing shall be reduced to writing and shall be signed by the
informant and substance shall be entered in a book to be kept by officer in form
prescribed by state government”.

Section 154 provides further that, “if any person aggrieved by a refusal on the part
of the officer in charge of police station, may send the substance of such
information by post to Superintendent of Police, who is satisfied that such
information discloses any commission of cognizable offences, shall either
investigate himself or direct an investigation to be made any police officer
subordinate to him”.

Can a person other than Police Officer make an arrest without warrant?

Yes, a person other than a Police officer can arrest a suspect without
warrant. Section 43 of CrPC states that any private person may arrest without a
warrant-
 1. If any person commits a non-bailabe and cognizable offence in his
presence; or
2. Any proclaimed offender;

Such a private person arresting another shall without delay handover the arrested
person in custody to the nearest police station.

A Magistrate can also arrest without warrant 

Magistrate can arrest without warrant if:

1. If any person commits any offence within the local jurisdiction of and in
the presence of such Magistrate
2. Any person within his local jurisdiction for whose arrest he is competent
to issue a warrant;

D.K. Basu v State of West Bengal

Despite various to attempts to issue proper guidelines to eradicate the possibility of

committing torture by police officials, there were frequent instances of custodial
deaths and police atrocities. The apex court, in this case, issued some guidelines
which are to be followed under all cases of arrest or detentions. Important
guidelines are as follows:

 The person to be arrested must be informed of the grounds of arrest as

per Section 50 of CrPC and Article 22 of the Indian Constitution. It is a
fundamental right of an individual to be informed of the grounds of
 arrest. It is the duty of the officer in charge to inform the person whether
the offence is Bailable or Non- Bailable. Bailable offences are the
offence in which it is the right of a person to be granted bail whereas in
the non-bailable offence it is at the discretion of the court.
 Under section 41 police have the power to arrest a person without a
warrant where an immediate arrest is needed and there is no time to
approach the magistrate and obtain a warrant. For example where a
serious crime has been perpetrated by a dangerous person and there are
chances of him being escaped unless immediately arrested. Later due to
misuse of powers conferred by police officers accorded to them, this
section got amended and put restrictions upon the power of officers such
as police officer must act reasonably while deciding whether the arrest is
necessary or not. The notice should be made if credible information is
received (section 41 a).
 The arrested person has a right to meet an advocate of his choice during
interrogation under section 41 D and section 303 of CrPC.
 The person so arrested has a right to inform his family member, relative
or friend of his arrest under section 50 of CrPC.
 The arrested person has a right not to be detained for more than 24 hours,
without being presented before a magistrate to prevent unlawful and
illegal arrests. This right is also the fundamental right of an individual
under Article 22 of the Constitution.
 The arrested person has a right to remain silent during police enquiry
provided by Article 20(3) of the Indian Constitution so that police cannot
extract any self- incriminating information against him.
Que 9:- What is meant by Bail? Discuss the types of Bail.

Ans 9:- The term bail is not defined under CRPC. Bail is a kind of security which
is given by the accused to the court that he will attend the proceedings against the
accusations made upon him and include personal bond and bail bond.

Bail is a mechanism used to ensure that the accused is present before the court.

There are commonly 3 types of bail in India which a person can apply depending
upon the stage of the criminal matter:

1. Regular Bail: A regular bail can be granted to a person who has already
been arrested and kept in police custody. A person can file a bail application
for regular bail under Section 437 and 439 of the CrPC.
2. Interim Bail: Interim bail is a bail granted for a short period of time. Interim
bail is granted to an accused before the hearing for the grant of regular bail
or anticipatory bail.
3. Anticipatory Bail: A person who discerns that he may be arrested by the
police for a non-bailable offence, can file an application for anticipatory bail.
It is like an advance bail obtained under Section 438 of the CrPC. A bail
under Section 438 is a bail before arrest and a person cannot be arrested by
the police if the anticipatory bail has been granted by the court.

Que 10:- Discuss in detail about the security for keeping peace and good
behavior with the help of relevant provisions.

Ans 10:-  An exhaustive and comprehensive procedure has been provided by the
Code on the subject of Security covering various circumstances which the
legislative wisdom could encompass at the time of enacting this law in its 21
provisions, divided into three [Link] following sections enumerate the
provisions related to the topic:

A) Section 106– Security for keeping the peace on conviction.

B) Section 107– Security for keeping the peace in other cases.

C) Section 108-Security for good behaviour from persons disseminating seditious

matters.

D) Section 109– Security for good behaviour from suspected persons.

E) Section 110– Security for good behaviour from habitual offenders.

A) Section 106: Security for keeping the Peace on Conviction :

1. Section 106 of the Code of Criminal Procedure provides that a Court of sessions
or a Magistrate of the First Class may, at the time of passing sentence on a person
convicted of certain specified offences, order him to execute a bond for keeping
the peace for any period not exceeding three years. It differs from Sections 107 to
110, as the order must be passed at the same time when there is a conviction and
passing of a sentence. The court may order the bond to be executed with or without
sureties.

2. The offences in connection with which security can be taken under the section
are:-
a. Except an offence punishable under section 153 A or section 153 B or section
154,   any offence punishable under chapter VIII of the Indian Penal Code,

b. Offences consisting of, or including assault or using criminal force or

committing mischief;

c. Offences of criminal intimidation

d. Any other offence which caused or was intended or known to be likely to cause
a breach of peace.

3. In passing an order under section 106 of the Code of Criminal Procedure, it has
to be seen, not whether the persons concerned did commit a breach of the peace,
but whether they were convicted of an offence which necessarily involves a breach
of the peace.

4. Under section 106 evidence of past conduct is not legal evidence for an order.

5. Section 106(3) provides, that, if the conviction is set aside on appeal or

otherwise, the bond executed shall become void. Also, the Appellate Court can,
while upholding the conviction for the specific offence, set aside the order for
security passed against the accused.

6. Under sub-section (4), power is given to the appellant court and the High Court
in revision to demand security under the section.
(i) In prosecutions for any of the offences referred to in clauses (a), (b) and (c)
above the need to move the trial Magistrates to bind over the accused concerned
under Section 106 should be carefully examined and timely action taken in cases in
which it is warranted. In respect of persons so bound over, rowdy sheets should be
opened and their movements periodically checked and noted. Amongst other
information, the names and addresses of the sureties should be mentioned in the
sheets.

ii) If during the term for which an accused is bound over under Section 106, breaks
the peace, steps should promptly be taken against him and his sureties and the
Court moved to forfeit their bonds.

Section 107 OF Cr.P.C – Security for keeping the peace in other cases

(1). An Executive Magistrate who is informed that any person is likely to commit a
breach of the peace or disturb the public tranquillity, or to do any wrongful act that
may probably occasion a breach of the peace or disturbance of the public
tranquillity, may, under-Sub-Section (1) of Section 107 of the Code of Criminal
Procedure require such person to show cause why he should not be ordered to
execute a bond, with or without sureties, for keeping the peace for a period not
exceeding one year.

(2) (a) Section 107 is thus an effective means for preventing breaches of the peace
or disturbances of public tranquillity in connection with religious processions,
festivals, fairs, elections, political movements or other disputes between factions. It
is not essential in every case that there should be two parties against each other. It
must however, be clear that a breach of the peace is imminent, unless averted by
proceedings under the section.

(b) Before starting proceedings under this section, the Police should collect
evidence, oral and documentary, of persons (including Police Officers) acquainted
with the circumstances of the case, regarding:

(i) The specific occasion on which the breach of the peace is anticipated;

(ii) The existence of a cause, quarrel or other circumstances which is likely to lead
to the breach and the period of its duration;

(iii) The declaration of the parties indicating their determination to carry out, or to
prevent, certain things in connection with the subject-matter of the quarrel;

(iv) The strength and the following of the party or parties, and

(v) Attempts made for conciliation with their results.

(c) It is not necessary to record elaborate statements of witness, short notes being
sufficient. However, the provisions of Section 162 of the Code of Criminal
Procedure are not applied to any statements or notes made in connection with such
an enquiry. In fact, the enquiry is not governed by any of the provisions of Chapter
XII of the Code of Criminal Procedure.

Section 108 of CrPC Security for good behaviour from persons disseminating
seditious matters:
1) When any Executive Magistrate receives information that there is within his
local jurisdiction any person who, within or without such jurisdiction.-

(i) In any case either orally or in writing or in any other manner, intentionally
disseminates or attempts to disseminate or abets the dissemination of.-

(a) Any matter the publication of which is punishable under section 124A or
section 153A or section 153B or section 295A of the Indian Penal Code ( 45 of
1860 ), or

(b) Any matter concerning a Judge who acts or purports to act in the discharge of
his official duties which amounts to criminal intimidation or defamation under the
Indian Penal Code.

Section 109 of CrPC– Security for good behaviour from suspected persons:

In cases where any Executive Magistrate receives information that within his local
jurisdiction there is a person taking precautions to conceal his presence and that
there are reasons to believe that it is being done by him with a view to committing
a cognizable offence, the Magistrate, in such case may in the prescribed manner,
may require such person to prove and show cause that why he should not be
ordered to execute a bond, with or without sureties, for his good behaviour for such
period, not exceeding one year, as the Magistrate thinks fit.

Before a person can be proceeded against under Section 109 of the Code of
Criminal Procedure, he must be found to be taking precautions to conceal his
presence and there must be reason to believe that he is taking the precautions with
a view to committing any offence. Merely because a person hid his face by means
of a cloth when his presence was noticed by somebody going on the road at
midnight, it cannot be said that he was taking precautions to conceal his presence.

Again, from the mere fact that at the sight of the Police Officer he began to move
briskly and when called out he ran, it cannot be said that he was taking precautions
to conceal himself. It has also been held that by mere possession of a crow-bar by a
person without any precautions being taken to conceal his presence, the
requirements of Section 109 (a) of the Code of Criminal Procedure cannot be said
to have been satisfied. The person proceeded against must have taken precautions
to conceal his presence with a view to committing an offence. Mere disinclination
for the society of the police amounts to no concealment. Mixing with the crowd or
moving in and out of the crowd or ‘dashing’ into it in a railway shed does not
amount to taking precautions to conceal one’s presence. 2137.

The following illustrations are given as examples of cases coming under Section
109 (a) of the Code of Criminal Procedure.

(i) A person concealing himself at night with his companions in hedges near a
village, giving wrong name and address and being unable to explain his presence
in hedges at night with house-braking implement and refusing to disclose the
identity of his companions who had escaped into jungle.

(ii) The respondent giving false name and address to the police was seen
attempting to feel the pockets of crowds at the railway station, appearing originally
at 9 a.m. and suddenly disappearing for two hours and re-appearing at 11 a.m.
2138. As regards concealment, it has been held that it need not be continuous.
Even a single attempt at concealment may be enough. 2139. Proceedings under
both the sections (Section 109 and 110 of the Code of Criminal Procedure) cannot
be taken against one and the same individual at one and the same time.

Reports under Section 109 should be submitted before the Magistrate (Executive),
observing the following principles :-

(i). Once information is laid before the Magistrate, it cannot be withdrawn. Section
321 of the Code of Criminal Procedure has no application to security proceedings;

(ii). Copies of statements of witness recorded by the Police Officer need not be
provided to the respondent, as the information laid before a Magistrate is not a
Police report coming within the purview of Section 173(4) of the Code of Criminal
Procedure; and

(iii). Under Section 116(2) of the Code of Criminal Procedure as for as a summons
case has been prescribed for all inquiries to Sections 107, 109 and 110 of the Code
of the Criminal Procedure. 2141. The Superintendent of Police should specially
ensure that security proceedings initiated under Sections 107, 109 and 110 of the
Code are concluded with utmost expedition in the courts. The Senior
Superintendent of Police (Law & Order) should verify this during the monthly
crime meeting.

SECTION 110 OF CR.P.C. – Security for good behaviour from habitual offenders:

Security cases under section 110 of the Code of Criminal Procedure against local
habituals should be built up on details recorded in the Station Crime History as the
result of careful watching by the Police. It should be very exceptional for a local
criminal for whom a History Sheet has not been opened, to be put up under these
sections.

The section requires that the person proceeded against should be within the local
limits of the Magistrate’s jurisdiction (Executive Magistrate) at the time when
proceedings are taken against him. Otherwise, the Magistrate can not take action
under this section. Temporary presence within the limits of the Magistrate’s
jurisdiction is sufficient. But, then the presence must be at the time when the
proceedings are initiated.

(1) The object of this section also is preventive and not punitive, and action under
it is not intended as a punishment for past offences. It is aimed at protecting society
from dangerous characters against the perpetration of crimes by placing them
under such substantial but not excessive security as would prevent them from
resorting to evil courses.

(2). To sustain a charge under clause (a), the person proceeded against must be
proved to be by habit a robber, house-breaker, thief or forger. The word “habit”
implies a tendency or capacity resulting from the repetition of the same acts.

 (3). To substantiate a charge under Clause (b), it must be proved that the person
proceeded against is a habitual receiver of stolen property knowing the same to be
stolen.

(4). Clause (c) of section 110 Cr.P.C. is designed to meet the cases of persons who
assist the thief after theft by harbouring him, protecting him from discovery and
arrest, and helping him to dispose of his property. The acts, which amount to
harbouring must be done with an intention of screening the offender from legal
punishment or of preventing him from being apprehended.

(5). Clause (d) of section 110 Cr.P.C. prescribes certain offences, the habitual
commission or abetment of which, or the attempt to commit which, is ground for
taking action under this section.

(6). Clause (e) contemplates taking security when one habitually commits or
attempts to commit or abets the commission of offences involving breach of the
peace. The following are the offences within the purview of this clause:

(i) Offences punishable under Chapter VIII of the Indian Penal Code, other than
those punishable under sections 143, 149, 153-A and 154, Indian Penal Code,

(ii) Assault or other similar offences, and

(iii) Criminal intimidation.

This can be effectively used in curbing the activities of factionists.

(7). Under Clause (g), “a man of desperate and dangerous character” means a
person who shows such a reckless disregard for the safety of the person or property
of his neighbours that his being at large without security would be detrimental to
the community.
In Madhu Limaye & Ors vs. Sub-divisional magistrate,Monghyr & Ors., the
constitutional validity of chapter VIII was challenged and gist of the chapter that it
is for prevention of crimes and prevention of public tranquillity and to curb breach
of peace was held.

In Vijay Narain Singh vs State of Bihar, the Supreme Court clarified the meaning
of the term ‘Habitual’.

The expression refers to repetition and continuation and hence means acts which
are repetitive in nature and hence would not include any single act or omission. 

Que 11:- What is meant by Charge? Discuss elaborately about framing

charges with the help of relevant provisions.

Ans 11:- A charge is an allegation imposed against an accused. The basic

foundation behind a charge is to inform in clear and precise manner to accused of
the issues he is charged with. It is of the utmost importance to any accused to know
what the prosecution supposes to prove against him. It is the fundamental principle
of criminal law is to inform the accused about the offence he is charged with.

The Code of Criminal Procedure (Cr.P.C.) does not define a charge. Section 2(b)
of Cr.P.C. only provides that -“charge includes any head of the charge when the
charge contains more heads than one”. The very purpose of the charge is to
disclose in short to an accused the offence with which he is charged so as he can
defend himself and answer.
Contents of Charge

Section 211 and 212 of Cr.P.C. prescribes certain contents and particulars of
charge respectively. The need to prescribe the contents of a charge is that a proper
charge is a crucial part of any criminal trial. In the case of Balakrishnan, it was
held that the framing of a proper charge is vital to a criminal trial and that is the
matter on which the judge should bestow the most careful attention. A defect in the
charge vitiates the conviction. The following are the contents of a charge:

1. Every charge shall disclose the offence an accused is charged with.

2. Such offence should be written and specified by such name that has been
specified by the law which creates the offence. Further, as per section
214, the words used to describe the offence charged shall be deemed to
use in the same manner as the same has been specified under the law
which makes such offence punishable.
3. If the law which creates the offence does not assign any specific name to
it, then such offence must be communicated to the accused in the manner
that its meaning gets clear.
4. Every charge shall contain the law and section against which such
offence is alleged to be committed. Further, in the case of State of West
Bengal v. Ajit Kumar Saha, it was held that mere mention of a section
under which a person is accused without mentioning the substance of the
charge amounts a serious breach of procedure. Thus, it is necessary to
mention not only the law and section but also its texture.
5. The charge made must contain all the essential requirements of the
offence i.e. it must not fall under any exception. If it falls within any of
the exceptions it should be mentioned.
6. Every charge should be written only in the language of the court.
7. If the punishment of an accused is liable to be enhanced by the reason of
his previous conviction and such previous conviction is intended to prove
then the charge should mention the date, time and place of the previous
conviction. It is important to enter in the charge about such previous
conviction and also, the accused must plead not guilty. And, where the
previous convictions are denied, the prosecution is bound to prove that
there were such convictions and that the accused was the person
convicted.
8. Every charge shall contain all the particulars of the time and place of the
alleged offence. The person (if any) or the thing(if any)against which the
crime was committed must be mentioned. The object behind prescribing
the particulars as to time, place and person is to inform to accused about
the matter for which he is charged. Unless the accused has the
knowledge he would be seriously prejudiced in his defence. However,
where it is not possible for the prosecution to mention particulars
precisely having regard to the nature of the information available to the
prosecution, failure to mention such particulars may not invalidate the
charge.
9. If any offence has been committed against any movable property of
offence relating to breach of trust or misappropriation of money, the
charge should state the gross sum or should describe the movable
property against which the crime is alleged to be committed and the date
on which the said offence is committed.
The framing of Charges

The framing of charges is one of the most imperative parts of any criminal process
and it should be framed by the court after proper scrutiny. The section 228 ensures
that the court is satisfied that the offence alleged against an accused is not
erroneous and fraudulent and depends upon some material proceedings against
him. A charge is required to be framed in all warrant cases whether triable by
Court of Session or Magistrate. At the time of framing the charged the
concentration has to be placed on that there exists a prima facie case against the
accused. The test to determine prima facie case depends upon the facts and
circumstances of each case.

The Supreme Court of India in the case of Union of India v. Prafulla Kumar,  laid
down the following principles as to when charge should be framed:

1. That the Judge while considering the question of framing the charges
under section 227 of the Code has the undoubted power to sift and weigh
the evidence for the limited purpose of finding out whether or not a
prima facie case against the accused has been made out;
2. Where the materials placed before the Court disclose grave suspicion
against the accused which has not been properly explained the Court will
be, fully justified in framing a charge and proceeding with the trial;
3. The test to determine a prima facie case would naturally depend upon the
facts of each case and it is difficult to lay down a rule of universal
application. By and large however if two views are equally possible and
 the Judge is satisfied that the evidence produced before him while giving
rise to some suspicion but not grave suspicion against the accused, he
will be fully within his right to discharge the accused;
4. That in exercising his jurisdiction under section 227 of the Code the
Judge which under the present Code is a senior and experienced Judge
cannot act merely as a Post office or a mouth-piece of the prosecution,
but has to consider the broad probabilities of the case, the total effect of
the evidence and the documents produced before the Court, any basic
infirmities appearing in the case and so on. This, however, does not mean
that the Judge should make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial.

Alteration of Charge

Section 216(1) of Code empowers the court to alter any charge. However, such
alteration can only be made before the pronouncement of judgment. Addition or
alteration of a charge or charges implies one or more existing charge or
charges. For adding a new charge there must be material before the court either in
the complaint or in the evidence to justify the action. It is an inherent power of the
court to correct the defects of the framing of charges discovered at the initial stage
or any subsequent stage prior to judgment.

According to section 216(2), every alteration or addition made shall be explained

and communicated to the accused. Where the court is of the opinion that the
alteration or addition will not prejudice the accused or his prosecutor, the court
may proceed with such alteration or addition as if it has been the original charge.
But if the court is an opinion that it will prejudice the accused, it may adjourn the
trial for the necessary period or may direct to start the new trial. Further, where it is
necessary to take the previous sanction for any alteration, such case will not
proceed until the sanction is received unless the sanction is already received for the
prosecution on the facts on which such alteration is based.

Effect of Defect in the Charge

Section 215 is intended to prevent any failure of justice for non-compliance with
the matters required to be stated in the charge. The main purpose of this section is
to prevent a miscarriage of justice when there is any defect in the formulation of
charge. Section 215 provides that any error or omission in any offence or
particulars in the charge will be considered material unless such error or omission
prejudice the accused and misled the justice. The section contemplates that any
irrelevant inconsistency in the charge will not affect the proceedings of the trial
and its outcome.

Section 464 of the Code explains the same question. Section 464(2) provides for
re-trial of the accused where there is a material error in the charges resulted in the
failure of justice. The main concern should be that the accused had given a
reasonable opportunity to defend himself and had a fair trial. The Supreme Court
in the case of Rafiq Ahmad v. State of Uttar Pradesh held that non- framing of
charges or some defect in the drafting of charge, per se, will not vitiate the trial
itself. The same has to examine in the facts and circumstances of a given case.

Joinder of Charges
The general rule embodied under section 218 of the Code provides that for every
different offence there shall be a separate charge and every charge shall be tried
separately. The inclusion in one charge of several distinct offences is an illegality
and the conviction on such a charge must be set aside. This section makes
mandatory to charge different offences differently except under certain conditions
specified under sections 219, 220, 221 and [Link] of section 218 may
lead to the multiplicity of trials and thus, exceptions are essential.

Section 219 is an exception to the general rule established under section 218.
Section 219 allows three charges of three offences of the same kind committed
within twelve months to be tried together. Three offences of the same kind under
this section contemplated a joint trial for three separate offences only when the
offences which may form part of the same transaction as each of those three
offences of the same kind, unless all the offences have taken together, can said to
form part of one [Link] 220 of the Code deals with the joinder of
charges where the different offences are parts of one transaction. Section 220
allows to trial together where the offence exceeds three in number and committed
over a period of twelve months if the offences are committed in one series acts so
connected together as to form the same transaction. The Supreme Court has taken
the view that it is the option of the court whether to resort to Section 219,220 &
223 of the Code or whether to act as laid down in Section 218 and that the accused
has no right to claim joinder of charges or of offenders.

Withdrawal of remaining Charges

According to section 224 of the Cr.P.C. states that where a charge contains more
than one head against the accused and is been convicted on one or more of them,
with the due permission of the Court withdraw the remaining charges. The Court
under section is also empowered to withdraw the charges by his own after
inquiring into the matter. A charge can be withdrawn under section 224 Cr.P.C.
only after judgment and it cannot be deleted.

Que 13:- A, a police officer is informed by an individual that a gruesome

murder has taken place in a broad day light. Can A take cognizance of the
case and start investigation? Discuss with the help of relevant provisions and
case laws.

Ans 13:-