Crpc Notes

Module 1

Topic - 1

• Classification of offences under CrPC

An offence is an illegal act or crime punishable in the

eyes of law, The Code of Criminal Procedure Code,
1973 has recognised offences under three categories:-
▪ Cognizable & Non-Cognizable offence
▪ Bailable & Non-Bailable offence
▪ Compoundable & Non-Compoundable offence
1.COGNIZABLE AND NON- COGNIZABLE OFFENCE
COGNIZABLE OFFENCE
A cognizable offence is an offence where the police
officer in accordance to the first schedule or under
some other law can convict an accused without a
warrant, usually, these offences are of heinous nature
like murder, rake, kidnap, theft, dowery death…etc. In
such offences the accused must be produced before
the court in the stipulated time.
It is essential to file a First Information Report (FIR),
under section 154 CrPC, it mandatory for a police
officer to note the commission of a cognizable offence
in writing, which gives him the opportunity to collect
evidence. In-State of Haryana v/s Bhajan Lal[2], the
supreme court held that the FIR must contain a piece
of information disclosing the commission of the
cognizable offence.
It is the duty of the police officer to lodge an FIR and
investigate the same, The courts have no power under
section 482 CrPC to interfere with the investigation by
the Police or staying of arrest in cognizable cases[3].
EXAMPLES OF COGNIZABLE OFFENCE
▪ Hiring or engaging persons to take part in an
unlawful assembly or taking part in itself
▪ Negligently or deliberately engaging into an act
which is likely to spread infection of any dangerous
disease
▪ Counterfeiting Indian coin, selling false weights or
measures for fraudulent use
▪ Rioting armed with dangerous weapons
BAIL OF COGNIZABLE OFFENCE
▪ After investigation, if the charge sheets turn out to
be against the accused then the magistrate can
order an arrest.
▪ During the Trial, bail application can be filed
against the concerned magistrate, In appropriate
cases, interim bail can be granted pending disposal
of the final bail application, since arrest or
detention can cause harm to a person’s reputation
causing irreparable loss[4].
▪ Cognizable offences are both bailie and non-
bailable.
NON- COGNIZABLE OFFENCE
Non- cognizable offences are those where a police
officer cannot arrest the accused without the warrant,
as listed under the first schedule of Indian penal code.
These are usually not as serious as cognizable offence
such as forgery, cheating, defamation,..etc
In such offences, FIR is lodged to the magistrate after
which the concerned police officer initiates
the investigation. A charge sheet is further filed by the
police officer which is followed by the trial and final
order of arrest if the case has been made out. Any
investigation without the requisite permission or order
by the magistrate would be one without the
jurisdiction[5]. Under section 155 of CrPC, if two or
more offences are committed and one of them is
cognizable then the officer will not be debarred from
the further investigation as well as arrest can take
place[6].
EXAMPLES OF NON- COGNIZABLE OFFENCE
▪ A public servant disobeying law with intent to
cause harm to any person.
▪ Bribing during elections
▪ The false claim in a court of justice
▪ Buying a slave
▪ Misappropriation of movable property
BAIL OF NON-COGNIZABLE OFFENCE
▪ If the case is fit for trial, accused is put forward
the magistrate and if the case turns out against
him then arrested.
▪ In Hamid v/s Rashid alias[7], in case of addition of
serious non-cognizable offence is required to
surrender and apply for bail for newly added
offences to save him from arrest.
▪ The non-cognizable offence is bailable
2. BAILABLE OFFENCE AND NON- BAILABLE OFFENCE
BAILABLE OFFENCE
A Bailable offence is a one where bail is an absolute
and indefeasible right, it could be granted by the police
officer in whose custody he is or concerned magistrate.
Such offences are being a member of an unlawful
assembly, giving false evidence in a judiciary, causing a
disturbance in an assembly..etc. In Rasiklal v/s
Kishor[8], it was held that under section 436 of the code
a bailable offence is entitled to be released on bail
pending his trial. The offender is released on the basis
of a “Bail Bond”.
BAIL UNDER BAILABLE OFFENCE
Bail can be granted on the basis of “Bail Bond” which
contains the following conditions :-
▪ Not to leave the territorial jurisdiction without the
permission of the court.
▪ Shall be present before the police whenever
required to do so.
▪ Not to tamper with the evidence.
In Public prosecutor v/s Raghuramaiah[9], it was held
under section 496 of the code, it is envisaged to realize
the accused person on bail, further, the bond or
sureties will be decided by the court itself. The court
may refuse to grant bail to a bailable offence if the
offender does not comply with the bail bond.
NON BAILABLE OFFENCE
A Non- bailable offence is the one where bail is not the
matter of right, bail can only be granted in discretion of
the court, such offences usually include murder,
rape..etc. In State of Maharastra v/s Ramesh
Taurani[10], it was held that along with other
considerations, nature and gravity of the offence are
essential to decide whether bail seal be granted to a
Non- Bailable offence. Here,“ Bail Bond “ is used to
grant bail along with more stringent conditions than of
bailable offence. In state v/s Caption Jagjit Singh[11], it
was held that a non – bailable offence cannot be
granted bail if convicted for life imprisonment or the
death sentence.
If the accused has been arrested for two offences the.
He must get a bail bond for both the offences and
satisfy conditions under them; At any point, if at any
point the conditions of a bail bond are fulfilled then the
bail will be forfeited. In such conditions any Appel can
be made against a forfeited order, Appel shall lie
against the same judge and court where the order of
forfeiture was passed.

BAIL UNDER NON- BAILABLE OFFENCE

▪ The application of bail is granted before the
magistrate conducting the trial.
▪ Under section 497 of CrPC, it well settled that a
judge has the discretion to grant or refuse bail to a
person accused of a non – bailable offence.
▪ He may be refused of bail if attempted to abscond
or is doubtful of his credentials.
▪ Accused may apply for anticipatory bail to either
high court or session court in order to get direction
under section 438 of CrPC if he thinks he might get
arrested. Anticipatory bill id different from that of
normal bail, it is issued before an arrest takes
place and becomes operative after the arrest has
taken place.
Anticipatory Bail
It is applicable on bailable and nonbailable offences,
the power given under anticipatory bail is privileged to
a person who is under the apprehension of arrest thus
when abused it can be taken back under section 439 of
CrPC. In K. Gajendra Baidu v/s State of A.P[12], it was
held that granting bail is necessary as at times
influential persons implicate their rivals into false
cases.
3. COMPOUNDABLE OFFENCE AND NON-
COMPOUNDABLE OFFENCE
COMPOUNDABLE OFFENCE
The compoundable offence is where the complainant
can drop his charges and enter into a compromise, the
compromise must be Bonafide and not something to
which he is not entitled, the court grants permission
when convinced that the offence is entirely personal in
nature and therefore does not affect public tranquility
and compromise would bring peace as well as the
secure end of justice, in such cases pursuing
prosecution would be waste of time and energy[13].
Section 320 of CrPC splits up compoundable offences
into two:-
▪ Taking permission of the court is not
necessary- such as criminal trespass, causing her,
defamation…etc
▪ Taking permission of the court is
necessary:- There are offences where the
complainant has to take the permission of the
court to drop the charges, the permission is
 usually required for offences grievous in nature
and a bad example for the society such as
voluntarily hurting someone with dangerous
weapons, intentional alteration or destruction of
valuable property during delivery…etc
▪ Application for such offences shall be made
before the same court where the trial is
proceeding, once the charges are drop, the case is
treated as the accused has been acquitted of the
charges.
NON- COMPOUNDABLE OFFENCE
A Non- compoundable offences cannot be
compounded, can only be quashed as they are
generally of heinous and criminal nature, thus the
accused cannot be allowed to go scot-free. All offences
not mentioned in section 320 of CrPC fall under Non-
compoundable offence. The complaint is generally
filled by: the state” like police..etc hence the question
to drop charges does not arrive, even the court does
not have the power to compound such offences , the
trial ends with acquitted or conviction of the offence,
with the final order, the criminal trial ends.
Topic – 2
• FUNCTIONARIES UNDER Crpc

The Code of Criminal Procedure,1973 have various

functionaries for the proper functioning of the Code.
These functionaries are essential and important part of
the CrPC, each functionary imposed of powers and
functions. The various functionaries under the Criminal
Procedure Code are Police, Prosecutors, Court,
Defense Council and Prison Authority and Correctional
Services.

The Police
The definition of term Police is not defined in the
Criminal Procedure Code, therefore it is defined in the
Police Act,1861. The Police officer is responsible for
maintaining the law and order of the nation and they
have the power to enforce laws and orders. The
Central as well the State Governments provides for
setting up their organisations. In Prakash Singh v.Union
of India[i], the guidelines regarding the reorganization
of the police was given by the Court. The major
function of the police is to prevent crimes and maintain
peace in the society
Section 151 of the Code of Criminal Procedure deals
with the power to arrest a person without warrant and
the person shall not be detained for more than
24hours from his arrest. It is necessary to produce him
before the Magistrate. The Police officer has the power
to record statements made orally in the commission of
the cognizable offence[ii]When the cognizable offence
happened against women under the certain provisions
of the Section154, then the statement shall be
recorded by a women police officer only. Under
Section156 of Code, it gives power to the police in
charge of the cognizable offence within their
jurisdiction to investigate into the case without the
order of a Magistrate.

Prosecutors
Section 24 and Section 25 of the Criminal Procedure
Code defines the appointment and qualifications of the
Public Prosecutor and Assistant Public Prosecutor. The
Central Government and the State Government are
empowered with the power to appoint prosecutors for
conducting prosecution for state and other
proceedings in High Court, Sessions Court or Court of
Magistrate.
Public Prosecutor In High Court
The Central and State Government after the
consultation with the High Court appoints a Public
Prosecutor and Additional Public Prosecutor. They are
appointed to conduct the prosecution and other
proceedings of the State or Central Government.[iii]A
Public Prosecutor or an Additional Public Prosecutor
can be appointed if he has not less than seven years of
practice as an advocate.

In Sessions Court
The District Magistrate(Collector) in consultation with
the Sessions Court Judge prepare a panel of names of
persons who are eligible to be the Public Prosecutor or
Additional Public Prosecutor of the Sessions Court. The
State Government need to appoint the Public
Prosecutor or Additional Public Prosecutor by the
panel of names. Both the Central and the State
government can appoint one or more Public
prosecutor and Additional Public Prosecutor for the
SessionsnCourt.To appoint as a Public Prosecutor or
Additional Public Prosecutor, the advocate must have
practice not less than seven years.
In Abdul Khader v. The State Of Kerala, [iv]it was held
that a district Magistrate cannot delete a person name
from the panel as it is was recommended by the
Sessions Judge and he cannot add the name of a
person to the appointment of Additional Public
Prosecutor without the consultation of Sessions Judge.

Special Public Prosecutor

A special public prosecutor can be appointed in special
circumstances. The Central Government and the State
Government appoints the Special Public Prosecutor for
the prosecution of any case, the prosecutor must have
experience not less than 10 years as an advocate.

Assistant Public Prosecutor

The State Government can appoint Assistant Public
Prosecutor for the prosecution of cases in different
districts. Under Section 125 of the Code, The state can
appoint an assistant public prosecutor. They have only
the right to do prosecution for the state and cannot
practice as an advocate independently. He is
considered a full-time government servant. If there are
no public prosecutors available for a case, the collector
of the district can appoint assistant public prosecutor
in charge of that case. A police officer can be
appointed as an assistant public prosecutor, he shall
not be an officer below the rank of Inspector.

Court
The Court are classified into various classes of Criminal
Courts under CrPc, and the Court as a Judicial Authority
is the important part of the judicial administration of
the State. Section 6 of the Criminal Procedure
Code,1973 describes the following criminal courts:

Court of Session
Judicial Magistrate of First Class
Judicial Magistrate of Second Class
Executive Magistrate
The Supreme Court and High Court comes under
Criminal Jurisdiction, but they are the Courts which
have appellate jurisdiction. High Court, Court of
Sessions or any other Court mentioned in First
Schedule of the Code can trial offences under Indian
Penal Code[v].From Section 28 to 30 of Code states the
sentences that can be passed by different Courts with
the procedure of trial.

The Defence Counsel

Article 22 of The Indian Constitution provides free legal
aid to the accused. A person who was arrested by the
police has the right to defend with the help of Counsel.
When the accused arrested with the restriction of his
liberty thus the person has the right to defend it and it
consists of an essential right. Section 303 of the
Criminal Procedure Code deals with the right to
appoint a defence counsel. Incase if the accused is not
appointed with a defence counsel, the Court can ask
questions in cross-examination to find the truth and
can evaluate into the evidence submitted.

In-State of Madhya Pradesh v. Shobharam[vi], it was

held that if any law seizes the right to defend, it is
considered as against Article 22 the right guaranteed
under the Constitution of India.
Prison Authorities and Correctional Services
Personnel
The Prison Act,1900 is implemented to govern into the
proceedings of the prison authorities. This authority
does not come under the Code of Criminal Procedure.
The Act is introduced to provide powers to the prison
officer to detain the convicted person. Section 3 of the
Prison Act, gives the power for the officer in charge to
detain he convicted person until the end of
imprisonment period. The prison workers are fixed by
the Management Correctional Services and State
Government has powers to appoint the prison
authority.

Topic – 3
• Powers and Functions of Prosecutor and
Defence Counsel

PROSECUTOR AND DEFENCE COUNSEL: CONCEPTS

UNDER CrPC, 1973

PROSECUTOR
A crime is a wrong not only against an individual
but is also against the society. And thereby the
state, which represents the collective of people,
participates in the criminal trial of an accused,
specifically if the crime is cognizable. Public
Prosecutor or Assistant Public Prosecutor is the
person appointed by the state counsel for such
trials. As per section 2(u), Public Prosecutor means
any person appointed under Section 24 and also
includes any person acting under the directions of
the public prosecutor.

The main function of the Public Prosecutor is to

dispense justice and to safeguard the public
purpose entrusted with him. The Public Prosecutor
is an esteemed officer of the State Government
that is appointed according to the provisions of
this code. Further, The Public Prosecutor is a self-
governing statutory authority and is not a part of
any investigating agency. However, it is obligatory
to appoint a Public Prosecutor in all cases when
the prosecution is abreast of the State. The Court
cannot provide any speculations like shortage of
funds to appoint a Public Prosecutor.
 Further, it is noteworthy that the Advocate-
General cannot become a Public Prosecutor unless
he is appointed under Section 24. The nexus
between the Public Prosecutor and the
Government is the same as that of a counsel and a
client. The Public Prosecutor shall never be biased
to either the accused or prosecution. Furthermore,
there are various classes of Public Prosecutors. To
name some:

1. Public Prosecutors appointed by the State

Government and the Central Government;
2. Additional Public Prosecutors appointed by the
State Government;
3. Special Public Prosecutors appointed by the
Central Government;
4. Special Public Prosecutors appointed by the
State Government.

• PUBLIC PROSECUTORS AND ADDITIONAL PUBLIC

PROSECUTORS FOR HIGH COURT
 Section 24(1) of the Code of Criminal Procedure
empowers the Central Government or State
Government to appoint a Public Prosecutor for
every High Court. Besides this, they can also
appoint one or more than one Additional Public
Prosecutors. Moreover, the appropriate
Government can also appoint the Public
Prosecutors after proper consultation with the
High Court. A person would be eligible to be
appointed as a Public Prosecutor if he is practicing
as an Advocate for not less than seven years.

• PUBLIC PROSECUTORS AND ADDITIONAL PUBLIC

PROSECUTORS FOR DISTRICTS

Section 24 provides various rules concerning the

appointment of Public Prosecutors and Additional
Public Prosecutors for districts. The Central
Government can designate one or more Public
Prosecutors for conducting cases in any district or
local area. Similarly, the State Government can
also appoint one or more Additional Public
Prosecutors for the district. The Public Prosecutor
or Additional Public Prosecutor appointed for a
district can also be appointed for another district
 in certain cases. The District Magistrate will serve a
panel of names of persons that are eligible to be
appointed as a Public Prosecutor or Additional
Public Prosecutor. And this list is framed after
consulting the Sessions Judge. It is noteworthy
that the State Government cannot appoint any
other person as the Public Prosecutor or
Additional Public Prosecutor another than the
persons presented in the panel of names.

• ASSISTANT PUBLIC PROSECUTORS

Section 25 of the Code of Criminal Procedure

administers the appointment of Assistant Public
Prosecutors. The State Government has to appoint
one or more Assistant Public Prosecutors for
handling prosecutions in different districts.
Further, the Assistant Public Prosecutors have no
right to practice as advocates or shield/defend the
accused in criminal cases. Their only work is to
handle prosecutions on behalf of the State.
Moreover, if there is no availability a police officer
who is not lesser the rank of Inspector and who
has not taken part in the investigation of offense
can also be appointed as Assistant Public
Prosecutor. Besides this, the Assistant Public
Prosecutors are regarded as full-time Government
servants.
To illustrate more, in a prominent case namely,
KANNAPPAN VS. ABBAS, the Madras High Court
held that the permission conferred by a Magistrate
permitting the accused to appear for the accused
was without jurisdiction. Essentially the Public
Prosecutor is not competent to act as a defense
counsel indeed in a private criminal complaint
against police officers.

POWERS AND FUNCTIONS UNDER CR. P.C

A. POWERS
1. According to the Section 301 of the Code, a
Public Prosecutor or Assistant Public Prosecutor
has the authorization to appear and plead before
any court in any case entrusted to him.
2. According to the Section 321 of the Code, he
can veto from the prosecution against any person
with the proper consent of the court.
According to the standard set by CrPC, Public
Prosecutors administer the proceedings in Session
Courts and the High Courts and Assistant Public
Prosecutors are appointed for conducting the
same in Magistrates’ Courts. And as per prevailing
practice, in respect of cases inaugurated on police
reports, the prosecution is administered by the
APP and in cases initiated on a private complaint,
the prosecution is either handled by the
complainant himself or by his duly authorized
counsel.

B. FUNCTIONS
A public prosecutor is mainly concerned with
handling the prosecution on behalf of the state.
Moreover, his goal is not only to produce a
conviction but to help the court to reach a just
decision. He also obliges as the state counsel in
criminal appeals, revisions, and such matters in the
Session Courts and High Court. Notably, he does
not appear on behalf of the accused.
Furthermore, the role of the prosecutors under Cr.
P.C was elaborately described by the apex court in
the prominent case namely, Md. Mumtaz v.
Nandini Satpathy, (1987) 1 SCC 288.
In this case, the court observed that “a public
prosecutor should be personally indifferent to the
result of the case. His duty should consist of
placing all the available evidence to aid the court
in discovering the truth” Therefore, it can be
concluded that in the machinery of justice, a Public
Prosecutor has to play a very accountable role;
“his impartial conduct is equivalent to the
impartiality of the court itself.”

DEFENSE COUNSEL

According to Section 303, “any person accused of

an offense before a Criminal Court, or against
whom proceedings are instituted under this Code,
may of right be defended by a pleader of his
choice”.

Unlike the different functionaries under the Code,

such as the police and the prosecutors, the
advocates and pleaders engaged in the task of
defending the accused persons are not in the
regular employment of the State, and mostly, they
receive the required remuneration for their
services from the accused persons itself.
Notwithstanding, they are also the officers of the
court and are quite necessary if a fair trial is to be
given to an accused person. Our adopted
adversary system of a criminal trial assumes that
the State using its investigative sources and
employing a competent prosecutor would
prosecute the accused, who, in turn, will engage
equally competent defense counsel to challenge
the evidence of the prosecution. Hence, both the
Constitution of India and the Code confer on the
accused person a right to consult and to be backed
by a legal practitioner of his choice.

However, this right to counsel would be no of no

value if the accused due to his poverty or
impoverished conditions has no means to engage
a counsel for his defense. The indigent accused
endure the risk of denial of a fair trial when he
does not have equitable access to the legal
services that are available to the opposite side. To
a considerable extent, the Code has ventured to
find a solution to this problem. Section 304
provides that where, in a trial before the Court of
Session, the accused is not represented by a
pleader, and where it appears to the court that the
accused has not sufficient means to engage a
pleader, the court shall assign a pleader for his
defense at the expense of the State; and the
section further empowers the State Government
to extend the application of the above provision in
relation to any class of trials before other courts in
the State.

Further, the Supreme Court within a process of

constitutionalizing has held that the fundamental
right to live implicitly compels the State to make
provisions for grant of free legal services to an
accused who is incapable to engage a lawyer on
account of reasons such as poverty, indigence or
incommunicado situation. The only qualification in
this matter would be that the offense commanded
against the accused is such that on conviction it
would lead to a sentence of imprisonment and is
of such nature that the circumstances of the case
and the needs of social justice demand that he
should be given free legal representation.
Remarkably, at present, there are various schemes
under which an indigent accused can avail legal
 aid. The Legal Services Authorities Act, 1987 also
renders legal aid to the needy.

CONCLUSION
The functionaries under the Code of Criminal
Procedure are very crucial for the enforcement of
various provisions of this Code. Each functionary
has a different duty that collectively regulates
various provisions of this code. The public should
be cognizant of the various functions performed
by these functionaries so that an approach can be
made towards them when an issue arises. The
Public should sustain these functionaries in every
way expedient to help them perform their duties.
the two functionaries aforementioned area also
very much crucial. Thus, these authorities form an
influential part of the criminal proceedings.

Topic – 4

• Hierarchy of courts and Powers

Hierarchy of Criminal Courts

The hierarchy of the Criminal Courts in India is as
follows
• The Supreme Court of India – The Supreme Court
Of India, being the apex court of India, was
established under Article 124 of Part V and
Chapter IV of the Constitution of India.
• The High Courts of India– The high courts are at
the second level of the hierarchy. They are
governed by Article 141 of the Constitution Of
India and are bound by the judgement of the Apex
Court.
• Lower Courts of India have been classified as
follows.
• Metropolitan Courts
• Sessions Court
• Chief Metropolitan Magistrate
• First Class Metropolitan Magistrate
• District Courts
o Sessions Court
o First Class Judicial Magistrate
o Second Class Judicial Magistrate
 o Executive Magistrate

Constitution of Criminal Courts in India

1. The Sessions Judge– Section 9 of the CrPc talks

about the establishment of the Sessions Court. The
State Government establishes the Sessions Court
which has to be presided by a Judge appointed by
the High Court. The High Court appoints Additional
as well as Assistant Sessions Judges. The Court of
Sessions ordinarily sits at such place or places as
ordered by the High Court. But in any particular
case, if the Court of Session is of the opinion that it
will have to cater to the convenience of the parties
and witnesses, it shall preside its sittings at any
other place, after the consent of the prosecution
and the accused. According to section 10 of the
CrPC, the assistant sessions judges are answerable
to the sessions judge.
2. The Additional/ Assistant Sessions Judge- These
are appointed by the High Court of a particular
state. They are responsible for cases relating to
murders, theft, dacoity, pick-pocketing and other
such cases in case of absence of the Sessions
Judge.
3. The Judicial Magistrate– In every district, which is
not a metropolitan area, there shall be as many as
Judicial Magistrates of first class and of second
class. The presiding officers shall be appointed by
the High Courts. Every Judicial Magistrate shall be
subordinate to the Sessions Judge.
4. Chief Judicial Magistrate- Except for the
Metropolitan area, the Judicial Magistrate of the
first class shall be appointed as the Chief Judicial
Magistrate. Only the Judicial Magistrate of First
Class may be designated as Additional Chief
Judicial Magistrate.
5. Metropolitan Magistrate- They are established in
Metropolitan areas. The High Courts have the
power to appoint the presiding officers.
The Metropolitan Magistrate shall be appointed
as the Chief Metropolitan Magistrate. The
Metropolitan Magistrate shall work under the
instructions of the Sessions Judge.
6. Executive Magistrate- According to section
20 in every district and in every metropolitan area,
an Executive Magistrate shall be appointed by the
State Government and one of them becomes
District Magistrate.
 Powers of Criminal Courts

1. The Apex Court

The Supreme Court is the ultimate court, at the
top of the Judicial system. It has the supreme
judicial authority in our country.
• Federal Court– Article 131 gives the power of
original jurisdiction to the Supreme Court, to
resolve the dispute arising between the Centre
and the States or between two States.
• Interpretation of the Constitution- Only the Apex
Court has the power to settle a question based on
any issue related to the Constitution.
• Power Of Judicial Review (Article 137)- All the
laws enacted are subjected to scrutiny by the
Judiciary.
• Court of Appeal – The apex court is the highest
court for appeal in India. It has the power to hear
appeals from all the cases lying in the various High
Courts and subordinate courts of our country. A
certificate of the grant is to be provided according
to Article 132(1), 133(1) and 134 of the
Constitution with respect to any judgment, decree
or final order of all cases of the High Court
 involving the question of law. Appeals to the
Supreme Court can be made under the following
categories:-
• Constitutional Matters
• Civil Matters
• Criminal Matters
• Special Leave Petition

2. The High Courts

• Original Jurisdiction – In some issues, the case can
be directly filed in the High Courts. This is known
as the original jurisdiction of the High Court. E.g.,
In matters related to fundamental rights, Marriage
and Divorce cases.
• Appellate Jurisdiction- The High Court is the
Appellate Court for the cases coming up from the
trial court.
• Supervisory Jurisdiction- This refers to the power
of general superintendence of the High Court over
the matters of all the subordinate courts.
The powers of the various courts have been
highlighted in the Constitution of India. Apart from
these courts, the power and functions of the
subordinate criminal courts have been provided under
the Code Of Criminal Procedure, 1973, as mentioned
under section 6.
• Court of Session
• First Class Judicial Magistrate and, a metropolitan
magistrate in any metropolitan area
• Second Class Judicial Magistrate
• Executive Magistrates
The power of the various subordinate courts is
mentioned from section 26-35, under the Code of
Criminal Procedure, which has been described below.
Section 26 mentions the list of Courts which are
eligible to try offences – According to Section 26, any
offence mentioned under the Indian Penal Code may
be tried by:
• the High Court
• the Court of Session
• any other Court as specified in the First Schedule
of the Code of Criminal Procedure
Although it has to be ensured that any offence
committed under section 376, section 376A, section
376B, section 376C, section 376D and also section
376E of the Indian Penal Code, be tried by a woman
judge.

3. The Sessions Court

The State Government establishes the Sessions Court

which has to be presided by a Judge appointed by the
High Court. The High Court appoints Additional as well
as Assistant Sessions Judges. The Court of Sessions
ordinarily sits at such place or places as ordered by the
High Court.

4. The Magistrate Court

The Magistrate judges are usually appointed by the
High Court.
The jurisdiction in case of Juveniles (Section 27)– Any
person who is below the age of sixteen years, who is a
juvenile is exempted from the death penalty and
punishment for imprisonment for life. The Chief
Judicial Magistrate, or any other Court specially
empowered under the Children Act, 1960 (60 of 1960)
or any other law for the time being in force which
provides for the treatment, training and rehabilitation
of youthful offenders, are eligible for trying such cases.
Miscellaneous Powers

• Mode of Conferring Powers – Section 32 states

that the High Court or the State Governments
have the power by virtue of an order to empower
people by their titles.
• Withdrawal of Powers- According to Section 33,
the High Court or the State Government, have the
power to withdraw the powers conferred by them
under this code.
• Powers of Judges and Magistrate exercisable by
their successors-in-office- According to Section 35,
subject to the other provisions of this Code, the
powers and duties of a Judge or Magistrate may
be exercised or performed by their successors-in-
chief.

Topic – 5

Jurisdiction , Powers and Functions of

Executive Magistrate
Section – 20

1. In every district and in every metropolitan area.

The State Government may appoint as many
persons as it thinks fit to be Executive Magistrates
and shall appoint one of them to be the District
Magistrate.
2. The State Government may appoint any Executive
Magistrate to be an Additional District Magistrate,
and such Magistrate shall have the powers of a
District Magistrate under this Code or under any
other law for the time being in force as may be
directed by the State Government.
3. Whenever, in consequence of the office of a
District Magistrate becoming Vacant, any officer
succeeds temporarily to the executive
administration of the district, such officer shall,
pending the orders of the State Government,
exercise all the powers and perform all the duties
respectively conferred and imposed by this Code
on the District Magistrate.
4. The State Government may place an Executive
Magistrate in charge of a sub-division and may
 relieve him of the charge as occasion requires; and
the Magistrate so placed in charge of a sub-
division shall be called the Sub-divisional
Magistrate.
4A. The State Government may, by general or
special order and subject to such control and
directions as it may deem fit to impose, delegate
its powers under Sub-Section (4) to the District
Magistrate.
5. Nothing in this section shall preclude the State
Government from conferring. Under any law for
the time being in force, on a Commissioner of
Police, all or any of the powers of an Executive
Magistrate in relation to a metropolitan area.

Powers of Executive Magistrates

The executive magistrates have been assigned

various powers under the CrPC, some of which are as
follows:
1. Search Warrants:
(a) Authorizing Police Officer to search of place
suspected to contain stolen property, forged
documents etc.,
(b) Search for persons wrongfully confined.
(c) Power to compel restoration of abducted
females.
2. Security for keeping peace and for good
behaviour:
(a) Security for keeping the peace;
(b) Security for good behaviour from persons
disseminating seditious matters.
(c ) Security for good behaviour from suspected
persons. Security for good behaviour from habitual
offenders.
(d) Order to be made when Magistrate acting U/s
107, 108, & 110.
(e) Procedure in respect of person present in court
(f) Summons or warrant in case of person not so
present
3. Unlawful assemblies:
(a) Dispersal of unlawful assembly by use of civil
force.
(b) Use of Armed Forces to disperses unlawful
assembly.
(c ) Power of certain armed force officers to disperse
unlawful assembly.
4. Conditional order for removal of nuisance.
(a) Conditional order for removal of nuisance.Service
or notification of order. Magistrate may prohibit
repetition or continuance of public nuisance.
(b) Person to whom order is addressed to obey or
show cause
(c ) Power to Magistrate to direct local investigation
and examination of an expert.
5. Disputes as to immovable property:
In cases urgent cases of nuisance
or apprehended danger to the law and order and
security in the local area where disputes as to
immovable property or land or water are likely to
cause breach of peace, the magistrates have Power
to attach subject of dispute and to
appoint receiver or order that the a particular status
quo may be maintained (usually in favour of the
person in possession of the property on the date of
decision)
6. Inquests and Inquiries into unnatural deaths:
Police is required to conduct enquiry and report on
suicide etc., to the nearest Executive Magistrate. The
magistrates, in such cases have powers to summon
persons for Enquiry.
7. Security for keeping the peace and for good
behaviour
Chapter VIII of the CrPC on Security For Keeping The
Peace And For Good Behaviour is perhaps the most
important but least used legal power in Nagaland.
The Chapter, especially the Section 107 (and the
rest) is preventive and not punitive. It enables the
Executive Magistrate to take measures with a view
to prevent commission of offences involving breach
of peace or disturbance to public tranquility in his
jusisdiction.
Such breach of peace and disturbance to public
tranquility may due to – religious processions,
festivals, elections, political movements,
supremacy within/between/among the villages - disp
utes due to factions, clan rivalries, land disputes,
water disputes etc., or even minor scuffles between
individuals.
The chapter VIII lays down an elaborate procedure
for executive magistrates for dealing with
disturbances to public tranquility.
It is not essential in every case that there should be
two parties against each other. However, there
must be a breach of the peace which is
so imminent, that unless averted by proceedings
under the Section 107, it will happen.
8. MAGISTRATE - POWERS ON PUBLIC
TRANQUILITY:
Usually the preventive powers are used in
conjunction with other provisions of CrPC like
provisions of law:
Section 144 - Power to issue order in urgent cases of
nuisance or apprehended danger -
Dispersal of unlawful assemblies (Section 129)
Section 145 - Dispute concerning land or water is
likely to cause breach of peace.
Section 147 - Dispute concerning right of use of land
or water
Section 149 - Police to prevent cognizable offences
Section 150 - Information of design to commit
cognizable offences,
Section 151 - Arrest to prevent the commission of
cognizable offences
Section 152 - Prevention of injury to public property
 Functions of Executive Magistrate

• Power of Maintaining Peace and Looking into

Impending Threats to Law and Order
• Power to Dispose Unlawful or Potentially Unlawful
Assemblies
• Power to File an FIR under Section 154 of the CrPC

Topic – 6

• Investigation , Inquiry , Trail

An investigation is the first step taken by the police

officer. in any matter of offence and the culprit
thereof. Inquiry includes everything done by a
Magistrate, irrespective of whether the case has been
challenged or not. A trial is a judicial proceeding that
ends either with conviction or acquittal.

Investigation
Investigation has been defined under Section 2(h) of
CrPC. Investigation includes all the proceedings under
the Code required for the collection of evidence. It is
conducted by a Police Officer or by any person other
than a magistrate, who has been authorized by the
magistrate on this behalf.
Steps of Investigation
• Proceeding to the spot where the offence has
been committed.
• Ascertain the facts and circumstances of the case.
• Discovery and arresting the suspected offender.
• Collecting evidence of the offence that may consist
of:
o Examination of various persons (including
accused) and reduction of his statement into
writing, if it is deemed fit by the officer.
o The search and seizure that are considered
necessary for investigation and to produce
before trial.

Who has the Authority to Investigate?

The police officer or any other person who has been
authorized by a Magistrate on his behalf is competent
to investigate.

Commencement of Investigation
There are two ways to commence the investigation:
• The police officer in charge has the authority to
investigate when the FIR is lodged.
• When the complaint has been made to the
Magistrate then any person who has been
authorized by the Magistrate can investigate in
this regard.

Malafide Investigation
If investigating agencies conduct mala fide
investigation, then it is open to correction by invoking
the jurisdiction of the High Court.
Gurman Singh v. State of Rajasthan, 1968
In this case, the Investigating Officer and the Station
House Officer had received information about a
murder from an unknown place. It was held that
before the investigation commences a Magistrate
should take cognizance of the offence.
State v. Pareshwar Ghasi, 1967
In this case, it was observed by the court that
etymologically, the meaning of term investigation is
that which includes any process involving sifting of
materials or search of any relevant data for the
purpose of ascertaining facts in issue in a matter in
hand.

Inquiry
An inquiry is done either by a Magistrate or it is done
by the Court but not by a police official. Investigation
differs from inquiry.
According to Section 2(g) of The Code of Civil
Procedure, Inquiry includes every inquiry except for a
trial conducted under this Code, that is done either by
a Magistrate or by the Court. The inquiry relates to the
proceedings that are carried out by the Magistrate
before a trial is done.
Inquiry includes all the enquiries that are conducted
under this code but it does not include the trials that
are conducted by a Magistrate.
Section 159 of CrPC empowers the Magistrate on a
receipt of a police report under Section 157 of CrPC, to
hold a preliminary enquiry to ascertain whether an
offence has been committed. If the offence has been
committed then, whether any person should be put
upon trial.
Types of Inquiry
• Judicial Inquiry
• Non-Judicial Inquiry/ Administrative Inquiry
• Preliminary Inquiry
• Local Inquiry
• Inquiry into an offence
• Inquiry related to matters other than an offence
Under Section 159 of CrPC, the Magistrate is
empowered to hold a preliminary inquiry on receipt of
the police report under Section 157 of CrPC, to
ascertain whether an offence is committed and if an
offence has been committed then whether any person
has to be put upon trial.
The cases which are triable by the Session Court, the
commencement of their proceedings take place before
a Magistrate. The proceedings can be in the nature of
an inquiry preparatory to send the accused for trial
before the court of Session.
Magistrate also conducts an enquiry in the cases which
are triable by himself under Section 302 of CrPC. If a
complaint is filed before a Magistrate, the Magistrate
examines the witnesses and the complainant on an
oath to find out if there is any matter for the
investigation that has to be carried out by a criminal
court.
If the Magistrate distrusts the statement made by the
complainant and the witnesses, the Magistrate may
dismiss the complaint.
The result of the investigation or inquiry does not
establish sufficient ground to proceed with the case. All
these proceedings are done in the nature of the
inquiry.

Difference between Investigation and Inquiry

Object: The object of investigation is to collect the
evidence related to the case, whereas the object of
inquiry is to determine the truth or falsity of certain
facts related to the offence, in order to take a further
step.
Authority: An investigation is done by a Police Officer
or by any person other than a Court or a Magistrate,
whereas inquiry must be done by a Magistrate or
Court.
Stage: Investigation is the first stage of any case and
the Magistrate further proceeds with an inquiry.
Commencement: Investigation commences after the
FIR is lodged or a complaint is made before a
Magistrate, whereas Inquiry commences after the
complaint has been filed to a Magistrate.

Trial
The Code of Criminal Procedure does not define the
term trial. A trial is a judicial proceeding that ends in
either a conviction or acquittal but does not discharge
anyone. It is examination and determination by a
judicial tribunal over a cause which has jurisdiction
over it.
The trial begins in a warrant case with the framing of
the charge when the accused is called to plead
thereto. In a summons case, it is not necessary to
frame a formal charge, the trial starts as soon as the
accused is brought before the magistrate and the
particulars of the offence are stated to him. The case
which is exclusively triable by a session court, there the
trial begins only after committal proceedings done by
the Magistrate. Appeal and revision are included in the
term trial, they are a continuation of the first trial.
In a criminal trial, the function of the court is to find
out whether the person who is produced before the
court as accused, is guilty of the offence with which he
has been charged. To hold that the accused is guilty of
the offence with which he has been charged, the
purpose of the court is to scan the material on record
to find out whether there is any trustworthy and
reliable evidence on the basis of which it is possible to
find the conviction of the accused.
There are generally three types of trials:
• Trial by Court of a session.
• Trial by a magistrate (can we summon or warranty
case).
• Summary trials.
Mode of taking and Recording Evidence
Section 272 to 283 of CrPC read with rules under
Chapter XII of General Rules and Circular Order Volume
I, explains the Mode of taking and recording Evidence
in criminal cases. The following are the modes of
recording evidence:
Section 273– It is mandatory to record all the evidence
only in the presence of the accused when his personal
attendance has been dispensed, the evidence must be
recorded in the presence of a pleader.
Section 274– Magistrate shall record a memorandum
of the substance of evidence in the court language and
must be signed by the Magistrate.
Section 275(1)– In all the warrant cases, the evidence
of each witness shall be in writing by Magistrate or
under his direction if the Magistrate is unable to do so
due to some physical or other incapacities, under his
direction and superintendence, by the officer of the
court who is appointed by the Magistrate on his
behalf. The evidence under this subsection is to be
recorded by audio-video electronic.
Section 275(3)– This section permits the Magistrate to
record evidence in question and answer form.
Section 276– In Session Court, the recording should be
done in a narrative form. The presiding officer at his
discretion can take down any part of the evidence in
question and answer format which has to be signed by
him
Section 278– When the evidence of a witness is
completed, it should be read over to the accused or his
pleader. This shouldn’t be done at the end of the day
when all the witnesses have been examined. The
evidence if needed can be corrected by the accused.
Section 280– The presiding judge or magistrate is
empowered to record the remarks.

Marking of Exhibits
Some evidence shall be submitted by the prosecution,
this evidence has to be marked with the number in the
order in which they are submitted. The documents that
are admitted on behalf of defence shall be marked
with capital letter alphabets. If in case neither party
does not accept the evidence then the evidence shall
be marked as Ext C-I, C-II etc.
If more than one number of documents are of similar
nature, then the small letter or small number is added
in order to distinguish each document in the series.
After the evidence is proved and admitted it shall be
marked with a Roman number. Example MO-I, MO-II
etc. the bench clerk of the court shall prepare the list
of articles which shall be signed by the Judge.