CS Executive - Criminal Procedure Code, 1973

Cognizable offence

These are outlined in the First Schedule to the Code. An example of a cognizable offence would be murder. These are generally non-bailable offences.

Non-cognizable offence

A ‘non-cognizable offence’, on the other hand, is an offence for which the perpetrator cannot be arrested without a warrant. These are bailable as they are not of as serious a nature as the cognizable offences, an example of which is petty theft.

Inquiry

‘Inquiry’, as per Section 2(g) of the Code of Criminal Procedure, 1973 means “every inquiry, other than a trial, conducted under this Code by a Magistrate or court”. It can be said to be the query a court conducts to decide whether or not a matter is fit for further proceedings.

Investigation

‘Investigation’, implies “all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.” [Section 2(h) of the Code].

It is helpful in reaching to the main facts of a case. After an investigation, the officer conducting it is required to submit a report of his findings to the Magistrate who ordered such the investigation.

Trial

‘Trial’ means judicial proceedings in the Court of Sessions or the High Court. Such a process involves examining witnesses on oath. They can result in the accused being discharged, acquitted or convicted.

FIR

An ‘FIR’ or ‘First Information Report’ is the primary report of an offence having been committed. It takes the form of a formal complaint being lodged by the aggrieved or victim, or by someone else acting for him.

This can be done either orally or in writing. This report is to be made to the police. The police start the proceedings on the basis of this report. An FIR can be filed by anyone who knows of the commission of a cognizable offence, not just by the aggrieved. Hence, it can even be filed by a police officer or a third party.

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Complaint

A ‘complaint’ is a report to the Magistrate. This can be in writing or even oral. It does not include the FIR. The intention of making such a report should be to obtain redressal with the aid of the procedures specified under law.

Summons case

A ‘summons case’ is one that is punishable with imprisonment upto and including two years. The procedure for the trial of these cases is as per Chapter XX of the Code of Criminal Procedure, 1973.

They normally relate to minor offences, and are heard or resolved not through the normal route but using the summary procedure. This remains, as of today, the judge’s discretionary power though.

Warrant cases

‘Warrant cases’ are those punishable with an imprisonment of more than two years or with a life sentence or a death sentence. Chapter XIX of the Code of Criminal Procedure, 1973, covers the trial of warrant cases.

Bailable offences

All the offences included in the list of bailable offences given in the First Schedule of the Code of Criminal Procedure are termed as bailable. Other acts can also provide for bailable offences.

These are relatively non-serious offences, against which an individual can be let off on bail. All bailable offences are non-cognizable, i.e. no arrests can be made for such offences unless a warrant has been issued for that purpose.

Non-bailable offences

Non-bailable offences are those that are not included in the First Schedule of the Code of Criminal Procedure. These are cognizable; arrest can be afforded without a warrant. In this list are included all serious offences.

Anticipatory bail

‘Anticipatory bail’ is bail given to a person who has apprehensions that he would be placed under police custody. In order to get out of this predicament, he can apply to the High Court or to the Court of Sessions to obtain bail in advance. This can only be done until the person is not arrested; after the arrest, the only option left is the ordinary bail.

General Laws Distinguish Between Question and Answers

Question 1: Distinguish between the following” summons and warrant of arrest”.
Answer:

Difference between summons and warrant of arrest

difference between summons and warrant of arrest

Question 2: Distinguish between cognizable and non-cognizable offence under the Criminal Procedure Code, 1973.
Answer:

Difference between cognizable and non-cognizable offence under the Criminal Procedure Code, 1973

‘Cognizable offence’ means an offence for which no bail is available. It is an offence for which anyone can be arrested without a warrant. This is as per the Code of Criminal Procedure, 1973, Section 2. These are outlined in the First Schedule to the Code. An example of a cognizable offence would be murder. These are generally non-bailable offences.

If there are multiple offences, and even one is cognizable, all of them would be handled as cognizable offences.

General Laws Descriptive Questions

Question 3: Attempt the following: When can the Magistrate take cognizance of an offence?
Answer:

Section 190 of the Code of Criminal Procedure, 1973 covers taking of cognizance of offences by magistrates. It can be done when he receives an intimation of the fact in any of the following ways –

Upon complaint of the offence When a police officer reports the happening of such an offence
When he corne to know of such an offence being committed
When information regarding such an offence is received from someone other than the police

The magistrate takes cognizance only when the required procedure is followed. In case the case is initiated other than by the magistrate acting suo motu, the accused can apply for an inquiry to be held.

Section 191. Transfer on application of the accused.

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

Section 192. Making over of cases to Magistrates.

Any Chief Judicial Magistrate (CJM) may, after taking cognizance, hand over the case for inquiry or trial to and competent Magistrate subordinate to him.

Likewise, any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial. Space to write important points for revision

Question 4: Discuss the summary trial by a Magistrate under the Criminal Procedure Code, 1973.
Answer:

The summary trial by a Magistrate under the Criminal Procedure Code, 1973

A ‘summary trial’ is a fast-track procedure that provides for speedy trial of A cases. Under Section 260 of the Code of Criminal Procedure, 1973, any Magistrate of First Class or a Metropolitan Magistrate or a Chief Judicial Magistrate can hear cases of offences not punishable with death, life imprisonment or even imprisonment of more than two years in a summary trial. Included would be offences like petty theft (where the value of the stolen property does not exceed rupees 2,000), assisting in such theft or in keeping its proceeds hidden, acquiring or keeping such stolen property, trespass, breaking into a house, insulting someone with the intention of provoking him to a violent act, and helping anyone in the performance of these crimes.

Section 261 covers the conduct of a summary trial by a Magistrate of Second Class.

Section 262 provides the procedure involved in a summary trial. These cases are also known as summons cases, since they do not normally make use of warrants. Moreover, the maximum punishment that can be pronounced in such cases is of imprisonment upto three months.

Question 5: Enumerate any four categories of cases in which a police officer may arrest a person without an order from magistrate and without a warrant under section 41 of Cr.P.C., 1973.
Answer:

Section 41 of Criminal Procedure Code, 1973 provides that any police officer may without an order from a Magistrate and without a warrant, arrest any person:

Who commits, in the presence of a police office, a cognizable offence (b) Against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:

the police has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
the police officer is satisfied that such arrest is necessary –
to prevent such person from committing any further offence; or
for proper investigation of the offence; or
to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
as unless such person is arrested, his presence in the Court whenever required cannot be ensured and the police officer shall record while making such arrest, his reason in writing;
(ba) against whom credible information has been received that he has committed a cognisable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on
the basis of that information that such person has committed the said offence;
who has been proclaimed as an offender either under this Code or by ( order of the State Government; or
in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
who has been concerned in, or against whom reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
who, being a released convict, commits a breach of any rule, made under (section 356(5)); or
for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

Question 6: Describe in brief the cases in which a Search Warrant can be issued under Section 93 in the Criminal Procedure Code, 1973.
Answer:

According to Section 93 of the Criminal Procedure Code, 1973, a search warrant can be issued only in the following cases:

Where the Court has reason to believe that a person summoned to produce any document or other thing, will not produce it
Where such document or other thing is not known to the Court to be in the possession of any person
Where a general inspection or search is necessary. However, a search warrant may be general or restricted in its scope as to any place or part thereof.

Question 7: Discuss the provisions relating to information to the police and their power to investigate in cognizable and non-cognizable cases under the Criminal Procedure Code 1973.
Answer:

The provisions relating to information to the police and their power to investigate in cognizable and non-cognizable cases under the Criminal Procedure Code 1973

Information in cognizable cases and investigation of such cases. According to Section 154 of the Criminal Procedure Code 1973, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant.

Every such information shall be signed by the person giving it and the substance thereof shall be entered in a book kept by such officer in such form as may be prescribed by the State Government in this behalf.

The above information given to a police officer and reduced to writing is known as First Information Report (FIR). The investigation of the case proceeds on this information only. Thus, the principal object of this Section is to set the criminal law in motion and to obtain information about the alleged criminal activities so as to punish the guilty.

For the purpose of enabling the police to start investigation, it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in charge of the police station as indicated in Section 154 of the Code.

Any person aggrieved by a refusal on the part of an officer incharge of a police station to record the information may send the substance of such information in writing and by post to the Superintendent of Police concerned who if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.

Information as to non-cognizable cases and investigation of such cases As per Section 155 of the Criminal Procedure Code 1973, when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the informant to the Magistrate.

The police officer is not authorised to investigate a non-cognizable case without the order of Magistrate having power to try such cases, and on receiving the order, the police officer may exercise the same powers in respect of investigation as he may exercise in a cognizable case.

Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

In case of a cognizable offence the police officer may conduct investigations without the order of a Magistrate. Investigation includes all proceedings under the Code for the collection of evidence by the police officer or by any person who is authorised by the Magistrate in this behalf. Space to write important points for revision

Question 8: Section 41 of the Criminal Procedure Code, 1973 enumerates the different categories of cases in which a police officer may arrest a person without an order from a Magistrate and without a warrant. Explain any five Categories of such cases.
Answer:

‘Arrest’ is covered under Section 41 of the Code of Criminal Procedure, 1973. It gives a police officer to arrest a person without a warrant or order
from a Magistrate. This can be done in extreme cases like –

When a complaint is received against a person suspected of a cognizable offence
In cases of house-breaking
When an accused escapes from police custody or a convict fails to give notice of his changed residence.
Someone who is liable to be extradited, or is to be kept in custody in India, under some law or a treaty.
When a police officer receives any reacquisition by another police officer as to the arrest and reason behind the arrest of any person.

Section 42 of the Code says that when a person accused of perpetrating a non-cognizable offence refuses to give information as to his name and address or gives false details; he can be arrested and detained for not more than twenty-four hours.

Section 43 provides for arrest by a private person. This Section says that a private person can arrest or have a known offender or a perpetrator of a non-cognizable offence arrested. This can be done without a warrant.

Section 46 provides for the process to be followed for arrest. It specifies that anyone affecting an arrest has the right to detain the person arrested, or to touch his body or catch hold of him so that he cannot attempt an escape successfully.

This would be resorted to only when the person who is to be arrested is resisting the attempts at such arrest. While doing so, it is not allowed to hurt him to the extent of killing him, specially a person who is not punishable with a death sentence.

All persons arrested in the manners provided for above have to be taken to a Magistrate within 24 hours, as per the Constitution of India.

Question 9: Define ‘Complaint’ under Criminal Procedure Code, 1973.
Answer:

‘Complaint’ under Criminal Procedure Code, 1973

Complaint” means any allegation made orally or in writing to a magistrate that some person known or unknown has committed an offence but it does not include a police report [Section 2(d) Cr. P.C.].

However, a report made by the police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint and the police officer making the report is deemed to be as complaint.

In general, complaint about an offence can be filed by any person except in cases of offences relating to marriage, defamation and offences mentioned is Sections 195 and 197 of Cr. P.C. A complaint in a criminal case is what a plaint is in a civil case.

Police report is expressly excluded from the definition of complaint but the Explanation Section 2(d) of the Code makes it clear that such report shall be deemed to be a complaint where after investigation, it discloses commission of a non-cognizable offence.

Question 10: Explain the requisites of a ‘warrant of arrest’. What is the time limit within which the police officer should bring the person arrested before the court.
Answer:

The requisites of a ‘warrant of arrest’

A written order issued by a judicial officer or other authorized person commanding a law enforcement officer to perform some act for the administration of justice, warrants are recognized in many different forms and for a variety of purposes in the law.

Most commonly, police use warrants as the basis to arrest a suspect and to conduct a search of property for evidence of a crime. Warrants are also used to bring those persons to court that have ignored a summons or a court appearance.

A person arrested is to be taken before Magistrate or officer in charge of police station within twenty four hours. A person arrested cannot be detained more than twenty-four hours.

Under Section 151 of the Code of Criminal Procedure, 1973, if a police officer comes to know of a person’s intention to commit a cognizable offence, he can arrest such a person or party without a warrant or of order issued by the Magistrate.

However, it has to appear from the state things that no other action is possible in the situation to prevent the offence from happening. Such a person needs to be presented before the Magistrate in twenty-four hours or less time.

For a warrant to be valid, it has to have the following features:

in writing.
bearing the name and designation of the person required to execute it;
must give full name and description of the person to be arrested;
the offence charged;
signed by the presiding officer; and
sealed,

Moreover, such a warrant is only for production of a person before the concerned Court and not before the police officer.

Section 76 of the Act specifies that the police officer or any other person executing the warrant of arrest is to (subject to the provisions of Section 71 as to security) produce the arrested before Court without unnecessary delay, and which shall, in no case whatsoever, exceed 24 hours.

This time is exclusive of the journey time, from the place of arrest to the Magistrate’s Court. [Section 70 – Criminal Procedure Code, 1973].

Question 11: Discuss the power to issue order is urgent cases of nuisance or apprehended danger under section 144 of the Criminal Procedure Code, 1973.
Answer:

The power to issue order is urgent cases of nuisance or apprehended danger under section 144 of the Criminal Procedure Code, 1973

Under Section 144 of the Code of Criminal Procedure, 1973, where the Executive, District or the Sub-Divisional Magistrate is of the view that immediate prevention or speedy remedy is necessary to prevent, obstruction, annoyance or injury to any person, or where there appears to be a danger to human life, health or safety, or a possibility of public tranquility being disturbed, or a riot, or a scuffle braking out, he may pass an urgent order. This order can either stop any person from doing something that is disallowed under this act, or cause any foreseeable harm to be avoided.

Question 12: The Parliament passed many laws in the interest of public safety and social welfare. It imposes absolute liability in Criminal Law.
Answer:

Strict liability or absolute liability:

This liability arises when some harm takes place without any intention or negligence on the part of the defendant, even then he is liable for it. This can happen in any of the following cases –

Unavoidable accidents
Unavoidable mistake [Rylands v. Fletcher]

Where a statute imposes a definite liability, the presence of absence of a guilty mind is irrelevant. Many laws passed in the interest of public safety and social welfare imposes absolute liability, particularly in matters of a criminal nature. E.g.

Matters concerning socio-economic welfare, public health, food, drugs, etc. Further examples would be the licensing of shops, hotels, restaurants and chemists establishments, cases under the Motor Vehicles Act and the Arms Act etc.

Liability in tort which in course of time has become known as ‘strict liability’, ‘absolute liability’, ‘fault liability’ have all gradually grown and with passage of time have become firmly entrenched.

‘Absolute liability’ or “special use bringing with it increased dangers to others” (Rylands v. Fletcher’) and ‘fault liability’ are different forms which give rise to action in torts.

Question 13: Explain the procedure given in Criminal Procedure Code, 1973 for publication of proclamation regarding absconding persons.
Answer:

Proclamation and Attachment

Where a warrant remains unexecuted, the Code provides for two remedies issuing a proclamation under Section 82, or the attachment and sale of property under Section 83, of the Code of Criminal Procedure, 1973.

If a Court believes that a person against whom a warrant has been issued by it has the intention of absconding or is concealing himself to defeat the execution of the warrant against him, the Court is free to publish a written proclamation.

Such a proclamation makes it binding on the person to appear at a specified place and at a specified time not less than 30 days from the date of publication of such proclamation. (Section 82).

However, while issuing proclamation, the Magistrate must place on record that the accused has absconded or is concealing himself. The point to be acknowledged here is that the object of attaching the property of the accused is not to punish him but to compel his appearance.

Section 83 provides that if the person is suspected to be is about to dispose of the whole or any part of his property, or to remove it outside of the jurisdiction of the concerned court, it may, in addition to the proclamation, order the attachment of said property. Such property can be ordered to be attached or a receiver appointed for it.

The modes of publication of the proclamation could be any of the as following:

- publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
- affixed to a conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
- affixation of its copy in a conspicuous part of the Courthouse;
the Court may also order a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides, if the Court deems it essential.

General Laws Practical Questions

Question 1: Sohan is tried summarily by the Metropolitan Magistrate on the charge of committing theft and is sentenced to undergo imprisonment for a period of six months. Can Sohan challenge this decision? If so, on what grounds?
Answer:

Sohan can challenge the decision of the court. A ‘summary trial’ is a fast-track procedure that provides for speedy trial of cases. Under Section 260 of the Code of Criminal Procedure, 1973, any Magistrate of First Class or a Metropolitan Magistrate or a Chief Judicial Magistrate can hear cases of offences not punishable with death, life imprisonment or even imprisonment of more than two years in a summary trial.

Included would be offences like petty theft (where the value of the stolen property does not exceed rupees two hundred), assisting in such theft or in keeping its proceeds hidden, acquiring or keeping such stolen property, trespass, breaking into a house, insulting someone with the intention of provoking him to a violent act, and helping anyone in the performance of these crimes.

Section 261 covers the conduct of a summary trial by a Magistrate of second class.

Section 262 provides the procedure involved in a summary trial. These cases are also known as summons cases, since they do not normally make use of warrants. Moreover, the maximum punishment that can be pronounced in such cases is of imprisonment upto three months.

Question 2: Shyam, a police officer comes to know from reliable sources that four persons are staying in a house and planning to kidnap and murder Rajan. They are equipped with automatic weapons. The police officer apprehends that they will commit the crime at any moment. He directly goes to that house and, without any warrant or order from the Metropolitan Magistrate, arrests all the four persons along with weapons in their possession. Is the arrest of all the four persons valid? Decide with reasons.
Answer:

Section 151 of the Code of Criminal Procedure, 1973 says that an arrest made by a police officer to prevent cognizable offences is valid. Such an act oes not require any orders from the Magistrate or any warrants. Such powers have been provided to prevent the happening of serious or cognizable offences.

General Laws Descriptive Questions

Question.1: What are the prerequisites of a criminal complaint?
Answer:

The prerequisites of a criminal complaint

‘Complaint’ can be defined to mean any allegation made orally or in writing to a Magistrate, so that he can take required action under this Code. The allegation should relate to the fact that some person – known or unknown – has committed an offence. Complaint does not include a police report. [Section 2(d)]

However, if a police officer discovers after investigation that a non-cognizable offence has been committed, the report made by the police officer in this case shall be deemed to be a complaint, and the police officer making the report shall be seen as a complainant.

Generally a complaint into an offence can be filed by any person except in cases of offences relating to marriage, defamation and offences mentioned under Sections 195 and 197, which are of a more personal nature.

Hence, “A complaint in a criminal case is what a plaint is in a civil case.”

The requisites of a complaint are as follows –

There should be an oral or written allegation.
An offence has been committed by a known or unknown perpetrator.
The allegation has been made to a magistrate.
The conveyance of the allegation carries with it the intention that action should be taken on the complaint.

Format of a complaint

There is no specified format of a complaint. An application or a petition to a Magistrate containing an allegation that an offence has been committed and an appeal that the wrongdoer be suitably punished is a complaint (Mohd. Yousuf v. Afaq Jahan).

Question.2: When can a search warrant be issued?
Answer:

Search warrant

Section 93 of the Act says that a search warrant can be issued only in the following cases: When it is feared by the court that the person against whom a summons has been issued to produce a document or an article may not produce it.

When the court is unsure whether the said article or document is in the possession of the person against wi.om the summons have been issued. When the case warrants a general inspection.

If it is for searching a document, parcel or other thing in the custody of the postal or telegraph authority, it can only be issued by a District Magistrate or Chief Judicial Magistrate. Such a warrant cannot also go against Sections 123 and 124 of the Indian Evidence Act, 1872 or the Bankers’ Book Evidence Act, 1891.

Section 97 says that any District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class who has reasons to believe that any person is confined under such circumstances that the confinement amounts to an offence, may issue a search warrant for the search of the person so restrained.

When found, such a person shall be immediately produced before the Magistrate for making such orders as the circumstances of the case merit.

CS Executive – Criminal Procedure Code, 1973

General Laws Distinguish Between Question and Answers

General Laws Descriptive Questions

General Laws Practical Questions

General Laws Descriptive Questions

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