KRISHAN COMMERCE

Transcription

1 KRISHAN COMMERCE LASSES 8 YEARS OF EXCELLENCE M.N The Code of Criminal Procedure, 1973 The Code of Criminal Procedure creates the necessary machinery forapprehending the criminals, investigating the criminal cases, their trials before the criminal courts and imposition of proper punishment on the guilty person It is an adjective law but also contains provisions of substantive nature (e.g. Chapters VIII, IX, X and XI). It s object is to provide a machinery for determining the guilt of and imposing punishment on offenders under the substantive criminal law, for example, the Indian Penal Code (I.P.C.). The two Codes are to be read together. Mens rea A guilty mind A subjective matter An essential ingredient in every criminal case A bailable offence Shown in First Shedule Nonbailable offence Any other offence Cognizable offence Serious offences Arrest without warrant Arrest without warrant(section 41) Committed cognizable offence & credible information available implement of housebreaking found in possession proclaimed offender in possession of stolen property obstructs any police officer from doing his duty deserter from any of the Armed Forces of the Union any act committed o/s India, had it been committed in Indian would have been an offence Released convicts violates rules of release For whose arrest requisition received from any other police officer Arrest by a private person may arrest or cause to be arrested any person who in his presence commits a nonbailable and cognizable offence or who is a proclaimed offender Production of arrested person without warrant a) can be kept into custody for a period not exceeding 24 hours, and b) before the expiry of that period he is to be produced before the nearest Magistrate, c) who can under Section 167 order his detention for a term not exceeding 15 days, or he can be taken to a Magistrate, under whose jurisdiction he

2 is to be tried, and d) such Magistrate can remand him to custody for a term which may exceed 15 days but not more than 60 days. Noncognizable offence Less serious offence Arrest with the permission of magistrate Complaint Written or oral made to magistrate Does not include police report but if made after investigation then included Bail release of the accused from the custody of the officers of law Anticipatory bail granted by the High Court or a Court of Session, to a person who apprehends arrest for having committed a nonbailable offence, but has not yet been arrested Investigation, inquiry or trial firstly investigation is conducted, then inquiry or trial Inquiry means every inquiry other than a trial it stops when trial begins made by a magistrate or court investigation by police officer or any officer authorized by magistrate but cannot be conducted by magistrate himself Warrant case means an offence punishable with purpose collection of evidence death or imprisonment for life or imprisonment for a term exceeding two years Summon case Other than a warrant case i.e an offence punishable with 2 years or less imprisonment Classes of criminal courts 5 Classes of criminal courts 1) High Courts; 2) Courts of Session; 3) Judicial Magistrates of the first class, and, in any metropolitan area; Metropolitan Magistrates 4) Judicial Magistrates of the second class; and 5) Executive Magistrates; Besides this, the Courts may also be constituted under any other law. The Supreme Court is also vested with some criminal powers. Article 134 confers appellate jurisdiction on the Supreme Court in regard to criminal matters from a High Court in certain cases. Courts/Authority Powers High Court any sentence authorized by law Session judge or additional session judge any sentence authorized by law, but death sentence subject to confirmation of High Court An Assistant Sessions Judge any sentence authorised by law except death sentence life imprisonment imprisonment for exceeding 10 years Chief Judicial Magistrate any sentence authorised by law except death sentence life imprisonment imprisonment for exceeding 7 years Magistrate of the first class a sentence of imprisonment for a term not exceeding three years or of a fine not exceeding five thousand rupees, or of both Magistrate of the second class a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both

3 Chief Metropolitan Magistrate Sentence of imprisonment in default of fine shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, and the powers of the Court of a Magistrate of the First class. Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law provided the that the term: (i) is not in excess of the powers of the Magistrate under Section 29; and (ii) where imprisonment has been awarded as part of the substantive sentence, it should not exceed 1/4th of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. SUMMON PARTICULARS Purpose either for appearance or for producing a document or thing Issued to to an accused person or witness Written or oral always in writing To be signed by presiding Officer of such Court or by such officer as is authorised by the High Court and shall bear the seal of the Court Service of summon by a police officer or by an officer of the Court or other public servant If service cannot be effected by the exercise of due diligence the serving officer can perform substituted service by affixing one of the duplicates of the summons to some conspicuous part of the house or Service of summon on corporation including incorporate company/society/body corporate homestead in which person summoned ordinarily resides on the secretary, local manager or other principal officer of the corporation, WARRANT purpose only for protection of a person before the concerned Court and not before the police officer Conditions a) must be in writing. b) must bear the name and designation of the person who is to execute it; c) must give full name and description of the person to be arrested; d) must state the offence charged; e) must be signed by the presiding officer; and f) must be sealed. g) police officer or other person executing the warrant of arrest shallbring the person arrested before the Court without unnecessary delay provided that such delay shall not in any case exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate s Court. If warrant remains unexecuted SEARCH WARRANT Code provides for two remedies: 1) issuing a proclamation (Section 82); and 2) attachment and sale of property (Section 83). a search warrant can be issued only in the following cases: a) where the Court has reason to believe that a person summoned to produce any document or other thing will not produce it; b) where such document or thing is not known to the Court to be in the possession of any person; or c) where a general inspection or search is necesary. However, a search warrant may be general or restricted in its scope as to any place or part thereof.

4 Note: But such warrant shall not be issued for searching a document, parcel or other thing in the custody of the postal or telegraph authority, by a magistrate other than a District Magistrate or Chief Judicial Magistrate, nor would such warrant be issued so as to affect Sections 123 and 124 of the Indian Evidence Act, 1872 or the Bankers Book Evidence Act, Cognizance of an offence Any Magistrate of first class and of the second class specially empowered may take cognizance of an offence upon: 1) receiving a complaint of facts constituting such offence; 2) a police report of such facts; 3) information received from any person other than a police officer; (4) his own knowledge that such offence has been committed. Limitation period (6 months Fine only) (1 year Imprisonment upto 1 y) (3 years imprisonment upto 3 y) Summary Trial (upto 2 years imprisonment cases only) no Court shall take cognizance of an offence after the expiry of the period of limitation mentioned below: a) six months, if the offence is punishable with fine only. b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; and c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Summary trial means the speedy disposal of cases. By summary cases is meant a case which can be tried and disposed of at once. Generally, it will apply to such offences not punishable with imprisonment for a term exceeding two years. Section 260(1) of the Criminal Procedure Code sets out the provisions for summary trials. It says: (a) any Chief Judicial Magistrate; (b) any Metropolitan Magistrate; (c) any Magistrate of the First class who is specially empowered in this behalf by the High Court, may, if he thinks fit, try in a summary way all or any of the following offences: a. offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years; b. theft under Section 379, Section 380 or Section 381 of the Indian Penal Code, where the value of the property stolen does not exceed Rs. 200; c. receiving or retaining stolen property, under Section 411 of the Indian Penal Code, where the value of such property, does not exceed Rs. 200; d. assisting in the concealment or disposal of stolen property, under Section 414 of the Indian Penal Code, where the value of such property does not exceed Rs. 200; (v) offences under Sections 454 and 456 of the Indian Penal Code; e. insult with intent to provoke a breach of the peace, under Section 504 of the Indian Penal Code; f. abetment of any of the foregoing offences; g. an attempt to commit any of the foregoing offences, when such attempt is an offence; h. any offence constituted by an act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, Subsection (2) states that when in the course of a summary trial it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to rehear the case in the manner provided in this Code. Summary trial is a speedy trial by dispensing with formalities or delay in proceedings.

5 Section 262 envisages procedure for summary trials. Subsection (1) lays down that in all summary trials the summonscase procedure should be followed irrespective of the nature of the case i.e. whether it is a summons case or a warrant case. Subsection (2) laying down the limit of the sentence of imprisonment states that no sentence of imprisonment for a term exceeding 3 months shall be passed in any conviction in summary trials.