CODE OF CRIMINAL PROCEDURE 1

Transcription

1 CODE OF CRIMINAL PROCEDURE 1

2 2 VIJAY LAW SERIES Index Index... i-iii Short Notes Index... iv-v List of Cases...vi-viii Table of Sections... ix-xix Essay Questions and Answers Short Notes Index Short Notes Glossary Important Questions Model Question Paper Reference Books I The Code of Criminal Procedure, Object, Extent, Scope of the CrPC Changes brought about by the CrPC, Constitution of Criminal Courts/Hierarchy of Criminal Courts Functionaries under the Code Classification of offences Cognizable and Non-Cognizable Offences Bailable and Non-Bailable Offences Compoundable and Non-Compoundable Offences Summons Cases and Warrant Cases Distinction between Complaint and Report Charge Investigation Inquiry Trial Aid and information to Police and Magistrate Arrest of persons Arrest with warrant... 21

3 CODE OF CRIMINAL PROCEDURE Arrest without warrant Process to compel appearance Proclamation and Attachment Process to compel production of things Search Warrant/Search and Seizure Search without warrant Security for keeping peace and good behaviour Maintenance of Wives, Children and Parents Maintenance of Wife Maintenance of Muslim Divorced Woman Maintenance of Children Maintenance of Parents Maintenance of Public Order and Tranquility Unlawful Assemblies/Dispersal of Unlawful Assemblies Public Nuisance/Prevention or Removal of Public Nuisance Urgent Cases of Nuisance or Apprehended Danger Disputes as to Immovable Property Preventive action of the Police First Information Report (FIR) Confession Search Remand Case Diary Police Report or Charge Sheet Inquest Jurisdiction of the Criminal Courts in Enquiries, Trials Cognizance of offences by Magistrate Complaint to Magistrate Dismissal of complaint Commencement of proceedings before Magistrate Charges Joinder of Charges Trial of Criminal Cases Trial before a Court of Session Trial of Warrant Cases by Magistrate Cases instituted otherwise than a police report

4 4 VIJAY LAW SERIES First Information Report or FIR Section 154 FIRST INFORMATION REPORT is popularly known as FIR. It is a re port of information that reaches the police first in point of time and that is why it is called the First Information Report. First Information Report is a written document prepared by the police when they receive information about the commission of a cognizable offence, which are serious in nature. It is generally a piece of information given to the police either by the victim of a cognizable offense or by someone on his/her behalf. Anyone can report the commission of a cognizable offence either orally or in writing to the police. Thus the First Information Report can be filed by any person. The person need not necessarily be the victim or the injured or an eye-witness. First Information Report may be merely hearsay and need not necessarily be given by the person who has firsthand knowledge of the facts. Sometimes the FIR may be lodged by a person who has secondhand knowledge of occurrence of the crime. A telephone call can also be treated as the basis for an FIR. Patai alias Krishna Kumar v. State of Uttar Pradesh 2010 Cri LJ 2815 it was held that the telephonic message to the Police station with a request to reach the place of occurrence cannot be treated as FIR. Surajit Sarkar v. State of W.B (2013) 2 SCC 146 it was held that cryptic telephonic information by an unknown person informing death of an unknown person to police cannot be treated as FIR. Importance of FIR FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police take up investigation of the case. Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offense can also file an FIR.

5 CODE OF CRIMINAL PROCEDURE 5 Essentials 1. It must be an information given to the police 2. The information must relate to a commission of cognizable offence 3. It must be an information first in point of time 4. Investigation must commence on the basis of such information 5. It may be given by any person, need not be the victim of crime 6. It must be given free of cost to the informant 7. It must be entered in a book to be kept by police officer Contents of FIR The FIR must contain the following details. They are; 1. The informant s name and address 2. Name and details of the people involved in the incident 3. Time, date and exact location of the incident 4. Precise facts and details of the incident as it occurred 5. Witnesses, if any Refusal to register FIR According to Section 154(3) it is mandatory on the part of the police to register the FIR In all the cognizable offences. If the Police refuse to register the FIR, the informant may send the substance of such information, in writing and by post to the Superintendent of Police. On receipt of such information in writing the Superintendent of Police, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him. Such subordinate officer shall have all the powers of an officer in charge of the police station in relation to that offence. However, police may refuse to register the FIR only in non-cognizable offences. FIR in Non-cognizable offences According to Section 155(2) no police officer shall investigate a noncognizable case without the order of a Magistrate having power to try such case or commit the case for trial. According to Section 155(3) any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. According to Section 155(4) 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.

6 6 VIJAY LAW SERIES FIR in Cognizable offences According to Section 156 a police officer has power to investigate into a congizable offence without the order of Magistrate or without a formal First Information Report. If the police do not investigate, the Magistrate can order the investigation. According to Section 157 where information as to commission of a cognizable offence is received, the officer-in-charge of a police station has a right not to investigate, if he considers that there is no sufficient ground for such investigation. Evidentiary value of FIR Though the FIR is not substantive evidence, because a) it is not made during trial b) it is not given on oath c) it is not tested by cross examination. However, it can be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act if the informant is called as witness at the time of trial. Use of FIR Even though FIR is not a substantive piece of evidence it can be used for; a. corroborate the statement of the eyewitnesses b. contradicting the evidence of person giving the information c. proving as an admission against the informer d. refreshing informer's memory e. impeaching the credit of an informer f. proving informer's conduct g. establishing identity of accused and witnesses Delay in filing FIR An officer-in-charge of a police station has to immediately register a First Information Report (FIR) based on a complaint or the information given by a victim regarding any cognizable offence. Delay in lodging an FIR is fatal when not satisfactorily explained. The inordinate delay in registration of FIR casts a cloud of suspicion on the credibility of prosecution story. Delay in giving FIR can be condoned if there is satisfactory explanation. Omission of the names of the accused, witnesses in FIR If the name of the accused is omitted although known to the maker, the case against him becomes doubtful. Even though the name of the accused is not mentioned in FIR, an action can be taken against such omitted person. Thus the absence of name of accused in F.I.R. goes strongly in favour of accused and can be taken into consideration while determining prob-

7 CODE OF CRIMINAL PROCEDURE 7 abilities of the case. Similarly there is no requirement of mentioning the names of all the witnesses in the FIR. Second FIR Generally there must be only one FIR. Sometimes the Court may permit second FIR. If the second FIR relates the same incident in respect of the same occurrence or in regard to the incidents which are two or more parts of the same transaction it is not permissible and liable to be quashed. However, if the second FIR relates to the two different incidents or crimes, the Second FIR is permissible. Evaluation 1. What is FIR? How far is it important in a criminal trial? Give brief account of powers of the police to investigate. 2. What is evidentiary value of an FIR in criminal trial? Explain the consequences of delay in filing FIR? 3. It is not necessary that FIR should contain minute or all the details Discuss in the light of the provisions laid down under Section 154 of Cr.P.C Problem X made a telephone call to the police station requesting the officer in charge of the police station to reach the railway station for investigation of a murder. The police authorities states that statement cannot be treated as first information report because there was no proof regarding sending of any information. Decide Issue 1. A telephone message given to the police would amount to FIR? 2. Whether police can start investigation such phone information? Rule Application Conclusion Section 154(1) of CrPC: First Information Report. According to Section 154(1) if the information is given orally to an officer-in-charge of a police station, it shall be reduced to writing by him or under his direction and it shall be read over to the informant. Every such in formation, whether given in writing or reduced to writ ing shall be signed by the person giving it. Sidhartha Manu Sharma v. State (NCT) Delhi AIR 2010 SC 2352 it was held that the cryptic telephonic message cannot be treated as FIR as the object the message is to get the police to move to the scene of occurrence and not to register the FIR. Reference Cases: State of Maharashtra v. Ahmed Shaikh Babajan and others (2010) 1 SCC (Cri) 1356 In the instant case the telephonic message to the Police station with a request to reach the place of occurrence cannot be treated as FIR.

8 8 VIJAY LAW SERIES Shortnotes Index Addl. Chief Judicial Magistrate After Care Organisation 195 Alteration in allowance Anticipatory bail Appeal Arrest by private person Arrest how made? Arrest Arrest with warrant Arrest without warrant Arrests by Magistrate Assistant Public Prosecutor...08 Attachment of property Autrefois Acquit/Convict Bail Bail of juvenile Bailable Offences Borstal Schools Case Diary Charge Bargaining Charge Chief Judicial Magistrate Child Welfare Committee Closure Report...94 Cognizable Offences Cognizance Complaint Completion Report...94 Compoundable Offences Compounding Confession Court of Session...05 Courts of Judicial Magistrates Courts of Metropolitan Magistrates Defence Counsel...09 Delay in filing FIR...77 Diary of Proceedings...91 Dismissal of complaint Evidentiary value of confession...82 Evidentiary value of FIR Examination of the accused Exculpatory Confession...84 Executive Magistrate Extra-Judicial Confession...79 Fact Bargaining Final Report...94 FIR by accused Form of warrant of arrest...26 Framing of charge Illegal search...86 Importance of FIR Inquest Inquiry Investigation Issue of process Joinder of charges Judgment Judicial Confession Juvenile Homes Juvenile Justice Board Maintenance of Children...55 Maintenance of Parents...57 Maintenance of Wife Metropolitan areas...05 Non-bailable offences Non-Cognizable Offences Non-Compoundable Offences Objectionable articles...37 Observation homes Panchanama Parole Plea Bargaining Police Report Probation...217

9 CODE OF CRIMINAL PROCEDURE 9 Shortnotes Index ANTICIPATORY BAIL IS a bail in expectatin of an arrest on accusation of having committed a non-bailable offence. It is a direction to release a person on bail, issued even before the person is arrested. Section 438 is not applicable for the persons who were already arrested. Hence when any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the Court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. Anticipatory Bail can be granted by Sessions Courts, High Courts and Supreme Court. Anticipatory bail is also known as Pre-arrest Bail. Appeal is a complaint to a superior Court of an injustice done or error committed by an inferior one, whose judgment or decision the Court above is called upon to correct or reverse. Section 372 provides that no appeal shall lie from any judgment and the order of criminal Court except as provided by this Code or by any other law for the time being in force. Therefore, the general bar of appeal against any judgment or the order of a criminal Court unless expressly provided by this Code or any other law for the time being in force is maintained. Arrest by private person without a warrant: Section 43 provides a provision for arrest by private person and procedure on such arrest. According to Section 43 any private person may arrest any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall hand over such arrested to a police officer or, in the absence of a police officer, take such person in custody to the nearest police station. If there is reason to believe that such person comes under the provisions of Section 41, a police officer shall rearrest him. Arrest by Private Person: Generally police officer has power to arrest, but Section 43 empowers a private person also to make arrest without warrant under certain situations. However, the arrest made by a private person of the offender shall satisfy three conditions such as; a) The offence must be one committed in his presence; b) The offence must be cognizable and c) The offence must be non-bailable Arrest how made? Section of the Code provides the procedure in which police officers, Magistrates and private citizens are authorized to make arrest without warrant. Section 46 prescribes the manner in which the arrest can be effected. According to Section 46, 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 it submission to the custody by word or action. If such person forcibly resists the endeavour to arrest him, or attempts

10 10 VIJAY LAW SERIES Shortnotes Index Adjournment Admissions Amendment of pleadings Amendment of written statement Amendment of written statement Appeal against ex parte decree Arrest and detention Arrest Before Judgment Attachment before judgment Attachment of property Bar of limitation Cause of Action Caveat Commissioner Computation of Limitation Condonation of Delay Constructive res judicata Continuous running of time Counterclaim Decree Decree-holder Deemed Decree Doctrine of Res Sub-Judice Equitable Set off Ex parte injunction Execution of Orders Ex-parte Decree Final Decree First Appeal Foreign Judgment Framing of Issues Garnishee Order Indigent Persons Inherent powers Injunction Interim Order and Stay Interlocutory Orders Interpleader Suit Interrogatories Joinder and Misjoinder of Parties Joinder of cause of action Joinder of defendants Joinder of plaintiffs JudgmentJudgment Jurisdiction Legal Set off Limitation Methods of service of summons Misjoinder of Causes of Action Mis-joinder of parties Misjoinder Mixed issues of law and fact Non-joinder of parties Order Partial abatement Pecuniary jurisdiction Permanent injunction Plaint Pleadings Precepts Preliminary Decree Pro Forma Defendant Ratio decidendi Receiver Reference Rejection of plaint Representative suit Res judicata Res Sub-Judice Restraining order Return of plaint Review Revision Second Appeal Set-off Stay Suits in Forma Pauperies Suits of civil nature Summons Temporary injunctions Written statement...230

11 CODE OF CRIMINAL PROCEDURE 11 Shortnotes Adjournment: Adjournment means postponement or recess or break. As a general rule, after the hearing of a suit is commenced, it shall continue without break till the suit is finally disposed of. But adjournment is an exception to such general rule. An adjournment is a suspension of proceedings to another time or place. To adjourn means to suspend until a later stated time or place. Once the hearing of evidence has begun, the hearing has to continue from day to day till all the witnesses have been examined. Admissions: Admission means acceptance. It is an acknowledgment or declaration of a fact or truth. In civil suits, each party is permitted to submit a written list of alleged facts and request the other party to admit or deny whether each is true or correct. Admission may be made before the suit or after filing of the suit. When a party accepts certain facts stated in the pleadings of the opposite party, it is said to have admitted those facts. Affidavit: Affidavit: Affidavit is a sworn statement in writing made under oath or on affirmation before an authorized Magistrate or officer. It is a written statement of fact made voluntarily, and signed before an authority empowered to administer such oaths. Affidavits generally name the place of execution and certify that the person making it states certain facts and appeared before the officer on a certain date and subscribed and swore to the statement. The person who makes an affidavit is called deponent or affiant. Amendment of pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. No application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Amendment of written statement: According to Order 6 Rule 17 the Court may at any stage of the proceedings allow either party to alter or amend his pleadings. A defendant can be allowed to amend the written statement to enable him to raise an additional ground of defence even if he failed to raise that ground in the first instance if an additional ground is not inconsistent with the original case. Where right of plaintiff is going to be jeopardized by the amendment of written statement it should not be allowed. Appeal against ex parte decree: Appeal against ex parte decreeappeal is a judicial re-examination or review of the decision by a higher court of the decision of a lower Court. An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court s decision. The memorandum of appeal contains the grounds on which the judicial examination is invited. An appellate court is a court that hears cases on appeal from another court Arrest and detention: Arrest and detention Arrest and detention is one of the most important means of execution of a decree. According to Section 55 a judgment-debtor may be arrested in

12 12 VIJAY LAW SERIES Glossary Abandoned: neglected Abduction: kidnap by force Abets: encourage, assist Abridged: shorten, reduced Absconder: avoider of a legal process Absurd: meaningless Abuse: neglect, misuse Accomplice: partner in crime Accusation: charge, blame Accused: person charged Acquainted: familiar Acquittal: release, freeing Adaptation: adjustment Adduced: proof to support Adjective Law: rules of practice Adjourn: postpone Adjudication: settlement Admonition: scolding, warning Adolescents: teenagers Adulteration: ruining Affray: fighting in public Aggrieved: sufferer, wounded Alimony: maintenance, grant Alleging: claiming Amendment: alteration, change Annul: cancel Anonymous: nameless, unknown Antecedents: past history Anticipatory bail: Pre-arrest Bail Appeal: complaint to a superior Court Apprehending arrest: expecting arrest Apprehension: fear, worry Arbitrary: illogical Arrest: taking a person into custody Assaulted: beaten Attachment: seizing property Autrefois acquit: previously acquitted Autrefois convict: previously convicted Bail: release from legal custody Barred: banned, excluded Beggary: state of being a beggar Broken homes: destroyed residence Bruises: damage Case Diary:police diary CD: case diary Charge: to accuse Charge-sheet: final report of charges Chronological: year wise in order Circumspection: caution, care Circumstantial evidence: indirect proof Citation: quote, reference Cognizable Offence: serious crime Cognizance: to take notice of judicially Commutation: reduction of punishment Compliance: fulfillment Complied with: obeyed with Complying: obeying Compounding: compromising Concur: agree Concurrently: at the same time Condition precedent: pre-condition Conferred: granted Confession: admission of guilt Confiscation: taking away Conformity: compliance Consistent: in harmony Consonance: simultaneous harmony Conspicuous: eye-catching Conspiracy: plan, plot Contending: challenging Contradiction: disagreement Contravention: breaking Conventions: meetings Conviction: guilty judgment Corroboration: support Counterfeit: fake, bogus Criminality: criminal practice Criminologist: scientist of crimes Cross-examination: traverse questioning Culpable: guilty

13 CODE OF CRIMINAL PROCEDURE 13 Reference Books Batuk Lal Durga Das Basu Kelkar R.V Misra S.N Mitra B.B Paranjape N.V Rathanlal & Dhirajlal Sarkar S.C Saxena R.N John Woodroffe Soonavala. J.K. Surendra Malik Tandon Thakker. C.K Code of Criminal Procedure,1973 Orient Publishing Co. Criminal Procedure Code, 1973 Lexis Nexis Butterworths Wadhawa, Nagpur Criminal Procedure, Eastern Book Company, Lucknow The Code of Criminal Procedure with Probations of Offenders Act & Juvenile Justice Act, Central Law Publications, Allahabad Code of Criminal Procedure, Kamal Law House, Kolkata Code of Criminal Procedure, Central Law Agency, Allahabad Code of Criminal Procedure, Lexis Nexis Butterworths Wadhawa, Nagpur Law of Criminal Procedure, Lexis Nexis Butterworths Wadhawa, Nagpur The Code of Criminal Proceudre, Central Law Agency, Allahabad Commentaries on Code of Criminal Procedure Supreme Court Criminal Digest, Lexis Nexis Butterworths Wadhawa, Nagpur Sudeep Malik Supreme Court on Criminal Procedure Code and Criminal Trial, Eastern Book Co.Lucknow Code of Criminal Procedure,Allahabad Law Agency, Faridabad Criminal Procedure Code,Lexis Nexis Butterworths Wadhawa, Nagpur