The Code of Criminal Procedure, 1973 (CrPc)

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The Code of Criminal Procedure, 1973 (CrPc)

1. Short title, extent and commencement

(1) This Act may be called the Code of Criminal Procedure, 1973.

(2) It extends to the whole of India except the State of Jammu and Kashmir:

Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply-

(a) to the State of Nagaland,

(b) to the tribal areas,

but the concerned State Government may , by notification apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification.

Explanation.- In this section, “tribal areas” means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong.

(3) It shall come into force on the 1st day of April, 1974.

2. Definitions.

In this Code, unless the context otherwise requires, -

(a) “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force: and “non-bailable offence” means any other offence.

(b) “charge” includes any head of charge when the charge contains more heads than one:

(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under and other law for the time being in force, arrest without warrant.

(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation. A report made by a police officer in a case, which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaints and the police officer by whom such report is made shall be deemed to be the complainant;

(e) “High Court” means, -

(i) In relation to any State, the High Court for that State;

(ii) in relation to a Union territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court;

(iii) In relation to any other Union territory, the highest court of criminal appeal for that territory other than the Supreme Court of India;

(f) “India” means the territories to which this Code extends;

(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or court;

(h) “investigation” includes 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,

(i) “judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath;

(j) “local jurisdiction”, in relation to a court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this code 1[and such local area may comprise the whole of the state, or any part of the State, as the State Government may, by notification, specify];

(k) “metropolitan area” means the area declared, or deemed to be declared, under section 8, to be a metropolitan area;

(l) “non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant;

(m) “notification” means a notification published in the Official Gazette;

(n) “offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871);

(o) “officer in charge of a police station” includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when, the State Government so directs, any other police officer so present;

(p) “place” includes a house, building, tent, vehicle and vessel;

(q) “Pleader”, when used with reference to any proceeding in any court, means a person authorized by or under any law for the time being in force, to practice in such court, and includes any other appointed with the permission of the court to act in such proceeding.

(r) “police report” means a report forwarded by a police officer to a magistrate under sub-section (2) of section 173;

(s) “Police report” means any post or place declared generally or specially by the state government, to be a police station, and includes any local area specified by the state government in this behalf;

(t) “prescribed” means prescribed by rules made under this code;

(u) “public prosecutor” means any person appointed under section 24, and includes any person acting under the directions of a public prosecutor.

(v) “sub-division” means a sub-division of a district;

(w) “summons-case” means relating to an offence, and not being a warrant-case;

2[(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal their;]

(x) “warrant-case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;

(y) words and expressions used herein and not defined but defined in the Indian penal code (45 of 1860) have the meanings respectively assigned to them in that code.

COMMENTS

(i) there is no particular format for a complaint. Nomenclature is also inconsequential. A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprits be suitably dealt with, is a complaint; Mohd. Yousuf v. Afaq Jahan ; (2006) 1 SCC 627.

(ii) the expression “Judicial proceeding” defined in clause (i) of section 2 includes any proceeding in the course of which evidence is or may be legally taken on oath. The law does not prescribe any particular method of presentation of challan, namely, that it should be presented by any police official. When the challan was presented before the Court, who was acting as a Judicial Magistrate at that time, the first step in the judicial proceeding was sitting in judicial proceeding; Shrichand v. State of Madhya Pradesh , (1993) Cr LJ 495.

——–

1. Ins. by Act 45 of 1978, sec. 2 (w.e.f. 18-12-1978).

2. Ins. by Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009, dt. 7.1.2009)

3. Construction of references.

(1) In this code,

(a) any reference, without any qualifying words, to a magistrate shall be construed, unless the context otherwise requires, -

(i) in relation to an area outside a metropolitan area, as a reference to a judicial magistrate;

(ii) in relation to a metropolitan area, as a reference to a metropolitan

Magistrate;

(b) any reference to Magistrate of the second class shall, in relation to an area outside a metropolitan area, be construed as a reference to a Judicial Magistrate of the second class, and, in relation to a Metropolitan area, as reference to a Metropolitan Magistrate;

(c) any reference to a magistrate of the first class shall, -

(i) in relation to a metropolitan area, be construed as a reference to a metropolitan Magistrate exercising jurisdiction in that area;

(ii) in relation to any other area, be construed as reference to a judicial magistrate of the first class exercising Jurisdiction in that area;

(d) any reference to the chief judicial magistrate shall, in relation to a metropolitan area, be construed as reference to the chief metropolitan Magistrate exercising jurisdiction in that area.

(2) In this code, unless the context otherwise requires, any reference to the court of a judicial magistrate shall, in relation to a metropolitan area, be construed as a reference to the court of the metropolitan magistrate for that area.

(3) Unless the context otherwise requires, any reference in any enactment passed before the commencement of this code, -

(a) to a magistrate of the first class, shall be construed as reference to a judicial Magistrate of the first class;

(b) to a magistrate of the second class or of the third class, shall be construed as a reference to a judicial Magistrate of the second class;

(c) to a presidency Magistrate or chief presidency magistrate, shall be construed as a reference, respectively, to a metropolitan magistrate or the chief metropolitan magistrate;

(d) to any area, which is included in a metropolitan area, as a reference to such metropolitan area, and any reference to a magistrate of the first class or of the second class in relation to such area, shall be construed as reference to the metropolitan magistrate-exercising jurisdiction in such area.

(4) Where, under any law, other than this code, the functions exercisable by a magistrate relate to matters-

(a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any court, they shall, subject to the provisions of this code, be exercisable by a Judicial Magistrate; or

(b) which are administrative or executive in nature, such as, granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an executive Magistrate.

STATE AMENDMENTS

Andaman and Nicobar Islands

(1) After section 3, the following section shall be inserted, namely.

“3-A. Special provision relating to Andaman and Nicobar Islands. -

(1) Reference in this code to:

(a) the chief Judicial Magistrate shall be construed as references to the district Magistrate or, where the state government so directs, also to the additional District Magistrate:

(b) a Magistrate or Magistrate of the first class or of the second class or Judicial Magistrate of the first class or the second class shall be construed as references to such executive Magistrate as the State Government may, be notification in the official gazette, specify.

(2) The State Government may, if it is of opinion that adequate number of persons or available for appointment as Judicial Magistrate, by notification in the Official Gazette, declare that the provisions of this section shall, on and from such day as may be specified in the notification, cease to be in force and different dates may be specified for different islands.

(3) On the cesser of operation of the provisions of this section every enquiry or trial pending, immediately before such cesser, before the District Magistrate or additional District Magistrate or any executive Magistrate, as the case may be, shall stand transferred, and shall be dealt with, from the stage which was reached before, such cesser, by such judicial Magistrate as the State Government may specify in this behalf.”

[Regulation 1 of 1974, sec. 3 (w.e.f.30.3. 1974)]

Arunachal Pradesh and Mizoram;

After sub-section (4), the following sub-section shall be inserted, namely; -

“(5) Notwithstanding any thing contained in the foregoing provisions for this section; -

(i) any reference in such of the provisions of this code, as applied to the Union territories of Arunachal Pradesh and Mizoram, to the courts mentioned in column (1) of the table below shall, until the courts of Session and Courts of Judicial Magistrate or constituted in the said Union Territories be construed as references to the court of Magistrate mentioned in the corresponding entry in column (2) of that table.

TABLE

1

2

Court of Session or Sessions Judge or Chief Judicial Magistrate. District Magistrate.
Magistrate or. Magistrate of the First Class Or Judicial Magistrate of the First Class. Executive Magistrate.

(ii) The functions mentioned in clause (a) of sub-section (4) shall be exercisable by an Executive Magistrate.” The Chief Commissioners and the Additional Deputy Commissioners, in the Union Territory of Arunachal Pradesh, were appointed to be Executive Magistrate].

[Vide Notification No .Jud. 25/74. dated 2nd April, 1974]

Nagaland:

After sub-section (4) insert the following sub-section which shall be deemed always to have been so;-

“(5) Notwithstanding anything contained in the foregoing provisions of this section; -

(i) Any reference in such of the provisions of this Code, as applied to the State of Nagaland to the Court and authority mentioned in column (1) of the table below shall, until the Courts of Session and Court of Judicial Magistrates are constituted in the said areas, be construed as references to the Court and authority mentioned in the corresponding entry in column (2) of that table.

TABLE

1

2

Court of Session or Session Judge or Chief Judicial Magistrate. District Magistrate or Additional District Magistrate.
Magistrate or Magistrate of the first class or Judicial Magistrate of the First Class. Executive Magistrate

(ii) References mentioned in Sub-section (3) to a Judicial Magistrate and functions mentioned in Sub-section (4) exercisable by a Judicial Magistrate and Executive Magistrate shall be construed as references to, and exercised by, Deputy Commissioner and Additional Deputy commissioner and Assistant to Deputy Commissioner appointed under any law in force:

Provided that an Assistant to Deputy Commissioner shall exercise such powers of a Judicial Magistrate as may be invested by the Governor” Nagaland Gazette 19-6-1975 [Vide Nagaland Gazette, dated 19th June, 1975]

4. Trial of offences under the Indian Penal Code and other laws.

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provision hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

5. Saving.

Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

6. Classes of Criminal Courts.

Besides the High Courts and the courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely.

(i) Courts of Session;

(ii) Judicial Magistrate of the first class and, in any Metropolitan area, Metropolitan Magistrate;

(iii) Judicial Magistrate of the second class; and

(iv) Executive Magistrate.

7. Territorial divisions.

(1) Every State shall be a sessions division or shall consist of sessions divisions; and every sessions division shall, for the purposes of this Code, be a district or consist of districts.

Provided that every metropolitan area shall, for the said purposes, be a separate sessions division and district.

(2) The State Government may, after consultation with the High Court, alter the limits or the number of such divisions and districts.

(3) The State Government may, after consultation with the High Court, divide any district into sub-divisions and may alter the limits or the number of such sub-divisions.

(4) The session’s divisions, districts and sub-divisions existing in a State at the commencement of this Code, shall be deemed to have been formed under this section.

8. Metropolitan areas.

(1) The State Government may, by notification, declare that, as from such date as may be specified in the notification, any area in the State comprising a city or town whose population exceeds one million shall be a metropolitan area for the purposes of’ this Code.

(2) As from the commencement of this Code, each of the Presidency-towns of Bombay, Calcutta, Madras, and the city of Ahmedabad shall be deemed to be declared under sub-section (1) to be a metropolitan area.

(3) The State Government may, by notification, extend, reduce or alter the limits of a metropolitan area but the reduction or alteration shall not be so made as to reduce the population of such area to less than one million.

(4) Where, after an area has been declared, or deemed to have been declared to be, a metropolitan area, the population of such area falls below one million, such area shall, on and from such date as the State Government may, by notification, specify in this behalf cease to be a metropolitan area; but notwithstanding such cesser, any inquiry, trial or appeal pending immediately before Such cesser before any Court or Magistrate in Such area shall continue to be dealt with under this Code, as if such cesser had not taken place.

(5) Where the State Government reduces or alters, under sub-section (3), the limits of any metropolitan area, such reduction or alteration shall not affect any inquiry, trial or appeal pending immediately before such reduction or alteration before any Court or Magistrate, and every such inquiry, trial or appeal shall continue to be dealt with under this Code, as if such reduction or alteration had not taken place.

Explanation. In this section, the expression “population” means the Population as ascertained at the last preceding census of which the relevant figures have been published.

9. Court of Session.

(1) The State Government shall establish a Court of Session for every session’s division.

(2) Every Court of Session shall be presided over by a Jude, to be appointed by the High Court.

(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise Jurisdiction in a Court of Session.

(4) The Sessions Judge of one sessions division may be appointed by the High Court to be also all Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct.

(5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions divisions and every such Judge or Magistrate shall have jurisdiction to deal with any such application.

(6) The Court of Sessions shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.

Explanation. For the purposes of this Code, “appointment” does not include the first appointment, posting or promotion of a person by the Government to any Service, or post in connection with the affairs of the Union or of a State, where under any law, such appointment, posting or promotion is required to be made by Government.

STATE AMENDMENTS

UTTAR PRADESH

In section 9 after sub-section (5), the following sub-section shall be inserted, namely.

“(5-A) In the event of the death, resignation, removal or transfer of the Sessions Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from his place at which his Court is held, the senior most among the Additional Sessions judges, and the Assistant Sessions Judges present at the place, and in their absence the Chief Judicial Magistrate shall without relinquishing his ordinary duties assume charge of’ the office of the Sessions Judge and continue in charge there of until the office is resumed by the sessions judge or assumed by an officer appointed thereto, and shall subject to the provision of this Code and any rules made by the High Court in this behalf’, exercise any of the powers of the Sessions Judge.”

[Vide U.P. Act I of 1984, sec. 2 (w.e.f. 1-5-1984)].

In section 9, in sub-section (6), insert the following proviso.

“Provided that the Court of Sessions may hold, or the High Court may direct the Court of Session to hold its sitting in any particular case at any place in the Sessions Division, where it appears expedient to do so for considerations of internal security or public order, and in such cases, the consent of the prosecution and the accused shall not be necessary.”

[Vide U.P. Act 16 of 1976. sec. 2 (w.r.e.f. 28-11-1975)].

WEST BENGAL:

To subsection (3) of’ section 9 the following provisos shall be added.

“Provided that notwithstanding anything to the contrary contained in this Code, Additional Sessions Judge in a sub-division, other than the subdivision, by whatever name called, wherein the headquarters of the Sessions Judges are situated, exercising, jurisdiction in a Court of Session, shall have all the powers of’ the Sessions Judge under this Code, in respect of the cases and proceedings in the Criminal Courts in that sub-division, for the purposes of sub-section (7) of session 1 16 sections 193 and, clause (a) of’ section 209 and sections 409, 439 and 449.

Provided further that the above powers shall not be in derogation of’ the powers otherwise exercisable by an Additional Sessions Judge or a Sessions Judge under this Code.”

[Vide W.B. Act 24 of’ 1988, sec. 3.]

10. Subordination of assistant Sessions Judges.

(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose court they exercise jurisdiction.

(2) The Sessions Judges may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges.

(3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every, such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application.

11. Courts of Judicial Magistrates.

(1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify:

1[Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrate of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.]

(2) The presiding officers of such Courts shall be appointed by the High Courts.

(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.

1. Added by Act 45 of 1978, sec. 3 (w.e.f. 18-12-1978).

STATE AMENDMENTS

Andaman and Nicobar Island, Dadra and Nagar Haveli and Lakshadweep:

In sub-section (3) of section 11, for the words “any member of the Judicial Service of the State functioning as a Judge in a Civil Court” the words “any person discharging the functions of a Civil Court” shall be substituted.

[Vide Regulation 1 of 1974, sec.4 (w.e.f. 30-3-1974)].

Bihar:

After sub-section (3) of Section 11,the following sub-section shall be inserted, namely.

“(4) The State Government may likewise establish for any local area one or more Courts of Judicial Magistrate of the first class or second class to try any particular cases of particular class or categories of cases.”

[Vide Bihar Act 8 of 1977, sec. 2 (w.e.f. 10-1-1977)].

Haryana:

After sub-section (1) of Section 11, the following sub-section shall be inserted.

“(1-A) The State Government may likewise establish as many courts of Judicial Magistrate of the first class and of the second class in respect to particular cases or particular class or classes of cased, or to cases generally in any local area.”

[Vide Haryana Act 16 of 1976, sec. 2 (w.e.f. 24-2-1976)].

Kerala:

In section 11, after sub-section (1), the following sub-section shall be inserted, namely.

“(1-A) The State Government may likewise establish as many special courts of Judicial Magistrate of First Class in respect to particular cases or to a particular class or particular classes or cases or in regard to cases generally, in any local area.

(2) The amendments made by sub-section (1) shall be, and shall be deemed to have been, in force for the period commencing from the 2nd day of December 1974 and ending with the 18th day of December 1978.

Validation. Any notification issued by the State Government on or after the 2nd day of December, 1974 and before the commencement of the Code of Criminal Procedure (Amendment) Act, 1978 (Central Act 45 of 1978) purporting to establish any special Court of the Judicial Magistrate of the first class having jurisdiction over more than one district shall be deemed to have been issued under section 11 of the said code as amended by this Act and accordingly such notification issued and any act or proceeding done or taken or purporting to have been done or taken by virtue of it shall be deemed to be and always to have been valid.”

[Vide Kerala Act 21 of 1987, sec.2].

Punjab:

In sub-section (1) of section 11, insert the following new sub-section.

“(1-A) The State Government may likewise establish as many courts of Judicial Magistrate of the first class in respect to particular cases or to particular classes of cases, or in regard to cases generally, in any local area.”

[Vide Punjab Act 9 of 1978, sec. 2 (w.e.f. 14-4-1978)].

Rajasthan:

In sub-section (1) of Section 11, the following new sub-section shall be inserted, namely.

“(1-A) The State Government may likewise establish as many Courts of Judicial Magistrate of the first class and of the second class in respect to particular cases, or to a particular classes or cases, or in regard to cases generally, in any local area.”

[Vide Rajasthan Act 10 of 1977, sec. 2 (w.e.f. 13-9-1977)].

Uttar Pradesh:

In section 11, the following sub-section shall be inserted, namely.

“(1-A) The State Government may likewise establish as many Courts of Judicial Magistrate of the first class and of the second class in respect to particular cases, or to a particular class or particular classes of cases, or in regard to cases generally, in any local area.”

[Vide U.P. Act 16 of 1976, sec. 3 (w.e.f. 30-4-1976)].

12. Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.

(1) In every district (not being a metropolitan area), the High Court shall appoint Judicial Magistrate of the first class to the Chief Judicial Magistrate.

(2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under this Code or under any other law for the time being in force as the High Court may direct.

(3)(a) the High Court may designate any Judicial Magistrate of the first class in any sub-division as the Sub-divisional Judicial Magistrate and relieve him of the responsibilities specified in this section as occasion requires.

(b) subject to the general control of the Chief Judicial Magistrate, every Sub-divisional Judicial Magistrate shall also have and exercise, such powers of supervision and control over the work or the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the sub-division as the High Court may, by general or special order, specify in this behalf.

STATE AMENDMENTS

Nagaland:

In sub-section (1), (2) and (3) the words “High Court” shall be substituted by the words “State Government” wherever they occur.

[Vide Notification Law 170/74 Leg. dated 3-7-1975].

Uttar Pradesh:

After sub-section (3), the following sub-section shall be inserted, namely.

“(4) Where the office of the Chief Judicial Magistrate is vacant or he is incapacitated by illness, absence or otherwise for the performance of his duties, the senior-most among the Additional Chief Judicial Magistrate and other judicial Magistrates present at the place, and in their absence the district magistrate and in his absence the senior-most Executive Magistrate shall dispose of the urgent work of the Chief judicial Magistrate.”

[Vide U.P. Act 1 of 1984, sec. 3 (w.e.f. 1-5-1984)].

13. Special Judicial Magistrates.

(1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate 1[of the first class or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan area]:

Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.

(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct.

2[(3) The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction.]

1. Subs by Act 45 of 1978 sec. 4(1) for certain wards (w.e.f. 18-12-1978).

2. Ins. by Act 45 of 1978, sec.4 (w.e.f.18-12-1978).

STATE AMENDMENTS

Andhra Pradesh:

In sub-section (2) of section 13, for the words “not exceeding one year at a time” the words “not exceeding two years at a time” shall be substituted and to the said subsection the following proviso shall be added, namely.

“Provided that nay person who is holding the office of Special Judicial Magistrate at the commencement of the Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 1992 and has not completed sixty-five years of age shall continue to hold office for a term of two years from the date of his appointment.”

{Vide A.P. Act 2 of 1992].

Bihar:

In section 13 for the words “in any district”, the words “in any local area” shall be substituted.

[Vide Bihar Act 8 of 1977, sec.3 (w.e.f. 10-1-1977)].

Haryana:

In section 13 of the principal Act, in sub-section (1) for the words “second class”, the words “first class or second class” and for the words “in any district”, the words “in any local area” shall be substituted.

[Vide Haryana Act 16 of 1976, sec. 3 (w.e.f. 24-2-1976)].

HIMACHAL PRADESH.

In section 13, for the words “in any district” the words “in any local area” shall be substituted.

[Vide Himachal Pradesh Act 40 of 1976 (w.e.f. 13.11.1976)].

PUNJAB

In section 13 of the principal Act, in sub-section (1) for the words “second class” the words “first class or second class” and for the words “in any district”, the words “in any local area” shall be substituted.

[Vide Punjab Act 9 of 1978, sec.3 (w.e.f. 14-4-1978)].

UTTAR PRADESH:

In section 13 of the principal Act, in sub-section (1) for the words “second class” the words “first class or second class” and for the words “in any district”, the words “in any local area” shall be substituted.

[Vide U.P. Act 16 of 1976, sec. 4 (w.e.f. 5.1.1976)].

14. Local Jurisdiction of Judicial Magistrates.

(1) Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates appointed under section 11 or under section 13 may exercise all or any of the powers with which they may respectively be invested under this Code:

1[Provided that the court of a Special Judicial Magistrate may hold its sitting at any place within the local area for which it is established].

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.

2[(3) Where the local jurisdiction of a Magistrate, appointed under section 11or section 13 or section 18, extends to an area beyond the district, or the metropolitan area, as the case may be, in which he ordinarily holds court, any reference in this Code to the Court of Session, Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall, in relation to such Magistrate, throughout the area within his local jurisdiction, be construed, unless the context otherwise requires, as a reference to the Court of Session, Chief Judicial Magistrate, or Chief Metropolitan Magistrate, as the case may be, exercising jurisdiction in relation to the said district or metropolitan area.]

1. Added by Act 45 of 1978 sec. 5 (w.e.f. 18-12-1978).

2. Ins. by Act 45 of 1978, sec. 5 (w.e.f. 18-12-1978).

STATE AMENDMENTS

MAHARASHTRA:

After session 14, the following section shall be inserted, namely.

“14-A Investing Judicial Magistrates with jurisdiction in specified cases of local area – The High Court any judicial Magistrate with all or any of the powers conferred or conferrable by or under this Code upon a Judicial Magistrate in respect to particular cases or to a particular class or classes of cases, generally, in any local area, consisting of all or any of the districts specified by it in this behalf.”

[Vide Maharashtra Act 23 of 1976, sec. 2 (w.e.f. 10-06-1976)

15. Subordination of Judicial Magistrates.

(1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.

(2) The Chief Judicial Magistrate may, from time to time, make rules or give special orders, consistent with his Code, as to the distribution of business among the Judicial Magistrates subordinate to him.

State Amendment

Bihar:

In section 15, after sub-section (2), the following sub-section shall be substituted, namely:-

“(3) Any judicial Magistrate exercising powers over any local area extending beyond the district in which he holds his Court, shall be subordinate to the Chief Judicial Magistrate of the said district and reference in this Code to the Sessions Judge shall be deemed to be references to the Sessions Judge of that district where he holds his Court.”

[Vide Bihar Act 8 of 1977, sec. 4 (w.e.f. 10-1-1977)].

16. Courts of Metropolitan Magistrates.

(1) In every metropolitan area, there shall be established as many courts of Metropolitan Magistrates, and at such places, as the State Government may, after consultation with the High Court, by notification, specify.

(2) The presiding officers of such courts shall be appointed by the High Court.

(3) The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the metropolitan area.

STATE AMENDMENT

Uttar Pradesh:

In section 16 after sub-section (3), the following sub-section shall be inserted, namely.

“(4) Where the office of the Chief Metropolitan Magistrate is vacant or he is incapacitated by illness, absence or otherwise for the performance of his duties, the senior most among the Additional Chief Metropolitan Magistrates and other Metropolitan Magistrates present at the place, shall dispose of the urgent work of the Chief Metropolitan Magistrate.”

[Vide U.P. Act 1 of 1984, sec. 3 (w.e.f. 1-5-1984)].

17. Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate.

(1) The High Court shall, in relation to every metropolitan area within its local jurisdiction, appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such metropolitan area.

(2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate, and such Magistrate shall have all or any of the powers of a Chief Metropolitan Magistrate under this Code or under any other law for the time being in force as the High Court may direct.

18. Special Metropolitan Magistrates.

(1) The High Court may, if requested by, any Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Metropolitan Magistrate, in respect to particular cases or to particular classes of cases If 1[***] in any metropolitan area within its local jurisdiction:

Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.

(2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct.

2(3) The High Court or the State Government, as the case may be, may empower any Special Metropolitan Magistrate to exercise, in any local area outside the metropolitan area, the powers of a Judicial Magistrate of the first class.

1. The words “or to cases generally” omitted by Act 45 of 1978 sec. 6 (w.e.f.18-12-1978).
2. Subs. by Act 45 of 1978 sec. 6, for sub-section (3) (w.e.f. 18-12-1978).

STATE AMENDMENTS

Andhra Pradesh:

In section (2) of 18, for the words “not exceeding one year at a time” the words “not exceeding two years at a time” shall be substituted and to the sub-said section the allowing proviso shall he added, namely.

“Provided that a person who is holding the office of’ Special Metropolitan Magistrate at the commencement of the Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 1992 and has not completed sixty-five years of age shall continue to hold office for a term of two years from the date of his appointment.

[Vide A.P. Act 2 of 1992].

MAHARASHTRA:

In sub-section (1) of section 18 for the words “in any metropolitan area” the words “in one or more metropolitan areas” shall be substituted.

[Vide Maharashtra Act 23 of 1976, sec. 3 (w.e.f. 10-06-1976)]

19. Subordination of Metropolitan Magistrates.

(1) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge, and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate.

(2) The High Court may, for the purposes of this Code, define the extent of the subordination if any, of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate.

(3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Metropolitan Magistrates and as to the allocation of business to an Additional Chief Metropolitan Magistrate.

20. Executive Magistrates.

(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 1[such) of the powers of a District Magistrate under this Code or under any other law for the time being in force 2[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 order 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 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.

3[(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.

1. Subs. by Act 45 of 1978 sec. 7. for “all or any” (w.e.f. 18-12-1978).

2. Ins. by Act 45 of 1978 sec. 7 (w.e.f. 18-12-1978).

3. Ins. by Act 25 of 2005, sec. 2.

STATE AMENDMENT

Uttar Pradesh:

In section 20 after sub-section (5), the following sub-section shall be inserted, namely.

“(6) The State Government may delegate its powers under sub-section (4) to the District Magistrate”

[Vide U.P. Act 1of 1984, section 5 (w.e.f. 1-5-1984)]

21. Special Executive Magistrates.

The State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates for particular areas or for the performance of particular functions and confer on such special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrate, as it may deem fit.

22. Local Jurisdiction of Executive Magistrates.

(1) Subject to the control of the State Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrates may exercise all or any of the powers with which they may be invested under this Code

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.

23. Subordination of Executive Magistrates.

(1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a Sub -division shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate.

(2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an additional District Magistrate.

24. Public Prosecutors.

1[24. Public Prosecutors.

(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutor for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.

(3) For every districts the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:

Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare, a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).

(6) Not withstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting, such Cadre:

Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by, the District Magistrate under sub-section (4).

2Explanation - For the purspose of sub-section,–

(a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;

(b) “Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.

(7) A person shall be eligible to be appointed as a public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:

3[“Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”]

(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice, is a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.]

——————–

1. Subs. by Act 45 of 1978 sec. 8, for section 24 (w.e.f 18-12-1978).

2. Ins. by Act 25 of 2005, sec. 3 (w.r.e.f. 18-12-1978).

3. Ins. by Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009, dt. 7.1.2009)

STATE AMENDMENTS

Bihar:

In section 24, for subsection (6) the following sub-section shall be substituted.

“(6) Notwithstanding anything contained in sub-section (5) where in a State there exists a in a State there exists a regular Cadre of prosecuting officers, the State Government may also appoint a Public Prosecutor from among the persons constituting such Cadre.-

[Vide Bihar Act 16 of 1984 sec. 2 (w.e.f. 24-8-1984)].

Haryana:

To Sub-section (6) of section 24, the following Explanation shall be added, namely.

“Explanation.For the Purpose of sub-section (6), the persons constituting the Haryana State Prosecution Legal Service (Group A) or Haryana State Prosecution Legal Service (Group B), shall be deemed to be a regular Cadre of Prosecuting Officers.

[Vide Haryana Act 14 of 1985, sec. 2].

Karnataka:

In section 24 of the Principle Act, in sub-section (1), -

(i) the words “or the State Government shall”, shall be omitted; and

(ii) for the words “appoint a Public Prosecutor” the words “or the State Government shall appoint a Public Prosecutor” shall be substituted.

[Vide Karnataka Act 20 of 1982, sec. 2 (w.e.f. 3-9-1981)].

Madhya Pradesh:

In section 24, -

(i) in sub-section (6), for the words, ‘rackets and figure “Notwithstanding anything contained in subsection (5)”, the words, brackets, letter and figures “Notwithstanding anything contained in sub-section (5), but subject to the provisions of sub-section (6-A)” shall be substituted and shall be deemed to have been substituted with effect from 18th December, 1978;

(ii) after sub-section (6), the following sub-section shall be inserted and shall be deemed to have been inserted with effect from 18th December 1978, namely:

“(6-A) Notwithstanding anything contained in sub-section (6), the State Government may appoint a person who has been in practice as an advocate for not less than seven years as the Public Prosecutor or Additional Public Prosecutor for the district and it shall not be necessary to appoint the Public Prosecutor or Additional Public Prosecutor for the district from among the person constituting the Cadre of Prosecution Officers in the State of Madhya Pradesh and the provisions of sub-section (4) and (5) shall apply to the appointment of a Public Prosecutor Additional Public Prosecutor under this sub-section”:

(iii) in sub-section (7), after the words, bracket and figure “sub-section (6)”, the words, brackets, figure and letter “or sub-section (6-A)” shall be inserted and shall be deemed to have been inserted with effect from 18th December, 1978: and

(iv). in sub-section (9), for the words, brackets and figure, “sub-section (7)”, the words, brackets, figures and letter “sub-section (6-A) and sub-section (7)” shall be substituted and shall be deemed to have been substituted with effect from 18th December 1978.

(Vide M.P. Act 21 of 1995, sec. 3 (w.e.f. 24-5-1995).

Maharashtra:

In section 24, -

(a) in sub-section (1), the words “after consultation with the High Court” shall be deleted;

(b) in sub-section (4), for the words “in consultation with the Sessions Judge” the words “with the approval of the State Government”, shall be substituted.

[Vide Maharashtra Act 34 of 1981 sec. 2 (w.e.f 20-5-1981)].

Rajasthan:

In section 24, for sub-section (6) shall be substituted by the following, namely.

“(6) Notwithstanding anything contained in sub-section (5), wherein a State there exists a regular Cadre of Prosecuting Officers, the State Government may also appoint a Public Prosecutor or an Additional Public Prosecutor from among the persons constituting such Cadre.”

[Vide Rajasthan Act 1 of 1981, sec. 2 (w.e.f. 10-12-1980)].

Tamil Nadu:

In section 24 -

(a) in sub-section (6), after the expression “sub-section (5)” insert the following. Namely.

“But subject to the provisions of sub-section (6-A)”:

(b) After sub-section (6), insert the following sub-section namely.

“(6-A) Notwithstanding anything contained in sub-section (6), the State Government may appoint a person who has been in practice as an advocate for not less than seven years, as the Public Prosecutor or Additional Public Prosecutor for the district and it shall not be necessary to appoint the Public Prosecutor or Additional Public

Prosecutor for the district from among the persons constituting the Cadre of Prosecuting Officers in the State of, Tamil Nadu and the provisions of sub-sections (4) and (5) shall apply, to the appointment of a Public Prosecutor or Additional Public Prosecutor under this sub-section.”

(c) “In sub-section (7), after the expression “sub-section (6)” insert “or sub-section (6A)”.

[Vide T.N. Act 42 of 1980 sec. 2 (w.e.f 1-12-1980)].

Uttar Pradesh:

In section 24, -

(a) In subsection (1) after the words “Public Prosecutor” the words and one or more Additional Public Prosecutors shall be inserted and be deemed always to have been inserted.

(b) After sub-section (6), the following sub-section shall be inserted and be deemed always to have been inserted, namely.

“(7) For the purpose of sub-sections (5) and (6), the period during which a person has been in practice as a pleader, or has rendered service as a Public Prosecutor, shall be deemed to be the period during which such person has been in practice as an advocate.

[Vide U.P. Act 33 of 1978, sec. 2 (w.e.f. 9-10-1978)].

In section 24, -

(a) In sub-section (1), the words “after consultation with the High Courts” shall be omitted;

(b) Sub-sections (4), (5) and (6) shall be omitted;

(c) In subsection (7), the words “or sub-section (6)” shall be omitted.

[Vide U.P. Act 18 of 1991, sec. 2 (w.e.f 16-2-1991)].

West Bengal:

In subsection (6) of section 24, for the words “shall appoint a Public Prosecutor or an Additional Public Prosecutor only” the words “may also appoint a Public Prosecutor or an Additional Public Prosecutor” shall be substituted.

[Vide W.B. Act 26 of 1990.]

In Sub-section (6) of’ section 24, the proviso shall be omitted.

[Vide, W.B. Act 25 of 1992].

25. Assistant Public Prosecutors.

(1) The State Government shall appoint in every district one or more Assistant public Prosecutors for conducting prosecutions in the courts of Magistrates.

1[(1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the courts of Magistrates]

(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case:

Provided that a police officer shall not be so appointed-

(a) If he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted: or

(b) If he is below the rank of Inspector.

1. Ins. by Act 45 of 1978, sec. 9 (w.e.f.18-12-1976).

STATE AMENDMENTS

Orissa:

In subsection (2) of- section 25, the following proviso shall be inserted, namely.

“Provided that nothing in this sub-section shall be construed to prohibit the State government from exercising its Control over Assistant Public Prosecutor through police officers.

[Vide Orissa Act 6 of’ 1995 (w.e.f 10-3-1995).

Uttar Pradesh:

In subsection (2) of’ section 25, the following proviso shall be inserted and be deemed always to have been inserted, namely.

“Provided that nothing in this subsection shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutor through police officers.”

[Vide U.P. Act 16 of 1976. sec. 5 (w.e.f 30-4-1976)].

West Bengal:

For subsection (3) of section 25, the following sub-section shall be substituted, namely.

“(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, any advocate may be appointed to be the Assistant Public Prosecutor in charge of that case.

(a). Where the case is before the court of Judicial Magistrate in any area in sub-division, where the headquarters of the District Magistrate are situated, by the District Magistrate; or

(b). Where the case is before the court a Judicial Magistrate in any area in sub-division, other than the sub-division referred to in clause (a), wherein the headquarters of the Sub-divisional Magistrate are situated, by the Sub-divisional Magistrate; or

(c). Where the case is before the court of a Judicial Magistrate in any area, other than the area referred to in clauses (a) and (b), by the local officer (other than police officer) specially authorized by the District Magistrate in this behalf.

Explanation. For the purposes of this sub-section, -

(i) “advocate” shall have the same meaning as in the Advocates Act, 1961 (5 of 1961);

(ii) “local officer” shall mean an officer of the State Government in any area, other than the area referred to in clauses (a) and (b).

[Vide W.B. Act, 17 of 1985, sec. 3].

25A. Directorate of Prosecution.-

1[Directorate of Prosecution. (1)The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.

(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.

(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.

(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.

(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.

(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the Deputy Director or Prosecution.

(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.

(8) The provisions of the section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.]

———————-

1. Ins. by Act 25 of 2005, sec. 4.

26. Courts by which offences are triable.

Subject to the other provisions of this Code,-

(a) Any offence under the Indian Penal Code (45 of 1860) may be tried by-

(i) the High Court, or

(ii) the Court of Session, or

(iii) any other court by which such offence is shown in the First Schedule to be triable;

1[“Provided that any [“offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code”] (45 of 1860) shall be tried as far as practicable by a Court presided over by a woman.”]

(b) Any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such court and when no court is so mentioned, may be tried by.

(i) the High Court, or

(ii) any other court by which such offence is shown in the First Schedule to be triable.

STATE AMENDMENT

Uttar Pradesh:

In section 26 for clause (b), the following clause shall be substituted, namely.

(b) Any offence under any other law may be tried-

(i) when any Court is mentioned in this behalf in such law, by such court, or by any court superior in rank to such court, and

(ii) when any court is so mentioned, by any court by which such offence is shown in the First Schedule to be triable, or by any court superior in rank to such court.

[Vide U.P. Act 1 of 1984. sec. 6 (w.e.f. 1-5-1984)].

——————–

1. Ins. by Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009, dt. 7.1.2009)

2. Inserted by Section 11 of ‘The Criminal Law (Amendment) Act, 2013″

27. Jurisdiction in the case of juveniles.

Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the court is under the age of sixteen years, may be tried by the court of’ a Chief- Judicial Magistrate, or by any court specially empowered under the Children Act, 1960 (60 of 1960), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.

28. Sentences which High Courts and Sessions Judges may pass.

(1) A High Court may pass any sentence authorized by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High court.

(3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.

29. Sentences, which Magistrates may pass.

(1) The court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.

(2) The court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or both.

(3) The court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.

(4) The court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class.

STATE AMENDMENT

Punjab:

After section 29, the following section shall be inserted, namely.

“29A. Sentences which Executive Magistrate may puss. An Executive Magistrate may pass a sentence of imprisonment of a term not exceeding three years or of fine not exceeding five thousand rupees, or both.

[Vide Punjab Act 22 of 1993 (w.e.f. 27-6-1993)].

30. Sentence of imprisonment in default of fine.

(1) The court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law:

Provided that the term-

(a) is not in excess of the powers of the Magistrate under section 29;

(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth 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.

(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 29.

31. Sentence in cases of conviction of several offences at one trial.

(1) When a person is convicted at one trial of two or more offences, the court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments, prescribed therefor which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment, which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher court:

Provided that-

(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;

(b) the aggregate punishment shall not exceed twice the amount of punishment, which the court is competent to inflict for a single offence.

(3) For the purpose of ‘appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.

32. Mode of conferring powers.

(1) In conferring powers under this Code, the High Courts or the State Government, as the case may be, may, by order, empower persons specially by name or in virtue of their offices or classes of officials generally by their official titles.

(2) Every such order shall take effect from the date on which is communicated to the person so empowered.

33. Powers of officers appointed.

Whenever any person holding an office in the service of Government who has been invested by the High Court or the State Government with any powers under this Code throughout any local area is appointed to an equal or higher office of the nature, within a like local area under the same State Government, he shall, unless the High court or the State Government, as the case may be, otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is so appointed.

34. Withdrawal of Powers.

(1) The High Court or the State Government, as the case may be, may withdraw all or any of the powers conferred by it under this code on any person or by any officer subordinate to it.

(2). Any Powers conferred by the Chief Judicial Magistrate or by the District Magistrate may be withdrawn by the respective Magistrate by whom such powers were conferred.

35. Powers of Judge and Magistrates exercisable by their successors-in-office.

(1) Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office.

(2) When there is any doubt as to who is the successor-in-office of any Additional or Assistant Session Judge, the Sessions Judge shall determine by order in writing the Judge who shall, for the purposes of this Code or of any proceeding or order there under, be deemed to be the successor-in-office of such Additional or Assistant Sessions Judge.

(3) When there is any doubt as to who is the successor-in-office of any Magistrate, the Chief Judicial Magistrate, or the District Magistrate, as the case may be, shall determine by order in writing the Magistrate who shall, for the purposes of this Code or of any proceedings or order thereunder, be deemed to be successor-in-office of such Magistrate.

36. Powers of superior officers of police.

Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.

37. Public when to assist Magistrates and police.

Every person is bound to assist a Magistrate or police officer reasonably demanding his aid-

(a) in the taking or preventing the escape of any other person whom such magistrate or police officer is authorised to arrest; or

(b) in the prevention or suppression of a breach of the peace; or

(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.

38. Aid to person other than police officer, executing warrant

When a warrant is directed to a person other than a police officer, any person may aid in the execution of such warrant, if the person to whom the warrant is directed be near at hand and acting in the execution of the warrant.

39. Public to give information of certain offences.

(1) Every person, aware of the Commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely :-

(i) sections 121 to 126, both inclusive, and section 130 (that is to say offences against the State specified in Chapter VI of the said Code);

(ii) sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code);

(iii) sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);

(iv). sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.);

(v) sections 302, 303 and 304 (that is to say, offences affecting life);

1[(va) section 364A (that is to say, offence relating to kidnapping for ransom, etc);]

(vi) section 382 (that is to say., offence of theft after preparation made for causing, death, hurt or restraint in order to the committing of the theft);

(Vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity);

(viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);

(ix) sections 431 to 439, both inclusive (that is to say, offence of mischief against property);

(x) sections 449 and 450 (that is to say, offence of house-trespass);

(xi) sections 456 to 460, both inclusive (that is to say, offences of lurking house trespass); and

(xii) sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes).

Shall, in the abstence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such Commission or intention;

(2) For the purposes of this section, the term “offence” includes any act committed at any place out of India, which would constitute an offence if committed in India.

1. Ins. by Act 42 of 1993, sec. 33 (w.e.f. 22-5-1993).

40. Duty of officers employed in connection with the affairs of a village to make certain report.

(1) Every officer employed in connection with the affairs of a village and every person residing in a village shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station, whichever is nearer, any information which he may posses respecting :-

(a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in or near such village:

(b) the resort to any place within, or the passage through, such village any person whom he knows, or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender;

(c) the Commission of, or intention to commit, in or near such village any non-bailable offence or any offence punishable under section 143, section 144, section 145 , section 147 or section 148 of the Indian Penal Code (45 of 1860).

(d) the occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances or the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or the disappearance from such village of any; person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person.

(e) the Commission of, or intention to commit, at any place out of India near such village any act which, if committed in India, would be an offence punishable under any of the following sections of the Indian penal Code (45 of 1 860), namely, sections 231 to 238 (both inclusive), section 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 457, to 460 (both inclusive), section 489A, 489B, 489C and 489D;

(f) any matter likely to affect the maintenance of order of the prevention of crime or the safety of person or property respecting which the District Magistrate by general or special order made with the previous sanction of the State Government, has directed him to communicate information.

(2) In this section, -

(i) “village” includes village-lands.

(ii) the expression “proclaimed offender” includes any person proclaimed as all offender by any court or authority in any territory in India to which this code does not extend, in respect of any act which if committed in the territories to which this Code extends, would be an offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, section 302, 304, 382, 392 to 399 (both inclusive), section 402, 435, 436, 449, 450 and 457 to 460 (both inclusive).

(iii) the words “officer employed in connection with the affairs of the village” means a member of the panchayat of the village and includes the headman and every officer or other person appointed to perform any function connected with the administration of the village.

1. Ins. by Act 42 of 1993, sec. 33 (w.e.f. 22-5-1993).

41. When police may arrest without warrant.

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person :-

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or

(c)who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) 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

(e) 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 reasonable suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a 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

(h) who, being a released convict, commits a breach of any rule made under subsection (5) of section 356; or

(i) 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 there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of person specified in section 109 or section 110.

42. Arrest on refusal to give name and residence.

(1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.

(2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India

(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.

43. Arrest by private person and procedure on such arrest.

(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

(2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him.

(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

44. Arrests by Magistrate.

(1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.

(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

45. Protection of members of the Armed Forces from arrest.

(1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.

(2) The State Government may, by notification, direct that the provisions of subsection (1) shall apply to Such class or category of the members of the Force charged with the maintenance of’ public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression” Central Government” occurring therein, the expression “State Government” were substituted.

STATE AMENDMENT

Assam:

For Sub-section (2) of section 45, the following sub-section shall be substituted, namely:-

“(2) The State Government may, by notification, direct that the provisions of subsection (1) shall apply.

(a) to such class or category or category of the members of’ the Forces charged with the maintenance of public order, or

(b) to such class or category of other public servants [not being persons to whom the provisions of sub-section (1), apply] charged with the maintenance of public orders, as may be specified in notification, whenever, they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression “Central Government” occurring therein, the expression “state Government” were substituted.

[Vide President’s Act 3 of 1980, sec. 2 (w.e.f. 5-6-1980)].

46. Arrest how made.

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

1[(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.]

CrPc (Amendment) Act, 2005 (Notes on Clauses)

Sub-section (4) has been added to prohibit arrest of a woman after sunset and before sunrise except in exceptional circumstances and where such circumstances exist the prior permission of the Judicial Magistrate of the first class is to be obtained.

1. Ins. by Act 25 of 2005, sec. 6.

47. Search of place entered by person sought to be arrested.

(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him such free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purposes, and demand of admittance duly made, he cannot otherwise obtain admittance

Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

(3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

48. Pursuit of offenders into other jurisdictions.

A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.

49. No unnecessary restraint.

The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

50. Person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

50A. Obligation of person making arrest to inform about the arrest, etc. to a nominated person.

(1) Every police officer or other person making any under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may as may be disclosed or nominated by the arrested person for the purpose of giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station.

(3) An entry of teh fact as to who has been informed of the arrest of such person shall be made in a book to be kept in teh police station insuch form as may be prescribed in this behalf by the State Government.

(4) It shall be the duty of teh magistrate before whom such arrested person is produced to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied within respect of such arrested person.

Cr PC Amendment Act 2005 (Notes on clauses)

Section 50A requires the police to give information about the arrest of the person as well as the place where he is being, held to any one who may be nominated by him for sending such information.

51. Search of arrested persons.

(1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to, furnish bail.

The officer making the arrests or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe Custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person.

(2). Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.

52. Power to seize offensive weapons.

The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested.

53. Examination of accused by medical practitioner at the request of police officer.

(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting, at the request of a police officer not below the rank of sub-inspector, and for- any person acting in good faith in his aid and -under his direction, to make such all examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

1[Explanation. – In this section and in sections 53A and 54,-

(a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;

(b) “registered medical practitioner” means a medical practitioner who possess any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 and whose name has been entered in a State Medical Register.]

CrPc (Amendment) Act, 2005 (Notes on Clauses)

Explanation seeks to explain the meaning of the expressions “examination” and “registered medical practitioner” appearing in sections 53A and 54.

Subs. by Act 25 of 2005, sec. 8, for “Explanation.- In this section and in section 54, “registered medical practitioner” means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register”.

53A. Examination of person accused of rape by medical practitioner.

153 A. Examination of person accused of rape by medical practitioner. – (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of this person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and”.

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.]

CrPc (Amendment) Act, 2005 (Notes on Clauses)

Section 53A seeks to provide for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape by the registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner by any other registered medical practitioner.

———————-

1. Ins. by Act 25 of 2005, sec. 9.

54. Examination of arrested person by medical practitioner at the request of the arrested person.

1[(1)] When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered  medical practitioner unless the Magistrate considers that  the request is made for the purpose of vexation or delay or for defeating the ends of justice.

2[(2) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the registered medical practitioner to the arrested person or the person nominated by such arrested person.]

CrPc (Amendment) Act, 2005 (Notes on Clauses)

Section 54 has been amended to provide that a copy of the report of the medical examination of the arrested person should also be furnished by the registered medical practitioner to the arrested person or his nominee, after his medical examination has been conducted.

State Amendment

Uttar Pradesh:

In section 54, the following sentence shall be inserted at the end, namely:-

“The registered medical practitioner shall forthwith furnish to the arrested person a copy of the report of such examination free of cost.”

[Vide Uttar Pradesh Act 1 of 1984, sec. 7 (w.e.f. 1-5-1984)].

After section 54, the following section shall be inserted, namely:-

“54-A. Test identification of the accused.- When a person is arrested on a charge of committing an offence and his test identification by any witness is considered necessary by any Court having  jurisdiction, it shall be lawful for an Executive Magistrate acting at the instance of such Court, to hold test identification of the person arrested.”

[Vide Uttar Pradesh Act 1 of 1984, sec. 8 (w.e.f. 1-5-1984)

1. Section 54 renumbered as sub-section thereof by Act 25 of 2005, sec. 10.

2. Ins. by Act 25 of 2005, sec. 10.

54A. Identification of person arrested

1[54A. Identification of person arrested:- Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so  arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.]

CrPc (Amendment) Act, 2005 (Notes on Clauses)

Section 54 A empowers the Court to direct specifically the holding of the identification of the arrested person at the request of the prosecution.

2[“Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with:

Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be videographed.”.]

——————————————-

1. Ins. by Act 25 of 2005, sec. 11.

2. Inserted by Section 12 of ‘The Criminal Law (Amendment) Act, 2013′

55. Procedure when police officer deputes subordinate to arrest without warrant

(1) When any officer in charge of a police station or any police officer making an investigation under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order.

(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under section 41.

56. Person arrested to be taken before Magistrate or officer in charge of police station.

A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

57. Person arrested not to be detained more than twenty-four hours.

No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

58. Police to report apprehensions.

Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.

59. Discharge of person apprehended.

No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.

60. Powers, on escape, to pursue and re-take.

(1) If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India.

(2) The provisions of section 47 shall apply to arrests under sub-section (1) although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest.

61. Form of summons.

Every summons issued by a court under this Code shall be in writing, in duplicate, signed by the presiding officer of such court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the court.

62. Summons how served.

(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant.

(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

63. Service of summons on corporate bodies and societies.

Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed, to have been effected when the letter would arrive in ordinary course of post.

Explanation:- In this section “corporation” means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act.1860 (21 of 1860).

64. Service when persons summoned cannot be found.

Where the person summoned cannot, by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

Explanation :- A servant is not a member of the family within the meaning of this section.

65. Procedure when service cannot be effected as before provided.

If service cannot by the exercise of due diligence be effected as provided in section 62, section 63 or section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides, and thereupon the court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.

66. Service on Government servant.

(1) Where the person summoned is in the active service of the Government, the court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed: and such head shall thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the court under his signature with the endorsement required by that section.

(2) Such signature shall be evidence of due service.

67. Service of summons outside local limits.

When a court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.

68. Proof of service in such cases and when serving officer not present.

(1) When a Summons issued by a court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the manner provided by section 62, or section 64) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.

(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the court.

69. Service of summons on witness by post.

(1) Notwithstanding anything contained in the preceding section of this Chapter, a court issuing a summons to a witness may in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.

(2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the court issuing the summons may declare that the summons has been duly served.

STATE AMENDMENT

Andaman and Nicobar Islands and Lakshadweep:

In section 69, -

(a) in sub-section (I), after the words “lo be served by registered post” the words “or of’ the substance thereof to be served by wireless message” shall be inserted.

(b) in subsection (2), for the words “that the witness refused to take delivery of the summons” the words “or a wireless messenger that the witness refused to take delivery, of’ the summons or the message, as the case may, be” shall be substituted.

[Vide Regulation 6 of’ 1977. sec. 2 (w.e.f 17-11-1977)].

70. Form of warrant of arrest and duration.

(1) Every warrant of arrest issued by a court under this Code shall be in writing, signed by the presiding officer of such court and shall bear the sea] of the court.

(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

71. Power to direct security to be taken.

(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the court the officer to whom the warrant is directed shall take such security and shall release such person from custody.

(2) The endorsement shall state-

(a) the number of sureties;

(b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound;

(c) the time at which he is to attend before the court.

(3) Whenever security is taken under this section the officer to whom the warrant is directed shall forward the bond to the court.

72. Warrants to whom directed.

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.

(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.

73. Warrant may be directed to stay persona.

(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.

(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.

74. Warrant directed to police officer.

A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

75. Notification of substance of warrant.

The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.

76. Person arrested to be brought before court without delay.

The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person:

Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

77. Where warrant may be executed.

A warrant of arrest may be executed at any place in India.

78. Warrant forwarded for execution outside jurisdictions

(1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the Executive Magistrate or District Superintendent or Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner hereinbefore provided.

(2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under section 81 to decide whether bail should or should not be granted to the person.

79. Warrant directed to police officer for execution outside jurisdiction.

(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed.

(2) Such Magistrate or police Officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant.

(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the court which issued it.

80. Procedure of arrest of person against whom warrant issued.

When a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the court which issued the warrant is within thirty kilometers of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 71, be taken before such Magistrate or District Superintendent or Commissioner.

81. Procedure by Magistrate before whom such person arrested is brought.

(1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the court which issued the warrant, direct his removal in custody to such court:

Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under section 71 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent or Commissioner shall take such bail or security as the case may be, and forward the bond, to the court which issued the warrant:

Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of section 437), or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in sub-section (2) of section 78 to release such person on bail.

(2) Nothing in this section shall be deemed to prevent a police officer from taking security under section 71.

STATE AMENDMENT

Uttar Pradesh:

In sub-section (1) of’ section 81, the following third proviso shall be inserted, namely.

“Provided also that where such person is not released on bail or where he fails to give such security as aforesaid, the Chief Judicial Magistrate in the case on a non-bailable offence or any Judicial Magistrate in the case of a bailable offence may pass such orders as he thinks fit for his custody till such time as may be necessary for his removal to the court which issued that warrant.”

[Vide U.P. Act 1 of 1984, sec. 9 (w.e.f. 1-5-1984)].

82. Proclamation for person absconding.

(1) If Any court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows:-

(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or home-stead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court house,

(ii) the court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in Clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

(4) Where  a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).]

CrPc (Amendment) Act, 2005 (Notes on Clauses)

Sub-sections (4) and (5) empower the Court to make the declaration that the person is a proclaimed offender where he fails to appear at the specified place and time mentioned in the proclamation issued under sub-section (1) in relation to offences under sections 302, 304, 364 etc., of the Indian Penal Code.

Ins, by Act 25 of 2005, sec. 12.

83. Attachment of property of person absconding.

(1) The court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,–

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local jurisdiction of the court,

It may order the attachment simultaneously with the issue of the proclamation.

(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.

(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-

(a) by seizure; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the court thinks fit.

(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the collector of’ the district in which the land is situate, and in all other cases-

(a) by taking possessions or

(b) by the appointment of’ a receiver; or

(c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the court.

(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).

84. Claims and objections to attachment.

(1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:

Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the even of the death of the claimant or objector, be continued by his legal representative.

(2) Claims or objections under sub-section (1) may be preferred or made in the court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under sub-section (2) of section 83, in the court of the Chief Judicial Magistrate of the district in which the attachment is made.

(3) Every such claim or objection shall be inquired into by the court in which it is preferred or made:

Provided that, if it is preferred or made in the court of a Chief judicial Magistrate, he may, make it over for disposal to any Magistrate subordinate to him.

(4) Any person whose claim or objection has been disallowed in whole or in part by an order under subsection (1) may, within a period of one year from the date of such order, institute a suit to establish the right which the claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.

85. Release, sale and restoration of attached property.

(1) If the proclaimed person appears within the time specified in the proclamation, the court shall make an order releasing the property from the attachment.

(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section; unless it is subject to speedy and natural decay, or the court considers that the sale would be for the benefit of the owner, in either of which cases the court may cause it to be sold whenever it thinks fit.

(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the court by whose order the property was attached, or the court to which such court is subordinate, and proves to the satisfaction of- such court that he did not abscond or conceal himself for the purpose of avoiding, execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying there from all costs incurred in consequence of the attachment, be delivered to him.

86. Appeal from order rejecting application for restoration of attached property.

Any person referred to in sub-section (3) of section 85, who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof may appeal to the court to which appeals ordinarily lie from the sentences of the first-mentioned court.

87. Issue of warrant in lieu of, or in addition to, summons.

A court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest-

(a) if either before the issue of summons, or after the issue of the same but before time fixed for his appearance, the court sees reason to believe that he has absconded or will not obey the summons; or

(b) if, at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

88. Power to take bond for appearance.

When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trial.

89. Arrest on breach of bond for appearance.

When any person who is bound by any bond taken under this Code to appear before a court, does not appear, the officer presiding in such court may issue a warrant directing that such person be arrested and produced before him.

90. Provisions of this Chapter generally applicable to summons and warrants of arrest.

The provisions contained in this Chapter relating to a summons and warrants, and their issue. Service, and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code.

91. Summons to produce document or other thing.

Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed -

(a) to affect, sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers, Books Evidence Act, 1891(13 of 1891), or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

92. Produce as to letters and telegrams.

(1) If any document, parcel or thing in the custody of a postal or telegraph authority is, in the opinion of the District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court wanted for the purpose of any investigation, inquiry, trial or other proceeding under this Code, such Magistrate or court may require postal or telegraph authority, as the case may be, or deliver the document, parcel or thing to such person a the Magistrate or Court directs.

(2) If any such document, parcel or thing is, in the opinion of any other Magistrate, whether Executive or Judicial, or of any Commissioner of police or District Superintendent of police, wanted for any such purpose, he may require the postal or telegraph authority, as the case nay be, to cause search to be made for and to detain such document, parcel or thing pending the order of a District Magistrate, Chief Judicial Magistrate or Court under sub-section (1)..

93. When search warrant may be issued.

(1) (a) where any court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or

(b) where such document or thing is not known to the Court to be in the possession of any person, or

(c) where the court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection,

it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.

(2) The court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.

(3) Nothing contained in this section shall authorize any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority.

94. Search of place suspected to contain stolen property, forged documents, etc.

(1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorize any police officer above the rank of a constable-

(a) to enter, with such assistance as may be required, such place,

(b) to search the same in the manner specified in the warrant,

(c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies,

(d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety,

(e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies.

(2) The objectionable articles to which this section applies are-

(a) counterfeit coin;

(b) pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962);

(c) counterfeit currency note; counterfeit stamps;

(d) forged documents;

(e) false seals;

(f) obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860);

(g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f).

95. Power to declare certain publications forfeited and to issue search warrants for the same.

(1) Where-

(a) any newspaper, or book, or

(b) any document,

Wherever printed appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153 A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the news paper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any, Magistrate may by warrant authorise any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.

(2) In this section and in section 96, -

(a) “newspaper” and “book” have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867):

(b) “document” includes any painting, drawing or photograph, or other visible representation.

(3) No order passed or action taken under this section shall be called in question in any court otherwise than in accordance with the provisions of section 96.

96. Application to High Court to set aside declaration of forfeiture.

(1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may within two months from the date of publication in the official Gazette of such declaration, apply to the High court to set aside such declaration on the ground that the issue of the newspaper, or the books or the other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub-section (1) of section 95.

(2) Every such application shall, where the High Court consists of three or more, Judges be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such Special Bench shall be composed of all the Judges of that High Court.

(3) On the hearing of any such application with reference to any newspaper, any copy of such newspaper, may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper in respect of which the declaration of forfeiture was made.

(4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in sub-section (I) of section 95, set aside the declaration of forfeiture.

(5) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those Judges.

97. Search for persons wrongfully confined.

If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue, a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

98. Power to compel restoration of abducted females.

Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge or such child, and may compel compliance with such order, using such force as may be necessary.

99. Direction, etc., of search warrants.

The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all search-warrants issued under section 93, section 94, section 95 or section 97.

100. Persons in charge of closed place to allow search.

(1) Whenever any place liable to search of inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witness; but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860).

101. Disposal of things found in search beyond jurisdiction.

When, in the execution of a search-warrant at any place beyond the local jurisdiction of the court which issued the same, any of the things for which search is made, are found, such things, together with the list of the same prepared under the provisions hereinafter contained, shall be immediately taken before the court issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction therein than to such court, in which case the list and things shall be immediately taken before such Magistrate; and unless there be good cause to the contrary, such Magistrate shall make an order authorising them to be taken to such court.

102. Power of police officer to seize certain property.

(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances, which create suspicion of the Commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.

1(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, conveniently transported to the Court 2[ or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigational], he may give custody thereof to any person on  his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as and when required and to give effect to the further orders of the Court as to disposal of the same:]

1. Ins. by Act 45 of 1978, sec. 10 (18-12-1978).

103. Magistrate may direct search in his presence.

Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant.

104. Power to impound document, etc., produced.

Any court may, if it thinks fit impound any document or thing produced before it under this Code.

105. Reciprocal arrangements regarding processes.

(1) Where a court in the territories to which this Code extends (hereafter in this section referred to as the said territories desires that-

(a) a summons to an accused person, or

(b) a warrant for the arrest of an accused person, or

(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or

(d) a search warrants,

1[issued by it shall be served or executed at any place, -

(i) within the local jurisdiction of a court in any State or area in India outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of section 68 shall apply in relation to such summons as if the presiding officer of the court to whom it is sent were a Magistrate in the said territories;

(ii) in any country of place outside India in respect of which arrangements have been made by the Central Government with the Government of such country or place for service or execution of summons or warrant in relation to criminal matters (hereafter in this section referred to as the contracting State), it may send such summons or warrant in duplicate in such form, directed to such court, Judge or Magistrate, and sent to such authority for transmission, as the Central Government may, by notification, specify in this behalf.]

(2) Where a court in the said territories has received for service or execution-

(a) a summons to an accused person, or

(b) a warrant for the arrest of an accused person, or

(c) a summons to any person requiring him to attend and produce a document or other things or to produce it, or

(d) a search warrant.

1[issued by–

(i) a court in any State or are in India outside the said territories

(ii) a court, Judge or Magistrate in a contracting State,

It shall cause the same to be served or executed] as if it were a summons or warrant received by it from another court in the said territories for service or execution within its local Jurisdiction; and where

(i) a warrant of arrest has been executed, the person arrested shall, so far as possible, be dealt with in accordance with the procedure prescribed by sections 80 and 81;

(ii) a search warrant has been executed, the things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by section 101:

2[Provided that in a case where a summons or search warrant received from a contracting State has been executed, the documents or things produced or things found in the search shall be forwarded to the court issuing the summons or search warrant through such Authority as the Central Government may, by notification, specify in this behalf.]

1. Subs by Act 32 of 1988, sec. 2, for certain words (w.e.f. 25-5-1988).
2. Ins. by Act 32 of 1988, sec. 2 (w.e.f. 25-5-1988).

105A. CHAPTER II-A

1 RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERTAIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

1. Chapter VIIA (containing Sections 105A to 105L) Ins. by Act 40 of 1993, sec. 2 (w.e.f. 20-7-1994).

Definitions:-In this Chapter, unless the context otherwise requires, -

(a) “contracting State” means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise;

(b) “identifying” includes establishment of a proof that the property was derived from, or used in, the Commission of an offence;

(c) “proceeds of crime,” means any property derived or obtained directly or indirectly by any person as a result of criminal activity (including crime involving currency, transfers) or the value of any such property;

(d) “property” means property and assets of every description whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such properly or assets derived or used in the Commission of an offence and includes property obtained through proceeds of crime;

(e) “tracing” means determining the nature source, disposition, movement, title or ownership of property.

105B. Assistance in securing transfer of persons

(1) Where a court in India, in relation to a criminal matter, desires that a warrant for arrest of any person to attend or produce a document or other thing issued by it shall be executed in any place in a contracting State, it shall send such warrant in duplicate in such form to such Court, Judge or Magistrate, through such authority, as the Central Government may, by notification, specify in this behalf and that court, Judge or Magistrate, as the case may be, shall cause the same to be executed.

(2) Not withstanding anything contained in this Code, if, in the course of an investigation or any inquiry into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that the attendance of a Person who is in any place in a contracting State is required in connection with such investigation or inquiry and the court is satisfied that such attendance is so required, it shall issue a summons or warrant, in duplicate, against the said person to such court, Judge or Magistrate, in such form as the Central Government by notification, specify in this behalf, to cause the same to be served or executed.

(3) Where a court in India, in relation to a criminal matter, has received a warrant for arrest of any person requiring him to attend or attend and produce a document or other thing in that court or before any other investigating agency, issued by a court, Judge or Magistrate in a contracting State, the same shall be executed as if it is the warrant received by it from another court in India for execution within its local limits.

(4) Where a person transferred to a contracting State pursuant to sub-section (3) is a prisoner in India, the court in India or the Central Government may impose such conditions as that court or Government deems fit.

(5) Where the person transferred to India pursuant to sub-section (1), or sub-section (2) is a prisoner in a contracting State, the court in India shall ensure that the conditions subject to which the prisoner is transferred to India are complied with and such prisoner shall be kept in such custody subject to such conditions as the Central Government may direct in writing.

105C. Assistance in relation to orders of attachment or forfeiture of property.

(1) Where a court in India has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under the provisions of sections 105D to 105J (both inclusive).

(2) Where the Court has made an order for attachment or forfeiture of any property under sub-section (1), and such property is suspected to be in a contracting State, the court may issue a letter of request to a court or an authority in the contracting State for execution of such order.

(3) Where a letter of request is received by the Central Government from a court or an authority in a contracting State requesting attachment or forfeiture of the property in India, derived or obtained, directly or indirectly, by any person from the commission of an offence committed in that contracting State, the Central Government may forward such letter of request to the court, as it thinks fit, for execution in accordance with the provisions of sections 105D to 105J (both inclusive) or, as the case may be, any other law for the time being in force.

105D. Identifying unlawfully acquired property.

(1) The court shall, under subsection (1), or on receipt of a letter of request under sub-section (3) of section 105C, direct any police officer not below the rank of Sub-Inspector of Police to take all steps necessary for tracing and identifying such property.

(2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in respect of any person, place, property assets, documents, books of account in any bank or public financial institutions or any other relevant matters.

(3) Any inquiry, investigation or survey referred to in sub-section (2) shall be carried out by an offence mentioned in sub-section (1) in accordance with such directions issued by the said court in this behalf.

105E. Seizure or attachment of property

(1) Where any officer conducting an inquiry or investigation under section 105D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property and where it is not practical to seize such property, he may make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned.

(2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the said court, within a period of thirty days of its being made.

105F. Management of properties seized or forfeited under this Chapter.

(1) The court may appoint the District Magistrate of the area where the property is situated, or any other officer that may be nominated by the District Magistrate, to perform the functions of an administrator of such property.

(2) The Administrator appointed under sub-section (1) shall receive and manage the property in relation to which the order has been made under sub-section (1) of section 105E or under section 105H in such manner and subject to such conditions as may be specified by the Central Government.

(3) The Administrator shall also take such measures, as the Central Government may direct, to dispose of the property, which is forfeited to the Central Government.

105G. Notice of forfeiture of property.

(1) If as a result of the inquiry, investigation or survey under section 105D, the court has reason to believe that all or any of such properties are proceeds of crime, it may serve a notice upon such person (hereinafter referred to as the person affected) calling upon him within a period of thirty days specified in the notice to indicate the source of income, earning or assets, out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties, as the case may be, should not be declared to be proceeds of crime and forfeited to the Central Government.

(2) Where a notice under sub-section (1) to any person specifies any property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.

105H. Forfeiture of property in certain cases

(1) The court may, after considering the explanation, if any, to the show-cause notice issued under section 105G and the material available before it and after giving to the person affected (and in a case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are proceeds of crime:

Provided that if the person affected (and in a case where the person affected holds any property specified in the notice through any other person such other person also) does not appear before the court or represent his case before it within a period of thirty days specified in the show-cause notice, the court may proceed to record a finding under this sub-section ex parte on the basis of evidence available before it.

(2) Where the court is satisfied that some of the properties referred to in the show cause notice are proceeds of crime but it is not possible to identify specifically such properties, then, it shall be lawful for the court to specify the properties which, to the best of its judgment, are proceeds of crime and record a finding accordingly under sub-section (1).

(3) Where the court records a finding under this section to the effect that any property is proceeds of crime, such property shall stand forfeited to the Central Government free from all encumbrances.

(4) Where any shares in a company stand forfeited to the Central Government under this section, then the company shall, notwithstanding any thing contained in the Companies Act. 1956 (1 of 1956) or the articles of association of the company, forthwith register the Central Government as the transferee of such shares.

105-I. Fine in lieu of forfeiture

(1) Where the Court makes a declaration that any property stands forfeited to the Central Government under section 105H and it is a case where the source of only a part of such property has not been proved to the satisfaction of the Court, it shall make an order giving an option to the person affected to pay, in lieu of forfeiture, a fine equal to the market value of such part.

(2) Before making an order imposing a fine under sub-section (1), the person affected shall be given a reasonable opportunity of being heard.

(3) Where the person affected pays the fine due under sub-section (1), within such time as may be allowed in that behalf, the Court may, by order, revoke the declaration of forfeiture under section 105h and thereupon such property shall stand released.

105J. Certain transfers to be null and void.

Where after the making of an order under sub-section (1) of section 105E or the issue of a notice under section 105G, any property referred to in the said order or notice is transferred by any mode whatsoever such transfer shall, for the purposes of the proceedings under this Chapter, be ignored and if such property is subsequently forfeited to the Central government under section 160H, then the transfer of such property shall be deemed to be null and void.

105K. Procedure in respect of letter of request.

Every letter of request, summons or warrant, received by the Central Government from, and every letter of request, summons or warrant, to be transmitted to a contracting State under this Chapter shall be transmitted to a contracting State or, as the case may be, sent to the concerned court in India in such form and in such manner as the Central Government may, by notification, specify in this behalf.

105L. Application of this Chapter.

The Central Government may, by notification in the Official Gazette, direct that the application of’ this Chapter in relation to a contracting State with which reciprocal arrangements have been made, shall be subject to such conditions, exceptions or qualifications as are specified in the said notification.]

106. Security for keeping the peace on conviction.

(1) When a court of Session or court of a Magistrate of the first class convict a person of any of the offences specified in sub-section (2) or of abetting any such offence and is of opinion that it is necessary to take security from such person for keeping the peace, the court may, at the time of passing sentences on such person, order him to execute a bond, with or without sureties, for keeping the peace of such period, not exceeding three years, as it thinks fit.

(2) The offences referred to in sub-section (1) are-

(a) Any offence punishable under Chapter VIII of the Indian Penal Code (45 of 1860), other than an offence, punishable under section 153A or section 153B or section 154 thereof-,

(b) Any offence which consists of, or includes, assault or using criminal force or committing mischief-,

(e) Any offence of criminal intimidation;

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

(3) If the conviction is set-aside on appeal or otherwise, the bond so executed shall become void.

(4) An order under this section may also be made by an Appellate court or by a court when exercising its powers of revision.

107. Security for keeping the peace in other cases.

(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of’ the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond 1[with or without sureties] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceeding under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.

1. Ins. by Act 45 of 1978, section. 11 (w.e.f. 18-12-1978).

108. Security for good behaviour from persons disseminating seditious matters.

(1) When 1[an executive Magistrate] receives information that there is within his local jurisdictions any person who, within or without such jurisdiction -

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

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

(b) any matter concerning a Judge acting or purporting to act in the discharge of his official duties which amounts to criminal intimidation or defarmation under the Indian Penal Code

(ii) makes Produces, Publishes or keeps for sale, imports, exports, conveys, sells, lets to hire, distributes, publicly exhibits or in any other manner puts into circulation any obscene matter such as is referred to in section 292 of the Indian Penal Code (45 of 1860),

And the magistrate is of opinion that there is sufficient ground for proceeding, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit.

(2) No proceeding shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under, and edited, printed and published in conformity with, the rules laid down in the Press and Registration of Books Act, 1867 (25 of 1867), with reference to any matter contained in such publication except by the order or under the authority of the State Government or some officer empowered by the State Government in this behalf.

1. Subs. by Act 63 of 1980, sec. 2, a for “Judicial Magistrate” (w.e.f. 23-9-1980).

109. Security for good behaviour from suspected persons.

When 1[an Executive Magistrate] receive information that there is within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding, one year, as the Magistrate thinks fit.

1. Subs. by Act 63 of 1980, sec.2 for ” Judicial Magistrate” (w.e.f. 23-9-1980)

110. Security for good behaviour from habitual offenders.

When 1[an Executive Magistrate] receives information that there is within his local jurisdiction a person who-

(a) is by habit a robber, house-breaker, thief, or forger, or

(b) is by habit a receiver of stolen property knowing the same to have been stolen, or

(c) habitually protects or harbours thieves, or aids in the concealment of disposal of stolen property, or

(d) habitually commits, or attempts to commit, or abets the Commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code (45 of 1860), or under section 489A, section 489B, section 489C or section 489D of that Code, or

(e) habitually commits, or attempts to commit, or abets the Commission of, offences, involving, a breach of the peace, or

(f) habitually commits, or attempts to commit, or abets the commission of-

(i) any offence under one or more of the following Acts, namely:

(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);

2[(b) the Foreign Exchange Regulation Act, 1973 (46 of 1973);]

(c) the Employees, Provident Funds 3[and Family Pension Fund] Act, 1952 (19 of 1952);

(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954);

(e) the Essential Commodities Act, 1955(10 of 1955);

(f) the Untouchability (Offences) Act, 1955 (22 of 1955)

(g) the Customs Act, 1962 (52 of 1962) or

4[(h) the Foreigners Act, 1946 (31 of 1946); or]

(ii) any offence punishable under any other law providing for the prevention of hoarding of profiteering or of adulteration of food or drugs or of corruption, or

(g) is so desperate and dangerous as to render his being at large without security hazardous to the community.

Such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years as the Magistrate thinks fit.

1. Subs. by Act 63 of 1980, sec.2 for ” Judicial Magistrate” (w.e.f. 23-9-1980)

2. Subs. by Act 56 of 1974, sec 3 and second Sch., for item (b) (w.e.f. 20-12-1974).

3. Ins. by Act 56 of 1974, sec. 3, and second Sch. (w.e.f. 20-12-1974).

4. Ins. by Act 25 of 2005, sec. 14.

111. Order to be made.

When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.

112. Procedure in respect of person present in court.

If the person in respect of whom such order is made is present in court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him.

113. Summons or warrant in case of person not so present.

If such person is not present in court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the court;

Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to far the Commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.

114. Copy of order to accompany summons or warrant.

Every summons or warrant issued under section 113 shall be accompanied by a copy of the order made under section 111 , and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same.

115. Power to dispense with personal attendance.

The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace or for good behaviour and may permit him to appear by a pleader.

116. Inquiry as to truth of information.

(1) When an order under section 111 has been read or explained under section 112 to a person in court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113 the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.

(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons case.

(3) After the commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of’ breach of the peace or disturbance of the public tranquility or the Commission of any offence or for the public safety, may, for reason to be recorded in writing direct the per son in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded:

Provided that -

(a) no person against whom proceedings are not being taken over under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour;

(b) the conditions of such bond, whether as to the amount thereof or as to the provisions of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order undersection 111

(4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the Community may be proved by evidence of general repute or otherwise.

(5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt within the same or separate inquiries, as the Magistrate shall think just.

(6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs:-

Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention.

(7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.

117. Order to give security.

If, upon such inquiry, it is proved that it is necessary for keeping, the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate shall make an order accordingly:

Provided that-

(a) No person shall be ordered to give security of a nature different from, or of air amount larger than, or for a period longer than, that specified in the order made under section 111.

(b) The amount of every, bond shall be fixed with due regard to the circumstances of the case and shall not be excessive;

(c). When the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties.

118. Discharge of person informed against.

If, on an inquiry under section 116, it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made, should execute a bond, the Magistrate shall make an entry on the record to that effect, and if such person is in custody only for the purposes of the inquiry, shall release him, or if such person is not in custody shall discharge him.

119. Commencement of period for which security is required.

(1) If any person, in respect of whom an order requiring security is made under section 106 or section 117, is, at the time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the period for which such security is required shall commence on the expiration of such sentence.

(2) In other cases such period shall commence on the date of such order unless the Magistrate, for sufficient reason, fixes a later date.

120. Contents of bond.

The bond to be executed by any such person shall bind keep him to the peace or to be of good behaviour, as the case may be and in the latter case the commission or attempt to commit, or the abetment of, any offence punishable with imprisonment, wherever it may be commit, is a breach of the bond.

121. Power to reject sureties.

(1) A Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor under this Chapter on the ground that such surety is an unfit person for the purpose of the bond:

Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an enquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate him.

(2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the surety and to the person by whom the surety was offered and shall, in making the inquiry, record the substance of the evidence adduced before him.

(3) If the Magistrate is satisfied, after considering the evidence so adduced either before him or before, a Magistrate deputed under sub-section (1), and the report of such Magistrate (if any), that the Surety is an unfit person for the purposes of’ the bond, he shall make an order refusing to accept or rejecting, as the case may be, Such surety and recording his reasons for so doing-,

Provided that before making all order rejecting an surety who has previously been, accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause the person for whom the surety is bound to appear or to be brought before him.

122. Imprisonment in default of security.

(1) (a) If any person ordered to give security under section 106 or section 117 does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case next hereinafter mentioned, be committed to prison or if he is already in prison, be detained in prison until such period expires or until within such period gives the security to the court or Magistrate who made the order requiring it.

(b) If any person after having executed a 1[bond without sureties] for keeping the peace in pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of such Magistrate or his successor-in-office, to have committed breach of the bond, such Magistrate or successor- in-office may after recording, the grounds of such proof, order that the person be arrested and detained in prison until the expiry of the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law.

(2) When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be before such court.

(3) Such court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, and after giving the concerned person a reasonable opportunity of being heard, may pass such order on the case as it thinks fit:

Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years.

(4) If security has been required in the course of the same proceeding, from two of more persons in respect of any one of whom the proceedings are referred to the Sessions Jude under Sub-section (2), such reference shall also include the case of any other of such persons who has been ordered to give security, and the provisions of subsections (2) and (3) shall in that event, apply to the case of such other person also except that the period (if any) for which he may be imprisoned, shall not exceed the period for which he was ordered to give security.

(5) A Sessions Judge may in his discretion transfer any proceeding, laid before him under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings.

(6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the matter to the court of Magistrate who made the order, and shall await the orders of such court or Magistrate.

(7) Imprisonment for failure to give security for keeping the peace shall be simple.

(8) Imprisonment for failure to give security for good behaviour shall, where the proceedings have been taken under section 108, be simple and, where the proceedings have been taken under section 109 or section 110, be rigorous or simple as the court or Magistrate in each case directs.

1. Subs. by Act 25 of 2005, sec.15, for “bond with out sureties”.

123. Power to release persons imprisoned for failing to give security.

(1) Whenever the District Magistrate in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case is of opinion that any person imprisoned for failing to give security under this Chapter may be released without hazard to the community or to any other person, he may order such person to be discharged.

(2) Whenever any person has been imprisoned for failing to give security under this Chapter, the High Court or Court of Session, or, where the order was made by any other court, the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case], may make an order reducing the amount of the security or the number of sureties or the time for which security has been required.

(3) An order under sub-section (1) may direct the discharge of such person either without conditions or upon any conditions which such person accepts:

Provided that any condition imposed shall cease to be operative when the period for which such person was ordered to give security has expired.

(4) The State Government may prescribe the conditions upon which a conditional discharge may be made.

(5) If any condition upon which any person has been discharged is, in the opinion of the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117 or Chief Judicial Magistrate in any other case] by whom the order of discharge was made or of his successor, not fulfilled, he may cancel the same.

(6) When a conditional order of discharge has been cancelled under sub-section (5), such person may be arrested by any police officer without warrant, and shall thereupon be produced before the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case].

(7) Unless such person gives security in accordance with the terms of the original order for the un-expired portion of the term for which he was in the first instance committed or ordered to be detained (such portion being deemed to be a period equal to the period between the date of the breach of the conditions of discharge and the date on which, except for such conditional discharge, he would have been entitled to release), the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] may remand such person to prison to undergo Such unexpired portion.

(8) A person remanded to prison under sub-section (7) shall, subject to the provisions of’ section 122, be released at any time on giving security in accordance with the terms of the original order for the unexpired portion aforesaid to the court or Magistrate by whom such order was made, or to its or his successor.

(9) The High Court or Court of Sessions may at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under this Chapter by any order made by it, and the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] may make such cancellation where such bond was executed under his order or under the order of any other court in his district.

(10) Any surety for the peaceable conduct or good behaviour of another person, ordered to execute a bond under this Chapter may at any time apply to the court making such order to cancel the bond and on such application being made, the court shall issue a summons or warrant, as it thinks fit, requiring the person for whom such surety is bound to appear or to be brought before it.

1. Subs. by Act 45 of 1978, sec 12. for “the Chief Judicial Magistrate” (w.e.f. 18-12-1978).

124. Security for unexpired period of bond.

(1) When a person for whose appearance a summons or warrant has been issued under the proviso to sub-section (3) of section 121 or under sub-section (10) of section 123, appears or is brought before the Magistrate or court, the Magistrate or court shall cancel the bond executed by such person and shall order such person to give, for the unexpired portion of the term of such bond, fresh security of the same person description as the original security.

(2) Every such order shall, for the purposes of sections 120 to 123 (both inclusive), be deemed to be an order made under section 106 or section 117, as the case may be.

125. Order for maintenance of wives, children and parents.

(1) If any person leaving sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

A Magistrate of’ the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate1[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of’ sufficient means.

2[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person]

Explanation. For the purposes of this Chapter.

(a) minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority;

(b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

3[(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]

(3) If any Person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s 4[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

(4) No wife shall be entitled to receive an 4allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

1. The words “not exceeding five hundred rupees in the whole” omitted by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).

2. Ins. by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).

3. Subs. By Act 50 of 2001, sec 2, for sub-section (2) (w.e.f. 24-9-200).

4. Subs. By Act 50 of 2001, sec 2, for “allowance” (w.e.f. 24-9-200).

STATE AMENDMENTS

Madhya Pradesh:

In section 125, in sub-section (1), for the words “five hundred rupees” the words m’ “three thousand rupees” shall be substituted.

[Vide M.P. (Act 10 of 1998), sec. 3 (w.e.f. 29-54998)] [Ed. This amendment has been I made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 W (Central Act 50 of 2001) whereby the words “not exceeding five hundred rupees in the I whole” have been omitted by sec. 2 (w.e.f. 24-9-2001)].

Maharashtra:

In section 125,-

(a) in sub-section (1),-

(i) for the words “not exceeding five hundred rupees” the words “not I exceeding fifteen hundred rupees” shall be substituted;

(ii) before the existing proviso, the following proviso shall be inserted, namely:-

Provided that, the Magistrate on an application or submission being made, supported by an affidavit by the person who has applied for the maintenance under this sub-section, for payment of interim maintenance, on being satisfied that, there is a prima facie ground for making such order, may direct the person against whom the application for maintenance has been made, to pay a reasonable amount by way of interim maintenance to the applicant, pending the final disposal of the maintenance application:

Provided further that, such order for payment of interim maintenance may, in an appropriate case, also be made by the Magistrate ex parte, pending service of notice of the application, subject, however, to the condition that such an order shall be liable to be modified or even cancelled after the respondent is heard in the matter:

Provided also that, subject to the ceiling laid down under this sub-section, the amount of interim maintenance shall, as far as practicable, be not less than thirty per cent of the monthly income of the respondent.”;

(iii) in the existing proviso, for the words “Provided that” the words

“Provided also that” shall be substituted;

(b) after sub-section (2), the following sub-section shall be inserted, namely:-

(2A) Notwithstanding anything otherwise contained in sub-sections (1) and (2), where an application is made by the wife under clause (a) of sub-section (1) for the maintenance allowance, the applicant may also seek relief that the order may be made for the payment of maintenance allowance in lump-sum in lieu of the payment of monthly maintenance allowance, and the Magistrate may, after taking into consideration all the circumstances obtaining in the case including the factors like the age, physical condition, economic conditions and other liabilities and commitments of both the parties, pass an order that the respondent shall pay the maintenance allowance in lump-sum in lieu of the monthly maintenance allowance, covering a specified period, not exceeding five years at a time, or for such period which may exceed five years, as may be mutually agreed to, by the parties.”;

(c) in sub-section (3),-

(i) after the words “so ordered” the words, brackets, figures and letter “either under sub-section (1) or sub-section (2A), as the case may be,” shall be inserted;

(ii) after the words “each month’s allowance” the words “or, as the case may be, the lump-sum allowance to be paid in lieu of the monthly allowance” shall be inserted.

[Vide Maharashtra Act, 21 of 1999 sec. 2 (w.e.f. 20-4-1999)] [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) sec. 2 (w.e.f. 24-9-2001)].

Tripura:

In section 125, for the words “five hundred rupees” the words “one thousand five hundred rupees” shall be substituted.

[Vide Tripura Act, 9 of 1999 sec. 2 (w.e.f. 9-4-1999}] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words” not exceed of five hundred rupees in the whole” have been omitted by sec. 2 (w.e.f. 24-9-2001)].

STATE AMENDMENTS

West Bengal:

In Sub-section (1) -

For the words “five hundred rupees” the words “one thousand and five hundred rupees” shall be submitted.

(2) After the existing proviso, following proviso shall be inserted, namely.

“Provided further that where in any proceeding under this section it appears to the Magistrate that the wife referred o in clause (a) or the minor child referred to in clause (b) or the child (not being a married daughter) referred o in clause (c) or the father or the mother referred o in clause (d) is in need of immediate relief for her or its or his support and the necessary expenses of the proceeding, the Magistrate may, on the application of the wife or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, order the person against whom the allowance for maintenance is claimed, to pay to the petitioner, pending the conclusion of the proceeding the expenses of the proceeding, and monthly during the proceeding such allowance as having regard to the income of such person, it may seem to the Magistrate to be reasonable.

[Vide West Bengal Act 25 of 1992 (w.e.f. 2-8-1993)] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words “not exceed of five hundred rupees in the whole” have been omitted by sec. 2 (w.e.f, 24-9-2001)].

[Vide W.B. Act 25 of 1992 (w.e.f. 2-8-1993)

126. Procedure.

(1) Proceedings under section 125 may be taken against any person in any district-

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.

127. Alteration in allowance.

1[(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.]

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-

(a) the woman has, after the date of such divorce, remarried; cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-

(i) In the case where such sum was paid before such order, from the date on which such order was made,

(ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to 2[maintenance or interim maintenance, as the case may be] after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom 3[ monthly allowance for the maintenance and interim maintenance or any of them has been ordered] to be paid under section 125, the civil court shall take into account the sum which has been paid to, or recovered by, such person 4[as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order.

1. Subs. by Act 50 of 2001, sec. 3, for sub-section (1) (w.e.f. 24-9-2001).

2. Subs. by Act 50 of 2001, sec. 3, for “maintenance” (w.e.f. 24-9-2001).

3. Subs. by Act 50 of 2001, sec. 3, for ” monthly allowance has been ordered” (w.e.f. 24-9-2001).

4. Subs. by Act 50 of 2001, sec. 3, for “as monthly allowance in pursuance of” (w.e.f. 24-9-2001).

STATE AMENDMENT

Maharashtra: In section 127,-

(a) in sub-section (1), in the proviso, for the words ” five hundred rupees” the words “fifteen hundred rupees” shall be substituted;

(b) in sub-section (4),-

(i) for the words “monthly allowance”, where they occur for the first time, the words “maintenance allowance” shall be substituted;

(ii) after the words “monthly allowance”, where they occur for the second time the words “or, as the case may be, the lump-sum allowance” shall be inserted.

[Vide, Maharashtra Act 21 of 1999, sec. 3 (w.e.f.20-4-1999)] [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure ( Amendment) Act, 2001 (Central Act 50 of 2001) sec. 3 (w.e.f. 24-9-2001)].

Tripura: In section 127, in the proviso to sub-section (1), for the words “five hundred rupees”, the words ” one thousand five hundred rupees” shall be substituted.

[ Vide Tripura Act 9 of 1999, sec. 3 (w.e.f. 9-4-1999) ] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words ” not exceeding five hundred rupees in the whole” have been omitted by sec. 2 (w.e.f.24-9-2001)]

West Bengal:

In section 127, in the proviso to sub-section (1), for the words “five hundred rupees” the words “one thousand and five hundred rupees” shall be substituted.

[Vide West Bengal Act 14 of 1995, sec. 2 (w.e.f. 2-8-1995) ] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words ” not exceeding five hundred rupees in the whole” have been omitted by section 2 (w.e.f. 24-9-2001)].

128. Enforcement of order of maintenance.

A copy of the order of 1[maintenance or interim maintenance and expenses of proceeding, as the case may be,] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to his guardian, if any, or to the person to 2[whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the 3[allowance, or as the case may be, expenses, due].

1. Subs by Act 50 of 2001, sec. 4, for “maintenance” (w.e.f. 24-9-2001).
2. Subs by Act 50 of 2001, sec. 4, for ” whom the allowance” (w.e.f. 24-9-2001).
3. Subs by Act 50 of 2001, sec. 4, for “allowance due” (w.e.f. 24-9-2001).

129. Dispersal of assembly by use of civil force.

(1) Any Executive Magistrate or officer in charge of a police station or, in the absence of such officer in charge, any police officer, not below the rank of a sub-inspector, may, command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty, of the members of such assembly to disperse accordingly.

(2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law.

130. Use of armed forces to disperse assembly.

(1) If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.

(2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may, direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law.

(3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.

131. Power of certain armed force officers to disperse assembly.

When the public security is manifestly endangered by any such assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse such assembly with the help of the armed forces under his command, and may arrest and confine any persons forming part of it, in order to disperse such assembly or that they may be punished according to law, but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the Magistrate as to whether he shall or shall not continue such action.

132. Protection against prosecution for acts done under preceding sections.

(1) No prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 shall be instituted in any Criminal Court except-

(a) with the sanction of the Central Government where such person is an officer or member of the armed forces;

(b) with the sanction of the State Government in an other case.

(2) (a) no executive Magistrate or police officer acting under any of the said sections in good faith;

(b) no person doing any act in good faith in compliance with a requisition under section 129 or section 130;

(c) no officer of the armed forces acting under section 131 in good faith;

(d) no member of the armed forces doing any act in obedience to any order which he was bound to obey,

Shall be deemed to have thereby, committed an offence.

(3) In this section and in the preceding sections of this Chapter, -

(a) the expression “armed forces” means the military, naval and air forces, operating as land forces and includes any other Armed Forces of the Union so operating;

(b) “officer,” in relation to the armed forces, means a person commissioned, Gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer of’ the armed forces a non-commissioned officer and a non-Gazetted officer.

(c) “member” in relation to the armed forces, means a person in the armed forces other than an officer.

133. Conditional order for removal of nuisance.

(1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers –

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel, which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation or the keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such, goods or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighborhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of,

Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within time to be fixed in the order-

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or

(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;

or, if he objects so to do, to appear before himself or some other Executive Magistrate Subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any civil court.

Explanation. A “public place” includes also property belonging to the state, camping grounds and grounds left unoccupied for sanitary or recreative purposes.

134. Service or notification of order.

(1) The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons.

(2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rules, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such persons.

135. Person to whom order is addressed to obey or show cause.

The person against whom such order is made shall -

(a) perform within the time and in the manner specified in the order, the act directed thereby; or

(b) appear in accordance with such order and show cause against the same.

136. Consequences of his failing to do so.

If such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in section 188 of the Indian Penal Code (45 of 1860,) and the order shall be made absolute.

137. Procedure where existence of public right is denied.

(1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter.

(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court; and if he finds that there is no such evidence he shall proceed as laid down in section 138.

(3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.

138. Procedure where he appears to show cause.

(1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.

(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be with such modification.

(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

139. Power of Magistrate to direct local investigation, examination, and examination of an expert.

The Magistrate may, for the purposes of an inquiry under section 137 or 138-

(a) direct a local investigation to be made by such person as he thinks fit; or (b) summon and examine an expert.

140. Power of Magistrate to furnish written instructions, etc.

(1) Where the Magistrate directs a local investigation by any person under section 139, the Magistrate may-

(a) furnish such person with such written instruction as may seem necessary for his guidance;

(b) declare by whom the whole or any part of necessary expenses of the local investigation shall be paid.

(2) The report of such person may be read as evidence in the case.

(3) Where the Magistrate summons and examines an expert under section 139, the Magistrate may direct by whom the costs of such summoning and examination shall be paid.

141. Procedure on order being made absolute and consequences of disobedience.

(1) When an order has been made absolute under section 136 or section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860).

(2) If Such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate’s local jurisdiction and if such other property is without such jurisdiction, the order shall authorize its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.

(3) No suit shall lie in respect of anything done in good faith under this section.

142. Injunction pending inquiry.

(1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.

(2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to he used, such means as he thinks fit to obviate such danger or to prevent such injury.

(3) No suit shall he in respect of anything done in good faith by, a Magistrate under this section.

143. Magistrate may prohibit repetition or continuance of public nuisance.

A District Magistrate or sub-divisional Magistrate, or any other Executive Magistrate empowered by the State Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Indian Penal Code (45 of 1860), or any special or local law.

144. Power to issue order in urgent cases of nuisance or apprehended danger.

(1) In cases where, in the opinion of’ a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material fact of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.

(2) An order under this section may, in cases of’ emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex-parte.

(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

(4) No order under this section shall remain in force for more than two months from the making thereof:

Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any, affray, it may by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the faid notification.

(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate Subordinate to him or by his predecessor-in-office.

(6) The State Government may either on its own motion or on the application of any person aggrieved, rescind or alter an order made by it under the proviso to sub-section (4).

(7) Where an application under subsection (5), or sub-section (6) is received, the Magistrate, or the State Government, as the case may be shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part he or it shall record in writing the reasons-for so doing.

144A. Power to prohibit carrying arms in procession or mass drill or mass training with arms.

1[144 A. Power to prohibit carrying arms in procession or mass drill or mass training with arms.-

(1) The District Magistrate may, whenever he considers it necessary so to do for the prevention of public peace or public safety or for the maintenance of public order, by public notice or by order, prohibit in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of, or taking part in, any mass drill or mass training with arms in any public place.

(2) A public notice issued or an order made under this section may be directed to a particular person or to persons belonging to any community, party or organisation.

(3) No public notice issued or an order made under this section shall remain in force for more than three months from the date on which it is issued or made.

(4) The State Government may, if it considers necessary so to do for the preservation of public peace or public safety or for the maintenance of public order; by notification, direct that a public issued or order made by the District Magistrate under this section shall remain in force for such further period not  exceeding six months from the date on which such public notice or order was issued or made by the District Magistrate would have, but for such direction, expired, as it may specify in the said notification.

(5) The State Government may, subject to such control and directions as it may deem fit to impose, by general or special order, delegate its powers under sub-section (4) to the District Magistrate.

Explanation. – The word “arms” shall have the meaning assigned to it in section 153AA of the Indian Penal Code (45 of 1860).]

CrPC (Amendment) Act, 2005 (Notes on Clauses)

Section 144 A enables the District Magistrate to prohibit mass drill or mass training with arms in public places. This section has been added to curb the militant activities of certain communal organisations and to strengthen the hands of State authorities for effectively checking communal tension and foster a sense of complete security in the minds of members of the public.

1. Ins. by Act 25 of 2005, sec. 16.

145. Procedure where dispute concerning land or water is likely to cause breach of peace.

(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) For the purposes of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

(3) A copy of the order shall be served in the manner provided by the Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thinks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under subsection (1), in possession of the subject of dispute:

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).

(5) Nothing in this section shall preclude any party so required to attend, or arty other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.

(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.

(b) the order made under this sub-section shall be served and published in the manner laid down in sub-section (3).

(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the Magistrate to proceed under section 107.

STATE AMENDMENT

Maharashtra:

In section 145, -

(a) In subsection (1), for the words “whenever an Executive Magistrate” the words “Whenever in Greater Bombay, a Metropolitan Magistrate and elsewhere in the State, an Executive Magistrate” shall be substituted;

(a) for sub-section (10), the following sub-section shall be substituted, namely.

“(10) In the case of an Executive Magistrate taking action under this section nothing in this section shall be deemed to be in derogation of his power to proceed under Section 107. In the case of a Metropolitan Magistrate taking action under this section, if at any stage of the proceeding, he is of the opinion that the dispute calls for an action under Section 107, he shall after recording his reasons, forward the necessary information to the Executive Magistrate having jurisdiction, to enable him to proceed under that section.”

[Vide Maharashtra Act 1 of 1978, sec.2 (w.e.f 15-4-1978)].

146. Power to attach subject of dispute and to appoint receiver.

(1) If the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145 , or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:

Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any like hood of breach of the peace with regard to the subject of dispute.

(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any civil court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908):

Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any civil court, the Magistrate-

(a) Shall order the receiver appointed by him to hand over the possession of the subject of the dispute to the receiver appointed by the Civil court and shall thereafter discharge the receiver appointed by him;

(b) May make such other incidental or consequential orders as may be just.

147. Dispute concerning right of use of land or water.

(1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so certified and requiring the parties concerned in such disputes to attend his court in person or by pleader on a specified date and time and to put in written statements of their respective claims.

Explanation. The expression “land or water” has the meaning given to it in sub-section (2) of section 145

(2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and if possible decide whether such right exists: and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry.

(3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right:

Provided that no such order shall be made where the right is exercisable at all times of the year unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.

(4) When in any proceedings commenced under subsection (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right to user of land or water, he may after recording his reasons, continue with the proceedings as if they had been commenced under subsection (1);

And when in any proceedings commenced under subsection (1) the Magistrate finds that the dispute should be dealt with under section 145, he may after recording his reasons, continue with the proceedings as if they had been commenced under subsection (1) of section 145.

STATE AMENDMENT

Maharashtra:

In sub-section (1) of section 147, for the words “whenever an Executive Magistrate” the words “whenever in greater Bombay, a Metropolitan Magistrate and elsewhere in the state, as Executive Magistrate” shall be submitted.

[Vide Maharashtra Act 1 of 1978, sec.3 (w.e.f 15-4-1978)].

148. Local inquiry.

(1) Whenever a local inquiry is necessary for the purposes of section 145 section 146 or section 147, a District Magistrate or Sub-divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid.

(2) The report of the person so deputed may be read as evidence in the case.

(3) When any costs have been incurred by any party to a proceeding under section 145, section 146 or section 147, the Magistrate passing a decision may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding and whether in whole or in part or proportion and such costs may include any expenses incurred in respect of witnesses and of pleaders’ fees, which the Court may consider reasonable.

149. Police to prevent cognizable offences.

Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence.

150. Information of design to commit cognizable offences.

Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.

151. Arrest to prevent the commission of cognizable offences.

(1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorized under any other provisions of this Code or of any other law for the time being in force.

STATE AMENDMENT

Maharashtra:

In section 151 -

(a) In sub-section (2), after the words “required or authorised” the words “under sub-section (3) or” shall be inserted;

(b) After sub-section (2), the following sub-section shall be inserted, namely, -

“(3) (a) Where a person is arrested under this section and the officer making the arrest or the officer of the police station before whom the arrested person is produced, has reasonable grounds to believe that the detention of the arrested person for a period longer than twenty-four hours from the time of arrest (excluding the time required to take the arrested person from the place of arrest to the court of a Judicial Magistrate) is necessary by reason that-

(i) The person is likely to continue the design to commit, or is likely to commit, the cognizable offence referred to in sub-section referred to in sub-section (1) after his release; and

(ii) The circumstances of the case are such that his being at large is likely to be prejudicial to the maintenance of public order.

The officer making the arrest, or the officer in charge of the police station, shall produce such arrested person before the nearest Judicial Magistrate, together with a report in writing stating the reasons for the continued detention of such person for a period longer than twenty-four hours.

(b) Notwithstanding anything contained in this Code or any other law or the time being in force, where the Magistrate before whom such arrested person is produced is satisfied that there are reasonable grounds for the temporary detention of’ such person in custody beyond the period of twenty-four hours, he may from time to time, by order remand such person to such custody as he may think fit

Provided that, no person shall be detained under this section for a period exceeding fifteen days at a time, and for a total period exceeding thirty days from the date of arrest of such person.

(c) When any person is remanded to custody- under clause (b), the Magistrate shall, as soon as may be communicate to such person the grounds on which the order has been made and such person may, make a representation against the order to the Court of Session. The Sessions Judge may on receipt of such representation after holding such inquiry is he deems fit, either reject the representation, or if he considers that further detention of the arrested person is not necessary, or that it is otherwise proper and Just so to do, may vacate the order and the arrested person shall then be released forthwith.”

[Vide Maharashtra Act 7 of 1981 (w.e.f. 27-5-1980)].

152. Prevention of injury to public property.

A police officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal or injury of any public landmark or buoy or other mark used for navigation.

153. Inspection of weights and measures.

(1) Any officer in charge of a police station may, without a warrant, enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instruments for weighing, used or kept therein, whenever he has reason to believe that there are in such place any weights, measures or instruments for weighing which are false.

(2) If he finds in such place any weights, measures or instruments for weighing which are false, he may seize the same, and shall forthwith give information of such seizure to a Magistrate having jurisdiction.

154. Information in cognizable cases.

(1) 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; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) 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, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

1[“Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:

Provided further that—

(a)     in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;

(b)     the recording of such information shall be videographed;

(c)     the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.”.]

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1. Inserted by Section 13 of ‘The Criminal Law (Amendment) Act, 2013″

155. Information as to non-cognizable cases and investigation of such cases.

(1) 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.

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(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.

(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.

156. Police officer’s power to investigate cognizable cases.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.

157. Procedure for investigations.

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may by general of special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary to take measures for the discovery and arrest of the offender:

Provided that-

(a) When information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the office in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) If it appears to the officer in charge of a police station that there is sufficient ground for entering on an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.

158. Report how submitted.

(1) Every report sent to a Magistrate under section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf.

(2) Such superior officer may give such instructions to the officer in charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.

159. Power to hold investigation or preliminary inquiry.

Such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into or otherwise to dispose of, the case in the manner provided in this Code.

160. Police Officer’s power to require attendance of witnesses.

(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

Provided that no male person 1[“under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person”] shall be required to attend at any place other than the place in which such male person or woman resides.

(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.

———————————————————

1. Inserted by Section 14 of ‘The Criminal Law (Amendment) Act, 2013″

161. Examination of witnesses by police.

(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case Put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

1[“Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.”.]

—————————————————–

1. Inserted by Section 15 of ‘The Criminal Law (Amendment) Act, 2013′

162. Statements to police not to be signed: Use of statements in evidence.

(1) No statement made by any person to a police officer in the course of’ an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of’ his statement, if duly proved, may be used by the accused, and with the permission of’ the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of’ such statement is so used, any part thereof’ may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement failling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.

Explanation: An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

163. No inducement to be offered.

(1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1 872).

(2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will:

Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of section 164.

164. Recording of confessions and statements.

(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect-

“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A.B. Magistrate”.

(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

1[“(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:

Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:

Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed.

(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.”.]

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

STATE AMENDMENT

Andaman and Nicobar Islands and Lakshadweep:

After sub-section (1) of section 164, the following sub-section shall be inserted, namely.

“(1A) Where, in any island, there is no Judicial Magistrate for the time being, and the State Government is of opinion that it is necessary and expedient so to do that Government after consulting the High Court specially empower any Executive Magistrate (not being a police officer), to exercise the powers conferred by sub-section (1) on a Judicial Magistrate, and thereupon references in section 164 to a Judicial Magistrate shall he construed as references to the Executive Magistrate so empowered.”

[Vide Regulation 1 of’ 1974, sec. 5 (w.e.f. 30-3-1974)].

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1. Inserted by Section 16 of ‘The Criminal Law (Amendment) Act, 2013″

164A . Medical examination of the victim of rape.

1[164 A. Medical examination of the victim of rape. – (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of a such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her and prepare a report of his examination giving the following particulars, namely:-

(I) the name and address of the woman and of the person by whom she was brought;

(II) the age of the woman;

(III) the description of material taken from the person of the woman for DNA profiling;

(IV) marks of injury, if any, on the person of the woman;

(V) general mental condition of the woman; and

(IV) other material particulars in reasonable detail.

(3)  The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the investigation officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.

Explanation. – For the purposes of this section, “examination” and “registered medical practitioner” shall have the same meanings as in section 53’]

CrPC (Amendment) Act, 2005 (Notes on Clauses)

Section 164 A has been added to provide for a medical examination of the victim of a rape by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner by any other registered medical practitioner.

1. Ins. by Act 25 of 2005, sec. 17.

165. Search by police officer.

(1) Whenever an officer in charge of police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

(2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person.

(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place.

(4) The provisions of this Code as to search warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section.

(5) Copies of any record made under sub-section (1) or sub-section (3) shall forth- with be sent to the nearest Magistrate empowered to take cognizance to the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.

166. When officer in charge of police station may require another to issue search warrant.

(1) An officer in charge of a police station or a police officer not being below the rank of sub-inspector making an investigation may require an officer in charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.

(2) Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.

(3) Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to cause a search to be made under sub-section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a police officer making any investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station in accordance with the provisions of section 165, as if such place were within the limits of his own police station.

(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub-sections (1) and (3) of section 165.

(5) The owner or occupier of the place searched shall, on application, be furnished free of cost with a copy of any record sent to the Magistrate under sub-section (4).

166A. Letter of request to competent authority for investigation in a country or place outside India.

1[166A. Letter of request to competent authority for investigation in a country or place outside India.

(1) Notwithstanding anything contained in this Code, if, in the Course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue letter of request to a court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and Circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the court issuing such letter.

(2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf.

(3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter.

1. Ins. by Act 10 of 1990, sec. 2 (w.e.f. 19-2-1990).

166B. Letter of request from a country or place outside India to a court or an authority for investigation in India.

(1) Upon receipt of a letter of request from a court or an authority in a country or place outside India competent to issue such letter in that country or place for the examination of any person or production of any document or thing in relation to an offence under investigation in that country or place, the Central Government may, if it thinks fit-

(i) Forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate or such Metropolitan Magistrate or Judicial Magistrate as he may appoint in this behalf, who shall thereupon summon the person before him and record his statement or cause the document or thing to be produced, or

(ii) Send the letter to any police officer for investigation, who shall thereupon investigate into the offence in the same manner, as if the offence had been committed within India.

(2) All the evidence taken or collected under sub-section (1), or authenticated copies thereof or the thing so collected, shall be forwarded by the Magistrate or police officer, as the case may be, to the Central Government for transmission to the court or the authority issuing the letter of request, in such manner as the Central Government may deem fit.]

167. Procedure when investigation cannot be completed in twenty-four hours.

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

1[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-

(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) Sixty days, where the investigation relates to any other offence,

And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]

(b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;

(c) No Magistrate of the second class, not specially empowered in this behalf by the high Court, shall authorize detention in the custody of the police.

2[Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in Custody so long as he does not furnish bail.]

3[Explanation II].If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention.

2[(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):

Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.]

(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.

(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.

1. Subs, by Act 45 of 1978, sec. 13, for paragraph (a)(w.e.f. 18-12-1978).

2. Ins. by Act 45 of 1978, sec. 13 (w.e.f. 18-12-1978).

3. Original Explanation numbered as Explanation II by Act 45 of 1978, sec. 13 (w.e.f.18-12-1978).

STATE AMENDMENTS

Andaman and Nicobar Islands and Lakshadweep:

In section 167, -

(i) in sub-section (1) after the words “nearest Judicial Magistrate” the words “or, if there is no Judicial Magistrate in an island, to an Executive Magistrate functioning in that island” shall be inserted;

(ii) after sub-section (1), the following sub-section shall be inserted, namely.

“(1A) where a copy of the entries in diary is transmitted to an Executive Magistrate, reference in section 167 to a Magistrate shall be construed as references to such Executive Magistrate;”

(iii) to sub-section (3), the following proviso shall be added, namely.

“Provided that no Executive Magistrate other than the District Magistrate or Sub-divisional Magistrate, shall unless he is specially empowered in this behalf by the State Government authorize detention in the custody of the police.”

(iv) to sub-section (4), the following proviso shall be added, namely.

“Provided that, where such order is made by an Executive Magistrate, the Magistrate making the order shall forward a copy of the order, with his reasons for making it, to the Executive Magistrate to whom he is immediately subordinate.”

[Vide Regulation 1 of 1974, sec. 5 (w.e.f. 30-3-1974)].

Gujarat:

In the proviso to sub-sec. (2) of section 167, -

(i) For paragraph (a), the following paragraph shall be substituted, namely.

“(a) the Magistrate may authorize detention of the accused person otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this section for a total period exceeding-

(i) one hundred and twenty days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.

(ii) If sixty days, where the investigation relates to any offence:

And on the expiry, of the said period of one hundred and twenty days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this section shall be deemed to be so released under tire provisions of Chapter XXXIII for the purposes at that Chapter;

(ii) in paragraph (b), for the words ” no Magistrate shall” the words “no Magistrate shall, except for reason to be recorded in writing” shall be substituted:

(iii) the Explanation shall be numbered as Explanation II and before Explanation II as so remembered, the following Explanation shall be inserted, namely.

Explanation 1 – For the avoidance of’ doubts, it is hereby, declared that, not withstanding the expiry of’ the period specified in paragraph (a) the accused person shall be detained in custody so long as he does not furnish bail.

Amendment to apply to pending investigation.-The provisions of’ section 167 of the Code of Criminal Procedure, 1973, as amended by this Act, shall apply to every investigation pending immediately, before the commencement of this Act. If the period of’ of detention of’ the accused person, otherwise than in the custody of the police authorised under that section, had not, at such commencement, exceeds sixty days.

[Vide President Act 21 of’ 1976 (w.e.f. 7-5-1976)]. [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 1978 (Central Act 45 of 1978), sec. 13 (w.e.f. 18-12-1978)].

Haryana:

After section 167, insert the following section namely.

“167A.-Procedure on arrest by Magistrate.- For the avoidance of doubt, it is hereby declared that the provisions of’ section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, Magistrate whether executive or Judicial”

[Vide President Act 20 of 1981, sec. 2 (w.e.f.22-12-1981)].

Orissa:

In section 167, in paragraph (a) of the proviso to sub-section (2),-

(i) for the words “under this paragraph” the words ” under this section” shall be substituted; and

(ii) for the words “ninety days” wherever they occur, the words “one hundred and twenty days” shall be substituted.

[Vide Orissa Act, 11 of 1997 sec. 2 9w.e.f. 20-10-1997)].

Punjab:

In section (2) of ‘section 167,, for the words “fifteen days” at both the places where they occur, the words “thirty days” shall be substituted.

[Vide president Act 1 of’ 1984, sec. 2 (w.e.f 23-6-1984)].

Tripura:

In paragraph (a) of the proviso to sub-section (2) of’ section 167, -

(a) For the words “ninety days” wherever they occur, the words under hundred eighty days shall he substituted;

(b) For the words “sixty days” wherever they occur, the words “one hundred twenty days” shall be substituted.

[Vide Tripura Act 6 of’ 1992. sec. 2 (w.e.f 29-7-1992)].

Uttar Pradesh:

After section 167, insert the following section namely:

“167A. Procedure on arrest by Magistrate.-For the avoidance of doubts, it is hereby declared that the provisions of section 167, shall so far as may be, apply in relation to any person arrested by, or under any order or direction of, a Magistrate whether executive or Judicial.

[Vide U.P. Act 18 of 1978].

West Bengal:

In section 167, -

(a) For sub-section (5). The following sub-section shall be submitted.

“(5) If, in respect of -

(i) Any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months, or

(ii) Any case exclusively triable by a Court of Sessions or a case under Chapter XVIII of the Indian Penal Code (45 of 1860), the investigation in not conducted within a period of three years, or

(iii) Any case other than those mentioned in clauses (i) and (ii), the investigation is not conducted within a period of two year, from the date on which the accused was arrested made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period mentioned in this sub-section is necessary”.

(b) In sub-section (6), after the words any order stopping further investigation into an offence has been made “the words “and the accused has been discharged” shall be inserted.

[Vide W.B. Act 24 of 1988 sec. 4].

168. Report of investigation by subordinate police officer.

When any subordinate police officer has made any investigation under this Chapter, he shall report the result of such investigation to the officer in charge of the police station.

169. Release of accused when evidence deficient.

If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient, evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.

170. Cases to be sent to Magistrate when evidence is sufficient.

(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.

(2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.

(3) If the court of the Chief Judicial Magistrate is mentioned in the bond, such court shall be held to include any court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.

(4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.

171. Complainant and witnesses not to be required to accompany police officer and not to be subject to restraint.

No complainant or witness on his way to any court shall be required to accompany a police officer, or shall be subject to unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond:

Provided that, if any complainant or witness refuses to attend or to execute a bond as directed in section 170, the officer in charge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed.

172. Diary of proceeding in investigation.

(1) Every police officer making an investigation under this Chapter shall day by day enter his proceeding in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they, are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.

173. Report of police officer on completion of investigation.

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) The names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witness.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the sub-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).

(8) Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of’ sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

174. Police to inquire and report on suicide, etc.

(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighborhood shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.

(3)1[When

(i) the case involves suicide by a woman within seven years of her marriage: or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or

(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf, or

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedient so to do, he shall], subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.

(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf’ by the State Government or the District Magistrate.

1. Subs. by Act 46 of 1983, sec. 3., for certain words (w.e.f 25-12-1983).

175. Power to summon persons.

(1) A police officer proceeding under section 174 may, by order in writing, summon two or more persons as aforesaid for the purpose of the said investigation, and any other person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend and to answer truly all questions other than questions the answers to which have a tendency to expose him to a criminal charge or to a forfeiture.

(2) If the facts do not disclose a cognizable offence to which section 170 applies, such persons shall not be required by the police officer to attend a Magistrate’s Court.

176. Inquiry by Magistrate into cause of death.

(1) 1[2[***]When the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of section 174], the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.

3[(1A) Where,-

(I) any person dies or disappears, on

(II) rape is alleged to have been committed on any woman,

while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, under this Code in addition to the enquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.]

(2) The Magistrate holding such inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case.

(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the causes of his death, the Magistrate may cause the body to be disinterred and examined.

(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry.

3[(5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under sub-section (1A) shall, within twenty-four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.]

Explanation – In this section, the expression “relative” means parents, children, brothers, sisters and spouse.

CrPC (Amendment) Act, 2005 (Notes on Clauses)

Section 176 has been amended to provide that in the case of death or disappearance of a person, or rape or a woman while in the custody of the police, there shall be a mandatory judicial inquiry and in case of death, examination of the dead body shall be considered within twenty-four hours of death.

1. Subs. by Act 46 of 1983, sec. 4 for certain words (w.e.f. 25-12-1983).

2. The words “when any person dies while in the custody of the police or” omitted by Act 25 of 2005, sec. 18.

3. Ins. by Act 25 of 2005, sec. 18

177. Ordinary place of inquiry and trial.

Every offence shall ordinary be inquired into and tried by a court within whose local jurisdiction it was committed.

178. Place of inquiry or trial.

(a) When it is uncertain in which of several local areas an offence was committed, or

(b) Where an offence is committed partly in one local area and party in another, or

(c) Where an offence is a continuing one, and continues to be committed in more local area has one, or

(d) Where it consists of several acts done in different local areas, It may be inquired to or tried by a court having jurisdiction over any of such local areas.

179. Offence triable where act is done or consequence ensues.

When an act is an offence, due to anything, which has been done, and of a consequence, which has ensued, the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.

180. Place of trial where act is an offence by reason of relation to other offence.

When an act is an offence by reason of its relation to any other act which is also all offence or which would be an offence if the doer were capable of committing all offence, the first-mentioned offence may be inquired into or tried by a court within whose local jurisdiction either act was done.

181. Place of trial in case of certain offences.

(1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the accused person is found.

(2) Any offence of kidnapping or abduction of a person may be inquired into or tried by, a court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained.

(3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to believe it to be stolen property.

(4) Any offence of criminal misappropriation or of criminal breach of trust may he inquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.

(5) Any offence which includes the possession of stolen property may be inquired into or tried by, a court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property.

182. Offences committed by letters, etc.

(1) Any offence which includes cheating deception is practice by means of letters or telecommunication message, be inquired into or tried by any court within whose local jurisdiction such letters or message were sent or were received; and any offence of cheating and dishonestly including deliver, of property may be inquired into or tried by a court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.

(2) Any offence punishable under section 495 or section 494 of the Indian Penal Code (45 of 1860) may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage 1[or the wife by first marriage has taken up permanent residence after the commission of offence].

1. Ins. by Act 45 of 1978, sec 15 (w.e.f. 18-12-1978).

183. Offence committed on journey or voyage.

When an offence is committed, whilst the person by or against whom, or the thing in respect of which, the offence is committed is in the course of performing a journey or voyage, the offence may be inquired into or tried by a court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage.

184. Place of trial for offences triable together.

Where-

(a) The offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of section 219, section 220 or section 221, or

(b) The offence or offences committed by several persons are such that they may be charged with, and tried together by virtue of the provisions of section 223,

The offences may be inquired into or tried by any court competent to inquire into or try any of the offences.

185. Power to order cases to be tried in different sessions divisions.

Notwithstanding anything contained in the preceding provisions of this Chapter, the State Government may direct that any cases or class of cases committed for trial in any district may be tried in any session’s division:

Provided that such direction is not repugnant to any direction previously issued by the High Court or the Supreme Court under the Constitution, or under this Code or any other law for the time being in force.

186. High Court to decide, in case of doubt, district where inquiry or trial shall take place.

Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided-

(a) If the courts are subordinate to the same High Court, by that High Court;

(b) If the courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced,

and thereupon all other proceedings in respect of that offence shall be discontinued.

187. Power to issue summons or warrant for offence committed beyond local jurisdiction.

(1) When a Magistrate of the first class sees reason to believe that any person within his local jurisdiction has committed outside such jurisdiction (whether within or outside India) an offence which cannot, under the provisions of sections 177 to 185 (both inclusive), or any other law for the time being in force, be inquired into or tried within such jurisdiction but is under some law for the time being in force triable in India, such Magistrate may inquire into the offence as if it had been committed within such local jurisdiction and compel such person in the manner hereinbefore provided to appear before him, and send such pe` rson to the Magistrate having jurisdiction to inquire into or try such offence, or, if such offence is not punishable with death or imprisonment for life and such person is ready and willing to give bail to the satisfaction of the Magistrate acting under this section, take a bond with or without sureties for his appearance before the Magistrate having such jurisdiction.

(2) When there are more Magistrates than one having such jurisdiction and the Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case shall be reported for the orders of the High Court.

188. Offence committed outside India.

When an offence is committed outside India-

(a) By a citizen of India, whether on the high seas or elsewhere; or

(b) By a person, not being such citizen, on any ship or aircraft registered in India.

He may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.

189. Receipt of evidence relating to offences committed outside India.

When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of section 188, the Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the court holding such inquiry or trial in any case in which such court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate.

190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, specially empowered in this behalf under sub- section (2), may take cognizance of any offence-

(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon it police report of such facts;

(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

STATE AMENDMENT

Punjab and Union Territory of Chandigarh:

After section 190 insert the following section, namely.

“190A. Cognizance of offences by Executive Magistrate.-Subject to the provisions of this chapter any Executive Magistrate may take Cognizance of any special offence-

(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon a police report of such facts;

(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.”

[Vide Punjab Act 22 of 1983 (w.e.f 27-6-1983)].

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 ba transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

STATE AMENDMENTS

Punjab Union Territory of Chandigarh.

In section 191, for the words “clause (c) of Sub-section (1) of section 190″ substitute the words “section 190A” and for the words “Magistrate” and “Chief Judicial Magistrate” substitute the words “Executive Magistrate” and “District Magistrate” wherever occurring.

[Vide Punjab Act 22 of 1983 (w.e.f 27-6-1983)].

192. Making over of cases to Magistrates.

(1) Any Chief Judicial Magistrate after taking Cognizance of all offence, make over the case for inquiry or trial to and competent Magistrate subordinate to him.

(2) 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.

STATE AMENDMENTS

Punjab Union Territory of Chandigarh.

In section 192, for the words, “Chief Judicial Magistrate” and the words “District Magistrate of the First class” or Magistrate” wherever they occur, substitute the words “District Magistrate” and “Executive Magistrate” respectively.

[Vide Punjab Act 22 of 1983 (w.e.f 27-6-1983)].

193. Cognizance of offences by Courts of Session.

Except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this code.

194. Additional and Assistant Sessions Judges to try cases made over to them.

An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try.

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No court shall take cognizance-

(a)

(i) If any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) Of any abetment of, attempt to commit, such offence, or

(iii) Of any criminal conspiracy to commit, such offence,

Except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b)

(i) Of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, or

(ii) Of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or

(iii) Of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate.

1[except on the complaint in writing of that Court by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate].

(2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the court; and upon its receipt by the court, no further proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term “court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from appeal able decrees or sentences of such former court, or in the case of a civil court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situate:

Provided that-

(a) Where appeals lie to more than one court, the Appellate Court of inferior jurisdiction shall be the court to which such court shall be deemed subordinate;

(b) Where appeals lie to a Civil and to Revenue Court, such court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

1. Subs. by act 2 of 2006, sec.3, for “except on the complaint in writing of that Court , or of some other Court to which is subordinate” (w.e.f. 16-4-2006).

196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.

(1) No court shall take cognizance of-

(a) Any offence punishable under Chapter VI or under section 153A, 1[section 295A or sub-section (1) of section 505] of the Indian Penal Code (45 of 1860), or

(b) A criminal conspiracy to commit such offence, or

(c) Any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860), except with the previous sanction of the central Government or of the State Government.

2[(1A) No court shall take cognizance of -

(a) Any offence punishable under section 153B or sub-section (2) or sub-section (2) or sub-section (3) of section 505 of the Indian Panel Code (45 of 1860), or

(b) A criminal conspiracy to commit such offence,

Except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.]

(2) No court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit 3[an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceeding:

Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.

(3) The Central Government or the State Government may, before according sanction 4[under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under sub-section (1A)] and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of section 155.

1. Subs. by Act 63 of 1980, sec. 3, for “section 153B, section 295A or section 505″ (w.e.f. 23-9-1980).

2. Ins. by Act 63 of 1980, sec. 3 (w.e.f. 23-9-1980).

3. Subs. by Act 45 of 1979, sec. 16, for “a cognizable offence” (w.e.f. 18-12-1978).

4. Subs. by Act 63 of 1980, sec. 3, for “under sub-section (1)” (w.e.f. 23-9-1980).

197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no court shall take cognizance of such offence except with the previous sanction-

3[“Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code.”.]

(a) In the case of it person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

1[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of subsection (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, whenever they may be serving, and thereupon the provisions of that sub-section will apply as if lot the expression “Central Government” occurring therein, the expression “State Government were substituted.

2[(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued trader clause (I) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is here by declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the court before which the trial is to be held.

1. Added by Act 43 of 1991, sec. 2 (w.e.f. 2-5-1991)

2. Ins. by Act 43 of 1991, sec. 2 (w.e.f. 2-5-1991)

3. Inserted by Section 18 of “The Criminal Law (Amendment) Act, 2013″

STATE AMENDMENTS

Assam:

For sub-section (3) of section 197, the following subsection shall be submitted, namely.

“(3) The State Government may, by notification, direct that the provisions of’ subsection (2) shall apply.

(a) To such class or category of the members of’ the Forces charged with the maintenance of’ public order, or

(b) To such class or category of other public servants [not being persons to whom the provisions of sub-section (1) or subsection (2) apply] charged with the maintenance of public order.

As may be specified in the notification wherever they may be serving, and thereupon the provisions of sub-section (2) shall apply as if’ for the expression Central Government occurring therein, the expression State Government were substituted.”

[Vide President’s Act 3 of 1980. (w.e.f. 5-6-1980)].

Maharashtra:

After section 197, the following section shall be inserted namely.

“197A. Prosecution of commissioner of Receiver appointed by civil court.- When any person who is a Commissioner or Receiver appointed by a court under the provisions of the Code of Civil Procedure, 1908, is accused of any offence alleged to have committed by him while acting or purporting to act in the discharge of his functions as Commissioner or Receiver, no court shall take cognizance of such offence except with the previous sanction of the court, which appointed such person as Commissioner or Receiver, as the case may, be.”

[Vide Maharashtra act 60 of 1981, sec. 2 (w.e.f 5-10-1981)]

198. Prosecution for offences against marriage.

(1) No court shall take cognizance of all offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that-

(a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf,

(b) Where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf,

(c) Where the person aggrieved by an offence punishable under 1[section 494 or section 495 ] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s, brother or sister 2[, or, with the leave of the court, by any other person related to her by blood, marriage or adoption].

(2) For the purpose of sub-section (1), no person other than the husband of the woman, shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the court is satisfied that there is a guardian so appointed or declared, the court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

(4) The authorization referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.

(5) Any document purporting to be such an authorization and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.

(6) No court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, or attempt to commit an offence as they apply to the offence.

1. Subs. by Act 45 of 1978, sec. 17, for “section 494″ (w.e.f. 18-12-1978).

2. Ins. by Act 45 of 1978, sec. 17 (w.e.f. 18-12-1978).

198A. Prosecution of offences under section 498A of the Indian Penal Code.

1[198A. Prosecution of offences under section 498A of the Indian Penal Code.

No court shall take cognizance of an offence punishable under section 498A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or, with the leave of the court, by any other person related to her by blood, marriage or adoption.]

2[“198B. No Court shall take cognizance of an offence punishable under section 376B of the Indian Penal Code where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.”.]

1. Ins. by Act 46 of 1983, sec. 5 (w.e.f. 25-12-1983).

2. Inserted by Section 19 of “The Criminal Law (Amendment) Act, 2013″

199. Prosecution for defamation.

(1) No court shall take cognizance of all offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by, the offence:

Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf.

(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Government of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.

(3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.

(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction.

(a) Of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;

(b) Of the State Government, in the case of any other public servant employed in connection with the affairs of the State;

(c) Of the Central Government, in any other case.

(5) No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.

(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint.

200. Examination of complainant.

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or

(b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

201. Procedure by Magistrate not competent to take cognizance of the case.

If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall, -

(a) If the complaint is in writing, return it for presentation to the proper court with to that effect;

(b) If the complaint is not in writing, direct the complainant to the proper court.

202. Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, 1[and shall, in a case where the accused os is residing at a place beyond the area in which he excercise his jurisdiction]. postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made, -

(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or

(b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an offer in charge of a police station except the power to arrest without warrant.

1. Ins. by Act 25 of 2005, sec.19.

203. Dismissal of complaint.

If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

204. Issue of processed.

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) A summons-case, he shall issue his summons for the attendance of the accused, or

(b) A warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87.

205. Magistrate may dispense with personal attendance of accused.

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of’ the accused and permit him to appear by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of’ the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.

206. Special summons in cases of petty offence.

(1) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under section 260 3[or section 261], the Magistrate shall, except where he is, for reasons to be recorded in writing of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorize, in writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader:

Provided that the amount of the fine specified in such summons shall not exceed 4[one thousand rupees].

(2) For the purposes of this section, “petty offence” means any offence punishable only with fine not exceeding one thousand rupees, but does not include any offence so punishable under the Motor Vehicles Act, 19391, or under any other law which provides for convicting the accused person in his absence on a plea of guilty.

2[(3) The State Government may, by notification, specially empower any Magistrate to exercise the powers conferred by sub-section (1) in relation to any offence which is compoundable under section 320 or any offence punishable with imprisonment for a term not exceeding three months, or with fine or with both where the Magistrate is of opinion that, having regard to the facts and circumstances of the case, the imposition of fine only would meet the ends of justice.]

1. Now the Motor Vehicles Act, 1988 (59 of 1988).

2. Ins. by Act 45 of 1978, sec. 18 (w.e.f. 18-12-1978).

3. Ins. by Act 25 of 2005, sec. 20.

4. Subs. by Act 25 of 2005, sec. 20, for “one hundred rupes”.

207. Supply to the accused of copy of police report and other documents.

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.

(i) The police report;

(ii) The first information report recorded under section 154

(iii) The statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173.

(iv) The confessions and statements, if any, recorded under section 164;

(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173.

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is Voluminous, he shall, instead of furnishing the accused with a copy thereof’, direct that he will only be allowed to inspect it either personally or through pleader in court.

208. Supply of copies of statements and documents to accused in other cases triable by court of Session.

Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.

(i) The statements recorded under section 200 or section 202, or all persons examined by the Magistrate;

(ii) The statements and confessions, if any, recorded under section 161 or section 164;

(iii) Any documents produced before the Magistrate on which the prosecution proposes to rely:

Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in court.

209. Commitment of case to Court of Session when offence is triable exclusively by it.

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

1[(a) Commit, after Complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this code relating to bail, remand the accused the custody until Such commitment has been made;]

(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.

1. Subs. by Act 45 of 1978. sec. 19, for clause (a) (18-12-1978).

STATE AMENDMENTS

GUJARAT:

In section 209 for clause (a), the following clause shall he substituted. Namely.

“(a) Commit the case, after complying with the provisions of’ section 207 or section 208, as the case may be, to the Court of Session and, subject to the, provisions of this code relating to bail, remand the accused to custody until such commitment has been made.”

[Vide president’s Act 30 of 1976, sec. 2 (w.e.f. 7-7-1976)].

UTTAR PRADESH:

In section 209 for clauses (a) and (b), the following clauses shall be substituted be deemed always to have been substituted, namely.

“(a) As soon as may be after complying with the provisions of section 207, commit the case to Court of Session;

(b) Subject to the provisions of the Code relating to bail, remand the accused to the custody until commitment of the case under clause (a) and thereafter during and until the conclusion of the trial.”

[Vide U.P Act 16 of 1976. sec. 6.]

210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.

(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under section 173 and on such export cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.

211. Contents of charge.

(1) Every charge under this Code shall state the offence with which the accused is charged.

(2) If the law that creates the offence gives it any specific name, the offence may be described in the charge by that name only.

(3) If the law that creates the offence does not give it any specific name so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.

(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.

(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

(6) The charge shall be written in the language of the court.

(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the court may think fit to award for the subsequent offence, the fact date and place of the previous, conviction shall be stated in the charge; and if such statement has been omitted, the court may add it at any time before sentence is passed.

Illustrations.

(a) A is charged with the murder of B. This is equivalent to a statement that A’s act fell within the definition of murder given in sections 299 and 300 of the Indian Penal Code (45 of 1860); that it did not fall within any of the general exceptions of the said Code; and that it did not fall within any of the five exceptions to section 300, or that, if it did fall within Exception 1, one or other of the three provisos to that exception applied to it.

(b) A is charged under section 326 of the Indian Penal Code (45 of 1860) with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the said Code, and that the general exceptions did not apply to it.

(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property-mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property-mark, without reference to the definition, of those crimes contained in the Indian Penal Code; but the sections under which the offence is punishable must, in each instance, be referred to in the charge.

(d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.

212. Particulars as to time, place and person.

(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of ‘money or other moveable property, it shall be sufficient to specify the gross sum or, as the case may be, described the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219:

Provided that the time included between the first and last of such dates shall not exceed one year.

213. When manner of committing offence must be stated.

When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner is which the alleged offence was committed as will be sufficient for that Purpose.

Illustrations

(a) A is accused of the theft of a certain article at a certain time and place the charge need not set out the manner in which the theft was effected

(b) A is accused of cheating B at a given time and place. The charge must be set out the manner in which A cheated B.

(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false.

(d) A is accused of obstructing B, a public servant, in the discharge or his public functions at a given time and place. The charge must set out the manner obstructed B in the discharge of his functions.

(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B.

(f) A is accused of disobeying a direction of the law with intent to save punishment. The charge must set out the disobedience charge and the law infringed.

 214. Words in charge taken in sense of law under which offence is punishable.

In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.

215. Effect of errors.

No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure.

ILLUSTRATIONS

(a) A is charged under section 242 of the Indian Penal Code (45 of 1860), with “having, been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit,” the word “fraudulently” being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.

(b) A is charged with cheating B, and the manner in which he cheated B is set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The court may infer from this that the omission to set out the manner of the cheating is not material.

(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no d court may infer from such facts that the omission to set out the manner oft was, in the case, a material error.

(d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the murdered person’s name was Haidar Baksh, and the date of the murder was the 20th January. 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The court may infer from these facts that A was not misled, and that the error in the charge was immaterial.

(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The court may infer from this that A was misled, and that the error was material.

216. Court may alter charge.

(1) Any court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court to prejudice the accused in his defence or the prosecutor in the conduct of the case the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) lf the offence stated in the altered or added charge is one for the prosecution of which previous section is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

217. Recall of witnesses when charge altered.

Whenever a charge is altered or added to by the court after the commencement of the trial, the prosecutor and the accused shall be allowed-

(a) To recall or re-summon, and examine with reference to such alteration or additiona, any witness who may have been examined, uniess the court, for reasons to be recorded in writing, considers thal the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends ofjustice;

(b) Also to call any further witness whom the court may think to be material.

218. Separate charges for distinct offences.

(1) For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be trie separately:

Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person.

(2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220, 221 and 223

Illustration

A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt.

219. Three offences of same kind within year may be charged together.

(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.

(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local laws:

Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1 860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.

220. Trial for more than one offence.

(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section 212 or in sub-section (I) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.

(3) If the acts alleged constitute an offence failing within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.

(4) Several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.

(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860).

Illustration sub-section (1)

(a) A rescues B a person in lawful custody, and in so doing causes grievous hurt to C, a constable, in whose custody B was, A may be charged with, and convicted of, offences under sections 225 and 333 of the Indian Penal Code (45 of 1860).

(b) A commits house-breaking by day with intent to commit adultery, and commits in the house so entered, adultery with B’s wife. A may be separately charged with, and convicted of, offences under sections 454 and 497 of the Indian Penal Code (45 of 1860).

(c) A entices B, the wife of C, away form C, with intent to commit adultery with B, and then commits adultery with her. A may be separately charged with, and convicted of, offences under sections 498 and 497of the Indian Penal Code(45 of 1860).

(d) A has in his possession several seals, knowing them to be counterfeit and intending to use them for the purpose of committing several forgeries punishable under section 466 of the Indian Penal Code(45 of 1860). A may be separately charged with, and convicted of, the possession of each seal under section 473 of the Indian Penal Code (45 of 1 860).

(e) With intent to cause injury to B, A institutes a criminal proceeding against him, knowing that there is no just or lawful ground for such proceeding, and also falsely accuses B of having committed an offence, knowing that there is no just or lawful ground for such charge. A may be separately charged with, and convicted of, two offences under section 211 of the Indian Penal Code (45 of 1860).

(f) A with intent to cause injury to B, falsely accuses him of having committed an offence, knowing that there is no just or lawful ground for such charge. On the trial, A gives false evidence against B, intending thereby to cause B to be convicted of a capital offence. A may be separately charged with and convicted of, offences under section 211 and 194 of the Indian Penal Code (45 of 1860).

(g) A with six others, commits the offences, of rioting, grievous hurt and assaulting a public servant endeavouring in the discharge of his duty as such to suppress the riot. A may be separately charged with, and convicted of, offences under sections 147, 325 and 152 of Indian Panel Code (45 of 1860).

(h) A threatens B, C and D at the same time with injury to their persons with intent to cause alarm to them. A may be separately charged with, and convicted of, each of the three offences under section 506 of the Indian Penal Code (45 of 1860).

The separate charges referred to in illustration (a) to (h) respectively, may be tried at the same time.

Illustrations to sub-section (3)

(i) A wrongfully strikes B with a cane. A may be separately charged with and convicted of, offences under sections 352 and 323 of the Indian Penal Code (45 of 1860).

(j) Several stolen sacks of corn are made over to A and B, who knew they are stolen property, for the purpose of concealing them. A and B thereupon voluntarily assist each other to conceal the sacks at the bottom of a grain-pit. A and B may be separately charged with and convicted of, offences under sections 411 and 414 of the Indian Penal Code, (45 of 1860).

(k) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure. A may be separately charged with and convicted of, offences under sections 3 17 and 304 of the Indian Penal Code (45 of 1860).

(l) A dishonestly uses a forged document as genuine evidence, in order to convict B, a public servant of an offence under section 167 of the Indian Penal Code. A may be separately charged with and convicted of, offences under sections 471 (read with section 466) and 196 of that Code (45 of 1860).

Illustration to sub-section (4)

(m) A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged, with and convicted of offences under sections 323, 392 and 394 of the Indian Penal Code (45 of 1860).

221. Where it is doubtful what offence has been committed.

(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once: or he may be charged in the alternative with having committed some one of the said offences.

(2) It in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

Illustrations

(a) A is accused of an, Act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property or criminal breach of trust or cheating.

(b) In the case mentioned, A is only charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust of receiving stolen goods (as the case may be) though he was not charged with such offence.

(c) A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot to be proved which of these contradictory statements was false.

222. When offence proved included in offence charged.

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, thought he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

(4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.

Illustrations

(a) A is charged under section 407 of the Indian Penal Code (45 of 1860) with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said section 406.

(b) A is charged under section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code.

223. What persons may be charged jointly.0

The following persons may be charged and tried together, namely.

(a) Persons accused of the same offence committed in the course of the same transaction;

(b) Persons accused of an offence and persons accused of abetment of, or abetment to commit, such offence;

(c) Persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;

(d) Persons accused of different offences committed in the course of the same transaction;

(e) Persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;

(f) Persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;

(g) Persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:

Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the 1[Magistrate of Court of Session] may, if such persons by an application in writing, so desire, and, 2[if he is satisfied] that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.

1. Subs. by Act 25 of 2005, sec. 21, for “Magistrate”.

2. Subs. by Act 25 of 2005, sec. 21, for “if he is satisfied”.

224. Withdrawal of remaining charges on conviction on one of several charges.

When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent, of the court, withdraw the remaining charge or charges, or the court of its own accord may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said court (subject to the order of the court setting aside the conviction) may proceed with the inquiry into, or trial of, the charge or charges so withdrawn.

225. Trial to be conducted by Public Prosecutor.

In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.

226. Opening case for prosecution.

When the accused appears or is brought before the court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.

227. Discharge.

If, upon consideration of the record of the case and the documents submitted herewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

228. Framing of charge.

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1[ or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

STATE AMENDMENTS

KARNATAKA:

In clause (a), of sub-section (1), for the words “to the Chief Judicial Magistrate and hereupon the “Chief Judicial Magistrate” the words ” to the Chief Judicial Magistrate or to any Judicial Magistrate competent to try the case and thereulpon the Chief Judicial Magistrate or such other Judicial Magistrate to whom the case may have been transferred” shall be substituted.

[Vide Karnatka Act 22 of 1994, sec. 2 (w.e.f. 18-5-1994)].

WEST BENGAL:

In Clause (a) of sub-seclion (1) of section 228, for the words “to the Chief Judicial Magistrate” and thereupon the Chief Judicial Magistrate” the words “to the Chief Judicial Magistrate or to any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or such other Judicial Magistrate to whom the case may have been transferred” shall be substituted.

[Vide W.B. Act 63 of 1978 (w.e.f. 1-6-1979)].

1. Subs. by Act 25 of 2005, sec. 22, for “and thereupon the Chief Judicial Magistrate”.

229. Conviction on plea of guilty.

If the accused pleads guilty; the Judge shall record the plea and may, in his discretion, convict him thereon.

230. Date for prosecution evidence.

If the accused refuses to plead, or does not plead, or ciaims to be tried or is not convicted under section 229, the Judge shall fíx a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.

231. Evidence for prosecution.

(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.

(2) The Judge may, in this discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

232. Acquittal.

If after taking the evidence for the prosecution, examining the aceused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal.

233. Entering upon defence.

(1) Where the accused is not acquitted under section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thercof.

(2) lf the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.

234. Arguments.

When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply:

Provided that where any point of law is raised by the accused or his pleader, the prosecution may, with the permission of the Judge, make his submissions with regard to such point of law.

235. Judgment of acquittal or conviction.

(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360 hear the accused on the question of sentence, and then pass sentence on him according to law.

236. Previous conviction.

In a case where a previous conviction is charged under the provisions of sub-section (7) of section 211, and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted said accused under section 229 or section 235, take evidence in respect of. The alleged previous conviction, and shall record a finding thereon:

Provided that no such charge shall be read out by the Judge nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under section 229 or section 235.

237. Procedure in cases instituted under section 199 (2).

(1) A Court of Session taking cognizance of an offence under sub-section (2) of section 199 shall try the case in accordance with the procedure for the trial of warrant cases instituted otherwise than on a police report before a Court of Magistrate:

Provided that the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution.

(2) Every trial under this section shall be held in camera if either party thereto so desires or if the court thinks fit so to do.

(3) If, in any such case, the court discharges or acquits all or any of the accused and is of opinion that there was no reasonable cause for making the accusation against them or any of them, it may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed (other than the President, Vice-President or the Governor of a State or the Administrator of a Union Territory) to show cause why he should not pay compensation to such accused or to each or any of such accused, when there are more than one.

(4) The court shall record and consider any cause which may be shown by the person so directed, and if it is satisfied that there was no reasonable cause for making the accusation, it may, for reasons to be recorded, make an order that compensation to such amount not exceeding one thousand rupees, as it may determine, be paid by such person to the accused or to each or any of them.

(5) Compensation awarded under sub-section (4) shall be recovered as if it were a fine imposed by a Magistrate.

(6) No person who has been directed to pay compensation under sub-section (4) shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made under this section:

Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.

(7) The person who has been ordered under sub-section (4) to pay compensation may appeal from the order, in so far as it relates to the payment of compensation, to the High Court.

(8) When an order for payment of compensation to an accused person is made, the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed or, if an appeal is presented, before the appeal has been decided.

238. Compliance with section 207.

When in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial; the Magistrate shall satisfy himself that he has complied with the provisions of section 207.

239. When accused shall be discharged.

If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

240. Framing of charge.

(1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in opinion could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.

241. Conviction on plea of guilty.

If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.

242. Evidence for prosecution.

(1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under section 241 Magistrate shall fix a date for the examination of witnesses.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

243. Evidence for defence.

(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.

(2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.

(3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in court.

244. Evidence for prosecution.

(1) When, in any warrant-case instituted other wise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summon to any of its witnesses directing him to attend or to produce any document or other thing.

245. When accused shall be discharged.

(1) If, upon taking all evidence referred to in section 244 the Magistrate considers, for reasons to be recorded that the case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing, in this section shall be deemed to prevent a Magistrate from discharging he accused at any previous stage of the case if, for reasons to be recorded Magistrate, he considers the charge to be groundless.

STATE AMENDMENT

WEST BENGAL:

In section 245, after sub-section (2), the following sub-section shall be inserted, namely:-

“(3) lf the eviderice referred to in section 244 are not produced in support of the prosecution within four years from the date of appearance of the aecused, the Magistrate shall discharge the accussed unless the prosecution satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall be in the interest of justice to discharge the aceused.”

[Vide W.B. Act 24 of 1968 sec. 5].

246. Procedure where accused is not discharged

(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground r presuming that the accused has committed an offence triabie under this Chapter,wilich such Magistrate is competent to try and which, in his opinion, could be adeqtiateiv punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guiltty or has any defence to make.

(3) lf the accused guilty, the Magistrate shall record the plea, and may, in his discretion convict him thereon.

(4) lf the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3) he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthnwitth whether he wishes to cross-examine any, and if so. which of the witnesses for the prosecution whose evidence has been taken.

(5) lf he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.

(6) The evidence of any remaining witnesses for the prosecution shall next be taken and afier cross-examination and re-examinalion (if any), they shall also be discharged.

247. Evidence for defence.

The accused shall then be calied upon to enter upon his defence and produce his evidence and the provisions of section 243 shall apply to the case.

248. Acquittal or conviction.

(1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.

(2) Where, in any case under this Chapter, the Magistrate find the accused guilty, but does not proceed in accordance with the provisions of section 325 or section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.

(3) Where in any case under this Chapter, a previous conviction is charged under the provisions of sub-section (7) of section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, lhe Magistrate may, after he has convicted the said aceused, take evidence in respect of the alleged previous conviction. said shall record a finding thereon:

Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has bee convicted under sub-section (2).

249. Absence of complainant.

When the proceedings have been instituted upon complaint and any day fixed for the hearing of the case, the complainant is absent and the offence lawfullly cmpounded or is not a cognizable offence, the Magistrate may in his discretion, notwithstanding anything herein before contained, at any time before the time has been framed, discharge the accused.

250. Compensation for aceusation without reasonabie cause.

(1) lf in any case instituted upon complaint or upon information given to a police officer or to Magistrite, one or more persons is or are acccused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is beard discharges or acquits all or any of the accused, and is of opinion that there was no reasonabie ground for making the accusation against them or any of them, the Magistrate may, by his orde of discharge or accuital , if the person upon whose complaint or information or the accusation is present, call upon him forth how cause why y be should not pay compensation to such accused or to cach or any of such accused when there are more than one or, if such peson is not present direct the issue of a summons to him to appear and show cause as aforesaid.

(2) The Magistrate shall record and consider any cause which such complainant or informant may show, and if he is satisfied that there was no reasonable ground for making the accusation, may for reasons to be recorded, máke an order that compensatíon to such amount not exceeding the amount of fine he is empowered to impose, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.

(3) The Magistrate may, by the order directing payment of the compensation under sub-section (2) further order that, in default of payment, the person ordered to pay such compensation shall under go simple imprisonment for a period not exceeding thirty days.

(4) When any person is imprisonment under sub-section (3), the provisions of sections 68 and 69 of the lndiail Penal Code (45 of 1860) shall, so far as may be, apply.

(5) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him:

Provided that any amount paid to an accused person under this section shall be taken in to account in awarding compensation to such person in any subsequent civil suit relating to the ssame matter.

(6) A complainant or informant who has been ordered under sub-section (2) by a Magistrate of the second class to pay compensation exceeding one hundred rupees, may appeal from the order as if such complainant or infonnant had been convieted on a trial had by such Magistrate.

(7) When an order for payment of compensation to an accused person is made in a case which is subject to appeal under sub-section (6), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided; and where such order is made in a case which is not so subject to appeal the compensation shall not be paid before the expiration of one month from the date of the order.

(8) The provisions of this section apply to summons-cases as well as to warrant cases.

251. Substance of accusation to be stated.

When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.

252. Conviction on plea of guilty.

If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him thereon.

253. Conviction on plea of guilty in absence of accused in petty cases.

(1) Where a summons has been issued under section 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons.

(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid.

254. Procedure when not convicted.

(1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in court.

255. Acquittal or Conviction.

(1) If the Magistrate, upon taking the evidence referred to in section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilt, he shall record an order of acquittal.

(2) Where the Magistrate does not proceed in accordance with the provisions of section 325 or section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.

(3) A Magistrate may, under section 252 or section 255, convict the accused of any offence triable under this Chapter which form the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons if the Magistrate is satisfied that the accused would not be prejudiced thereby.

256. Non-appearance or death of complainant.

(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

257. Withdrawal of complaint.

If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.

258. Power to stop proceedings in certain cases.

In any, summons that case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release, the accused, and such release shall have the effect of discharge

259. Power of court to convert summons-cases into warrant cases.

When in the course of the trial of summon-case relating to an offence it appears to the magistrate punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of Justice, the offence should be tried in accordance with the procedure for the trial of warrant- cases, such Magistrate may proceed to rehear the case in the manner provided by, this Code for the trial of warrant-cases and may recall any witness who may have been examined.

260. Power to try summarily.

(1) Notwithstanding anything contained in this Code-

(a) Any Chief Judicial Magistrate:

(b) Any Metropolitan Magistrate;

(c) Any, Magistrate of the first class specially empowered in this behalf by the High Court,

may any of he thinks fit, try in a summary way all or any of the following offences.

(i) Offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years;

(ii) Theft, under section 379, section 380 or section 381 of the Indian Penal Code (45 of 1860), where the value of the property stolen does not exceed 1[two thousand rupees];

(iii) Receiving or retaining stolen property, under section 411 of the Indian Penal Code (45 of 1860), where the value of the property does not exceed 1[two thousand rupees];

(iv) Assisting in the concealment or disposal of stolen property, under section 414 of the Indian Penal Code (45 of 1860) where the value of such property does not exceed 1[two thousand rupees];

(v) Offences under sections 454 and 456 of the Indian Penal Code (45 of 1860);

(vi) Insult with intent to provoke a breach of the peace, under section 504 and 2[criminal intimidation punishable with imprisonment for a term which may extend to two years, or with fine, or with both], under section 506 of the Indian Penal Code (45 of 1860).

(vii) Abetment of any, of the foregoing offences;

(viii) An attempt to commit any of the foregoing offences, when such attempt is an offence;

(ix) Any offence constituted by an act in respect of which a complaint may be made under section 20 of the Cattle-Trespass Act, 1871 (1 of 1871).

(2) 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 re-hear, the case in the manner provided by this Code.

——————–

1. Subs. by Act 25 of 2005, sec. 23, for “two hundred rupees”.

2. Subs. by Act 25 of 2005, sec. 23, for “criminal intimidation”.

261. Summary trial by Magistrate of the second class.

The High Court may confer on any, Magistrate invested with the powers of a Magistrate of the second class power, to try summarily any offence which is punishable only with fine or with imprisonment for a term not exceeding, six months with or without fine, and any abetment of or attempt to commit any such offence.

262. Procedure for summary trials.

(1) In trial under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned.

(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.

263. Record in summary trials.

In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely.

(a) The serial number of the case;

(b) The date of the commission of the offence;

(c) The date of the report of complaint;

(d) The name of the complainant (if any);

(e) The name, parentage and residence of the accused;

(f) The offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed;

(g) The plea of the accused and his examination (if any);

(h) The finding;

(i) The sentence or other final order;

(j) The date on which proceedings terminated.

264. Judgment in cases tried summarily.

In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a Judgment containing a brief statement of the reasons for the finding.

265. Language of record and judgment.

(1) Every such record and judgment shall be written in the language of the court.

(2) The High Court may authorize any Magistrate empowered to try offences summarily to prepare the aforesaid record or judgment or both by means of an officer appointed in this behalf by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by such Magistrate.

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265 A. Application of the Chapter.

(1) This Chapter shall apply in respect of an accused against whom-

(a) the report has been forwarded by the officer in charge of the police station under section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or

(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under section 200, issued the process under section 204,

but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.

(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 B. Application for plea bargaining.

(1) A person accused of an offence may file application for plea bargaining in the Court in which such offence is pending for trial.

(2) The application under sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.

(3) After receiving the application under sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.

(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under sub-section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where-

(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;

(b) the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under sub-section (1).

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 C. Guidelines for mutually satisfactory disposition.

In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 265B, the Court shall follow the following procedure, namely:-

(a) in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:

Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:

Provided further that the accused, if he so desires, may participate in such meeting with his pleader, if any, engaged in the case.

(b) in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:

Provided that it shall be the duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:

Provided further that if the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his pleader engage in the case.

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 D. Report of the mutually satisfactory disposition to be submitted before the Court.

Where in a meeting under section 265C, a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other persons who participated in the meeting and if no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265B has been filed in such case.

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 E. Disposal of the case.

Where a satisfactory disposition of the case has been worked out under section 265D, the Court shall dispose of the case in the following manner, namely:-

(a) the Court shall award the compensation to the victim in accordance with the disposition under section 265D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused;

(b) after hearing the parties under clause (a), if the Court is of the view that section 360 or the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be;

(c) after hearing the parties under clause (b), if the Court finds that the offence committed by the accused is not covered under clause (b) or clause (c), then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence.

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 F. Judgment of the Court.

The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court.

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 G. Finality of the judgment.

The judgment delivered by the Court under section 265G shall be final and no appeal (except the special leave petition under Article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment.

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 H. Power of the Court in plea bargaining.

A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in such Court under this Code.

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 I. Period of detention undergone by the accused to be set off against the sentence of imprisonment.

The provisions of section 428 shall apply, for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Code.

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 J. Savings.

The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code and nothing in such other provisions shall be constructed to constrain the meaning of any provision of this Chapter.

Explanation. – For the purposes of this Chapter, the expression “Public Prosecutor” has the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public Prosecutor appointed under section 25.

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 K. Statements of accused not to be used.

Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining file under section 265B shall not be used for any other purpose except for the purpose of this Chapter.

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

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265 L. Non-application of the Chapter.

Nothing in this Chapter shall apply to any Juvenile or Child as defined in sub-clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).]

——————–

1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.

266. Definitions.

In this Chapter, -

(a) “Detained” includes detained under any law providing for preventive detention;

(b) “Person” includes, -

(i) Any place, which has been declared by the State Government, by general or special order, to be a subsidiary jail;

(ii) Any reformatory, Borstal institution or other institution of a like nature.

267. Power to require attendance of prisoners.

(1) Wherever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court.

(a) That a person confined or detained in a prison should be brought before the court for answering to a charge of an offence, or for the purpose of any proceedings against him, or

(b) That it is necessary for the ends of justice to examine such person as a witness,

the court may make an order requiring the officer in charge of the prison to produce such person before the court for answering to the charge or for the purpose of such proceeding or as the case may be, for giving evidence.

(2) Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate.

(3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order.

268. Power of State Government to exclude certain persons from operation of section 267.

(1) The State Government may, at any time having regard to the matters specified in sub-section (2), by general of special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained and thereupon, so long as the order remains to force, no order made under section 267, whether before or after the order of the State Government, shall have effect in respect of such person or class of persons.

(2) Before making an order under sub-section (1), the State Government shall have regard to the following matters, namely:

(a) The nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison;

(b) The likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison;

(c) The public interest, generally.

269. Officer in charge of prison to abstain from carrying out order in certain contingencies.

Where the person in respect of whom an order is made under section 267, -

(a) Is by reason of sickness or infirmity unfit to be removed from the prison or

(b) Is under committal for trial or under remand pending trial or pending a preliminary investigation; or

(c) Is in custody for a period which would expire before the expiration of the time required or complying with the order and for taking him back to the prison in which he is confined or detained or

(d) Is a person to whom an order made by the State Government under section 268 applies,

the officer in charge of the prison shall abstain from carrying out the court’s order and shall send to the court a statement of reasons for so abstaining:

Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometers distance from the prison, the officer in charge of’ the prison shall not so abstain for the reason mentioned in clause (b).

270. Prisoner to he brought to court in custody.

Subject to the provisions of section 269, the officer incharge of the prison shall, upon delivery of an order made under Sub-section (1) of’ section 267 and duly Countersigned, where necessary, under subsection (2) thereof, cause the person named in the order to be taken to the court in which his attendance is required, so as to be present there at the time mentioned in the order and shall cause him to be kept in custody in or near the court until he has been examine or until the court authorizes him to be taken back to the prison in which he was confined or detained.

271. Power to issue commission for examination of witness in prison.

The provisions of’ this chapter shall be without prejudice to the power of the court to issue, under section 284, a commission for the examination as a witness of any confined or detained in a prison and the provisions of part B of Chapter XXIII shall apply in relation to the examination on commission of any such person in the prison as they apply in relation to the examination on commission of any other person.

272. Language of Courts.

The state Government may determine what shall be for purposes of this code the language of each court within the State other than the High Court

273. Evidence to be taken in presence of accused.

Except as otherwise expressly provided all evidence taken in the course of the other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader.

1[“Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.”.]

——————————————————-

1. Inserted by Section 20 of “The Criminal Law (Amendment) Act, 2013″

274. Record in summons cases and inquiries.

(1) In all summon cases tried before a magistrate in all inquiries under sections 145 to 148 (both inclusive), and in all proceedings under section 446 otherwise than in the Course of a trial, the Magistrate shall as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the court:

Provided that if the Magistrate is unable to make such memorandum himself, he shall the after recording the reason of his inability cause such member to be made in writing or from his dictation in open court.

(2) Such memorandum shall be signed by the Magistrate and shall form part of the record.

275. Record in warrant cases.

(1) In all warrant-cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by his dictation in open court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the court appointed by him in this behalf.

(2) Where the Magistrate causes the evidence to be taken down, he shall record a certificate that the evidence could not be taken down by himself for the reasons referred to in sub-section (1).

(3) Such evidence shall ordinarily be taken down in the form of a narrative, by the Magistrate may, in his discretion take down, or cause to be taken down, any part of’ such evidence in the form of question and answer.

(4) The evidence so taken down shall be signed by the Magistrate and shall form part of the record.

276. Record in trial before Court of Session.

(1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open court or his direction and Superintendence, by an officer of the court appointed by him in this behalf.

1[(2) Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding judge may, in his discretion take down or cause to be taken down, any part of’ such evidence in the form of question and answer.]

(3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record.

1. Subs by Act 45 of 1978. Sec. 20. for sub-section (2) (w.e.f. 18-12-1978).

277. Language of record of evidence.

In every case where evidence is taken down under section 275 or section 276, -

(a) If the witness gives evidence in the language of the court, it shall be taken down in that language:

(b) If he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or Presiding Judge, and shall form part of the record;

(c) Where under clause (b) evidence is taken down in a language other than the language of the court, a true translation thereof in the language of the court shall be prepared as soon as practicable, signed by the Magistrate or Presiding Judge and shall form part of the record:

Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the court is not required by any of the parties, the court may dispense with such translation.

278. Procedure in regard to such evidence when completed.

(1) As the evidence of’ each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.

(2) If the witness deities the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he think necessary.

(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he

279. Interpretation of evidence to accused or his pleader.

(1) Whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him.

(2) If he appears by pleader and the evidence is given in a language other than the language of the court and not understood by the pleader, it shall be interpreted to such pleader in that language.

(3) When documents are put for the purpose of formal proof, it shall be in the discretion of the court to interpret as much thereof as appears necessary.

280. Remarks respecting demeanour of witness.

When a Presiding Judge or magistrate has recorded the evidence of a witnesses, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.

281. Record of examination of accused.

(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the court and such memorandum shall be signed by the Magistrate and shall form part of the record.

(2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the or other incapacity, under his direction and superintendence by an officer of the court appointed by him in this behalf.

(3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable in the language of the court.

(4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language, which he understands, and he shall be at liberty to explain or add to his answers.

(5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.

(6) Nothing in this section shall be deemed to apply to the examination of an accused person in the Course of a summary trial.

282. Interpreter to be bound to interpret truthfully.

When the services of an interpreter are required by any Criminal Court for the interpretation of any evidence or statement, he shall be bound to state the true interpretation of such evidence or statement.

283. Record in High Court.

Every High Court may, by general rule, prescribe the manner in which the evidence of witnesses and the examination of the accused shall be taken down in cases coming before it; and such evidence and examination shall be taken down in accordance with such rule.

284. When attendance of witness may be dispensed with and commission issued.

(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court of Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter:

Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union Territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness.

(2) The court may, when issuing a commission for the examination of a witness for the prosecution direct that such amount as the court considers reasonable to meet the expenses of the accused including the pleader’s fees, be paid by the prosecution.

285. Commission to whom to be issued.

(1) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found.

(2) If the witness is in India, but in a State or an area to which this Code does not extend the commission shall be directed to such court or officer as the Central Government may, by notification specify in this behalf.

(3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such court or officer, and sent to such authority for transmission as the Central Government may, by notification prescribe in this behalf.

286. Execution of commissions.

Upon receipt of the commission, the Chief Metropolitan Magistrate of Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant cases under this Code.

287. Parties may examine witnesses.

(1) The parties to any proceeding under this Code in which a commission is issued may respectively forward any interrogatories to the issue, and it shall be lawful for the Magistrate, court or officer to whom the Commission is directed, or to whom the duty of executing it is delegated, to examine (he witness upon such interrogatories.

(2) Any such party may appear before such Magistrate, court or officer by pleader, or if not in custody, in person, and may examine, cross-examine and reexamine (as the case may be) the said witness.

288. Return of commissions.

(1) After any commission issued under section 284 has been duly, executed, it shall he returned, together with the deposition of the witness examined there under, to the court or Magistrate issuing the commission; and the commission, the return thereto and the deposition shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.

(2) Any deposition so taken, if it satisfies the conditions prescribed by section 31 of the Indian Evidence Act, 1872 (1 of 1872) may also be received in evidence at any subsequent stage of the case before another court.

289. Adjournment of proceeding.

In every case in which a commission is issued under section 284, the inquiry, trial or other proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.

290. Execution of foreign Commissions.

(1) The provisions of section 286 and so much of section 287 and section 288 as relate to the execution of a commission its return shall apply in respect of commissions issued by any of the courts, Judges Magistrates hereinafter mentioned as they apply to commissions issued under section 284.

(2) The courts, Judges and Magistrates referred to in sub-section (1) are-

(a) Any such court, Judge or Magistrate exercising jurisdiction within an area India to which this Code does not extend, as the Central Government may, by notification, specify, in this behalf;

(b) Any court, Judge or Magistrate exercising jurisdiction in any such country or place outside India, as the Central Government may, by notification, specie in this behalf, and having authority under the law in force in that country of place, to issue commissions for the examination of witnesses in relation in relation to criminal matters.

291. Deposition of medical witness.

(1) The deposition of a civil surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused or taken on commission under this Chapter, may be given in evidence in any injury or other proceeding under this Code, although the deponent is not called as a witness.

(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such deponent as to the subject matter of his deposition.

291 A. Identification report of Magistrate.

1[Identification report of Magistrate. (1) Any document purporting to be a report of identification under the hand of an Executive Magistrate in respect of a person or property may be used as evidence in any inquiry, trial or other proceeding under this Code, although such Magistrate is not called as a witness:

Provided that where such report contains a statement of any suspect or witness to which the provisions of section 21, section 32, section 33, section 155 or section 157, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), apply, such statement shall not be used under this sub-section except in accordance with the provisions of those sections.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine such Magistrate as to the subject-matter of the said report.]

CrPC (Amendment) Act, 2005 (Notes on Clauses)

Under the existing provisions of the Code an identification memo is required to be proved in the Court by examination of the Magistrate, who conducted the proceedings. These facts are generally not disputed. In order to save time of the Court, section 291A has been inserted with a view to make memorandum of identification prepared by the Magistrates admissible in evidence without formal proof of facts stated therein with a provision that the Court may, if it thinks fit, on the application of the prosecution or the accused, summon or examine the Magistrate as to the subject-matter contained in the memorandum of identification.

——————–

1. Ins. by Act 25 of 2005, sec. 24.

292. Evidence of officers of the Mint.

(1) Any document purporting to be a report under the hand of any such gazetted officer of the Mint 1[officer of any Mint or of any Note Printing Press or of any Security Printing Press (including the officer of the Controller of Stamps and Stationery) or of any Forensic Department or Division of Forensic Science Laboratory or any Government Examiner of Questioned Documents or any State Examiner of Questioned Documents, as the case may be,] as the Central Government may, by notification, specify in this behalf, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code, although such officer is not called as a witness.

(2) The Court may, if it thinks fit, summon and examine any such officer as to the subject-matter of this report:

Provided that no such officer shall be summoned to produce any records on which the report is based.

(3) Without prejudice to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872) no such officer shall, 2[except with the permission of the General Manager or any officer in charge of any Mint or of any Note Printing Press or of any Security Printing Press or of any Forensic Department or any officer in charge of the Forensic Science Laboratory or of the Government Examiner of Questioned Documents Organisation or of the State Examiner of Questioned Documents Organisation, as the case may be,] be permitted-

(a) to give any evidence derived from any unpublished official records on which the report is based; or

(b) to disclose the nature or particulars of any test applied by him in the course of the examination of the matter or thing.

CrPC (Amendment) Act, 2005 (Notes on Clause)

Section 292 has been amended to cover the specified officers of the Currency Notes Press, the Bank Note Press and the Security Printing Press, like other specified officers of the Mint and the India Security Press and also makes certain other consequential changes.

——————–

1. Subs. by Act 2 of 2006, sec. 5 for “gazetted officer of the Mint or of the India Security Press (including the office of the Controller of Stamps and Stationery)” (w.e.f. 16-4-2006).

2. Subs. by Act 2 of 2006, sec. 5, for “except with the permission of the Master of the Mint, or the Indian Security Press or the Controller of Stamps and Stationery, as the case may be” (w.e.f. 16-4-2006).

293. Reports of certain Government scientific experts.

(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.

(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies to the following Government scientific experts, namely:-

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

1[(b) the Chief Controller of Explosives;]

(c) the Director of the Finger Print Bureau;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director 2[Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government.

3[(g) any other Government Scientific Expert specified by notification by the Central Government for this purpose.]

CrPC (Amendment) Act, 2005 (Notes on Clauses)

The designation “the Chief Inspector of Explosives” appearing in the Indian Explosives Act, 1884 has been changed to “the Chief Controller of Explosives” by the Indian Explosives (Amendment) Act, 1978. Section 293 has been amended to make the consequential amendment where the expression “ the Chief Inspector of Explosives” occurs.

COMMENTS

The court has to accept documents issued by any of the six officers who are mentioned in section 293 as valid evidence without examining the author thereof: Visakha Agro Chemicals (P) Ltd. v. Fertiliser Inspector-cum-Assistant Director of Agriculture (Regular), (1997) 2 Crimes 648 (AP).

—————————–

1. Subs. by Act 25 of 2005, sec. 26, for clause “(b) the Chief Inspector of Explosives”.

2. Ins. by Act 45 of 1978, sec. 21 (w.e.f. 18-12-1978).

3. Added by Act 25 of 2005, sec. 26.

294. No formal proof of certain documents.

(1) Where any document is filed before any court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit m deny the genuineness of each such document.

(2) The list of documents shall be in such form as may be prescribed by the State Government.

(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:

Provided that the court may, in its discretion, require such signature to be proved.

295. Affidavit in proof of conduct of public servants.

When any application is made to any court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the application by affidavit, and the court may, if it thinks fit, order that evidence relating to such facts be so given.

296. Evidence of formal character on affidavit.

(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.

297. Authorities before whom affidavits may be sworn.

(1) Affidavits to he used before any court under this Code may be sworn or affirmed before-

1[(a) Any Judge or any Judicial or Executive Magistrate, or]

(b) Any Commissioner of Oaths appointed by a High Court or Court of Session, or

(c) Any notary appointed under the Notaries Act, 1952 (53 of 1952).

(2) Affidavits shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the ground of such belief

(3) The court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended.

1. Subs. by Act 45 of 1978, Sec. 22, for clause (a) (w.e.f. 18-12-1978).

298. Previous conviction of acquittal how proved.

In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any, law for the time being in force, -

(a) By an extract certified under the hand of the officer having the custody of the records of the court in which such conviction or acquittal was held, to be a copy of the sentence or order, or

(b) In case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered.

together with, in each of such cases evidence as to the identity of the accused person with the person so convicted or acquitted.

299. Record of evidence in absence of accused.

(1) If it is proved that an accused person has absconded and that there is no immediate prospect of arresting him, the court competent to try 1[or commit for trial] such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense inconvenience which, under the circumstances of the case, would be unreasonable.

(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if’ the deponent is dead or incapable of giving evidence or beyond the limits of India.

1. Ins. by Act 45 of 1978, Sec. 23 (18-12-1978).

STATE AMENDMENT

UTTAR PRADESH

In section 299 in Sub-section (1) for the words “competent to try such person” the words” competent to try such person or to commit him for trial” shall he substituted.

[Vide U.P. Act 6 of 1976, sec. 7 (w.e.f. 28-11-1975)].

300. Person once convicted or acquitted not to be tried for same offence.

(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under subsection (2) thereof.

(2) A person acquitted or convicted of any offence afterwards tried with the consent of ore State Government for any distinct offence for which a separate charges have been made against him at the former trial under sub-section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first-mentioned court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.

Explanation. The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.

Illustrations

(a) A is tried upon a charge of theft as a servant and acquitted. He cannot after-wards, while the acquittal remains in force, be charged with theft as a servant, or upon the same facts, with theft simply, or with criminal breach of trust.

(b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.

(c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.

(d) A is charged by a Magistrate of the first class with, and convicted by him of voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the case comes within sub-section (3) of this section.

(e) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may subsequently be charged with, and tried for, dacoity on the same facts.

(f) A, B and C are charged by a magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts.

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About the Author

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Displaying 10 Comments
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  1. Naba Kishor Kunar says:

    I like this procedure.

  2. […] The Code of Criminal Procedure, 1973 (CrPc) 1st Page […]

  3. plz send new ammendment

  4. […] and the police officer by whom such report is made shall be deemed to be the complainant; The Code of Criminal Procedure 1973 (CrPc) Reply With […]

  5. Hakeem says:

    mr. author,

    crpc sections all contents are good & readable & understandable Easily. to defend in the court of law.

  6. Your Name... says:

    what is difference between 299crpc and 173(8) crpc

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  9. ajay says:

    in case of a crime done by his tenant and which the owner is not aware about it till now and suddenly it resurfaces after 8 years when cops come in search of the tenant, how owner will get affected?

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