Constitutional provisions

 

Preamble

We, the people of India, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC, and to secure to all its citizens:

 

Justice, Social, Economic, and Political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; And to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the nation;

 

In our constituent assembly, this twenty sixth day of November,1949 do hereby adopt, enact and give to ourselves this constitution.

 

Article 14

-The state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.

-Reasonable classification

 

Article15

-Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

-Discrimination on the grounds of caste, race, religion, sex or place of birth,

-Public places

-Special provisions in favour of women and children

-Special provisions in favour of backward classes

 

Article 16

-Equality of opportunity in matters of public employment.

-Equality of opportunity

-Exceptions

 

Article 21A

-Free and compulsory Education for children

 

Article 23

-Right against exploitation

 

Article 24

-Prohibition of employment of children in factories etc.

-Directive Principles of state policy: regarding women and children

 

Article 42

-Provisions for just and humane conditions of work and maternity relief.

 

Article 44

-Uniform civil code for citizens

 

Article 45

-Provisions for free and compulsory education for children

 

Article 51(e)

-Fundamental duty to respect women

 

Crime against women

1)    Offence Pre-birth elimination of females (female Foeticide)
Act/Section Preconception and pre natal diagnostic techniques act (PCPNDT) act, 1994

(disclosure of Sex of the Child)

Punishment Imprisonment extend to 3 years and Fine extend to 10000/-
Bail Non bailable
Cognizance Cognizable
Triable by Magistrate first class
Offence not listed under compoundable offence

 

2)    Offence Female Infanticide (Causing miscarriage)
Act/Section 1)    Section 313 of IPC – Causing miscarriage without women’s consent

2)    Section 314 of IPC – death caused by act done with intent to cause miscarriage

3)    Section 315 of IPC – Any act done with the intent to prevent the child being born alive or to cause it to die after birth

4)    Section 316 of IPC – causing death of quick unborn child by act amounting to culpable homicide

Punishment Imprisonment of either description extend to 10 years and Fine
Bail Non Bailable
Cognizance Cognizable
Triable by Court of session
Offence is not listed under compoundable offence

 

 

3)    Offence Kidnapping abducting or inducing women to compel her marriage ect
Act/Section 1)    Section 366 of IPC – Kidnapping abducting or inducing women to compel her marriage etc.

2)    Section 366 A of IPC –  Procuring of minor girl

3)    Section 366 B of IPC – Importation of girl from foreign country

Punishment Imprisonment of either description extend to 10 years and/or Fine
Bail Non bailable
Cognizance Cognizable
Triable by Court of Sessions
Offence is not listed under compoundable offence

 

 

4)    Offence Outraging women’s modesty
Act / Section 1)    Section 354 of IPC – Assault or criminal force with intent to outrage her modesty

2)    Section 354 B of IPC – Assault or use of criminal force with intent to disrobe

Punishment 1)    1 to 5 years + Fine

2)    3 to 7 years + Fine

Bail Non bailable
Cognizance Cognizable
Triable by Any Magistrate
Offence not listed under compoundable offence

 

 

Offence Outraging women’s modesty
Act / Section 1)    Section 354 A of IPC – Sexual Harassment

2)    Section 354 C of IPC – Voyeurism

3)    Section 354 D of IPC – Stalking

4)    Section 509 of IPC – Intending to insult modesty of women

Punishment 1)    Upto 3 years or Fine or both

2)    1 to 3 years + Fine

3)    Upto 3 years + Fine

4)    Simple imprisonment for 3 years + fine

Bail Bailable
Cognizance Cognizable
Triable by Any Magistrate
Offence not listed under compoundable offence

 

 

5)  Offence Kidnapping
Act / Section 1)    Section 359 of IPC – Kidnapping

2)    Section 360 of IPC – Kidnapping from India

3)    Section 361 of IPC – Kidnapping from lawful guardianship

4)    Section 363 of IPC – Punishment for kidnapping

Punishment 7 years + Fine
Bail Bailable
Cognizance Cognizable
Triable by Magistrate first class
Offence not listed under compoundable offence

 

6)  Offence Abduction
Act / Section 1)    Section 362 of IPC – Abduction

2)    Section 365 of IPC – Kidnapping or abducting with the intent secretly  and wrongfully to confine the person

3)    Section 368 of IPC – Wrongfully concealing or keeping in confinement, kidnapped or abducted person

4)    Section 369 of IPC – Kidnapping or abducting child under 10 years with intent to steal from its person

Punishment 7 years + Fine
Bail Non bailable
Cognizance Cognizable
Triable by Magistrate first class
Offences not listed under compoundable offences

 

 

7)  Offence Kidnapping
Act / Section 1)    Section 364 of IPC – Kidnapping or Abduction in order to murder

2)    Section 367 of IPC – Kidnapping or abducting in order to subject person to grievous hurt slavery etc.

Punishment Imprisonment for life or rigorous imprisonment for 10 years + Fine
Bail Non bailable
Cognizance Cognizable
Triable by Court of Session
Offence not listed under compoundable offence

 

 

8)  Offence Trafficking
Act / Section 1)    Section 370 of IPC – Trafficking of persons

2)    Section 370 A of IPC – Exploitation of a trafficked person

3)    Section 372 of IPC – Selling minor for purposes of prostitution etc.

4)    Section 373 of IPC – Selling minor for purposes of prostitution etc.

Punishment 1)    7 years to Imprisonment for natural life +Fine

2)    3 years to 7 years + Fine

3)    10 years + Fine

4)    10 years + Fine

Bail Non bailable
Cognizance Cognizable
Triable by Court of Session
Offence not listed under compoundable offence

 

 

9)  Offence Rape
Act/Section 1)    Section 375 of IPC – Rape

Section 376 of IPC – Punishment for Rape

2)    Section 376 C of IPC – Sexual intercourse by person in authority

3)    Section 376 D of IPC – Gang Rape

4)    Section 376 AB of IPC – Punishment for rape on women under 12 years of age

5)    Section 376 DA of IPC – Punishment for gang rape on women under 16 years of age

6)    Section 376 DB of IPC – Punishment for gang rape on women under 12 years of age

Punishment 1)    Rigorous imprisonment for 10 years/20 years to Natural Life+fine

2)    Rigorous imprisonment for 5 to 10 years + fine

3)    Rigorous imprisonment for 20 years to Natural Life + fine

4)    Rigorous imprisonment for 20 years to Natural Life or death + fine

5)    Imprisonment for Natural Life + fine

6)    Imprisonment for Natural Life + fine

Bail Non bailable
Cognizance Cognizable
Triable by Court of Session
Offence not listed under compoundable offence

 

 

 

 

10)  Offence Acid Attack
Act/Section 1)    Section 326 A of IPC –Voluntarily causing grievous hurt by use of Acid, etc.

2)    Section 326 B of IPC – Voluntarily throwing or attempting to throw Acid, etc.

Punishment 1)    10 years + fine

2)    5 to 7 years + fine

Bail Non bailable
Cognizance Cognizable
Triable by Court of sessions
Offence not listed under compoundable offence

 

 

11)  Offence Cruelty
Act/Section Section 498A of IPC – husband or relative of husband of a women subjecting her to cruelty
Punishment 3 years + fine
Bail Non bailable
Cognizance Non Cognizable
Triable by Magistrate first class
Offence not listed under compoundable offence

 

 

12)  Offence Death / Dowry death
Act/Section 1)    Section 302 – Murder

2)    Section 304B – Dowry death

Punishment 1)    Death or Imprisonment for life + fine

2)    7 years to life imprisonment

Bail Non bailable
Cognizance Cognizable
Triable by Magistrate first class
Offence not listed under compoundable offence

 

 

13) Offence Child sexual Abuse
Act/Section Protection of Children from sexual offences, 2012
Punishment 1 year to 20 years + fine
Bail Non bailable
Cognizance Cognizable
Triable by Court of sessions
Offence not listed under compoundable offence

 

 

14)  Offence Child marriage
Act/Section The Prohibition of child marriage act, 2006
Punishment Rigorous imprisonment 2 years + fineupto 100000/-
Bail Non bailable
Cognizance Cognizable
Triable by District court
Offence not listed under compoundable offence
 

 

15)  Offence Prostitution (Adult and Child)
Act/Section The immoral traffic (prevention) act, 1956
Punishment 1 year to 10 year + fine
Bail Non bailable
Cognizance Cognizable
Triable by Any Magistrate
Offence not listed under compoundable offence

 

 

16)  Offence Sexual Harassment
Act/Section Sexual harassment of women at work placeact, 2013
Punishment Same as IPC ( upto 3 years + Fine)
Bail Bailable
Cognizance Non cognizable
Triable by Magistrate first class
Offence not listed under compoundable offence

 

 

17)  Offence Domestic violence
Act/Section Protection of women from domestic violence act, 2005
Punishment Upto 1 year + fine upto 20000/-
Bail Non bailable
Cognizance Cognizable
Triable by Magistrate first class
Offence not listed under compoundable offence

 

 

18)  Offence Dowry
Act/Section The dowry prohibition act, 1961
Punishment 5 years + fine 15000/-
Bail Non bailable
Cognizance Cognizable
Triable by Magistrate first class
Offence not listed under compoundable offence

 

 

19)  Offence Sati
Act/Section The Commission of Sati (prevention) act, 1987
Punishment 7 years or Imprisonment of life or fine
Bail Non bailable
Cognizance Cognizable
Triable by Special Court constituted under this act / District Magistrate
Offence not listed under compoundable offence

 

 

20)  Offence Abuse of elderly
Act/Section Section 125 or CRPC (maintenance)
Punishment to provide monthly allowances
Bail Bailable
Cognizance Non cognizable
Triable by Magistrate first class
Offence not listed under compoundable offence

 

 

21)  Offence Indecent representation of women
Act/Section The Indecent representation of Women (prohibition) act, 1986
Punishment Upto 2 years / 5 years + upto 2000/- fine
Bail Bailable
Cognizance Cognizable
Triable by Any Magistrate
Offence not listed under compoundable offence

 

 

22)  Offence Maternity benefit
Act/Section Maternity benefit act, 1961
Punishment 3 months and/or 500/-
Bail Bailable
Cognizance Non Cognizable
Triable by Magistrate first class
Offence not listed under compoundable offence

 

23)  Offence Equal remuneration
Act/Section Equal remuneration act, 1976
Punishment Imprisonment for 1 month or 10000/-
Bail Bailable
Cognizance Non Cognizable
Triable by Magistrate first class
Offence not listed under compoundable offence

 

24)  Section 113A in The Indian Evidence Act, 1872

Sec-113A. Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.1[113A. Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.” Explanation.—For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).]

 

25)  Section 113B in The Indian Evidence Act, 1872

Sec-113B. Presumption as to dowry death.—When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.—for the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]

 

 

Bailable and Non – Bailable offences [Section. 2(a)] – as per CrPC

 

A bailable offence is an offence which is shown as bailable in the First schedule of the code, or which is made bailable by any other law for the time being in force.

 

A non bailable offence means any other offence.

 

The word bail means release of a person from legal custody. Thus, when a person is granted bail, he is released from restraint. It may be noted that in the case of a bailable offence, bail can be claimed as a matter of right [S. 436(1)]

 

 

Anticipatory Bail – [Section. 438] – as per CrPC

 

  1. 438 of the code contains a new provision enabling superior courts to direct the release of a person on bail prior to his arrest which is commonly known as Anticipatory Bail.

S 438 A lays down that if any person has reason to believe he may be arrested on an accusation of having committed a non-bailable offence, he may apply to High court or to Sessions court for a direction that, in the event of such arrest, he is to be released on bail. The court may, after considering the factors, either reject the application forthwith or issue an interim order for grant of anticipatory bail.

 

 

Cognizable and Non – Cognizable offence [Section. 2(c) & 2(1)] – as per CrPC

 

S.2(c) Cognizable offence” means an offence for which, and” cognizable case” means a case in which, a police officer may, inaccordance with the First Schedule or under any other law for the time being in force, arrest without warrant.

Cognizable offence means an offence for which a Police Officer may (in accordance with schedule I of the code or under any law for the time being in force) arrest without a warrant.

 

S.2(1) 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

A Non-Cognizable offence is one where a police officer has no such authority to ‘arrest without a warrant’.

Non-cognizable offences are thus more trivial and less serious than cognizable ones.

In the former, the police will not interfere or arrest the offender without a warrant; in thr latter, the police is authorised to arrest without a warrant, as the offender might escape by the time Police obtained a warrant.

 

 

 

First Information Report (F.I.R.) [Section. 154] – as per CrPC

 

  1. 154 deals with what is commonly known as a First Information Report (F.I.R.). it provides that every information relating to the commission of a Cognizable offence , if given orally to an officer in charge of a police station, must be reduced in writing by him, and read over to the informant. The information should also be signed by the person giving it and the substance thereof must be entered in the book which is to be kept[t by such Officer in the prescribed form. A copy of the information recorded, as above, is also to be given free of cost to the informant.

The condition that such information must be signed by the person giving it, is merely a procedural matter, and the failure to this does not make the information inadmissible.

If the officer in charge refuses to record such information, the aggrieved person may send the same by post to the Superintendent of Police.

Even a telephonic message can be treated as an FIR.

It will be seen that S. 154 enables a station house officer to receive and record the information of the commission of a cognizable offence even outside his station limit, although he may have no power to investigate under s. 157 to conduct an investigation in respect of that offence.

The 2013 amendment now provides that if information is given by the women against whom certain specified offences under the IPC are alleged to have been committed or attempted, thrn the information is to be recorded by a woman police officer or nay woman officer.

The term FIR is thus a technical description of the report made out under S. 154 giving first information of a cognizable crime to the police. This report is usually made by the complainant or some other persons on his behalf.

The following four points may be noted about a first information report:

  1. It should be information of fact disclosing the commission os a cognizable offence.
  2. It should not be vague or indefinite
  • It may be given by anybody
  1. It is not necessary that the offender ot the witness should be named

Punishment for giving false information to the police is dealt with by sections 182, 203, and 211 of the IPC. Even is such information is not reduced to writing under S.154, the person giving the false information may nevertheless be punished for preferring a false charge under S.211 of the IPC.

A police officer refusing to enter in the Dairy a report made to him about the commission of an offence, and instead making an entry which is totally different from the information given, would be guilty under S.177 of IPC.

 

How to Register an FIR?

  • Visiting the nearest police station within the crime scene (preferably).
  • Informing either orally or in writing. In case a verbal complaint is made, it is the duty of the authority recording the FIR to convert it into writing.
  • First Information Report should be signed by the person giving the complaint.
  • It is the duty of the police authorities to register the FIR in a record book.
  • It is the duty of the police officer to provide the complainant with a free copy of FIR.

Procedure after FIR is lodged

 

  • If the area where the incident occurred is within the reach (jurisdiction of the police station) then, the police authority possesses all the power to investigate.
  • The police officer himself assesses whether the complaint is worth entertaining or not. E.g. where there is an FIR of theft of Rs.50 then the police might not forward with the complaint.
  • If convinced with the findings of First Information Report, police forward a report to the magistrate and ask him to take cognizance of the offense.
  • Further, magistrate orders an investigation on the basis of First Information Report.
  • A police officer might require the attendance of any person being within the local area of such police station.
  • During enquiry of an FIR and its investigation, no statement made by any person to a police officer in the course of an investigation shall be signed by the person making it.
  • After taking the final report, if the magistrate is satisfied with the report and findings of the investigation on the basis of First Information Report, court summons is issued.

 

 

Non-Cognizable (N.C.) offences – [Section. 2(1)] – as per CrPC

 

S.2(1) 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

 

  • Police can register a case, but need the permission of the court to investigate.
  • Police will record your complaint in brief
  • Request the police to read the N.C. complaint over to you.
  • Police should give you the N.C. case number in writing.
  • Police cannot arrest the accused without a warrant.
  • g.: causing hurt, criminal intimidation.

 

NC means a non-cognizable crime. Like, Abuse, simple threats, slapping, causing petty damage to property, etc. are called NC Complaint. Legally speaking, the Police have no powers to investigate such NC complaints. Such complaints are recorded in the Register called NC Registers at the Police Station. The Complainant is given copy of the NC complaint in a printed format. The Complainant is advised, if he so desires, to approach a court of law for action on his complaint. Even if the Complainant does not approach a Court, his complaint on Police record will be useful as a piece of evidence depending upon the nature of the complaint.

 

 

Compounding of offences [Section. 320] – as per CrPC

 

  1. 320 of the CrPC contains certain important provisions as regards compounding of offences.

Compoundable offences are those offences where, the complainant (one who has filed the case, i.e. the victim), enter into a compromise, and agrees to have the charges dropped against the accused. However, such a compromise should be a “Bonafide,” and not for any consideration to which the complainant is not entitled to. The offences specified in Table A can be compounded by the person mentioned in the 3rd column thereof without the permission of the court. However, the offences mentioned in Table B can be compounded only with the permission of the court before which such any prosecution for such offence is pending. It follows that the all other offences cannot be compounded.

 The compounding of an offence signifies that the person against whom the offence has been committed has received some gratification, though not necessarily of a pecuniary nature, to act as an inducement to his abstaining from prosecuting the wrong doer.

It may be noted that a case can be compounded at any time before the sentence is pronounced.

 

In Non-compoundable offense, no compromise is allowed. Even the court does not have the authority and power to compound such offense. Full trail is held which ends with the acquittal or conviction of the offender, based on the evidence given.

 

 

TABLE A

 

Offences which can be Compounded without the permission of the court.

 

Section of IPC Type of Offence Person by whom offence may be compounded
298 IPC Uttering words, etc., with deliberate Intent to wound the religious feelings of any person. The person whose religious feelings are intended to be wounded.
323 IPC Causing hurt. The person to whom the hurt is caused.
334 IPC Voluntarily causing hurt on provocation.  The person to whom the hurt is caused.
335 IPC Voluntarily causing grievous hurt on grave and sudden provocation. The person to whom the hurt is caused
341, 342, 343, 344, 346 IPC Wrongfully restraining or confining any person. The person restrained or confined.
352, 355, 358 IPC Assault or use of criminal force. The person assaulted or to whom criminal force is used.
379 IPC Theft The owner of the property stolen.
403 IPC Dishonest misappropriation of property. The owner of the property misappropriated.
407 IPC Criminal breach of trust by a carrier, wharfinger, etc. The owner of the property in respect of which the breach of trust has been committed.
411 IPC Dishonestly receiving stolen property knowing it to be stolen. The owner of the property stolen.
414 IPC Assisting in the concealment or disposal of stolen property, knowing it to be stolen. The owner of the property stolen.
417 IPC Cheating The person cheated.
419 IPC Cheating by personation The person cheated.
421 IPC Fraudulent removal or concealment of property, etc., to prevent distribution among creditors. The creditors who are affected thereby.
422 IPC Fraudulently preventing from being made available for his creditors, a debt or demand due to offender. The creditors who are affected thereby.
423 of IPC Fraudulently execution of deed of transfer containing false statement of consideration. The person affected thereby.

 

424 of IPC Fraudulent removal or concealment of property. The person affected thereby.

 

426, 427 IPC Mischief, when the only loss or damage caused is loss or damage to a private person. The person to whom the loss or damage is caused.
428 of IPC Mischief by killing or maiming animal. The owner of the animal.
429 of IPC Mischief by killing or maiming Cattle, etc. The owner of the cattle.
430 of IPC Mischief by injury to works of irrigation by wrongfully diverting water when the only loss or damage caused is loss or damage to private person. The person to whom loss or damage is caused.
447 IPC Criminal trespass. The person in possession of the property trespassed upon.
448 IPC House trespass. The person in possession of the property trespassed upon.
451 IPC House trespass to commit an offence (other than theft) punishable with imprisonment. The person in possession of house trespassed upon.
482 IPC Using false trade or property mark. The person to whom loss or injury is caused by such use.
483 IPC Counterfeiting a trade or property mark. The person to whom loss or injury is caused by such use.
486 IPC Knowingly selling or exposing or possessing for sale or for manufacturing purpose, goods marked with a counterfeit property mark. The person to whom loss or injury is caused by such use.
491 IPC Criminal breach of contract of service. The person with whom the offender has contracted.
497 IPC Adultery. The husband of the woman.
498 IPC Enticing or taking away or detaining with criminal intent of a married woman. The husband of the woman.
500 IPC Defamation. except such eases as are specified against section 500 of the Indian Penal Code (45 of 1860) in column I of the Table under sub-section (2) The person defamed.
501 IPC Printing or engraving matter, knowing it to be defamatory. The person defamed.
502 IPC Sale of printed or engraved substance containing defamatory matter, knowing it to contain such matter. The person defamed.
504 IPC Insult intended to provoke a breach of the peace. The person insulted.
506 IPC Criminal intimidation except when the offence is punishable with Imprisonment for seven years. The person intimidated.
508 IPC Act caused by making a person believe that he will be an object of divine displeasure. The person against whom the offence was committed.

 

 

 

 

 

 

 

 

 

TABLE B

 

Offences which can be Compounded only with the permission of the court.

 

Section of IPC Type of Offence Person by whom offence may be compounded
312 IPC Causing miscarriage. The women to whom the miscarriage is caused.
325 IPC Voluntarily causing grievous hurt. The person to whom hurt is caused.
337 IPC Causing hurt by doing an act so rashly and negligently as to safety of others. The person to whom hurt is caused.
338 IPC Causing hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others. The person to whom hurt is caused.
357 IPC Assault or criminal force in attempting wrongfully to confine a person. The person assaulted or to whom the force was used.
381 IPC Theft, by clerk or servant of property in possession of master. The owner of the property stolen.
406 IPC Criminal breach of trust The owner of property in respect of which breach of trust has been committed.
408 IPC Criminal breach of trust by a clerk or servant. The owner of property in respect of which breach of trust has been committed
418 IPC Cheating a person whose interest the offender was bound, either by law or by legal contract, to protect. The person cheated.
420 IPC Cheating dishonestly inducing delivery or property or thee making, alteration or destruction of a valuable security. The person cheated.
494 IPC Marrying again during the lifetime of husband or wife. The husband or wife of the person so marrying.
500 IPC Defamation against the president or vice president or governor of state or administrator of union territory or a minister in respect of his public functions when instituted upon a complaint made by the public prosecutor. The person defamed.
509 IPC Uttering words or sounds or making gestures or exhibiting any object intending to insult the modesty of a woman or intruding upon the privacy of a woman. The woman whom it was intended to insult or whose privacy was intruded upon.

 

 

 

Trial before a Court of Session

 

In every trail before a court of sessions, the prosecution shall be conducted by a public prosecutor.

  1. Cases falling under S.209 (i.e. when the accused appears or is brought before the court)
  2. Cases falling under S.199(2) (i.e. when a court of sessions takes cognizance of an offence)

 

 

  1. A) Cases falling under [Section. 209] – as per CrPC

 

In all cases when the accused appears or is brought before the court in pursuance of the commitment of the case under S. 209, the prosecutor must open his case by describing the charge brought against the accused, and stating by what evidence he proposes to prove gilt of the accused.

 

After considering the record of the case and the document submitted therewith, and after hearing the submissions of the accused as well as of the prosecution, if the Judge considers that there is no sufficient ground for proceeding against the accused, he must discharge the accused and record his reasons for doing so.

 

If, on the other hand after considering the record and documents and after hearing the submissions, as stated above, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence –

  1. a) which is not exclusively triable by the court of sessions, – he may frame a charge against the accused and transfer the case for trail to CJM or any other JM of first class, who must then try the offence in accordance with the procedure.
  2. b) Which is exclusively triable by that court, – the Judge must frame a charge in writing against the accused. In such a case, the charge must be read and explained to the accused, and the accused must be asked whether he pleads guilty of the offence with which he is charged, or whether he claims to be tried.

 

  1. 229 then provides that if the accused pleads guilty, the Judge must record such a plea, and in his discretion, the Judge may convict him on such plea.

If the accused refuses to plead guilty or does not plead guilty, or claims to be tried, or is not convicted despite of pleading guilty, the Judge must fix a date for examination of witness. On an application of the prosecution, the Judge may also issue any process for compelling the attendance of any witness or the production of document or other thing.

 

On the date so fixed, the Judge must proceed to take all such evidence as may be produced in support of the prosecution. In his discretion, the Judge may also permit the cross examination of any witnesses to be postponed until any other witness or witnesses have been examined. After taking such evidence, examining the accused and hearing the prosecution and the defence on the point, if the Judge considers that there is no evidence that the accused committed the offence, the judge must record an order of acquittal.

 

If however, the accused is not acquitted as above, he is to be called upon to enter his defence and adduce any evidence which he may have in support thereof. If the accused submits any written statement, the Judge must file it with the record. Similarly, if the accused applies for the issue of any process for compelling the attendance of any witness, or the production of any process for compelling the attendance of any witness, or the production of any document or other thing, the Judge must issue such process, unless considers that such an application should be refused on the ground that it is made for the purpose of vexation or for delaying or defeating the ends of justice. In case of such refusal, the Judge must record his reasons for doing so.

 

When the examination of the defence witness is complete, the prosecutor sums up his case, and the accused or his pleader is entitled to give a reply thereto, if any point of law is raised by the accused or his pleader in such reply with the permission of the Judge, the prosecution can make his submissions with regard to such point of law.

S.235 then provides that, after hearing the arguments and points of law, the Judge must give a judgment in the case. The present code provides thatif the accused is convicted, the Judge must then hear the accused on the question of the sentence to be passed against him, and only thereafter can he pass a sentence against him according to the law.

 

 

  1. B) Cases falling under [Section. 199(2)] – as per CrPC

 

  1. 237 of the code provides that is a court of sessions takes the cognizance of an offence under S. 199(2), it must try the case in accordance with the
    1. Procedure for trial of Warrant Cases institutedotherwise than on a Police Report
    2. Procedure for the trial of Warrant Cases instituted before a Magistrate’s court (on Police Report)

 

 

Trial of Warrant Cases by Magistrate

 

  1. i) Cases instituted otherwise than on a police report [Section. 244 – Section. 250]

 

S.244 provides that if in any warrant-case instituted otherwise than on a Police report, the accused appears or is brought before the Magistrate, the Magistrate must immediately proceed to hear the prosecution, and take all such evidence as may be produced in support of the prosecution, and take all such evidence as may be produced in support of the prosecution. On the application of the prosecution, the Magistrate may also issue a summons to any witness, directing him to attend, or to produce any document or other thing.

 

If after taking all such evidences, the Magistrate considers, for reasons to be recorded by him, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate must discharge him. Moreover, the Magistrate can also discharge the accused at any previous stage of the case, if he considers the charge to be groundless, for reasons to be recorded by him.

 

If, on the other hand, the Magistrate is of theopinion that there is some ground for presuming that t5he accused has committed an offence which is triable, and which the Magistrate is competent to try, and which, in his opinion, can be adequately punished by him, he must frame a charge in writing against the accused. The charge is then to be read out and explained to the accused and he is to be asked whether he pleads guilty or whether he has any defence to make.

 

If the accused pleads guilty, the Magistrate must record the plea and may in his discretion convict him on such plea.

If however the accused refuses to plead or does not plead, or claims to be tried, or if he is not convict despite pleading guilty, the accused must be required to state whether he wishes to cross-examine any witness for the prosecution whose evidence had already been taken. If he wishes to do so, the witness named by him must be recalled, and after cross examination and re-examination (if any), such a witness is to be discharged. After this the accused is to be called upon to enter upon his defence and produce his evidence.

 

  1. 248 provides that, of in any case, the Magistrate finds that the accused is not guilty, he must record an order of acquittal. If, however, the Magistrate finds that the accused is guilty, he must after hearing the accused on the question of the quantum of sentence to be imposed on him, pass a sentence on him according to law. This need not be done where the Magistrate submits the entire proceedings to the Chief Judicial Magistrate (CJM), on the ground that he is of the opinion that he cannot pass a sentence which is sufficiently severe in the circumstances. Likewise, this requirement need not be complied with when after conviction the Magistrate orders the accused to be released on probation or after admonition.

 

  1. ii) Cases instituted on a police report [(Section. 238 – 243),(Section. 248 – 250)]

 

  1. 238 provides that if, in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate, at the commencement of the trail, the Magistrate must satisfy himself that he has complied with the provisions of S.207 (which deals with furnishing to the accused, free of cost the FIR, Police report, confessions and other documents mentioned in S.207).

 

If after considering the Police Report and other documents, and after examining the accused, and after giving the prosecution and the accused an opportunity of being heard in the matter, the Magistrate considers that the charge preferred against the accused is groundless, he must discharge him and record his reasons for doing so.

 

If on the other hand, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence which can be tried, and which the Magistrate is competent to try, and which in his opinion, can be adequately punished by him, he must frame a charge in writing against the accused. This charge is be then read and explained to the accused, and he must be asked whether he pleads guilty of the offence which he is charged with, or whether he claims to be tried.

 

If the accused pleads guilty, the Magistrate must record such a plea, and in his discretion, the Magistrate may convict him on such plea.

If the accused refuses to plead guilty or does not plead guilty, or claims to be tried, or is not convicted despite of pleading guilty, the Magistrate must fix a date for examination of witness. The Magistrate must also supply in advance to the accused, the statement of witnesses recorded by the police during investigation. On the application of the prosecution, the Magistrate may issue summons to any of the prosecution witnesses, directing such persons to attend, or to produce any document or other thing on the date so fixed. The Magistrate must then proceed to take all such evidence as may be produced in support of the prosecution. The Magistrate may also permit the cross examination of any witness to be postponed until other witness or witnesses have been examined.

 

The next step is that the accused must be called upon to enter his defence and produce his evidence. If the accused submits any written statement, the Magistrate must file it with the record. If after entering his defence, the accused applies to the magistrate to issue the process for compelling the attendance of any witnesses for the purpose of examination or cross examination, or for the production of any document or other thing, the Magistrate must issue such process, unless he feels that such an application should be refused on the ground that it is made for the purpose if vexation, or for delaying or defeating the ends of justice. Before summoning any witnesses as aforesaid, the Magistrate may also require that the reasonable expenses incurred by the witness for attending the trial should be deposited in the court.

 

  1. 248 provides that, of in any case, the Magistrate finds that the accused is not guilty, he must record an order of acquittal. If, however, the Magistrate finds that the accused is guilty, he must after hearing the accused on the question of the quantum of sentence to be imposed on him, pass a sentence on him according to law. This need not be done where the Magistrate submits the entire proceedings to the Chief Judicial Magistrate (CJM), on the ground that he is of the opinion that he cannot pass a sentence which is sufficiently severe in the circumstances. Likewise, this requirement need not be complied with when after conviction the Magistrate orders the accused to be released on probation or after admonition.

 

 

Trial of Summons Cases by Magistrate [Section. 251 – Section. 255]

 

  1. 251 of the code provides that when, in a summons-case, the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused must be supplied to him, and he must be asked whether he pleads guilty, or has any defence to make. However in such cases, it is not necessary to frame a formal charge against the accused. Nonetheless, the provisions of the code relating to joinder to charges and joint trials would apply to the trial of summons case.

 

If the accused pleads guilty, the Magistrate must record his plea as nearly as possible in the words used by the accused himself, and may, in his discretion, convict him on such a plea. Thus, even is an accused pleads guilty, the Magistrate is not bound to convict him, if he thinks it necessary to have evidence of his guilt.

 

Is summons has been issued under S. 206(petty offences) and the accused desires to plead guilty to the charge without appearing before Magistrate, he must transmit to the Magistrate, by post or messenger, a letter containing his plea and also the amount of fine specified in the summons.

 

On receiving a plea of guilty from the accused, the Magistrate may, in his discretion, convict the accused is his absence, and sentence him to pay the fine specified in the summons. Where a pleader authorised by the accused pleads guilty on behalf of the accused, the Magistrate must record the plea as early as possible in the words of the pleader, and may, in his discretion, convict the accused on such a plea, and sentence him as stated above.

 

If, however, the Magistrate does not convict the accused as above, he must proceed to hear the prosecution, and take all such evidence as may be produced in support of the prosecution and also hear the accused and take all such evidence as may be produced by him in his defence.

On an application by the prosecution or the accused, the Magistrate may, is he thinks fit, issue summons to any witness, directing him to attend or to produce any document or other thing. Before summoning any such witness, the Magistrate may require that the reasonable expenses of such witness in attending the trial; be deposited in the court.

After taking all the evidence, if the Magistrate finds that accused is not guilty, he must record an order of acquittal.

 

Is on the other hand he finds the accused guilty, he must pass a sentence on him according to the law, unless Magistrate submits entire proceedings to the CJM on the ground that he cannot pass a sentence which is sufficiently severe in the circumstances, or if after conviction, the Magistrate orders the accused to be released on probation after admonition.

It is also specifically provided that a Magistrate may convict the accused of any offence which can be tried , which from the factsadmitted or proved, he appears to have committed, whatever may be the nature of the complaint or summons, if he is satisfied that the accused would not be prejudiced thereby. (S.255).

By Dhruvi Johari

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