C 763

UNIT 4: Preparation for filling of Criminal Cases
Structure:
4.1. Introduction
4.2. Initiating Investigation
4.3. Investigation
4.4. Proceedings before the Court
4.5. Terminal Questions
4.6. Answer and Hints
4.7. List of References
4.1. Introduction
The Criminal trial is a time tested process created to punish the offender, as well as to give an
opportunity to the innocent to defend himself. The major legislation governing the criminal trial in India
is the Criminal Procedure Code, 1973 (Cr.P.C) along with the Indian Evidence Act, 1872. These
legislations give effect to the substantive rights provided under various substantive laws.
The Criminal Procedure Code can be studied under different headings. It covers every stage of the
criminal trial; from the stage of investigation, up to the stage of conviction, as well as the further
redressal in the form of appeal or revision.
This chapter is designed to make you understand all the stages of a criminal justice process, and their
importance. Before we enter into the discussion on the criminal trial, there is a need is to understand
the kinds of offences. They are mainly of two kinds; Cognizable and Noncognizable offences.
Cognizable and Non-cognizable Offences: The Criminal Procedure Code itself does not explain the
distinction between these two kinds of offences. But the Code has divided all the offences under Indian
Penal Code and offences under other laws into these two categories under Part I and II in Schedule I
respectively. This distinction decides the extent of power of intervention and investigation by the police.
In the case of cognizable offence, the police can
arrest the accused without warrant and also initiate the investigation immediately. However, in case of
non-cognizable offence, the police get the power to investigate and arrest the accused, only after they
obtain permission from the Court.
The general observation of this categorization reveals that the serious offences are put under the class
of cognizable offences. The seriousness of the offence depends upon the volume of punishment.
Therefore, by and large, the offences with more than 3 years punishment fall in the class of cognizable
offences. However, this categorization has exceptions i.e Even though the punishment prescribed is
more than 3 years, still they are considered as non-cognizable offences. Some of them are --
a) Bigamy: The reason being that, by nature these offences are private wrongs and making them
cognizable would lead to too much of intervention of police in the private life of individuals. and
b) Forgery: In case of determination of forgery, expert knowledge is necessary. A police officer therefore
cannot be trusted to decide the question correctly and so he is not expected to move in the matter by
himself.
4.2. Initiating Investigation
Crime is a social menace and it is not only the duty of the State, but also of the society to eradicate or at
least control the crime. To ensure quick action on the part of the police, it is necessary that they get
information about the offences. The wheels of criminal justice process are set in motion only when the
concerned authorities get the information of an offence. Such information is given in form of a
‘Complaint’ or ‘First Information Report’ (FIR).
4.2.1. Information to Police Officer
Under the Criminal Procedure Code, it is the bounden duty of the public to inform the police about the
commission of crime. In some cases like, Sec 121 to 126 (Offences against State), Sec 142 to 148
(Offences relating to public tranquillity), Sec 161 to 165-A (Offences relating to illegal gratification), etc.
the Code imposes a duty on public to even give information about intention of committing crime, in case
they have knowledge about it. It is the duty of every citizen to inform the police about the incident after
the commission of offence or even on basis of suspicion.
4.2.2. First Information Report (FIR)
The information of an offence can be communicated to three different authorities. Firstly Local police
station is the most suitable and appropriate authority as it is situated in the locality. Secondly, in case
the information is not taken down by the local police station, it can be posted to the local
Superintendent of Police. If cognizable offence could be made out from the facts narrated in the
complaint, the Superintendent of Police can investigate in to the matter or direct the subordinate officer
to investigate.
Any information received by the police, has to be reduced into writing by the officer in charge. The same
has to be read over to the informant and his signature has to be obtained. A copy of it has to be given to
the informant, free of cost. Once the information is received by the police in the form of a complaint,
they have to take action by initiating investigation.
First Information Report contains information about occurrence of Cognizable offence. Once the officer
in charge obtains the information relating to non-cognizable offence, he has to communicate the same
to the Magistrate who is empowered to take cognizance of it. Copy of such information has to be kept
by the Magistrate, which becomes a Court document.
Evidentiary value of FIR
This FIR is used to keep track of the investigation. During trial this document can be used to corroborate
or contradict the evidence given by other witnesses. It is the first document relating to the case, and
therefore any lacuna in it, may lead to ineffective trial. It is therefore the foundation on which the case
stands.
Delay in FIR may lead to the weakening of the case. The Code demands the sending of the information
to the Magistrate ‘forthwith’. This shows that long and unexplained delay in filing FIR may create a
doubt or raise suspicion , in such cases there is likelihood of consultation, deliberations, and even false
implications. This is the initial learning of information given to the police. The Code also answers the
complications that may arise in case of refusal by the police to receive the complaint.
4.2.3. Complaint to Magistrate
The third important authority, to whom complaint can be made, is the Judiciary. The Magistrate First
Class, Magistrate Second Class as well as Chief Judicial Magistrate are authorised to receive the
complaint regarding any offence committed within their jurisdiction. However, Sessions Judge is not
authorised to receive the complaint under ordinary circumstances.
4.3. Investigation
The crucial role of the police in crime investigation begins with the information or order of the court.
The police have to investigate and ascertain the possible accused of the crime and bring him to the
Court of justice The power to investigate(jurisdiction) a crime depends on two important aspects; firstly,
on the nature of the offence, and secondly, the place of commission of the offence. As mentioned
above, the right to investigate depends upon whether the offence is cognizable or non-cognizable.
4.3.1. Proceeding to the spot
In case of cognisable offence, the police can immediately proceed to the spot and commence the
investigation. However, in case of a non cognizable offence, the police need to first obtain permission
from the Magistrate by sending the report of the information to the Magistrate. On receipt of the
report, the Magistrate may direct police investigation or he may prefer to conduct preliminary enquiry
before directing the police. The right to investigate also depends upon the place of commission of crime.
If the crime is beyond territorial jurisdiction of the police station, the police cannot investigate the same.
In addition to the above, the police enjoy the power to refuse to investigate. If the complaint is found to
be relating to a person named in the complaint and the offence is not of a serious nature. They may also
refuse to investigate in cases where there are no sufficient grounds for the same.
4.3.2. Arrest
Self Assessment Question 1 Spend 2 minutes

1) What is a non-cognizable offence
2) Before which authority can a complaint can be filed?
3) What is an FIR?
If the police investigation reveals the involvement of a person in the alleged offence, the arrest can be
affected. Arrest of a person and depriving him of his personal liberty is an extreme kind of action
relating to crime investigation. This may involve the violation of various fundamental rights. Crime
investigation is a process where, there is a conflict between the society’s need for ensuring justice on
one hand, and the right of individuals not to be harassed by way of suspension of their fundamental
rights like right to liberty on the other hand. The required balance could be achieved only if the police is
sufficiently clasped through procedural safeguards.
Purpose of arrest
• If the police is under the belief that such person has committed the offence
• To prevent commission of further offence
• Proper investigation of the offence
• To prevent tampering or disappearance of evidences
• To prevent making of inducement or threat to the witnesses
• To ensure regular attendance before the Court
Before making such arrest the police officer shall record any of these reasons in writing. The Criminal
Procedure Code has laid down various restrictions on the power of the police to arrest. As a part of the
safeguard, the Cr.P.C. divides arrest to two kinds; arrest with warrant, and arrest without warrant.
Arrest with warrant
Warrant is not defined under Cr.P.C. However, the simple meaning of warrant can be ‘an order of the
Court’. Therefore, it is understood that arresting a person and depriving his freedom of movement can
be done only on the basis of the order of the Court in case of noncognizable offence. In cases of all non-
cognizable offences the police officer requires a warrant to carry out the arrest. However, this
procedural requirement can be avoided in special circumstances.
Arrest without warrant
Warrant is an inbuilt safeguard against the violation of fundamental rights. However, warrant cannot be
insisted upon at all times. If warrant is made compulsory before any kind of arrest is made, it may lead
to unnecessary procedural delay and injustice. It may also afford an opportunity to the alleged offender
to escape from the jurisdiction while the police are busy in complying with the procedural requirements.
Following are the exceptions where the arrest could be made without warrant:
• Where cognizable offence is committed in the presence of the police officer
• Where a reasonable complaint, or credible information or reasonable suspicion exists as to

commission of cognizable offence against a person.
• Where accused makes an application for anticipatory bail and narrates the nature of the offence in the
application. If the application is rejected, the arrest can be made without warrant on the basis of the
application made before the Court.
• In case of a proclaimed offender
• Where a person is found with stolen property and reasonably suspected to have committed such
offence.
• Where a person obstructs a police officer from performing his duty
• Person who has escaped or attempts to escape from the lawful custody
• A suspected deserter from any of the armed forces
• A person who has committed an offence in any place outside India, which if committed in India would
have been punishable as an offence , for which he is under any law relating to extradition or otherwise
liable to be arrested in India .
• Where there is breach of rule (under sec 356(5)) by a convict
• Where there is an oral or written requisition from any other police officer
4.3.3. Investigation after arrest
The police conduct investigation by obtaining a search warrant, which may be for the search of
evidences or for the search of the person. The system of issuance of warrant brings in the need for
some amount of supervisory role of the Court. As per Sec. 57, no police officer is authorised to keep the
custody of such person beyond 24 hours. Therefore, after the arrest, the police are expected to
complete the investigation and produce the charge sheet before the Court, along with the accused
within 24 hours. Once the arrest is made by the police, they shall make the entry in the station diary,
and along with the accused the same has to be produced before the Judicial Magistrate within 24 hours.
Where investigation continues/ Remand Sometimes, the investigation is not completed within 24 hours,
and the accused therefore needs to be kept in custody. The law however does not permit such action by
the police. When the accused is produced before the Judicial Magistrate, along with taking note of the
arrest, he may put the accused under police custody if he finds it necessary for the purpose of
investigation. If the accused is a woman below the age of 18 years, the Judicial Magistrate is under a
duty to send such an accused to the remand home or other recognised social institutions.
Here the Code provides leniency. As far as the granting of police custody is concerned, the Judicial
Magistrate without jurisdiction can pass the order. In case he feels otherwise, then he has to forward
the accused to the appropriate Judicial Magistrate having jurisdiction. Further, same leniency is shown
in granting the custody for the first term. In case of non-availability of the Judicial Magistrate in the
locality, the accused can be produced before the local Executive Magistrate and the extension of the
arrest duration can be obtained.
In case of summons trial, the Judicial Magistrate can order the stoppage of investigation after the lapse
of six months.
Duration of arrest
Arresting an accused or authorising custody (Remand) is done by two authorities belonging to different
departments; the police, not below the rank of Sub-inspector, and a Judicial Magistrate. The police can
arrest and keep the accused under arrest for not more than 24 hours. This duration is extended to 90
days if the person is accused of offences punishable with death, imprisonment for life or for term not
less than 10 years, and 60 days in case of all other offences. After the expiry of the said period, where
charge sheet has still not been filed, the accused has to be released on bail. Such bail is also known as
compulsive bail.
Please answer the following Self Assessment Questions:
4.3.4. Bail
The object of arrest and detention of the accused person is primarily to secure his appearance at the
time of trial and to ensure that in case he is found guilty he is available to receive the sentence. But
these precautionary steps may affect the basic principle of the Criminal Law i.e. a person is presumed
innocent till proved guilty. Further, this step may turn out to be draconian on the part of the judiciary if
the trial is carried on for a long duration. So, in absence of determination of guilt, a person is made to
undergo psychological and physical torture in jail. Therefore during the trial, leaving an offender free,
may create hindrance in the form of tampering with evidences, threatening witnesses and also his
escape from the jurisdiction of the Court. But, at the same time, keeping him in jail would be against the
tenets of the Criminal Law.
To bring out a sort of via media, the law has created a legal fiction in the form of bail.
According to Black’s Law Dictionary, Bail means “to procure the release of a person from legal custody
by undertaking that he shall appear at the time and place designated and submit himself to the
jurisdiction and judgment of the Court”.
Bailable and Non-Bailable Offences
The Code has classified the offences as bailable and non bailable. Under section 2(a) of the Code, a
Schedule has been created which has enlisted some offences as bailable, and some as non-bailable.
Any person who is accused of a bailable offence and arrested by the police is entitled to bail after
furnishing required security and surety. If it is non bailable offence the bail is granted at the discretion of
the court. However, if the person released on bail fails to comply with the bail conditions, his bail can be
cancelled. This action would be in addition to the punishment in the form of penalty under sec. 446.
1. What is a warrant?
2. State any one exception to an arrest with warrant
The High Court and the Court of Sessions enjoy special powers under sec. 439. Under this section, the
Courts can modify the orders of the primary Court and grant, or refuse to grant bail.
Refusal to grant bail
As discussed above, the granting of bail shall be a rule, and refusal, an exception. Such refusal may be
necessary under the following circumstances;
ƒ A person accused of, or suspected of commission of non-bailable offence cannot be released on bail if,
• Such person is accused of an offence punishable with death or life imprisonment
• Such person is a previous convict of an offence punishable with death, life imprisonment or
imprisonment for seven years
• Such person is previously convicted on two or more occasions for a nonbailable and cognizable offence
Even though law takes serious view of the above, bail may still be granted in the above circumstances in
following cases;
• Where the accused is under the age of sixteen years, or is a woman, or sick or infirm.
• Previous convicts may be released on bail if no special circumstances exist to avoid grant of bail.
• A person under any case triable by a Magistrate, where the trial is not concluded within a period of
sixty days from the date fixed for taking of evidence.
• Where no reasonable grounds are found against the accused to prove his guilt, he may be released on
bail by putting certain conditions.
• Such person, where after the conclusion of trial before judgment, the Court can release on bail if Court
is of the opinion that no reasonable grounds exist so as to prove him guilty.
• After pronouncement of judgment where accused is found guilty, he may be asked to submit the bail
bonds and sureties to enable him to go in appeal against the judgment. Such bail enabling appeal shall
be in operation for six months.
Bail of an Indigent person

If the person is indigent then the Court shall release him on the basis of execution of personal bond and
shall not insist on furnishing of sureties. If the arrested person is unable to apply for
bail within a week of arrest, then he shall be presumed to be indigent, and bail shall be
granted without sureties.
Anticipatory Bail
If a person is under a reasonable apprehension that he may be accused of a non-bailable
offence and may be arrested, he may apply for an anticipatory bail in High Court or Court of
Sessions. Under sec. 438, the Court may issue an order that he may be released on bail as
soon as he is arrested.
The application for anticipatory bail has to be decided on basis of the following guidelines:
• Nature and gravity of the accusation.
• The previous conduct of the accused, whether he was convicted and has
undergone imprisonment in a cognizable offence.
• Possibility of the accused fleeing from justice, i.e, the accused is capable escaping
from the jurisdiction of the Court.
• Whether the accusations are made only to injure the reputation of the applicant or
to humiliate him by getting him arrested.
Anticipatory bail is granted in two stages. After the initial exparte hearing, an interim order is
passed for granting of anticipatory bail. As the hearing is conducted exparte, a copy of the
order is communicated to the Public Prosecutor and the Superintendent of Police with seven
days to prepare their objection at the time of final hearing.
Final hearing is the second stage. Here presence of the accused is compulsory. After hearing
the objections of the prosecution, the Court passes the final order.
4.3.5. Search & Seizure
The criminal trial is a judicial process established to prove or disprove the case presented
before the Court by the prosecution. In this process, the prosecution has to gather various
kinds of evidences documentary or oral. To enable the collection of the same, the police have
been entrusted with certain powers as to search and seizure.
Search and seizure can be made for different purposes, like tracing and seizing the stolen
property, or forged documents, or even search of persons who are wrongfully detained etc.
This can be done by issuing of search warrant by the District Magistrate or Sub-Divisional
Magistrate or Magistrate of First Class for searching any place which is reasonably suspected
to contain stolen property or forged documents. In case of searching for any publication
which has been prohibited by the order of the State, the State Government can issue search
and seizure warrant to the police to collect the objectionable material from any place.
Whenever a Court or a Police Officer is in need of any document for the purpose of trial, they
can issue summons to the person who is possessing or within whose power the document
exists. Through the summons, it may be communicated as to what kind of documents, and
where they need to be produced.
The Court may grant a search-warrant wherever the Court or the Police Officer is under the
apprehension,
• that summons of production of document will not be respected or
1) Who is an indigent person?
2) Where anticipatory bail can be applied?
• existence of document is known, but in whose possession it exists, is not known or
• for the purpose of investigation there is a need for a general search,
In addition to the above mentioned reasons, search warrant may be issued for the search of
the person wrongfully confined. Such orders can be issued by District Magistrate, SubDivisional
Magistrate or Magistrate First Class.

4.3.6. Examination of witnesses by Police
As mentioned above, the police in association with the prosecution, is the under the burden to
prove the case. To establish the case, the police need to examine witnesses. The Code
provides for the procedure for examination of witnesses.
Order of appearance
By order, the Police Officer may ask for attendance of the witness. Such an order cannot be
issued against any person below the age of fifteen years or to a woman. In those cases the
police have to visit the place where they reside and collect the evidence.
Examination of witnesses
The Police Officer may examine orally, any person supposed to be acquainted with the facts
and circumstances of the case. The witness is under the duty to disclose all the facts
truthfully. However, he may refuse to answer any questions asked, if they have the tendency
to expose him to a criminal charge or to a penalty or forfeiture. During examination, the
Police Officer may reduce into writing any statements made to him. This examination may
also be recorded through audio-visual electronic means.
The statements made during examinations can be used as evidence in the Court of Law only
if it has been signed by the person making such statement.
1) Who can give search orders?
2) What is the necessity for search and seizure.
4.3.7. Recording of confession by the Magistrate
During the course of investigation, the accused may be willing to confess about the crime
committed. The confessional statement is to be recorded very carefully as it goes against the
basic tenets of the Criminal Law which discourages self-incrimination. This is reflected in
Article 20(3) of the Constitution of India, which states that no accused can be made a witness
in his own cause. In addition to this, the reputation of the police has also taken a severe
beating due their continuous poor records on human rights front.
These drawbacks result into every confessional statement being viewed with suspicion. To
avoid prolongation of the trial to ascertain its veracity, the Code has provided with elaborate
procedure to record confessional statements.
As a matter of precaution the confessional statements can only be recorded by a Metropolitan
Magistrate or Judicial Magistrate. The confessional statements can be recorded before, during
or after commencement of the investigation, inquiry or trial. These precautionary proceedings
have gained more relevance due to advent of new technologies. Therefore, presently even the
confessional statements can be recorded in absence of Metropolitan Magistrate or Judicial
Magistrate if recording is done by audio-video electronic means and in presence of the
advocate of the accused. But under no circumstances, the police are authorised to take
confession, even if they hold any additional power of Magistrate conferred under any law.
Procedure of recording confession
Under the Code, the Magistrate’s work of recording the confession is not merely mechanical.
Before recording statement, the Magistrate has to satisfy himself about the voluntariness of
the statement. He should ask questions to ascertain the absence of any kind of undue
influence, or threat or fraud.
After ascertaining the absence of such influences, he has to explain to the accused that he is
not under compulsion to make a confession. He may avoid giving any kind of statement
which could be detrimental to his trial. Further, it is mandatory for the Magistrate to inform
the accused that any confessional statement recorded will be used against him during trial.
Only after fulfilling these requirements, the Magistrate may continue with the recording of
the statement. If the person appearing before the magistrate states that he is not willing to
make the confession, the magistrate shall not authorise the detention of such person in police
custody but kept in judicial custody.
4.3.8. Case diary
Case diary is a document to be maintained by the police. This dairy is a note in writing as to
the investigation. Presently, the case diary is required to be maintained in the narrative form.
It should also include the statements of the witnesses recorded during the course of
investigation. The case dairy has to include the date of arrest, and the details of the process of
investigation as well as completion of investigation.
The importance of the case diary lies in the usage of it during the trial or inquiry. This dairy
accounts for the investigation process, and can also be used to contradict the police officers
statement. However, the case dairy cannot be used as evidence. It cannot be called for
production by the accused or others. Only the Court is authorised to ask for it. However,
accused or his agent/counsel are entitled to call for the diary, if it is used by the police officer
for refreshing his memory, or if the Court uses the diary for the purpose of contradicting such
police officer.
4.3.9. Charge sheet
The Code demands the completion of the investigation without causing delay. Once the
investigation is complete, the officer in charge of investigation has to submit a report to the
Judicial Magistrate supervising such investigation. The content of the report is as follows;
1. The names of the parties
2. The nature of the information (FIR)
3. The names of the persons who appear to be acquainted with the circumstances of the
case ( witnesses)
4. Whether any offence appears to have been committed and, if so, by whom (accused)?
5. Whether the accused has been arrested?

1) Who is exempted from appearance for examination in police station?
2) Who is authorised to record a confession?
6. Whether the accused has been released on his bond, and if so, whether with or without
sureties (Bail)?
7. Whether he has been forwarded in custody?
8. In case of rape and other offences where the medical examination of the woman is
necessary, attachment of such a report
Along with this report to the Judicial Magistrate, the police officer has to send ‘Action taken
Report’ to the State Government in the prescribed form. The Action taken Report shall
contain information regarding the happening of the offence, action taken, if arrested who has
been arrested etc.
4.4. Proceedings before the Court
The charge sheet mentioned above has to be filed before the Court. Once it is filed, the Court
proceeds with the cognizance of offence and the trial.
4.4.1. Committal proceedings
The Judiciary follows hierarchical system. Under this arrangement some of the cases like
death or rape are not triable by the lower Courts. Such cases have to be sent only to Sessions
Court in the district.
However, the Code is designed in such a way that the police is not burdened by the
requirement of the Sessions Judge getting involved with the supervision of the investigation.
Therefore, the lowest judiciary supervises the investigation to some extent, and the Sessions
Court conducts the trial.
As two different authorities are involved in the investigation and the trial, the lower Court has
to discharge the duty of committal of the case to the Sessions Court.
1) What should be the contents of the case dairy?
2) What is a charge sheet?
Subject to bail proceedings the accused will be sent to the custody by the Judicial Magistrate
and documents relating to the case will be sent to the Sessions Court for trial.
4.4.2. Inquiry
In addition to the above duties the Executive Magistrate and Judicial Magistrate are expected
to get involved with the investigation under special circumstances. This process is called as
Inquiry.
Inquiry is an additional proceeding followed by the Magistrate other than the trial. Inquiry is
generally conducted by Executive Magistrate, or Judicial Magistrate under special
circumstances like lockup death, unnatural death etc. The main objective behind such inquiry
is to find out the law and order situation in the locality due such unnatural death. As the
Executive Magistrate is under the duty to maintain law and order situation in a town or a city,
it becomes the duty of the Police to inform the Magistrate and proceed to the place of
offence.
The process of questioning conducted by Magistrate is called as ‘inquiry’, and a similar
process followed by the police is termed as ‘investigation’. The reason for these different
nomenclatures is based on the objectives of the study of the situation.
All the proceedings before a Magistrate before framing of charge, which do not result in to
conviction or acquittal, can be termed as inquiry. Security proceedings undertaken with a
view to prevent breach of peace, proceedings for maintenance, etc, are inquiries. No case
goes to the Court of Session for trial without an order of commitment by a Magistrate.
Proceeding for determining whether such an order is warranted, is also inquiry.

Inquiry into unnatural death
Whenever a police officer receives information about suicide or killing by wild animal, or by
machinery, or accident, or death in suspicious circumstances, he has to inform about the same
to the nearest Executive Magistrate.
Executive Magistrate has to then proceed to the scene of the incident immediately and locate
two respectable inhabitants of the locality and make a note of the scene of the offence. He has
to inquire into the incident and draw up a report of the apparent cause of death, describing
such wounds, fractures, bruises and other marks of injury.
Such report of the Executive Magistrate has to be signed by the police officer and the two
respectable inhabitants who concur with the report, and it has to be sent to the District
Magistrate.
Similarly, the Magistrate shall hold an inquest and send the body for medical examination to
the nearest civil hospital, in case of
• Suicide by a woman within seven years of the marriage
• Death of a woman within seven years of the marriage under suspicious circumstances
• Death of a woman within seven years of the marriage where any relative of deceased
woman makes a request in this behalf
• When there is a doubt regarding cause of death.
Lock up death
Lock up death is another incident where the Magistrate is involved with the inquiry
proceedings. Here the inquiry can be conducted by the Judicial Magistrate or Executive
Magistrate. Such inquiry is conducted under following circumstances;
• Where any person dies or disappears while in custody of the police,
• Rape is alleged by a woman while in custody of the police
In both circumstances, in addition to the investigation by the police additional independent

inquiry should be conducted by the Judicial Magistrate or Executive Magistrate, and within
24 hours the body should be sent to Civil Hospital for medical examination.
4.4.3. Charge
Charge is the Court document drafted on the basis of charge sheet or complaint presented by
the police after hearing both parties. It is a precise formulation of specific accusation made
1) Who can conduct inquiry?
against a person who is entitle to know its content which mentions the nature of the offence
alleged to have been committed by him.
Contents
Charge has to be written in the language of the Court. Under the charge each offence has to
be numbered, and if the Code provides for a specific name, then it has to be named
accordingly.
A charge must contain each section which prescribes the punishment. Therefore, charge not
only mentions the name of the offence, but also mentions the punishment provisions given
under IPC, etc.
Charge is a multipurpose document. It not only restricts the area of arguments to the charged
sections, but also acts as a reasonable notice to the accused to prepare the case. Therefore, it
is necessary that each charge should contain the time, place and name of the person charged.
This will enable the accused to prepare his defence.
In the case of criminal breach of trust or dishonest misappropriation of money or property,
the dates between which the offence is committed and description of the property has to be
properly mentioned.
Sometimes the descriptions of the section, names of the offence, time and place of its
commission by itself, may not be sufficient to prepare the defence. Then the charge must
contain the manner in which the offence has been committed. Therefore, in case of theft;
name of the offence, place, time and descriptions of the articles is sufficient. However, in
case of cheating, it is necessary to describe the manner in which the offence was committed.
Errors in the drafting of the charges are not fatal until and unless it affects the accused.
Therefore, possession of counterfeit coins is a proper charge, and the omission of the word
‘fraudulently’ will not affect the accused adversely. However, in case of cheating, where the
accused and the victim had continuous transaction, if charge does not mention specifically
which transaction is in question, it will affect the accused adversely. Such a charge, can be
challenged and proceedings may be set aside.
Alteration of charge
The Court may alter the charges at any stage of the trial. It is within the power of the Court to
make changes suo moto (on its own), or based on the recommendations from the parties.
Under certain circumstances, each alteration entitles the accused to have time to prepare for
the case. However, such a right as to time, is at the discretion of the Court. Court may even
decide to continue with the case without any delay.
With each alteration a need may arise to hear the witness a fresh. Each offence needs to be
proved differently. As the nature of the offence changes, the need to collect all the material
facts, arises. Therefore, each alteration entitles the parties to recall the witnesses.
Joinder of charges
Each offence is a distinct act and each distinct act needs to be tried separately. However, if
the accused desires, and the Magistrate feels that it would not prejudice the proceedings
before the Court, he may allow joining of the charges, which may lead to one combined
hearing. Such combined hearing is called as joinder of charges.
The joinder of charges is a beneficial exercise as it saves time of the Court and avoids
repetition of the proceedings. More importantly it saves the witnesses from the harassment
caused by calling them again and again.
Joinder of charges may be done in two different circumstances. One, when multiple offences
of a similar kind are committed at different times and places. Second, where multiple
offences of different kinds are committed in the same transaction continuously.
In the first case, the Court holds an exclusive right to joinder of three similar offences
committed in one year. This provision is related to habitual offenders. If a thief has
committed several thefts in the preceding twelve months, he can be tried in one
comprehensive trial. This joinder does not reduce the burden of the prosecution. The
prosecution is under the duty to prove each case separately and establish the guilt.
In the second instance, multiple offences of different kinds are committed in the same
transaction, for e.g. ‘A’ is involved in rioting, and while doing so he has caused grievous hurt
to a public servant who was discharging his legal duty. The Court can charge ‘A’ and try him
at one trial for offence of unlawful assembly, rioting, grievous hurt, and obstructing the
public servant while discharging legal duty.
Similarly, if the alleged facts are of such kind that they fall under two different definitions of
law, both of the charged sections can be joined and tried in one trial. For example, if a child is
abandoned and consequently it dies due to such abandonment, the parents can be charged
separately and tried in one trial.
Some of the acts are of such nature that, individual acts constitute a separate offence and
combined acts constitute different offence. The accused in such a case has to be charged
separately for each individual offence as well as for one combined offence. However, there
cannot be separate trials for all the charges, as they are connected with one transaction. They
therefore will be joined together and tried in one trial.
When offence proved, is different from the offence charged.

During an investigation, where the police finds a person guilty of one kind of offence, he will
be charged under the relevant sections. However, during trial the Court may find him guilty
of an entirely different offence which he is not charged with. In such cases the Court is
empowered to convict the accused for those uncharged offences. While pronouncing such
orders the Court need not make an amendment to the charge.
There is however no absolute right in favour of the Court to convict a person for any offence
for which he may not have been charged. The right of the Court comes with a rider, that the
accused shall be punished only for the minor offences which are of a similar nature or for
attempting to commit such offences, even though he may not have been charged separately.
This clearly states that, before conviction a person needs to be charged under those particular
sections.
Now we will move from the discussion of ‘joinder of charges’ to ‘joinder of accused’.
Joinder of Accused
In the following cases, all the accused can be joined together and subjected to a single,
comprehensive trial.
1. Persons accused of same offence, committed in the same transaction
2. Persons accused of different offences, committed in the same transaction
3. Persons involved in committing offence can be joined with persons accused of
abetment of such offence
4. Persons accused of the offence of the same kind committed three times jointly within
the preceding 12 months.
5. Where trial is for theft, extortion, cheating or criminal misappropriation, the persons
accused of these offences have to be joined by the persons receiving, retaining or
assisting in disposal of properties.
Examples given above are not exhaustive. The Court can join such accused together. This
power of joinder of accused is permitted only when the Court receives the application in this
regard to which the Court agrees. Before deciding on joinder, the Court should consider the
fact whether such joinder will cause any prejudices.
Withdrawal of charges
The charge contains different heads. The trial is conducted to prove each of those heads
during the trial, each head is considered one at a time. If the accused is convicted under one
head, then complainant or officer conducting the prosecution may withdraw remaining
charges. Such withdrawal can be made only with the consent of the Court.
This provision for withdrawal is created to avoid delay in disposal of the case. The reason is
that the accused is already convicted under one section and proving or disproving the charges
under the other sections will not alter his sentence in anyway.
The withdrawal of the charges after conviction has an effect of acquittal for all the
withdrawn charges. Therefore, the accused is held to be convicted under one head and
acquitted under all other heads. This presumption is subjected to the outcome of the appeal,
in case the accused prefers an appeal. If the conviction is set aside by the appellate Court, the
Court of first instance may proceed with inquiry for the charges withdrawn subject to
guidance given the appellate Court.
Quashing of Charge (Inherent powers)
Withdrawal of the charges is a sincere attempt of the Code for expeditious disposal of the
case. In addition to the attempt of the legislature, the Courts also have contributed towards
early disposal of the case by inventing a process called ‘Quashing of charge’.
Quashing of charge is not found in the Code, but it is added through exercise of inherent
power by the Court. The Court exercises its inherent power to provide for speedy disposal of
the case. This power can be exercised when the Court finds that there is no sufficient
evidence on record to try that particular charge.

However, once sufficient evidence is available, the Court can set-aside its order of quashing
of charges and trial can be reopened. Here the principle of double jeopardy doesn’t apply.
4.4.4. Trial
Trial is a judicial process in accordance with law whereby the question of guilt or innocence
will be determined.
There are different types of criminal trials for different kinds of criminal cases.
Trial is conducted by different judges depending upon the nature of the crime. Based on the
nature of crime the trial is classified into three categories. The Court follows elaborate and
foolproof procedure in case heinous offences, in case of minor offences the procedural
hassles are reduced to save time.
The trial is classified as
• Warrant trial,
• Summons trial
• Summary trial
Warrant trial is adopted only for the offences where the punishment prescribed is death or life
imprisonment or punishment exceeding two years imprisonment.
1) What is a charge?
2) When does court allows joinder of charges?
3) What is the effect of withdrawal of charge?
Summons trial is prescribed for rest of the offences. Where the nature of the offence is not
very serious, or involves property of very less value, the Judicial Magistrate may decide to
proceed summarily.
Trial of Warrant Case

The warrant trial involves elaborate procedure. It can be conducted by Sessions Judge as well
as the Chief Judicial Magistrate. Let us try to understand each stage of the trial.
The Sessions Court does not deal with supervision of the investigation. Therefore, Sessions
Court receives the case only at the stage of trial from the Judicial Magistrate through
committal proceedings. Once it reaches the Sessions Court, it is mandatory that the cases
should be conducted by Public Prosecutor.
Opening statement
The appointed public prosecutor has the right to begin the trial. He exercises his right by
making an opening statement. This opening statement includes the description of the charge
(as mentioned by the police) brought against the accused, and a brief statement about the
method followed to establish the case.
Framing of Charge
Once the statement is made, the Court of Sessions initiates the proceedings of framing of
charges.
The hearing may result into either of the following;
• Discharge
After considering the record of the case and documents submitted, and hearing the accused
and prosecution, if the Court finds that there are no sufficient grounds to proceed against the
accused, then by giving reasons the accused can be discharged at this stage itself.
• Framing of charge, and transfer
If the Sessions Judge finds that there is sufficient material to proceed with trial, charges will
be framed. If the case is not exclusively triable by Sessions Court, then the same can be
transferred by order, to be tried by Chief Judicial Magistrate or Judicial Magistrate First
Class, as the case may be. Once the Judicial Magistrate receives such order, he may continue
with the case.

Framing of charge and trial
If the offence is exclusively triable by the Court of Sessions, then the Court shall frame the
charges and proceed with the warrant proceedings. As a first step in the proceedings, the
judge has to read out the charges framed against the accused, where he shall be asked
whether he pleads guilty of the offence, charged or claims to be tried.
Response from the accused
The further steps depend on the nature of response by the accused. If the accused pleads
guilty of the charges framed by the police, then the Judge shall record the plea and at his
discretion, can pronounce the conviction. However, if the accused pleads not guilty and
claims to be tried, then the Judge has to continue with the trial and fix a date for the
examination of the witnesses. It has to facilitate the prosecution in getting the attendance of
the witnesses by compelling them to appear through issue of summons, etc.
Where the accused refuses to plead guilty and decides to contest the case, the prosecution has
to present the case on the fixed date. The criminal jurisprudence presumes the accused as
innocent until proved guilty. Therefore the accused need not defend.
As the burden to prove the case beyond reasonable doubt, lies on the prosecution, it has to
produce evidences (documentary or witnesses) at its disposal. During the examination the
defence lawyer may ask for cross-examination or even he may request for the recall for
witnesses. These requests can be allowed at the discretion of the Court.
Decision by the Court
Once the proceedings are over and all the prosecution evidences are considered, the Court
can decide the case. Here the decision can go either way. Depending on the outcome the
subsequent proceedings will be decided.
Acquittal
After taking evidences, examining the witnesses produced by the prosecution. After allowing
of the cross-examination of these witnesses and hearing of the prosecution if the judge
considers that there is no evidence that the accused committed the offence, the judge shall
record the order of acquittal.
Hearing of the defence
Where the prosecution puts up a contestable case, and the judge does not acquit the accused,
the defence will be called upon to defend the case and adduce evidence in support of the
accused. At this stage the accused is allowed to present his written statement, though it is not
mandatory. At this stage the Court has to issue summons etc, to ensure the attendance of
defence witnesses as required by the defence side. If such judicial processes asked for in
order to delay the proceedings, the Court may refuse to issue summons to ensure attendance
of such irrelevant witness.
Arguments
Once the production of the evidences is completed, the Court takes up the arguments. This is
generally used to sum up the case and draw the attention of the Court some of the finer points
to be established by the prosecution. Similarly, an opportunity is given to the defence to sum
up its case. During the argument stage, both parties are allowed to raise the points of law and
both parties are allowed to make submissions in this regard
Judgment
After completion of examination of evidence and hearing of arguments, the Court passes its
judgment on the same. Such a Judgment may result into acquittal or conviction.
Acquittal
If the accused is not found guilty of the charges submitted by the prosecution, then the
proceedings result in acquittal. Here the proceedings come to an end.
Conviction
If the accused is convicted, the judge has two options to deal with the case. By considering
the age, previous behaviour and other relevant circumstances, the Court may order for release
of the convict on probation, or after admonition.
If the accused does not qualify to be released, then the Court will provide an opportunity to
hear the accused on the question of sentence. After providing such opportunity, the judge
may pass a sentence against the accused according to the law.
The warrant case involves elaborate trial process. The same process is followed in all warrant
cases irrespective of the fact that whether they are tried by Sessions Judge or by Judicial
Magistrate. Even though the proceedings are similar, due to difference in the status of the
presiding officer, there will be minor differences in the proceedings.
Trial of Summons Case
As discussed above the summons trial leads to maximum punishment up to 2 years. As the
conviction duration is minor, the Court disposes off the case in urgency without
compromising with justice.
Opening statement
In a summons case unlike in a warrant case, the Court reads out the nature of accusation and
asks for pleading guilty, instead of prosecutor doing same.
Plead guilty
When the Judicial Magistrate asks for pleading guilty, the accused has an option of agreeing
to it, or contest the case. When it comes to pleading guilty the Code has given some
concessions to the accused.
• Plead guilty in person
This is a usual method of pleading guilty. Where the accused is present in the open Court, he
hears the charges filed against him and agrees for all the charges.
• Plead guilty in absentia

In case where the accused desires to plead guilty to the charge without appearing before the
Court, he is allowed to do so by sending the letter pleading guilty, by post or a messenger.
Here the guilty pleading is not done blindly. The accused has to be aware of the charges
through the communication from the Court in the form of summons. If he agrees for the
charges he need not come to Court but may plead guilty in absentia.
If the accused does not plead guilty the proceedings continue and hearing will be held.
When the accused refuses to plead guilty and decides to contest the case, the Court continues
with the next stage i.e. ‘examination of witnesses’. At this stage the procedure adopted in
summons trial is slightly different from warrant trial.
Under the warrant trial, the defence is asked to present its case only if the prosecution
establishes the case to a reasonable extent. However, in a summons case both parties present
their respective evidences at the first instance only. Unlike warrant case the Court adopts
simultaneous presentation of evidences. This system is adopted in order to save time, and
avoid miscarriage of justice.
Similarly, the distinction also exists in case of summoning of witnesses. Under the warrant
case the Court manages it at the request of both parties. In the summons case the same system
is followed, but the cost or expenses that the witness has to incur for the attendance, has to be
paid by the party who requests such appearance.
Termination of Judicial proceedings
Once the judicial proceedings begin, they get terminated only by the pronouncement of the
judgment. However, in a summons case, the Court is permitted to terminate proceedings
under three different circumstances.
• Non appearance of complainant
If the proceedings are initiated at the complaint of the party, and at its insistence the
summons has been issued to the accused, complainant presence or at least representation by
the pleader or officer of the Court in the proceedings, becomes compulsory. If he remains
absent, the Court may adjourn the proceedings and wait for his appearance. If the non
appearance continues then the Court has no option but to terminate the proceedings and
acquit the accused.
• Death of the complainant
As mentioned above, if the proceedings are initiated by the complainant, in case of his/her
death, the Court faces same disability as mentioned above. There arises an immediate need to
replace the complainant. Above provisions of non-appearance are applicable as far as
possible. The proceedings will be terminated and the accused will be acquitted.
• Withdrawal of complaint
This kind of termination applicable only if the proceedings is initiated by the complainant.
Instead of non-appearance and consequent automatic disposal of case, the complainant can
ask for withdrawal of the complaint. However, before withdrawal, the complainant has to
prove that he has sufficient grounds to withdraw the complaint. In case there are many
accused, the complaint may be withdrawn against some. In the latter case the proceedings get
terminated for the particular accused, but continue for the other.
• Termination by Court
If the proceedings are initiated not by a complaint but otherwise, than the Court acquires
another mode of termination of proceedings. Here the Court shall record the reasons in
writing and terminate the proceedings.
Under this procedure the Code has inserted a few safeguards like; the power of suo moto
termination being exercised only by Judicial Magistrate First Class, or where Judicial
Magistrate of other grade wants to terminate the proceedings, that he has to obtain prior
approval of the Chief Judicial Magistrate.

• Conversion of Trial
Where ever the summons trial is initiated for the offence punishable with imprisonment of six
months or more, the Court has its discretion to convert the proceedings from summons trial to
warrant trial. If the Magistrate, in the interest of justice feels that, the Court needs to follow
elaborate procedure then the Court may adopt the warrant trial procedure. With such
conversion, technically the summons proceedings comes to an end.
Judgment
After completion of examination and arguments the Court will pass its judgment on the same.
Judgment can go in either way, acquittal or conviction.
• Acquittal
If the accused is not found guilty of the charges submitted by the prosecution, then the
proceedings will result in acquittal. Here the proceedings come to an end, any contest
regarding previous conviction, i.e, the prosecution allege that he has convicted previously and
accused deny it, will not be taken for hearing.
• Conviction
If magistrate finds the accused guilty, he is required to pass a sentence on him according to
the law. However, considering the character of the offender, the nature of the offence and
circumstances of the case, he may decide to release the offender after admonition or on
probation of good conduct.
Summary trial
Summary trial is a third kind of trial followed in the Code. This trial is adopted for speedy
disposal of the case. As the name suggests, the proceedings are held summarily and these
proceedings are much more in summarised form compared to summons case.
Summary trial offences
The Code has classified few offences as triable under this process. The discretionary power
has been given the Judge and he may decide to hold summary proceedings, or may adopt the
more elaborate summons proceedings. Therefore, following offences are qualified to be tried
by summons proceedings, but if judge opines then he may even proceed summarily. The
offences triable summarily are as follows;
• Offences not punishable with death, life imprisonment or punishment of
imprisonment exceeding two years
• Trial of offence of theft committed where the value of the stolen property is less
than Rs 2,000/-
• Trial of offence of receiving or retaining of stolen property, the value of the
property is less than Rs 2,000/-
• Trial of offence of assisting concealment or disposal of the stolen property, the
value of the property is less than Rs 2,000/-
• Insulting with a intent to provoke breach of peace
• Abetment of above offences
• Attempt of committing any of the above offences
• Trial under Cattle-Trespass Act, 1871
Summary trial authorities
Summary trial is an extreme step taken by the Court to dispose of the case at the earliest.
Therefore, the Code has taken a precaution to avoid miscarriage of justice. The Code
authorises only Chief Judicial Magistrate and Metropolitan Magistrate to conduct summary
trial. In addition to these authorities the High Court or the State Government can authorise
few more authorities to do the same.
High Court is empowered to extend the same power to the Magistrate of First Class. Such
extension of power brings Judicial Magistrate First Class on par with the other authorities.
Similarly, the High Court is empowered to extend the same to Judicial Magistrate Second
Class. However, such extension will not bring the authority in the same line as of others,
because such an extension will have limited applicability and only offences punishable with
less than six months imprisonment can be tried by Judicial Magistrate Second Class.
Judgment
After completion of summary trial, the Court will passes its judgment on the same. Judgment
may be either for, acquittal or conviction. If the judgment is based on the plea of guilty, then
Judge is not expected to give any reasons for the outcome of the proceedings. If the judgment
is based on grounds other than plea of guilty, then the judge has to make brief statement of
the reasons for the finding.
Under summary trial, the maximum punishment that can be given is three months
imprisonment.
4.4.5. Plea bargaining (At any stage of the case but before judgment)
1) What are the types of trial?
2) What is a summary trial?
It is a new concept adopted from the US legal system. It was introduced in the Indian legal
system through an amendment to the Criminal Procedure Code in the year 2006. This is
another sincere attempt of the legislature to dispose the cases without delay and reduce
burden of the Court.
As the name suggests, it is not based on the justice delivered on basis of evidence, but it is a
compromise achieved to protect the interest of all the parties. Plea bargaining protects the
interest of the victim, because it is the only chapter in the whole of the Code where the
victim’s needs also have importance in proceedings. It protects the interest of the accused, as
he is not made to undergo cumbersome procedure of trial and he can claim acquittal at the
plea bargaining stage. It protects the interest of the State, where it need not spend time,
money and personnel in disposing of minor litigations, and same time, money and energy can
be spent on bringing more heinous crimes to justice. It also protects the interest of the Court,
as due to early disposal of the case it would reduce the burden on the Court.
Scope of Plea bargaining
Applicability of the Plea bargaining is based on the following conditions.
• Plea bargaining is not applicable to the offences which are punishable with death
sentence, life imprisonment or imprisonment for a term exceeding seven years.
• It does not apply to the offences which affects the socio-economic condition of the
country.
The word socio-economic offence is not defined, instead the Code has asked the Central
Government to issue notification making the list of the socio-economic crimes. Therefore
any offence falling under the notification issued by the Central Government is not
subjected to this chapter.
Following are the examples of the enlisted offences,
• Offences under Dowry Prohibition Act, 1961
• Army Act, 1950
• Wild Life Protection Act, 1972 etc
• It does not apply to offences committed against a woman, or a child below the age of
fourteen years.
• The accused has not previously been convicted by a Court in a case in which he had been
charged with the same offence
Procedure of Plea Bargaining
The first step in the procedure is, that the process of plea bargaining has to be initiated by the
accused. When any offence is pending for trial, the application can be made to the Court.
Contents of the application
The application for plea bargaining shall contain the following things.
• Brief description of the case
• An affidavit stating that,
o the proposal for plea bargaining is done voluntarily
o he has understood the nature of the process
o that he has not been previously convicted for the same offence
Role of the Court
Once the Court receives the application, it shall issue notice to the public prosecutor or the
complainant as the case may be, and to the accused to appear on the fixed date.
Once the accused and others appear, the Court initially starts with in camera proceedings.
This proceeding is exclusively conducted to ascertain the voluntariness of the proposal. If the
application is found to be voluntary, then the Court will agree to provide time to the
prosecutor or complainant as the case may be, and the accused, to come out with a
satisfactory disposition of the case.
During the plea bargaining process, the Court has to ensure voluntariness at all the stages.
Once the plea bargaining process is completed, the Court has the role to convert the
disposition into a legal document by signature of the presiding officer.
Satisfactory disposition
The whole discussion is towards achieving satisfactory disposition. To achieve this
disposition, the parties can make offer or counter offers. It is within legal limits to offer
compensation and other expenses to the victim during such discussions.
Following principles needs to be followed by the Court to ensure the satisfactory disposition
of the case.
• Issuing of notice to all the stakeholders (prosecutor, investigating police officer,

victim and accused)
• The Court is under the duty to ensure that voluntariness prevails at every stage of the
case.
• Opportunity to accused or victim to be represented by pleader should be provided
Disposal of the case
Plea bargaining is the process which the Court is under the duty to encourage.
Once the disposition is achieved i.e when the parties reach a settlement, the Court has to
ensure the payment of the decided compensation to the victim. After the payment of
compensation, the Court has to hear both the parties on the quantum of punishment. Here the
Court can exercise its discretion under sec. 360 of the Code and release the convict on
probation or after admonition. The Court also has to follow the procedure under The
Probation of Offenders Act, 1958 and take appropriate action.
In case where sec. 360 of Cr.P.C. and The Probation of Offenders Act is not applicable, and
the law prescribes minimum punishment for the offence, the Court may punish the convict
half of the quantum of minimum punishment.
Where the above provisions do not apply, then the Court may grant the punishment of one
fourth of the maximum punishment provided.
Protection to the accused
Plea bargaining is an innovative and recent development in the field of Criminal Law. This
development has brought in some changes in the existing system to provide better protection
to the parties involved in the proceedings.
The outcome of the plea bargaining is not appealable. The judgment is final. The information
given and received on behalf of accused cannot be used in any other proceedings. Thus the
accused enjoys better protection.
Now we shall proceed to the study of the final stage of the trial i.e. the judgment
4.4.6. Judgment
Judgment is the final determination of the Court on the question of the guilt or innocence of
the accused. It can result in acquittal, conviction or an order for compensation. In case of
conviction, it includes the court’s decision as to the nature and quantum of punishment, etc. A
judgment has to be based on sound legal reasoning.
Contents of the Judgment
• Judgment shall be written in the language of the Court.
• It shall contain points for determinations (issues before Court)
• Decision shall be on each point for determination
• Reasons for the decision shall be given
• It shall specify the offence, sections under which sentence is pronounced, and the
quantum of punishment.
• In case for punishment with death, special reasons shall be provided by the Judge for
providing such extreme punishment.
• Death sentence should be worded as ‘he be hanged by neck till he is dead’
Pronouncement of Judgment
1) What is plea bargaining?
2) What is the Contents of the application for plea bargaining?
Every criminal trial is held in the open Court. Similarly, every judgment under Criminal Law
shall be pronounced in the open Court. The judge usually pronounces the judgment
immediately after termination of the trial or, he may fix subsequent date by sending notice to
both the parties. As a matter of procedure, the judgment has to be pronounced in the presence
of the accused. In case of multiple accused, presence of all those accused is compulsory. This
is to facilitate the arrest of the accused, if on bail, and avoid further delay or the scope to
cause delay. This rule may not be followed strictly if the accused is acquitted, or convicted
with fine only.
Judgment may be pronounced by following different methods;
• Delivery of the whole judgment
In this method the judgment is delivered in the open Court. The judge dictates the judgment
there itself and it is taken down in short hand or typed. The transcript has to be made
available as soon as possible and the judge has to sign each page of the judgment. Delivery of
judgment in this manner is the most impartial way of dealing with a trial. As the Court hears
the matter in the open Court and after seeking some clarifications immediately delivers the
judgment.
• Reading of the whole judgment
After the closing of the arguments, the judge fixes the date for pronouncement of the
judgment. Thereafter, during the time available between the closing of the arguments, and the
date of pronouncement of the judgment, the judge writes the judgment. This whole process
takes place outside the open Court, and is based only on the material collected during the
open court proceedings. Then on the fixed date, the whole judgment is read by the judge in
the open court. The judgment may be hand written or may be typed. The judge has to sign
every page of the judgment except when hand written judgment.
• Reading operative part of the judgment
This is not a new method of writing of judgment. It is only a time saving mechanism. The
judgment is prepared by following above method of writing judgment out of Court. but the
difference is that instead of reading out the whole judgment, the judge reads out only
operative part of the judgment. Operative part includes, the type of punishment, duration of
punishment etc. Where only operative part is read out the signed copy of the judgment has to
be made available to the parties as soon as possible.
4.4.7. Appeals
If the parties are not satisfied by the judgment, or feel that it is erroneous, then they are given
a chance to go in appeal to the higher authority. The judicial system is based on the principle
that, every case needs to be heard at least twice, by different judges. Even though this is one
of major reasons for delays, this system has persisted, it being a major safeguard against
miscarriage of justice.
Under the Code, only one appeal is provided under ordinary circumstances. Under
extraordinary circumstances, where questions of law is involved the Code allows second
appeal. This provision is made to put an end to the confusion as to law.
Hierarchy of judiciary plays very important role in the appeal process. Under usual
circumstances the appeal lies to the immediate higher Court. Therefore, the following three
Courts discharge appellate jurisdiction under the Code.
9 Supreme Court
This is the highest Court within the territory of India. It takes up matters involving questions
of law or public importance. The appeal can lie to the Supreme Court where the High Court
acts as a trial Court. By exercising extraordinary original criminal jurisdiction, the High
Court can take up a role of trial Court. From here, the appeal lies to the Supreme Court.
Along with the Code, the Constitution of India also provides for approaching the Supreme
Court by obtaining special leave from the High Court.
9 High Court
After conviction from the primary judiciary, appeal lies to the High Court under two
1) What is the judgment?

2) What are the different methods of delivering judgments?
circumstances;
• Convictions from Sessions Court or Additional Sessions Court, or
• Where conviction is for an offence punishable with more than seven years
imprisonment by any other Court.
9 Sessions Court
Under the following conditions, appeal lies to the Sessions Court;
• Where conviction is imposed by Metropolitan Magistrate or Assistant Sessions Judge
or Magistrate of the First Class.
• Where the case is sent to Chief Judicial Magistrate by Judicial Magistrate Second
Class, and the judge feels that the accused needs to be punished severely, but which is
beyond his powers. From such an order of the Court, appeal can lie to the Sessions
Court, or,
• Where the Judicial Magistrate Second Class after establishing the case, prefers to
admonish and release the accused on bond, instead of convicting him with
imprisonment.
Procedure for appeal from acquittal
Where the Court finds no sufficient evidence to convict the accused, it passes an order for
acquittal. The decision to acquit the accused goes against the interest of the State. Therefore
the State has to prefer an appeal against the acquittal. The Code provides for a procedure and
recognised the authority to grant permission to appeal.
9 District Magistrate
As discussed above, from the decision of Judicial Magistrate Second Class, appeal lies to the
Sessions Court. Where the accused is acquitted, the District Magistrate authorises the Public
Prosecutor to present an appeal to the Court of Session.

9 State Government
In all the cases where the appeal lies with the High Court, the State Government authorises
the Public Prosecutor to present an appeal.
9 Central Government
In case where the offence is investigated by the Central Bureau of Investigation, an agency
which has been constituted under the Delhi Special Police Establishment Act, 1946, the right
to prefer an appeal lies with the Central Government. Wherever this agency conducts
investigation and prosecutes the accused, the Central Government has to authorise the Public
Prosecutor to present an appeal. The power of the Central Government is absolute. Its
extends to all tier of judiciary.
There is no appeal in certain cases
The Code has discouraged appeals on two criteria’s;
• Plea of guilty
If the accused is convicted by the High Court on the basis of plea of guilty obtained against
him, it can be a bar for an appeal. However, the conviction on the basis of such a plea of
guilty by Court of Session, Metropolitan Magistrate or Magistrate of First and Second Class,
can be appealed, but only as far as its legality is concerned.
• Petty cases
No appeal is permitted in petty cases. Petty cases are the ones where the conviction is of very
less duration as in;
9 Conviction by the High Court where the duration of imprisonment is six months.
9 Conviction is by Court of Session or Metropolitan Magistrate where imprisonment
is for three months or fine not exceeding two hundred rupees
9 where the sentence is by Judicial Magistrate First Class and conviction is only fine
not exceeding hundred rupees. or

9 case of a Summary Trial, if the fine imposed is not exceeding two hundred rupees
1) When does appeal to Supreme Court lie?
2) In which cases Code does not allow appeal?
4.4.8. Revision
As mentioned above, the principles under Criminal Law require that at least two judges
should conduct the trial. However, under certain circumstances the right of appeal has been
withdrawn. Such a withdrawal hits at the base of the principle. Therefore, to overcome this
problem, the Code has provided for another procedure called ‘Revision’.
The revision process provides special power to the High Court and Sessions Court to call for
and examine the record of any proceedings of a primary (inferior) Court falling within its
jurisdiction for the purpose of satisfying itself as to the correctness or legality or propriety of
the findings or sentence. This power may be exercised suo moto or on the basis of the
application by the party. While calling upon such records the court may order for suspension
of the sentence pronounced by the primary (inferior) Court. The scope of the power is not
extended to any interlocutory orders passed by the primary (inferior) Court.
Inquiry under revision
On an application from the party and the initial examination, if there is a need felt, the Court
can order the Chief Judicial Magistrate or any other Magistrate to conduct further inquiry.
This power to issue an order for inquiry comes up with two important restrictions. First; such
inquiry can be ordered only if the accused has been discharged. Second; such order can be
passed only after giving an opportunity to be heard, to the accused.

Ex. Maintenance order, order of cancellation of bail, correctness and propriety of
sentence imposed by lower Court, etc.
4.4.9. Execution of sentence
If the accused is convicted, the court has to issue relevant orders for the execution of the
same. The court is authorised to pronounce different kinds of sentences depending upon the
nature of the offence. The nature of sentence ranges from simple fine, to death sentence. The
Code deals with the process of execution of the sentence.
• Death Sentence
Death sentence is an extreme punishment prescribed under the Indian Penal Code. This
power of judicial killing has to be exercised with utmost care and caution. To ensure the
same, the Criminal Procedure Code has prescribed an elaborate procedure.
The main safeguard created in case of such a sentence is the requirement of prior
confirmation by the High Court. Therefore, when a Sessions Judge pronounces the death
sentence, he has to send the order for the confirmation of the High Court and in the mean
time the accused has to be kept under jail custody under a warrant.
9 Role of High Court
Confirmation by the High Court is a judicial process. As a further safeguard, the confirmation
process has to be heard by two judges. The High Court enjoys complete discretionary power.
It can order further inquiry, if the findings of the Sessions Court are not satisfactory. This
additional inquiry is conducted by the High Court itself or by Court of Session.
After such inquiry, the High Court may confirm the order passed by the Court of Sessions, or
it may annul the conviction and convict him with other sentence or the accused may be
acquitted.
9 Postponement of death sentence
Once the death sentence is confirmed by the High Court, the sentence needs to be executed.
However it may get postponed. Death sentence can get postponed if the convict prefers an
appeal to Supreme Court under Article 134 (1) (a) or (b) of the Constitution of India or
applies for grant of a certificate to approach the Supreme Court under Article 132 or under
Article 134(1) (C) of Constitution of India. It may also be postponed where the High Court
grants special leave for appeal under Article 136 of Constitution of India.
• Imprisonment
If the punishment is for imprisonment, the Court of Sessions will issue warrant to the jailor
and hand over the custody of the convict. The State Government has complete discretion as to
which place the convict will be jailed.
• Fine
The Court is authorised to impose fine. While imposing fine the Court follows two distinct
methods. It may simply impose fine or in addition may state that in case of default of
payment the convict shall have to undergo imprisonment of certain duration. Where such an
additional imprisonment order is passed by the court, it will not issue order of execution of
sentence of recovery of fine.
The recovery of fine amount is done in two ways. The Court may along with imposition of
fine, order for attachment and sale of any moveable property belonging to the offender. Such
an order completes the sentence as well its execution.
The other method is, of imposing fine and authorising the District Collector to collect it. The
District Collector will then collect the fine in the form of arrears of land revenue from the
movable or immovable property of the defaulter.
4.4.10. Suspension, remission and commutation of sentence
Once the conviction is imposed and the same is executed, the State Government is authorised
to suspend, remit or commute the sentence. This power has to be exercised according to the
provisions given in the Code.
• Suspension or remission
Suspension of sentence can be done by the appropriate government under different
circumstances. The suspension is not only in case of imprisonment, but it may also be in
relation to any kind of restrictions on liberty or liability on convict or his property.
In case the suspension to be granted, is of a sentence relating restriction on liberty, then the
appropriate government is Central Government. In all other circumstances it is the State
Government.
1) What is the safe guard provided by the Code in case of death sentence?
2) To whom the custody of convict handed over in case of imprisonment?
3) How can fine amount be recovered?
¾ Suo moto power
When any person is sentenced with imprisonment, the appropriate government at any time
may suspend the sentence without furnishing the reasons. Such suspension may be with or
without conditions. If the suspension is with conditions, the state government, can withdraw
its suspension order in case of violation of such condition.
¾ On application from the convict
The convict can make application for suspension of the sentence. In such a case, the State is
under the duty to refer the application to the Court which has convicted him and seek the its
opinion. The Court which punished or which has confirmed the punishment, has to give its
opinion of suspension, with reasons.
¾ Role of Central Government
Even though the State Government can act as an Appropriate Government in most of the
convictions, it has to act in consultation with Central Government under certain

circumstances. They are as follows;
• Conviction obtained by the agency (Central Bureau of Investigation) established
under the Delhi Special Police Establishment Act, 1946.
• Conviction regarding offences involving destruction, misappropriation or damage to
the property belonging to the Central Government.
• Conviction regarding an offence committed against any person in the service of the
Central Government.
Commutation
Commutation is different from suspension. In case of suspension, the convict is set free by
setting aside the remaining period of his conviction. Whereas in case of commutation the
sentence is reduced but not completely set aside.
Here the appropriate Government, without the consent of the convict, may commute the
sentence in the following ways;
• Sentence of death can be commuted by any other punishment provided in the Indian
Penal Code
• Sentence of imprisonment for life can be commuted to imprisonment for a term not
exceeding fourteen years or for fine
• Sentence of rigorous imprisonment be commuted to simple imprisonment for any
term or for fine.
• Sentence of simple imprisonment be commuted to fine
Pregnant woman
If a woman sentenced to death is found to be pregnant, the High Court shall commute the
sentence to imprisonment for life.
Restriction on the power of remission or commutation
This power is not an unabridged power of the appropriate Government. The Code imposes an
important restriction. In case of conviction of life imprisonment, where death is one of the
prescribed punishment under the law, and in case where a person is convicted for death but
his sentence is commuted to life imprisonment, such a convict cannot be released from prison
unless he had served at least fourteen years of imprisonment.
4.5. Terminal Questions
1. What is the importance of an FIR in an investigation?
2. When can police arrest without warrant?
3. What is the procedure for recording confession by a magistrate?
4. What is the procedure in warrant trial?
5. What is procedure for plea bargaining?
6. What is the procedure appeal from acquittal?
7. How a sentence is executed?
1) Can a death penalty be given to a pregnant women?
2) What is the difference between suspension and commutation?
4.6. Answers and Hints
Self Assessment Questions
Self Assessment Questions 1
1) An offence where the police has no power to investigation, it is obtained only by
obtaining permission from court.
2) Judicial Magistrate
3) First information received by the police about occurrence of Cognizable offence.
Self Assessment Questions 2
1) Warrant is an order of court

2) Where the offence is committed in the presence of the police officer
Self Assessment Question 3
1) Any person who is unable to apply for bail within a week of arrest, he shall be
presumed to be indigent.
2) Anticipatory bail application can be made at High Court or Court of Sessions
1) District Magistrate or Sub-Divisional Magistrate or Magistrate of First Class
2) Search and seizure can be made for different purposes, like tracing and seizing the
stolen property, or forged documents, or even search of persons who are wrongfully
detained etc.
1) Any person below the age of fifteen years, and woman.
2) Metropolitan Magistrate or Judicial Magistrate
1) Case diary is a document to be maintained by the police
2) Charge sheet is a report submitted by police officer in charge of investigation to the
Judicial Magistrate
1) Who can conduct inquiry?
Executive Magistrate and Judicial Magistrate
1) It is a precise formulation of specific accusation made against a person who is entitle
to know its content which mentions the nature of the offence alleged to have been
committed by him.
2) Each offence is a distinct act, however, if the offences are committed by same accused
he can be tried under one trial, such combining of offences is called joinder of charges
3) The withdrawal of the charges after conviction has an effect of acquittal for all the
withdrawn charges.
1) Warrant trial, Summons trial, and Summary trial
2) The proceedings are held summarily and these proceedings are much more in
summarised form compared to summons case.
1) It is an Alternative Dispute Resolution Process, where justice is not delivered on basis
of evidence, but it is a compromise achieved to protect the interest of all the parties.
2) The application for plea bargaining shall contain the following things.
• Brief description of the case
• An affidavit stating that,
o the proposal for plea bargaining is done voluntarily
o he has understood the nature of the process
o that he has not been previously convicted for the same offence
1) Judgment is the final determination of the Court on the question of the guilt or
innocence of the accused
2) Delivery of the whole judgment, Reading of the whole judgment, and Reading
operative part of the judgment
1) The appeal can lie to the Supreme Court where the High Court acts as a trial Court.
2) No appeal is permitted in petty cases

1) The main safeguard created in case of death sentence is the requirement of prior
confirmation by the High Court
2) Court of Sessions will issue warrant to the jailor and hand over the custody of the
convict
3) Fine can be recovered in the form of arrears of land revenue from the movable or
immovable property of the defaulter.
1) No
2) In case of suspension, the convict is set free by setting aside the remaining period of
his conviction. Whereas in case of commutation the sentence is reduced but not
completely set aside
Terminal Questions:
1. Refer to section 4.2.2 of the Unit
4.7. References:
1. Code of Criminal Procedure 1973.
2. Khelkar R.V., Criminal Procedure, Eastern Book Company, Lucknow.
3. Ratanlal & Dheeraj Lal, Code of Criminal Procedure, Wadhva & Co., Nagpur.

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UNIT 4: Preparation for filling of Criminal Cases

4.2. Initiating Investigation

4.4. Proceedings before the Court

4.5. Terminal Questions

4.6. Answer and Hints

4.7. List of References

4.2. Initiating Investigation

4.2.1. Information to Police Officer

4.2.2. First Information Report (FIR)

4.2.3. Complaint to Magistrate

4.3.1. Proceeding to the spot

Self Assessment Question 1 Spend 2 minutes

2) Before which authority can a complaint can be filed?

• To prevent commission of further offence

• Proper investigation of the offence

• To prevent tampering or disappearance of evidences

• To prevent making of inducement or threat to the witnesses

• To ensure regular attendance before the Court

Arrest with warrant

Arrest without warrant

• Where cognizable offence is committed in the presence of the police officer

• Where a reasonable complaint, or credible information or reasonable suspicion exists as to

• In case of a proclaimed offender

• Where a person obstructs a police officer from performing his duty

• A suspected deserter from any of the armed forces

• Where there is breach of rule (under sec 356(5)) by a convict

4.3.3. Investigation after arrest

Please answer the following Self Assessment Questions:

Bailable and Non-Bailable Offences

Self Assessment Question 2 Spend 2 minutes

2. State any one exception to an arrest with warrant

Refusal to grant bail

• Such person is accused of an offence punishable with death or life imprisonment

Bail of an Indigent person

granted without sureties.

If a person is under a reasonable apprehension that he may be accused of a non-bailable

• Nature and gravity of the accusation.

undergone imprisonment in a cognizable offence.

from the jurisdiction of the Court.

to humiliate him by getting him arrested.

days to prepare their objection at the time of final hearing.

Please answer the following Self Assessment Questions:

4.3.5. Search & Seizure

been entrusted with certain powers as to search and seizure.

where they need to be produced.

• that summons of production of document will not be respected or

Self Assessment Question 3 Spend 2 minutes

1) Who is an indigent person?

2) Where anticipatory bail can be applied?

• existence of document is known, but in whose possession it exists, is not known or

• for the purpose of investigation there is a need for a general search,

Please answer the following Self Assessment Questions:

provides for the procedure for examination of witnesses.

to expose him to a criminal charge or to a penalty or forfeiture. During examination, the

also be recorded through audio-visual electronic means.

if it has been signed by the person making such statement.

Self Assessment Question 4 Spend 2 minutes

1) Who can give search orders?

2) What is the necessity for search and seizure.

4.3.7. Recording of confession by the Magistrate

beating due their continuous poor records on human rights front.

procedure to record confessional statements.

As a matter of precaution the confessional statements can only be recorded by a Metropolitan