Gist of procedures
(kindly read as per the list)
History and background of the Code of Criminal Procedure., 1973
- The first version of the Code of Criminal Process was enacted in 1861, following the passing of the Indian Penal Code in 1860 Act 10 of 1882 superseded the Code.
- Sixteen statutes relating to the criminal procedure have been passed since 1882.
- The Code of Criminal Procedure replaced it once more in 1898.
- The Code of Criminal Process Amendment Act of 1923 then updated the 1898 statute.
- In its 14th Report (1958), the First Law Commission presented significant suggestions for criminal justice reform. The recommendations of the committee were taken into consideration, and the Code was changed.
- Parliament passed the 1973 Code of Criminal Process in response to the recommendations of the Fifth Law Commission’s Forty-First Report.
- Despite receiving presidential assent, the most recent bills on the Procedure, Penal, and Evidence Acts have not yet been put into effect/force by the law makers.
On police report
1) Information (ss. 154 & 155 Cr.P.C): Power to start investigating the offence (s.156 Cr.P.C either Any officer including Higher official u/s 156(1) r/w 154(3) and s. 36 Cr.P.C or by the Learned Judicial Magistrate (or having original jurisdiction) u/s 156(3) Cr.P.C – How? By informing the jurisdictional Magistrate and proceed to the spot either in person or depute one his sub-ordinate (s. 157 Cr.P.C) – Investigation Officer can start investigation even without information received (see section 157 Cr.P.C).
Judgments to impress the readers on First Information Report:
1) What is an information u/s 154 cr.p.c? – M/s.Vetri Medical Agency rep by P.L.Veerappan Chennai vs. State – 2014(1) LW (Crl) 116.
2) What is not information? – State v. P.A.Madhu AIR 1984 SC 1523; The State of Bombay vs. Rusy Mistry and Ors. (24.09.1959 – SC) = AIR 1960 SC 391.
3) Procedure when police refused to register ‘cognizable offence’ – Lalita Kumari vs. Govt. of U.P. and Ors dated: 12.11.2013 – SC – (2014) 2 SCC 1 [5 Judge Constitution Bench].
4) No Second FIR – T.T. Antony vs. State of Kerala; AIR 2001 SC 826, also see: Whether T.T.Antony case bars second private complaint ?
5) No jurisdiction to register FIR – Satvinder Kaur vs. State (Govt. of N.C.T. of Delhi) and Ors – Crl. A. No: 1031 of 1999 – dt: 05.10.1999 – SC – (1999) 8 SCC 728,
6) FIR as dying declaration – Harendra Rai vs The State of Bihar & ors – Criminal Appeal No.1726 OF 2015 – August 18, 2023 – 3 judges;
7) Other appreciation – such as evidentiary value of FIR, Duty of Magistrate if FIR failed to register by the Police official u/s 156(3) Cr.P.C are dealt in detail inside.
2) Investigation: Investigation starts by collection of facts and materials – how? – by calling upon requiring the presence of the witnesses (160) – recording the statements of the witnesses (s. 161 Cr.P.C) – recording of statements are by way of no threat or inducement (ss. 163 Cr.P.C & 24 IEA) – If necessary witnesses may be forwarded to the magistrate to record their statements (s. 164 (5) Cr.P.C- meanwhile I.O may enter into Arrest of persons (Chapter – V – ss. 41 to 60A Cr.P.C), Custody – direct/surrender (s. 57 Cr.P.C), remand/custody (s. 167 Cr.P.C) – during custody/remand if accused asks for confession he may be forwarded to magistrate (s. 164(2) Cr.P.C). [I have not referred s. 162 Cr.P.C because it is evidentiary nature will take detailed class on it].
Judgments to impress the readers on investigation points:
Definition & Procedure for investigation: H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 [Old Code., 1898] reiterated in State vs. Dawood Ibrahim Kaskar – 2000 (10) SCC 438, 1997 CRI. L. J. 2989 (SC) [New Code., 1973].
3) Police report or Final repot [not a report under section 202 Cr.P.C]: All the above shall be well documented by the I.O and upon that documents he has to finally come to “a” conclusion which shall be in a form of reporting his superiors which is known as Final Report (s. 173(2)). Final report may be positive (charging person(s) – s. 170) or drop report (s. 169).
[Sections: Police report is a report u/section 2(r) r/w section 173(2) Cr.P.C and not under the explanation part of section 2(d) Cr.P.C and a report u/section 202 Cr.P.C].
Judgments to impress the readers on final report:
1. Police report or Final report and its procedure -Sections 169, 170, 173(2) Cr.P.C: K.K.SS.Ramachandran vs. State – 2015(2) MLJ (Crl) 257(DB), following Kamalapati Trivedi vs. State of W.B – (1980)2 SCC 91
2. Police report or Final report to be submit in both Cognizable & Non-Cognizable cases: Subhash Chand vs. State (Delhi Administration) – Criminal Appeal No. 50 of 2013 – 08.01.2013 – SC=MANU/SC/0016/2013= AIR2013SC395=(2013)2 SCC 17= [2013]1 SCR 191.
3. Just a report: Parkash Singh Badal and anr vs State Of Punjab and others – (2006) 13 SCALE 54=(2007) 1 SCC 1=(2007) 1 SCC(Cri) 193.
4) Duty or Powers of the Magistrate upon filing the police report: Upon filing the police report (final report u/s 173(2) Cr.P.C) Magistrate has got powers either to drop [entire persons or some persons or single person] the proceeding or take cognizance and issue process or direct further investigation u/s. 156(3) Cr.P.C.
Judgments to impress the readers:
• Under the Old Code 1898 – Abhinandan Jha vs. Dinesh Mishra – AIR 1968 SC 117=1968 Cr.L.J 97 (SC).
• Under the New Code 1973 – India Carat Pvt. Ltd., M/s. vs. State of Karnataka – AIR 1989 SUPREME COURT 885.
5) Protest or Objection Petition: If the Learned Judicial Magistrate or the Original Jurisdictional Special Judge (i.e., POCSO, TNPID, CBI (V&A.C) e.t.c. comes to the conclusion there is no scope to continue the proceeding and accept the police report (if the final report is a Negative report, Referred Charge Sheet, Drop report e.t.c…), he has thereafter no other option but to give a notice to the informant/de-facto complainant/victim as the case may be for any objection (protest petition).
Judgments to impress the readers:
• First Judgment on giving notice to the informant only after accepting the final report: Bhagwant Singh v. Commissioner of Police & Anr – AIR 1985 SC 1285 (3 judge bench)
• Explained Bhagwant Singh case and treated Protest petition as complaint: SHIV SHANKAR SINGH v. STATE OF BIHAR & ANR – Criminal Appeal No. 2160 of 2011 – NOVEMBER 22, 2011 – (2011] 13 (ADDL.) S.C.R. 247 [Bhagwant Singh case explained]
• Gangadhar Janardan Mhatre – AIR 2004 SC 4753.
• B. Chandrika vs. Santhosh and Ors – (21.11.2013 – SC)=2013(14) SCALE 209
• Vishnu Kumar Tiwari vs. State of U.P – 2019 (3) MWN (crl) 197 (SC)
• ZUNAID vs. STATE OF U.P. & ORS – CRIMINAL APPEAL NOS.2628-2629 OF 2023 (@ SLP(CRL.) Nos.8506-8507/2022) – 29th AUGUST 2023.
Otherwise than on police report (complaint case)
6) As per section s. 2(d) Cr.P.C a complaint shall be filed before the court.
Judgment to impress the readers:
No specific format for complaint: Mohd. Yousuf vs. Smt. Afaq Jahan & Another – 2006 (1) MLJ(Crl) 327 (SC)=2006 (1) SCC 627.
7) If the Magistrate or Special Judge (who is having original jurisdiction) after reading the complaint comes to the conclusion that there are sufficient allegations/facts are there in the complaint. He will take the complaint on file and proceed to chapter XV – sections 200 – 203 Cr.P.C).
8) After the sworn statement is being over (as per section 200 Cr.P.C), the magistrate may proceed to section 202 Cr.P.C (‘shall’ if the accused is outside the jurisdiction).
9) After all the aforesaid procedures are over, the Magistrate may either proceed to summon (s.204 Cr.P.C) or may dismiss the complaint with sufficient reasons u/s 203 Cr.P.C.
10) Regarding any doubts of cognizance kindly refer ‘cognizance’ under INQUIRY chapter.
11) S. 210 Cr.P.C procedure to be followed if an investigation is pending on the same allegations in the given complaint.
Cross-case or Case-in-counter or Counter case
12) Same procedure as contemplated in filing of final report.
13) Take two different trials in the same court if the offences are same.
14) Invoke s. 323 Cr.P.C and commit both the cases to the sessions court if any one of the offences in any trial is being tried by sessions court at the threshold itself.
15) If not try both the cases in the same court with two separate public prosecutors.
16) Deliver separate judgments for each/both the cases in single day and not a single or common judgment for both the cases.
Judgment to impress the readers:
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Sudhir vs. State – (2001)1 SCC 688
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State of M.P vs. Mishrilal – (2003)9 SCC 426
Limitation & Jurisdiction
17) Limitation is for taking cognizance only – Chapter. XXXVI – ss. 467 to 473 Cr.P.C.
18) Jurisdiction – Chapter XIII – ss. 177 to 189 Cr.P.C – Till taking cognizance there is no jurisdiction for criminal courts. In other words, even a complaint can be filed before any magistrate courts who is not having jurisdiction. Same analogy is being followed in First Information Report and filing Final Report also. [Trisuns Chemical Industry Vs. Rajesh Agarwal – AIR 1999 SC 3499 (for jurisdiction purpose before courts) & Rasiklal Dalpatram Thakkar vs State of Gujarat & Ors – AIR 2010 SC 715(for registering FIR)].
Inquiry
19) Every inquiry starts with Conditions requisite for initiation of proceedings (Chapter XIV – ss. 190 to 199 Cr.P.C) – otherwise famously known as ‘Taking Cognizance’.
20) ‘Taking cognizance’ means taking judicial notice on the offence for the purpose of further and subsequent provisions of the code. Cognizance may differ in case-to-case basis. In complaint cases cognizance shall be definitely not on taking sworn statement but on summoning the accused also [For detailed study go to Cognizance chapter].
21) Inquiry – Final report: If the magistrate may take final report on file, he may take cognizance (190 (1)(b)), proceeds for summoning the accused [(s.204)-magistrate may even summon persons not named in the final report] and may start inquiry on the final report.
22) Inquiry – Complaint: Chapter XV Cr.P.C may or may not be inquiry
23) Inquiry – Jurisdiction – deciding jurisdiction is part of inquiry or only after inquiry starts and not before.
24) Inquiry – “Not trial” – section 2(g) cr.p.c defines every inquiry other than a trial, conducted under this code by a Magistrate or Court.
25) Inquiry – Copies: contains Magistrate inquiring the final report allegations by contemplating the materials filed with the final report or with the complaint and giving copies to the accused (s. 207 or s. 208 cr.p.c).
26) Inquiry – Committal proceedings: section 209 Cr.P.C.
27) Inquiry – Discharge: If there is a chance of releasing the accused at that stage itself than the magistrate may ‘discharge’ the accused [s. 239 (on police report), s. 245 (otherwise than on police report)]. Kindly note that there is no provision to discharge the accused in summons trial. If the magistrate does not ‘discharge’ the accused he may proceed to frame the ‘charge’ or ‘charges’ against the accused. For sessions cases s. 227 cr.p.c.
28) Inquiry – The Charge: Now at this stage having known all the details the case the magistrate proceeds to allege the accused by saying that the accused had done certain acts or attempts classified as offences under IPC or any other laws. Judge is framing the accused into certain allegation known as “framing of charges”. This framing of charge must be his independent opinion gathered from the facts on the final report and not the opinion of the investigation officer (application of mind). [The Charge – Chapter XVII – sections 211 to 224 Cr.P.C – for detailed study see ‘The charge’ chapter].
29) Bail and bond procedures may or may not be a part of inquiry but it has original authority on its own [Chapter. XXXIII – ss. 436 to 450 cr.p.c]. for detailed study please see ‘Bail and Bond’.
Trial & Sentencing
30) Total Five types of trial:
1. Trial before a Court of session – Chapter. XVII – ss 225 to 237 Cr.P.C,
2. Trial of “Warrant cases by Magistrates” (Two types):
1) Trial of Warrant cases by Magistrates on ‘police report’ – Chapter. XIX – Part. A – ss. 238 to 243 Cr.P.C,
2) Trial of Warrant cases by Magistrates on ‘otherwise than on police report’ – Chapter. XIX – Part. B – ss. 244 to 250 Cr.P.C,
3. Trial of “Summons cases by Magistrates” – Chapter. XX – ss. 251 to 259 Cr.P.C,
4. Summary Trial – Chapter. XXI – ss. 260 to 265 Cr.P.C,
5. Trials before High Courts – Chapter. XXXVII – s. 474 Cr.P.C,
31) Trial – Starts with Evidence in Inquiries and Trials – Chapter. XXIII – ss. 272 to 299 Cr.P.C to be read with Provisions as to accused persons of unsound mind – Chapter. XXV – ss. 328 to 339 Cr.P.C.
32) Trials shall always end with “The Judgment” – Chapter. XXVII – ss. 353 to 365 Cr.P.C – The judgment may be as conviction or acquittal.
33) Appeal – Chapter XXIX – ss. 372 to 394 Cr.P.C is the continuation of the Trial and to be read with execution, suspension, remission and commutation of sentences – Chapter XXXII – ss. 413 to 435).
34) Revision – Commonly preferred against order(s) that are irregular or illegal. But, in some cases may prefer against The Judgment also. But revision shall not be preferred against ‘interlocutory orders”. Chapter. XXX – ss. 395 to 405 Cr.P.C and Chapter. XXXV – ss. 460 to 466 Cr.P.C shall be read as the part of Chapter XXX.
35) Disposal of Property – Chapter – XXIV – ss. 451 to 459 Cr.P.C. Transfer of Criminal cases – Chapter XXXI – ss. 406 to 412 Cr.P.C.
36) General Provisions as to Enquiries and Trials – chapter XXIV – ss. 300 to 327 Cr.P.C.
37) Finally – Plea Bargaining is the part of the Trial – Chapter. XXIA – ss. 265-A to 265-L Cr.P.C.
Further study on the subject
Protest petition must contain allegations
Powers of Magistrate u/s 156(3) direction
Affidavit: Court cannot convert complaint into a 156(3) Cr.P.C petition without following procedure
