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Criminal Procedure Code – CrPC NotesCriminal Procedure Code – CrPC NotesQUESTION`1:- Discuss the Rights of an arrested person?ANSWER:- Cr P C gives powers to the police for arresting a person with such power Cr P also provides rights to an arrested person. Rights of an arrested are as follows – Righ...

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Criminal Procedure Code – CrPC Notes By admin - September 21, 2018

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Criminal Procedure Code – CrPC Notes QUESTION`1:- Discuss the Rights of an arrested person? ANSWER:- Cr P C gives powers to the police for arresting a person with such power Cr P.C also provides rights to an arrested person. Rights of an arrested are as follows – 1. Right to know the grounds of arrest – Section 50(1) – According to this provision, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or any other grounds for such arrest. In case of Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows him to move the proper court for bail, make a writ petition for habeas corpus, or make appropriate arrangements for his defence. 2. Right to be informed of the provision for bail – Section 50(2) – Section 50(2), provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. 3. Right to be taken to magistrate without delay – Section 57 – of CrPC. It says that, No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours

exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court. In case of, Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours should be met. This allows magistrates to keep a check on the police investigation. It is essential that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police. Further, in case of, Sharifbai vs Abdul Razak, AIR 1961, SC held that if a police officer fails to produce an arrested person before a magistrate within 24 hours, he shall be held guilty of wrongful detention. 4. Right to consult Legal Practitioner – Section 303- Under section 303 it is mentioned that any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may have right to be defended by a pleader of his choice. 5. Right to free legal aid – Section 304 – Section 304 provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. In Suk Das vs Union Territory of Arunachal Pradesh 1986, SCC, SC has held that non-compliance of this requirement or failure to inform the accused of this right would spoil the trial entailing setting aside of the conviction and sentence. The right of an accused to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be within the presence of a police officer, but not within the police officer’s hearing. SC also held that it is the duty on all courts and magistrates to inform the indegent person about his right to get free legal aid.

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6. Right to be informed about the right to inform of his arrest to his relative or friend – Section 50 A (1) provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person’s

choice, about his arrest. He must also tell the place where the arrested person has been kept. Further, as per Section 50 A (3) he must note down the name and address of the person who was informed about the arrest. To make sure that there is no violation of this right, section 50 A (4) makes it a duty of the magistrate to verify that the provisions of this section were complied with. This allows the arrested person and his well wishers to take appropriate legal steps to secure his release. 7. Right to be examined by a medical practitioner – While Section 53 allows a police officer to get the accused examined by a registered medical practitioner, Section 54(1) gives the accused a right to get himself examined by a registered medical practitioner. According to Section 54 (1), when a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of’ the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice. In case of Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the arrested accused person must be informed by the magistrate about his right to be medically examined in terms of Section 54(1).

QUESTION 2:- Elaborate the trial of Warrant of cases by a Magistrate? Answer:- There are two different procedures prescribed for trial of warrant cases by a Magistrate: 1) Procedure of trial of warrant cases instituted on a police report. 2) Procedure of trial of warrant cases instituted otherwise than on a police report. Sections 238 to 243 both inclusive relate exclusively to the procedure of trials in cases initiated on police report whereas sections 244 to 247, both inclusive, relate exclusively to the procedure in cases initiated otherwise than on police report. Section 248 relates to both. A.-Cases instituted on a police report

Section 238 – Compliance with section 207 When in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial; the Magistrate shall satisfy himself that he has complied with the provisions of section 207 of the act. A case instituted upon a police report means a case initiated on a charge-sheet submitted by the police officer in a cognizable case. Any other case initiated in any other manner is a case initiated otherwise-than on a police report. Before proceeding with the case, the Magistrate has to ascertain as to whether the copies of documents require to be supplied to the accused according to Section 207 have been complied with. If they have not been so complied, the Magistrate should get them supplied and then proceed with the case. If a warrant case is tried as a summons case, the trial vitiates. Section 239 – When accused shall be discharged If, upon considering the police report and the documents sent with it under section 173 and making such examination of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. Under Section 239, Magistrate has the power to discharge the accused if upon the consideration of the documents sent to him under Section 173 and the examination of the accused, if any, he thinks necessary and after giving an opportunity to the prosecution and the accused being heard, he considers that the charge against the accused is groundless. If on the consideration of the documents and after the examination of the accused and after hearing the prosecution and the defence, the Magistrate is of opinion that there is a ground for presuming that the accused has committed an offence triable under this chapter with such Magistrate is competent to try and which he can adequately punish, he shall frame in writing a charge. The examination of the accused under sections 239 and 240 is meant only to get explanation from the accused of the incriminating circumstances appearing in the

documents sent up under Section 173. It is discretionary with the Magistrate to examine the accused. It is not obligatory to examine an accused. The Magistrate has to record reasons for discharging the accused. Failure to record the reasons makes the order illegal. The recording of reasons for discharge is essential so that the Higher Courts may be able to know as to be of opinion that the charge should not be framed and the accused should be discharged. Section 240 – Framing of charge If, upon such consideration examination and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. Then, the charge shall be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. A Magistrate shall frame a charge if there is a ground for presuming that the accused has committed an offence, the offence is triable under this chapter, the Magistrate is competent to try it and the accused can be adequately punished by him. A Magistrate can frame a charge in a case where is ground for presuming that the accused has committed an offence triable under this Chapter, that is to say, The offence must be punishable to imprisonment for a period exceeding two years. If the offence which appears to be triable as a summon case, no charge should be framed, though the accused may be tried without framing any charge as a summons case, similarly if the case is triable as a Sessions trial, no charge can be framed by the Magistrate. A Magistrate can frame a charge under Section 240 only when he is competent to try the case. A Magistrate may not be competent to try the case if the offence has been committed beyond the local jurisdiction of his Court. The charge framed shall be read over and explained to the accused and he should be asked whether he pleads guilty or not. Charge shall be read over the accused and not the pleader. It has been held that the charge may be explained to the counsel of the accused and he may be allowed to plead or not to plead on behalf of the accused. But this view is not

correct. The charge has to be explained to the accused and the accused has to plead guilty or not. Section 241 – Conviction on plea of guilty If the accused pleads guilty, the Magistrate shall record the plea and may, on his discretion, convict him thereon. If the accused pleads guilty, the Magistrate should record his plea in his own words and clearly. The Magistrate has discretion to convict an accused on his plea of guilty. But the plea of guilty must be clear. It is admission of all the facts on which the charge is founded and also the admission of guilt in respect of them. When the accused pleaded not guilty at the time of charge being read over to him and the Magistrate proceeded to take evidence but afterwards the accused accepted the guilt, it was held that he could not be convicted under Section 241. The plea of the accused must be recorded as much as possible in the very words of the accused so that the higher courts may determine whether the plea of the accused really amounted to a confession of the guilt. Section 242 – Evidence for prosecution If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under section 241 the Magistrate shall fix a date for the examination of witnesses. Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police. The Magistrate may, on the application of the prosecution, issue a summons to any witnesses directing him to attend or to produce any document or other thing, On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination When the accused does not plead guilty or claims to be tried or even on plea of guilty the Magistrate does not convict him, he shall fix a date for the examination of witnesses. It is for the benefit of the accused that this provision for fixing a date has been provided. If the Magistrate after the statement of accused not pleading guilty, straight way proceeds with the case, the accused may be prejudiced and such proceeding certainly makes the trial illegal. On the date so fixed, the Magistrate is bound to take all the evidence by the prosecution. The provision of Section 242(3) is mandatory. There can be no doubt that the Magistrate is bound to take all such evidence as may be produced in support of the prosecution. A Magistrate is not competent to acquit the accused without taking all the evidence which is offered by the prosecution. If he does acquit without taking all the evidence, the order is illegal. Under section 242(3) which is in very wide term, the Magistrate is bound to take all such evidence as may be produced in support of the prosecution. There is ample authority in support of the view that if in the course of the trial, the prosecution thinks it necessary to file additional documents or statements of witnesses on which they proposes to rely, the non-supply of copies does not prevent them from filing the documents or examining the witnesses. It is not the bounden duty of the court to compel the attendance of the witnesses suo moto and examine them under Section 311, even if the prosecution does not care to produce them. The court may help the prosecution in securing the attendance of the witnesses. The prosecution has to give the list of the witnesses and pray for issue of summons and the summons being infructuous, the prosecution has to approach the Court for warrant etc. If the prosecution fails to take steps and does not produce evidence, the court may close the prosecution evidence and proceed further and may acquit the accused. The term examination means the examination, cross-examination and re-examination. Consequently, when a witness is examined by the prosecution on the date fixed for taking evidence, the witness has to be cross-examined by the accused. But in suitable cases the Magistrate may postpone the cross-examination of a witness who has been examined by

the prosecution till other witness or witnesses have been examined. This provision is for the benefit of the accused to give him opportunity to cross-examine all the witnesses in continuation. Section 243 – Evidence for defence The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of crossexamining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. The Magistrate may, before summoning any witness on an application under Sub-Section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court. B.-Cases instituted otherwise than on police report Section 244 – Evidence for prosecution When, in any warrant-case instituted otherwise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. Section 245 – When accused shall be discharged

If, upon taking all the evidence referred to in section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. Section 246 – Procedure where accused is not discharged. If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under Sub-Section (3) he shall be required to stale, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after crossexamination and re-examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any), they shall also be discharged. Section 247 – Evidence for defence.

The accused shall then be called upon to enter upon his defence and produce his evidence; and the provisions of section 243 shall apply to the case. C.-Conclusion of trial Section 248 – Acquittal or conviction If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal. Where, in any case under this Chapter, the Magistrate finds the accused guilty, hut does not proceed in accordance with the provisions of section 325 or section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law. Where, in any case under this Chapter, a previous conviction is charged under the provisions of Sub-Section (7) of section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused, take evidence in respect of the alleged previous conviction, and shall record a finding thereon: Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under SubSection (2). Section 249 – Absence of complainant When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, an...