Q. Describe the organization of police, prosecutor, defence counsel and prison authorities and their functions, duties, and powers.
The ordinary criminal courts derive their existence from CrPC. However, CrPC does not say anything about the constitution of Police. It assumes the existence of police and devolves various powers and responsibilities on to it.
As per The Police Act, 1861, the police force is an instrument for the prevention and detection of crime.
Every state establishes its own police force which is formally enrolled. The force consists of such number of officers and men and is constituted in such manner as the state govt. may decide from time to time. The overall administration of police in the entire state is done by the Director General of Police. The administration of police in a district is done by District Superintendent of Police under the general control and direction of District Magistrate who is usually the Collector of the district. Every police officer appointed to the police force, other than Inspector General of Police and District Superintendent of Police, receives a certificate in prescribed form by virtue of which he is vested with the powers, functions and privileges of a police officer.
The Police Act, 1888 also empowers the Central Govt to create special police districts and to extend the jurisdiction of police of any state to that district. The Police Act 1949, creates a police force for Union Territories.
- The Cr P C confers specific powers on the members of police force who are enrolled as police officers. These powers include power to make an arrest, search, and investigate. Wider powers have been given to police officers in charge of a police station. As per Section 2(s), police station means any post or place that is generally or specially designated by the state govt as a police station. Further, as per Section 2(o) officer in charge of a police station includes the officer who is present at the police station and is next in rank to the police officer in charge, if he is on leave or is absent. This only increases the importance of the police officer in charge of a police station.
- Section 36 of CrPC specifies that officers of police who are superior in rank to police officer in charge of a police station can exercise all the powers of that police officer. In the case of State of Bihar vs J A C Saldanha SCC 1980, SC held that if the Inspector General (Vigilance) is an officer superior to the officer in charge of the police station he can exercise the powers of that officer through out the territory to which the superior officer has been appointed, which, in this case is the entire territory of Bihar.
A crime is a wrong not only against an individual but is also against the society. It is because of this reason that the state, which represents the collective of people, participates in the criminal trial of an accused, specially if the crime is of cognizable nature. Public Prosecutor or Assistant Public Prosecutor is the state counsel for such trials. As per section 2(u), Public Prosecutor means any person appointed under Section 24 and includes any person acting under the directions of the public prosecutor. Section 24 of CrPC specifies the rules for appointment of Public Prosecutor. A person shall be eligible to be appointed in High Court as Public Prosecutor if he has been in practice as an advocate for not less than seven years. The appointment can be made only after consultation with the High Court. Further, the central govt. can appoint a Public Prosecutor for conducting in a high court any prosecution, appeal, or other proceeding on behalf of the Central Govt.
Assistant Public Prosecutor are appointed under Section 25. It authorizes the State Govt. to appoint one or more APPs for every district for conducting any case in Court of Magistrates. No police officer is allowed to be appointed as APP.
Duty of a public prosecutor mainly consists in conducting the prosecution on behalf of the state. His goal is not merely to produce a conviction but the help the court arrive at a just decision. He also appears as the state counsel in criminal appeals, revisions, and such other matters in the Session Courts and High Court. It is important to note that he does not appear on behalf of the accused.
- As per Section 301, a Public Prosecutor or Assistant Public Prosecutor has the authority to appear and plead before any court in any case entrusted to him.
- As per Section 321, he can withdraw from the prosecution against any person with the consent of the court.
According to the pattern set by CrPC, Public Prosecutors conduct the proceedings in Session Courts and the High Courts and Assistant Public Prosecutors are appointed for conducting prosecution in Magistrates’ Courts. As per prevailing practice, in respect of cases initiated on police reports, the prosecution is conducted by the APP and in cases initiated on a private complaint the prosecution is either conducted by the complainant himself or by his duly authorized counsel.
As per Section 303, any person accused of an offence before a Criminal Court has a right to be defended by a pleader of his choice. Such pleaders are not in regular employment of the state and a paid remuneration by the accused person. Since, a qualified legal practitioner on behalf of the accused is essential for ensuring a fair trial, Section 304 provides that if the accused does not have means to hire a pleader, the court shall assign a pleader for him at state’s expense.
At present there are several schemes through which an indigent accused can get free legal aid such as Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board, and Supreme Court Senior Advocates Fee Legal Aid Society. The Legal Services Authorities Act, 1987 also provides free legal aid for the needy.
CrPC presumes the existence of Prisons and Prison authorities. The code empowers magistrates and judges under certain circumstances to order detention of under trial prisoners in jail during the pendency of proceedings. The code also empowers the courts to impose sentences of imprisonment on convicted persons and to send them to prison authorities. However, the code does not make specific provisions for creation and administration of prison authorities. These matters are dealt with in separate acts such as The Prisons Act 1894, The Prisoners Act, 1900, and the Probation of Offenders Act 1958.
Q. What do you understand by Arrest? How is an arrest made? When can the police arrest a person without an order from a magistrate and/or without a warrant? Explain the rights of an arrested person. [Right to know the grounds of arrest – Art 22(1), Sec 50, 50(A), Right to consult and to be defended by legal practitioner of his choice – Art 22(1), Sec 303, Right to legal aid – Art 21, Sec 304, Right to bail Sec 50(2), Right to be produced before nearest magistrate within 24 hrs – Art 22(2) Sec 56, 57, Right not to be detained in custody beyond 24 hrs – Art 22(2) Sec 57, 167, Right to be examined by medical practitioner]
Arrest means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus, after arrest, a person’s liberty is in control of the arrester. Arrest is an important tool for bringing an accused before the court as well as to prevent a crime or prevent a person suspected of doing crime from running away from the law. Cr P C contemplates two types of arrests – an arrest that is made for the execution of a warrant issued by a magistrate and an arrest that is made without any warrant but in accordance with some legal provision that permits arrest.
Section 41 to 44 contain provisions that govern the arrest of a person by police and private citizens, while Section 46 describes how an arrest is a made.
(Note – Arrest in case of Warrant is discussed in another question.)
Arrest without warrant
There are situations when a person may be arrested by a police officer, a magistrate or even private citizen without a warrant. These are described in Section 41, 42, 43, and 44 as follows –
Arrest by Police – Section 41. When police may arrest without warrant (CIPSODOBO)
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –
(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.
In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held that no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest. Further, in State vs Bhera, CrLJ, 1997, it was held that the “reasonable suspicion” and “creditable information” must relate to definite averments which must be considered by the Police Officer himself before he arrests the person.
Section 42 allows a police officer to arrest a person for a non-cognizable offence, if he refuses to give his name and residence. As per Section 42(1), when any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
However, as per sub clause (2), the person must be released when the true name and residence of such person have been ascertained. He may be required to execute a bond, with or without sureties, to appear before a Magistrate if necessary.
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
Further, as per sub clause (3), should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
Arrest by Private person
Even private persons are empowered to arrest a person for protection of peace in certain situations. This is important because police cannot be present at every nook and corner and it is up to private citizens to protect the society from disruptive elements or criminals. As per section 43(1), any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. Thus, if a person is drunk and is committing assault on others, he may be rightly arrested by any citizen and taken to the nearest police station.
However, it is important to note that this power can be exercised only when the person making an arrest is under a bona fide impression that a non-bailable and cognizable office is being committed in his presence. One does not have a right to arrest on mere suspicion or on mere opinion that an offence has been committed.
Procedure on arrest by private person –
As mentioned above, the private person must take the arrested person to the police officer or police station without any reasonable delay. If he keeps the person in his own custody, he will be guilty of wrongful confinement as given in Section 342 of IPC.
As per section 43(2), If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him. Further, as per section 43(3), if there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
A new provision has been incorporated as Section 50A, which makes it obligatory for the police officer or any other person making an arrest to give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. Further, the police officer shall inform the arrested person of his rights under subsection as soon as he is brought to the police station. He must make an entry of the fact as to who has been informed of the arrest of such person in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. It is the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of this section has been complied with in respect of such arrested person.
Arrest by Magistrate
As per Section 44(1), when any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. Further, (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
Important thing to note here is that magistrates have wider power than private citizen. A magistrate can arrest on the ground of any offence and not only on cognizable offence. As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the arrested person must be produced before another magistrate within 24 hours, otherwise his detention will be illegal.
Arrest how made –
Section 46 describes the way in which an arrest is actually made. As per Section 46(1), unless the person being arrested consents to the submission to custody by words or actions, the arrester shall actually touch or confine the body of the person to be arrested. Since arrest is a restraint on the liberty of the person, it is necessary for the person being arrested to either submit to custody or the arrester must touch and confine his body. Mere oral declaration of arrest by the arrester without getting submission to custody or physical touching to confine the body will not amount to arrest. The submission to custody may be by express words or by action. For example, as held in the case of Bharosa Ramdayal vs Emperor AIR 1941, if a person makes a statement to the police accusing himself of committing an offence, he would be considered to have submitted to the custody of the police officer. Similarly, if the accused proceeds towards the police station as directed by the police officer, he has submitted to the custody. In such cases, physical contact is not required. In case of Birendra Kumar Rai vs Union of India, CrLJ, 1992, it was held that arrest need not be by handcuffing the person, and it can also be complete by spoken words if the person submits to custody.
Section 46(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. Thus, if the person tries to runaway, the police officer can take actions to prevent his escape and in doing so, he can use physical force to immobilize the accused. However, as per Section 46(3), there is no right to cause the death of the person who is not accused of an offence punishable with death or with imprisonment for life, while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is necessary to prevent him from escaping.
Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer after making a written report and obtaining a prior permission from the concerned Judicial Magistrate of First class.
In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person.
Rights of an Arrested person (GBMLLIM)
Cr P C gives wide powers to the police for arresting a person. Such powers without appropriate safeguards for the arrested person will be harmful for the society. To ensure that this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can be seen as recognition of the rights of a person being arrested. Further, once arrested, a person is already at a disadvantage because of his lack of freedom and so he cannot take appropriate steps to defend himself. Thus, to meet the needs of “fair trial”, several provisions are given in CrPC, that give specific rights to an arrested person. These rights can be described as follows –
- Right to know the grounds of arrest – Section 50(1) – According 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 other grounds for such arrest.
Similarly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55, the subordinate officer must notify the person to be arrested of the substance of the written order given by the senior officer, which clearly specifes the offence for which he is being arrested. The same provision exists in case of an arrest made under a warrant in Section 75. In this case, the police officer or any person making arrest under warrat must notify the substance of the warrant to the person being arrested and if required, must show the warrant. As held in Satish Chandra Rai vs Jodu Nandan Singh, ILR 26 Cal 748, if the substance of the warrant is not notified, the arrest would be unlawful.
In 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.
This right is also a fundamental right given by the Constitution in Art 22(1), which says, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”. It embodies two distinc rights – the right to be told of the grounds of arrest and the right to consult a legal practioner of his choice. The second right of consulting a legal practitioner of his choice actually depends on the first right of being told about the grounds of arrest. If the person doesn’t know why he is being arrested, he cannot consult a legal practioner meaningfully. In Harikishan vs State of Maharashtra AIR 1962, SC held that the grounds of arrest must be communicated to the person in the language that he understands otherwise it would not amount to sufficient compliance of the constitutional requirement.
- Right to be informed of the provision for bail – Section 50(2) – Some offences that are not very serious do not require the offender to be kept in custody. For such offences, Cr P C allows the offender to ask for bail as a matter of right. However, not every person knows about Cr P C and so they cannot know that they can get bail immediately. Thus, 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.
- Right to be taken to magistrate without delay – Holding a person in custody without first proving that the person is guilty is a violation of human rights and is completely unfair. At the same time, holding a person in custody is necessary for the police to carry on their investigation of a crime. These two are contradictory requirements and a balance must be found between them. Since police has arrested the person, it cannot be the agency that determines whether person must be kept confined further. This can only be decided by a competent judicial authority. This is exactly what is embodied in Art 22(2) that gives a fundamental right to the arrested person that he must be produced before a magistrate within 24 hours of arrest. It says, “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
Section 57 of CrPC also contains a similar provision for a person arrested without a warrant. It says, “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.”
Section 76 contains a similar provision for a person arrested under a warrant. It says, “The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person. Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.”
Thus, it can be see that it is a very important right that is meant to prevent abuse of police power and to prevent the use of a police station as a prison. It prevents arrest merely for the purpose of extracting confessions. The arrested person gets to be heard by a judicial authority that is independent of the police.
In 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 be scrupulously met. This is a healthy provision that allows magistrates to keep a check on the police investigation. It is necessary that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police.
Further, in 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.
Constitutional Perspective on Art 22(2) – On the face of it, this article seems to be applicable on arrests with or without warrants. However, in State of Punjab vs Ajiab Singh AIR 1953, SC observed that it applies only to cases of arrests without warrant because in case of an arrest with warrant, the judicial mind has already been applied while issuing the warrant. So further safeguard is not required. This decision has been widely criticized. In any case, the proviso to Section 76 unmistakably provides that a person arrested under a warrant must be produced before a magistrate within 24 hours.
- Right to consult Legal Practitioner – Art 22 (1) – For conducting a fair trial it is absolutely necessary that the accused person is able to consult with a legal practitioner whom he trusts. Second part of Article 22(1) gives this fundamental right to an arrested person. It says that no person who is arrested shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. However, this does not mean that the State must provide a legal practitioner of the person’s choice. It is up to the arrested person to contact and appoint a such a legal practitioner. The State’s responsibility is only to ensure that he is not prevented from doing so.
The same right is also provide by CrPC under Section 303, which says, “Any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.”
- Right to free legal aid – Art 21 and Section 304 – A person who does not have the means to hire a legal practitioner is unable to defend himself appropriately. This casts a cloud on the fairness of the trial. Therefore, 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 defense at the expense of the State. In Khatri (II) vs State of Bihar 1981 SCC, Supreme Court has also held that access to a legal practitioner is implicit in Article 21, which gives fundamental right to life and liberty. The state is under constitutional mandate to provide free legal aid to an indigent accused person and this constitutional obligation arises not only when the trial is commenced but also when the person is first produced before a magistrate and also when he is remanded from time to time. 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 vitiate the trial entailing setting aside of the conviction and sentence. The right of an accused person 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.
- Right to be informed about the right to inform of his arrest to his relative or friend –
In order to ensure a fair trial and to improve people-police relationship, the Supreme Court, in Joginder Kumar vs State of UP 1994, formulated the rules that make it mandatory on the police officer to inform one friend, relative, or any other person of the accused person’s choice, about his arrest. These rules were later incorporated in CrPC under section 50 A in 2005.
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. This is a very important step in ensuring justice with the arrested person because this allows the arrested person and his well wishers to take appropriate legal steps to secure his release. However, all this will amount to nothing if the arrested person does not even know about this very critical right. Thus, Section 50 A (2) provides that the police officer must inform the arrested person of this right. 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.
- 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. Section 54 (1) says thus, “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”. While Section 53 is meant to aid the police in investigation, Section 54(1) is meant for the accused to prove his innocence. This right can also be used by the accused to prove that he was subjected to physical injury.
In 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).
However, it is not clear in the section whether the medical person must be of the choice of the accused or shall be appointed by the magistrate. The section is also silent on who will bear the expense of the examination.
Non compliance to this important provision prompted Delhi High court to issue directions that make it obligatory for the magistrates to ask the arrested person as to whether he has any complaint of torture or maltreatment in police custody.
Consequences of non-compliance with the provisions relating to arrest –
In general, non-compliance does not void a trial. Just because any provision relating to arrest was not complied with does not affect whether the accused is guilty or not. However, the violation will be material in case the accused is prosecuted on the charge of resistance to or escape from lawful custody.
Further, everybody has a right to defend himself against unlawful arrest and a person can exercise this right under Section 96 to 106 of IPC and he will not be liable for any injury caused due to it. Also, a person who is making an illegal arrest is guilty of wrongful confinement and also exposes himself to damages in a civil suit.
If a person who has an authority to arrest, arrests a person with full knowledge that the arrest is illegal, he will be liable to be prosecuted under Section 220 of IPC. Similarly, any private person who does not have an authority to arrest, arrests a person with full knowledge that the arrest is illegal, can be prosecuted under Section 342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of false imprisonment.
It is important to note that the provisions regarding arrest cannot be by-passed by alleging that there was no arrest but only an informal detention. Informal detention or restraint of any kind by the police is not authorized by law.
Q. What provisions are given in CrPC for compelling appearance in courts? What do you know about Summons in this context? Describe the procedure for issue and service of a Summons. How can a Summons be served on a govt. employee or outside local limits?
Processes for compelling appearance
To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court whenever needed. If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced. Further, the supremacy of the law will be questionable if there is no formal process to bring the required persons before the court. For this reason, Chapter VI (Sections 61 to 90) of CrPC provides three ways for compelling the appearance of any person who is required to be present in the court, in the court –
Proclamation for person absconding
While Summons is an order of the court to the person to appear before it, Warrant is an order of the court given to a third person to bring the person who is required to be present in the court, in the court. Which method is to be used in a particular situation depends on the judicial officer, who is guided by the provisions of this code. The third method is used when the person has absconded or is in any other way avoiding arrest, in which case the Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation
The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant case if the offence is punishable by death, imprisonment for life or imprisonment for more than two years. A summons case is a case that is not a warrant case. Thus, the basis of classification is the seriousness of the offence. Since summons case contains a lesser sentence, there is less probability of the accused violating the court order. Therefore, generally, a summons is issued for a summons case and a warrant is issued for a warrant case. However, when a summons is not productive in making a person appear before the court, the count may issue a warrant to a police officer or any other person to forcibly produce the required person before the court.
A Summons is a process issued by a Court, calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to a violation of the law. It is addressed to a defendant in a legal proceeding. Typically, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person, and that a file has been started in the court records. The summons announces a date and time on which the person must appear in court.
A person who is summoned is legally bound to appear before the court on the given date and time. Willful disobedience is liable to be punished under Section 174 of IPC. It is a ground for contempt of court.
As per Section 61, every summons issued by a Court under this Code shall be in writing and in duplicate. It must be signed by the presiding officer of the Court or by such other officer as the High Court may, from time to time, by rule direct. It must also bear the seal of the Court.
Procedure for issuing a Summons
When a request in appropriate format is made to the court for compelling the appearance for a person, the court either rejects the request or issues a Summons. As per Section 204, if in the opinion of the magistrate taking cognizance of the offence, there is sufficient ground for proceeding, he shall issue a summons if it is a summons case. If it is a warrants case, he may issue a warrant or a summons as he thinks fit. However, Section 87, empowers a magistrate to issue a warrant even if the case is a summons case if he has reason to believe that the summons will be disobeyed. He must record his reasons for this action.
The summons should contain adequate particulars such as the date, time, and place, of the offence charged. It should also contain the date, time, and place where the summoned person is supposed to appear. The standard format of a summons is given in Form 1 of Second schedule.
As per Section 205, a magistrate issuing the summons may permit the accused to appear by his lawyer if he sees reason to do so.
Procedure for serving a Summons
CrPC describes the procedures for serving a summons on various categories of individuals – a person, a corporate body, a government servant, and a person residing outside the jurisdiction of the court.
Section 62 describes the procedure for serving a Summons on a person as follows –
(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.
In case of Danatram Karsanal, 1968, it was held that summons should not only be shown but a copy of it be left, exhibited, delivered, or tendered, to the person summoned. In a case, where a copy was tendered to the person, it was held that the summon was served.
In E Chathu vs P Gopalan, 1981, it was held that when the person sought to be summoned is employed abroad, the court can send summons to the concerned embassy official for the purpose of service since the embassy official is also a public servant. Merely affixing the summon on a conspicuous part of the house will not amount to service of the summon.
Service of summons on corporate bodies and societies (Section 63) –
Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principle officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post. In this section, “corporation” means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860.
In the case of Central Bank of India vs Delhi Development Authority, 1981, it was held that a Branch Manager is a local manager and if he has been served the service shall be deemed to have been effected on the company itself.
Service when persons summoned cannot be found (Section 64) –
Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. A servant is not considered to be a member of the family within the meaning of this section.
Procedure when service cannot be effected as before provided (Section 65) –
If service cannot by the exercise of due diligence be effected as provided in section 62, section 63, or section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.
The service of summons on a witness can also be done by post. As per Section 69 –
(1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.
(2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the summons may declare that the summons has been duly served.
Service of summons on a Govt. employee (Section 66) –
Section 66 details the procedure for serving a summons on a Government employee as follows –
(1) Where the person summoned is in the active service of the Government, the Court issuing the summons shall ordinarily sent it in duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the Court under his signature with the endorsement required by that section.
(2) Such signature shall be evidence of due service.
Service of summons outside local limits (Section 67) –
When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is believed to be there, served.
Q. What do you understand by Warrant of Arrest? Describe the procedure for issue and execution of a Warrant of Arrest. When can a court issue a warrant in a case in which it is empowered to issue a summons? When can a warrant be issued for recovery of a fine?
To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court whenever needed. If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced. Further, the supremacy of the law will be questionable if there is no formal process to bring the required persons before the court. For this reason, Chapter VI (Sections 61 to 90) of CrPC provides two ways for compelling the appearance of any person who is required to be present in the court, in the court – Summons and Warrant. While Summons is an order of the court to the person to appear before it, Warrant is an order of the court given to a third person to bring the person who is required to be present in the court, in the court. Which method is to be used in a particular situation depends on the judicial officer, who is guided by the provisions of this code.
The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant case if the offence is punishable by death, imprisonment for life or imprisonment for more than two years. A summons case is a case that is not a warrant case. Thus, The basis of classification is the seriousness of the offence. Since summons case contains a lesser sentence, there is less probability of the accused violating the court order. Therefore, generally, a summons is issued for a summons case and a warrant is issued for a warrant case. However, when a Summons is not productive in making a person appear before the court, the count may issue a warrant to a police officer or any other person to forcibly produce the required person before the court.
Warrant of Arrest
A warrant of arrest is a written authority given by a competent magistrate for the arrest of a person. It is a more drastic step than the issue of a summons. It is addressed to a person, usually a police officer, to apprehend and produce the offender in front of the court.
Essential Elements of a valid warrant –
- The warrant must clearly mention the name and other particulars of the person to be arrested. As per Section 70(1), every warrant of arrest shall be in writing. It must be signed by the presiding officer of the court and must bear the seal of the court. As per section 70(2), a warrant remains in force until it is canceled or is executed. Normally, Form 2 of Second schedule is used to write a warrant.
- It must show the person to whom the authority to arrest has been given. As per Section 72, a warrant is normally directed to one or more police officers but, if necessary, the court may direct it to any other person or persons. Further, section 73 provides that a magistrate may direct a warrant to any person within his jurisdiction for the arrest of any escaped convict, proclaimed offender, or of any person who is accused of a non-bailable offence and is evading arrest.
- It may include a direction that if the person arrested under the warrant executes a bond and gives security for his attendance in court, he shall be released. Warrant with such a direction is called as bailable warrant of arrest.
- It must clearly specify the offence.
Procedure for issuing a Warrant
When a request in appropriate format is made to the court for compelling the appearance for a person, the court either rejects the request or issues a Warrant. As per Section 204, if in the opinion of the magistrate taking cognizance of the offence, there is sufficient ground for proceeding, and if the cases is a warrant case, he may issue a warrant or if he thinks fit, he may issue a summons.
Further, Section 87, empowers a magistrate to issue a warrant even if the case is a summons case if he has reason to believe that the summons will be disobeyed. He must record his reasons for this action.
Procedure for executing a Warrant
As per section 75, A warrant can be executed by showing the substance of the warrant to the person being arrest. If required, the warrant must be shown to the person arrested. Section 76 mandates that the person executing the warrant must produce the arrested person before the magistrate without unnecessary delay and within 24 hours excluding the time taken for travel from the place of arrest to the magistrate.
As per section 77, a warrant may be executed anywhere in India. Section 78 specifies that if a warrant is to be executed outside the local jurisdiction of the court issuing it, such court may send it to the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed instead of directing it to the police officer within the jurisdiction of the issuing court.
Section 79 specifies the procedure for executing a warrant outside the local jurisdiction of the issuing court as follows –
(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant.
(3)Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the Court which issued it.
When can a court issue a Warrant in a case in which it is empowered to issue summons
As per Section 87 a court may issue a warrant even in a case in which it is empowered only to issue a summons. A court can issue a warrant either before issuing a summons or even after issuing a summons. It may do so if it has reason to believe that the person has absconded or that the person will not obey the summons. Further, a court may issue a warrant if the summons was duly served and still the person fails to appear before it at the required date and time without any reasonable excuse. The court must record its reasons to do so.
It must be noted that Section 204 empowers the court to issue a summons even for a warrants case if it believes that a summons is sufficient to enforce the appearance of the person before it, while Section 87 empowers the court to issue a warrant even in a summons cases, if reasonable causes exist. In general, a warrant ought not to be issued where a summons can serve the purpose and care should be exercised by the court to satisfy itself that upon the materials present before it, it was necessary to issue a warrant. In Anoop Singh vs Cheelu AIR 1957, it was held that this applies to an accused as well as a witness. But where the court has no power to issue a summons, it cannot issue a warrant under this section. In P K Baidya vs Chaya Rani AIR 1995, it was held that when a witness avoids his appearance in spite of the summons being appropriately served, court can take steps for securing his presence under this section.
When can a warrant be issued for recovery of a fine
Section 421 – Warrant for levy of fine-
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may,-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless, it has made an order for the payment of expenses or compensation out of the fine under Section 357.
(2) The State Government may make rules regulating the manner in which warrants under Clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under Clause (b) of sub-section (1), the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
Q. When is a person declared Absconder? Explain the procedure for publication of proclamation for persons absconding with reference to Sections 82, 83, 84, 85.
When a person is hiding from his place of residence so as to frustrate the execution of a warrant of arrest, he is said have absconded. A person may hide within his residence or outside away from his residence. If a person comes to know about the issuance of a process against him or if he anticipates such a process and hides or quits the country, he is said to have absconded. In Kartary vs State of UP, 1994, All HC held that when in order to evade the process of law a person is hiding from (or even in) his place of residence, he is said to abscond. A person is not said to abscond merely when he has gone to a distant place before the issuance of a warrant. Similarly, it is necessary that the person is hiding himself and it is not sufficient that an inspector is unable to find him.
Normally, if a person fails to appear before the court even after being served a summons, the court issues a warrant of arrest. However, if the person absconds to avoid the arrest, the drastic step of Proclamation for Persons Absconding needs to be taken, which is described in Section 82..
Proclamation for person absconding (Section 82(1)) –
If the court has reason to believe that a person has absconded to avoid the execution of his arrest warrant, the court may publish a written proclamation requiring such person to appear before it at the specified place and time. The date and time of appearance must not be less than thirty days from the date of proclamation.
Procedure for Publication of the Proclamation (Section 82(2)) –
As per section 82(2), the proclamation must be read in some conspicious place of the town or village in which the person resides. It shall also be affixed to some conspicuous part of the house in which the person resides or to some conspicuous place of the town or village. Further, a copy of the same must also be affixed to some conspicious part of the court house. The court may also direct a copy of the proclamation to be published in a daily newspaper circulating in the place is which such person ordinarily resides.
The terms of Section 82 are mandatory and a proclamation cannot be issued without first issuing a warrant of arrest. Therefore, as held in Bishnudayal vs Emperor AIR 1943, if there is no authority to arrest, the issuing of proclamation would be illegal.
Consequences of Proclamation
Section 83 – Attachment of property of person absconding –
The publication of proclamation in accordance with the procedure described in section 82, is the last of the steps taken to produce a person before the court. If the person still fails to appear before the court, Section 83 empowers the court to attach the property of the person who is absconding at any time. The court must record the reasons for doing so. The property can be movable or immovable. The property can be any property within the district or even outside the district of the District magistrate of the other district endorses the proclamation.
Further, if, at the time of making proclamation, the court is satisfied that the person is about to dispose of his property or is about to move his property out of the jurisdiction of the court, it may order the attachment of the property simultaneously with the issue of proclamation.
If the property to be attached is a debt or is movable property, the attachment is done either by seizure, by the appointment of a receiver, by an order ins writing prohibiting the deliver of sch property to the proclaimed person or to anyone on his behalf. Court can also use any one or more of these modes as it thinks fit. If the property is immovable, it can be attached by taking possession, by appointing a receiver, by an order prohibiting the payment of rent to the proclaimed persons or by any or all of these methods.
Section 84 provides a means to protect the interests of any person other than the proclaimed person in the attached property. Any such person who has an interest in the attached property can claim it within six months from the date of attachment on the ground that the claimant has an interest in the property and the interest is not liable to be attached under section 83. The claim shall be inquired into and may be allowed or disallowed in whole or in part.
(1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:
Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.
(2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under sub-section (2) of section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made.
(3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made:
Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him.
(4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.
Section 85 – Release, Sale, and restoration of the property –
(1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.
(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit.
(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale, and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him.
Q. 8 What is meant by Commencement of proceedings? [Sec 200, 201, 202] When can a complaint be dismissed?[Sec 203]
“Commencement of proceedings” happens with the proceedings that take place after “taking of cognizance” of an offence by a magistrate under Section 190, which can happen either on a complaint by any person, a police report, any other source other than a police officer, or upon his own knowledge. However, when cognizance is take upon a complaint made by any person, it is critical to examin the complainant to ensure that the complaint is genuine before starting the trial and summoning an accused. According to 41st Law Report, everyday experience of the court shows that a vast number of complaints to the magistrate are ill founded and therefore they should be carefully considered at the very start and those which are not very convincing on the face should be subjected to further scrutiny so that an accused person is summoned only in substantial cases. What this means is that frivolous and vexatious cases that are just meant to harass an accused must be weeded out. This is exactly the objective of Section 200, which implores a magistrate to examin the compainant under oath and any witnesses.
Section 200 says: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
In MacCulloch vs State, 1974, it was held by SC that the provisions of section 200 are not a mere formality, but have been intended by the legislature to be given effect to for the protection of the accused persons against unwarranted complaints.
It is also necessary that to start the trial process, the magistrate must be competant to take cognizance the alleged offence. Section 201 says that if the magistrate is not competant to take congnizace of an offence, he shall (a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court.
To further protect a person from frivolous cases arising from complaints from private parties, Section 202 empowers a magistrate to inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding and he can postpone the issue for process for this purpose.
It is important to note that the “weeding” as envisaged by Section 200-203 is only applicable to cases where cognizance is taken by the magistrate upon a complaint by a private party. It is not applicable to cognizance taken upon a police report.
Issue of Process (Section 204)
Once it is determined that a prima facie case exists against the accused, the magistrate proceeds with the case as per Section 204 by the way of issuing a process. Which means :
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be –
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87 (Section 87: Issue of warrant in lieu of, or in addition to, summons).
Dismissal of a Complaint – Section 203
As mentioned before, upon receiving a complaint, a magistrate can conduct an inquiry or direct investigation of the complaint under Section 202(1). Section 203 empowers a magistrate to dismiss the complaint, if, after considering the statements on oath from the complainant or his witnesses or the result of the inquiry or investigation, he believes that there are no sufficient grounds for proceeding further. He must record the reasons for dismissal. The magistrate must apply his mind on the collected statements and inquiry report to determine whether there is any merit in the complaint. However, as held by SC in Chandra Deo Singh vs Prokash Chandra Bose, 1963, the test specified by Section 203 for dismissing a complaint is only whether sufficient grounds exist for proceeding further and not whether sufficient grounds exist for conviction. Thus, even if the magistrate does not see sufficient grounds for conviction but sees sufficient ground for proceeding further with the trial, he must not dismiss the complaint. SC further observed that where there is a prima facie evidence against the accused, even though the accused might have a defence, the issue of process cannot be refused because the hearing of defence must be done at the appropriate stage and at appropriate forum.
Q. What is an offence?
General Concept of Offence
A violation of a penal law is an offence. Thus, any act which is deemed as an offence by any law is an offence. In general, such act which causes a violation of rights of others or cause harm to others and is so dangerous that is also affects the society at large is designated as offence by the legislature through the acts of the parliament. Section 2(n) of CrPC defines an offence as follows –
Section 2(n) – “Offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871.
Further Section 39(2) says that act committed outside India is also an offence if that act would be an offence if committed in India.
It is important to note that an act is not offence unless it is clearly defined as an offence by any piece of legislature. Thus, to be an offence, the legislature must designate it to be an offence. Several Acts and Legislations defines such acts which constitute offences. The main among them is the Indian Penal Code. It defines acts ranging from theft and murder to fraud and criminal breach of trust and makes them offences. Examples of other acts which defines offences are Wildlife Protection Act, Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act, Environmental Protection Act. These Acts defines certain activities related to the focus of the Act as offences. Some Acts such as Prevention of Corruption Act and Narcotic Drugs and Psychotropic Substances Act also specify the mode of trial for the offences that they define, while some specify that trial for their offences will be held as per the provisions of Cr PC.
Q. What is Bail?
The purpose of arrest and detention of a person is primarily to make sure that the person appears before the court at the time of trial and if he is found guilty and is sentenced to imprisonment, he must be made available to serve his sentence. However, if it is reasonably evident that the person charged with an offence can be made available for the above mentioned purposes without keeping him imprisoned, then it is unfair to keep him in custody until his guilt is proven. It is a violation of a person’s fundamental right to restrict the person’s liberty without any just cause.
Bail is one such mechanism which is used to ensure the presence of an accused whenever required by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in which a person makes a written undertaking to the court. A person who is in custody, because he or she has been charged with an offence or is involved in pending criminal proceedings, may apply to be released on Bail. Normally, in signing a bail agreement a person undertakes that he will be present every time the matter is in court until the proceedings are finished, will comply with any conditions set out in the agreement as to conduct while on Bail, and will forfeit a specified sum of money if the person fails, without proper excuse, to comply with any term or condition of the agreement. Two authorities that may grant bail are the police and the courts. A person may be required to provide a security as well. But it is not necessary. A person may also be let off on his own bond. In the case of Moti Ram vs State of MP, AIR 1978, SC held that a Bail covers both release on one’s own bond with or without surety.
Q. What is a Bailable and Non-Bailable offence?
An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable offence is an offence of relatively less severity and for which the accused has a right to be released on bail. While a non-bailable offence is a serious offence and for it, the accused cannot demand to be released on bail as a right. More specifically, Section 2(a) defines Bailable Offence as well as Non-Bailable Offence as follows –
Section 2 (a) – Bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force: and “non-bailable offence” means any other offence.
Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply makes those offences as bailable which are listed as so in the First Schedule of Cr P C. These offences include offences such as obstructing a public servant from discharging his duties, bribing an election official, and providing false evidence. Non-bailable offences include offences such as murder, threatening a person to give false evidence, and failure by a person released on bail or bond to appeal before court. However, a quick look at the list of bailable and non-bailable offences shows that bailable offences are of relatively less severity.
Q. When and When not can Bail be granted?
As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused before the court whenever required. However, granting bail is not advisable in all cases. For example, a murder, if let loose, may try to intimidate the witnesses, or he may even abscond altogether. This is very bad for the society in general and reflects bad on the justice system. Thus, various rules and procedures have been formulated to make sure that only the deserving are released on bail. They try to achieve a balance between the rights of the accused and the protection of the society and effectiveness of the justice system.
The working of the bail system in India was highlighted in the case of Hussainara Khaton vs Home Secretory, 1980. It came to the courts attention for the first time that thousands of people were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6 months to an year. This was because they were unable to pay bond money for bail and the courts were too backlogged to hear their cases. In this respect, J Bhagwati observed that the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties.
Thus, in general, the intention of the justice system is to give bail and not jail before the accused is convicted. It is said that since the accused is presumed innocence, he must be released so that he can fight for his defense. Thus, releasing a person on bail is a rule, while denying bail is an exception.
Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence or non-bailable offence –
Bail for Bailable offences –
A person accused of a bailable offence can demand to be released on bail as a matter of right. This is provided for by Section 436.
Section 436 – When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at, any, time while-in the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail.
Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance.
Section 50(2) imposes an obligation on the police officer to notify the detained person about his right to get bail if he is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1) specifically provides that the amount of bail cannot be unreasonably high.
An amendment to Section 436 mandates that an indigent person, who is unable to provide any bail amount, must be released. If a person is unable to provide bail amount for a week, then he can be considered indigent.
Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the offence.
Bail for Non-Bailable offences –
When a person is detained for a non-bailable offence, he cannot demand to be released on bail as a matter of right. He can, however, request the court to grant bail. The provisions in this case are governed by Section 437/
Section 437 – When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail. If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance. A police officer or the court may also release a person from custody if he feels that there are any special reasons. But he must record his reasons in writing.
Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that must be given while giving bail in case of non-bailable offences. These are –
the nature of the crime
the nature of the charge, the evidence, and possible punishment
the possibility of interference with justice
the antecedents of the applicant
furtherance of the interest of justice
the intermediate acquittal of the accused
prospective misconduct of the accused
the period already spent in prison
protective and curative conditions on which bail might be granted.
If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
If the investigation is not done within 24 hours, the arrested person must be bought before the court and if required, the police must make a case to extend the detention. The court may extend the detention by 15 days. However, the detention cannot extend more than 60 days (or 90 days, if the offence is punishable by death or imprisonment for life), after which the accused must be released on bail. This provision applies for bailable as well as non-bailable offence.
Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the offence.
Conditions on Bail
As per Section 437, if any person accused of an offence punishable with 7 yrs or more of imprisonment is released on bail, the court may impose any condition on the bail to ensure that the person will attend the court in accordance with the bond executed by him, or to ensure that the person will not commit a similar offence or otherwise in interest of justice.
Special Powers of Hight Court and Court of Session regarding Bail
Section 439 gives special powers to High Court and Court of Session regarding bails. These are as follows –
- A High Court or Court of Sessions may direct that any person accused of an offence and in custody be released on bail. It may also impose any condition which it considers necessary. It may set aside or modify any condition imposed by a Magistrate when releasing any person on bail.
- The High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
- A High Court or Court of Sessions may direct that any person who has been released on bail under this chapter be arrested and commit him to custody.
When can bail be denied –
- As per Section 436(2), if a person has violated the conditions of the bail-bond earlier, the court may refuse to release him on bail, on a subsequent occasion in the same case. He can also be asked to pay penalty for not appearing before the court as per the conditions of the previous bail.
- It is clear that the provision for bail in case of non-bailable offences gives a discretionary power to the police and and court. However, this power is not totally without any restraint. Section 437 disallows bail to be given in the following conditions.
if there appears reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life;
if such offence is a cognizable offence and the person has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. The person may, however, be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.
- Persons accused of Dowry Death –
Cancellation of Bail
Although there was no provision for cancellation of the bail in the old code, the SC in Talib’s case (AIR 1958) held the absence of such provision as a lacuna and recognized the power of High Court of cancellation of bail. In the new code, as per section 437 (5) any Court which has released a person on bail under section 437(1) or 437(2), may direct that such person be arrested and commit him to custody. This basically cancels the bail. However, it must be noted that only the court that has given the bail can cancel it. Thus, a bail given by a police officer cannot be canceled by a court under this section. To do so the special power of High Court or Court of Session under Section 439 has to be invoked. The new Section 439 explicitly gives the power to High Court and Court of Session to direct that any person who has been released on bail be arrested and to commit him to custody.
The power given by Section 439 for cancellation has no riders. It is a discretionary power. It is not necessary that some new events should take place subsequent to the offender’s release on bail for the Sessions Judge to cancel his bail, however, the court usually bases its decision of cancellation on subsequent events. For example, in the case of Surendra Singh vs State of Bihar 1990, Patna HC pointed out that a bail may be cancelled on following grounds –
- When the accused was found tampering with the evidence either during the investigation or during the trial
- when the accused on bail commits similar offence or any heinous offence during the period of bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
- when the offence so committed by the accused had caused serious law and order problem in the society
- if the high court finds that the lower court has exercised its power in granting bail wrongly
- if the court finds that the accused has misused the privileges of bail
- when the life of accused itself is in danger
Appeal Provision for Bail
It has been held that an order granting bail is an interlocutory order and so it cannot be challenged under the revisional jurisdiction of the Session Court or High Court. In general, there is no right of appeal against the decision of refusing the bail. However, a person can alway file for Special Leave Petition to High Court or Supreme Court against such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision of refusal of bail to special courts.
Q. What do you understand by Anticipatory bail? When is it granted and when it may be refused? What is the difference between the general provisions of anticipatory bail and regular bail?
It has been observed that many cases are instigated against a person just because of political motivation or personal vendetta. They lack enough evidence and are meant to harass a person by getting him arrested. When a person apprehends such situation he may apply to Court of Session or the High Court under Section 438 for a direction that he be released on bail upon his arrest. This provision is commonly known as Anticipatory Bail, i.e bail in anticipation of an arrest. Anticipatory bail is technically an incorrect term because a bail can be given only if a person has already been arrested. In this case, the court directs that the person be released on bail as soon as he is arrested. Thus, it is a direction to provide bail and not the bail itself.
Section 438 – When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
While applying under this section, the person has to explain the circumstances because which he believes he might be arrested. Mere hunch or fear is not enough. He must also provide such evidence that shows there is a reasonable probability that he will be arrested on accusation of a non-bailable offence. Further, the direction under this section can be given only upon a specific offence. A generic direction or a blanket order to be released whenever the applicant is arrested and on whatever offence is not allowed.
In granting such a direction the court takes into account the following considerations –
- The nature and gravity of the accusation.
- The antecedents on the applicant including the fact as to whether he has previously been imprisoned upon a conviction by a court in respect of a cognizable offence.
- The possibility of the accused to flee from justice
- whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested.
The order may also include conditions such as the person shall make himself available for interrogation by a police officer whenever required, the person shall not leave India, the person shall not make any inducement, threat, or promise to any person acquainted with the facts of the case, or any other condition that the court may think fit.
It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently to Court of Session and High Court. Thus, a person can approach either of the courts to get this relief.
As per Section 438 A, the court may also grant an interim order and in that case an opportunity is given to the public prosecutor present his arguments on why the applicant should not be given bail. Further, as per Section 438 B, if the court finds it necessary, it may require the applicant to be present personally at the time of final determination of the interim order.
A bail under the direction of this section is equivalent to the bail given under Section 437(1) and so it is applicable until the conclusion of the trial.
Refusal of Anticipatory Bail
Although, there is no specific provision that prohibits granting anticipatory bail, there are certain situations where such bail is normally not granted. These are –
- In case of dowry death or wife harassment.
- In case of economic offences
- In case of atrocious crimes
Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused must seek remedy under Section 437.
Some high courts have held that the grounds mentioned in Section 437 for denying regular bail are applicable for anticipatory bail as well. Thus, a person accused of an offence that entails a punishment of death or life imprisonment will not be given anticipatory bail.
In general, the court has a wide discretion in granting anticipatory bail. So the court may deny this relief if it feels that it is not in the interest of justice.
Cancellation of Anticipatory Bail
There is no specific provision that allows a court to cancel the order of anticipatory bail. However, in several cases it has been held that when Section 438 permits granting anticipatory bail, it is implicit that the court making such order is entitled upon appropriate considerations to cancel or recall the order.
Q. Explain general provisions concerning bond [Sec 441 – 450]. Explain the procedure that is followed when a bond is forfeited [Section 446].
As per Section 441, before any person is released on bail or is released on his own bond, a bond for an appropriate sum of money shall be executed by the person and if required by one or more sureties, stating that the person will appear before the court at the given date and time mentioned in the bond.
In other words, a bonds provides a kind of monetary guarantee that the person being released will appear before the court as and when required.
General Provisions of Bonds – ( ABNRI DDFFIMAL)
Section 440 – Amount of bond should not be excessive. High Court and Court of Session have the power to reduce the amount.
Section 441 – Court may accept affidavits in proof of fitness of sureties or it may also hold an inquiry to determine the sufficiency of sureties.
Section 441 A – Every surety must state the number of person he is currently standing surety for.
Section 442 – As soon as the bond is executed, the person should be released.
Section 443 – If through mistake, fraud or otherwise, insufficient sureties have been accepted or if they afterwards become insufficient, the court may issue a warrant of arrest and may ask him to provide fresh sureties.
Section 444 – A surety can apply to be discharged from the bond, in which case, the person for whom the surety is given will be arrested and asked to provide new surety.
Section 445 – A court may permit a person to deposit money instead of executing a bond with or without sureties.
Section 446 – If a bond is forfeited, the sureties may be asked to pay the penalty.
Section 446 A – When a bond for appearance of a person is forfeited for a breach of condition, the bond executed by the person and the sureties shall stand canceled.
Section 447 – If a surety becomes insolvent or dies, the court may ask for new sureties.
Section 448 – If the person from whom bond is required is minor the court may accept a bond executed by sureties only.
Section 449 – Appeal from orders under Section 446 will lie to Sessions Judge if the order is made by a magistrate and to High Court if the order is made by Sessions Judge.
Section 450 – The High Court or Court of Session may direct any magistrate to levy the amount due on a bond for appearance or attendance at such High Court or Session Court.
Procedure on forfeiture of a Bond
If the court is satisfied that the bond has been forfeited –
1. It may ask any person bound by the bond to pay penalty or to show cause why it should not be paid.
2. If sufficient cause is not shown and penalty is not paid, the court may proceed to recover the same as if the penalty was a fine imposed by the court.
3. If the penalty cannot be recovered, the person bound as surety is liable to be imprisoned in civil jail for up to 6 months
4. The court may remit any portion of the penalty and require the payment in part. It must record its reasons for doing so.
5. If a surety to a bond dies, his estate shall be discharged from all liability in respect of the bond.