[FAQs] on Code of Criminal Procedure (CrPC) – An Ultimate Guide

Complaint [Section 2(d)]

“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but it does not include a police report.

However, a report made by the police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer making the report as a complainant.

Following are main points of difference between warrant case & summons case.

Following are the main points of difference between bailable & non-bailable offence:

Pleader [Section 2(q)]: With reference to any proceedings in any Court, it means a person authorized by or under any law for the time being in force, to practice in such Court and includes any other person appointed with the permission of the Court to act in such proceeding.

It is an inclusive definition and a non-legal person appointed with the permission of the Court will also be included.

Public Prosecutor [Section 2(u)]: A public prosecutor means any person appointed u/s 24, and includes any person acting under the directions of a Public Prosecutor.

Public prosecutor, though an executive officer is, in a larger sense, also an officer of the Court and he is bound to assist the Court with his fair views and fair exercise of his functions.

Following are main points of distinction between investigation & inquiry.

Following are the main points of difference between cognizable & non-cognizable offences:

Following are the powers of Court to pass sentence:

As Section 29 of the Code of Criminal Procedure, 1973, Magistrate of 1st Class:

• Can pass sentence for term up to 3 years imprisonment or
• Fine up to ` 10,000 or
• Both

As per Section 30 of the Code of Criminal Procedure, 1973, the Court of a Magistrate may award additional imprisonment in default of payment of fine. However the term of imprisonment shall not exceed 1/4th of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence.

In present case, the Judicial Magistrate of the First Class can inflict sentence of imprisonment which may extend to 3 years as punishment for the offence of theft. Therefore, the term of additional imprisonment which can be awarded in default of payment of fine cannot be more than 1/4th of 3 years. In other words, the term of additional imprisonment in default of payment fine cannot exceed 9 months. [36 months × 1/4 = 9 months]

The accused is advised to challenge the validity of the sentence accordingly.

According to Section 29 of the Code of Criminal Procedure, 1973, Chief Judicial Magistrate is competent to pass sentence for term upto 7 years imprisonment. Hence, X can file appeal against the order of the Chief Judicial Magistrate.

As per Section 41 the Code of Criminal Procedure, 1973, 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.

(b) Who has in possession, without any lawful excuse an implement of house-breaking.

(c) Who has been proclaimed as an offender, either under the Criminal Procedure Code or by any order of the State Government.

(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.

(e) Who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody.

(f) Who is reasonably suspected of being a deserter from any of the Armed Forces of the Union.

(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.

(h) Who, being a released convict, commits a breach of any rule made u/s 356(5).

(i) For whose arrest any requisition, whether written or oral, has been received from another police officer. However, 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 there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

Section 41B talks about the procedure of arrest and duties of the officer making arrest. According to it every police officer while making an arrest shall—

(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification.

(b) prepare a memorandum of arrest which shall be —

(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made.

(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

According to section 41D when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

Following are main points of difference between summons and warrants.

Warrant of Arrest

(i) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court, and shall bear the seal of the Court.

(ii) It is an order given to the police officer or the authorised person to arrest the person.

(iii) Such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. (Section 70)

(iv) The form of warrant of arrest is Form No. 2 of the Second Schedule.

(v) The requisites of a warrant are as follows:

(a) It must be in writing;

(b) It must bear the name and designation of the person who is to execute it;

(c) It must give full name and description of the person to be arrested;

(d) It must state the offence charged;

(e) It must be signed by the presiding officer; and

(f) It must be sealed.

(vi) Person accused shall be presented before the court within 24 hours of his arrest excluding the journey time from one place of arrest to magistrate court.

Where a warrant remains unexecuted, the Code of Procedure Code, 1973 provides for two remedies:

(i) If a Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, the Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. (Section 82).

(ii) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person. The object of attaching property is not to punish him but to compel his appearance.

Sometimes it is necessary that a person should produce a document or other thing which may be in his possession or power for the purposes of any investigation or inquiry under this Code. This can be compelled to be produced by issuing summons [Sections 91 & 92] or a warrant [Sections 93 to 98].

When search-warrant may be issued [Section 93]: A search warrant can be issued in the following three cases:

• Where the Court has reason to believe that the person to whom a summons or order is addressed will not produce document or thing as required by summons or requisition.
• Where document or thing is not known to the Court to be in the possession of any person.
• Where general search or inspection is necessary.

The person to whom such warrant is directed may search or inspect in accordance with search warrant.

A search warrant shall not be issued for searching a document, parcel or other thing in the custody of the postal or telegraph authority by a Magistrate other than a District Magistrate or Chief Judicial Magistrate.

Similarly, Search Warrant also cannot be issued so as to affect Sections 123 & 124 of the Indian Evidence Act, 1872 or the Bankers Books Evidence Act, 1981.

Publication of Proclamation

If a Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, the Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. (Section 82).

According to Section 106 when a Court of Session or Court of a Magistrate of first class convicts a person of any of the offences specified in sub-section (2) or of abetting any such offence and is of opinion that it is necessary to take security from such person for keeping the peace, the Court may, at the time of passing sentence on such person, order him to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding three years, as it thinks fit.

The offences specified under sub-section (2) are as follows:

(a) any offence punishable under Chapter VIII of the Indian Penal Code, 1860.

(b) any offence which consists of or includes, assault or using criminal force or committing mischief;

(c) any offence of criminal intimidation;

(d) any other offence which caused, or was intended or known to be likely to cause a breach of the peace.

However, if the conviction is set aside on appeal or otherwise, the bond so executed shall become void.

As per Section 107 of the Code of Criminal Procedure, 1973, when an Executive Magistrate receives information that any person is likely to:

• Commit a breach of offence.
• Disturb the public tranquility.
• Do any wrongful act that may probably occasion the peace; or disturb the public tranquility

he may require such person to show cause why he should not be ordered to execute a bond for keeping peace for a period not exceeding 1 year, as the Magistrate deem fit. In the present problem, time-period is 3 years, as such, requisition order cannot be made.

(i) As per Section 144 of the Code where in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable.

(ii) An order under this Section may be passed ex-parte in cases of emergency or in cases where the circumstances do not admit of the serving of notice in due time upon the person against whom the order is directed.

(iii) An order under this Section can remain in force for two months, and may be extended further for a period not exceeding six months by the State Government if it considers necessary.

Power to issue order in urgent cases of nuisance or apprehended danger

As per section 144 of the Code where in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, in such cases the Magistrate may by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent, obstruction, annoyance of injury to any person lawfully employed, or danger to human life, health or safety or a disturbance of the public tranquility, or a riot, or an affray.

An order under this section may be passed ex parte in cases of emergency or in cases where the circumstances do not admit of the serving of notice in due time upon the person against whom the order is directed. An order under this section can remain in force for two months, and may be extended further for a period not exceeding six months by the State Government if it considers necessary.

As per Section 144 of the Code of Criminal Procedure, 1973, Magistrate can issue order if there is sufficient ground for immediate prevention or speedy remedy. Magistrate may direct any person to abstain from a certain act, to prevent, obstruction, annoyance of injury or danger to human life, health or safety or a disturbance of the public tranquility, or an affray.

Hence, in this case the Sub-Divisional Magistrate can pass order only if the house is in such a dilapidated condition as to be potential danger to human life, and not otherwise. The heirs will succeed in resisting the order only if the house is not in danger to public.

Conditional order for removal of nuisance (Section 133)

The following public nuisances which can be proceeded against:

(1) the unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(2) carrying on any trade or occupation, or keeping of any goods or merchandise, injurious to the health of the community; or

(3) the construction of any building or the disposal of any substance, as is likely to cause conflagration or explosion; etc.

(4) the building, tent or structure near a public place.

(5) the dangerous animal requiring destroying, confining or disposal.

As per Section 144 of the Code of Criminal Procedure, 1973, Magistrate can issue order if there is sufficient ground for immediate prevention or speedy remedy. Magistrate may direct any person to abstain from a certain act, to prevent, obstruction, annoyance of injury or danger to human life, health or safety or a disturbance of the public tranquility, or an affray.

In this case, The Sub-Divisional Magistrate issues an order by which petitioner’s Puja Committee and others were prohibited from taking out immersion procession of statue of Goddess Durga and passing in front of two mosques in the village. This order is valid as it is an imminent danger to the peace and tranquility. Moveover, taking out the procession itself is not to be barred; it should be ordered that the procession should not cause any harm or disturbance to public, especially public coming to the mosques.

Normally no person can be arrested without order of the Court or warrant. However, Section 151 of the Code of Criminal Procedure, 1973 empowers a police officer to prevent the commission of any cognizable offence (i.e. non-bailable).

A police officer can arrest any person designing to commit cognizance offence without a warrant if it appears to him that the commission of offence cannot be otherwise prevented. The person so arrested by the police officer cannot be detained in custody for a period exceeding 24 hours.

As per facts given in case, some persons are planning to kidnap and murder Rajan which is cognizance offence and hence police officer can arrest such persons without any warrant or order from the Magistrate.

Information in cognizable cases [Section 154]:

• Every information relating to the commission of a cognizable offence given shall be reduced to writing by officer in charge of a police station. It shall be read over to the informants. It shall be signed by the person giving it. The substance of such information shall be entered in a prescribe book.
• A copy of the information shall be given forthwith, free of cost, to the informant.
• Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information may send the substance of such information in writing and by post to the Superintendent of Police concerned. If Superintendent satisfies that such information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the prescribed manner.

Information as to non-cognizable cases and investigation of such cases [Section 155]:

• When information is given to police officer of the commission of a non-cognizable offence, he shall enter the substance of the information in a book and refer the informant to the Magistrate.
• No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
• Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
• Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case.

Police officer’s power to investigate cognizable cases [Section 156]:

• Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case.
• No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this section to investigate.
• Any Magistrate empowered under section 190 may order such an investigation as above mentioned.

As per Section 154(3) of the Code of Criminal Procedure, 1973, any person aggrieved by a refusal on the part of an officer in-charge of a police station to record the information may send the substance of such information in writing and by post to the Superintendent of Police concerned.

Thus, Ajit is advised to send information or the substance of information relating to cognizable offence in writing and by post to the Superintendent of Police concerned. If Superintendent satisfies that such information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the prescribed manner. It will also be treated as FIR.

Secondly, Ajit may make a complaint of such offence before the Magistrate u/s 200.

Where a case relating to two or more offence of which at least one is cognizable, the case shall be deemed to be a cognizable case, irrespective of the fact that the other offences are non-cognizable. Accordingly, the referred case will be treated as a cognizable case; and hence, the police can conduct investigation in respect of all the offences without the order of a Magistrate.

Following are the main points of difference between complaint and FIR:

As per Section 190 of the Code Criminal Procedure, 1973, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf, may take cognizance of any offence –

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance of such offences as are within his competence to inquire into or try.

In the given problem, A has committed an offence punishable with imprisonment up to 3 years. Hence, cognizance can be taken before expiry of a period of 3 years. But in computing the period of limitation the time during which the offender has been out of India or from any territory outside India shall be excluded.

Hence, the Magistrate can taken cognizance because, the span of time from 2012 to 2018 will not be included in computation to period of limitation, as during this period A was absent from India.

As per Section 438 of the Code of Criminal Procedure, 1973, anticipatory bail can be granted in a non-bailable offence only by the High Court or the Court of Session. Judicial Magistrate of First Class has got no power to grant anticipatory bail. Further anticipatory bail cannot be granted for bailable offence.

According to Section 262 of the Code of Criminal Procedure, 1973, no sentence of imprisonment for a term exceeding 3 months can be passed in case of conviction in a summary trial. Thus, the sentence of 6 months imprisonment could not have been legally awarded in the given case by Chief Judicial Magistrate. Sohan should, therefore, file an appeal before the appropriate Court challenging the quantum of punishment.

Section 260 to Section 265 of the Criminal Procedure Code, 1973 deals with the various provisions relating to summary trials.

Meaning: A summary trial implies speedy disposal. A summary case is thus which can be tried and disposed at once. Thus, the summary procedure is not applicable contentious and complicated case which requires a full and lengthy inquiry. Generally, it will apply to such offences not punishable with imprisonment for a term exceeding two years.

Procedure: In a summary trial, all cases should be tried by the summons procedure whether the case is a summons case or warrant case.

Offences that can be dealt with summary trial:

• Offences not punishable with death, imprisonment for life, or imprisonment for a term exceeding 2 years.
• Theft of value of property up to ` 2,000 u/ss 379, 380, 381 of IPC, 1860.
• Assisting in the concealment or disposal of stolen property up to ` 2,000 u/s 414 of IPC.
• Receiving or retaining stolen property up to ` 2,000 under Section 411 of IPC.
• Offences under Sections 454 & 456 of IPC (lurking house, trespass etc.).
• In suit with intend to provoke breach of peace under Section 504 and Criminal Intimidation u/s 506 of IPC.
• Abetment of any foregoing offences.
• An attempt to commit any forgoing offence, when such attempt also is an offence.
• Any offence constituted by an act in respect of which a complaint may be made u/s 20 of the Cattle Trespass Act, 1871.

Procedure for summary trials [Section 262]: In all summary trials the summons case procedure should be followed irrespective of the nature of the case i.e. whether it is a summons case or a warrant case.

No sentence of imprisonment for a term exceeding 3 months shall be passed in any conviction in summary trials. No limit for fine.

Judgment in summary trials: In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reason for the finding. The concerned Magistrate must sign such record and judgment.