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Chapter VI
General Rules as to Inquiries and Trials in all Courts precedence and expeditiousDisposal of Capital Cases.
1. (i) Sessions Judges and Magistrates should give precedence to murder cases overall other cases and should dispose of them as expeditiously as possible.(2)They should also keep memoranda books in Forms Nos.VI and XI prescribedin paragraph 1 of Chapter XXX of the Criminal Manual, 1980, in accordance withthe following instructions :
(i) Form No.VI : This form isto be kept all sessions Judges(Including SpecialJudges,Joint Sessions Judgesand Assistant Sessions Judges)(ii) Form No.XI : This form isto be kept by all the judicialMagistrate (including SpecialMagistrate).
3. (i) Every case, appeal, revision or any other proceeding entered in the relevantmemorandum book should, if the said appeal, revision or other proceeding has onthe day in question advanced a stage, be then and there marked with the mark“V”. If the matter is taken up and decided a line should be drawn through theentry.(ii) Every case, appeal, revision or ther proceeding should be entered by thenumber and year.(iii) The object of these memoranda books is twofold:(a) to show the presiding judge or magistrate what work is fixed for any particularday; and(b) to show an inspecting authority what work was done on any particular day.(iv) Form No.VI should be kept in English. Form No.XI be kept in the regional
language unless the presiding Magistrate prefers that it should be kept in English.(v) The presiding Officer should himself fix the adjourned date in
every case and should make a note thereof in his own hand on the daily Board as well asin the Memoranda Book (Form XI of Chapter XXX ). before proceeding to take up thenext case.
(2)With a view to achieving uniformity in the trial of absconding accused, it isdirected that the Courts need not pass orders in respect of the accused shown asabsconding in red ink in column No.2 of the chargesheet filed by the police, sincethey are not before the court. However, if such accused are traced during thependency of the trial of the accused who is/are sent up to the court,the former should not be tried with thelatter, if the prosecution evidence has already commenced. In such cases and incases where the absconding accused is/are apprehended after the disposal of thetrial, separate proceeding should be entered on a supplementary chargesheet,submitted by the police as per Rule 218(3) of Bombay police Manual, 1959,volume III.2. (1) In cases in which some of the accused are shown absconding in the chargesheet filed by the police,they show available accused in column No.1 andabsconding accused in red ink in Column No.2 . In such cases, some courts carrythe impression that the cases of the absconding accusedare also before the Court,while some think that they are not concerned with the case of the abscondingaccused and that the police would file a separate charge sheet for them. Thus, nouniformity is seen in the trial of the absconding accused.
Completion of partHeard cases by Magistratesunder Orders of Transfer
3. Whenever an order of transfer or an advance intimation of the transfer is receivedby a Judge or Magistrate, he should endeavour to dispose of all partheard casesbefore handing over charge.
Vakalatnama4. (a) Vakalatnamas shall be filed by all pleaders, as defined in the code of criminal
procedure, appearing on behalf of any part in all classes of cases, includingappeals and revisional or miscellaneous applications,in all courts in the state ofMaharashtra, provided that no Vakalatnama shall be necessary in the cases of
i. A public prosecutor appearing on behalf of Governmentii. A pleader appointed by the Court in any case to defend persons who are too poor
to engage counsel for themselves.iii.A pleader appearing as amicus curiae ;iv. a pleader engaged to plead on behalf of any party by any pleader who has been
duly appointed to act as a pleader on behalf of such party.(b) When a pleader who has filed a vakalatnama for a party wishes to withdrawhis appearance, he shall serve a written notice of his intention to do so on hisclient at least seven days in advance of the case coming up for hearing before thecourt. Leave of the court to withdraw appearance may also be applied for if theclient has instructed the pleader to that effect. The pleader shall file a note inwriting requesting the court for permission to withdraw appearance and shall alsofile along with the Note the letter of the client instructing him to withdraw hisappearnce or a copy of the intimation given to the client as above together withhis written acknowledgment by the client . The court, if it is satisfied that noinconvenience is likely to be caused to the court or the client, may permit , maypermit the pleader to withdraw his appearance and while permitting the pleader todo so may also impose such terms and conditions as it may deem proper either inpublic interest or in the interest of the parties.5. Compliance with special Requirements of Special and Local Acts to beexamined.
Certain Special and Local Acts require the previous sanction of or acomplaint from the prescribed authority or some other conditions beingsatisfied for giving jurisdiction for the trial of certain offences, e.g.Section39 of the Arms Act,1959 (54 of 1959). Judges and Magistrates shouldstudy the Special or Local Act, under which a prosecution has beencommenced and satisfy themselves, before commencing the trial, that theprescribed previous sanction or other condition precedent for givingjurisdiction for the trial has been given or complied with.
The following list of special provisions, which is not exhaustive, is given for readyreference:
INDIA ACTS(Arranged Alphabetically)
1. Section 266 of the contonments Act, 1924 (II of 1924)2. Section 11 of the Cotton Ginning and Pressing Factories Act, 1925(XII of 1925)3. Section 10 of the Indian Dock Labourers Act, 1934 (XIX of 1934).4. Section 32 and 33M of the Drug and Cosmetics Act, 1940 (23 of 1940)5. Section 7 of the Explosive Substances Act, 1908 (VI of 1908).6. Section 105 of the Factories Act, 1948 (LXIII of 1948).7. Section 26 and 27 of the Indian Boilers Act. 1923 (V of 1923).
8. Section 50 of Indian Electricity Act, 1910 (IX of 1910).9. Section 28 of the Indian Emigration Act, 1922 (VII of 1922).10.Section 68 of of the Indian Forest Act, 1927 (XVI of 1927).11.Section 72 of Indian Post Office Act, 1898 (VI of 1898).12.Section 16A of the Indian Press and Registration of Books Act, 1867 (XXV of
1867).13.Section 134 of the Indian Railways Act, 1890 (IX of 1890).14.Section 19 of the Central Excise and Salt Act, 1944 (I of 1944).15.Section 70 of the Indian Stamp Act, 1899 (II of 1890).16.Section 23 of the Maternity Benefit Act, 1961 (LIII of 1961).17.Section 70 of the Presidency Town Insolvency Act, 1909 (III of 1909
).18.Section 20 of the Prevention of Food Adultration Act, 1954 (Act 37 of 1954).19.Section 6 of the Prevention of Corruption Act,1947 (II of 1947).20.Section 8 of the Prevention of Seditious Meeting Act, 1911 (X of 1911).21.Section 72 of the Standards of Weights and Measures Act, 1976 (60 of 1976)
MAHARASHTRA ACTS(Arranged Alphabetically)
1. Section 28 of the Maharashtra Vaccination Act, 1964 (Maharashtra XXXVII of1964)
2. Section 34 and 296 of the Maharashtra Municipal Councils , Nagar Panchayat andIndustrial Township Act, 1965
6. Question re : Remittance of deposit received by police.(Maharashtra Act,No.XL of 1965)
In the cases under the Motor Vehicles Act, the cash deposits, received by the police or theinvestigating authorities directly from the offenders in lieu of bailbonds under section445 of the Code of Criminal Procedure, 1973 should invariably be received and depositedin the Courts concerned along with chargesheets and credited in “C” Register under theHead of Account “Criminal Court Deposit”.
7. Use of rubber stamps.The use of the following rubber stamps only (and no printed or cyclostyled form invogue) are permitted in the Judicial Proceedings:
.....................................................................................................................Sl. Nature of Cases StampsNo.
.....................................................................................................................1. Remand Applications Accused ordered to be released on bail in the sum of
Rs............. with one surety in the like amount in default remanded topolice / Jail custody till...............
2. N.C.Cases or Summary Judgement: On the plea of the accused, Icases in which the acc consuffer ........ days/months simple/regoused plead guilty rous imprisonment. Bail bond cancelled.
3. Surety Bond Order: The surety is accepted.Date J.M.F.C......................................................................................................................(1) The Judicial Magistrate First Class ( and not Civil JudgecumJudicial Magistrate), atDistrict Headquarters and the Special Judicial Magistrates (Railways, Motor Vehicles andMunicipal or Corporation) to use the rubber stamps for passing Judicial orders in N.C.Cases and for accepting thesureties. In no other case they should use the rubber stamps even for putting formalquestions to the accused persons.
2. So far as the Judicial Magistrates at Taluka places are concerned, theyshould not make use of the rubber stamps even to the limited extent asstated above because the number of N.C.Cases, Summary Cases andremand orders is very small. However, in case a Judicial Magistrate atTaluka place wants to avail himself of this facility, he should make out acase giving the number of institutions and disposal of N.C.Cases andSummary Cases to the District Judge who should in turn examine theproposal and make a suitable recommendation to the High Court forauthorizing such Magistrate or Magistrates to make use the rubber stamps.The Magistrate are permitted to use the aforesaid rubber stamps oncondition that they exercise proper care and due attention in striking outunnecessary words and in filling the gaps, that these rubber stamp ordersare recorded by them personally and not by therir Clerks and that theypersonally strike out unnecessary words and fill in the gaps in their ownhandwriting.
Framing of Charge
8.(a) (1) The correct framing of the charge is of considerable importance as it enables theprosecution as it enables the prosecution to know precisely what facts they have to proveand also gives notice to the accused of the case, which he has to meet. Judges andMagistrates should devote their personal attention to this matter and see that the charges
are framed correctly and give all the necessary particulars as prescribed in section 211 to213 and 218 to 221(1) of the Code of Criminal Procedure, 1973. The form in which thecharges should be framed is Form.No.32 in Schedule II of the Code.
2. Where an accused person is charged with a number of offences,there should be a separate head of charge for each separate offencealleged to have been committed by him.
3. Where several persons are tried together for different offencescommitted in the course of the same transaction, there should aseparate head of charge for each of those offences.
4. Where five persons or more are charged with committing anoffence it would ordinarily be desirable to frame charges in thealternative, both under section 34 and section 149 of the IndianPenal Code. An alternative charge may also be framed against theaccused , who are alleged to have committed the particular actconstituting the offence.
5. In prosecution for giving false evidence under section 193,194 and195 of the Indian Penal Code, the particular statements alleged tobe false should invariably be set out in the charge, to enable theaccused to understand fully the offence with which he standscharged.
(b) The attention of the Courts of Sessions is invited to sub section (1) (a) of Section 228of the Code of criminal procedure, 1973, according to which the Courts of Sessions mayframe a charge against the accused in case there is ground for presuming that the accusedhas committed an offence which is not exclusively triable by the Court of Sessions and,by order, transfer the case for trial to the Chief Judicial Magistrate, who shall try theoffence in accordance with the procedure for the trial of warrant cases instituted on apolice report.
9. Attention of the Magistrates is invited to the decision of the High Court reported in1967 Cri.L.J. 165 (Volume 73 C.N. 42) A.I.R. 1967 Bombay 52 (V54C11) in the caseof State V. Sharad Keshav and others wherein it is held that the different ingredients ofoffence should have been put to the accused and their explanation ought to have beenasked on each ingredient to make their plea of guilty a proper plea of guilty. Similarlyattention is also invited to the Supreme Court decision reported in 1966 Criminal LawJournal 66 (Volume 72 C.N.23) A.I.R.1966 S.C.22 (V53C.6) in the case of MahantKausalya Das V.State of Maharashtra wherein it is observed that the requirements ofSection 243 of Criminal Procedure Code, 1898 (corresponding Section252 of the Code of
Criminal Procedure ,1973), are mandatory in in character and a violation of theseprovisions vitiates the trial and renders the conviction equally invalid and that therequirement of the section is not a mere empty formality but is a matter of substanceintended to secure proper administration of justice.
Ascertainment of Age of Youthful Offenders
10.Attention of the Judges and Magistrates is invited to the provisions of BombayChildren (Amendment) Act, 1975 (Mah.LIV of 1925) published in MaharashtraGovernment Gazette,Part IV, dated the 8th January, 1976 . pages 456475 andthey should note that the 'child' means a boy, who has not completed the age ofsixteen years, or a girl who has not completed the age of eighteen years.
It is necessary to take special care to see that young persons, who are charged with anoffence or against whom chapter proceeding are instituted, are not deprived of the benefitof the Bombay Children Act,LXXI of 1948, the Borstal Schools Acts,XVIII of 1929, theProbation of Offenders Act, 1958. It is highly undesirable that young offenders or partiesshould be made to associate with confirmed criminals. If the accused is less than 16 yearsof age in case of boy and less than 18 years of age in case of girl, he/she cannot becommitted to the Sessions Court for trial, but he/she will have to be tried by Juvenilecourt as provided in the Bombay Children Act, 1948. All Courts shou8ld, whenever ayouthful offender or a party is produced before them, take steps to ascertains his age. Ifthe age given by the police does not appear to be correct from the appearance of theoffender or party, and if the police cannot produce satisfactory evidence regarding hisage, the court should consider the desirablity of sending the Offender or party to theMedical Officer for the verificationof his age before proceeding with the case.
11. The question of the age of an accused persons is frequently of importance in othercases also. Mercy petition are often presented on the ground of youthfulness of thecondemned prisoners. At the time of the examination of accused, the Sessions Judge orMagistrate should therefore specifically ask such accused person his or her age for thepurpose of recording it. If the Sessions Judge or Magistrate suspects that the age stated bythe accused, having regard to his or her general appearances or some other reason, hasnot been correctly stated, then the Sessions Judge or Magistrate should make a note of hisestimate. The Court may also, when it so deems fit or proper, order a medicalexamination of the accused for the purpose of ascertaining his correct age. If anydocumentry evidence on the point of age is readily available, the prosecution may beasked to produce it.
Permission to accused to sit
12. The accused person should be informed by the court at the beginning of every trialthat he may sit, if he desires to do so, and chairs or benches should, whenever available,be provided for this purpose. The accused must, however, stand up, whenever he isaddressed by the Court.
Open and inCamera hearing
13. (1) Attention of all the Judges and Magistrates is invited to Section 327 of the Codeof Criminal Procedure,1973, according to which the public generally may have access tothe Criminal Court, i.e. Place wherein sitting is held for the purposes of inquiring into ortrying any offence, so far as the same can conventiently contain them. If the Court thinksit fit, it may order at any stage of inquiring into, or trial of, any particular case that thepublic generally, or any particular person shall not have access to, or be or remain in, thecourt room or Building.
(2) In cases relating to sexual offences, the court should, while keeping in view theprinciple of administering justice openly, consider the advisability of excluding personsnot connected with case from the court room during the trial and in particular, whenevidence to be given pertains to indecent details.
(3) Since the cases of kidnapping and abduction are of a touchy and emotional nature.The court should, wherever possible, make liberal use of its powers as contained in theproviso to Section 327 of the Code of Criminal Procedure, 1973 and hold its sitting forthe trial of such cases in camera so as to facilitate the concourse of justice.
Oaths and Affirmations
14. Oaths and affirmation to be made by a witness or interpreter under Section 4 of theOaths Act, 1969 (Act XLIV of 1969), shall as required by Section 6(2) of that Act, beadministered by the Court itself.
The following forms of oaths and affirmations are prescribed under Section 6 of the oathsAct, 1969 :
FORM NO.1(Witnesses)I do Swear in the name of God / Solemnly affirm, that what I shall state shall be the truth,the whole truth and nothing but the truth.
FORM NO.3(Interpreters)
I do Swear in the name of God / Solemnly affirm, that I will well and truly interpret andexplaining all questions put to and evidence given by witnesses and translate correctlyand accurately all document gvien to me for translation.
FORM NO.4(Affidavits)
I do Swear in the name of God / Solemnly affirm,that this is my name and signature (ormark) and that the contents of my this affidavit are true.
Form of Deposition
The following form of deposition should be used by all Courts in recording the evidenceof witnesses. It is not enough to say that, a “witness depoes as the last did.” “Thedeposition of each witness must be taken down separately. And every deposition shouldbe commenced on a separate page, or half page . :
Form of Deposition to be used by all Courts.
I have made Oath (or solemn affirmation as the case may be) state My nameis................................ my father's name is ..........................(or in the case of marriedwoman; my husband's name is)..................... My surname is......................My ageis.........................I am by occupation a .............. and I reside in the villageof................Taluka...........and District..........
N.B. If the witness cannot tell his or her age, the presiding Officer should state how oldhe or she appears to be.(If the witness is a European or a Christian with a European name, his full name will beentered and dthe part as to his father's name will be left blank.)
Examinationinchief
I know accused,etc., (or as the case may be)Crossexamined by the accused
I etc., (or as the case may be)
Reexamined
I etc., (or as the case may be)To the Court ,I etc., (or as the case may be)Dated this ............... day of...............(If the accused declines to crossexamine, it should be so stated.)
Recording of Evidence
16. Attention of the presiding Officers is invited to the provisions of Section 296 of theCode of Criminal Procedure,1973, empowering the courts to order any evidence offormal character to be given by affidavit instead of by oral evidence,subject to theconditions contained in the said section.
17 (1) All Judges and Magistrates shall, in the examination of complaints, witness andaccused persons, record, in each deposition, statement or defence, the followingparticulars which are indispensably necessary for the further indetification of the partiesexamined, viz., the name of the person examined, the name of his or her father, and, if amarried woman, the name of her husband, his or her surname, his or her profession andage and the village and district in which he or she resides.
(2) The particulars of the village, caste or sub caste of the person concerned should,however, not be mentioned even if the person concerned wishes to make such a mention,unless such reference is necessary for the purposes of administering of the oath, or fordetermining the law by which the person concerned is governed or for determining any ofthe issues or points involved in the proceeding.
18. (1) Subject to the statutory alternatives in the matter of recording evidence ascontained in Section 275 and 276 of the Code of Criminal Procedure, 1973, as far aspossible, the Sessions Judges and Judicial Magistrates should record memorandum ofevidence in English in all cases and proceedings.
(2) Attention of the Courts of Sessions is invited to the provision of subsection (2) ofSection 276 of the Code of Criminal Procedure,1973, according to which the evidence ofeach witness shall be taken down by the Courts of Sessions in the form of question andanswer,but the Presiding Judge may, in his discretion. Take down or cause to be taken
down the whole or any part of the evidence in the form of narrative.
(3) While the Sessions Judges and Magistrates may only make a memorandum of thesubstance of the deposition of each witness, they should take care to see that all answersgiven by him are recorded in the regional language, provided of course that they arerelevant and admissible in evidence. They should compare the memorandum of substanceof the deposition made by them with the deposition recorded in the regional languagewhen it is read out in open court and see that none of the statements contained in thememorandum are omitted from the record of the deposition made in the regionallanguage.
(4) The memorandum should be made and the deposition should be recorded , so as toleave a quarter margin on each margin on each page so as to facilitate bindings of therecord.
19. The deposition in the regional language and the memorandum of the substancethereof taken down by the Sessions Judge or Magistrate, should bear the same exhibitnumber. There should not be a separate a separate series of exhibits for depositions; allthe exhibits; including depositions should be made in one series.
20. The Presiding Officer should make a note about the demeanour of a witness in thedeposition recorded by him when such demeanour is noteworthy and is likely to affect hisestimate of the value of the evidence given by the witness.
21. It is importnt that the whole of the evidence given by each witness should appear inone place, and should not be scattered at intervals through the record. Therefore, when awitness is, for any reason , recalled and further examined after the close of his originaldeposition, such further examination should appear as a continuation of the originaldeposition.22. When recording the evidence of a witness with reference to a map or plan, careshould be taken to record the evidence in such a way that the places mentioned by thewitness are esily identifiable on the map or plan.23. It is desirable in juddicial proceedings to prevent, as much as possible doubt as to theidentiy of the person reffered to therein. It frequently happens that the same individual isknown by more names than one. Thus sometimes only the surname, sometimes only thename of the caste, or occupation or the village of the individual is mentioned or he isspoken of by a nickname, such a Bapu Saheb, Nana Saheb or Bahau Saheb. Suchvariations in description require explaination to render them intelligible to an appellate
Court. A court of first instance should, therefore, take care not only to ascertain, but tomake clear by evidence duly recorded, the identity of any individual who is so reffered tounder varying appellations and if such an individual is an accused person,his name andserial number according to the chargesheet should be cited in any passage in which he isotherwise designated.
Rules for production, use and recording of the Tape Record Evidence in Court.
24. The Honourable the Chief Justice and Judges, with the previous approval of theGoverner under Article 227 of the Constitution of Indian, are pleased to make thefollowing rules regarding recording of the taperecord evidence in Court :
(1) These Rules may be called the Rules for the Production, Use and Recording of the TapeRecord Evidence in Courts.(2)These Rules came into force with effect from 1st August, 1978.(3) The party producing the taperecorded evidence shall also produce the transcript ofthe tape record along with the tape.(4) The Court or its authorised officer who is to accept the tape should accept only suchtapes as are under the seal of the party producing them.(5) Court or such officer shall hear the tape record in order to verify whether thetranscript produced alongwith the tape is correct or not and endorse such verification on the transcript record under his signature with date.(6) The tape shall be kept in safe custody in a cover under the seal of the court. In casethe tape is replayed or the seal is broken for any reason, the tape shall be resealed.(7) The notice of production of the tape together with the transcript shall be served on theother side through the court.(8) Any party to the proceeding may apply to the Court to hear the taperecord.(9) The taperecord would be played within the hearing and sight of an officer appointedby the Court for that purpose and as far as possible in the presence of the other side or itsAdvocate. The Court on receipt of application may grant the necessary permission.However, the tape shall ordinarily not be played on 3rd or 4th occasion, unless the Courtspecifically permits hearing of the same. The Court while granting such permissionshould bear in mind that repeated use and play of the tape may affect the tape and itsaudibility. The Court may also permit any party to record the voice on the tape, producedin Court, on another tape.(10) Every Court shall maintain a record showing as to how, when and why the seal ofthe tape record has been resealed. Such record shall be kept in the proceedings alongwith
the tape record and its transceipt.(11) The tape in a sealed cover together with its transcript shall be given a separateexhibit.(12) In Criminal cases where appeal lies to the High Court and when the tape record isnot in English, either wholly or in part, the transcript must be accompanied by an agreedor official English translation of the said transcript or part thereof, as the case may be.(13) In case of discrepancy or doubt, the court may direct the tape to be replayed and thetranscript record shall be corrected if the Court so directs.(14) While preparing the paperbook for appeal to the High Court the Lower Court shallinclude therein the transcript in English under Rule 12, and a copy of record referred to inRule 10 above.(15) The rules as to the production, preservation and destruction of thecourt record should mutatis mutandis apply to the tapes.(16) The above rules (Rules Nos.1 to 15) are framed for guidance of the Courts and theyshould be followed as far as possible and subject to the provisions of the Evidence Actand Code of Civil Procedure.
Investigating Officers
25. In all important criminal cases, and especially in cases of murder and dacoity, thePolice Officer by whom the investigation was conducted should ordinarily be examinedas witness in regard to the circumstances of the investigation.
(b) In all cases, originals of police diaries should be kept with the police Prosecutor or thePublic Prosecutor, as the case may be who should make the same available to the courtwhenever required by it.
(c) In Sessions cases, the originals of only those statements and documents from thePolice investigation papers which are sought to be relied upon by the prosecution forpurposes of the trial should be produced in the court of the committal Magistrate at thecommencement of the committal proceeding and the Magistrate should forward them tothe Sessions Court alongwith the papers of the committal proceedings, and the sameshould be retained in the Sessions Court until the appeal, if any, is decided or the appealperiod expires. In other cases the originals of the police investigation papers may be keptwith the public or police Prosecutor as the case may be, who should make them availableto the court whenever they required.
Examination of Public Servants
26. (1) Judges and Magistrates should take particular care to see public servantsgenerally, and doctors in particular, who are summoned to give evidence are examined onthe dates for which they are summoned and are relieved as soon as possible after theirexamination is over.
(2) It is not desirable that Medical men in the districts should be taken away from theirdispensaries more frequently, or for a longer period than is absolutely necessary. Whencalling a medical witness, the summons should state the time when he is required to bepresent in the court for giving evidence. In fixing the time and date, care should be so thatMedical witnesses could be examined at the time stated in the summons.
(3) It is experienced that often times summonses issued by the Courts to Medical Officersare served on the Medical Officers so late as to practically leave no time to the MedicalOfficers concerned to make arrangements for their attendance in the Court and also tocollect and get themselves acquianted with the papers required in the case. There havebeen instances where such summonses have been served on Medical Officers a few hoursbefore the time they were required to attend the Court. This naturally caused a great dealof inconvenience to the Medical Officers. Often times it is not possible for them to leavehospital without making alternative arrangements and also it is not possible for them tolay their hands on the required papers immediately. It is also experienced that MedicalOfficers who are summoned sometimes detained for long with the result that they have tobe absent from their normal duties for a pretty long time.
(4) Having regard to the nature of the duties of the Medical Officers it is necessary thatinconvenience and detention caused to the Medical Officers by such a late summoningshould be completely eliminated and that, therefore, it is directed that the summonsshould be issued to the Medical Officers and also got served on them sufficiently inadvance so as to give them enough time to prepre for the journey and to make alternativearrangements for the working of the hospitals during their absence and to make out andstudy the relevant papers. It is further directed that the Medial Officers attenting Courtsshould be given a specific time for attending the Courts and the cases in which they areconcerned should be taken up at the appointed time and they should not be detainedlonger than is necessary for the purpose of their evidence in thecase and every effortshould be made to relieve them as soon as possible.
Evidence to be given from WitnessBox
27. All witnesses should give their evidence from the witness box. A witness shouldnormally stand when giving evidence, but a chair should be provided in the witness boxupon which any witness may sit on receiving the permission of the presiding Judge orMagistrate, this permission should be given on valid grounds, such as the witnesseshealth or the likehood that the witnesses evidence will occupy a long time.
Footwear permitted28. Persons attending Courts and even witnesses taking the oath should be allowed tokeep their footwear.
Proof and statements, under Section 161, of the Code of Criminal Procedure,1973
29. (1) When a statement recorded under Section 161 of the code of CriminalProcedure,1973 is used in the manner indicated in Section 162 of the Code, the passagewhich has been specifically put to the witnesses in order to contradict him should first bemarked for identification and exhibited after it is proved.(2) The method of proving such a statement is to question the Police Officer, who hadrecorded the statement whether the passage marked is a true extract from the statementrecorded by him.
(3) When a statement recorded under section 161 of the Code is used to contradict awitness, the specific statement put to the witness should be set out accurately in therecord of the deposition of the witness.
(4) Omissions in the statement recorded under Section 161 should, if denied by thewitness, be proved by questioning the Police Officer whether the witness had made thestatement which he says he had.
Evidence of Commission
30 (1) The attention of all Courts is invited to Sections 284(1) and 285 to 287 of the Codeof Criminal Procedure,1973, in which provision is made for taking of evidence oncommission.
As far as possible advantage should be taken of the above sections, whenever occasionarises for taking the evidence of a Foreign Consular Officer. Courts should take allpossible steps to avoid causing unnecessary inconvenience to Foreign Consular Officerswho may be called upon to give evidence.
(2) Attention of the Judges and Magistrates is also invited to the proviso to Section 284(1) which provides that, where the examination of the President or the VicePresident orthe Governor of a State as a witness is necessary for the end of justice, a commissionshall be issued for his examination.
(3) Attention of the Magistrates is invited to subsection(2) of Section 284 of the Code ofCriminal Procedure,1973, vesting the discretion in the Court, issuing a commission forthe examination of a witness for the prosecution, to direct the prosecution to pay areasonable amount to meet the expenses of the accused including the pleader's fees.
Production of Official documents by Government Servants.
31. Under Government Resolution, Home Departments, No.8996/6, dated the 28th April1954, certain instruction have been issued for the guidance of Government servants whenthey are sommoned by a Court to produce official documents. The following relevantinstructions are reproduced for the guidance of Courts :
(1) The law relating to the prodduction of unpublished record as evidence in Courts iscontained in Section 123, 124 and 162 of the Indian Evidence Act,1872 (Act I of 1872).
(2) A Government servant other than the Head of the Department who is summoned toproduce is in his custody and he is in a position to produce it. In this connection, it maybe stated that all official records are normally in the custody of the Head of theDepartment and it is only under special circumstances that an official document can besaid to be in the custody of an individual Government servant. If the document is not inthe custody of the Government servant summoned, he should inform the courtaccordingly. If, under any special circumstances the document is in the custody of theGovernment servant summoned, he should next determine whether the documents is anunpublished official record relating to affairs of state and privilege under Section 123should be claimed in respect of it. If he is of the view that such privilege should beclaimed or if he is doubtful of the provision, he should refer the matter to the Head of theDepartment, who will issue necessary instructions and will also furnish the affidavit inForm No.1 in suitable cases. If the document is such that privilege under Section 123could not be claimed but if the Government servant considers that the document is acommunication made to him in official confidence and that the public interest wouldsuffer by its disclosure, he should claim privilege under Section 124 in Form No.II. Incase of doubt, he should seek the advice of the Head of the Department.
(3) The Government servant who is to attend a Court as a witness with the officialdocument should, where permission under Section 123 has been withheld , be given anaffidavit in in Form No.I duly signed by the Head of the Department in the accompanyingform. He should produce it when he is called upon to give evidence, and should explainthat he is not at liberty to produce the documents before the Court, or to give anyevidence derived from them. He should however, take with him the papers which he hasbeen summoned to produce.
(4) The Government servant who is summoned to produce Official documents in respectof which privilege under Section 124 has to be claimed, will make an affidavit in theaccompanying Form No.II. Where he is not attending the Court himself to give evidence,he shall have it sent to the Court alongwith the documents. The person through whom thedocuments are sent to Court should submit the affidavit to the Court when called upon toproduce the documents. He should take with him the documents are sent to Court shouldsubmit the affidavit to the court when called upon to produce the documents. He shouldtake with him the documents which he has been called upon to produce but should nothand them over to the Court unless the Court directs him to do so. They should not beshown to the opposite party.
(5) The Head of the Department should abstain from entering into correspondence withthe presiding Officer of the Court concerned in regard to the ground on which thedocuments have been called for. He should obey the court's orders and should appearpersonally, or arrange for the appearance of another officer in the Court concerned, withthe documents and act as indicated in paragraph 2 above, and produce the necessaryaffidavit if he claims privilege.
FORM OF AFFIDAVIT NO.1 IN THE COURT OF
Case No..................... of 19.................I ............................ do hereby solemnly affirm and state as follows :A summons bearing No. .........dated......................is issued by the Court of....................incase no..................of ................19...............(........... v............ has been receivedon ..............19 ...........requiring production in the said Court on ..........19............ ofdocuments stated below. I, as the Head of the Department am in control of and in chargeof its records. I have carefully considered the relevant docuements and have come to theconclusion that they are unpublished official records, relating to affiars of State and their
disclosure will be prejudicial to the public interest for the following reasons :
List of documents summoned
I do not, therefore, give permission to any one under Section 12, of the Indian EvidenceAct, 1872, to produce the said documents or to given any evidence derived therefromSolemnly affirmed at.............this................day of.......19 ......... Name and designation of theperson making affidavit.
FORM OF AFFIDAVIT NO.IIIN THE COURT OF
Case No......................... of 19...............I .......................................do hereby solemnly affirm and state as follows :A summons bearing No................. dated .............issued by the court of ......................incase No.........of 19............(................v.................)has been served on me on .........19............requiring production in the saidCourt on ............19 ..............of the documents stated below. I have carefully consideredthem and have come to the conclusion that they contain communications made in officialconfidence and I consider that the public interest would suffer by their disclosure for thefollowing reasons :
List of Documents summoned
I,therefore, claim privilege under Section 124 of the Indian Evidence Act, 1872, solemnlyaffirmed at ...............this ............day..........19........Signature and designation ofthe person making the affidavit.Sworn before me
Admission of certain documents directly in evidence without formal proof
32. Attention of the Magistrates and Judges is invited to Section 294 of the Code ofCriminal Procedure, 1973, according to which, the particulars of the documents filedbefore the Court shall be included in a list, in the prescribed form given below, and the
prosecution or the accused, as the case may be , or the pleader for the prosecution or theaccused, if any, shall be called upon to admit or deny the genuiness of each suchdocuments and if the genuiness of any document is not disputed such document may beread in evidence in any inquiry, trial or other proceedings, without proof of the signatureof the person to whom it purports to be signed which, however, the court may in itsdiscretion require such signature to be proved.
List of documents filed before...................Court*Prosecution By the *accused.
.....................................................................................................................Sr. Particulars of Pages Whether By whom Names of RemarksNo. the docum original prepared attesting if anyents with certified persons dates copy whetherthey are cited aswitnesses1 2 3 4 5 6 7....................................................................................................................
....................................................................................................................
production, relevancy and admissibility of documents
33 (1) When the documents are sought to be produced in the Courts, the Courtsconcerned should insist upon the list of such document and the production thereof beingmade in chronological or some other methodical order.
(2) Similarly, the Courts concerned should determine as to whether documents sought tobe produced in the Court are relevant and admissible or not, at the time when thedocuments are sought to be produced, and not at the time of the delivery of judgement.
Exhibiting of Documents
34. When a witness proves any document, the correct exhibit number should immediatelybe noted (i)on the document itself and (ii) in the body of deposition against thedescription of the documents so that the appellate or revisional Courts may not berequired to waste its time in tracing the document. Similarly, when another witness whohas already been examined is referred to by any witness its deposition, the exhibitnumber of the deposition of such other witness should invariably be noted in thedeposition immediately after the reference to the witness.
35. When only a portion of document is admissible, a note should be made, as soon as thedocument has been proved and admitted into evidence stating the part admitted intoevidence. The exclusion of the inadmissible portion of such documents should not be leftover for consideration at the time of writing judgement.
Opinion of professors of Anatomy as to the sex and the age
36. Sessions Judges and Magistrates should refer the cases with reference to questions asto the sex and the age at death of persons suspected to have been murdered, whose bonesor skeletons are found, to the Professors of Anatomy of the following GovernmentMedical Colleges, for the purpose of obtaining expert evidence on those questions:(1) The Grant Medical College, Bombay.(2) B.J.Medical College,Pune. (3) Government Medical College, Nagpur,(4) Government Medical College, Aurangabad,(5) Government Medical College, Miraj, (District Sangli).(6) Dr.V.M.College, Solapur,(7) Swami Ramanand Tirth Rural Medical College, Ambejogai (District Beed)(Vide G.R.,J.D.No.1630, dated 13th March, 1917, G.Rs., H.D.No. FSL1958/84008V,dated 29th October,1958 and FSL 1958/84008VII, dated 19th February, 1959 and 23rd
April, 1959).
Certificate under Section 13(2) of the Prevention of FoodAdulteration Act, 1954
37. Subsection (2) of Section 13 of the Prevention of Food Adulteration Act, 1954(No.37 of 1954) entitles the accused vendor or the complainant in a prosecution under theAct to make an application to the Court for sending part of the sample mentioned in subclause(i) or subclause(iii) of clause(c) of subsection (1) of Section 11 of the Director ofthe Central Food Laboratory for a certificate on payment of the fee of Rs.40 per sample
prescribed by subrule (6) of Rule 4 of the Preventation of Food Adulteration Rules,1955.
Attention of the Presiding Officers of the Courts is, therefore, invited to the provisins ofRule 4 of the “Prevention of Food Adultration Rules, 1955.” issued by the Government ofIndia and published in the Gazette of India, Extraordinary, 1955, PartII, Section 3 atPage 2039, which is as follows :
Rules 4 of the Prevention of Food Adulteration Rules, 1955
4. Analysis of food samples : (1) (a) Samples of food for analysis, under subsection (2)of Section 13 of the Act shall be sent either through a messenger or by registered post ina sealed packet, enclosed together with a memorandum in form I in an outer coveraddressed to the Director.(2) The Container as well as the outer covering of packet shall be marked with adistinguishing number.
(3) A copy of the memorandum and specimen impression of the seal used to seal thecontainer and the cover shall be sent separately by registered post to the Director.(4) On receipt of the packet, it shall be opened either by the Director or by an officerauthorised in writing in that behalf by the Director, who shall record the condition of theseal on the container.
(5) After test or analysis, the certificate thereof shall be supplied forthwith to the senderin Form II.
(6) The fees payable in respect of such a certificate shall be Rs.40 per sample of foodanalysed.
(7) Certificate issued under these rules by the Laboratory shall be signed by the Director.Attention of the Presiding Officers of the Courts is further invited to the followinginstructions and/or procedure for obtaining a certificate under Section 13(2) of the saidAct or final opinion of samples of food sent to the Director, Central Food Laboratory,Calcutta :
(i) Samples of food for analysis should be sent to the central Food Laboratory, Calcutta,either through a special messenger or by registered post in a sealed packet, enclosedtogether with a Memorandum in Form 1 of Appendix A of Prevention of FoodAdulteration Rules.1955, in an outer cover addressed to the Directorate. The
Memorandum should be properly filed and completed. The nature of article of food statedin Form 1 should be as on the label.
(ii) A copy of memorandum and a special specimen impression of the seal used to sealthe container and the cover should be sent to the director, Central Food Laboratory,Calcutta separately by registered post.
(iii)The container as well as the outer covering of the packet should be marked with adistinguishing mark required under Section 11(1)(b) of the Act.
(iv) Fees should be deposited in the treasury in the appropriate head in advance and thetreasury receipt should be enclosed with Form I.
All the Magistrates should remember that failure to observe these mandatory provisionsmay render the conviction, if any bad simply for failure to observe these provisions.
Examination of Accused and written statements
38. (1) Under Section 243 (1) and Section 247 read with 243(1) of the Code of CriminalProcedure, 1973, the accused may put in a written statement which should be filed withthe record. The written statement cannot, however, be allowed to take the place of theexamination of the accused, prescribed under subsection (i) of Section 313 of the Codeof Criminal Procedure, 1973, which is mandatory.
(2) The object of the examination of the accused under Section 313(1) of the Code ofCriminal Procedure, 1973, is to enable him to explain any circumstances appearing in theevidence against him. The examination should strictly be limited to this object. Theexamination of the accused cannot be used for the purpose of adding to the evidenceagainst him, and no attempt should be made to crossexamine the accused and to elicitdamaging or incriminating admissions. A general question “What do you wish to saywith regard to the evidence in the case ?” may no be regarded as sufficient compliance oflaw. Every circumstance which incriminates or tends to incriminate the accused and thematerial evidence against him should be brought to the notice of the accused and he heshould be asked whether he wishes to furnish any explanation in regard thereto.
(3) The accused may refuse to answer or to add to his written statement, and in that event,the court may draw an appropriate inference under Section 313(3) of the Code ofCriminal Procedure, 1973.
(4) Attention of the Magistrates is drawn to the provision of Section 315 of the Code ofCriminal Procedure, 1973, according to which the accused shall, at the end of hisexamination, be specifically asked to state in writing whether he desires to examinehimself on oath as witness without which he shall not be called as a witness andexamined. He may also be asked to state whether he wants to examine other witnesses.
(5) In order to show that the accused has been given the opportunity of giving suchfurther explaination as he may want to make, it is desirable that the examination of theaccused should conclude with a question whether he has anything else to say.
Payment to Interpreters
39. Sessions Judges and District Magistrates are authorised to pay to an interpreter,employed to interpret evidence given in a language not unserstood by the accused or theCourt, any reasonable sum for his service not exceeding *(Rs.30) per diem. Where apleader or an advocate is employed to interpret evidence as above, the Sessions Judgesand District Magistrates may, if they deem fit, pay to the interpreter a sum of notexceeding Rs.10 per diem.
Sessions Judges and District Magistrates are also empowered within the limit prescribedto sanction similar charges incurred by Magistrates subordinate to them.
Previous Conviction
40. (1) Where the Court thinks fit to award enhanced punishment to an accused by reasonof his previous convictions the said previous convictions must not only be set out in theCharge as required by subsection (7) of Section 211 of the Code of Criminal Procedure,1973, but must also be formally proved, if they are not admitted. The Court should followthe procedure analogous to that laid down in Section 236 of the Code of CriminalProcedure,1973, and suspend delivery of judgment as soon as the conclusion that theaccused is guilty of the subsequent offence charged, has been arrived at. The accusedshould then be questioned as to his convictions and evidence taken in regard to theconvictions which are not admitted by him. The judgment should then be completed andthe finding and sentence recorded.
(2) In cases under the Prevention of Food Adulteration Act, 1954, it is the duty of theMagistrate trying such cases not to give way to misplaced sentimentality but to apply law
strictly in view of the antisocial nature of the offence in Food Adulteration Cases, as itaffects the health of the people. They should, therefore, invariably insist upon theproduction by the prosecutors of the past record, if any , of the accused convicted forsuch offence before passing a sentence so as to rule out any possibility of very lenientsentence being passed on the accused and should award deterrent sentences in deservingcases.
Compounding of Offences
41. Before granting permission to compound an offence, the Court should taken intoconsideration all the circumstances of the case bearing in mind that the offence ispunishable not only for the satisfaction of the injured persons but also to protect societyby deterring others from committing similar offences. The relationship between theparties,the stage at which the composition is sought, the prevalence of crimes of thenature sought to be compounded, or other circumstances which should be taken intoconsideration.
42. Attention of the Magistrate is drawn to Section 314 of the Code of CriminalProcedure 1973, which provides that any party to a proceeding may, as soon as may be,after the close of evidence, address concise oral arguments, any may, before he concludesthe oral arguments, if any, submit a memorandum to the Court setting forth concisely andunder distinct headings, the arguments in support of his case and every suchmemorandum shall form part of the record.
Judgments
43. (1) The arguments should be heard and judgment should be delivered as soon aspossible, after the evidence is recorded. Some Magistrates do not hear argumentspromptly and do not deliver judgments for a long time, even after the arguments areheard. This is the undesirable effect of wiping out the impressions, gained at the trial andduring the course of arguments. There should, therefore be prompt hearing of argumentsafter the recording of evidence is over and judgments should be delivered soon thereafter.
(2) While it is not necessary to lay down any hard and fast rules, Courts should avoid aspar as possible, pronouncing a judgment sentencing an accused to imprisonment at thevery close of the day's sitting or immediately before a holiday or series of holidays ,unless, in nonbailable cases, the convict can be furnished with a copy of the judgment intime to enable him to apply for bail before the close of the day or before the holiday or
holidays commence, or unless, in bailable cases, the Court releases the convict underSection 389(3) of the Code of Criminal Procedure, 1973.
44. At the head of every written judgment, the names of all the accused persons shallalways be set out, together with the numbers by which they may respectively be referredto the Court in the course of the judgment.
45. (1) A judgment should be divided into consecutively numbered paragraphs of areasonable length, and their division into subparagraphs should be avoided. This ismainly to facilitate reference to any particular portion of the judgment during thearguments in the appellate or revisional Court.
(2) The opening paragraph should state briefly the nature of the offence with which theaccused is charged.
(3) The next paragraph or two should state briefly the prosecution case and defense,clearly distinguishing between what is admitted and what is not. Matters like the relativeposition of places and villages and distances between them and how the parties andwitnesses are related to each other should be indicated, where such details are necessary,for a clear understanding of the case.(4) The points that arise for decision should then be dealt with one by one , marshallingthe evidence for and against considering the arguments, and giving a clear finding oneach point. Witness should not be referred to by number alone. The accused person,where there are two or more, should ordinarily be referred to by their numbers. Thevarious points should be dealt with in separate paragraphs, but some points may requiremore than one paragraph.(5) Judgments should not be prolix and repetition should, as far as possible, be avoided.
(6) Attention of the Magistrate is invited to Section 354 (1) (a) of the Code of Criminalprocedure,1973, and the following Government Notification, General AdministrationDepartment, No.OFL1066(ii)M,dated the 30th April, 1966, published in GovernmentGazette. Part IVA,(Extraordinary), and they are directed that the judgments and orders inall cases and proceedings shall be written (either in English or in Marathi in MofussilCourts (up to and inclusive of Session Courts)) although Marathi is determined to be thelanguage of the Court.(7) Provided that Marathi documents in the proceedings shall not be translated intoEnglish unless otherwise directed by the Court.
Notification(published in part IVA) of the Maharashtra Government Gazette Extraordinary, dated 30th April, 1966
GENERAL ADMINISTRATION DEPARTMENTSachivalaya, Bombay32, 30th April 1966
CODE OF CRIMINAL PROCEDURE,1898
No.OFL1066(ii)M. In exercise of the powers conferred by Section 598 of the Code ofCriminal Procedure, 1898 (V of 1898) in its application to the State of Maharashtra andin supersession of all previous notifications issued it this behalf, the Government ofMaharashtra hereby, with effect from the 1st day of May,1966, determines Marathi to bethe language of all Criminal Courts in the State (other than the High Court and CriminalCourts in Greater Bombay) except for the following purposes, namely :
1. Charge.2. Writs,warrants, summonses, notices and other processes which are required to be
sent for service of execution to other Stats, and correspondence concernedtherewith.
3. Post mortem notes and evidence of medical expert witnesses.4. English notes of evidence recorded by the Presiding Officer.5. Notes of Arguments.6. Judgments and orders.7. Paper Books in Appeals and Revisions to the District Court and the High Court.8. Proceedings (both judicial and administrative) that are required to be submitted to
the High Court.9. Periodical returns and statements to the High Court or Statistical bureau.10.All account books and returns and statements pertaining to accounts, budget
estimates and correspondence pertaining to service matters.11.Notification to be published in the Offical Gazette.12.Department examinations.13.Matters relating to departmental enquiries including reports and correspondence
thereon with the High Court and Government.
Provided that, English may also be the language for the purposes of (a) Roznama;(b) Jantries,
(bb) Complaints and application.© Memoranda of appeals.(g) Administratative orders.(e) Correspondence with the High Court and Government.(f) Service Books, travelling allowance bills, pay bills and other bills.
CORRECTION SLIP TO THE CRIMINAL MANUAL,1980.
No.16
In view of the amendement to Government Notification, General AdministratonDepartment No. OFL. 1066(ii)M, dated the 30th April 1966, vide GovernmentNotification, General Administration Department, No.OFL.1088/CR7/XXB,dated the24th January 1989, published in the Maharashtra Government Gazette,part IVA,dated the18th May 1989, the Honourable the Chief Justice and Judges are pleased to direct that thefollowing amendements be made in Criminal Manual,1980,VolumeI :
I
In subpara (6) of paragraph 45 of Chapter VI of the Criminal Manual, 1980, substitutethe words “eigher in English or in Marathi In Mofussil Courts (upto and inclusive ofSessions Courts)” for the words “only in English:.
II
In Government Notification General Administration Department, No.OFL.1066(ii)M,dated 30th April 1966, appearing on Page 114 below subpara (6) of paragraph 45 ofChapter VI of the Criminal Manual,1980, delete entry at serial No.6 and add in theprovisio a new item as “(g) Judgment and Orders”.
7. Attention of the Mgistrates and Sessions Judge is invited in the Supreme Courtdecision reported in Boucher Piarre Andre Vs. Superintendent, Central Jail, Tihar(A.I.R. 1975 S.C.164) and to the following observations of the High Court inNarayanan Nambeesan Vs. State of Maharashtra (76 B.I.R. 690) :
“ ..............................The petitioners are entitled under section 428 of the Code ofCriminal Procedure, 1973, to the setoff of the period of preconviction detentionundergone by them, against the term of imprisonment imposed upon them on theirconviction. The State and the Jail authorities concerned should, therefore, immediatelygive them the said benefit of set off.................. as a matter of healthy practice, the courtsconviction detention that the accused may have undergone, for the purpose of enablingthe authorities concerned to give effect to the provisions of Section 428 without delay(pages 702703).
46.Whenever as enhanced sentence is passed on account of the previous convictionof the accused, the Court shall set Forth in its Judgment each of the previousconvictions proved against the accused or admitted by him, specifying the date ofthe conviction the section under which it was made, and the sentence imposed.
47.In all cases in which sentences of exceptional security or unusual leniency arepassed, or in which varying degrees of punishment are awarded to differentpersons convicted of the same offence in one trial, the judgment should containthe reasons which guided the Court in the determinations of the punishment.
48.(1) The Judgment should contain clear orders as to the disposal of propertyproduced in the case.
2. When a criminal Court is, under the provisions of sections 452, 457 or 458of the Code of Criminal Procedure,1973 required to pass an order in regardto the disposal of a counterfeit coin, the order should direct that thecounterfeit coin be forwarded to the Treasury Officer.
1. Judgment should be tempareately worded.2. If a Judge or Magistrate finds it necessary to criticise the conduct of an
ofical of another department in a Judgment, the criticism must be wordedwith utmost care having regard to the fact that in many cases the officialhas had no opportunity to refute the criticism or explain the actioncriticised. Personal imputations should not be made. A copy of theJudgment should be supplied to the official, superior to the officialcriticised.
3. Instances of abuse of authority or misconduct by the Police coming to thenotice of a Presiding Officer should be reported to the District Magistrateby supplying him with a copy of the Judgment or otherwise, as may beconvenient. When such a report is made by a Sessions Judge, the District
Magistrate should report to the Sessions Judge the action taken. If theSessions Judge is not satisfied with the action taken, he may refer thematter to the Registrar of the High Court.
50.The Criminal Courts, at the time of pronouncing, the judgment of conviction inall criminal cases arising out of road accidents wherein the trial has ended in theconviction of the accused, should draw the attention of the victim of the accident,or his heir to the fact that he has a right to compensation and that the remedy isavailable to him before the concerned Motor Accident Claims Tribunal.
51.In cases under the Protection of Civil Rights Act,1955, the Magistrates shouldsupply, free of charge, a copy of each of the Judgments to the Director, SocialWelfare, Maharashtra State, Pune.
Citation of Cases52.All references in Judgments to Rullings of superior Courts should be cited both
by the names of the parties as well as by the number of the volume and the pageof the Report, e.g., Narayanan Nambeesan Vs. State of Maharashtra (76 Bom.L.R.690)
Paragraphs to be numbered
53.The paragraphs in every Judgment, deposition, report or other paper containingmore than two paragraphs should be numbered. The numbers of the paragraps inthe Judge`s or Magisrate`s English memoranum of evidence should be the same asthose in the regional language deposition.
Reasons for less than Minimum Punishment
54.When punishment less than the minium prescribed by law is awarded reasons forawarding a sentence less than the minimum prescribed shall be recorded in th Judgement.
Sentence55.(A) Attention of all the Courts in invited to Sections 235(2) and 248(2) of the
Code of Criminal Procedure,1973, according to which the courts shall hear theaccused on the question of sentence, before passing it on him, according ot law.
According to the decision of the Supreme Court in A. I. R. 1976, S. C. 2386 ( SantaSingh Vs. State of Punjab), noncompliance with this provision exfacie vitiates the order
as it causes to the accused inherent and implicit prejudice, because of the infraction of therules of natural justice according to which the accuesed is completely deprived of anopportunity ot represent ot the Court which manifestly results in a serious failure ofjustice. In this behalf, attention of the Magistrates and Sessions Judges is further invited to thefollowing decisions of the Supreme Court:
i. (A.I.R.1977 S.C. 949) Shiv Mohan Sing Vs TheState (Delhi Adminisrtaiion.)
ii. (A.I.R.1977 S.C.1066)Narpal Singh and others Vs.State of Haryana.
iii. (A.I.R.1977 S.C.1579)Dagdu and others Vs. State ofMaharashtra.
iv. (A.I.R.1977 S.C. 1747) Tarlok Singh Vs. State ofPunjab.
(B)(1) The discretion granted to the Courts as to the amount and kind of punishment isextermely wide and Courts should exercise their discretion after a careful considerateionof all the facts and circumstances of the case.
(2)Short sentences of imprisonment are seldom suitable. They do not act as a deterrentand the period is not long enough for thereformatory influences to workor for theoffender`s learning any useful trade or occupation. They are also likely to cause harm bybringing first or casual offenders into contact with habitual offenders. Such sentencesmay, however, serve a useful purpose in the case of offeences agains taxation laws, FoodAdulteration Act and other law enacted to promote social welfare.
3. Cases, in which injuries have beer caused with axes, spears or other deadlyweapons, should not, in the absence of special circumstances, be dealt withleriently.
4. The existence of previous convictions is not by itself a proper ground forpassing a heavy sentence for a petty offence. The Court should considerthe lapse of time after the expiry of the last sentence and pass a heavysentence, only if it comes to the conclusion that the accused is a habitualcriminal.
5. Attention of the Magistrates and Judges is invited to the mandatoryprovisions of section 361 of the Code of Criminal Procedure,1973,according to which the Court shall record in its Judgement the specialreasons for not having dealt with the accused person under the proisions ofthe Probation of Offenders Act,1958 or The Bombay Children Act,1948,or any other law for the time being in force for the treatment, training or
rehabiitation of the youthful offenders, in fit cases in which the Courtscould have dealt with them accordingly with a view too give them thebenefit of the said provisions.
The Probation of Offenders Act,1958 provides under section 3 for the release ofoffenders after admonition or on probation of good conduct and also for supervision by thChild Welfare officer (Probation). Under section 4 of this Act, an order for the release ofan offender on his executing a bond for maintaining good behaviour, may be made, whenhe is convicted of any offence not punishable with death or imprisonment for life.
The Bombay Borstal Schools Act,1929 provides for the detention in the Borstal School ofa young offender, in the case of a boy whose age is not less than 16 years or in the case ofa girl whose age is not less than 18 years and in both cases not more than 21 years of age.
All these provisions should be availed of, particularly in the case of first offenders or ifthe offender is a young person. At a very early stage of the trial, the Court shouldconsider whether the case is one, iin which these provisions may suitably be used. If theCourt considers that having regard to the age of the offender, the nature of the offenceand the part played by him, the offender is likely to be given the benefit oth theseprovisions, it should cause inquiries to be made through the Child WelfareOfficer(Probation) or otherwise and obtain fulll informatin regardin th offender`s age,vcharacter, antecedents, physical and mental conditions, the conditions in which he livesand the circumstanes in which he came to commit the offence. After receiveing thisinformation, the Court should decide as to which provision can appropriately be used inthe case.
6. If the Court does not gibve a young offender the benefit of any of the abaoveprovision, it should direct that he should undergo his sentence in the JuvenileSection of the Jail.
Fines56.The amount of fine should be fixed after consideration of the pecuniary circumstancesof the offender and the character and magnitude of the offence; unless otherwise providedby the law, fines for amounts which are not likely to be realised should not ordinarily beimposed.
57.The provisions of section65, Indian Penal Code, are overlooked by many Judgesand Magistrates, and accused persons are awarded terms of imprisonment in
default of payment of fine in excess of the maximum limit prescribed. Theattention of all juges and Magistrates is, therefore, drawn to the provisions ofsection 65 Indian Penal Code. They will bear these provisions in mind whenawarding terms of imprisonment in default of payment of fine.
58.Payments under section 357 or under section 359 of the Code of CriminalProcedure,1973 should not ordinarily be made unless the period allowed forpresenting an appeal has elapsed or, if an appeal has been filed, after the decisionof the appeal.
59.The Courts should adopt the following procedure for the payments of amounts ofgrantsinaid to be paid to the local bodies from out of the amount of fines realiedin Criminal cases under certain acts :
As soon as the payment order to respect of the instalments of thegrantsinaid is receivedthe Accountant General and it is encashed and the amount is distributed in cash to theJudicial Magistrates at the District Headquarters, and by the Treasury or Bank drafts atTaluka places, with directions specifying the amounts to be distributed to the localbodies, the Mgistrates should issue intimation to the concerned local bodies to arrange toreceive the amount payble to them. If the local bodies, i.e. Gram Panchayats find that theexpenditure involved in attending the Magistrates Courts for the receipt of the amounts ofthe grantsinaid is more than the amount to be received by them, or if the payment isrequested by money orders, the Judicial Magistrate should remit the amount by moneyorders at the cost of the local bodies and forward to the District and Sessions Courts thereceipts obtained by them from the local bodies, for further necessary action.
60.In exercise of the powers conferred by subaction (2) of section 421 of the Codeof Criminal Procedure,1973, (II of 1974) and of all other powers enabling it in thisbehal, and in supersession of all rules and orders made in this behalf and in forcein the State of Maharashtra or any part thereof, the Government of Maharashtrahereby makes the following rules to regulat the manner in which warrants for levyof fine issued under clause (a) of subsection(1) of the said section 421 are to beexecuted and for the summary determinations of any claims made by any personother than the offender in respect of any property attached in execution of suchwarrant, namely :
1. These fules may be called the “Criminal Procedure Code (Execution ofwarrants for Levy of Fine and Determination of Claims to PropertyAttached) Maharashtra Rules,1977”,
2. In these rules, unless the context otherwise requires :
(a) “Code” means the code of Criminal Procedure,1973, (II of 1974);(b) “Section” means a section of the Code;© Words and expressions used in the Code but not defined in these, rules shall have themeanings respectively assigned to them in the Code.
3. A warrant for the levy of line issued under clause (a) of subsection (I) of section421 shall be in Form No.43 in the Second Schedule to the Code and shall bedirected to a Police Officer for execution.
4. The Court issuing the warrant shall specify a time for the sale of attachedmoveable property and for the return of the warrant. The time specified for thesale shall not be less than two months from the date of issued of the warrant.
5. (1) The attachment of the moveable propety bellonging to the offender shall bemade by seizure:
Provided that, where in addition to or in lieu of seizure, the Police Officer considers thateither or both of the methods referred to in clauses (b) and © of subsection (3) of Section83 should be adopted, he shall obtain an order to that effect fro the Court issuing thewarrant.
Provided further that, where the property to be attached in a debt or is in the custody of athird party, the Police Officer shall invariably adopt either or both of the methods referredto in clauses (b) and © of subsection (3) of section 83.
2. Where the method referred to in clause (b) of subsection(3) of section 83in adopted and a Receiver is appointed, the Court may confer on theReceiver all or any of the powers which may be conferred on a Receiverappointed by a Civil Court under order XL in the first schedule to theCode of Civil Procedure, 1908 (V of 1908) and his duties and liabilitiesshall be the same as the duties and liabilities of a Receiver to appointed.
6. Where the property to be attached consists of the share or interest, of the offenderin movable property belonging to him and another as coowners, the attachmentshall be made after obtaining an order to that effct from the Court is uing thewarrant, by notice to the offender prohibiting him from transferring the share orinterest or charging it in any way.
7. Before making the attachment, the Police Officer shall deliver or tender a copy ofthe warrant to the ofender or, in his absence, to any adult member of his family. If
the offender is in jail, a copy of the warrant shall be sent to the offencer throughthe Jailor. If a copy cannot be so delivered or tendered the Police Officer shallaffix a copy of the warrant a some conspiciousplace wher the property to beattached is found. If the property is situated in a village, the fact of attachmentshall be proclaimed by beat of drum. After making the attachment, the PoliceOfficer shall, in like manner, deliver, tender or affix, as the case may be, aninventory of the property attached.
1. If no claim is preferred to any property attached, within one month fromthe date of attachment, by any person other than the offender, the PoliceOfficer executing the warrantshall have power to sell, within the timespecified in the warant and without previous reference to the Court issuingthe warrant, the property attached or suca portion thereof as may besuficient to satisfy the amount to be levied:
Provided that, if the property attached consists of live stock or is subject to speedy ornatural decay, or if in the interest of the owner the Court issuing the warrant orders itsimmediate sale, the Plice Officer may sell it at once; but the proceeds of the sale shall notbe appropriated towards the fine until expiration of one month from the date ofattachment and until any claim preferred under rule 9 has been disposed of:
Provided further that, where any property is attached under rule, 6 it shall not be soldwithout obtaining an order to that effect from the court issuing thw warrant. Where twoor more persons of whom one is a coowner, respectively offer the same sum for suchproperty, it shall be deemed to be the bid of the coowner.
2. Sales of attached property shall ordinarily be effected by auction and onfixed days, preferably on bazar days, at the Tah ildar's office or anyMagistrate's court, during the hours of public business. In GreaterBombay, such sales shall be effected by the Government auctioneers.
9. (1) If any claim is preferred to any property attached under rule 5 or 6 within onemonth from the date of such attachment by any person other than the offender, onthe ground that the claimant has a share or interest in such property and that suchshare or interest is not liable to atachment, the claim shall be inquired into anddisposed of, as provided in rules 10 to 13 (both inclusive) and the Police Officershall be directed to stay the sale of the property until further orders.
2. Any claim preferred under subrule(1) in time, may, in the event of death of theclaimant, be continued by his legal representative, if such representative applies
for such continuance to the Court in which such claim is preferred within a periodof thirty days from the date of death of the claimant.
10.Claims may be preferred under rule 9 in the Court by which the warrant is issued,or if the claim relates to property attached under a warrant endorsed by theDistrict Magisrate under section 422, in the Court of such Magistrate.
11.(1) Every claim not exceeing in amount of Rs.1,000 shall be enquired into anddisposed of by the Court in which it is preferred.
Provided that, if such claim is prefered before a Sessions Judge, Additional SessionsJudge or Assistant Sessions Judge, he may transfer it for enquiry and disposal to anyJudicial Magistrate of the First class and, if preferred before Chief MetropolitanMagistrate or Additional Chief Metropolitan Magisrate he may transfer it for enquiry anddisposal to any Metropolitar Magistrate. If such claim is preferred before a DistrictMagisrate, he may transfer it for enquiry and disposal to any Executive Magistrate.
2. All exceeding an amount of Rs.1,000 shall be referred to a Civil Court ofcompetent Jurisdiction for enquiry and decision.
3. (a) Before any claim is enquired into under subrule(1), the Court may inits discertion, require the claimant to deposit in Court a sum of money notexceeding ten per cent of the value of the property attached or rupees ten,whichever is greater.
(b) If the claimant fails to deposit the sum so required, the Court may reject the claim.© If the claim is found by the Court to be vexatious or frivolous, the Court shall order thedeposit amount to be forfettied to the State Government.(d) If the deposit is not so forfettied it shall be returned toa the claimant as soon as maybe practicable, after the Court has recorded its decision under rule 13.
(12)Notice of every claim preferred under rule 9 shall be served on the offender or, in hisabsence, on any adult member of his family. If acceptance of such notice be refused,notice may be dispensed with or may be affixed to the residence of the offender ormember of his family.
13.(1) The enquiry into any claim shall be summary.2. An adult member of the offenders family, or such other person at the Court
may in its discretion permit, may adduce evidence on behalf of theoffender at with enquiry, which may be relevant to the claim preferred.
3. After the enquiry, the Court shall record its decision on the claims with thereasons therefor. The decision shll be communicated forthwith to thePolice Officer executing the warrant, who shall dispose of the property inaccaordance with such decision.
14.Any person, whose claim has been disallowed, in whole or part, by a decisionunder rule 13, may, within a period of one year from the date of such decision,institute a suit to establish any right which the claims in respect of the property indispute, but subject to the result of such suit, if any, the decision shall be final andconclusive.
15.Where any property attached under rule 6 is sold, the Court issuing the warrantmay make an order vesting such property in the purchaser: and such property shallvest accordingly.
16.The Police Officer executing the warrant shall, as soon as possible after the sale,procedure the sale proceeds before the Court issuing thw warrant, or, if theproperty was sold under a warrant endorsed by a District Magistrate's undersection 422, before the Court of Such Magistrate.
17.The Police Officer empowered under these rules to execute a warrant shall not beinferior in rank to a subInspector or Head Constable, when the estimated value ofthe property to be attached exceeds Rs.100 (Government of MaharashtraNotification, Law and Judiciary Department, No.CRM 1066/3293 (212)/X. Datedthe 5th February 1977, published in Maharashtra Government Gazette, (SpecialPart IVA, dated the 5th February 1977.)
61.(a) Every Criminal Court, when it passes a sentence of imprisonment, shallspecify in the body of the warrant with which, under the privision of section 418(1) of the Code of Criminal Procedure, 1973, it forwards the convict to jail, thesurname (if any) of the accused in addition to his own name and his fathers nameand the marks of identification mentioned in the chargesheet submitted by thePolice.
(b) (i) The warrant of commitment shall indicate the sentence of sentences awarded,stating the punishment fully and directly and also indicating clearly whether thesubstantive sentences are ordered to run concurrently or consecuritively.
ii. The warrant of commitment shall indicate the period of detention, if any,undergone by the accused during the investigation, inquiry or trialandbefore the date of his conviction in the case for the purpose of givingthe benefit of the period of setoff to the accused against the term ofimpriosonment imposed on him and showing the liabiliry of the accused toundergo imprisonment restricted to the reminder, if any, thereof, undersection 428 of the Code of Criminal Procedure,1973.
The information in the folowing orm should also be sent to the Appellate Court by thetrial Court for the purpose of section 428. :
1. Serial No.2. Police Station..........Crime No.3. Nature of offence.4. Name of the accused.5. Date of arrest.6. Period of detention of police custody.7. Period of detention in Magisterial custody.8. Criminal Case Number and the date of Chargesheet.9. Remarks.10.Whether the accused is in jail or on bail.11.If on bail, when released on bail.
The information about the exact period during which the concerned accused was incustody should be submitted to the Sessions Court.
© The Court shall also endorse on the back of the warrant the following particulars :
I. (i) Age of convict.ii. His place of residence.iii.His plea.iv. The name and crime number of the Railway Police Station in all cases sent
up by the Railway Police.
v. The Magisrate or the Judge before signing the Warrant, should see thatcomplete order and recommendations, if any, are incorporated in thewarrant. Inclusion of the operative order cannnot give the exact picture ofthe orders passed in the Judgement.
ii. If at the trial any previous conviction has been established, the followingparticulars shall also be given :
i. The offence of which the convict was previously convicted.ii. Sentence passed upon him.iii.Date of said sentence.iv. Name and designation of the trying authority.
III.If the Court has decided upon the classification of the convict as habitual or nonhabitual 'or' Class I or 'Class II vide paragraph 66, particulars in regard to theclassification made by it shall be given.
IV.The Police in the State (Except in Greater Bombay) should forwarded a copy oftheir form P.M. 30A with the accused. This form should be attached to thewarrant of commitment on conviction.
(d) The above particulars ahll be written in the same language in which the warrant itselfis written.(e) It shall be the responsibility of the Clerk of the Court in the Sesions Court and of theSenior Clerk (or where there are more Senior Clerks than one, of the Senior Clerkappointed in this behalf by the Presiding Magistrate) in the Magistrate's Court, to see thatthe warrant of commitment is drawn up properly, correctly and in conformity with theorder passed by the Court. When there is no Senior Clerk attached to a Magistrate'sCourt, the Presiding Magistrate may appoint any Junior Clerk whom he considers to besuitable to do this work, and the Junior Clerk to appointed shall be responsible fordrawing up the warrant of commitment properly, correctly and in conformity with theorder passed by the Court.
(f) Before signing the warrant of commitment, the Judge or the Magisrate concernedshould satisfy himself that the warrant is in conformity with order passed and that allmaterial details are included herein.
62.(1) In order to facilitate the proceedings of the Prisons Advisory Committees, anadditional typed copy of the Judgment of Sessions Court should be attached to thewarrant of commitment in every case in which a sentence of five years or over ispassed.
2. Even in cases, where a leser sentence has been passed, the Criminal Courtconcerned should supply a copy of the Judgment, free of cost, whenever arequest in that behalf is made by the Superintendent of Jail on the groundthat the same is necessary to facilitate the proceedings of the PrisonAdvisory Committee.
Typed Records63.Judges and Magisrates may use a typewriter, instead of a pen, for the purpose of
recording Judgments, depositions and memoranda of evidence; but every sheet ofany judgment, deposition or memorandum so recorded must be initialled orsigned by the Judge or Magisrate recording it.
Arrangement of the Record in Files64.(1) The record of every case shall be kept in four parts.
(2) Part I, which shall be the English record of the proceedings shall contain (1) theRoznama or the record of the proceedings, (2) the notes of evidence and the statements ofthe accused persons recorded by the Judge or Magistrate, (3) all documents which havebeen exhibited and if they are not English, translation of such documents where they havebeen made, (4) the Judgment and the final order, including the order with regard to thedisposal of property, and (5) the warrant of commitment, if any, issued to the jailor.
3. Part 2 of the record shall contain depositions of witnesses in the regionallanguage, the confessions and statements of accused persons in theregional language and all documents, which are in the regional languageand which have been exhibited.
4. Part 3 shall contain copies of statements recorded by the Police and alldocuments referred to in section 173 of the Code of CriminalProcedure,1973 which have not been exhibited, and the report of the PoliceOfficer submmitted after investigation directed by a Magisrate undersection 202 of the Code of Criminal Procedure,1973.
5. Part 4 shall contain miscellanous papers, which have not been exhibited,and which are not included in parts 1 to 3.
6. All papers which are exhibited shall be filed serially in each part of therecord.
7. Every paper which is produced before a Court or is exhibited, shall be
marked in red ink A,B,C or D according to the period for which it isrequired to be preserved as specified in Paragraph 17 in Chapter XX.
8. Before transmitting that record to the District and Sessions Court Record Room,the Clerk in charge of such work shall verify and make an endorsementmentioning that the documents are properly classified and kept in the appropriatefiles 'A', 'B', 'C' and 'D'
65.With a view to ensuring uniformity in respect of filing of the various reportsreceived in the Criminal Courts under various sections of the Code of CriminalProcedure,1973 while a case is under invistigation, it is directed as follows :
A seperate file should be maintained for each category of reports. The reports should befiled in each file according to the dates on which they are received. The envelopes, inwhich the First Information Reports are received, shall be filed along with the reports.
After a case is instituted, all such papers and reports received during the investigationstage, as related to the particular case, should be taken out of the respective files and keptwith the received of the case and First filed with the Miscellaneous Police papers relatingto that case.Except the reports filed with the record of the case, the other reports should be kept fortwo years and destroyed thereafter.
“Classification of habitual criminals and of undertrial and convicted prisoners.”
66.The following prisoners shall be classified as habitual criminals :
1. Any person convicted of an offence punishable under Chapters XII, SVIIand SVIII of the Indian Penal Code, whose previous conviction orConvictions taken in conjunction with the facts of his case, show that he isby habit a robber, housebreaker, dacoit, thief or receiver of stolenproperty or that he habitully commits extortion, cheating, forgery or is inthe habit of counterfeiting coins, urrency notes, and staps;
2. Any person convicted of an offence punishable under Chapter XVI of theIndian Penal Code, or under the suppression of Immoral Traffic in Womenand Girls Act, 1956 (104 of 1956) whose previous conviction orconvictions taken in conjunction with the facts of his case show that hehabitually commits offences against persons or is habitually engaged in
immortal traffic in women or children;3. Any person committed to or detained in prison under section 123 (read
with section 109 or 110) of the Code of Criminal Procedure,1898;(Correspnding section 122 (r.w.s. 109 or 110) of the Code of CriminalProcedure,1973).
4. Any person convicted of any of the offences specified in clauses (1) and(2), when it appears from the facts of the case, even though to previousconviction has been proved, that he is by habit a member of a gang ofdacoits or of thieves or a dealer in stolen property or a trafficker in womenor children for immoral purpose;
5. Any person convicted by a Court or Tribunal acting outside India, of an offencewhich would have rendered him liable to be classified as a habitual criminal, if hehad been convicted in a Court established in India; and
6. Any person who is a habitual offender under the Bombay Habitual OffenderAct,1959 (Bom.LXI of 1959).
Explanation – For the purpose of this classification, the wordconviction includes as anorder made under section 118 read with section 110 of the Code of Criminal Procedure,1898 (Corresponding section 117 r.w. 110 of the Code of Criminal Procedure,1973).
(B) The Government of Maharashtra have given the following directions to Governmentof Maharashtra, Home Department, Resolution No.COP,5471/IV,dated the 1st January1974 :
1. In supersession of all orders regarding grant of class I to convictedprisoners, the system of classification of convicted prisoners into Class Iand Class II should be done away with. All convicted prisoners within theprison should be treated alike regard being had only to age, physicalcondition, type of crime committed and the corrctive treatment needed.Undertrial prisoners should, however, be continued to be classified intoClass I and Class II as before.
2. The facilities now available to ClassI prisoners should be made availablein individual cases on medical and/or psychological grounds for such timeas they are considered essential. For this purpose, ClassificationCommittees should be formed by the Inspector General of Prisons, State ofMaharashtra. Pune, uner the Chairmanship of Regional Deputy Inspector
General of Prisons. The Deputy Inspector General of Prisons (HeadQuarters), Pune, should also be associated with the Committees.
3. The Special Considerations should also be continued to be shown toprisoners who are convicted for participating in Satyagrahas and thebenefits and other facilities contained in Government orders issued in 1960should also be continued to be made available to them even afterconviction.
(C)For the purposes of grant of prison amenities and privillages, undertrials areclassified as Class I or Class II having regard to their social Status, education and thehabit of life to which they are accustomed.(D)The trial court may recommended that an undertrial prisoner may be placed in ClassI, having regard to his social status, education and the habit of life to which he isaccustomed.
Muddemal1. When property is produced before a Court with a list, the list should be
exhibited and it should be seen that each article is separetely marked andnumbered for identification.
2. Where any of the articles mentioned in the list have been sent to thechemical Analyser for examination, the corresponding numbers given tothose articles by the police while forwarding the article to the Chemicalanalyser as well as the numbers given to them by the Chemical Analyser,should also be shown in the list.
3. If the property is seized without a list, of it should be prepared andexhibited. This list should also give where necessary, the particularsreferred to in sub paragraph (2).
4. All the Sessions Judges and Magistrates, should get a map of the RecordRoom as well as a map of the Muddemal Room of their Courts prepared,showing therein the rack with numbers and category of record orMuddemal kept on each rack and should see that the said map is fixed atthe entrance of each Record Room and Muddemal Room of their Courts.
68.When death or hurt has been caused by a blow from a stick or other weapon, or
when any person is convicted of the offence of being in illegal possessionsthereof, the weight and dimensions of the weapon should be stated in theproceedings with such particularly as may enable the appellate or revisional Courtto form an opinion as to the character of the weapon and the intention with whichit was probably used, and to enable such Court to Judge the gravity of the offenceand appropriateness of the sentence. The mere entry of “a stick” or “a stone” inthe lsit of property produced before the Sessions Court does not enable the HighCourt to Judge whether the stick or the stone was deadly or a comparativelyharmless weapon or to Judge the gravity of the offence and the appropriateness ofthe sentence passed.
69.After the receipt of muddemal and other property along with rhe record of everyCriminal Case in the Court by the Criminal SheristedarcumClerk it should beimmediately entered in the property Register to be maintained in the followingform and a note of the Property Register Number should be taken on thechargesheet (and a case of nonreceipt of the property, a note should also be takenthat it is not received with the chargesheet).
The primary responsibility of making the entries of the property in the Property Registerand taking the notes as aforesaid on the chargesheet shall ordinarily be of the SeniorClerk in the court of a Magistrate and of the Nazir in the Sessions Court, such entriesmade in the Property Register and notes taken on the chargesheet should be veritifed andcountersigned by the Magistrate or by the Clerk of the Court in the Sessions Court inorder to indicate that theproperty produced in the court has actually been entered.
Before passing any first orders, the Presiding Officer should verify and confirm that theentries in the Property Register and notes on the chargesheet have duly been madeaccordingly by thepersons concerned, and in case they are not made accordingly, directthe Nazir and the Clerk concerned to make the necessary entries in the Property Registerand take the necessary notes on the chargesheeet before passing any first orders in thatbehalf.
While sending all the papers in the cases placed on dormant file to the District RecordRooms, according to the instruction contained in para 83(iii) of Chapter VI and paragraph17 (9) and (10) of Chapter XX of Criminal Manual all the articles of Muddemal propertyin such cases should not be returned or sent back to the police stations concerned for safecustody under any circumstances; but should normally be preserved or kept in the
custody of the Courts of the Magistrates wherin cases are filed or trial is pending. Only inexceptional cases, when there is no sufficient space or accommodation available for thecustody of such property in such Courts of the Magistrates, the articles of such muddemalproperties should be sent to the Nazir of the Sessions Court concerned for safe custodyafter obtaining the orders of the District and Sessions Judge in hat behalf.
For the purpose of making entries of such muddemal articles received in the DistrictCourt from the Criminal Courts, separate and common registers should be maintained inthe District Court. Such register should not be Courtwise but they should contain acolumn for entries indicating the Courts from which the properties are received. Thenames of the Courts from which the properties are received should be noted specificallyin red ink in column 3 of such register above the Crimina Case numbers so as to facilitatethe distinguishing of muddemal properties and the different courts from which they arereceived.
When the muddemal properties and the records in the case on the dormant file are sent tothe District Courts for the safe custody and preservation, the Magisrate concerned shouldcall back the records of such cases periodically to issue warrants or summons, as the casemay be.
The muddemal property herein does nt include valuable property
Property RegisterSerial Date of receipt of Criminal Name of Description of initials of the No. the property. Case No. parties articles with Magisrate ofComplainant/ particulars and clerk of the Accused. Value (weights in Court, Sessionscase of valuables). Courts as toreceipt.1. 2. 3. 4. 5. 6.
Order of the Date of issue of Date and Signature Name,Signature Signature ofMagistrate notice for return manner of the and address of the or Judge of the Muddemal of final receipient the person magisrate regarding property to the disposal. Of the identifying the or clerk ofdisposal claimant and the property receipient of the the court,with date. Date fixed for app. With date. Muddemal Sessionsproperty. Court.
7. 8. 9. 10. 11. 12.
Remarksif any.13.
Valuable Muddemal
70.(a) A separate Register for valuable properties in the same form as the PropertyRegister should be maintained to facilitate constant check and supervision by theMagistrate or in the court of Sessions, by the Clerk of the Court over the valuablemuddemal. The valuables should always be returned in the presence of theMagistrate or, in the Sessions Court, in the presence of the Clerk of the Court. Theentry in the register regarding delivery of the property should be countersigned bythe Magistrate or, in the Sessions Court, by the Clerk of the Court.
(b) The following shall be treated as valuable properties :i. All cash consisting of current coins and currency notes irespective of the
total value;ii. Gold and silver coins and currency notes withdrawn from circulation or
which have ceased to be legal tender;iii.Counterfeit coins and currency notes;iv. Gold, Silver and Platinum in whatever form including articles or
ornaments thereof;v. Precious stones, pearls and corals including articles or jwellery made from
or set with these;vi. Wrist watches, timepieces, transistors, fountainpens and such other
costly articles of luxury;vii.Curious and antiques of considerable value'viii.opium, Ganja and other narcotics;ix. All valuable securities, including Government and other promissory notes
negotiable instruments of all kinds, debebture and share certificates,
security deeds and deposit receipt and certificates;x. Title deeds relating to immoveable property;xi. Important original documents ; and xii.Such other articles which the Magistrate or the Judge thinks should be
regarded as valuable articles having regard to their utility and value, andthe attraction the articles have for the public generally.
71.All Judicial Magistrates and Clerks of Courts of Sessions Courts shall have a testcheck of 10 per cent of the items of property every month and complete checkonce in six month in case of nonvaluable muddemal property with reference toproperty register. They shall verify the entire valuable property with reference tovaludable property register atleast once a month. They shall make an endorementwith date about such verification, in the remarks column of the above register andalso make a report ot the Sessions Judge every month of having verified thevaluable muddemal property and every six months of having verified the ordermuddemal property.
Return of disposal of Bhatta or Muddemal.
72.Bhatta money to be paid to witnesses or to be returned to the depositors, if notclaimed in person within fifteen days from the final disposal of the case, should beremitted to the person concerned by money order or in stamps if under Rs.2 (videparagraph 5 of Chapter XXVII). If the amount remitted is returned undelivered bythe Post Office because the payee could not be traced, it should be brought on theCriminal Deposit Register for disposal according to the usual rules or credited toGovernment.Note : The Magistrates and Judges should comply with the following directions,so long as they are not inconsitent with the provision of sections 451 to 459(Chapter XXXIV) of the code of criminal Procedure,1973, as these directions arenot intended to fetter the judicial discretion vested in them under the aforesaidprovisions of the Code of Criminal Procedure, 1973.
73.(1) (a) As the scope for loss of muddemal property is greater in the case ofdisposed of cases, the Presiding officer should see that the property in nonappealable cases is disposed of as soon as possible after such cases are decided.
(b) In appealable cases, whee the appeal lies to the Sesions Court of the DistrictMagistrate, Muddemal property may be disposed of after a period of 90 days from thedate of the decision of the case, if in the meanwhile no intimation of an appeal havingbeen filed has been received; but if such an intimation is received before that period, such
property shall not be disposed of until the appeal is decided.
© In appealable Cases; where the appeal lies to the High Court but arises from theMetropolitan Magistrate's Court, the muddemal property may be disposed of after aperiod of 180 days from the date of the decision of the case, if in the meanwhile nointimation of an appeal having been filed in the High Court has been received, but if suchan intimation is received before that period, such property shall not be disposed of untilthe appeal is decided by the High Court.(d) In appealable cases, where the appeal lies to the High Court but arisesfrom theSessions Court, the muddemal property may be disposed of after a period of one yearfrom the date of the decision of the cases, if in the meanwhile no intimationof an appealhaving been filed in the High Court has been received but if such an intimation isreceived before that period, such property shall not be disposed of until period of oneyear expires from the date of the decision of the appeal to the High Court, and if in themeanwhile an intimation is received by the Sessions Court, of an appeal having beenfiled before the Supreme Court, such property shall not be disposed of until the appeal isdecided by the Supreme Court.
2. Muddemal should be restores, when a nonappealable sentence is passed on theexpiration of two months from the date of the sentence, except in the case oflivestock, or property subject to speedy and natural decay, which may be restoredat once, and except in cases in which a bond is executed under subsection (2) ofSection 452 of the Code of Criminal Procedure, 1973.
3. In every case, after the expiry of the respective periods mentioned in that behalf insubparagraphs (1) and (2) above, the Magisterite should issue a notice induplicate or by a Registered Post A.D. Or both to the person entitled to receivedback the muddemal property and fix a date for appearance of such person forreceipt of the property. In case of dispute or doubt regarding the identity of theclaimant, the Court may, in its discretion, direct the person claiming to be entitledto receive the property under the orders of the Court, to furnish such security as itdeems fit for return of the property or its value. If, after intimation, the personfails to appear before the Court to receive the muddemal on the fixed date or, ifdue to want of address or otherwise it is not possible to give the notice to the saidperson, the muddemal should be sold at his cost by public auction and the amountso realised be credited to Criminal Deposits. No sale will be necessary in the case
of property which consists of cash only. The fact of issue of the notice as above,of appearance of the claimant on the date fixed for receipt of the MuddemalProperty and actual delivery of the property to the receipient on that date or anyother date to which the matter may be adjourned should be entered in the PropertyRegister.
Provided that if the value of the property is less than Rs.100 the person entitled to receiveback the muddemal property may be served with a notice issued under certificate ofposting.
4. A quarterly report should be submitted to the Sessions Judge along with the onereferred to in paragraph 71, to the effect that the muddemal property in casesdecided six months prior to the date of the report has been disposed of. The reportshould also state the number of cases in which the muddemal property remainedto be disposed of, with the necessary explanation therefor.
In order to enable the Presiding Officer and the Clerks of the Courts to verify themuddemal property with reference to the tntries in the Property Register, on the first ofevery month, Senior Clerk in the Judicial Magistrate's Courts and the Nazir in theSessions Court should prepare the Balance Sheets of undisposed of Muddemal property,showing only the numbers of the cases, the years and ;the serial numbers in the propertyRegister. It is, however, not necessary to copy out the details of the articles therein. Everyday new additions, if any, should be entred therein and the entries of the cases from theBalance Sheets in which Muddemal property has been disposed off should off be struckoff.The Senior Clerk and Nazir should obtain the signatures of the Presiding Officers and theClerks of the Courts respectively on which Balance Sheets and the same should be kepthandy by the Muddemal Clerks.The Judicial Magistrates and the Clerks of the Courts should verify the MuddemalProperty with the help of the Balance Sheets. The Senior Clerks and the Nazir should beheld solely responsible for the preparation and the correctness of the Balance Sheets.Whenever the clerk in charge of Muddemal articles is transferred or if any change ismade in his duties, the said clerk should hand over the Muddemal articles to the clerktaking over the latter should take such Muddemal articles in his charge after verifying thesame with reference to the Property Register, (Which includes both the PropertyRegisters viz, valuable and General) and with reference to the monthly Balance Sheet.
74.Money awarded by the Court under Section 357(1) to (4) and 359 of the Code ofCriminal Procedure, 1973, (Section 43 of the Court fees Act,1959) should be paidto the person concerned on the day it is recovered ifhe is present or sent to him bymoney order at his cost,. If a nonappealable sentence is passed or one month afterthe expiration of the period of appeal if no appeal has been filed. If the amount isreturned by the Post Office because the payee could not be traced, it should bekept in deposit and dealt with as laid down in Article 198(b) of the Civil AccountsCode, VolumeI.
Disposal of gold in possession of Civil and Criminal Courts underGold Control Orders of Government of India.
75.The position, under Part XIIA of the Defence of India Rules, 1962, of the Civiland Criminal Courts who are in possession of gold or gold ornaments belongingto the parties to the proceedings is as follows :
(a) Declaration of nonornament gold under Rule 126I : A court of law is not a personwithin the meaning of Rule 126I. Courts are not, therefore, required to make adeclaration under Rule 126I whenever they come into possession of any nonornamentgold. However, in order to facilitate the proper enforcement of the Gold Control Rules, itis considered desirable that they should send an intimation of such gold to the properOfficer of Central Excise having jurisdiction over the area in which the court is located.(b) Disposal of ornaments under Rule 126C _ As regards the disposal of ornamentscoming into their possession, the Courts cannot be treated as dealers under the Rules asthey will not be selling the ornaments in the sense of carrying on any business. TheCourts would, therefore, stand on par with private individuals. In such cases there is norestriction regarding the purity of the gold ornaments sold. In other words, the courts,will be free to sell ornaments of over 14 carat purity as well toany purchaser, irespectiveof whetherhe is a private individual or a dealer No. specific exemption under the GoldControl Rules for this purpose will, therefore, be necessary.
© Sale of nonornaments gold under Rule 126H Sale of nonornament gold willautomatically be restricted to licensed dealers only, because uner rule 1261(3) it is anoffence for any person other than a licenced dealer, to acquire nonornaments gold,except by succession, intestate or testamentary or in accordance with a permit granted by
the Administrator in this behalf.
76.Extract from letter F.No.28/7/63GC I, dated the 12th October, 1965 being theCircular letter No.Gold 40/65 from the Deputy Secretary to the Government ofIndia, Ministry of Finance, Department of Revenue, to the secretaryF.D.Government of Maharashtra.
“There is no objection to the return of gold ornaments (irrespective of purity in thecustody of the Courts without any intimation to the Central Excise Officer unless anadvice has been received by the Courts from the Central Excise Officer that theseornaments, were required in connection with any Department proceedings.“As regards nonornament gold, the position is different, Private individuals are notentitled to acquire or received nonornament gold except by succession,intestate, ortestamentry or in accordance with a permit issued by the Gold Control Administrator.Only a licended dealer in gold can received nonornaments gold without any prior permitand he will include the quantity so received in his monthly return.“Accordingly, whenever nonornaments gold in the custody of a Court is to be returned,that owner, if he is not licenced dealer, should be required obtain necessary authorisationor permit from the Deputy Secretary, Regional Office of the Gold Control Administrator,Laxmi Building,22,Sir P.M.Road, Bombay 400 001.
Disposal of Forged Coins and Currency Notes77.Courts in the moufussil should transmit to Treasuries coins coming before them
under sections 452, 457 and 458 of the Code of Criminal Procedure,1973,togetherwith a short description of the case and any implements, such as dies, moulds, etc.which may have been found, for being sent on by the Treasuries to the mintthrough the Deputy Inspector General of Police, Criminal InvistigationDepartment, Courts in Greater Bombay should transmit the same direct to theMint through the Commissioner of Police, Bombay.
78.In cases of forgery of currency notes, all moulds dies, and other instrumentsproduced in the case should be delivered to the District Superintendement ofPolice by Courts in the Moufussil and to the Commissioner of Police by Courts inthe Presidency Town.
Disposal of Confiscated Drugs
1. The Court shall refer the confiscated drugs to the Inspector concerned forreport as to whether they are of standard quality or contravene theprovisions of the act or the Rules in any respect.
2. If the Inspector, on the basis of Government Analyst's report, finds theconfiscated drugs to be not o standard quality or to contravene any of theprovision of the act or the rules made thereunder, he shall report to thecourt accordingly. The Court shall thereupon order the destruction of thedrugs. The destruction shall take place under the supervisior of theInspector in the presence of such authority, if any, as may be specified bythe Court.
3. If the Inspector finds that the confiscated drugs are of standard quality anddo not contravene the provisions of the Act or the rules made thereunder,he shall report to the Court accordingly. The Court may then order the saleof the Drugs by public auction to any party holding a requisite licenceunder the Act.
Disposal of confiscated articles under the Bombay Prohibition Act. 1949,(Bombay Act XXV of 1949)
80. Under Rule 2 of the Bombay Prohibition Confiscated Articles (Disposal) Regulations,1953, brought into force under Clause (i) of subsection (1) of Section 144 of the BombayProhibition Act, 1949 (Bombay Act XXV of 1949), if in any case tried by a Court, theCourt orders the confiscation of any article, the said article shall be made over to theCollector of Excise for disposal, or shall be disposed of under the orders of the Collectorof Excise, according to the said regulations.
81. Useful agricultural implements, such as axes, crowbars, sickles, etc., which may beused in the perpetration of an offence but which are not covered by the Indian Arms Act,should be disposed of by public auction, and the amount realised should be credited toGovernment. If such articles cannot be sold as useful implements by public auction, theymay be sold as scrapt by public auction or otherwise for whatever price they may fetch,and the amounts so realised may be credited to Government.
So far as weapons like swords, big knives, scimitars, spears, etc., are concerned, theexisting provisions of section 518 of the Code of Criminal Procedure, 1898,(Corresponding Section 452 of the Code of Criminal Procedure, 1973) should befollowed and the Courts concerned should send such articles, without destroying them, tothe District Magistrate for disposal after confiscating them.
Rules for the conduct of sales of confiscated property
82. I Sales when to take place Confiscated moveable property shall be sold as soon aspossible after the expirty of the period of appeal or revision or after the disposal of appealor rivision, if any. The Magistrate concerned shall make proper inquiry and ascertain thefact that neither appeal not revision is filed in the matter before the proeprty is put toauction.
II. Sales by whom to be conducted and how to be made (i) The sales should beconducted by the Magistrate or by such other responsible person as the Magistrate mayappoint in this behalf. The Magistrate shall cause a proclamatino of the intended sale tobe made in the language of such Court in the prescribed from (Annexure A).
(ii) Such proclamation shall state the date, time and plce of sale, and specify as fairly andacurately as possible the description of the property to be sold.
(iii) It shall also state that the bidders will have to pay the price immediately.
(iv) It shall be incumbent upon the Magistrate to fix the upset price of the articles to besold. Valuables should be got assessed through experts.
III. Mode of publishing proclamation – The proclamation shall be published by affixing acopy thereof upon the Notice Board of the District and Sessions Court, of the Courtconcerned, and of the Collector and the Mamlatdar, and in such other manner or mode asthe Magistrate may think fit. Where the property to be sold is worth more than Rs. 500,and if the Magistrate so directs, such proclamation shall be published in a local newspaper after obtaining the sanction of the Sessions Judge for the cost of such publication.
IV. Time and place of Sale. (i) The sale shall not take place until after the expirationof at least 15 days from the date on which the copy of the proclamation has been affixedon the Court Notice Board of the Magistrate holding the same.
(ii) Auction sale should be held during the Court and within the Court premises.
V. Adjournment or stoppage of sale. The Magistrate may in his discretion adjourn thesale to a specified date and hour recording his reasons for such adjournment.
VI. Restriction on bidding or purchase by public servant or by officers. No publicservant and no officer or other person having any duty to perform in connection with any
sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interestin the property sold.
VII. Sale how to be conducted. (i) Proceedings of the sale shall be written in theprescribed form (Annexure B)(ii) If convenint, the property may be sold bylots. Valuable articles, however, should not,as far as possible, be auctioned in lots.(iii) Sale shall be confirmed in the name of the highest bidder unless the Magistratethinks that the bid offered is grossly inadequate, in which case the property shall be put tosale again.(iv) The price of the articles shall be paid at the time of sale.(v) The officer conducting the sale shall pass a receipt for the price paid and then handover the property to the purchaser.(vi) If the price is not paid, the property shall be resold.
VIII. Defaulting purchaser answerable for loss on resale. Any deficiency in the priceresulting upon such resale shall be recovered from the defaulting bidder, and if he fails tomake good the same, the same may be recovered by issuing distress warrant against him.
ANNEXURE ANotification of the sale
In the Court of thereMAGISTRATE atCRIMINAL CASE No.
ComplainantAccused.
Notice is hereby given that this Court has decreed the sale of the movable property,involved in the abovementioned case, and and specified in the schedule hereuntoannexed.
The said sale shall be by public auction and the property shall be divided into lots asspecified in the said schedule and put up for sale. Or it shall be divided into lots at thetime of the sale and shall be put to auction.
Provided no adjournment order is issued in the meanwhile, the said sale shall beconducted by
at at a.m./p.m.
on ______________________
All those, interested in the said auction, may attend personally or through their dulyauthorised agents
Additional conditions of the auction sale are as follows :
(1) The details contained in the following schedule have been given according to the bestof the Court's knowledge. However, the Court shall not be held responsible for any erroror false information or details contained in this proclamation.
(2) The Officer conducting the sale shall decide by what amount the auction bids shouldbe raised. Should there beany dispute regarding the amount of the auctionbid or the
person who offered it, the lots in question shall be reauctioned forthwith.
(3) The highest bidder shall be declared to be the purchaser of any lot, provided alwaysthat he is legally qualified to bid, and provided that it shal be in the discreation of theMagistrate or the Officer conduction the sale to decline acceptance of the highest bidwhen the price offered appears so clearly inadequate as to make it advisable to do so.
(4) The Officer conducting the sale may, if he finds it necessary, adjourn the salerecording his reasons for such adjournment.
(5) The price of each lot shall be paid at the time of the sale or as soon thereafter as theOfficer conducting the sale directs and in default of payment, the property shall forthwithbe reauctioned and resold. Any deficiency in the price resulting upon such resale shallbe recovered from the defaulting bidder.
Issued this day of 19 under the signature and the seal of the Court,
Magistrate
Schedule showing the property
Lot number Description of the property for sale1 3
ANNEXURE B
List of the movable property sold by auction at in the Court of Magistrate at
Criminal Case No. of 19
The property mentioned below intended for sale in the abovementioned Criminal Casewas sold today by public auction
Sale commenced at a.m./p.m.
The purchase price was recovered from the highest bidder and he was given the receipt.
and the property was given in his possession.
Date this day of
Witnesses
(1) ___________________________________
(2) ____________________________________Magistrate
Dormant file
83. (i) All cases, in which the accused are of unsound mind and are consequently unableto make a defence, or are absconding and cannot be traced or served with warrants,summons or notices for a period of one year or more from the date of receipt of the charesheet or the complaint, should be placed on the Dormant File by an order in writing of thePresiding Magistrate :
Provided that no case shall be kept on the Dormant File, if the Judge or Magistrate, as thecase may be, after considering the Police report or the information in his possession, is ofthe opinion that the accused is likely to be found within a reasonable time thereafter:
Provided further that cases under the Motor Vehicles Act, 1939, the Cantonments Act,1924, Indian Railways Act, 1890, the Bombay Police Act, 1951, the Bombay PublicConveyances Act, 1920 (Act No. VII of 1920) and Municipal Acts and petty cases, undersuch other Acts as the High Court may from time to time direct, may be put on theDormant File, by an order in writing passed by the Magistrate, if the Magistrate after twoattempts at service, is of the opinion that it will not be possible to secure the attendance ofthe accused within a reasonable time.
(ii) A separate register (in the form given below) should be maintained, showing all caseswhich are put on the Dormant File :
Dormant File Register
Serial
No.
Case
No.
Date on
which
the case
is put on
the D.F.
Reasons
forkeeping
it on
D.F.
Date on
whichwarrants,
summonses, notices
werereissued
afterkeepingcase on
D.F.
Date
when
thecase
is
revived
Date
when thecase
transferred to theRecordRoom
Datewhenpapers
aredestroyed
Re
marks
1 2 3 4 5 6 7 8 9
(iii) All papers of a case on the Dormant File should be sent to the Record Room after theexpiry of one year from the date when the case is put on Dormant File.
In cognizable cases, before keeping the case on dormant file on the ground that any of theaccused person is or are absconding or cannot be traced, procedure as prescribed insections 82 and 83 whenever applicable as prescribed in section 446 of the Code ofCriminal Procedure, 1973, should invariably be followed.
Procedure in section 299 of the Code of Criminal Procedure, 1973, should also befollowed before keeping the case on dormant file.
84. Where, pending a criminal case, the accused is reported to be dead and the case,therefore, abates, the Court should pass an order recording these facts in the followingform :
“Accused reported to be dead.”
'Proceeding abate.'
Dress of Officers and Soldiers appearing before Criminal Courts.
85. The following instructions for the dress of officers and soldiers appearing before acriminal Court (other than a Court established under military law) are reproduced for theinformation of Criminal Courts (Government Resolution in the Military Department No.1686, dated the 29th August 1891) :
(1) An officer or soldier required to attend a Court in his officer capacity should appear inuniform with sword or sidearms. Attendance in an official capacity includes attendance
(a) as witness, when evidence has to be given of matters which came under thecognizance of the officer or soldier in his military capacity.
(b) by an officer for the purpose of watching a case on behalf of a soldier under hiscommand.
(2) An officer or soldier required to attend a Court otherwise than in his official capacitymay appear either in plain clothes or uniform.
(3) An officer or soldier shall not wear his sword or sidearms if he appears in thecharacter of an accused person, or under military arrest, or if the presiding Officer of theCourt thinks it necessary to require the surrender of his arms in which case a statement ofthe reasons for making the order shall be recorded by the presiding officer, and, if themilitary authorities so request, forwarded for the information of the appropriate Chief ofStaff.
(4) Firearms shall under no circumstances be taken into Court.
Dress of the Police Officers appearing before Criminal Courts.
86. The following extracts (rules, 239, 241 and 432 from the Bombay Police Manual,1959, Volume I and III respectively, in regard to the uniform to be worn by the Policewhen attending Courts, are reproduced for the information of the Judges andMagistrates :
Uniform to be worn on various occasions by superior Gazetted Officers :“Indian Police and Indian Police Service Officers shall wear such uniform as prescribedin the Indian Police Service (Uniform) Rules, 1954, vide Handbook of Rules andRegulations for All India Services, Volume – I, issued by the Government of India,
Ministry of Home Affairs, on various occasions as specified therein.”
“Working dress will be worn by other superior Gazetted Officers belonging to theBombay Police Service when giving evidence in courts.:
Uniform to be worn on various occasions by subordinate Police Officers :“Inspectors of Police and Police Officers of lower ran will always apear in uniform, whengiving evidence or prosecuting cases in Courts. The Police Officers and men of the StateCriminal Investigation Department, the Greater Bombay C.I.D., Local Crime Branchesand Local Intelligence Branches, Anti – corruption and Prohibition Intelligence are,however, allowed to appear in their ordinary dress in Courts.”
Rules for Trial of Persons subject to Military, Naval or Air Force Law.87. The following ruler made my the Central Government are reproduced :1. These rules may be called the Criminal Courts and Courtmartial (Adjustment ofJurisdiction) rules,1978.2. In these rules, unless the context otherwise requires :(a) “Commanding Officer”.:(i) In relation to a person subject to military law, means the Officer Commanding the unitto which such person belongs or is attached :(ii) in relation to a person subject to naval law, means the commanding officer of the shipor naval establishment to which such person for the time belongs and(iii) in relation to a person subject to air force law, means the officerfor the time being incommand of the unit to which such person belongs or is attached;
(iv) (b) Competent air force authority “means the Chief of the Air Staff the air or otherofficer commanding any command, group wing or station in which the accused person isserving, or where such person is serving in a field area, the Officer Commanding theforces or the air forces in the field;(c) “Competent military authority” means the Chief of Army Staff,or OfficerCommending the army, army corps, division, area, subarea or independent brigade inwhich the accused person is serving, and except in cases failling under section 69 of theArmy Act, 1950 (46 of 1950) in which death has resulted, the officer commanding thebrigade or subarea or station which the accused person is serving'(d) “Competent naval authority” means in chief of the Naval Staff or the Flag Officer
Commandinginchief, Western Naval Command,Bombay or Flag Officer Commandinginchief, Eastern Naval Command, Vishakapatnam or the Flag Officer Commanding,Southern Naval Area,Cochin or the Flag Officer Commanding, Western Fleet or the FlagOfficer Commanding, Eastern Fleet or Senior Naval Officer where the accused persons isserving.
3. Where a person subject to military, naval or air force law, or any other law relating tothe Armed Forces of the Union for the time being in force is brought before a Magistrateand Charged with an offence for which he is also liable to be tried by a Courtmartial,such Magistrate shall not proceed to try such person or to commit for the case to theCourt of Sessions, unless :(a) he is moved thereto by a competent military, naval or air force authority,(b) “he is of opinion, for reasons to be recorded, that he should so proceed or to commitwithout being moved thereto by such authority.
4. Before proceeding under clause (d) of rule 3, the Magistrate shall give a written noticeto the Commanding Officer or the competent military, Naval or air force authority, as thecase may be, of the accused and until the expiry of a period of fifteen days from the dateof service of the notice he shall not;(a) convict or acquit the accused under section 252, subsections (1) and (2) of section255, subsection(1) of section 256 of section 257 of the Code of Criminal Procedure,1973(2 of 1974), of hear him in his defence under section 254 of the said Code;or(b) frame in writing a charge against accused under section 240 or subsection (1) ofSection 246 of the said Code; or (c) make an order committing the accused for trial to the Court of Session under section209 of the said code ; or(d) make over the case or inquiry or trial section 192 of the said Code.
5. Where a Magistrate has been moved by the competent military, naval or air forceauthority, as the case may be, under clause (a) of rule 3, and the commanding officer ofthe accused or the competent military, naval or air force aurhority, as the case may be,subsequently gives notice to such Magistrate that, in the opion of such officer orauthority, the accused should be tried by a Courtmartial, such Magistrate, if he has not
taken any action or made any order referred to in clauses (a) (b), (c) or (d) of rule 4,before receiving the notice, shall stay proceedings and, if the accused is in his power orunder his control, shall deliver him together with the statement referred to insection (1)of section 475 of the said Code to the officer specified in the said subsection,
6. Where within the period of fifteen days mentioned in rule 4, or at any time thereafterbut before the Magistrate takes any action or makes any order referred to in that rule, thecommanding officer of the accused or the competent military, naval or air force authority,as the case may be, gives notice to the Magistrate that, in the opinion of such officer orauthority, the accused should be tried by courtmartial, the Magistrate shall stay theproceedings, and if the accused is in his power or under his control, shall deliver himtogether with the statement referred to in subsection (1) of section 475 of the said Codeof the officer specified in the said subsection,
7. (1) When an accused has been delivered by the Magistrate under rule 5 or 6, thecommanding officer of the accused, or the competent military, naval or air forceauthority, as the case may be, shall, as soon as may be, inform the Magistrate whether theaccused has been tries by a Courtmartial or other effectual proceedings have been takenor ordered to be taken against him.(2) When the Magistrate has been informed under subrule (1) that the accused has notbeen tries or other effectual proceedings have not been taken or ordered to be takenagainst him, the Magistrates shall report the circumstances to the State Governmentwhich may, in consultation with the Central Government, take appropriate steps to ensurethat the accused person is clerk with in accordance with law.
8. Notwithstanding anything in the foregoing rules, where it comes to the notice of aMagistrate that a person subject to military, naval or air force law, or any other lawrelating to the Armed Forcesof the Union for the time being in force has committed anoffence, proceedings, in respect of which ought to br instituted before him and thatthepresence of such person cannot be procured except through military, naval or air forceauthorities, the Magistrate may be a written notice require the commanding officer ofsuch person either to deliver such person to a Magistrate to be named in the said noticefor being proceeded against according to law, or to stay the proceedings against suchperson before the Courtmartial if since instituted, and to make a reference to the CentralGovernment for determination as to the court before which proceedings should beinstituted.
9. Where a person subject to military, naval or air force law or any other law relating tothe Armed Forces of the Union for the time being in force has committed an offencewhich in the opinion or competent military, naval or air force authority, as the case maybe, ought to be tries by a Magistrate in accordance with the civil law in force or where theCentral Government has, on a reference mentioned in rule 8, decided that proceedingsagainst such person should be instituted before a Magistrate, the commanding officer ofsuch person shall, after giving, a written notice to the Magistrate concerned, deliver suchperson under proper escort to that Magistrate.
Handcuffing of Prisoners88. (1) Unless a court otherwise directs, no Prisoner shall be handcuffed of bound whilebeing taken in custody from the Court premises to a Jail;Provided that if a Police Officer escorting such prisoner from the Court Premises to aJail, considers it necessarty to do so in exceptional circumstances, and cannot get thedirection of the Court, he may handcuff or bind such prisoner after having the premises.It should also be noted that if the officer in charge of the escort finds that the prisoner isviolent after going a few steps from the Court, he can handcuff him, but, at the same timehe should go back and obtain an order from the court.(2) No prisoner shall be handcuffed or bound when being taken from a jail to the Courtpremises, unless the Jailor of the Jail otherwise directs in Writing. If the Jailor of a Jailfrom which a prisoner is being taken to the Court, considers in the circumstances statedin subpara(1) above, necessary to bind or handcuff the prisoner, he may direct in writingthe Officer in charge of the escort to do so and the officer shall obey such directions:
Provided that the Officer in charge of the escort may himself or/and bind the prisonerwhen he considers it necessary to do so in exceptional circumstances arising after leavingthe Jail premises and it is not possible to obtain a direction from the Jailor or the Court.In case of difference of opinion between the Jailor and the Officer in charge of the excortabout handcuffing of a prisoner, the latter should obtain the order of the Court and, in themeantime, refrain from taking charge of the prisoner. Any negligence of theseinstructions should be dealt with most severely.
Members of the Parliament and the State Legislatures
89. (i) No arrest shall be made within the precincts of the Houses of the Union or a StateLegislatures without obtaining the permission of the Presiding officer concerned.(ii) To enable the Presiding Officer to decide whether he should grant or refuse
permission for arrest within the precincts of the House, the Court concerned, whenmaking such a request, should attach a letter of request to the warrant containing aconcise statement setting out the grounds for the arrest and explaining why it is desiredthat the arrest should be made within the precincts of the House and why the mattercannot wait till the House adjourns for the day.(iii) Whenever a member of the Union or a State Legislatures is arrested on a criminalcharge or for a criminal offence or is sentenced to imprisonment by a court, thecommitting Magistrate or Judge shall immediately intimate, in the manner set forth insubparagraph (v) below, such fact to the Presiding Officer of the House of theLegislature concerned and also to the Ministry of Home Affairs of the Union or the StateGovernment, as the case may be, indicating the reason for the arrest or conviction as alsothe place of imprisonment of the member concerned.(iv) Whenever a member of the Union or a State Legislature is released on bail pendinghis trial or pending an appeal against his conviction, or is otherwise released, such factshall also be intimated immediately in the manner set forth in subparagraph (v) below bythe Court concerned to the Presiding Officer of the House of the Legislature concernedand also to the Ministry of Home Affairs of the union or the State Government, as thecase may be.(v) The intimations to be given in accordance with subparagraph (ii) or (iv) above shall,in the first instance be given by telegrams with copies thereof despatched simultaneouslyby post in confirmation to be followed immediately thereafter by registered letters. Theletters to be addresses to the Presiding Officers of the Houses of the Union or the StateLegislature shall be in the appropriate form set forth below:
Place: .........................Date: ..........................ToThe Speaker,House of the People, New Delhi or Legislative Assembly,
State of ..................................................................................................................................
The Chairman,Council of States, New Delhi or Legislative Council,State of .................................................................................................................................
Dear Sir,
'A'
I have the honour to inform you that I have found it my duty, in the exercise of mypowers under section ......................................... of the ..............................................(Act), to direct that Shri ....................................................................... Member of theHouse of the People/Council of States M.L.A./M.L.C, be arrested for ................................................................................................................................... (reasons for the arrest).
Shri............................................... Member of the House of People/Council of StatesM.L.A./M.L.C. was accordingly arrested at .........................................................(time) on ........................................................................ (date) and is at present lodged inthe .......................................................................................... Jail, .........................(place).
'B'
I have the honour to inform you that Shri .......................... Member of the House of thePeople/Council of States M.L.A./M.L.C. was tried at the ...................................................................................................Court before me on a charge (or charges) .................................................................................................(reasons for the conviction).
On ................................................ (date) after a trial lasting for ..........................................................................days, I found him guilty of................................................................................................................. and sentenced himselfto imprisonment for ............................................................. (period).
(His application for leave to appeal to .................................................................................(name of Court) is pending consideration).
'C'I have the honour to inform you that Shri ....................................... member of the Houseof the People/Council of States M.L.A./M.L.C., who was arrested and / or convictedon..........................................................(date) for ...............................................
(reasons for arrest) and imprisoned for......................................................................(Periodfor, .........................................................(reasons for conviction), was released on bailpending trial/released on bail pending appeal/released on the sentence being set aside onappeal/discharged by the court/acquitted by the court on.........................................................................................................................(date).Yours faithfully,
(Judge/Magistrate)