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Readings in Law fof/k v/;;u Readings in Law (in two volumes I and II) Hkk-iz- lsok O;kolkf;d ikB~;dze 2000-2002 cSp ¼pj.k&izFke½ I.A.S. Professional Course 2000-2002 Batch (Phase-I) Volume-II yky cgknqj 'kkL=h jk"Vªh; iz'kklu vdkneh] elwjh&248 179- Lal Bahadur Shastri 1

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Page 1: EXECUTIVE MAGISTRATES - THEIR FUNCTIONS …maharashtracivilservice.org/cms/downloads/51ace1d283e2e.doc · Web viewJudicial Magistrates are under the control of the High Court and

Readings in Law

fof/k v/;;uReadings in Law

(in two volumes I and II)

Hkk-iz- lsok O;kolkf;d ikB~;dze2000-2002 cSp

¼pj.k&izFke½I.A.S. Professional Course

2000-2002 Batch(Phase-I)

Volume-II

yky cgknqj 'kkL=h jk"Vªh; iz'kklu vdkneh]elwjh&248 179-

Lal Bahadur ShastriNational Academy of Administration,

Mussoorie-248 179.

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Readings in Law

READINGS IN LAWIAS PROFESSIONAL COURSE (PHASE-I)

Computerisation & Technical Support

Sunil Kumar NegiB.N. Dabral

Circulated by:

Faculty of Law,Lal Bahadur Shastri National Academy of Administration,

Mussoorie-248 179

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ContentsCriminal procedure Code

(1-156)

1. Executive Magistrates -Their Functions & Powersunder the Cr. P.C. 1973- A brief outline 1

D. Banerjea…………………………………………………………………………

2. Powers of Executive Magistrate under Cr. P.C. 1973(Act-II of 1974) to deal with "Law & Order" Problems 11

D. Banerjea………………………………………………………………………….

3. Power of Executive Magistrate under Cr. P.C. at a glance 19

D. Banerjea………………………………………………………………………….

4. Code of Criminal Procedure - Introductory Concepts 47

D. Banerjea………………………………………………………………………….

5. Police Investigation - an outline 58

D. Banerjea…………………………………………………………………………..

6. Bail 66

D. Banerjea……………………………………………………………………………

7. Test Identification Parade 78

D. Banerjea…………………………………………………………………………….

8. Police Report 83

D. Banerjea……………………………………………………………………………..

9. Inquest - Principles & Procedures 88

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D. Banerjea…………………………………………………………………………......

10. Inquest Report u/s 176 Cr. P.C. - a proforma 99containing broad guidelines

D. Banerjea………………………………………………………………………….

11. Inquest - Skill Oriented Task Exercise104

D. Banerjea…………………………………………………………………………

12. Procedure relating to Criminal Trials106

D. Banerjea…………………………………………………………………………

13. Stages of Security Proceedings 112

D. Banerjea…………………………………………………………………………

14. Public Nuisance- Power of Executive Magistrates to deal115

with them under the Code of Criminal Procedure

D. Banerjea…………………………………………………………………………

15. Urgent cases of Nuisance or apprehended danger- 124Section- 144 Cr. P.C.

D. Banerjea…………………………………………………………………………

16. Problem Solving Exercise137

D. Banerjea…………………………………………………………………………

17. Order U/s 133 Cr. P.C. 138

D. Banerjea…………………………………………………………………………

18. Order u/s 144 Cr. P.C. - A specimen form 141

D. Banerjea…………………………………………………………………………

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19. Order u/s 144 Cr. P.C. 142

D. Banerjea…………………………………………………………………………

20. Order u/s 145 Cr. P.C. 147

D. Banerjea………………………………………………………………………….

21. Civil Suit and Proceeding u/s 145 Cr. P.C. - their interface 148

D. Banerjea…………………………………………………………………………

22. Search- an outline152

D. Banerjea…………………………………………………………………………

B. Law of Evidence(157-227)

1. The Indian Evidence Act, 1872- An introduction 157(a compilation) - Part-I

D. Banerjea…………………………………………………………………………

2. Examination of Witnesses171

D. Banerjea…………………………………………………………………………

3. Burden of Proof 179

D. Banerjea…………………………………………………………………………

4. Claim of Privilege 183

D. Banerjea………………………………………………………………………….

5. Admission and Confession 188

D. Banerjea…………………………………………………………………………

6. Dying Declaration 194

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D. Banerjea…………………………………………………………………………

7. Appreciation of Evidence- an outline 207

D. Banerjea…………………………………………………………………………

8. Evidence Part-II 213

D. Banerjea…………………………………………………………………………

9. Affidavit 217

D. Banerjea…………………………………………………………………………

10. Presumptions- at a glance 223

D. Banerjea…………………………………………………………………………

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EXECUTIVE MAGISTRATES - THEIR FUNCTIONS AND POWERS UNDER THE CODE OF CRIMINAL PROCEDURE,

1973 - A BRIEF OUTLINE

I. Scheme of Separation of the Judiciary from the EXECUTIVE

In pursuance of the scheme of separation, two categories of Magistrates have been created. They are -

(i) Judicial Magistrates.

(ii) Executive Magistrates.

II. Broad Division of the Magisterial Functions

Judicial Magistrates are under the control of the High Court and Executive Magistrates are under the control of the State Government.

Broadly speaking, such functions of a Magistrate, as are essentially judicial in nature have been entrusted to the Judicial Magistrates while functions which are executive or administrative in nature have been allotted to the Executive Magistrates.

III. Revised set-up of Criminal Courts

Executive Magistrates are Criminal Courts within the meaning of the Code vide Sec. 6 (iv) Cr.P.C.

When an Executive Magistrate acts judicially, say for instance, when he holds an inquiry u/s 116 Cr. P.C. in connection with a security proceeding u/s 107 Cr.P.C. he functions as a court but when he does something purely administrative or executive in nature, he does not perform the role of a court. When an executive Magistrate, in exercise of the power vested in him u/s 129 Cr.P.C. commands an unlawful assembly to disperse, he does not do so in the capacity of a Criminal Court.

IV. Appointment of Executive Magistrates

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Executive Magistrates are to be appointed by the State Government u/s 20 (1) Cr. P.C.

Executive Magistrates may be appointed not only for every district but also for every metropolitan area vide Sec.20(1).

V. Absence of gradation amongst the Executive Magistrates

Unlike the Judicial Magistrates, the Executive Magistrates have not been graded as Executive Magistrate, First Class and Executive Magistrates, Second Class.

VI. Division of Executive Magistrates

The Executive Magistrates may, however, be divided under the following five heads:-

(1) District Magistrates - Sec. 20(1).

(2) Additional District Magistrate - Sec. 20(2).

(3) Sub-Divisional Magistrates - Sec. 20(4).

(4) Subordinate Executive Magistrates - Sec.20(1).

(5) Special Executive Magistrates - Sec. 21.

VII. Subordination of Executive Magistrates

(a) All Executive Magistrates, other than Additional District Magistrates, employed in a district, are subordinate to the District Magistrate.

(b) All Executive Magistrates attached to a Sub-Division are subordinate to the Sub-Divisional Magistrate.

(c) Additional District Magistrates are not subordinate to the District Magistrate. The ADM is, however, an officer below the rank of DM.

REFERENCE: SEC.23(1)

VIII. Territorial Jurisdiction of the Executive Magistrates

Their jurisdiction extends throughout the district unless it is restricted. Such restriction may be imposed by the District Magistrate

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by defining the local limits of each Executive Magistrate. This authority of the District Magistrate is, however, subject to the control of the State Government vide Sec.22(1) read with Sec. 22(2) Cr. P.C.

IX. Distribution and Allocation of Business

District Magistrate is empowered to distribute business among the Executive Magistrates subordinate to him and also to allocate business to the Additional District Magistrates vide Sec. 23(2).

In this context, it may be remembered that all or any of the powers of a District Magistrate under the Code may be conferred upon the Additional District Magistrate by the State Government vide Sec. 20(2).

X. Power of Arrest

An Executive Magistrate, within his local jurisdiction, may himself arrest or get arrested in his presence, under any of the two circumstances specified in sub-section (1) and (2) of Section 44.

XI. Endorsement of Warrant by the Executive Magistrate

Warrants to be executed outside the local limits of the court issuing it should ordinarily be taken to an Executive Magistrate or to a Police Officer not below the rank of O/C of a Police Station, within the local limits of whose jurisdiction the warrant is to be executed, for endorsement vide Sec. 79.

XII. Production of persons arrested on warrants issued by the court, outside the jurisdiction before the Executive Magistrate of the area wherefrom arrest has been made

May be produced before the Executive Magistrate vide Sec. 80.

XIII. Procedure to be followed by the Executive Magistrate when any person arrested on a warrant issued by an outside court is produced before him

(a) The Executive Magistrate should check up whether the person arrested appears to be the person intended by the court issuing the warrant.

(b) When he is so satisfied, he is bound to direct the removal of the arrested person in custody to the Court which issued the warrant, unless the offence involved is bailable.

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(c) If the offence is bailable, he shall enlarge the person under arrest on bail provided the person concerned furnishes security to his satisfaction. He shall then forward the bail bond to the court which issued the warrant.

REFERENCE : SECTION 81

XIV. Powers of the District Magistrate and the Sub-Divisional Magistrate to issue search-warrants or to make orders

(a) U/S 94 Cr.P.C. for search of places suspected to contain stolen property, forged documents etc.

(b) U/S 97 Cr.P.C. for search of persons wrongfully confined.

(c) U/S 98 Cr.P.C. for restoration of abducted females.

NOTE: 93(1) Cr.P.C. authorises a court to issue search warrant for document or thing.An Executive Magistrate, while acting as court may also issue search-warrant U/S 93(1) Cr.P.C. in appropriate cases after due enquiry and upon proper material.

XV Powers of any Executive Magistrate

(i) to require search to be made for letters and telegrams in the custody of the postal or telegraph authority, pending the order of the District Magistrate vide Sec. 92(2).

(ii) to authorise police officer not below the rank of Sub-Inspector to search and seize certain publications forfeited under the order of the State Government vide Sec. 95.

XVI. Power to direct search in his presence

An Executive Magistrate, if and when he is competent to issue a search warrant may, instead of issuing a search warrant, direct a search to be made in his presence vide Sec. 103.

XVII. Security for keeping peace and for good behaviour

An Executive Magistrate is competent to demand security as indicated below:-

(a) for keeping peace in cases otherwise than on conviction vide Section 107.

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(b) for good behaviour from persons disseminating seditious matters vide Section 108.

(c) for good behaviour from suspected persons vide Section 109.

(d) for good behaviour from habitual offenders vide Section 110.

Sections 111 to 124 lay down the procedure to be followed for the exercise of such magisterial jurisdiction. Section 116 provides for the inquiry to be held.

XII(A) Power to disperse assembly by use of force

(a) Any Executive Magistrate is competent to command an unlawful assembly, actual or potential, to disperse vide Section 129(1).

(b) Any Executive Magistrate, may disperse such assembly by use of Civil Force vide Section 129(2).

(c) If such assembly cannot be dispersed otherwise, the Executive Magistrate of the highest rank present may cause it to be dispersed by armed forces vide Sec.130.

XVIII. Power to deal with public nuisances

A District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government is competent to:-

(a) pass a conditional order for removal of nuisance vide Section 133.

(b) make an inquiry as to the existence of public right when it is denied vide Section 137.

(c) hold an inquiry with a view to determining whether conditional order should be confirmed or modified or further proceeding dropped vide Section 138.

(d) such Magistrate may issue injunction, pending inquiry, to prevent imminent danger or injury of a serious kind to the public vide Section 142, read with Section 133.

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(e) such Magistrate may prohibit repetition or continuance of public nuisance vide Section 143.

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

A District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government may, in the circumstances set forth in Section 144 Cr.P.C., direct any person either to abstain from a certain act or to take certain order with regard to certain property in his possession or under his management.

Such direction may be given to prevent

(i) obstruction, annoyance or injury to any person lawfully employed. or (ii) danger to human life, health or safety or (ii) disturbance of public tranquillity, or a riot or any affray.

REFERENCE: SECTION 144 Cr.P.C.

XX. Power to intervene and tackle a dispute concerning land or water which is likely to cause breach of peace

An Executive Magistrate, if satisfied about the existence of a dispute of the aforesaid nature, must pass a preliminary order U/S 145 (1) and afterwards make an inquiry U/S 145(2).

The inquiry should be limited to the question as to who was in possession in fact on the date of the preliminary order, irrespective of the question as to the rights of the parties.

The object of Section 145 is (a) to prevent the breach of the public peace, (b) to provide a summary and speedy remedy, (c) ascertain which party was in actual possession and(d) to maintain status quo until the rights of the parties are decided by a competent court.

The power to attach the subject of dispute and to appoint Receiver have also been conferred upon such Magistrate U/S 146. The proceedings U/S 146 are in continuation of those U/S 145.

XXI. Power to deal with disputes about the right to a particular use of land or water

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This has reference to Section 147. Section 147 has the same object as Section 145 but the nature of dispute U/S 145 is different from the one U/S 147.Section 145 applies to disputes about the possession of the land or water itself while Section 147 relates to disputes regarding rights of user of land or water. The following two examples will make the position clear:

Section 145 Section 147(i) If the dispute is as regards the

possession of a temple, proceedings are to be started U/S 145.

If the dispute relates to the right of worship at or entry into the temple, action may be taken u/s 147.

(ii) Where the subject matter of dispute is a ferry including the land and water upon which the right to ferry is exercised, the case comes properly u/s 145.

The dispute over the right to ply a ferry is one u/s 147.

The mode of inquiry U/S 147 is same as U/S 145.

Section 145 (6) enjoins that the Executive Magistrate shall make an order declaring possession. Section 147(3) on the other hand, provides that the Executive Magistrate may make an order prohibiting any interference with the exercise of the right of actual user claimed, provided that it appeared to exist.

Section 145(6) enjoins that the Executive Magistrate shall make an order declaring possession. Section 147(3), on the other hand, provides that the Executive Magistrate may make an order prohibiting any interference with the exercise of the right of actual user claimed, provided that it appeared to exist.

There may be attachment in a proceeding u/s 145 but the question of attachment does not arise in a case u/s 147.

XXII. Power of remand for a term not exceeding seven days

When a Judicial Magistrate is not available, an accused may be forwarded by the police u/s 167 Cr.P.C., to the nearest Executive Magistrate, on whom powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred. Such Executive Magistrate may authorise the detention of the accused for a term not exceeding seven days vide sub-section 2A of Section 167, which was inserted by the Code of Criminal Procedure (Amendment) Act, 1978.

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XXIII. Police to report unnatural or suspicious deaths to the nearest Executive Magistrate empowered to hold inquests vide Section 174 (1)

The following Magistrates are empowered to hold inquests:-

(1) District Magistrate.(2) Sun-Divisional Magistrate.(3) Any other Executive Magistrate specially empowered in

this behalf by the State Government, or the District Magistrate.

XXIV. Inquiry by a competent Executive Magistrate into the cause of death vide Section 176

(a) Section 176 has been amended by the Act 46 of 1983 with effect from 25.12.1983.In certain specified cases, as for example, death in police custody, magisterial inquiry is compulsory and in other cases, it is optional.

NOTE:The scope of compulsory inquiry by the competent Executive Magistrate has been enlarged by the Criminal Law(Second Amendment) Act, 1983 (Act 46 of 1983).

(b) A Magistrate holding an inquiry u/s 176 does not constitute a court. (There is, however, difference of judicial opinion on this point)

Executive Magistrates are courts inferior to that of the Sessions Judge.

XXV. All Executive Magistrates including District Magistrates and Additional District Magistrates are regarded as Criminal Courts inferior to the Sessions Judge for the purpose of exercise of the powers of revision vide Section 397 and 398.

XVI. Appeals from the orders of the Executive Magistrates

(a) Orders passed by Executive Magistrate U/S 117 requiring security for keeping peace or for good behaviour and U/S 121 refusing to accept or rejecting a surety are appealable and such appeals shall lie to the court of Sessions Vide Section 373.

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(b) When an Executive Magistrate makes a complaint u/s 340(1) Cr.P.C. for offences against the administration of Justice, he functions as court within the meaning of Section 340(4)read with Section 195 and in that capacity, he is subordinate to the court of Sessions for the purpose of appeal vide Section 195(4).

XXVI. Orders of the Executive Magistrates convicting persons u/s 345, and 349 and 350 are appealable and such an appeal shall lie to the court of sessions.

XXVII. Transfer of Cases

Any District Magistrate or Sub-Divisional Magistrate has right to make over to or withdraw from any Magistrate subordinate to him cases which have been started before him or which have been made over to any Magistrate subordinate to him respectively vide 411.

Any case u/s 411 means any proceeding or inquiry before an Executive Magistrate, such as cases under section 107,108,109,110,133, 144-145-146 and 176.

XXIX. Besides, what has been stated hereinbefore, the Executive Magistrates, while functioning as criminal Courts, will have authority to exercise all such powers as have been conferred upon the Courts under the provisions of the Cr.P.C. provided that those powers are also relatable to and exerciseable in furtherance of their functions under the code, as for examples:-

(i) Process to compel appearance.

(ii) Taking and recording evidence in inquiries.

(iii) Disposal of property pending inquiry and at the conclusion of the inquiry.

(iv). Forfeiture of bonds furnished to the Executive Magistrates under the Cr.P.C.

(v) Issuing commission for examination of witness (Section 284 Cr.P.C.).

(vi) Holding local inspection (Section 310).

(vii) Discharge of sureties u/s 444 Cr.P.C.

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(viii) Punishing for criminal contempt of court in view or in the face of the court (Section 345).

XXX. Affidavit

Affidavits to be used before any court under the Cr.P.C. may be sworn or affirmed before an Executive Magistrate (Vide Section 297 Cr.P.C.).

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POWERS OF THE EXECUTIVE MAGISTRATES UNDER THE CODE OF

CRIMINAL PROCEDURE, 1973 (ACT II OF 1974) TO DEAL WITH "LAW AND ORDER" PROBLEMS

1. Power of Arrest

An Executive Magistrate is competent to arrest or to direct arrest vide Section 44 Cr.P.C.

2. Where such arrest may be made?

Within his local jurisdiction.

3. When an Executive Magistrate may arrest or direct arrest?

(a) When any offence is committed in his presence.

OR

(b) When he has the authority to issue warrant for the arrest of the person concerned.

4. Can the Magistrate demand assistance of the public in making such arrest?

Yes, he has the legal right to demand the aid of any member of the public for the purpose of effecting such arrest Vide Section 37 Cr.P.C.

A member of the public is bound to assist the Magistrate when his aid is reasonably demanded by the Magistrate for the purpose of making arrest.

Intentional omission to render such assistance is punishable U/S 187 IPC.

5. Power to Disperse Unlawful Assemblies

An Executive Magistrate is empowered to command an unlawful assembly, either actual or potential, to disperse vide Section 129 Cr.P.C.

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6. An Unlawful Assembly - What it is?

(a) It is a collection of five or more persons.

(b) All of them should be actuated by a common object.

(c) The common object should be one of those specified in Section 141 IPC. (Definition given in Sec.141 IPC).

7. Mere Presence of a person in the assembly, by itself, is not sufficient to make him liable for being a member

In order to hold him responsible, it has to be shown that he was aware of the common object and that he concurred in it.

8. Command for dispersal may be given not only to an unlawful assembly, which fulfills the conditions laid down in Section 141 IPC but also to a potential unlawful assembly.

An assembly of five or more persons, which does not come within the purview of Section 141 IPC, may also be commanded to disperse, provided that it is, in the given circumstances, likely to cause a disturbance of public peace. It is a question of fact. It has to be decided on the basis of acts and behaviour of the assembly itself.

9. Use of civil force for dispersal of actual or potential unlawful assembly (vide Sec. 129(2) Cr.P.C.)

(a) When such an assembly, on being so commanded, does not disperse, the Magistrate may use civil force for dispersing such assembly.

(b) Even if such an assembly has not been commanded to disperse but it conducts itself in such a manner as to show a determination not to disperse, the Magistrate may proceed to disperse it by civil force.

10. Civil Force - source of

(a)State Police Force.

(b)Any male member of the public.

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11. Refusal to disperse, after being commanded to do so, is punishable

(a) U/S 145 IPC in case of unlawful assembly.(b) U/S 151 IPC in case of an assembly likely to cause

disturbance of public peace.

12. Arrest and confinement

Members of such assemblies may be arrested and confined with a view to effecting dispersal or being prosecuted and punished according to law.

13. When assembly cannot be dispersed by the use of civil force

In such an event, the Executive Magistrate of the highest rank present may cause it to be dispersed by the armed forces (vide Sec. 130 Cr.P.C.).

14. Armed Forces

They include military, naval and air forces operating as Armed Forces and also any other Armed Forces of the Union of India so operating like BSF, CISF, Assam Rifles, ITBP.

15. Urgent cases of nuisance or apprehended danger - Section 144 Cr.P.C.

Section 144 Cr.P.C. confers powers upon certain Executive Magistrates to issue temporary orders in urgent cases of nuisance or apprehended danger, when immediate prevention or speedy remedy is desirable.

16. Which Magistrates are competent to act u/s 144 Cr.P.C.?

(a) District Magistrate.

(b) Sub-Divisional Magistrate.

(c) Any other Executive Magistrate specially empowered by the State Government in this behalf.

17. The object of an order u/s 144 Cr.P.C. is to prevent any of the following

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(a)Obstructions, annoyance or injury to any person lawfully employed.

(b)Danger to human life, health or safety.

(c)Disturbance of public tranquillity.

(d)Riot or affray.

18. Can an order u/s 144 Cr.P.C. be passed ex-parte?

Yes, either in cases of emergency or in cases where circumstances do not permit service of timely notice upon the person against whom the order is directed.

19. Nature of the order u/s 144 Cr.P.C.

(a) Generally, it is prohibitory.

(b) In appropriate cases, it may be mandatory, say, for instance, Magistrate may enjoin the opposite party to direct removal of an obstruction when it is needed to prevent a breach of peace.(Madhu Limaye's case - Supreme Court).

20. A prohibitory order u/s 144 Cr.P.C. must specify

(i)the thing which is prohibited

(ii) the persons who are prohibited

(iii)the place covered by the order.

NOTE: It is desirable to mention the period of time.

21. Examples of the kinds of orders that may be passed by the competent Executive Magistrates u/s 144 Cr.P.C.

(a) To prohibit an assembly, a meeting, or procession for prevention of breach of peace, but not for interfering with the lawful exercise of legal rights.

(b) To prohibit carrying of arms or weapons.

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(c) To prohibit a person from entering into a particular area.

(d) To prohibit use of loudspeakers.

(e) To prohibit people from coming out of their houses on the public road/street/lane (curfew).

(f) To prohibit raising of provocative slogans which are likely to cause breach of peace.

(This list is illustrative and not exhaustive)

22. Violation of an order u/s 144 Cr.P.C.

It is punishable u/s 188 IPC. It is a cognizable offence.

23. Power to intervene and tackle a dispute concerning land or water which is likely to cause breach of peace

An Executive Magistrate, if satisfied about the existence of a dispute of the aforesaid nature, must pass a preliminary order u/s 145(1) and afterwards make an inquiry u/s 145(2).

The inquiry should be limited to the question as to who was in possession in fact on the date of the preliminary order, irrespective of the question as to the rights of the parties.

The object of Section 145 is (a) to prevent the breach of the public peace, (b) to provide a summary and speedy remedy; (c) ascertain which party was in actual possession and (d) to maintain status quo until the rights of the parties are decided by a competent court.

The power to attach the subject of dispute and to appoint Receiver has also been conferred upon such Magistrate u/s 146.The proceedings u/s 146 are in continuation of those u/s 145.

24. Power to deal with disputes about the right to a particular use of land or water

This has reference to Section 147.Section 147 has the same object as Section 145 but the nature of dispute u/s 145 is different

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from the one u/s 147.Section 145 applies to disputes about the possession of the land or water itself while Section 147 relates to disputes regarding rights of user of land or water. The following two examples will make the position clear:-

Section 145 Section 147(i)If the dispute is as regards the possession of a temple, proceedings are to be started u/s 145.

If the dispute relates to the right of worship at or entry into the temple, action may be taken u/s 147.

(ii) Where the subject matter of dispute is a ferry including the land and water upon which the right to ferry is exercised, the case comes properly u/s 145.

The dispute over the right to ply a ferry is one u/s 147.

The mode of inquiry u/s 147 is same as u/s 145.

Section 145(6) enjoins that the Executive Magistrate shall make an order declaring possession. Section 147 (3), on the other hand, provides that the Executive Magistrate may make an order prohibiting any interference with the exercise of the right of actual user claimed, provided that it appeared to exist.

There may be attachment in a proceeding u/s 145 but the question of attachment does not arise in a case u/s 147.

25. Security for keeping peace and for good behaviour

An executive Magistrate is competent to demand security as indicated below:-

(a) for keeping peace in cases otherwise than on conviction vide Section 107.

(b) for good behaviour from persons disseminating seditious matters vide Section 108.

(c) for good behaviour from suspected persons vide Section 109.

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(d) for good behaviour from habitual offenders vide Section 110.

Sections 111 to 124 lay down the procedure to be followed for the exercise of such magisterial jurisdiction. Section 116 provides for the inquiry to be held.

26. Power to deal with public nuisances

A District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government is competent to:-

(a) pass a conditional order for removal of nuisance vide Section 133.

(b) make an inquiry as to the existence of public right when it is denied vide Section 137.

(c) hold an inquiry with a view to determining whether conditional order should be confirmed or modified or further proceeding dropped vide Section 138.

(d) such Magistrate may issue injunction, pending inquiry, to prevent imminent danger or injury of a serious kind to the public vide Section 142, read with Section 133.

(e) such Magistrate may prohibit repetition or continuance of public nuisance vide Section 143.

27. Which Section of the Cr.P.C. should be invoked to prevent breach of peace is a matter to be determined by the Magistrate in the exercise of his sound discretion, due regard being had to the facts and circumstances of the situation that confronts him. A few broad guidelines are given below:-

(1) When the dispute, which is likely to lead to breach of peace, does not relate to immovable property including land, Section 107 may be applied.

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(2) When there is a bona fide dispute relating to possession of immovable property, Section 145 is applicable and appropriate.

(3) The mere fact that the dispute concerns immovable property is, however, no bar to a proceeding u/s 107 Cr.P.C.

(4) When one party is clearly on the wrong side and threatens to usurp the right of another who is in actual possession, the proper remedy is an order u/s 144 or 107 Cr.P.C.

(5) Sections 107 and 145 Cr.P.C.

(a) Section 107 is discretionary while Section 145 is mandatory.

(b) Section 107 is general and refers to personal disputes not concerning immovable property. Section 145 relates to disputes as to possession of immovable property.

(c) When a dispute likely to cause a breach of peace exists concerning possession of immovable property, the Magistrate may proceed either u/s 107 or u/s 145.When breach of peace is imminent on the question of possession, Section 107 would be appropriate.

(d) In urgent cases, Section 144 may be invoked and may, if necessary, be combined with Section 145.

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POWERS OF THE EXECUTIVE MAGISTRATES UNDER Cr. PC

-at a glance

Introductory :

Executive Magistrates

(a) They are appointed by the State Government u/s 20 Cr. PC.

(b) Their functions are generally executive or administrative in nature.

(c) Executive Magistrates, when they exercise judicial powers, are Criminal Courts within the meaning of Sec. 6 Cr. PC.

CRIMINAL PROCEDURE CODE, 1973

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

1) To restrict the local limits of each Executive Magistrate within the district.

D.M. 22(1)

22(2)

The authority of the D.M. is subject to the control of the State Govt.

2) To distribute business among the Executive Magistrates subordinate to him.

D.M. 23(2) By making rules or giving special order.

3) To allocate business to an Additional District Magistrate.

23(2) -do-

4) To confer upon the A.D.M. all or any of the power of D.M.

State Govt.

20 (2)

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Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

5) To exercise power of the predecessor-in-office

A Judge orMagistrateincluding E.M.

35 Powers of Magistrates are exerciseable by their predecessors- in- office subject to the provisions of Cr. PC

Note : When there is a doubt as to who is the successor-in office of any Executive Magistrate, it shall be determined by the D.M. vide Sec. 35 (3).

6) To demand the assistance of a member of the Public.

E.M. 37 In the prevention or suppression of a breach of peace or in the taking or preventing the escape of any person whom the Magistrate is authorised to arrest or in the prevention of any injury attempted to be committed to any railway, telegraph or public property.

Note : Omissions to render aid is punishable u/s 187

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I.P.C.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

7) To be informed of certain offences.

Nearest Magistrate or Police Officer

39 Public to give such information.

Note : For penalty, vide Sec. 176 and 202 I.P.C.

8) To be posted with reports in connection with the affairs of a village.

Nearest Magistrate or Police Officer

40 Duty cast upon the village officials. Breach of duty punishable under Section 176 I.P.C.

9) To arrest or to direct arrest within the local jurisdiction in his presence

E.M. 44(1) &

(2)

When any offence is committed in his presence or when he has the authority to issue warrant of arrest.

10) To receive report from O.C. of P.S. about the cases of persons arrested without warrants.

D.M.,S.D.M.

58 D.M. may direct O.C. to report to the S.D.M. such cases of arrest.

11) To endorse warrant of arrest issued by an outside court for execution within the local limits of his jurisdiction.

E.M.,

O/C ofPolice Station

79

12) To allow the arrested person to be produced before him.

E.M., S.P.C.P.

80 When the outside court issuing the warrant is beyond 30 K.M. of the place of arrest.

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Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

13) To check up whether, the person, arrested on warrant, appears to be the person intended by the court issuing the warrant.

E.M. 81 This procedure is to be followed by the E.M. when any person, arrested on a warrant issued by an outside court, is produced before him.

14) To direct the removal of the arrested person in custody to the court which issued warrant.

E.M. 81 Unless the offence involved is bailable.

15) To enlarge the arrested person on bail, if the offence is bailable and the person arrested furnishes security to his satisfaction.

E.M. 81 In such event, the bail-bond should be forwarded to the court which issued the warrant.

To compel production ofthings for purpose of inquiry.

E.M. 91

16) To require search to be made for letters and telegraphs.

E.M. 92(2)

17) To issue search warrant (while acting as a court).

Any court, including that of E.M.

93(1) For production of a specified thing or document for general search.

18. To issue search warrant.

D.M., 93(3) For document parcel or a thing in

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C.J.M. custody of postal or telegraph authority.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

19) To issue search warrant or to make orders.

D.M., S.D.M.J.M. (1st)

a) 94

b) 97

c) 98

a)For search of place suspected to contain stolen property, forged documents etc.

b) For search of persons wrongfully confined.

c) For restoration of abducted females.

20) To require search to be made for letters and telegrams in the custody of the postal or telegraph authority pending the order of D.M. , C.J.M etc.

E.M.

J.M.

92 (2)

21) To authorise police officer, not below the rank of sub-inspector, to search or seize certain publications forfeited.

Any Magistrate (E.M. included)

95

22) To direct search in his presence

Any Magistrate (E.M.

103 If and when he is competent to issue a search

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included) warrant, he may, instead of issuing search warrant, direct search to be made in his presence.

23) To impound any document and thing.

Any court including E.M.

104

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

24) To demand security : for good behaviour or keeping peace.

E.M. a) 107 For keeping peace in cases otherwise then on conviction.

b) 108 For good behaviour from persons disseminating, seditious matters.

c) 109 For good behaviour from suspected persons.

d) 110 For good behaviour from habitual offenders.

Note : Section 111 to 124 lay down the procedure to be followed for the exercise of such Magisterial jurisdiction.

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Section 116 provides for procedure to be followed for inquiry.

25) To pass a preliminary order asking any person to showcause.

E.M. 111 When the magistrate acting U/s 107, 108, 109 or 110 deems it necessary.

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Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

Note : The order should be in writing and it should contain the following :

a) Substance of the information received;

b) The amount of the bond to be executed; and

c) The term for which it is to be in force; and

d] The number, character and class of sureties if required.

26) To read over to the O.P., if present in court, the preliminary order.

E.M. 112 It may, if desired by the O.P., be explained to him.

27) To issue summons requiring such person to appear.

E.M. 113 A copy of the preliminary order should accompany the summons. This is the normal procedure in securing attendance of the O.P.

28) To issue Production E.M. 113 When such

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warrant addressed to the Officer-in-charge of the prison, directing the production of such person.

person is in prison.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

29) To issue warrant of arrest against O.P., when breach of peace is apprehended which can not be prevented otherwise, than by immediate arrest of O.P.

E.M. Proviso to sec.

113

A copy of the preliminary order should be attached to the Warrant of Arrest vide Section 114.

30) To issue warrant of arrest U/s 87 (b) when the O.P. does not turn up in response to the summons.

E.M. 87(b) Vide Gopi V/s State reported in 1974 Cr. L.J. 1410.

31) To give an opportunity to show-cause to the O.P.

E.M. 115

32) To dispense with the personal attendance of any person and permit him to appear by a pleader.

E.M. 115

33) To inquire and record evidence in security proceedings.

E.M. 116 Procedure for trial of summon cases to be followed.

34) To ask for a interim bond from such person after commencement of the inquiry and before completion of the inquiry.

E.M. 116 (3) The inquiry is to be completed within six months. The proceeding shall stand terminated on the expiry of six months unless the Magistrate, for

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special reasons, extends the time. Such extension, if any, is to be made within six months. Extension, if any, is liable to be scrutinized by the Sessions Judge.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

35) To order for furnishing of security.

E.M. 117 When it is proved that it is necessary to take security.

36) To discharge O.P. (opposite party).

E.M. 118 When the case is not proved.

37) To refuse or reject a surety.

E.M. 121 If he is found unfit.

38) To order imprisonment is default of security.

E.M. 122

39) 15) to report the case to the Session Judge for his orders when the bond is for more than one year.

E.M. 122 In the meantime the O.P. may be detained pending the decision of the Session Judge.

Note : (1) When the O.P. after execution of a bond for good behaviour but during the term of the bond, commits or attempts to commit or abets in the commission of an offence punishable with

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imprisonment, it may be regarded as breach of the bond.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

(b) A bond for keeping the peace is broken when the O.P. does some acts during the term of the bond, which is likely in its consequence to provoke the breach of peace.

40) To release person imprisoned for failure to give security.

(a)D.M. (b)C.J.Mas the case may be

(c) in other cases

123 (1)

123 (1)

a) When the imprisonment has been ordered by Executive Magistrate.

41) To reduce the amount of security, number of sureties or the time for which security has been taken when the persons have been imprisoned for failure to give security.

(a) High Court

[b] Court of Sessions

(c) D.M.(d)C.J.M.

123(2) c) In case of order passed by E.M. (d) in case any other case.

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42) To pass a conditional order for removal of nuisance.

E.M. 133 vide part -B chap

43) Executive Magistrate Specially empowered by the State Govt.

(b) 137 He may make an inquiry as to the existence of public right when it is denied.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

44) (c) 138 He may hold an inquiry with a vide to determining whether the conditional order should be confirmed or modified or further proceeding be dropped.

45) To issue injunction pending inquiry u/s 133.

E.M. 142

46) To prohibit repetition or continuance of public nuisance.

E.M. 143

47) To issue temporary orders in urgent cases of nuisance or apprehended danger.

D.M.S.D.M., any other E.M. specially empowered by the State Govt.

144 When immediate prevention of speedy remedy is desirable.

Note : The

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object of an order U/S 144 Cr. P.C. is to prevent any of the following :

a) Obstruction annoyance or injury to any person lawful employed.

b) Danger to human life, health and safely.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

c) Disturbance of public tranquility. d) Riot or - affray

48. To pass an order ex-parte under section 144 Cr. P.C.

D.M. S.D.M., any Other E.M. specially empowered by the State Govt.

144 In case of emergency or in cases where circumstances do not permit for service of timely notice upon the person against whom the order is directed.

Note : The nature of order U/S 144 is generally prohibitory.

In appropriate cases it may be mandatory e.g.

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the Magistrate may enjoin the opposite party to direct removal of an obstruction when it is needed to prevent a breach of peace (Madhu Limaye's case, case, Supreme Court).

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

49) Examples of the orders that may be passed u/s 144

D.M. S.D.M., any Other E.M. specially empowered by the State Govt.

144 A prohibitory order U/s 144 Cr. P.C. must specify :

i) the thing which is prohibited;

ii) the persons who are prohibited;iii) the place covered by the order; and

iv) the period of time.

50) (a) To prohibit an assembly, or a meeting

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or procession for prevention of breach of peace but not for interfering with the lawful exercise of legal rights.

[b] To prohibit carrying of arms or weapons.

[c] To prohibit a person from entering into a particular area.

[d] To prohibit using of loudspeakers

Note : The list given in column No. 1 is illustrative and not exhaustive.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

(e)To prohibit people from coming out of their houses on the public road/street/lane (curfew).

Violation of an order U/s 144 Cr. P.C. is a cognizable U/s 188 IPC.

To prohibit raising of provocative slogans which are likely to cause breach of peace.

51) To intervene and tackle a dispute concerning land or water which is likely to cause breach of peace.

E.M. (a)145 (1)

(a) If the E.M. is satisfied about the existence of a dispute of the aforesaid nature, he may pass a preliminary order.

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(b) 145 (2)

(b) Afterwards, he may make an inquiry.

Note : The inquiry should be limited to the question as to who was in possession in fact on the date of the preliminary order irrespective of the question as to the right of the parties.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

The object of the Section 145 is:

(i) To prevent the breach of public peace;

(ii) To provide summary and speedy recovery;

(iii) To ascertain which party was in actual

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possession; and

(iv) To maintain Status-quo until the right of parties are decided by a competent court

52) To attach the subject of the dispute and appoint a Receiver.

E.M. 146(1) The proceedings u/s 146 are in continuation of those u/s 145.

53) To appoint a Receiver. E.M. 146 (2)

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

54) To take preventive measures in respect of disputes concerning the right to a particular use of land or water.

E.M. 147 Section 147 has the same object as Section 145 but the nature of dispute u/s 145 is different from that of u/s 147. Sec. 145 applies to disputes about the possession of land or water itself, while, Sec. 147 relates to disputes regarding rights

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of USER of land or water.

Note : Mode of inquiry u/s 147 is same as u/s 145.

55) To make an order declaring the possession

E.M. 145(6) There may be attachment in a proceeding u/s 145 but the question of attachment does not arise in a case u/s 147.

56) To make an order prohibiting any interference with the exercise of the right of the actual User claimed, provided that it appears to exist.

E.M. 147 (3)

57) To hold local inquiry E.M. 148

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

58) To remand an accused to custody during investigation.

E.M. 167 (2-A) When a Judicial Magistrate is not available, an accused may be forwarded by a police officer of and above the of rant of S.I. U/s 167 Cr. PC to the nearest E.M. on whom powers of the Judicial Magistrate or Metropolitan

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Magistrate have been conferred vide Section 167 (2-A).

59) To hold inquest that means to make an inquiry into the cause of unnatural or suspicious death.

D.M. S.D.M., any Other E.M. specially empowered by the State Govt.

174 (4) Inquest when mandatory for the competent E.M.

a) When any person dies in the police custody.

[b]The case involves suicide of a woman within seven years of her marriage.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

[c)The case relates to death of woman within 7 years of her marriage in any circumstances raising a reasonable suspicion that some other person commit an offence in relation to such woman.[d] In any other

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case mentioned in 174 (1), any Magistrate so empowered may hold an inquiry into the cause of death either instead of or in addition to the investigation held by the police Officer. (Here, the inquest by Magistrate is DISCRETIONERY).

60) To direct the police not to hold inquest on receipt of an information from the police or any other source.

State Govt.D.M., S.D.M.

176 read with 174

D.M. or S.D.M. has power to issue general or special order in this regard. Vide Section 174 (1) Cr. P.C.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

61) To cause a dead body to be disinterred

D.M. & S.D.M., any Other E.M. specially empowered by the State Govt.

176 (3)

62) The Magistrate has the following powers in regard to inquest :-

D.M. & S.D.M., any Other E.M. specially

176 read with 174

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empowered by the State Govt.

(a) to proceed to the spot promptly.

Inquest is to be held on the spot.

(b) to inform the relatives of deceased whose names and addresses are known and allow them to remain present at the inquiry.

The expression "relatives in this context, means parents, children, brothers, sisters and spouse.

(c) to examine carefully the deadbody in presence of two or more respectable inhabitants of the neighbourhood.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

(d) to note down all relevant features, which include, among other things, number, position and direction of wounds, fractures, bruises and other marks of injury on

Signs of inflammatory reaction (smelling etc.) and signs of struggles should be recorded.

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the body.

(e) to take steps (before commencing examination of the dead body) for identification of the deceased by atleast two persons who have known him before his death.

(f) to examine the persons who are supposed to be acquainted with the facts and the circumstances of the case and record their evidence.

He has power to administer oath. Vide section 3 of the Oaths Act, 1969.

Note : Evidence of each witness should be recorded separately in verbatim.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

(g) to call and examine eyewitnesses, if available

It is not necessary to examine all the eye-witnesses. If eye-witnesses are not available, the Magistrate may

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examine other persons who may throw light over the cause of death.

(h) To inspect the general diary, connected case diary, lock up register and all other relevant records and documents in case of inquiry into the cause of death in police custody.

(i) to issue process and to compel appearance of witness and production of things.

Proceedings conducted by E.M. U/s 176 Cr. P.C. are an inquiry within the meaning of section 2(g) Cr. P.C. vide A.I.R. 4928 Bombay 390.

63) To record confession of any person which is likely to throw light over the cause of death.

E.M. 176 An E.M. though not empowered to record confessional statement u/s 164 Cr. P.C. may record confession of any person throwing light over the cause of death AIR 1953 Madras 138 (741) AIR 1964 A.P. 548

D.M. can not interfere in an inquiry u/s 176 Cr. P.C. made by the S.D.M. or any other competent E.M.

64) To issue commission for examination of witnesses.

E.M. 284

65) To make a complaint U/S 340(1) for offences against the

Courts including that E.M.

340(1), read with Sec. 195

E.M.'s including D.M. & S.D.M. are court inferior to

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Administration justice. To order costs in the context of filing complaint.

that of Session Judge vide Section 397 & 398.

To forward the contempt case to the judicial Magistrate for trial.

E.M. 346(1)

66) To convict & punish persons under sections 345, 349 & 350 Cr. PC.

Courts including that of E.M.

345,349,350

Such orders of the E.M. are appealable to the court of sessions.

67) To make over or withdraw from any Magistrate subordinate to him cases which has been started before him or which have been made over to any Magistrate subordinate to him respectively.

D.M.

S.D.M.

411 Any case u/s 411 means any proceeding or inquiry before an E.M. such as cases u/s 107, 108, 109, 110, 133, 144, 145, 146 and 176.

68) To exercise all such powers as have been conferred upon the court under provisions of the Cr. PC. provided that those powers are also relatable to and exerciseable infurtherance of their functions under the code, as for example:-

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

a) Issuing Process to compel appearance.

Courts including that of E.M.

69,70, 71 etc.

chapter VI,

A,B,C,D &

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chapter VII, A

b)Taking and recording evidence in inquiries

-do-

[c]Disposal of property pending inquiry and at the conclusion of the inquiry.

-do- 451 to459

d)Forfeiture of bonds furnished to the Executive Magistrate under the Cr. PC and imposing penalty.

-do- 446

e)Holding local inspection

-do- 310

f) Discharge of sureties u/s 444 Cr. P.C.

E.M.,J.M.

444

g) Issuing warrant levying fine

E.M.,J.M.

421

h) Punishing for criminal contempt in view or in the face of the court.

-do- 345

69) To allow affidavits to be sworn.

E.M. 297

70) To record the demeanour of a witness.

Criminal Court

including that of E.M.

280 It should recorded while the witness is under examination at any inquiry.

OTHER POWERS

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

1) To postpone or adjourn proceedings which

Any court including

309 Reasons to be recorded

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include inquiries. E.M.2) To direct the payment

of cost by the prosecution to the accused.

As above Explanation 2 of Sec.

309

The cost may form a condition or term of adjournment.

3) To visit and inspect any place in which an offence alleged to have been committed or any other place which is necessary to view for the purpose of properly appreciating the evidence given at an inquiry, trial or the proceeding.

Any Judge or

Magistrate including

E.M.

310 (1) Due notice to be given to the person.

4) To record a memorandum of any relevant facts observed at such inspection.

Any Judge or

Magistrate

310 (1) Such memorandum would form part of the record of the case.

5) To summon, examine, recall and re-examine any material witness or who is present in court

Any court including court of

E.M.

311 If evidence of such person appears to be necessary for the just decision of the case, such person can be examined at any stage of inquiry, trial or other proceeding under Cr. P.C. Note: Section 311 has two parts. One discretionary and the other mandatory.

Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

6) To order payment of -do- 312

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expenses of witnesses in any inquiry.

7) To take cognizance of the offence for non-attendance by a witness in avoidance of summons and to try him summarily.

Any Criminal

Court including that or E.M.

350(1) If any witness, being summoned, does not appear without just excuse, neglects or refuses to attend.

8) To cause an offender to be detained in custody at any time before the rising of the court on the same day.

Civil, Criminal

or Revenue

Court.

345 (1) For Criminal Contempt of Court

9) To sentence such a witness to fine not exceeding Rs. 100

As above 350(1) Summary trial/procedure to be followed for hearing.

10) To take cognizance of the offence as described in sec. 175, 178, 179, 180, 228 C. P.C., when it is committed in the view of or in the presence of the court.

Civil, Criminal

or Revenue

Court.

345 (1) Offender should be given reasonable opportunity to show-cause why he should not be punished.

11) To sentence such offender for criminal contempt to fine not exceeding Rs. 200 and in default of payment of fine to simple imprisonment for a term which may extend to one month unless such fine be sooner paid.

As above 345(1) The court shall record the facts constituting the offence with the statement, if any, made by the offender as well as the finding and sentence.

12) To forward the case to a Magistrate having jurisdiction to try the offence involved.

As above 346(1) When court considers that the case should not be dealt U/s 345 Cr.P.C.

Nature of power Authority on

Relevant

Remarks

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whom power conferred

Sectionof Cr. PC

13) To command dispersal of an unlawful assembly, either actual or potential.

E.M. 129 An "unlawful assembly" is a collection of five or more person actuated by a common object as specified in section 141 I.P.C. An assembly of five or more persons which does not come within the purview of section 141 I.P.C. may also be commanded to disperse, provided that it is, in the circumstances, likely to cause disturbance of public peace.

14) To call civil force for disperse of actual or potential unlawful assembly.

When such an assembly, on being so commanded does not disperse. Even if such an assembly has NOT been commanded to disperse but it conducts itself in such a manner as to show a determination to not disperse.

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Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

Note : Sources of Civil Force are :-

a) State Police Force.

Any male member of the public Refusal to disperse is punishable under section 145 I.P.C. in case of unlawful assembly and under section 151 I.P.C. in case of an assembly likely to cause disturbance of public peace.

15) To make order for arrest and confinement with a view to effecting dispersal or being prosecuted and punished according to law.

E.M. 129(2)

16) To cause an unlawful assembly to be dispersed by the armed forces

E.M. of the

highest rank

present

130 Armed Forces include military, naval and air forces operating as land forces and also any other Armed Forces of the Union of India so operating like BSF, CISF, Assam Rifles and ITBP etc.

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Nature of power Authority on whom power conferred

RelevantSectionof Cr. PC

Remarks

17) To require the officer commanding the group of armed forces to arrest and confine members of such Assembly for effecting dispersal or having them published.

E.M. of the

highest rank

present

130 (2)

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CODE OF CRIMINAL PROCEDURE, 1973(Act-II of 1974)

Introductory Concepts and Basic Principles

1. Cr. PC- What it is?

(a) It is a Central Act, which means, it is an Act passed by the Indian Parliament.

(b) It is described as a Code.

2. Code - Its meaning

(a) A code is the end product of codification.

(b) Codification is a process which consists of compilation, arrangement, systemisation and promulgation of a body of laws by an authority competent to do so.

(c) Examples of Code- Indian Penal Code, Civil Procedure Code and Criminal Procedure Code.

(d) Advantages of codification- simplicity, symmetry, intelligibility and certainty.

3. Cr.P.C. its nature

(a) Basically, it is a procedural or adjective law.

(b) It consolidates and amends the law relating to Criminal Procedure.

4. Cr.P.C.- its main scope

(a) It provides for a machinery for the prevention and punishments of offences under the Indian Penal Code and Other substantive criminal law of the Land.

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(b) It lays down the procedures for investigation, inquiry and trial.

Note: Substantive Criminal Law- it is that part of the Criminal Law which creates offences and prescribes punishments for the same, such as Indian Penal Code, Dowry Prohibition Act, Arms Act, Civil Rights Protection Act etc.

5. Cr.P.C. - its basic objectives:

(a) to further the ends of Criminal Justice.

(b) to ensure the observance of the basic principles of Natural Justice.

(c) to complement and actualise the substantive Criminal Law.

(d) to afford to the accused reasonable opportunity, fair deal and just trial.

(e) to provide for safeguard against misuse and abuse of the process of criminal law.

6. An outline of the historical background

(a) The year 1882 was crucial in the history of development of Criminal Procedure in India

(b) Before 1882, law relating ton Criminal Procedure was not uniform.

(c) The Criminal Procedure Code, 1882, was enacted to introduce for the whole of British India, as it was at that time, a uniform criminal procedure.

(d) The Cr.P.C. of 1882 was replaced by a new Code of Criminal Procedure in the year 1898.

(e) The Cr.PC of 1898 was amended from time to time. It was subjected to drastic changes in 1923 and again in 1955.

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(f) The Cr.PC of 1898 was repealed by the existing Code of Criminal Procedure, 1973 (Act II of 1974).

(g) The new Cr. PC, 1973 was substantially founded upon the recommendations of the Law Commission of India, as embodied in its 14th and 48th reports.

(h) The Cr. PC 1973 itself has suffered amendments several times. Mention may be made of the following Amending Acts:-

i) Act 45 of 1978ii) Act 63 of 1980iii) Act 43 of 1983iv) Act 46 of 1984v) Act 43 of 1986vi) act 32 of 1988vii) Act 10 of 19990viii) Act 43 of 1991

7. Commencement:

It came into force on the 1st April, 1974.

8. Extent of its operation:

(a) It extends to the whole of India except the State of Jammu and Kashmir.

(b) Exceptions have also been made in favour of the State of Nagaland and Tribal areas of Assam. The whole of Cr. PC does not apply there. Only certain chapters, Chapters VIII, X and XI are applicable.

(c) The State of Jammu and Kashmir is governed by a different, though substantially identical, code of Criminal Procedure.

9. Offence- how defined

(a) Cr.P.C. being the procedural part of the Criminal Law, it touches the people at many points. The Criminal law centers round the concept of crime. The term "Crime" has

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not been defined in any Act but a definition of the expression "offence" has been given in Sec. 2(n) Cr. PC.

(b) It may be noted that "offence means any act or omission made punishable by any law for the time being in force. It may be resolved into components as detailed below:-

(i) An act is a deed, that is, doing of something positive such as assaulting, killing, stealing. It should be something prohibited under the law.

(ii) Omission means a negative act, non-doing of something which the Law commands the person to do. When a jailor omits to give food to the prisoner under his charge, he commits an illegal omission. If the officer-in-charge of a police station stands by and looks on when an accused is beaten up by a Head Constable in the thana Lock-up he indulges in illegal omission, because he has a legal duty to prevent such a happening.

(iii) The act or omission must be something punishable under the Law. Punishment contemplated in one that should be inflicted by a competent Court of Law and it should be something authorised by the Law.

(iv) That law must have been in force when the alleged offence was committed. It should have been validly made by a competent Legislature.

(v) Law generally does not punish an act or omission unless it is accompanied by a guilty mind. There are, however exceptions to this rule. Offences where guilty mind or mens- rea is not an essential ingredient are known as strict liability offences. Illustrative case : Cundy Vs. Lindsay.

The accused had a licence, for sale of liquor in his premises. He sold liquor to a drunken person, which was against the Licensing Act, 1872. His defence was that he did not know that the customer was drunk. The Court accepted that fact but held that absence of his knowledge was immaterial. The offence was decided to be one of strict liability. The accused was found guilty.

By way of illustration, it may be cited that in India, kidnapping from lawful guardianship, an offence u/s 363 IPC and sale of an adulterated article of food, an offence under the Prevention of Food

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Adulteration Act, do not require any mens-rea (an evil intention or a knowledge of the wrongfulness of the act).

10. Classification of offences:

Under the Cr. PC, offences have been classified on the basis of four different criteria. They are :-

(i) Congnizable and Non-congnizable.

(ii) Bailable and non-bailable.

(iii) Offence triable as summons case and offence triable as warrant case.

(iv) Offence exclusively triable by a Court of Sessions and offence not exclusively triable by a Court of Sessions, that ordinarily means an offence which may be tried by a Judicial Magistrate of competent jurisdiction.

Note : In this monograph, only the first two classifications (i) and (ii) shall be dealt with.

11. Cognizable and Non-cognizable of offences:

(a) This division has been made with reference to police power.

(b) Cognizable offence means an offence for which a Police Officer may arrest without any warrant vide Sec. 2(c).

(c) Non-cognizable offence means an offence for which a police officer has no authority to arrest without warrant vide sec. 2(e).

(d) Another formulation that flows out of Sections 155 and 156 Cr.PC is that cognizable offence is where the police may investigate on their own without any order of any judicial authority but they can not do so when the offence is non-cognizable. In such a case, order of the competent Magistrate is necessary in order to enable the police to investigate.

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(e) Examples- Murder, Kidnapping, Dacoity, etc. are cognizable offences while simple hurt, defamation, bigamy, etc. are non-cognizable offences.

(f) Column No. 4 of the First Schedule to the Cr. P.C. will show whether a particular offence is cognizable or non-cognizable.

(g) The first schedule has two parts, namely (I) relating to the IPC and (II) concerning non-IPC offences.

Note : IPC stands for Indian Penal Code, which contains the general law of crimes.

11. Bailable and Non-bailable offence

(a) Bailable offence is an offence where the accused, after arrest, is entitled to be released on bail as a matter of right.

(b) In non-bailable offence, bail is not a matter of right for the accused but it is a matter of discretion for the authority competent to grant bail, that is, the Court or the Police Officer.

(c) It should not be supposed that bail can not be granted in a non bailable offence.

(d) Each application for bail made by an accused in a non-bailable offence has to be decided by the competent Court or the Police Authority, on its own merits, due regard being had to be relevant facts and circumstances of the case and bearing in mind the limitation imposed by law, if any, upon their powers.

(e) When an accused is granted bail, he is released from legal custody, upon his furnishing a bond, with or without surety, for his/her attendance at the time and place mentioned therein. The place is generally a specified Court.

(f) Ordinarily, the question of bail arises when a person has been arrested or detained or some kind of restraint has been imposed upon him.

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(g) To find out, whether a particular IPC offence is bailable or non-bailable, you are to refer to Part-I of the 1st Schedule to the Cr. PC and check up the entry under the column No. 5. as for example, rioting, an offence punishable u/s 147 IPC is bailable, whereas theft, an offence punishable u/s 379 IPC is non-bailable.

(h) For any non-IPC offence, examine that particular Act which has created the offence. If that Act declares the offence to be bailable or non-bailable, then accept that position. If that Act is silent on that point, then decide the matter in terms of punishment prescribed for that offence and in the light of the principle enunciated in Part-II of the 1st

schedule. If the offence is punishable with imprisonment for three years or more, it is non-bailable. Where the punishment is less than thee years or with fine only, it is bailable.

13. Investigation

(a) This term has been defined in Sec. 2(h) Cr. PC. The definition is, however, not exhaustive.

(b) Literally investigation means, following up step by step by observation, examination, and inquisition.

(c) Investigation implies ascertainment of facts, shifting of materials and search for relevant data.

Referenced : AIR 1968, Orissa 20.

(d) Under the Cr. PC, Investigation may be conducted either by a Police Officer or by any person, other than a Magistrate.

(e) The object of investigation is collection of evidence.

(f) Police Investigation generally consists of the following steps:

(i) Proceeding to the spot.

(ii) Ascertainment of the facts and circumstance of the case.

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(iii) Discovery and arrest of the suspected offender.

(iv) Collection of evidence by the processes indicated below or any other lawful means:-

Examination of various persons including the accused.

. Reduction of the statements of such persons to writing (discretionary and optional).

. Seizure of things considered necessary.

. Search of places

(v) Formation of opinion as to whether on the material collected, there is a case to place the accused for trial and if so, taking necessary steps for the same by filing of a charge-sheet u/s 173(2) Cr. PC.

Reference (i) AIR 1955 SC 196(ii) AIR 1959 SC 707

14. Inquiry:

(a) Inquiry, according to Sec. 2(g) Cr.P.C. means every inquiry, other than a trial, conducted under the Code, by a Magistrate or a Court.

(b) It follows that inquiry, as contemplated in the Cr.P.C. can be held either by a Magistrate or by a Court.

(c) What is done by a Police Officer under the Cr.P.C. can never be described as Inquiry.

(d) Inquiry is distinct and different from trial. In practice, trial begins when the inquiry ends.

(e) The object of inquiry is determination of truth or falsehood of certain allegations with a view to taking further action according to law.

Reference: (i) AIR 1920 Patna 563(ii) AIR 1940 Calcutta 97

(f) Inquiry may be of different kinds such as:-

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(i) Judicial Inquiry

(ii) Non-Judicial/Administrative Inquiry

(iii) Preliminary inquiry

(iv) Local Inquiry

(v) Inquiry into an offence

(vi) Inquiry relating to a matter other than an offence.

(g) Inquiry may involve examination of witnesses and inspection of the locale.

15. Investigation and Inquiry- differences

Investigation Inquiry(i) By whom By a Police Officer or a

person other than a Magistrate who is authorised by a Magistrate.

By a Court or by a Magistrate

(ii) Object Collection of evidence Ascertainment of truth

(iii) Nature Always non-judicial It may relate to an offence or any matter other than an offence.

(v) Initiation It commences when there are grounds for investigation, based on information or otherwise.

It may start on vague rumours with shadowy beginning vide AIR 1968, Madras 117.

(vi) Sequence In cognizable offence, police investigation is a normal preliminary to the accused being put up for trial.

In a warrant case instituted other than on Police report, the proceeding upto the framing of the charge is inquiry. Here, Trial follows inquiry.

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16. Trial

(a) Cr. PC has not defined "trial".

(b) Judiciary, through its process of interpretation, has endeavoured to supply that omission. It is:-

"A trial is a judicial proceeding which ends in conviction or acquittal" vide AIR 1940, Calcutta 97, AIR 1929 Patna 644.

(c) A trial is a proceeding different from inquiry vide 1987 Cr. LJ 55.

(d) When inquiry stops, trial may begin vide 1957 Cr. L.J 937.

(e) Trial means whole of the proceeding including sentence vide 24 Cr.LJ 886.

(f) The right to reasonably speedy trial is a fundamental right conferred by Article 21 of the Constitution of India vide AIR 1979 SC 1177.

(g) The Cr. PC in Sections 167, 209 and 309 has emphasised the importance of expeditious disposal of cases including investigations and trials vide AIR 1979 SC 1518.

17. Court - What it is?

(a) It has not been defined in the Cr. PC, although the classes of Criminal Courts have been enumerated in Sec. 6 Cr. PC.

(b) In order to constitute a court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgement which has finality and authoritativeness which are the essential tests of a judicial pronouncement.

Reference : 1955(2) S.C.R. 955.

(c) For the shake of brevity, the Criminal Procedure Code uses "Court" and "Magistrate" generally, if not always, as convertible terms.

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Reference : 1953(2) S.C.R. 953.

(d) A Magistrate is not a court unless he is acting in a judicial capacity vide ILR 36 Calcutta 433.

18. Judicial - meaning of

The word "Judicial" has two meanings.

it may refer to the discharge of duties exercised by a Judge or by Justices in Court or to administrative duties which need to be performed in Court but in respect of which it is necessary to bear a Judicial mind- that is a mind to determine what is fair and just in respect of matters under consideration.

(1892) 1 QB 431

Quoted in AIR 1980 Kerala 18 Full Bench.

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POLICE INVESTIGATION-an outline

I. Basically, Police is a Law-enforcement agency

Its main functions are :-

1) Prevention and Detection of Crime

2) Bringing offenders to Justice

3) Maintenance of Law and Order

4) Regulation of Traffic

II. Investigation

Its ordinary meaning :-

A systematic, minute and thorough attempt to learn the facts about something, complex or hidden; it is often formal and official.

(Vide Hamlyn's Encyclopedic World Dictionary)

III. Investigation-legal notion

a ) Investigation means:-

(i) ascertainment of facts(ii) sifting of materials(iii) search for relevant data

(Vide state of Orissa Vs Pareswar reported in AIR1968 Orissa 20)

b) It is defined in Sec. 2(h) Cr. P.C. The definition is, however, not exhaustive.

IV. The object of investigation:

It is collection of evidence.

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IV. Stages of investigation:-

(1) Proceeding to the spot

(2) Ascertainment of the facts and circumstances of the case

(3) Discovery and arrest of the suspected offender

(4) Collection of evidence relating to the Commission of Offence

(5) Formation of opinion as to whether it is a fit case for the accused to be sent up for trial and if so, taking steps for filing charge-sheet.

VI. Collection of Evidence-Different meanings

1) Examination of witnesses

2) Search of person and place

3) Seizure of things and documents

4) Scientific aids to investigation and reference to Experts for their opinions.

5) T. I. Parade

6) Post-mortem Report/Injury Report

7) Confession and admission

8) Interrogation of the accused.

VII. Investigation and Inquiry - Points of difference

Points Investigation Inquiry(1) By whom Police officer or a person

other than Magistrate, duly authorised by magistrate (here judicial)

Magistrate or Court (Magistrate may be Judicial or Executive)

(2) Purpose Collection of Evidence Ascertainment of truth or falsity of the alleged facts

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Points Investigation Inquiry(3) Character Can never be judicial May be judicial or

non-judicial.

(4) Commencement

It starts when there are grounds for investigating a Crime

May start with shadowy beginnings and vague rumours.

(5) Context It relates to an offence and is held in the context of suspected or alleged ommission of an offence.

May be in respect of an offence or a matter other than an offence.

VIII. Investigation- A normal preliminary in cognizable offence

a) In criminal cases involving cognizable offences, police investigation is a normal preliminary to the accused being put up for trial.

b) Investigation usually starts as soon as information relating to the commission of a cognizable offence is given to the Police Station.

c) Receipt and recording of an FIR is, however, not a condition precedent to the launching of police investigation.

d) Police can, in a case involving a cognizable offence, start investigation, without any order from the Magistrate, on receipt of information or otherwise (Vide Sec. 157 (1) Cr. PC.

IX. FIR- Its Characteristics

(i) It must disclose the commission of a cognizable offence.

(ii) It should be given to the o/c of a police station.

(iii) It should be earliest in point of time.

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Note: If all the above three conditions are satisfied, the information thus lodged with the police and recorded u/s 154 Cr. P.C. may be described and treated as FIR.

X. FIR- Other features :

(a) It may be in writing

(b) If given orally, it shall be reduced to writing by the police officer.

(c) It should be signed by the person giving it.

(d) A copy of it should be delivered to the informant free of charge.

(e) It may be made by any person, whether or not he has the first hand knowledge about the crime reported.

(f) Delay, if any, in making the FIR should be explained in the FIR itself.

(g) Strictly speaking, the Telegrams and telephonic messages can not be treated as FIR, because they are not given in writing duly signed by the informant nor they are reduced to writing by the police and read over to the informant. Moreover, there is hardly any guarantee as to their genuineness/authenticity.

XI. Refusal by informant to sign the FIR

It is punishable u/s 180 IPC.

XII. The FIR- Its basic objects :

(a) To set the criminal law in motion through the agency of the police.

(b) To furnish to the police early information of an alleged criminal activity of cognizable nature

XIII. Value of the FIR:-

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(a) It is valuable because it gives the earliest version of the occurrence .

(b) It is not a substantive piece of evidence.

(c) It can be used for the purpose of corroboration u/s 157 Indian Evidence Act.

(d) It can corroborate the maker if he is called as a witness.

Note : Normally the FIR is recorded before the starting of investigation. Hence, the FIR does not come within the purview of Section 162 Cr. P.C.

(e) It may be used for contradiction u/s 154 Cr. P.C. against the author thereof.

(f) Some other uses of the FIR

(i) as a conduct u/s 8 I.E. Act, if lodged by the accused.(ii) as an admission u/s 21 I.E. Act, if lodged by the

accused.(iii) As a dying declaration, if lodged by the deceased

whose death is in issue.(iv) As an entry by a public servant in the discharge of

his official duties u/s 35 I.E. Act.

XIV. FIR- Delay in lodging

(a) Delay, in lodging the FIR, if not sufficiently explained, creates suspicion.

(b) Delay, without any explanation may be fatal to the prosecution

XV. Refusal by the Police to Record FIR:

Remedy is provided by Sec. 154 (3) Cr. P.C. The person aggrieved can send to the Superintendent of Police the substance of the information by post.

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XVI. When the Magistrate may direct the Police to make investigation.

(1) u/s 156 (3) Cr. P.C.(2) u/s 159 Cr. P.C.(3) u/s 202 (1) Cr. P.C.(4) u/s 155 (2) Cr. P.C.

XVII. Custody

CUSTODY : It means physical detention.Remand : "To send back"Custody :-

(1) Police custody(2) Judicial custody.

Safe custody : One who is held under the authority of law for his or her safety (custody of a kidnapped girl)

XVIII. Remand - Relevant Sections

(1) During investigation - Sec. 167 Cr. P.C.

(2) After cognizance and - Sec. 309 Cr. P.C.pending during trial.

(3) By Executive Magistrate - Sub-section 2 A of Sec 167

Cr. P.C.

Conditions :When an Executive Magistrate may remand

(1) Judicial Magistrate is not available at the Station.

(2) Powers of Judicial Magistrate or Metropolitan Magistrate have been conferred U/ss. 13 and 18 Cr. P.C., upon the Executive Magistrate.

(3) Accused forwarded by the O/C or I.O. not below the rank of S.I. along with a copy of the case diary.

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Remand to Police Custody/Jail Custody

Maximum period of detention during police investigation :-

(1)90 days: When the offence is punishable with Death/Imprisonment for life/Imprisonment for ten years or above.

(2)60 days: any other offence

This period should be computed from the date of remand of the accused and not from the date of his arrest.

XIX. Search and Seizure (References only)

Search Procedure :

(1) Section - 47 Cr. P.C.

(2) Section - 100 Cr. P.C.

(3) Section - 165 Cr. P.C.

Search of a Person :

(1) Section - 51 Cr. P.C.

(2) Section - 52 Cr. P.C.

Powers of Police to Seize without Warrant:

Section - 102 Cr. P.C.

XX. Search warrants (Reference only)

1) Section - 93 Cr. P.C. - General Search

2) Section - 93 Cr. P.C. - Stolen property forged documents

3) Section - 95 Cr. P.C. - Forfeited publications

4) Section - 97 Cr. P.C. - Wrongfully confined persons.

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XXI. Search without warrants (References only)

1) Magistrate

. SECTION 103 Cr. P.C.

2) Police Officer (O/C)

. SEC. 165 Cr. P.C.

. SEC. 166 Cr. P.C.

. SEC. 153 Cr. P.C.

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BAIL

1. BAIL - it meaning

(a) The term 'bail' has not been defined in the Code of Criminal Procedure or in any other statute.

(b) It is used both as a noun and as a verb. When used of as noun, it generally means "security". the original meaning of "bail" is, however, slightly different. It denotes the person who stands as "surety".

(c) When used as a verb, it means releasing of a person from legal custody on security being taken for his/her appearance in Court in future. It is in this sense that this term is generally employed.

(d) Ordinarily, the question of bail arises when a person is arrested or detained or some kind of restraint is imposed upon him.

(e) When such a person is granted bail, he is set at liberty upon his furnishing a bond, with or without surety, for his/her attendance at the time and place specified therein. The place is generally a certain court.

2. BOND - what it implies

(a) Bond implies a written obligation. It is an instrument whereby a person binds himself for doing something or paying a specified sum of money.

(b) Bail-Bond is the bond by which bail is given. It is a written undertaking executed by the accused, with or without sureties, to the effect that he shall appear in Court and render himself amenable to the process of the Court.

3. SECURITY - its import

(a) Its literal meaning is "protection" or "indemnification".

(b) In the ordinary sense, It means the money or thing pledged.

(c) It is anything which makes the money more assured or more readily recoverable.

(d) This term is also applied to mean a person who stands as surety.

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4. SURETY

He is the person who procures the release of the accused from custody by undertaking to ensure the attendance of the accused in Court and in the event of the accused not attending, to pay to the Government such sum of money as stipulated.

5. BAIL - a clarification

(a) Security is of two kinds, namely,

(i) the simple one furnished by the accused himself without any surety. this is commonly called "personal recognisance" (PR); and

(ii) Security with one or more sureties. In the Cr.P.C., It is in this sense that the term "bail" has been used.

(b) The Supreme Court has, however, enlarged the meaning of the term "bail" to include also the security furnished only by the accused himself without any surety. Hence, bail now covers both kinds of securities.

6. Division of offences from the angle of Bail

(a) Offences have been classified under two heads, namely,

(i) Bailable offence (ii) Non-Bailable offence.

(b) Bailable offence means an offence which is shown as bailable in the First Schedule appended to the Cr.P.C. or which is made bailable by any other Law. (vide Sec.2(a) Cr.PC).

(c) Non-Bailable offence is that offence which is not bailable.

(d) What has been stated above is not a definition. If you wish to find out whether a particular offence under the IPC is bailable or non-bailable, then turn to the 1st schedule and locate the penal section for that offence under column No. 1. Column No.5 of that schedule will tell you whether the offence is bailable or non-bailable.

(e) If the offence is one under any law other than IPC, then check up that enactment. If the offence has been made bailable thereunder,

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it is bailable. If the offence is declared by the Act to be non-bailable, then it is non-bailable. If that Act is silent on that point, then you go by the maximum punishment prescribed by that Act for that offence. If the offence is punishable ,with death or imprisonment for three years or more, it is non-bailable. If the offence is punishable with imprisonment for less than three years or with fine only, then it is bailable.

7. The real meaning of the terms - Bailable offences and non- bailable offence

(a) Bailable offence really means an offence where bail is a matter of right for the accused. He is entitled to be released on bail as a matter of course. The Court or the Police can not say "No" to him, save and except in a special situation spelt out in subsection (2) of Sec.436 Cr.P.C.

(b) Non-bailable offence does not mean that bail can not be granted at all. It only implies that In a case involving non-bailable offence, bail is a matter of discretion for the authority competent to grant bail. The accused has not the right to be enlarged on bail. It is for the Court or Police to decide, due regard being had to the facts and circumstances of the case and bearing in mind the limitations imposed by law, if any, whether or not bail ought to be granted to the accused.

8. Authorities competent to grant bail

(a) The officer-in-charge of a police station.

(b) Any police officer superior in rank to the officer-in-charge may also exercise the same power within the local limits of that police station vide Section 36 Cr.P.C.

(c) High Court and the Court of Sessions.

(d) Subordinate Courts, which include Trial Courts and Judicial Magistrates.

Where the Law relating to bail may be found

(a) This question may be approached from the three different angles, namely,

(i) Police powers regarding bail.(ii) Competence of the Subordinate Courts for grant of bail.

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(iii) Jurisdiction of the High Court and Court of Sessions in respect of bail matters.

(b)Police Powers

Reference may be made to Sections 42(2), 43(3), 81, 169, 170, 436, 437(1) and (2) Cr.PC.

(c) Competence of Subordinate Courts

We may advert to Sections 71, 81, 88, 167, 330, 395(3) 436 and 437 Cr.PC.

(d) Jurisdiction of the High Court and Court of Sessions

Sections 438 and 439 are specific provisions to conferring wider jurisdiction upon the High Court and Court of Sessions in respect of bail matters.

(10) If you like to go about section-wise, it will lead to the formulation of the following Table which will point to the main legal provisions touching upon 'Bail'. This arrangement is designed to enable you to have a rough idea at a glance.

Sectionsof Law

Nature ofbail

Nature ofOffence

Authorities competent

a) Sec.436 Ordinary Bailable Subordinate Court and Police.

b) Sec.437 Ordinary Non-bailable -do-c) Sec.438 Anticipatory

bailNon-bailable High Court and

Court of Sessions.d) Sec.439 Ordinary Bailable and

Non-bailable-do-

11.Categorisation

(a) From what has been indicated above, it will appear that bail, as envisaged in the new Code of Criminal Procedure, is of two kinds, namely,

(i) Ordinary bail(ii) Anticipatory bail.

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(b) The only Section in the Cr.PC which deals with "Anticipatory Bail" is Section 438 Cr.PC. 'The remaining sections relating to bail, as referred to earlier, speak of "ordinary bail".

(c) The ordinary bail is a post-arrest while anticipatory bail is a pre-arrest process.

Note: Section 438 Cr.P.C has been deleted by a local amendment of the U.P. State Legislature and as such, anticipatory bail does not apply to U.P.

12. Philosophy of bail

(a) Individual liberty and social security often come in conflict with each other.

(b) Both these rival interests are important and as such, have to be harmonised as far as possible.

(c) As soon as a person is arrested, his personal liberty is invaded and curtailed at the same time, interest of the society as a whole may have made it incumbent upon the police to arrest him for prevention or detection of crimes. His detention in custody may also become necessary for investigation/ inquiry / trial.

(d) The investigation may prolong and even if it ends in charge-sheet, trial will take its own time to come to an end.

(e) Hence, during investigation/inquiry/trial, the accused need not unnecessarily be detained in custody. That will be a violation of his fundamental right.

(f) Bail is a mechanism by which a balance is sought to be struck between individual Liberty and Social Security.

(g) After arrest, the accused ought to be released on bail unless his detention is essential in larger interest of the Society or in advancement of the cause of Justice.

(h) When the conflicting claims of Individual Liberty and Social Security can not be reconciled, it is the social security that must prevail over individual liberty and in such a circumstance, the accused has to be detained by denying to him the benefit of bail.

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(i) The slogan is "Bail and not Jail". This can not, however, be transformed into an absolute mandate. Hence, the Police Authority and the Court have been vested with the discretionary powers to decide whether in a given case involving non-bailable offence, the accused should or should not be granted bail pending investigation, inquiry or trial.

(j) Bail is not to be withheld by way of punishment. There is a presumption of innocence in favour of an accused, which continues till his guilt is established at the end of the trial.

13. Bail in bailable offence

(a) Magistrate or Police authority, as the case may be, is competent to grant bail u/s 436 Cr.PC.

(b) Bail is a matter of right for the accused.

(c) Bail in a bailable offence can be refused by the Court only where the accused, after having been granted bail in the same case on an earlier occasion, failed to appear before the Court on the date fixed. In other words, when he misused the liberty of earlier bail and absconded.

(d) While granting bail in a bailable offence, no condition, other than the one for attendance of the accused. can be imposed.

14. Bail in non-bailable offence

(a) The powers of the Magistrate and the Police to grant bail in non-bailable offences are limited.

(b) Neither the Magistrate nor the police authority is competent to grant bail in the following cases.

(i) When there appear reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life.

(ii) When the offence is cognizable and the accused had been previously convicted of an offence punishable with death or imprisonment for life or imprisonment for seven years or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.

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(c) Even in a case falling within the purview of paragraph 14 (b) above, the Magistrate has discretion to grant bail when the accused is:

(i) Child under 16 years or(ii) Women or(iii) Sick or(iv) Infirm.

(d) Bail, may be granted at any stage of investigation inquiry or trial, even when the allegations involving a non-bailable offence are serious if the Police Officer or Court does not find prime facie evidence to connect the accused with the crime, although there are sufficient grounds for further inquiry. This ought to be done after giving the prosecution reasonable opportunity of collecting evidence of an incriminating nature.

(e) Pendency of a Test Identification Parade is not a sufficient ground for refusal of bail, provided that the accused gives an undertaking that he shall take part in it.

(f) While granting bail in the cases covered by sub-sec.(3) of the 437 Cr.P.C, the Court may impose conditions in the interests of Justice.

(g) The High Court and the Court of Sessions have greater powers u/s 439 Cr.P.C. to grant bail. There is no bar to the High Court or the Court of Sessions admitting an accused to bail even in cases involving an offence punishable with death or imprisonment for life.

15. Relevant consideration for exercise of powers of bail

(a) Nature and gravity of the offence alleged.

(b) Character of evidence collected in support of the allegations.

(c) Severity of the punishment a conviction may entail.

(d) The probability of the accused absconding.

(e) The danger of the accused tampering with evidence or bullying witnesses.

(f) The health, age and sex of the accused.

(g) The Character and standing of the accused.

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(h) Law and Order situation.

(i) General interest of the State.

(j) Larger Interest of the Society.

(k) Protracted nature of investigation or trial.

(l) Need to give reasonable opportunity to the accused to prepare for his defence.

(m) Circumstances which are peculiar to the accused.

(n) History of the case.

(o) Likelihood of the accused jeopardising his own life being faced with the grim prospect of a possible conviction.

(p) Danger of the accused repeating the crime.

(q) Such other relevant factors which are variable and cannot be exhaustively set out.

16. Bail as a matter of right if the investigation is not completed with in the stipulated period of time.

(a) Section 167 Cr.P.C. provides for compulsory bail during the stage of investigation if the investigation is not completed within 60 days or 90 days, as the case may be.

(b) Ninety-Days are available when the investigation, relates to offence punishable with death, or imprisonment for life or imprisonment for not less than ten years.

(c) Sixty days will be applicable when the investigation relates to any other offence.

(d) In a situation of this nature, the accused becomes entitled to bail on lapse of the stipulated period, irrespective of the merit of his case.

(e) The accused may, however, be detained beyond 60 days or 90 days. as the case may be, if he does not furnish the bail required of him.

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(f) As soon as the charge-sheet is submitted within the stipulated period of 90/60 days, Section 167 Cr.P.C. goes out of picture and ceases to operate.

(g) If charge-sheet is submitted within 90 days/60days and cognizance is taken by the Court, the accused may still be remanded to custody beyond 90/60 days by virtue of the power vested in the Court u/s 309 Cr.P.C.

(h) Compulsory bail on lapse of the statutory period is designed to expedite the process of investigation and to put indirect pressure upon the police to complete the investigation within such period of time.

17. Anticipatory Bail

(a) This term does not occur in Sec.438 Cr.P.C or any other section of the Cr.P.C, yet what is provided for in Section 438 is known as anticipatory bail. Sec.438 Cr.P.C is new and based on the recommendation of the Law Commission.

(b) Courts competent to grant anticipatory bail

Either the High Court or the Court of Sessions is competent to grant anticipatory bail and no other Court. Supreme Court has appellate Jurisdiction under Article 136 of the Constitution of India to decide appeal from an order passed by the High Court or Court of Sessions granting or rejecting anticipatory bail.

(c) Condition for invoking the aid of Section 438 Cr.P.C

The applicant has reason to believe that he may be arrested on accusation of having committed a non-bailable offence.

In other words, the following conditions should be present:

(i) Apprehension of arrest;(ii) Such apprehension must be based on reasonable belief;(iii) The arrest apprehended must be in connection with a non-

bailable offence;(iv) The applicant has not yet been arrested.

(d) An order u/s 438 Cr.P.C is in the nature of a direction to the effect that in the event of the accused being arrested, he shall be released on bail. Hence, it takes effect as soon as the applicant is arrested.

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(e) Conditions may be imposed while granting anticipatory bail.

(f) The mere fact that a person has got an order u/s 438 Cr.P.C does not prevent the Police from arresting him. The only obligation is that as soon as the arrest is made, the accused shall have to be released on bail provided that he furnishes the bond as required.

(g) There cannot be a blanket order for anticipatory bail. There should be particulars sufficient enough for identifying the case to which an order for anticipatory bail relates.

18. Anticipatory Bail and Ordinary Bail- the points of difference in a tabular form

Anticipatory Ordinary

(i) It is a pre-arrest It is a post-arrest process.process.

(ii) Available only in Available in non-bailableNon-bailable offence. and also in bailable offences.

(iii) Only High Court and Court Besides High Court and Courtof Sessions may grant. of Sessions subordinate

courts including Magistrates and Police authorities may grant.

(iv) Extra Ordinary remedy. Ordinary Remedy.

(v) Additional conditions may Only conditions contemplatedbe imposed to ensure that in Section 4373) may beinvestigation is not imposed.hampered with, besidesthose contemplated in Sec.437(3) Cr. PC.

(vi) In the nature of a direction Executable as soon as the and it takes effect when the order is delivered.person is arrested.

19. Consideration for grant or refusal of anticipatory bail

(a) "The power of granting anticipatory bail is somewhat extra ordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated or a frivolous

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case might be launched against him or there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail that such power is to be exercised". (vide Balanchand Jain vs. State of M.P. reported in 1977 Cr.IJ 225 Supreme Court).

(b) "If the proposed accusation appears to stem not from motive of furthering the ends of Justice, the object being to inure or humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. "Gurbaksh Singh Sibbia vs. State of Punjab 1980 Cr.LJ 1125 S.C.)

(c) Apart from the guidelines set forth above on the basis of the authorities of the Supreme Court, some other factors which should guide the discretion in case of ordinary bail. such as nature and seriousness of the proposed charges, the contexts of events, a reasonable possibility of the applicants' presence not being secured at the trial, a reasonable apprehension that the witnesses will be tampered with, larger interests of public or the State, should also be taken into consideration while deciding an application for anticipatory bail.

20. Cancellation of bail

(a) Bail in a bailable offence, may be cancelled by the High Court or the Court of Sessions, irrespective of whether it was granted by it or by a subordinate court or by the Police.

(b) Bail granted by the subordinate Court (say, the Magistrate) u/s 436 Cr.P.C. can not be cancelled by that Court. The question of cancellation of bail by the Police does not arise at all.

(c) Bail granted by a subordinate Court in a non-bailable offence may be cancelled by that Court u/s 437 (5) Cr.P.C.

(d) Bail granted by the Police or by the subordinate Court in a non-bailable offence may also be cancelled by the High Court or the Court of Sessions us 439 (2) Cr.P.C.

(e) Bail granted by the Court of Sessions in non-bailable offence may be cancelled of Sessions or the High Court.

(f) Bail granted by the High Court in non-bailable offence may be cancelled by the High Court.

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(g) An anticipatory bail granted by the Sessions Judge u/s 438 Cr.PC may be cancelled by the Sessions Judge himself or by the High Court.

(h) An anticipatory bail granted by the High Court can be cancelled by that High Court.

(i) Consideration for cancellation of bail are somewhat different from those relevant reaction of an application for bail.

(j) The cancellation of bail necessarily involves review of the decision already made and can, by and large, be permitted only if by reason of supervening circumstance, it would no longer be conducive to a fair trial to allow the accused to retain his freedom during trial vide State Vs. Sanjay Gandhi reported in 1978 Cr.LJ 952).

(k) Grounds for cancellation may be summed up as follows:

(i) Interfering or attempting to interfere with the course of Justice.

(ii) Causing disappearance of evidence.

(iii) Evading or attempting to evade the course of Justice.

(iv) Abusing the liberty. vide 1987 Cr.IJ 705: S.C.).

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TEST IDENTIFICATION PARADE

(1) What is T.I. Parade?

(a) The expression 'T.I. Parade" stands for 'Test Identification parade.

(b) It is a step in the investigation of a crime.

(c) It belongs to the stage of investigation.

(d) It is a process by means of which a suspect arrested by the police or any property recovered by the police in course of investigation is put up, along with other persons or similar properties, for the purpose of identification by the witnesses, with a view to testing whether the suspect arrested is concerned in the crime or the property recovered is the subject matter of the crime.

(2) Importance of the T.I. Parade

(a) It is important both from the viewpoint of the investigating agency and also of the accused.

(b) If the accused is identified by one or more witnesses at the T.I. Parade. it furnishes assurance to the Investigating Agency that the Investigation is proceeding on the correct line.

(c) On the other hand, if the accused is not identified by any witness at the T.I. Parade, he may be relieved, because in such event, he is not liable to be charge-sheeted by the police unless there is other evidence to justify submission of charge-sheet.

(3) Kinds of T.I Parade

They are of two kinds, namely i) T.I. Parade of persons ii)) T.I. Parade of properties.

(4) Who may conduct T.I. Parade ?

(a) Generally speaking, a T.I. parade may be conducted by any person other than a police officer.

(b) Strictly speaking, a T.I. Parade ought to be conducted by a metropolitan Magistrate or a Judicial Magistrate.

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Note T.I. Parade being a step in the investigation, it is ordinarily the Investigating Agency, namely, the police, at whose instance T.I. Parades are generally held by the Metropolitan Magistrates or the Judicial} Magistrates, ether in the Court or in the Jail.

(5) Objectives of the T.I. Parade

(a) They are twofold, namely, to (i) test and (ii) Strengthen the trustworthiness of the evidence.

(b)What a witness testifies in court as to the identity of an offender or any stolen property is the substantive evidence.

(c) A case, however, comes up for trial before the Court after a lapse of time. Hence, it is expedient to hold T.I. Parade at the earliest possible opportunity during the stage of investigation.

(d) T.I. Parade should. therefore, be held immediately after the arrest of the suspect without any unnecessary delay.

(e) The result of the T.I. Parade may be positive or negative.

(f) If positive, it lends corrobation to the testimony of the witnesses in court.

(g) What a witness deposes before the court on the point of identification at the time of trial gets support from what he communicated earlier at the T.I. Parade on the point of identification.

(h) The testimony of the witness in court is thereby tested and strengthened with reference to the result of the T.l. Parade conducted earlier when the impression in his mind was supposed to be fresh and clear.

(6) Relevancy of T.I. Parade

(a) All facts which establish the identity of a person or thing are relevant under Sec. 9 of the Indian Evidence Act.

(b) Identification evidence, is, therefore, relevant U/S 9 of the Indian Evidence Act.

(7) When the T.I. Parade evidence is admitted in Court

(a) T.I. Parade is held during investigation.

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(b) The magistrate conducting the T.I. Parade records the results of the T.I. Parade and the Magistrate who conducted the T.I. Parade are called to give evidence in court.

(c) The T.I. Parade Magistrate as witness proves in court what happened at the T.I. Parade (the result of the T.I. Parade).

(d) The eyewitnesses may identify the accused in court at the trial.

(e) Once such identification is made by the eyewitnesses in court, their evidence in court on the point of identification receives corroboration from the evidence of the T.I. Parade.

(f) If the eyewitnesses fail to identify the accused in court at the trial, the T.I. Parade evidence can not be used for the purpose of corroboration, because there remains nothing in their testimony on the point of identification to be corroborated.

(8) Cases where T.I. Parade of persons ought to be held

(a) Where the offender was seen by any person (call him witness) at the time of occurrence and (b) When the offender was not known to that person (witness) from before.

(9) Procedure for holding of T.I. Parade of persons abroad outline

(a) may be held in courtroom or Jail compound preferably by a judicial/metropolitan Magistrate.

(b) the suspects should be mixed up with innocent persons, namely U.T. prisoners, if held in Jail or outsiders if held in courtroom. in the proportion of 1:10.

(c) the innocent persons referred to in clause (b) above should be of same age, height, build. general appearance and similarly dressed.

(d) the witnesses should be called one by one to the venue where the T.I. Parade is being held.

(e) After a witness has finished his job, the order of suspects and innocent persons in the line should be altered.

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(f) When a particular witness is in. the other witnesses, if any, ought to be kept at a reasonable distance, taking care to ensure that they are not in a position to see or hear the ldentifying witness.

(g) No police personnel should be allowed to remain present at the venue of the T.I.. Parade.

(h) the statement of each witness relating to identification, any, ought to be recorded by the Magistrate then and there. i) The Magistrate should also note down the objection of the suspect, if any. ) Holding of T.I. Parade should not only be fair but should also appear to be fair.

(10) Appreciation of the T.I. Parade evidence

In assessing the weight to be given to the evidence of T.l. Parade, the following points ought to be considered:

(i) was the suspect known to the witness from before?

(ii) was there any delay in holding of the T.I. Parade?

(iii) what kind of opportunity the witness had to see the offender at the time of occurrence?

(iv) Did the witness have chance to see the suspect or his photograph after the occurrence and before the T. I. Parade?

(v) Did the witness make any mistake?

(vi) was there anything outstanding or extraordinary in the features/conduct of the suspect which impressed him?

(vii) Were sufficient precautions taken to ensure fairness?

(11) Sections of law bearing on the T.I. Parade

(a) Identification evidence is relevant U/S 9 of the Indian Evidence Act. (b) T.l. Parade held by a police officer is hit by Sec. 162 Cr.P.C.

(c) Statements made by witnesses at the T.I. Parades are really the statements U/S 164 Cr. P.C. and as such, they may be recorded by the Judicial Magistrates, or Metropolitan Magistrates. who are authorised US 164 Cr. P.C. to record statements of witnesses during investigation.

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(d) Previously, the police used to oppose bail of an accused on the ground that he was required to be placed on T.I. Parade. Now that ground is not available to the police.

The third proviso the Sec. 437 (1) makes it clear that the mere fact that the T.I. Parade is necessary or pending is by itself not a sufficient reason for rejecting a petition for bail made by the accused.

(e) The statements made by witnesses at T.I. Parades are not substantive evidence. There are previous statements which may be used for the purpose of corroboration U/S 157 Evidence Act or for contradiction under Sec. 155 I.E. Act, read with Sec. 145 I.E. Act.

Note :The object of contradicting a witness with reference to his inconsistent previous statement is to impeach his credit.

Further readings

(A) Sections 9, 145, and 157 Evidence Act(B) Sections 161, 162, 164 and 437 (1) third proviso of the Code of

Criminal Procedure.

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"POLICE REPORT"

1. What is "Police Report"

(a) Police Report means a report forwarded by a police officer to a Magistrate under subsection (2) of Sec. 173 Cr.P.C. vide the definition given in Section 2 (r) Cr.P.C.

(b) As soon as investigation of a case involving at least one cognizable offence is completed by the police, the officer-in-charge of the police station, where the case has been registered, has to submit a report to the magistrate.

(c) The Magistrate here refers to any Magistrate competent to take cognizance. He is generally a Judicial Magistrate, First Class. A Judicial Magistrate, Second Class. may also take cognizance, provided that he is specially empowered to do so by the Chief Judicial Magistrate.

(d) Hence, the report submitted by the officer-in-charge of the police station to the competent judicial magistrate at the end of investigation, incorporating the results of the investigation and containing the opinion of the Investigating Agency, is know as "Police Report".

Note: It has a technical meaning as defined. Each and every report submitted by the police is not to be designated as police Report".

2. Police Report what it should contain

(a) Names of the Informant and the accused.

(b) Nature of the information.

(c) Names and necessary particulars of the witnesses.

(d) Whether a prima facie case as to the commission of an offence has been made out. If so, who appears to have committed the offence.

(e) Whether the accused has been arrested.

(f) Whether the accused has been released on bail, if so, with or without sureties.

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(g) Whether the accused has been produced before the Magistrate under arrest.

Note: The police report should be in the form prescribed by the State Government.

3. Police Report - it reflects police opinion

(a) The final step in the investigation of an offence is the formation of opinion by the O.C. of the P.S.

(b) The opinion ought to be based on the evidence collected in course of investigation.

(c) The ultimate opinion to be formed by the police is whether the case in hand is one which ought to be sent up for trial.

(d) This will mainly depend upon:

(i) whether the case is true or false.

(ii) if true, whether the offenders have been discovered or not.

(iii) whether they have been arrested or not.

(iv) whether there is sufficient evidence to prosecute them.

4. Police Report - its nature

(a) Police reports may be broadly categorised under two heads, namely: (i) charge-sheet and (ii) Final Report.

(b) If the case is sent up for trial, the report made therein is known as "charge sheet"

(c) whether the case is not sent up for trial, the report submitted by the police is called "Final Report"

5. Final Report - the circumstances in which it may be submitted:

(a) At the close of investigation, the police may find that the case reported is true but no clue is available, despite efforts made in that direction. Here, the case remains undetected and the report that the O.C. submits to the Magistrate is known as "Final Report" (F.R. TRUE).

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(b) At the end of the investigation, the police may find that the case reported is false. In such an event, the question of sending up anybody for trial for the offence reported earlier does not arise. The report that the O.C. will submit to the Magistrate is also called 'final Report' (F.R. False).

The O.C. may, however, proceed against the Informant who lodged false information with the police. Action may be either U/s 182 I.P.C. or u/S 211 I.P.C. as the case may be.

(c) At the end of investigation, police may find that the case is neither true nor false, that is, based on mistake of facts or is of civil nature. In such event, the O.C. will also submit a final report.

(d) At the end of investigation, the police may find the case true, and discover the offender but the evidence forthcoming is insufficient to justify prosecution of the accused. Here again, the police will have to submit a final report on the ground of Insufficient evidence. Such a case falls U/S 169 Cr.P.C.

6. Charge Sheet

(a) It means the police report by which the police seek to place the alleged offender on trial and invite the Magistrate to take cognizance for the purpose of proceeding against him according to law.

(b)A charge sheet is submitted when the case is covered under Sec. 170 Cr.P.C. that is, when at the end of investigation, it appears to the O.C. of the P.S. that there is sufficient evidence or reasonable grounds for trial of the accused.

7. What the Magistrate should do on receipt of the Police Report?

(a) This will depend upon the nature of the police report.

(b) If it is a charge-sheet, the Magistrate may take cognizance upon the "police report".

(c) On the other hand, if the Magistrate is of opinion that the facts disclosed in the police report do not make out an offence or that there is no sufficient evidence for trial, he may decline to take congnizance upon that charge-sheet.

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(d) If the report submitted by the police is a final report, the Magistrate may agree with it and direct the case to be dropped and the accused, if arrested, to be discharged.

(e) On the other hand, if the Magistrate does not accept the final report he may take any of the following steps:

(i) He may direct further investigation to be made by the police U/S 156 (3) Cr. P.C.

(ii) He may ignore the conclusion of the police and take cognizance of the offence U/S 190 (1) (b on the material available in the police report.

It would be on the basis of the statements of witnesses and upon the facts disclosed by the police report, not withstanding the opinion of the police to the contrary.

(iii) If a petition of protest is filed by the party aggrieved at the final report, the Magistrate may treat that petition as complaint and take cognizance U/S 180 (i) (a) Cr.P.C.

8. Can the Magistrate direct the Police to submit the Charge Sheet?

Ans. No, he cannot. To direct the police to submit a charge-sheet is to ask them to do a particular thing in a particular way during investigation which is tantamount to interfering with the police investigation.

Police alone have full control over investigation and the Magistrate has no power to interfere with such proceedings.

9. Can the police make further investigation on after a police report U/S 173(2) Cr.P.C. has been submitted to the Magistrate?

Ans: Yes, the provisions as contained in subsection (1) of Section 173 Cr.P.C. recognise the right of the police to make further investigation, even after the submission of a final report U/S 173 (2).

Police may, therefore, reopen investigation and submit a supplementary charge sheet.

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10. A cognizable case reported to the police but the case. after police investigation is found to be non-cognizable

In such a situation, the report submitted by the police should be deemed to be a complaint vide the explanation below the definition of the term complaint' as given in Sec. 2 (d) Cr.P.C.

The Magistrate may take cognizance upon that complaint U/S 190 (1) (a) Cr.P.C. and proceed U/S 200 Cr. P.C. and other provisions of Chapter XV, Cr. P.C

11. Taking of cognizance- the meaning of the expression

(a) To take cognizance, in the context of presentation of a complaint or submission of a police report to the competent Magistrate, is to take judicial notice of the alleged commission of the offence with a view to proceeding according to law.

(b) It does not imply any formal action on the part of the Magistrate. What is actual involved is application of judicial mind to the allegations made in the complaint or in the police report, for the purpose of taking appropriate legal steps.

(c) Cognizance is taken of an offence and not of any accused.

Hence, the Magistrate cannot refuse to take cognizance upon a charge-sheet where the accused has been shown to be an absconder. 'The non availability of the accused is not a ground for not taking cognizance of the offence alleged in the charge-sheet.

12. Institution of criminal proceedings in Court

(a) Mere presentation of a complaint or a charge sheet to the Court of Magistrate does not constitute "institution of a criminal case in court."

(b) A criminal case is said to have been instituted in a court only when the Magistrate takes cognizance of the offence alleged therein.

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INQUEST - PRINCIPLES AND PROCEDURES

1. Inquest - its meaning

(a) This expression occurs in section 174 and sec. 176 Cr.P.C.

(b) Literally, it means a legal inquiry.

(c) Strictly speaking, it has been employed in the Cr.P.C to mean the inquiry held u/s 176 Cr.P.C by a competent Executive Magistrate into the cause of an unnatural or suspicious death.

(d) Loosely, it is also applied to refer to the investigation conducted by a police officer u/s 174 Cr.P.C for the purpose of ascertaining the apparent cause of an unnatural or suspicious death.

(e) Hence, the term, 'Inquest' is commonly used to mean either an investigation by the police u/s 174 Cr.P.C or an inquiry by the Magistrate us 176 Cr.P.C, undertaken by them under the Law to find out the cause of an unnatural or suspicious death.

2. Death - its nature and onset

(a) Death means "permanent cessation of life".

(b) Life rests on the tripod of i) Brain (ii) Heart and (iii) Lungs.

(c) Death implies irreversible stoppage of their functions.

(d) This death is known as somatic death. 'Somatic' is an adjective and it means bodily or corporeal.

3. Death Natural/ Unnatural

(a) When death occurs by the unassisted operation of natural causes, it is called "Natural Death". "Ailments" fall within "Natural Causes".

(b) Unnatural death is one which is not natural, say for instance, death due to violence.

(c) Unnatural death may be homocidal, suicidal or accidental.

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4. Need for Probe

(a) Unnatural or suspicious death calls for a probe.

(b) It needs to be looked into, for which Inquest is the mechanism built by Law.

(c) The idea is to find out whether or not there was any foul play behind such death.

5. Two agencies for such Probe

(a) They are (i) Police and (ii) Magistracy.

(b) Sec. 174, Cr.P.C, read with Section 175 Cr.P.C, relates to Police whereas Section 176 Cr.P.C. refers to Magistracy on the executive side.

6. Ten-point charter of duties of the Police in the context of an Inquest

(i) Reporting such death to the nearest Executive Magistrate competent to hold inquest.

(ii) Proceeding to the spot for investigating the cause of such death unless otherwise directed.

(iii) Inviting at least two local and respectable persons to be present at the Inquest.

(iv) Viewing the dead body and its surroundings carefully and closely.

(v) Noting down relevant features, such as number, position and direction of injuries, signs of inflammatory reaction, signs of struggle, presence of saliva, blood froth, semen, swab, vomit etc.

(vi) Examining witnesses supposed to be conversant with the facts and circumstances of the case.

(vii) Preparing the report on the spot indicating, among other things, the apparent cause of death.

(viii) Affixing of the signature by the police officer to the report and also getting therein the signature of the persons who witnessed the Inquest and concurred with him (mentioned in clause (iii) above).

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(ix) Forwarding the report to the DM or the SDM.

(x) Sending the dead body to the authorised medical officer for post mortem examination unless the cause of death is clear and free from doubt. A copy of the Inquest report should accompany the memo of requisition for post mortem examination.

7. Five situations where post-mortem cases of unnatural or suspicious death are compulsory

(i) Suicide by a woman within 7 years of her marriage.

(ii) Death of a woman within 7 years of her marriage where reasonable suspicion exists as to commission of an offence against her.

(iii) Death of a woman within 7 years of her marriage where any of her relatives makes a request to that effect.

(iv) There is any doubt regarding cause of death.

(v) The police officer considers it expedient to have the post mortem done.

Notes:

(a) It is for the police to send the dead body to the authorised autopsy surgeon for post mortem examination.

(b) Police has discretion not to send the dead body for post mortem examination. Post mortem may be dispensed with when the case is not covered by any of the five mandatory clauses specified in paragraph (7) above.

(c) This discretion has to be exercised properly and honestly.

8. Power of the police In connection with holding of Inquest

(A) The police officer may call local and respectable persons to be present at the Inquest.

(B) The police officer may summon witnesses likely to throw light over the cause of death.

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(C) The police officer may examine such witnesses as mentioned in clause (B) of this paragraph 8.

(D) The police officer may require the persons attending the Inquest and agreeing with his finding to sign the report. (Here, the persons are those referred to in clause of para 8.

(E) The police officer may call upon the witnesses to answer truly all questions other than questions having a tendency to expose them to a criminal charge or to a penalty or forfeiture.

(F) The police officer may register a crime suo moto if the Inquest reveals the commission of a cognizable offence.

Notes:

(i) Non attendance in obedience to an order issued by the police officer u/s 175 Cr. PC is punishable u/s 174 IPC.

(ii) Refusal to answer the police officer is punishable u/s 179 IPC.

(iii) Giving false answer to any question which the witness is bound to answer truly may render him liable to be prosecuted and punished u/s 193 IPC. It is, however, doubtful whether witnesses giving false answers to Police may be prosecuted for perjury u/s 193 IPC. The reasons are:(a) Oath cannot be administered by the Police and hence, those statements are not on oath. (b) Such statements are not required to be signed by the witnesses and as such, they can not be held responsible for what the Police Officers may have taken down. (c) the witnesses are not bound to answer questions which may expose them to a criminal charge or penalty or forfeiture.

In appropriate cases, the statements made to police by witnesses may render them liable to be dealt with u/s 202 IPC or 203 IPC.

(iv) The statements of the witnesses, if recorded by the police, shall not be required to be signed by those witnesses.

(v)The persons to be called by the Police are of two types(a) persons who witness the holding of Inquest and (b) Persons who may throw light over the cause of death from their own knowledge and examined by the Police.

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9. Duty of every villager and every village officer to give information to the nearest Magistrate or to the officer incharge of the nearest police station as to the occurrence of any sudden, unnatural or suspicious death vide Sec. 40 (1) (d) Cr.P.C.

Omission to give such information is punishable u/s 176 IPC.

10. (i)The Magistrates empowered to hold inquests are:

(a) District Magistrate

(b) Sub Divisional Magistrate

(c) Any other Executive Magistrate specially empowered in this behalf by the State Govt. or the District Magistrate.

(ii) It may be noted that a D.M. and a S.D.M. are Executive Magistrates, placed in charge of a district and a subdivision respectively, by the State Govt.

(iii) In the metropolitan towns of Calcutta and Bombay, inquest is ordinarily held by the Coroner under the Coroner's Act, 1871.

11. Inquest by the Executive Magistrate When Mandator

In the following cases, it is compulsory for nearest Executive Magistrate empowered to hold inquests, to make an inquiry into the cause of death:

(a) When any person dies in the custody of the police

(b) The case involves suicide by a woman within seven years of her marriage.

(c) The case relates to the death of a woman within 7 years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman.

Vide Sec. 176 (1) read with Sec. 174 (3), as amended by the Act 46 of 1983.

12. Inquest - When Discretionary for the Executive Magistrate

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In any other case mentioned in subsection (l) of Sec. 174 Cr.P.C, any Magistrate so empowered may hold an inquiry into the cause of death either instead of or in addition to the investigation held by the police officer.

13. Purpose of Section 176 Cr.P.C.

(a) Sec. 176 Cr.P.C. is probably based on the assumption that it is not always safe or advisable to depend entirely upon the opinion of the police, particularly when it relates to the death of a person in police custody or it involves the suicidal or suspicious death of a woman within seven years of her marriage. There should be a further check and independent inquiry by a Magistrate.

(b) A magisterial inquiry is likely to inspire greater public confidence and it may help to pacify ruffled or injured feelings that have been created in the minds of the people by reason of violent or sudden death of human being specially in police custody or of a bride under suspicious circumstances.

(c) The proceedings of the Magistrate are intended to discover the cause of death, that is, whether in a given case, the death was accidental, suicidal or homocidal or caused by some animal.

(d) If upon such inquiry, It is found that reasonable suspicion of the commission of any offence exists, a criminal case may be started. Starting of a criminal case on the basis of such inquiry does not offend the other provisions of the Code vide AIR 1959 Madras 294.

14. Police to give intimation about unnatural or suspicious death immediately to the nearest Executive Magistrate empowered to hold inquest. Such an obligation has been cast upon the police by Sec. 174(1) Cr.P.C. Failure to do so may be dealt with u/s 176 IPC. Sec. 29 of the Police Act, 1861 may also be thought about.

15. Executive Magistrate - his duty on receipt of such information

(i) The nearest Executive Magistrate empowered to hold inquests, on receipt of information from the police or any other source, may, if he thinks fit, direct the police not to hold inquest and upon such direction. police investigation should have to make way for magisterial inquiry. D.M. or S.D.M. has power to issue general or special order in this regard vide Sec. 174 (i) Cr.P.C. He should note

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down the time and date of the receipt of the information and also source of such information.

(ii) Where the magisterial inquiry is mandatory, the nearest Executive Magistrate must and where the magisterial inquiry is optional, the competent Executive Magistrate may proceed as promptly as possible to the spot where the dead body is lying. Inquest is to be held on the spot.

(iii) The Magistrate shall, wherever practicable, inform the relatives of the deceased, whose names and addresses are known and allow them to remain present at the inquiry. The expression "relatives"' in this context, means parents, children, brothers, sisters and spouse.

(iv) He shall carefully examine the dead body and its surroundings. It is desirable to do so in presence of two or more respectable inhabitants of the neighbourhood.

(v) He should note down all relevant features, which include, among other things, number, position and direction of wounds, fractures, bruises and other marks of injury that may be found on the body, signs of inflammatory reaction (swelling etc.) and signs of struggle, if any.

(vi) Before he commences examination of the dead body, he should take steps for identification of the deceased by at least two persons who have known him from before his death. Marks of identification, if any, should be noted. Photograph of the deceased ought to be taken.

(vii) He should examine the persons who are supposed to be acquainted with the facts and circumstances of the case and record their evidence. He has power to administer oath vide Sec.3 of the oaths Act 44 of 1969, read with Section 176 (2) Cr.P.C.

(viii) Evidence of each witness should be recorded separately in the form of a narrative. The proper way is to take down evidence in the first person exactly as spoken by the witness. He may, in his discretion, write any portion of the evidence in the form of question and answer.

(ix) If eyewitnesses are available, they should be called and examined, It is, however, not necessary that all of them must be examined.

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(x) If eye witnesses are not available, the Magistrate may examine other persons who may and look for such circumstances as are likely to throw light over the cause of death.

(xi) In case of death in police custody, the general diary, connected case Diary, Lock up Register and all other relevant records and documents should be inspected. The sentry on duty during the relevant period and the co-prisoners, if any, should be examined.

(xii) He should draw up the report giving his finding as to the cause of death and if necessary, send copies to the DM or the SDM, as the case may be.

16. In conducting the inquiry, the Magistrate shall have all the powers which he would have in holding an enquiry into an offence which includes, among her things, to issue processes, to compel appearance of witness and production of things.

17. Powers of the Magistrate competent to hold inquest

(i) He may Issue processes.

(ii) He may compel appearance of witnesses and production of things.

(iii) He may administer oath to witnesses.

(iv) He may record evidence in the form of statements of witnesses.

(v) He may record confessions, even though not empowered u/s 164 Cr.P.C.

(vi) He may order the dead body to be disinterred and examined.

Notes:

(a) The proceeding conducted by an Executive Magistrate u/s 176 Cr.P.C is an inquiry within the meaning of Sec. 2(g) Cr.P.C.

(b) Such a proceeding also answers the description of judicial proceeding "as defined in Sec.2 (i) Cr.P.C."

(c) The Executive Magistrate holding an inquest u/s 176 Cr.P.C does not appear to be functioning as Court. The judicial decisions on this point are, however, conflicting.

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(d) An Executive Magistrate holding an inquest is a public servant and as such, contempt of his lawful authority is punishable under the appropriate section of Chapter X of the Indian Penal Code.

18. District Magistrate cannot interfere in an inquiry u/s 176 Cr.P.C made by the SDM or any other competent Executive Magistrate.

19. A Magistrate holding an inquest u/s 176 Cr.P.C. and not empowered to record confession u/s 164 Cr.P.C can record confession from any person who knows about the cause of death. Such a confession is not governed by Sec. 164 Cr.P.C.

Ref: AIR 1953 Madras 138 (741), AR 1964 AP 548.

20. An inquiry u/s 176 Cr.P.C into the cause of the death is not necessary when there is no corpse on which an inquest can be held. Failure of the Magistrate to hold inquiry u/s 176 Cr.P.C, when there was no corpse, is an irregularity curable u/s 465 Cr.P.C vide AlR 1945 Nagpur 143.

21. Inquest by Magistrate not empowered to hold inquest is curable u/s 460(c) if done erroneously in good faith. His proceedings are not liable to be set aside on that ground.

22. Magistrate holding inquest u/s 176 Cr.P.C - whether a Court

There is divergence of judicial opinion on this point:

a) According to one School, a Magistrate holding an inquiry u/s 176CrPC acts purely in an executive capacity and he cannot be regarded a court within the usual acceptation of the term.

Ref: AIR 1968 Punjab 141 (146), 1972 CrLJ (HP AIR 1958 Punjab 430.

b) A contrary opinion was expressed in re-Laxminarayan Timmanna Kaki (AIR 1928 Bombay 390 and also in Advocate General V., AIR 1940 Rangoon 68).

Note:The former view as indicated in clause a) above, appears to be correct. There is nothing in Sec. 176 Cr.P.C which enjoins that the Magistrate making an inquiry should make a report or arrive at any finding. He, therefore, does not function as Court. A tribunal is

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a court. if only it has power to give a decision or a definitive Judgement AIR 1956 S.C.66).

23. Inquest - Object of

(a) The object is merely to ascertain whether a person has died under suspicious circumstances or has suffered an unnatural death and if so, what is the apparent cause of death, namely, whether the death is homicidal, suicidal or accidental.

(b) The Inquest Report should describe such wounds, fractures, bruises and other marks of injury as may be found on the body and state, in what manner and by what weapon or instrument (if any) such marks appear to have been inflicted.

(c) The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted was foreign to the scope of Inquest Proceedings. Hence, it is necessary neither for the Police nor for the Magistrate to mention these details in the Inquest Report (Podda Narayan and others vs.State of A P. reported in AIR 1975 SC 1252).

(d) By and large, Inquest has four major components:(i) Information (ii) Investigation/Inquiry (iii) Report (iv) Disposal of dead body.

24. Inquest Report - its nature and admissibility

(a) Inquest Report is a document of vital importance, as it gives an earlier version of occurrence and has to be prepared early (Om Prakash 1979 CrLJ NOC) 141).

(b) A document like Inquest Report, consists of two parts, one of which is admissible and the other is inadmissible. That part which is based on actual observation on the spot is admissible u/s 60 Evidence Act. The other part which is based on information given or statement recorded by the Police, is inadmissible u/s 162 Cr.P.C, except for limited purpose.

vide Rameshwar Dayal and others vs. State of Uttar Pradesh reported in AIR 1978 SC 1558.

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(c) An inquest report cannot be pitted against the evidence of a Medical witness given in court (Surjan AIR 1956 SC 425).

25. Inquest Report -evidentiary value

(a) An Inquest Report is a record of what the Magistrate or the Police Officer observed and found.

(b) An Inquest Report or the statement contained in it does not constitute substantive evidence.

(c) An Inquest Report which is based on examination of the dead body can be regarded as the previous statement of the Magistrate or the Police Officer who held It. It may be used:

(i) To contradict him u/s 155/ 145 Evidence Act.(ii) To corroborate him u/s 157 Evidence Act (not when recorded by

the Police)(iii) To refresh his memory u/s 159 Evidence Act.

(d) It may be used as confession u/s 24 Evidence Act.

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INQUEST REPROT U/S 176 Cr. PCA Pro-forma containing broad guidelines

(In a case of unnatural, sudden or suspicious death within the meaning of Sec. 174(1) Cr. P.C. where inquest has been held by a competent Executive Magistrate)

1. Date, time and place when and where the Magistrate received intimation u/s 174(1) Cr. P.C. about the death.

2. The substance of the information obtained by him and from whom.

Note : You may take the assistance of the Police Officer reporting the death with a view to informing the relatives of the deceased as required u/s 176(4) Cr. P.C.

3. The place where the dead body was found.

4. Inquest :

(a) Commenced at_______________(time)___________on (date)

(b) Closed at_____________________(time)___________on (date)

5. Dead body identified by (their names and essential particulars)- Relatives may identify. If relatives are not available, those who had known the deceased may identify.

6. Marks of identification, if any, such as moles, scars. etc.

7. Name, parentage, sex, age, caste and residence of the deceased.

8. Relatives, if any, present, at the Inquest (their names, addresses and relationship with the deceased).

9. Names and other necessary particulars of two local and respectable witnesses in whose presence the Inquest was

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held (for Magisterial inquest, presence of witnesses to the Inquest is not compulsory, though may be desirable).

10. Description of the corpse (after close observation, of all parts of the body in good light, generally under sun light during day time). Cavities such as those pertaining to Nose, Ear, Mouth, Vagina etc. should be closely examined.

Note down all relevant features, which include, among other things, the following :-

(a) Position and attitude of the body.

(b) Number, position, length, breadth and direction of wound (s) (not depth).

(c) Nature of wounds - incised, lacerated, bruises, fractures (so far they are visible on external examination and could be ascertained by a non-medical magistrate).

(d) Signs of ligature marks, if any.

(e) Signs of inflammatory reaction (swelling etc.) if any.

(f) Expression of countenance.

(g) Position of limbs, eyes and mouth.

(h) Presence of blood (liquid or clotted), saliva, froth, vomit, semen, swab, etc. if any.

(i) Condition of clothes/ornaments.

11. Is the body well nourished and vigourous or emancipated and weak?

12. Viewing of the surroundings in their totality with the dead body lying therein.

Note down the following among other things

(a) Marks of violence or struggle.

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(b) Articles such as rope, weapon, ammunition, instrument, phial, used cartridge, chemicals.

(c) Suicide note, if any.

(d) Foreign matters such as- weeds, straws etc. in the hair or clenched in the hands of the deceased or attached to part of the body.

(e) Are there circumstances available on the scene to show that the deceased killed himself.

(f) Do you notice anything in the surroundings to suspect foul play.

13. Number and Names of the witnesses examined by the Magistrate and substance and weight of their Evidence.

NOTES :

(i) The witnesses referred to in clause (13) above should be persons who appear to be acquainted with the facts and circumstances of the case, in other words, who may be in a position to throw light over the cause of death.

(ii) The statements of the witnesses should be recorded separately.

14. Opinion of the Magistrate as to cause of death as could be ascertained by him, based on his inspection of the scene, close examination of the dead body and evidence adduced in the witnesses.

15. Whenever there are wounds, fractures, bruises and other marks of injury as may be found on the body, the Magistrate should state in what manner or by what weapon or instrument, if any, such injuries/marks appear to have been caused.

16. Sketch plan of the place where the dead body is found and photograph taken, if any.

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17. Has the Magistrate held the inquest in addition to or in lieu of Police investigation (Inquest) U/S 174/175 Cr. P.C.

18. Upon a consideration of the totality of the material including the examination of the dead body, inspection of the scene and testimony of the witnesses are there grounds for suspecting foul play.

19. It is a case where the person died in police custody or coming within clause (I) or clause (ii) of Sub-Section 3 of Section 174 Cr. P.C. where Inquest by an Executive Magistrate is mandatory?

20. Actions proposed to be taken, if any, in pursuance of the magisterial inquest (particularly if foul play is suspected or a crime appears to have been committed).

21. Powers of the Executive Magistrate competent to hold inquest

(i) He may issue process.

(ii) he may compel appearance of witnesses and production of things.

(iii) He may administer oath to witnesses.

(iv) He may record evidence in the form of statements of witnesses.

(v) He may record confession, even though not empowered u/s 164 Cr. P.C.

(vi) He may order the dead body to be disinterred and examined.

(vii) DM or SDM may by general or special order, direct the Police not to hold inquest.

Notes :

(a) The proceeding conducted by an Executive Magistrate u/s 176 Cr. PC is an inquiry within the meaning of Sec. 2 (g) Cr. P.C.

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(b) Such a proceeding also answers the description of judicial proceeding "as defined in Sec. 2 (I) Cr. P.C”.

(c) The Executive Magistrate holding an inquest u/s 176 Cr. P.C. does not appear to be functioning as Court. The judicial decisions on this point are, however, conflicting.

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INQUEST - SKILL ORIENTED TASK EXERCISE

Q.No. 1 (a) Is there any legal obligation on the part of a person residing in a village to give information to nearest Magistrate or to the Officer-in-charge of the nearest Police Station regarding the following matters?

(i) Sudden or unnatural or suspicious deaths

(ii) Discovery of a corpse or part hereof.

(B) If so, under which section of Law?

Q.No. 2 `x' , a villager intentionally omits to give such information to the prescribed authority (Magistrate or Police Officer). Is he liable to be prosecuted? If so, under which section of law?

Q. No. 3(a) Has such a legal duty to give information been also cast upon a member of the Panchayat of the village and the headman of the village?

(b) If so, quote the relevant section of law?

Q.No. 4 The Officer-in-charge of a Police Station has received information about the suspicious death of a bride one year after her marriage within his territorial jurisdiction but has not given intimation thereof to the nearest Executive Magistrate empowered to hold inquest.

(a) Is he liable to be prosecuted under the law of the land?

(b) If so, under which section of Law.

(c) Can he also be proceeded against in departmental disciplinary proceeding?

Q.No. 5(a) Is an Executive Magistrate competent to hold inquest authorised to administer oath to a witness while holding inquest U/s 176 Cr. P.C.?

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(b) If so, quote the relevant sections of law Q.No. 6. An Executive Magistrate, not empowered to hold

inquest, held erroneously but in good faith, an inquest in a particular case.

(a) Should his proceedings be set aside?Yes/No

(b) Is that defect curable?Yes/No

(c) Quote the section in support of your answer.

Q.No. 7 What is the object of an inquest?

Q.No. 8 Under which Section of the Evidence Act, an Inquest Report made by an Executive Magistrate may be used?

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PROCEDURE RELATING TO CRIMINAL TRIALS

I. Trial - what it means

a) It has no fixed or universal meaning.

b) It generally means determination of issues arising in a particular case.

c) Roughly speaking, a criminal trial is a judicial proceeding, with the judge or the magistrate on the Bench, the accused in the dock and the representatives for the prosecution and the defence (if the accused is represented by a lawyer) present, to determine the guilt or innocence of the accused.

d) A criminal trial, in which a charge has been framed ends either in acquittal or in conviction. In the trial of a summons case, although no formal charge is required to be framed, the ultimate result is either acquittal or conviction.

II. Trials - different kinds of

Broadly speaking, the Cr.P.C. lays down the procedures for four kinds of trial, namely,

1) Trial before a court of sessions - Chapter XVIII.

2) Trial of warrant cases by Magistrate - Chapter XIX.

3) Trial of summons cases by Magistrate - Chapter XX.

4) Summary Trials by competent Magistrate - Chapter XXI.

III. Trial before a court of sessions - the broad outlines.

1) Appearance or production of the accused.

2) Opening of the case by the Public Prosecutor.

3) Consideration of the record of the case and other relevant material and hearing of the prosecution and the accused to find out whether there is sufficient ground for proceeding against the accused.

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4) No sufficient ground for proceeding - the accused should be discharged.

5) Existence of prima facie case against the accused - charge should be framed.

6) If the offence involved in the charge is not exclusively triable by a court of sessions, the case should be transferred to the Chief Judicial Magistrate for trial.

7) If the offence involved in the charge is exclusively triable by a court of sessions, the charge to be read over and explained to the accused and his plea to betaken.

8) If the accused pleads guilty, he may be convicted.

9) Otherwise, the Judge will fix a date for production of evidence by the prosecution.

10) Examination of the prosecution witnesses including their cross-examination by the defence.

11) When the prosecution evidence is closed, the accused should be examined u/s 313 Cr.P.C.

12) If the Judge finds that there is no evidence that the accused committed the offence, he shall acquit the accused (Sec. 232 Cr. P.C.).

13) If the accused is not acquitted u/s 232 Cr. P.C., he shall be called upon to enter his defence and to adduce evidence.

14) Recording of the evidence for the defence.

15) Hearing of arguments of both sides.

16) If accused is found not guilty, he shall be acquitted.

17) If found guilty, the accused shall be heard on the point of sentence.

18) Thereafter, the accused convicted shall be sentenced.

19) The accused, after he has been found guilty may be dealt with under the law relating to probation, namely, sec. 360 Cr. P.C. or

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Probation of Offenders Act, 1958, provided that the offence is one falling within the purview of such law.

20) If the Judge proceeds to extend the benefit of probation then the accused need not be heard on the point of punishment.

IV. Trial of Warrant Cases by Magistrate

Two separate procedures have been prescribed for the trial of warrant cases by Magistrate : (a) one procedure for cases instituted on police report and the (b) the other procedure for cases instituted otherwise than on police report. The difference in procedure is upto the close of prosecution evidence. Thereafter, the procedures are identical in both kinds of warrant cases.

V. Outline of the procedure prescribed for trial of warrant cases by Magistrate in cases instituted on police report :

1) Appearance or production of the accused.

2) Duty of the Magistrate to ensure compliance with the provisions of Sec. 207 Cr. P.C. viz., supply of copies to the accused.

3) Consideration of the police report and the documents, examination of the accused (if any) and hearing of arguments of both sides on the point whether or not charge should be framed.

4) Framing of charge if there is a prima facie case against the accused and if the Magistrate is competent to try it.

5) Discharge of the accused if the accusation appears to be groundless.

6) Reading and explaining the charge to the accused and taking his plea.

7) If the accused pleads guilty, he may be convicted.

8) If the accused pleads not guilty or claims to be tried, the Magistrate shall fix a date for examination of witnesses for the prosecution.

9) Issue of summons to the witness for the prosecution upon the application of the prosecution.

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10) Recording of evidence for the prosecution, including the examination in-chief of the witnesses by the prosecution and their cross-examination by the defence.

11) Examination of the accused u/s 313 Cr P.C. after the evidence for the prosecution has been closed.

12) Calling upon the accused to enter upon his defence and to produce evidence.

13) The accused may file written statement.

14) Issue of summons to the witnesses for the defence, if applied for by the accused.

15) Examination-in-chief of the defence witnesses followed by their cross-examination by the prosecution.

16) Hearing of arguments of both sides, the accused may put in written arguments also.

17) If the accused is found not guilty, he shall be acquitted

18) If the accused is found guilty, he shall be heard on the question of sentence.

19) The Magistrate shall then pass the sentence.

20) The Magistrate may, instead of sentencing, the accused then and there, deal with him u/s 360 Cr.P.C. or under Probation of Offenders Act, 1958, as the case may be, and in that event, it is not necessary for him to hear the accused on the point of sentence.

VI. Main points of distinction in respect of the procedures between the trials of warrant and summons cases :

WARRANT SUMMONS1)The procedure is laid down in

Chapter XIX Cr P.C.The procedure is dealt with under Chapter XX Cr. P.C.

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WARRANT SUMMONS2)If the case involves one or more

offences punishable with imprisonment for life or imprisonment for more than two years and triable by a Magistrate then this procedure is to be adopted.

If the case involves one or more offences punishable with imprisonment upto two years and no offence punishable with imprisonment for more than two years, then this procedure should be followed.

3)Two separate procedures are prescribed, one for cases instituted on police report and the other for cases instituted otherwise than on police report.

There is no such division. The procedure is the same for cases instituted on police report or otherwise.

4) It is necessary to frame a formal charge.

No formal charge is required to be framed.

5)Consideration of the materials to find out whether or not there is a prima facie case to frame a charge is an important stage.

No such consideration is needed. The particulars of the alleged offence are to be stated to the accused.

6)The accused may be discharged if the accusation appears to be groundless vide Sec.239 Cr. P.C. and Sec.245 Cr. P.C.

There is no scope for discharge. The accused may, however, be acquitted.

7)In a case instituted otherwise than on police report, the proceeding, which may lead to the framing of the charge, should be called inquiry. In such a case, the trial begins when the inquiry ends.

The question of holding inquiry does not arise.

8)Examination of the accused u/s 313(1)(b) is obligatory.

Such examination may not be conducted when the court has dispensed with the personal attendance of the accused.

9)Evidence of each witness has to be taken down in full in the manner laid in and Sec 275, 277-280 Cr.P.C.

A memorandum of the substance of evidence of each witness has to be made as per Sec. 274 Cr.P.C.

10)If the accused is found guilty, he has to be heard on the point of sentence before punishment vide Sec. 248 Cr.P.C.

There is no such requirement.

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WARRANT SUMMONS11)No provision for stoppage of

proceedings exists.In certain cases, a competent Judicial Magistrate has power to stop proceedings vide Sec. 258 Cr.P.C.

12)The accused can be convicted of the offence charged or of any other offence under circumstances specified in Sec. 221 or Sec. 221 Cr P.C., but not otherwise.

The accused may be convicted of a different offence triable as a summons case, which is admitted or proved, even though it was not mentioned in the complaint or in the summons provided the accused is not prejudiced thereby vide Sec. 255 Cr. P.C.

13)If the complainant is absent, the accused may be

discharged if no charge has been framed and if the offence is compoundable and non cognizable vide Sec. 249 Cr.P.C..

If the complainant is absent, the Magistrate may either adjourn the case or acquit the accused or dispense with the attendance of the complainant vide Sec. 256 Cr.P.C.

14)The withdrawal from the prosecution may be permitted u/s 321 Cr P.C. upon the application of the APP in charge of the case. The result of such withdrawal is acquittal of the accused, where charge has been framed and discharge of the accused, before framing of the charge.

The Magistrate may permit the complainant to withdraw the complaint u/s 257 Cr.P.C. and in such event, the accused shall stand acquitted.

15)A warrant case can not be tried as summons case.

A summons case may be converted into a warrant case under the circumstances indicated in Sec. 259 Cr.P.C.

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STAGES OF SECURITY PROCEEDINGS UNDERCHAPTER VIII CR.P.C. FOR KEEPING THE PEACE

AND FOR GOOD BEHAVIOUR

1. Passing of a preliminary order (Section 111 Cr.P.C.

It should be in writing. It ought to contain:-

(a) Substance of the information received.

(b) The amount of bond to be executed.

(c) The term for which it is to be in force.

(d) The number, character and class of sureties (if any), required.

2. If the OP is present in court, the preliminary order is to be read over to him (Sec. 112).It may, if desired, by the OP, be explained to him.

3. If the OP is in custody, issue production warrant addressed to the officer-in-charge of the Prison.

4. In other cases, issue summons to the OP.A copy of the preliminary order should accompany the summons. This is the normal procedure for securing the attendance of the OP.

5. (a)Warrant of arrest may be issued against the OP, when breach of peace is apprehended which cannot be prevented otherwise than by immediate arrest of the OP (the proviso to Section 113) copy of the preliminary order should be attached to the WA.

(b) It may also be legitimate to issue a warrant u/s 87(b) Cr.P.C. when the OP does not turn up in response to the summons (vide Gopi Vs. State reported in 1974 Cr. L.J. 1410).

6. Appearance/production of the OP in court.

7. OP ought to be given opportunity of showing cause. The OP may like to file written objection.

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8. Inquiry - recording of evidence - procedure for trial of summons case to be followed.

9. Interim Bond may be asked for after the commencement of the Inquiry and before the completion of the Inquiry. (Section 116(3).

10. Completion of the inquiry within six months.

11. Termination of the proceeding on lapse of six months, unless the Magistrate, for special reasons, extends the time. Such extension, if any, has to be made within six months.

12. Extension, if granted by the Magistrate, is liable to be scrutinized by the Sessions Judge.

13. Order for furnishing security - when it is proved that it is necessary to take security (Section 117).

14. Not proved, the OP is to be discharged (Section 118).

15. Refusal or rejection of surety by the Magistrate if the surety is found unfit.

16. Imprisonment in default of security (Section 122).

17. When the bond is for more than one year, the case to be reported to the Sessions Judge for his orders. In the meantime, the OP may be detained pending decision of the Sessions Judge.

18. Breach of bonds -

(a) A bond for good behaviour - when the OP, after execution of the bond, but during the term of the bond, commits or attempts to commit or abets in the commission of an offence punishable with imprisonment.

(b) A bond for keeping peace.

A bond for keeping the peace is broken when the OP does some act, during the term of the bond, which is likely in its consequence to provoke a breach of the peace.

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19. Consequences of breach of bond

(a)It is the forfeiture of the bond u/s 446 Cr.P.C. The person bound by the bond shall be called upon to pay the penalty specified in the bond or to show why it should not be paid. If cause shown is not considered sufficient and the penalty is not paid, it may be recovered by issuing a distress warrant u/s 421 Cr.P.C. Where the penalty is not paid and can not be recovered u/s 421 Cr.P.C., the surety may be imprisoned in Civil Jail for a period not exceeding six months.

(b)Without prejudice to the forfeiture indicated in clause (a) above, in case of breach of bond for keeping peace without surety, the person bound by the bond may be arrested and detained in prison until the expiry of the period of the bond.

Such detention can not, however, be ordered in case of bond for keeping peace with surety or bond for good behaviour with or without surety.

20. Power to release persons imprisoned for failure to give security.

District Magistrate, and Chief Judicial Magistrate may release, the former when imprisonment has been ordered by an Executive Magistrate and the latter in any other case.

21. Power to reduce the amount of security, number of sureties or the time for which security has been taken when the persons have been imprisoned for failure to give security is vested in the following authorities:-

(a) High Court.

(b) Court of Sessions.

(c)District Magistrate - in case of order passed by an Executive Magistrate.

(d)Chief Judicial Magistrate in case of orders of passed by Judicial Magistrates.

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Public Nuisances - Powers of the Executive Magistrates

to deal with them under the Code of Criminal Procedure.

1. Public nuisance - what it is?

(a) The expression "Public Nuisance" consists of two words, namely (i) Nuisance and (ii) Public.

(b) The term "Nuisance" can not be exactly and precisely defined.

(c) The dictionary meaning of "Nuisance" is as follows:

"It means anything injurious or obnoxious to the community or the individual as member of it, for which some legal remedy may be found."

(d) "Nuisance" may be classified under two heads, namely, (i) Public Nuisance and (ii) Private Nuisance.

(e) Public Nuisance affects the public or any class of it, while Private Nuisance affects particular individual or individuals as distinguished from the Public at large.

(f) "Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property or in exercise of a common right. (Pollock quoted with approval in Annapurna Food Products vs. Commissioner, Gauhati Municipal Corporation (1985) 2 Gauhati LR 200).

(g) "Public Nuisance" is essentially a crime. It has been defined in Sec. 268 IPC. It is either an act or an illegal omission:

(i) which causes any common injury or danger or annoyance to (a) Public or b) to the people in general who dwell or occupy property in vicinity.

(ii) which necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

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2. Remedies in case of Public Nuisance

(a) The person committing public nuisance may be prosecuted and punished under the relevant provisions of the Indian Penal Code. (Chapter XIV IPC).

(b) A suit may be instituted against the wrongdoer under Section 91 of the Civil Procedure Code, for declaration, injunction and other reliefs.

(c) A private party, who has suffered special damage by reason of the nuisance, may also file a suit for damages. A representative suit is also maintainable under order 1, Rule 8 CPC, at the instance of a number of persons suffering special damage.

(d) Redressal of Public Nuisances in exercise of the preventive jurisdiction of the competent Executive Magistrates under Sections 133 to 143 of the Code of Criminal Procedure.

Note: The remedy referred to in clause (d} of the paragraph 2 is the subject matter of this paper.

(e)Actions under the Special or Local Law, such as Municipal Act, Water (Prevention and Control of Pollution) Act, 1974.

3. Magistrates competent to deal with Public Nuisance under the Cr.PC.

(a) District Magistrate, or

(b) a Sub-Divisional Magistrate, or

(c) any other Executive Magistrate specially empowered by the State Government in this behalf.

4. Scheme of Chapter X Cr. P.C.

In order to appreciate the scope of the powers of the competent Executive Magistrates to deal with Public Nuisances, it is necessary to understand the scheme envisaged in the Chapter X of the Cr. PC.

The theme of Chapter X Cr.P.C. is "Maintenance of Public Order and Tranquillity".

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Public Order and Tranquillity may be disturbed due to a variety of factors. An Unlawful Assembly may turn out to be violent. A Public Nuisance may cause disturbance of Public Order. A dispute relating to immovable property may lead to breach of peace.

Hence, the provisions of Chapter X are intended to confer powers upon the Executive Authorities to enable them to maintain Public Order and Tranquillity.

An indication is given below:

Chater X

Maintenance of Public Order and Tranquillity

(A) Unlawful Assembly Sections 129 to 132 Cr.P.C= 4 Sections.

(B) Public Nuisances Section 133 to 143 = 11 Sections.

(C) Urgent cases of nuisance or apprehended danger Section 144 Cr.P.C. = 1 Section.

(D) Disputes as to immovable propertySec. 145 to 148 Cr.P.C. = 4 Sections.

Number of Sections:

A = 4B = 11CD = 4

20 Sections

Note:

(a) Generally speaking Sec. 133 to. Section 143 Cr.P.C provide a speedy and summary remedy in case of urgency involving public interest.

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(b) Sec. 133 Cr.P.C does not, however, always require danger to general public. For Sec. 133 (i) (d) it is enough if an individual is wronged.

5. Procedure- a broad outline

(a) Competent Executive Magistrate vide Para (3).

(b) Police report or other information laid before him.

(c) Application of mind by the Magistrate.

(d) He may take evidence, if he considers it necessary at that stage.

(e) He should prima facie satisfy himself as to the existence of any of the six situations as laid down in Sec. 133(1) Cr.P.C and as to the need for taking any of the actions contemplated therein, such as removal of obstruction, fencing of a tank, destruction of a dangerous animal etc. etc.

(f) If he is so satisfied, he makes a conditional order u/s 133 (1) Cr.P.C. calling upon the alleged wrongdoer to perform the act directed by a specified date or if he objects to appear before the Magistrate and to show cause why the order should not be made absolute vide form No. 20, Sch. II, Cr.P.C.

(g) Personal Service of the conditional order upon the opposite party.

(h) If such service not possible, then lt may be notified by Proclamation.

(i) If the opposite party neither performs the act directed nor appears and shows cause, the conditional order shall be made absolute u/s 136 Cr.P.C.

(j) If the opposite party appears, the Magistrate should question him as to whether he denies the existence of any public right. This is necessary only when a public right is involved, say, for instance, in cases covered by 133 (i) (a).

(k) If he denies, an enquiry has to be held u/s 137 Cr.P.C.

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(l) At such inquiry, if reliable evidence is produced by the opposite party in support of the denial, the Magistrate shall stay the proceeding.

(m) In such event, the question as to the existence or non-existence of Public Right, should be decided by a Civil Court of competent jurisdiction.

(n) If the opposite party appears and shows cause but does not deny the existence of public right or having denied, fails to produce reliable evidence in support of such denial, the Magistrate shall proceed to hold an inquiry u/s 138 Cr.P.C.

(o) If the case does not involve any question of public right, Section 137 Cr.P.C is not attracted. If the opposite party shows cause, the Magistrate shall, in such a case. proceed to hold an inquiry u/s 138 Cr.P.C.

(p) At the Inquiry u/s 138 Cr.P.C, the Magistrate shall take evidence of both sides, if tendered by them, as if it is a summons case.

(q) The Magistrate has powers:

(i) to direct local investigation

(ii) to examine an expert

for the purposes of inquiry u/s 137 or u/s 138 Cr.P.C.

(r) At the conclusion of the inquiry u/s 138CrPC, if the Magistrate is satisfied that the conditional order is reasonable and proper, he shall confirm it u/s 138 Cr.P.C. He may, if he thinks necessary, modify the conditional order and thereafter make it absolute.

(s) If the Magistrate is not so satisfied, he shall drop the proceeding.

(t) The Magistrate, after having confirmed the conditional order, either in original or modified form shall issue notice to the opposite party asking him to perform the act directed on pain of penalty u/s 188 IPC. vide Form No.2 1, Sch.II Cr.P.C.

(u) If the act is not performed by the date fixed, the Magistrate shall get it done and recover the costs from the person bound by the order.(Enforcement of the order and recovery of costs of execution.)

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(v) Such recovery may be made either by sale, distress and sale and attachment and sale, as the case may be.

6. Power to issue injunction (Sec. 142 Cr.P.C)

After the conditional order and during the pendency of the enquiry, when there is imminent danger or injury of serious kind to the public.

Note: Form to be used is prescribed by Form No.22. Sch.II Cr.P.C.

7. Power to Prohibit repetition or continuance of public nuisance

This is intended to prevent repetition or continuance of public nuisance by the party against whom an order u/s 133 Cr.P.C. has already been passed.

Punishment u/s Sec. 291 IPC

Form23, Sch.II Cr.P.C.

Note: This section does not apply to original Proceedings.

8. Enquiries that may be conducted by the competent Executive Magistrates are of two kinds, namely:

(i) One u/s 137 Cr.P.C on the point of existence of Public Right if it is denied. It is for the party denying such right to produce reliable evidence in support of denial.

(ii) The other u/s 138 Cr.P.C to find out whether the conditional order already passed u/s 133 should be made absolute. The conditional order, if found reasonable and proper ought to be made absolute either in the original form or after such modification as may be warranted by the results of the inquiry.

9. Powers exercised by the competent Executive Magistrates u/s 133 to 141 Cr.P.C are judicial and hence, the Govt. cannot interfere. Revision may lie to the High Court, or the Court of Sessions against orders passed thereunder, unless they are Interlocutory in nature within the meaning of Sec. 397 (2) Cr.P.C.

10. Examples from decided case

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I. A paper mill was engaged in the manufacture of papers, based on 100 per cent waste papers and addition of chemicals. Untreated effluents were discharged from the Mill, which were found to be injurious to the life of human beings and cattle.

A petition u/s 133 Cr.P.C was filed before the SDM, who passed a conditional order and later on, made it absolute u/s 136CrPC authorising the Revenue Officer to close the carrying of the trade of production in the Paper Mill.

That order u/s 136 Cr.PC was challenged before the High Court. The decisions arrived at by the High Court may be outlined below:

(a) Water Prevention and Control of Pollutions Act, 1974, has not taken away the powers of the SDM u/s 133 Cr.PC.

(b) The SDM had power to pass orders u/s 136 Cr.PC for closure of the Mill, which was causing pollution, vide 1987 CrLJ 2071.

II. 'X' and 'C' were running a workshop adjacent to the house of 'A'. It was alleged by 'A' in a petition u/s 133 Cr.PC that repairs of auto-rickshaws were carried on and welding operations were conducted for the purpose, resulting in air and noise pollution. It was held that in such circumstances. which among other things involved discharge of carbon monoxide, the petition u/s 133 Cr.PC was maintainable (vide 1989 CrLJ 499).

III. It was a residential colony. Some people carried on fodder business on open pieces of land comprised in that colony. Fodder used to be brought daily during night and unloaded near residential houses in the morning. The fodder was cut

during the day by electric-operated machines. It created intolerable noise and substantially disturbed the physical comfort of the residents.

A petition u/s 133 Cr.PC was filed before the Magistrate. He passed a conditional order and thereafter, after holding due enquiry, made the order absolute us 138 Cr.PC. The opposite parties were directed by the Magistrate to desist from cutting and selling cut fodder at the places in question and to remove the fodder within ten days.

That order of the Magistrate was challenged by the opposite parties but it was upheld by the High Court vide 1988 CrLJ 614.

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IV. 'A' erected a platform on a public road, which caused obstruction to the people using that road.

It is a public nuisance even though no practical inconvenience results from such obstruction.

It is a fit case where Section 133 may be invoked.

V. There was a bone-mill. Large stock of bones remained uncovered in open air for a long time. The bones got rotten and started emitting a smell noxious to the neighbouring people.

It constituted a public nuisance, for which remedy us 133CrPC is available.

VI. There was a factory in a populated locality. It produced considerable noises which were injurious to the physical comfort of the community.

Sec. 133 Cr.PC was applicable, the noise being public nuisance.

VII. There were open drains in a municipal area, which contained heaps of dirt and also human excretions, giving rise to a foul smell.

The municipality was liable to be proceeded against u/s 133 Cr.PC and might be called upon to take affirmative action on a time-bound basis for abatement of such public nuisance (Ratlam Municipality vs. Vardicharan AiR 1980 SC 1622).

VIII. A building was in a very dangerous condition and likely to fall down.

The owner-landlord of the building filed a petition before the S.D.M. Under Section 133 Cr.P.C. A conditional order was passed, calling upon the tenant-occupants of the building to pull down the entire building.

One of the occupant appeared and objected on the ground that the owner- landlord was trying to evict him and that it could be done only in accordance with the prevalent Rent Control Law.

The contention was rejected by the High Court. It was held that the jurisdiction of the Magistrate u/s 133 Cr. P.C. was not ousted by the Rent Control Act (vide 1988 Cr. L.J 66).

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IX. A report was laid before the Executive Magistrate, Bangalore by the Police that two coconut trees on a public road were causing unlawful obstruction and constituted a public nuisance.

The Magistrate directed the opposite party to cut off and remove the standing coconut trees within seven days failing which to suffer penalty u/s 188 I.P.C.

This order of the Magistrate was challenged before the High Court.

The High Court set aside the order, holding inter alia, that the learned Magistrate made a sort of hybrid order, combining the conditional order u/s 133 with the Final Order as contemplated to be made u/s 136 Cr. P.C. He ought to have made a conditional order in the first instance. It was only when such person did not perform such act or failed to appear and show cause, the order shall be made absolute. A person causing obstruction must be given an opportunity of being heard before he is made liable to the penalty prescribed by Section 188 I.P.C.

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URGENT CASES OF NUISANCE OR APPREHENDED DANGER- SECTION 144 Cr. P.C.

Section 144 Cr. P.C. confers powers upon certain Executive Magistrates to issue temporary orders in urgent cases of nuisance or apprehended danger, when immediate prevention or speedy remedy is desirable.

2. Which Magistrates are competent to act u/s 144 Cr.P.C.?

(a) District Magistrate.

(b) Sub-Divisional Magistrate.

(c) Any other Executive Magistrate specially empowered by the State Government in this behalf.

3. Commissioner of Police in Metropolitan areas may issue orders u/s 144 Cr. P.C.

Sec. 20(5) Cr. P.C. lays down as follows :

Nothing in this Section shall preclude the State Government from conferring on the Commissioner of Police any or all of the powers of an Executive Magistrate in relation to a Metropolitan area.

Hence, Commissioner of Police may be vested with the powers of an Executive Magistrate.

4. Order u/s 144 Cr. P.C. - the essentials

(i) Order must be in writing.

(ii) It must be definite and specific

(iii) It must set out the material facts.

(iv) It must show application of mind and satisfaction as to the existence of sufficient ground.

(v) Emergency - the order should indicate that an emergent situation has arisen.

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5. The object of an order u/s 144 Cr. P.C. is to prevent any of the following

(a) Obstructions annoyance or injury to any person lawfully employed.

(b) Danger to Human life, health or safety.

(c) Disturbance of public tranquillity.

(d) Riot or affray.

6. Can an order u/s 144 Cr. P.C. be passed ex-parte?

Yes, either in cases of emergency or in cases where circumstances do not permit service of timely notice upon the person against whom the order is directed.

7. Nature of the order u/s 144 Cr. P.C.

(a) Generally, it is prohibitory

(b) In appropriate cases, it may be mandatory, say, for instance, Magistrate may enjoin the opposite party to direct removal of an obstruction when it is needed to prevent a breach of peace. (Madhu Limaye's case- Supreme Court).

8. A prohibitory order u/s 144 Cr. P.C. must specify:

(i) the thing which is prohibited.

(ii) the persons who are prohibited.

(iii) the place covered by the order.

(iv) period of time.

9. A few examples of the kinds of orders that may be passed by a competent Executive Magistrates u/s 144 Cr. P.C.

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(a) To prohibit an assembly, a meeting, or procession for prevention of breach of peace, but not for interfering with the lawful exercise of legal rights.

(b) To prohibit carrying of arms or weapons.

(c) To prohibit a person from entering into a particular area.

(d) To prohibit using of loudspeakers.

(e) To prohibit people from coming out of their houses on the public road/street/lane (curfew).

(f) To prohibit raising of provocative slogans which are likely to cause breach of peace.

(This list is illustrative and not exhaustive)

10. Violation of an order u/s 144 Cr. P.C.

It is punishable u/s 188 IPC. It is a cognizable offence.

11. Order u/s 144 Cr. P.C. - Character of

Is it-(a) Judicial?

. No

(b)Quasi-Judicial?

. No

(c) Executive?

. Yes

Gulam AbbasvsState of U.P.AIR 1981 SC 2198

12. Curfew- what it is

(a) C O U V R E F E U (French)

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To cover the fire.

(c) Dictionary Meaning

the ringing of a bell as a signal to put out all fires and lights.

to prevent nightly gathering of the people of England.

(c) Legal notion

An order u/s 144 Cr. P.C. promulgated by a competent Executive Magistrate or Commissioner of Police obliging people to be indoor.

13. Remedies against an order u/s 144 Cr. P.C.

(i) Rescission or alteration

(a) u/s 144(5) by the Magistrate who passed the order or by his successor-in-office or by a Magistrate to whom he is subordinate.

(b) u/s 144(6) by the State Government.

(ii) Revision before the High Court or Court of Sessions.

(iii) Writ petition before the High Court or the Supreme Court.

(iv) A Civil suit.

Note : The term "Curfew" does not occur in Sec. 144 Cr. P.C. or anywhere in Cr. P.C.

14. Law and Order - D.M.

THE MAINTENCE OF LAW AND ORDER IS A FUNCTION OF THE DISTRICT MAGISTRATE.

1988 CRI L.J. 189AIR 1988 SUPREME COURT 93ISHTIAQ HUSSAIN FAROOQUI PETITIONERVs.STATE OF U.P. AND OTHERS, RESPONDENTS

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Recent Rulings bearing on Section 144 Cr. P.C.Section 144

Order - not a judicial one

15. Order passed u/s 144 Cr. P.C. is not judicial. Such order is justiciable in writ jurisdiction.

Gulam Abbas vs. StateAIR 1981 SC 2198:1981 Cr. L.J. 1835.

16. Promulgation of an order u/s 144 Cr. P.C. - an executive function.

It is an executive function. An order under Section 144 will have to be regarded as an executive order passed in performance of an executive function where no lis is adjudicated upon but merely an order for preserving public peace is made.

(i) 1990 Cr. L.J. 422 Allahabad(ii) AIR 1981 SC. 2198Case No. (ii) was relied upon case in (i)

Note :`Lis' means a controversy or dispute or a suit or action at law (Black's Dictionary)

17. Order u/s 144 Cr. P.C.- its object

Section 144 is intended to be availed of for preventing disorders, disturbances and annoyances and with a view to secure the public weal. The restraints envisaged in S. 144 are of a temporary nature and can be imposed in an emergency. Thus, action under S. 144 is anticipatory. Anticipatory restrictions are imposed upon particular kind of activities in an emergency. Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during the emergent situations.

1990 Cr. L.J. 422 Allahabd.AIR 1981 SC 21981981 Cr. L.J. 1835, referred to and followed.

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18. Basis of an order u/s 144 Cr.P.C.

"The entire basis of action under Section 144 is provided by urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyance with a view to secure public weal by maintaining public peace and tranquility. Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the executive magistrate to override temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail".

(i) AIR 1981 SC 2198= 1981 Cr. L.J. 1835(ii) referred in 1990 Cr. L.J. at page 422, Allahabad

19. Limit of Exercise of power u/s 144 Cr. P.C. and passing ex parte order.

There was no riots on the date of passing of the order. It is not permissible to ignore the requirement of service of show-cause notice before passing adverse order against a citizen by taking resort to 144(2) Cr. P.C. and passing ex parte order.

Powers under S. 144 of the code are to be used in urgent causes of nuisance or apprehended danger and this being an inroad upon the citizens, the powers must be exercised only to the extent necessary. The District Magistrate, even if right, in exercising powers, should have limited the area to the three towns in which according to orders the disturbances had taken place. It is well settled that larger the power greater the restraint demanded in exercise thereof.

1989 Cr. L.J. 1364 Bombay.

20. Order under 144 Cr. P.C. - Valid for two months only - temporary in nature

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An order under S. 144 which is unlimited in duration and permanent in effect violates sub-section (4) thereof and therefore, beyond the jurisdiction of the magistrate. Sub-section (4) limits the validity or orders made under Section 144 to two months except where the Government acts under the Proviso.

1984 Cr. L.J. 971 KeralaSee also 1973 Cr. L.J. 143 Patna.

21. Formation of an opinion by the Magistrate u/s 144 Cr. P.C.

U/s 144(1) the Magistrate himself has to form an opinion that there was sufficient ground for proceeding u/s 144 and immediate prevention or speedy remedy was desirable. The Magistrate should set out the material facts of the case. Satisfaction of the Magistrate about apprehension of breach of peace in an important factor u/s 144 Cr. P.C.

Quoted from AIR 1961 S.C. 884; 1961(2) cr. L.J. (SC)Vide- 1989 Cr. L.J. 1651 Calcutta.

22. Nature of opportunity to show cause u/s 144(1) and 144(4)

Section 144(7) requires that when an application under S. 144 (5) or (6) is made to rescind or alter the order made, an early opportunity should be afforded to the applicant of appearing in person or by a pleader and showing cause against the order. What would constitute an opportunity to show cause must differ from case to case. It would not necessarily include elaborate recording of evidence in each and every case. It has to be remembered that S. 144 deals with urgent cases of nuisance or apprehended danger and in this context it is only proper to hold that opportunity of showing cause thereunder has of necessity to be of a summary nature. It would be sufficient if the aggrieved person is reasonably allowed to support his say and his submissions are duly considered and a reasoned order u/s 144(7) is passed in case the application of the aggrieved person is rejected. S. 144(2) is passed in case the order under S. 144(1) in certain circumstances but it is subject to subsequent hearing to the aggrieved person. This implies that an order under S. 144(1) should not be passed without affording an opportunity to the person against whom it is purported to be made.

1987 Cr. L.J. 458 M.P.

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23. Order u/s 144 Cr. P.C. must be in aid of legal rights.

The exercise of the power u/s 144 Cr. P.C. must be in aid of legal rights and against those who interfere with the lawful exercise thereof.

1985 Cr. L.J. 957 Calcutta.1981 Cr. L.J. 1835 SC relied upon.

24. Regulation and not prohibition of customary rights.

The object of Sec. 144 Cr. P.C. is to preserve public peace and tranquillity. Where a community is found entitled to certain customary rights, attempt should be made to regulate those rights and not to prohibit them altogether.

AIR 1981 SC 2198AIR 1971 SC 2486

25. Power of Magistrate u/s 144-Emergency

It is possible to act absolutely and even ex parte. The emergency must be sudden and the consequences sufficiently grave. There is no general proposition that an order u/s 144, Cr. P.C. can not be passed without taking evidence.

AIR 1971 1971 SC 24861971 Cr. L.J. 1720Madhu Limaye vs. S.D.M. Monghyr.

26. Length and validity of order u/s 144 Cr.P.C.

The order u/s 144 Cr. P.C. is only temporary which can not last beyond two months from the making thereof. Question of title can not be decided at all.

AIR 1978 SC 422.

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27. Order u/s 144 Cr. P.C. - temporary in nature Repetitive orders amount to abuse of power.

The parliament never intended the life of an order under S. 144 to remain in force beyond two months when made by a Magistrate. The scheme of that section does not contemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law such as S. 107 or S. 145 of the Code when individual disputes are raised. If repetitive orders are made it would clearly amount to abuse of the power conferred by S. 144. The nature of the order under S. 144 is not intended to be either permanent or semi-permanent in character.

1983 Cr. L.J. 1872 S.C.

28. The order must disclose reasons and relevant facts

Prohibitory orders - Ex parte orders- Absence of reasons warranting passing of orders without service or notice to parties- Order containing mere statement of emergency situation and no relevant facts- Vitiated.

1991 Cr. L.J. 2150, Madras.

29. Nature of order u/s 144- Mandatory or prohibitory.

S. 144 provides for the making an order which is either prohibitory or mandatory.

1971 Cr. L.J. 1720 SC See also 1978 Cr. L.J. 496

30. What will justify the exercise of power u/s 144?

The gist of action is the urgency of the situation, and without it the exercise of power will have no justification.

1983 Cr. LJ 1872, Calcutta.

31. Magistrate should first ascertain who is wrong.

In the case of a dispute as to the possession of any property coming under this section, the proper course for the

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magistrate is to ascertain which party is in the wrong and is interfering with the exercise of the legal right of the other party. Thereafter, the magistrate should direct that party to abstain from a certain act or to take certain order with respect to the property in his possession if the magistrate considers that such direction is likely to prevent or tends to prevent danger to human life etc. as spelled out in S. 144.

1998 C. L.J. Gauhati

32. Is shoot-at-sight order valid for mere breach of curfew?

The shoot-at-sight order threatening the curfew breakers is void. Mere breach of the curfew, order for shooting at is ultra vires the executive powers of the State government. The order also violates Articles 20 and 21 of the Constitution of India.

1975 Cr. L.J. 661 Gujarat.

33. Reasons to be recorded.

The order u/s 144 should bot be bald but should contain atleast some reasons to show that the magistrate has applied his mind and was satisfied about the existence of factors necessary for action u/s 144.

1979 Cr. L.J. 1147 A.P.Vide also 1981 Cr. L.J. 60 Sikkim.

34. The authority of Magistates - not absolute

The authority of magistrates- not absolute not supreme but subject to supervision and revision by the higher courts and therefore, the magistrates in order to act legally and with propriety, must indicate with reasonable fullness the materials on which they conclude that there was some emergency justifying their actions, so that the higher courts may check and brake them and put them back on the rails when they go off.

1981 Cr. L.J. 60 Sikkim.

35. S. 144 Cr. P.C. vis-à-vis Art. 19 (2) to (6) of the Constitution

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The provision of S. 144 must be construed in the light of the provisions of Article 19 (2) to (6)of the Constitution. When so construed, the conclusion could be inevitable that the obstruction, annoyance or injury or any other danger or disturbance sought to be prevented "must" as indicated by the Supreme Court (in Madhu Limaye) "assume sufficiently grave proportions to bring the matter within the interests of public order" or general public or any other matter specified in Article 19 (2) to (6) of the Constitution.

1981 Cr. L.J. 60 Sikkim.

36. Order u/s 144 Cr. P.C. can not take the character of a permanent injunction

An order u/s 144 must be temporary and revocable in nature it should not take the character of a perpetual injunction.

1973 Cr. L.J. 143 Patna.

37. Limitation - How to be calculated?

It is crystal clear from S 144(1) to (4) that the period of 60 days has to be calculated from the date on which the prohibitory order has been passed at the time of initiation of proceeding.

1983 Cr. L.J. 1215 patna.

38. Sec. 144(5) & (7) Revisional jurisdiction not taken away?

U/s 144 (5) & (7) any magistrate may rescind or alter his own order or an order passed by his predecessor or any magistrate subordinate to him. This is a salutory provision by virtue of which a person aggrieved can either approach the same magistrate or a magistrate to whom the magistrate passing the order is subordinate. But this does not mean that by reason of this provision the revisional jurisdiction of the High Court or Court of Session is taken away.

1972 Cr. L.J. 1126 A.P.See also 1981 Cr. LJ 60 Sikkim

39. When can the High Court set aside the orders?

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When the order u/s 144 purports to affect the future rights of the parties, the High Court may, in appropriate case, set aside the order even though its time expired or it had spent its force.

AIR 1940 Patna 559See also 1981 Cr. LJ 60 Sikkim.

40. Public Meeting- Total prohibition by Police Authority invalid.

When the police authorities refused the permission to B.J.P. a political party, for holding a public meeting on the ground of likelihood of riots and communal tension particularly after the incidence of demolition of structure at Ayodhya in Dec. 1992, and also on ground of existence of prohibitory orders under S. 144, Cr. P.C., the refusal of permission was invalid so far as it totally prohibits holding of public meeting. The Commissioner of Police instead of totally prohibiting the holding of meeting may impose necessary restrictions and take such preventive measures as he may consider fit and proper while allowing such meeting to be held.

1993 Cr. L.J. 2096 Calcutta.

41. An order u/s 144 - Need for following natural Justice- Hearing to be given except in case of emergency.

Though it is true that the anticipatory actin under Section 144, Cr. P.C. can be taken by a Magistrate in an emergency where danger to public order is genuinely apprehended. But it can not be said that Section 144 can be used for suppression of lawful activity or for doing certain acts which are against the law and the rules made thereunder. The satisfaction of the Magistrate as to the necessity of promulgating an order under Section 144, Cr. P.C. is not made entirely subjective by the section where challenge to this order is made, the Magistrate has to give an opportunity to the person concerned of appearing before him and for showing cause against the order.

1193 Cr. L.J. 2883 M.P. (D.B.)

42. Arrest under S. 144- No overt act necessary.

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No overt act is necessary to justify the arrest for breach of the order u/s 144 Cr. P.C. All that is required is a reasonable apprehension of breach of peace and the necessity to prevent it.

(1970) 3 SCC 218

43. D.M. to maintain public order u/s 144

(a) It is for the D.M. to exercise his powers in consonance with the provisions of 144 Cr P.C. for the purpose of maintaining public order which would be in the larger interest of the Society.

(b) Fundamental Rights and Sec. 144 Cr. P.C.

The exercise of Fundamental Rights Under Articles 25 and 26 of the Constitution is not an absolute right but must yield or give way to maintenance of public order.

AIR 1988 SC 93 = 1988 Cr. L.J. 189.

44. Limit of Jurisdiction u/s 144.

A Magistrate can not order a party to be dispossessed and other party to be put in possession in proceedings u/s 144.

1988 Cr. L.I. NOC 6 (Part.).

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PROBLEM SOLVING EXERCISES

P, a Police Officer attached to the local Police Station, called at the residence of M. the SDM of the area on 1.6.95. at about 9. A.M. and reported that A, an accused arrested by the Police on charges of burglary and theft, died of heart failure at about 7 A.M. on that very day while he was detained in the Thana lock-up.

The SDM at once rang up the SDPO who happened to be an IPS Officer and requested him to hold inquest on the dead body to report to him the results thereof.

The SDM took that action in the belief that it was for the Superior Police Officer to Police the sub-ordinate Police and to monitor their activities.

Points to be considered and decided :-

(1)Which Police Officers are competent to hold inquests?

(2)Is an SDPO authorised to hold inquest?

(3)Was the SDM justified in requesting the SDPO to hold inquest in that case?

(4)Was it open to the SDM to direct the Police not to hold any inquest in that particular case?

(5)Can there be a Magisterial inquest instead of or in addition to the Police inquest?

(6)Was it a case where inquest by an Executive Magistrate was compulsory?

(7)If so, what actions the SDM should have taken on receipt of that information?

(8)Which Magistrates are competent, to hold inquests?

(9)Does an SDM have power to direct a competent Executive Magistrate functioning in his Sub-Division to hold inquest?

(10) Why the Law has set up two separate mechanisms (Executive Magistracy and Police Agency) for holding of inquest in respect of unnatural and suspicious deaths?

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(11) What powers the Executive Magistrates are competent to exercise while holding inquests, which are not available to the O.C. or a S.P.?

(12) What documents and records you would like to consult in case of death in Police Custody?

(13) Who are the persons whom you should examine in course of holding inquests into death in Police Custody?

(14) What are the circumstances where a magisterial inquest is a must?

(15) What is the evidentiary value of an inquest Report?

(16) When an Executive Magistrate holds inquest- does he function as Court?

CONDITINAL ORDER U/S 133 Cr. P.C. AND THE NOTICE TO BE ISSUED TO THE OPPOSITE PARTY IN PURSUANCE OF THAT

ORDER

Order-writing Exercise

You are the Sub-Divisional Magistrate, Mussoorie. (Assume Mussoorie to be a sub-division). P, the proprietor of Laxmi Bhandar, a confectionary shop at the Library point, files a petition before you, alleging that B, another shop-keeper, has erected a platform on the public road as described in the schedule to the petition which is causing unlawful obstruction to the members of the public using that road including his customers. The petitioner examines himself and produces two other witnesses in support of his petition.

Draw up a Conditional Order Under Section 133 Cr. P.C., on the reverse.

Note : You may like to consult the provisions of Sec. 133 Cr. P.C. and also read Form No. 20 contained in the second schedule to the Cr. P.C.

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Model Order

In the Court of SDM, MussoorieOrder No. 1 dated 3rd of June, 1996.

P, who has described himself as the proprietor of Laxmi Bhandar, files a petition. It is purported to be one u/s 133 Cr. P.C. He is present with two witnesses.

Considered the petition. The petitioner examines himself as PW1. He reiterates on oath what has been stated in his petition. He produces two witness in support of his petition. Their (PW2 and PW3) initial depositions are also recorded. They lend corroboration to the testimony of the Petitioner (PW1).

Considered the material on record. It appears therefrom that the opposite party has erected a platform on the public road in front of the shop of P. It further appears that the platform so raised by the OP still exists and is causing unlawful obstruction to the members of public using the road.

I am, therefore, led to believe that it is an unlawful obstruction within the meaning of clause (a) of sub-section (1) of Section 133 Cr. P.C. and that the remedy as envisaged in clause (I) of Section 133(1) Cr. P.C. for removal of such obstruction is called for. Hence, I think that it is a fit case where a proceeding u/s 133 Cr. P.C., should be drawn up against the OP, by passing a Conditional Order.

Let the Opposite Party be called upon to remove the platform from the public road as described in the schedule to the petition by the 14th June, 1996, or to appear before this Court at 11 A.M. on 14th June, 1996 and to show cause as to why this order should not be enforced.

The petitioner to put in requisites at once for the service of the notice upon the OP.

Sd/- A.K. Roy SDM

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ORDER FOR REMOVAL OF NUISANCE

ToShri Prakash Singh,Proprietor,Prakash & Co.,Mall Road,Library Point,Mussoorie.

Whereas it has been made to appear to me that you have caused an obstruction to persons using the public roadway which is known as Mall Road and located at Library Point, Mussoorie by raising a platform on that road in the front of "Laxmi Bhandar" a confectionery shop owned by the Petitioner and that such obstruction still exists.

I do hereby direct and require you to remove the platform from the public road as described in the schedule below by the 14th of June, 1996, or to appear before this Court at 11 A.M. on 14th of June, 1996 and to show cause as to why the order should not be enforced.

Schedule

Description of the obstruction:

Wooden Platform Height: 3 ft., Length: 5 ft., and Breadth: 2 ft. raised on the Mall Road at the Libray Point, in front of "Laxmi Bhandar" a confectionery shop owned by Shri Laxmi Yadav (the petitioner).

Dated : This day of 3rd June, 1996

Sd/- A.K. RaySeal of the CSDM

3.6.96

148

Seal of the Court

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ORDER U/S 144 Cr. P.C. - A SPECIEMENT FORM

Ref. Sec. 144 Cr. P.C., read with the contents of Form No. 24 included in the second schedule to the Code of Criminal Procedure.

Background

Hariharpur and Mohammadpur are two neighbouring villages located within the local limits of Durgapur Police Station in the district of Burdwan (West Bengal). Harpharpur is exclusively inhabited by the Hindus whereas the entire population of Mohammadpur is composed of the members of the Muslim community. The village Mohammadpur is to the east of village Hariharpur. There is a plot of land between the two villages, which has been used as a grazing ground from time immemorial. It was generally treated as the common property where the residents of both the aforesaid villages had right to graze their cattle.

At the western end of the village Mahammadpur, there is a Mosque where the people of Mohammadpur offer their Namaz. To the west of Mohammadpur, lies that vacant plot which, as indicated above, is the grazing ground. There is no public temple in the village Hariharpur. Hence, the villagers of Hariharpur decided at meeting that a temple for the entire Hindu community should be built on the western portion of the plot of land which was earlier used as grazing ground. The Hindus started constructing a temple at the aforesaid place to which the Muslim inhabitants of the village Mohammadpur stoutly objected. The Hindus did not pay any deed to such protests and went on building the temple in the assertion that the land is the common property of the villagers belonging to Hariharpur. They contended that the western boundary wall around the Mosque clearly indicated the outer limit of the village Mohammadpur on its western side. They also asserted that the disputed plot was reocrded in the settlement Khatian of village Hariharpur. In such circumstances, the Officer-in-charge, Durgapur Police Station, made a report to the Sub-Divisional Magistrate, Durgapur, urging upon him to pass an order u/s 144 Cr.P.C.

The SDM, Durgapur applied his mind and promulgated an order u/s 144 Cr.P.C. in the following form.

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ORDER U/S 144 Cr. P.C.

ToAll the Hindu inhabitants of the

Village : HariharpurPolice Station : DurgapurDistrict : Burdwan

Whereas a report has been laid before me by the Officer-in-charge, Durgapur Police Station.

Whereas a number of general diary entries have been produced before me by him in support thereof.

Whereas I have examined him and perused his report and the G.D. entries.

Whereas it has thereby been made to appear to me that an unauthorized temple is being constructed on the piece of land as described below, which is in the immediate neighbourhood of he Mosque of the village Mohammadpur.

Whereas it appears from the material placed before me that communal feelings are running high and serious tension is building up.

Whereas I am satisfied that it is a case of emergency and urgent measures are called for immediately to prevent disturbance of public peace and communal riot.

Now, therefore, I do hereby promulgate this order, in exercise of the power vested in me u/s 144 Cr. P.C. prohibiting all the Hindu inhabitants of village Hariharpur from making any construction or erecting any structure in or upon the land described in the Schedule "A" appended to this order or on any portion thereof.

This order takes effect at once and will remain in force till 20th

June, 1993.

Given under may hand and seal this day of 18th May, 1993.

Seal of the SDM Sd/- A.K. SenS.D.M.Durgapur18.5.93.

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Schedule - "A"

Description of the land

The piece of land bearing Rivisional Settlement Plot No. 203 pertaining to Khatian No. 12 of Village hariharpur situated within the local limits of Police Station Durgapur, in the Distt. Burdwan, measuring 1 (one) Bigha with the following boundaries :-

North : Dwelling house of Gaffar KhanSouth : Tank of Abdul MollaEast : The MosqueWest : paddy land of Harpada pal

------------------------------------------------------------------------------------------Note :

(i) This order was passed ex-parte.

(ii) It was directed against the Hindus residing in a particular place, namely, village Hariharpur.

(iii) This order directed a section of the persons, from whom danger was apprehended, to abstain from certain acts.

(iv) This order was to be promulgated by appropriate and adequate means, so as to give effective notice to all concerned.

------------------------------------------------------------------------------------------Instruction : Please examine the order critically and find out whether

or not it complies with and conforms to all the essential requirements of law, as set out below:-

Order u/s 144 Cr. P.C.- Points to be borne in mind :-

(a) Order must be in wring.

(b) It must be definite and specific.

(c) It must set out the material facts.

(d) It must show application of mind and satisfaction as to the existence of factors necessary for action u/s 144 Cr. P.C.

(e) Emergency- the order should indicate that an emergent situation has arisen.

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(f) The thing which is prohibited.

(g) The persons who are prohibited.

(h) The place covered by the order.

(i) Period of time.

Meaning of

"Whereas" -(i) It is a conjunction.

(ii) It is a prefactorial expression implying "the fact being that".

(iii) It means- "considering that things are such"

"Service"- An order u/s 144(1) should be served in the manner laid down in Sec. 134 Cr. P.C.

Personal Service or where that is not practicable, by proclamation.

Proclamation may be made by beat of drums at the place where the order notified is to have effect.

A copy of the proclamation should be stuck up at such place or places as may be fittest for conveying the contents of the order.

It may be announced through microphone.

It may also be published in local papers.

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ORDER U/S 144 Cr. P.C.

What is the nature of an order passed by a competent Executive Magistrate u/s 144 Cr. P.C.?

In other words, is it Judicial or quasi-judicial or administrative in nature?

The question is not entirely free from difficulty. The earlier view taken by the Supreme Court was that an order u/s 144 Cr. P.C. was a judicial and not an administrative order vide Madhu Limaye, vs SDM, Manghyr reported in AIR 1971 SC 4488. In that case, the Chief Justice Hidayatullah while examining when exercise of the power u/s 144 Cr. P.C. would be justifiable, observed- "It is not an ordinary power flowing from administration, but a power used in a judicial manner and which can stand further judicial scrutiny…"

The same view had been expressed by the Supreme Court in Babulal Parte vs State of Maharashtra reported in AIR 1961 SC 884. It was later on reaffirmed in State of Bihar vs KK Mishra vide AIR 1971 SC 1667.

All the three cases referred to above were decided under the old code of Criminal procedure, 1898. The new code of Criminal Procedure, 1973 (Act II of 1974) came into force with effect from 1st

April, 1974. The new code brought about separation of the Judiciary from the Executive as far as possible, by dividing the Magistrates into two classes, namely, (1) Judicial and (2) Executive. Although the powers of trial have been conferred upon the Judicial Magistrates, the Executive Magistrates have been declared to be criminal courts within the meaning of Sec. 6 Cr. P.C. In the revised set-up, Executive Magistrates generally exercise those powers which may be described as administrative, as for example, dispersal of an unlawful assembly. At the same time, the Executive Magistrates have been vested with certain powers which are essentially judicial in nature, as for example, holding of an inquiry u/s 145 Cr. P.C. while the Executive Magistrates perform judicial functions under the Cr. P.C., they ought be regarded as "Criminal Courts" within the meaning of Section 6 Cr. P.C.

Fortunately for us, we have got an authoritative pronouncement of the Supreme Court upon the nature of an order under Section 144 Cr. P.C., decided dint he background of the scheme as envisaged in the new code of Criminal Procedure, 1973. This has reference to the case of Ghulam Abbas vs. State of U.P. reported in AIR 1981, Supreme Court 2198, corresponding to 1981 Criminal Law Journal (CLJ), 1835.

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In that 1981 case, it has been laid down that the order passed under Section 144 Cr. P.C. by a competent executive magistrate is neither judicial nor quasi-judicial. In the words of Supreme Court, it has to be regarded as an executive order passed in performance of an executive function for preserving public peace.

On the strength of the authority of the Supreme Court (Ghulam Abhas vs State of U.P.), I have no hesitation in answering the question posed above in the following words and I do so even at the risk of repetition.

An order passed by competent executive magistrate under Section 144 cr. O.C. is neither judicial nor quasi-judicial. It is administrative nature.

In this context, it should be remembered that even then an administrative authority is bound to follow the principles of natural justice. It is well-settled that even in an administrative proceeding, which involves evil consequences, the doctrine of natural justice is applicable and an administrative order must be made consistently with the principles of natural justice.

An order under Section 144 is amenable to the writ petition of the Supreme Court under Article 32 and the High Courts under Article 226 of the Constitution of India.

An order under Section 144 Cr. P.C. is also revisable by the High Court or Court of Sessions under Section 397 Cr. P.C. In this context, it should be noted that all the Magistrates, whether, executive or judicial, should be deemed to be inferior to the High Court or the Session Judge concerned for the purpose of exercise of the revisional powers. This position flows out of the explanation below 397 (1) Cr. P.C. It is also fortified by the decision of the Supreme Court in Ghulam Abhas vs State of U.P. These aspects can not, as has been held by the Supreme Court, make an order under Section 144 Cr. P.C. a judicial or quasi-judicial order.

The point raised is thus disposed of.

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ORDER U/S 145 Cr. P.C.

What a preliminary order under Section 145(1), Cr. P.C. should contain:-

(i) Indicate the basis on which the preliminary order is being drawn;

(ii) It should reflect application of your mind to the report of the police officer or other information, as the case may be;

(iii) It should reveal your satisfaction that a dispute likely to cause a breach of peace exists concerning the immovable property within your territorial jurisdiction;

(iv) State the ground of your being so satisfied;

(v) Ask the parties concerned to attend your court in person or by a pleader on a specified date and time and to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute;

(vi) Give a description of the subject of dispute; and

(vii) affix your signature and date.

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Civil Suit and Proceeding u/s 145 Cr.P.C. - Their Interface

A number of participants of the current Phase I Programme (December, 1990 to May, 1991) have approached me individually and have asked pertinent questions relating to the effect of a Civil Case involving dispute as to possession upon a Criminal Proceeding u/s 145 Cr.PC. The questions raised by them may be formulated into the following points:-

(i) Does mere pendency of a Civil Suit out the jurisdiction of an Executive Magistrate to proceed u/s 145 Cr.PC ?

(ii) When a suit involving the possession of immovable property has been pending and a temporary injunction restraining the defendant from interfering with the plaintiff's possession granted therein, is initiation of a proceeding by the Magistrate u/s 145 Cr.PC justified ?

(iii) Is a decree or decision of the Civil Court on the point of possession binding upon an executive Magistrate in a proceeding u/s 145 Cr.PC ?

2. These points were answered on the spot as and when put up. for the benefit of the probationers, I have however, thought it fit and proper to state in writing the law touching upon those points. That explains the urge for presenting the probationers with this bulletin, exclusively devoted to record suitable answers to the points posed above.

3. Unfortunately, the judicial opinions expressed by t he different High Courts on the subject have not been unanimous and consistent. I therefore propose to state the law on the basis of the recent decisions of the Supreme Court of India.

4. The latest ruling of the Supreme Court has been reported in 1989 CrLJ 82. (Jaumanlal vs. State of M.P. and Asgar Ali). I quote:-

(a) "It is true that in cases of dispute regarding immovable property a party should not be permitted to litigate before the Criminal Court when the Civil Suit is pending in respect of the same subject-matter. That does not however, mean that a concluded order u/s 145 Cr.PC made by a Magistrate of competent unsuccessful party has approached the Civil Court".

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(b) " An order made u/s 145 Cr.PC deals only with the factotum of possession of the party as on particular day. in confers no title to remain in possession of the dispute property. The order is subject to decision of the Civil Court."

(c) "The unsuccessful party, therefore must get relief only in the civil court. He may move the Civil Court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The Civil Court has jurisdiction to give a finding different from that which the Magistrate has reached."

5. In that case, the dispute was between Jhumanlal and Asgar Ali over possession of a shop. The proceeding u/s 145 Cr.PC was decided in favour of Jhumanlal. Jhumanlal was found to have been forcibly to 145 (4) Cr.PC. Hence, the order u/s 145 Cr.PC directed that possession of Jhumanlal be restored.

6. Before Jhumanlal could be put into possession of the disputed property, Asgar Ali filed a suit for injunction in the Court of Munsif and obtained a temporary injunction against Jhumanlal. Jhumanlal appealed to the District Judge against the order of temporary injunction, whereupon the order of temporary injunction was vacated. Asgar Ali thus lost both in the Court of temporary injunction. he then moved the High Court u/s 482 Cr.PC for quashing the proceeding u/s 145 Cr.PC. The High Court of M.P., relied upon a decision of the Supreme Court reported in 19085 CrLJ 752 (Ram Sumer Puri vs. State of U.P.) and quashed the proceeding u/s 145 CrPC.

7. Jhumanlal then approached the Supreme Court seeking its intervention under Article 136 of the Constitution of India. The Supreme Court set aside the order of the High Court and restored the order of the Executive Magistrate. In that context, the Supreme Court made the observations as quoted in paragraphs 4(a) (b) and (c) above.

8. Here we should advert to the case of Ram Sumer Puri vs. State of U.P. reported in 1985 CrLJ 752, which was mentioned by the Supreme Court in its decision in the case of Jhumanlal. The relevant observation of the Supreme Court in the case of Ram Sumer Puri (1985 CrLJ 752) is as follows :-

(a)"When Civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding u/s 145 Cr.PC."

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(b)"There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on Criminal Court in a matter like the one before us."

(c) "Parallel proceedings should not be permitted to continue and in the event of a decree of Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for interim orders such as Injunction or appointment of Receiver for adequate protection of the property during pendency of the dispute."

(d) "Multiplicity of litigation is not in the interest of the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed."

9. In order to appreciate the import of the ruling, we should know the facts of the case of Ram Sumer Puri. Briefly speaking, that was a case in which a civil suit for injunction was instituted first. That suit was dismissed by the Trial Court. The Plaintiff appealed against that dismissal. While the appeal was pending, some close relations of the Plaintiff, initiated the proceeding u/s 145 Cr.PC. It was in those circumstances that the Supreme Court made the observations as reproduced in paragraphs 8(a), (b), (c) and (d) above.

The observations made by the Supreme Court ought to be read in the context of facts of that case. Here, it is relevant to quote the dictum of the Privy Council (AIR 1940 PC 230):

"Every judgement must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found are not qualified to be expositions of the whole law but governed or qualified by the particular facts of the case in which such expressions are to be found."

After having cited the two recent Supreme Court decisions and having indicated how they are to be read, I should proceed to answer the points formulated in the first paragraph:-

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(i) No, mere pendency of a civil litigation in respect of dispute property will not oust the jurisdiction of the Magistrate to proceed u/s 145 Cr.PC.

Note: I am fully supported in the view I have expressed just now by the rulings reported in 1987 CrLJ 2033 (Kerala) and 1987 CrLJ 1198 (Punjab & Haryana). Wherein the import of the decision of the Supreme Court in Ram Sumer5 Puri was duly considered.

(ii) No, when a suit has been pending and a temporary injunction has been issued by the civil Court in aid of the possession of a party, a proceeding u/s 145 Cr.PC must not be allowed to be initiated at the instance of the opposite party. That will, if permitted, constitute a parallel proceeding, which is prohibited. A situation of that kind is fully covered by the decision delivered by the Supreme Court in Ram Sumer Puri. The existence of an order of injunction creates a complete bar to the passing of any order under Section 145/146 Cr.PC subsequently vide the ruling of the Delhi High Court reported in 1988 Cr.LJ 977. Reference may also be made to the decision of the Punjab and Haryana High Court reported in 1987 CrLJ 1326 and also the decision of the M.P. High Court reported in 1988 CrLJ 1905.

(iii) Yes, it is binding. In a proceeding u/s 145 Cr.PC, it is the duty of the Executive Magistrate to give effect to the decision of the Civil Court and to see, as far as possible, that the decree is maintained. It would otherwise put a premium upon decision of the orissa High Court reported in 1987 CrLJ 758.

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SEARCH - AN OUTLINE

Introduction:

Search is an effective tool in the hands of the authority and at the same time, it constitutes a serious invasion on the liberty of a person.

1. Search- Its meaning :

i) Looking forii) Explorationiii) Probing

Search implies an exploratory examination or probing into or seeking out something which is hidden, suspected and not open, exposed or demonstrated.

2. Search- Where?:

i) House, building and premisesii) Personiii) Vehicleiv) Vessel

3. Search- What for?:

i) Discovery of contrabrand article or illicit goods or stolen property

ii) Documents- which may be relevant or incriminating in any form

iii) Evidence of guilt

4. Search of Person - Its Objects : (Section 51 Cr. P.C. and Section 100 (3) Cr. P.C.)

i) To find incriminating articles.ii) To seize offenensive weapon (Sec. 52 Cr. P.C.)iii) To look for any other thing which may be useful for

investigation- marks of injuries on his person.

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5. Search of a Place- What it is?:

Defined in Sec. 2 (p) Cr. P.C.

Place includes:

(a) House(b) Building(c) Tent(d) Vehicle(e) Vessel

Relevant Sections of Law:

i) Search of a place entered by a person sought to be arrested - Sec. 47 Cr. P.C.

ii) Without warrant, for investigation - Sec. 165 Cr. P.C.

iii) Search under warrant issued by the Court :

(a) For production of certain document or thing (S- 93)

(b) Place, suspected to contain stolen property etc. (S94)

(c) For publications forfeited by the Government. (Sec-95)

(d) Recovery of person wrongfully confined. (Sec- 97)

(e) Restoration of abducted females (Sec - 98)

(f) Document or thing in postal custody. (S-92)

6. Search Warrant - What it is?:

A search warrant is a warrant issued by a Court for the search of a place to be executed in the same way as a warrant for arrest of a person (Sec. 99), subject to the special safeguards provided in Section 100 Cr. P.C.

Simply speaking, it is an authority given by a competent public servant to search a place for any thing or person.

Note : Issuing a search warrant by an Executive or Judicial Magistrate is a judicial act.

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7. Search by Magistrate in his presence: (Section 103 Cr. P.C.)

Any Magistrate (Judicial or Executive) is empowered to direct search to be made;

a) In his presence.b) Of any place.c) For the search of which he is competent to issue a search

warrant.

8. Seizure:

The act or taking possession of property for violation of law contrary to the wishes of the owner.

9. Planting:

Planting of any incriminating article by the law enforcement officer in the place to be searched and showing a search before witnesses according to all formalities.

10. Points to be Borne in Mind in the Context of Search:

i) Reasonableness of the search.ii) Time likely to be taken in conducting the search.iii) Likelihood of the incriminatory property being destroyed.iv) Calling upon two witnesses.v) Must be in presence of witnesses.vi) Preparation of search list.vii) the occupants to attend search.viii) Disclosure of identity by Public Servants making the

search.ix) Showing of the authorisation.x) Woman- by a woman- decency and decorum to be

observed.xi) Public Servants called to constitute a search party should

be tight-lipped.xii) Members of the Search Party should organise themselves

effectively.xiii) They should offer themselves to be searched.xiv) One or two members of the Search Party should keep a

watch over the members of the search party.

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xv) After entry, no outsider, except medical officer or legal practitioner, should be called at the request of the party.

xvi) Search party should take control of the telephone, if any.xvii) Members of the Search Party should be cool, polite and

courteous.

11. Elements of a Search:

Three S; It should be;

Sudden

Surprise

Swift

It should have;

i) Authenticityii) Secrecyiii) Co-ordination

12. What Search Party should Carry?:

i) Authorisationii) Search material, Panchnama forms, blank papers, carbons,

pins, tags etc.iii) Valid identity cards.iv) Sealsv) Pen, Pencil etc.

Organise effectively/call witnesses/offer yourself for search, before and also after search (at the point of entry and also at the point of exit).

13. Enactments under which Searches may be conducted by person authorised to do so:

i) Arms Act.ii) Essential Commodities Act.iii) Opium Act.iv) Excise Act (State).v) Income- Tax Act.vi) Customs Act.vii) State Gambling Act.

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viii) Motor Vehicles Act.ix) Prevention of Food Adulteration Act.x) Prevention of Corruption Act.xi) Code of Criminal Procedure.xii) Prevention of Immoral Traffic Act.xiii) The Dramatic performance Act.xiv) Gold Control Act.

14. Irregularity in Search:i) Does not vitiate seizure of articles.ii) Can not vitiate trial or conviction unless accused has been

prejudiced.iii) It casts a duty upon the Court to scrutinise evidence

carefully.iv) It may affect the weight of evidence. (vide Section - S. 465

Cr. P.C.)

15. Law Relating to Search At a Glance:

(a) Search Warrants

i) Sec. 93 Cr.P.C. - General Searchii) Sec. 94 Cr. P.C. - Stolen Property/Forged Documents

etc.iii) Sec. 95- Cr. P.C. - Forfeited Publicationsiv) Sec. 97 Cr. P.C. - Wrongfully Confined Personsv) Sec. 98 Cr. P.C. - Restoration of abducted females.

(b) Search without warrants:

(i) Magistrate;- 103 Cr. P.C.

(ii) Police Officer (O/C) -

. Section 165 Cr. P.C.

. Section 166 Cr. P.C.

. Section 153 Cr. P.C.

(c) Search Procedure

i) Sec. - 47 Cr. P.C.ii) Sec. - 100 Cr. P.C.iii) Sec. - 165 Cr. P.C.

(d) Search of a Personi) Sec. - 51 Cr. P.C.

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ii) Sec. - 52 Cr. P.C.

(e) Power of Police to Seize without warrant

Sec. - 102THE INDIAN EVIDENCE ACT, 1872 - AN INTRODUCTION

(PART-I)

1. Extent of Operation

It extends to the whole of India except the State of Jammu and Kashmir.

2. Date of Commencement

It came into force on 1st September, 1872.

3. Applicability

It applies to all judicial proceedings in or before a court.

4. Court : What it includes

(a) The “Court” includes all Judges and Magistrates.(b) It also includes all persons, other than Arbitrators, legally

authorised to take evidence.

5. Judicial Proceeding : What it means

(a) It is not defined in the I.E. Act.(b) Section 2(i) Cr.PC has given a definition of it.(c) It includes any proceeding in the course of which evidence

is or may be legally taken on oath.

6. I.E. Act where not applicable

The provisions of I.E. Act are not applicable to :

(a) Departmental Disciplinary Proceedings

Note : Rules of Natural Justice must, however, be observed in departmental proceedings. Fundamental Principles underlying certain provisions of the Indian Evidence Act, which are based on fair play, equity, good conscience and Justice, should however be followed in departmental inquiries. Ordinary rules of proof, not

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the strict and sophisticated rules of evidence, are however, applicable.

AIR 1963 S.C. 375AIR 1969 S.C. 983AIR 1976 S.C. 1080

(b) Domestic Tribunals.(c) Proceedings before Arbitrators.(d) Affidavits presented to court or an officer.

7. Nature of the I.E. Act

(a) The I.E. Act is basically a branch of “Adjective” Law. In its essence, it is procedural by nature.

(b) It deals with the establishment of the facts in issue by production of evidence.

(c) The object of every judicial proceeding is to determine either a right (as in a Civil case) or a liability (as in a criminal trial).

(d) Evidence Act tells us :

i) What are facts-in-issue.ii) What facts are relevant.iii) What facts are admissible.iv) What facts may be proved.v) What facts may not be proved.vi) What kind of evidence may be given of a fact

which is to be proved.vii) Who is to produce such evidence.viii) How it is to be given.

8. Basic rules of Evidence.

i) Best evidence must be produced.ii) Hearsay evidence is not admissible.iii) Evidence may be given of facts in issue and relevant facts

(Sec.5).iv) All facts, except the contents of documents, may be

proved by oral evidence (Sec. 59).v) Facts judicially noticeable need not be proved (Sec. 56).vi) Facts admitted need not be proved (Sec. 58).

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vii) Oral evidence must be direct (Sec. 60).

9. Evidence - What it is ?

a) It is the usual means of proving or disproving a fact under trial or inquiry.

b) It does not include arguments.

c) It tends to convince the court of the truth or otherwise of the matter

Note :The definition of evidence as given in Section 3 of the Indian Evidence Act is a narrow one. It does not include real evidence.

A Court is to consider the matters before it while deciding whether or not a particular fact has been proved.

10. “Matters before Court” :-

They include evidence and also certain non-evidence material, such as,

i) Material objects.

ii) The demeanour of witnesses

iii) Local inspection held by a Judge/Magistrate.

iv) Answers given by the accused in course of examination u/s 313 Cr.PC.

v) A confession made by a prisoner.

11. Evidence and Proof :

a) Evidence means all the legal means exclusive of mere arguments, which tend to prove or disprove any fact, the truth of which is submitted for judicial determination.

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b) It is the instrument by which the court is convinced of the truth or otherwise of the matter under inquiry/trial.

c) Proof is the result of appreciation of evidence by the Court.

d) Proof signifies the belief of the Court in the existence of a fact - a belief arrived at upon consideration of the matters before it including the evidence.

e) Evidence is produced before the court in order to prove the facts in issue. Hence, evidence is the means whereas proof is the end. Proof is the effect of evidence.

12. Facts in issue :

Facts in issue mean the matters in dispute. They are the facts which a party to a litigation must prove in order to succeed in his claim or defence. They are to be found in pleadings or charge, as the case may be. They are sometimes called the principal facts.

Facts in Issue - Example :

“A” is charged with having murdered “B”. “A” pleads not guilty.

The facts in issue are :-

i) that “B” died.

ii) that it was a homicidal death.

iii) that “A” caused B’s death

iv) that “A” intended to kill “B” (Mens rea)

“X” was an eye-witness to the occurrence.

The testimony of “X” was direct evidence.

13. Disproved and not proved.

The Evidence Act has drawn a clear distinction between these two expressions. The definitions given in Section 3 describe the degree of certainty to be arrived at before a fact may be said to be disproved or not proved.

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A fact is said to be “not proved” when it is neither proved not disproved. It is, therefore, neither positive nor negative. On the other hand, a fact is said to be “disproved” when its non-existence is either believed or accepted by the court as highly probable. “Not proved” implies that the material on record falls short, of the requisite proof. “ Disproved”, on the other hand, means that the material is sufficient to establish the non-existence of the fact asserted.

14. Proved

The Evidence Act while defining “proved” provides for two conditions of mind. First that in which a man and (it includes a woman) feels absolutely certain of a fact in other words “he believes it to exist”. Secondly, in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence.

AIR 1990 SC 1459.

15. Evidence - Classification

a) Oralb) Documentaryc) Real

16. i) Oral Evidence is evidence from persons, namely, witnesses.

ii) Documentary evidence is evidence from documents.

iii) Real evidence is evidence from things other than documents.

17. Oral Evidence - Statements made by the witnesses in Court.

18. Documentary Evidence -

Documents produced for inspection of the Court - such as :

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a) a letterb) a sale-deedc) a deed of agreementd) a seizure memoe) an inquest report

19. Real evidence - material objects other than documents, produced for inspection by the court.

Examples

a) Dagger,b) Revolver,c) Blood stained clothes,d) A torn garment

20. All legal Evidence is either Direct or Circumstantial

Direct Evidence : When the principal fact is attested directly by witnesses, things or documents.

To all other forms of evidence, the term circumstancial evidence is applied.

21. Circumstantial Evidence :

Ordinarily means evidence of a fact form which some other fact is inferred.

In circumstantial evidence, facts in issue are indirectly inferred rather than directly perceived.

Examples :

Motive, preparation, conduct, opportunity, position of the parties etc.

22. Circumstantial Evidence : ( Example)

“A” was charged with the murder of “B”

“PW1” proved than “A” had enmity with “B”

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“PW2” testified that “B” was last seen in the company of “A”

“PW3” deposed than “B” was wearing ornaments (a ring and chain)

“PW4” stated that “A” was sharpening a knife.

“PW5” (Autopsy Surgeon) opined that the injury sustained by “B” might have been caused by that knife.

“PW6” (a Jeweller) gave out that “A” sold the above ornaments to him on the day next to murder.

Result : “A” was found guilty of the charge. The case hinged entirely on circumstantial evidence.

23. Circumstantial Evidence - three tests to be satisfied :

i) the circumstances must be cogently and firmly established.

ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.

iii) the circumstances taken collectively should form a chain so complete that there is not escape from the conclusion that within all human probability the crime was committed by the accused and none else.

References :AIR 1960 S.C. 500AIR 1976 S.C. 917AIR 1977 S.C. 1116

24. Document :

Reference :Section 29 IPCSection 3 I.E. Act.Section 3 (18) General clauses Act.

Document means :

a) any matter

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b) expressed or described upon any substance by letters, figures or marks intended to be used or may be used for recording that matter.

Documents : (Examples) :

i) a writingii) a mapiii) a planiv) a summonsv) a noticevi) an ordervii) a sale-deedviii) a receiptix) a blue-printx) an X-ray platexi) a book of accountxii) a caricaturexiii) an inscription on a stonexiv) a tape

25. Contents of a Document

How to prove ? (Section 61)

by primary evidence which the Law requires to be given. It means the document itself produced for inspection of the Court.

by secondary evidence which the Law permits to be given in absence of primary evidence after due explanation.

26. Documentary Evidence :

Chapter - VProof of contents : Section 61

Primary evidence : Section/62/64

Secondary evidence : Section 63/65

Proof of writing etc. : Section 67

Public Documents : Section 74

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Certified copies of : Section 76Public Documents

27. Secondary Evidence (Section 63)

a) A certified copyb) Copy made from the original by mechanical processc) Copy made from or compared with the originald) Counter-parts of documentse) Oral accounts of the contents.

28. Public Documents :

a) Documents forming the acts or records of the acts.

i) of sovereign authorityii) of official bodies and tribunalsiii) of public officers - legislative judicial or executive

b) Public Records kept in any state of private documents.

Public Documents : (Examples) -

i) a charge-sheet u/s 173 Cr.PC.ii) Birth and Death Registeriii) F.I.R.iv) Judgement of a Courtv) Order Sheetvi) An Income-Tax returnvii) Permit under M.V. Act.viii) Ballot paper

29. Expert Evidence

Reference :

a) Section 45 and 46 of Indian Evidence Act.b) Section 291, 291 and 293 Cr.PC.

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Expert - Who is ?

a) He is a person specially skilled in that subject.b) Expert is one who possesses superior knowledge and

practical experience.

Note : It may not depend upon any degree.

An Excise Inspector who has served as such for 21 years and has tested may many samples of liquor may be treated as an Expert (AIR 1974 Supreme Court 639).

Generally speaking a witness is to testify as to facts falling within his personal knowledge vide Section 60 Evidence Act.

30. Expert - Examples (Illustrative and not exhaustive)

i) Medical Expertii) Finger Print Expertiii) Foot Print Expertiv) Handwriting Expertv) Arms Expertvi) Explosives Expertvii) Public Analystviii) Chemical Examinerix) Serologistx) Ballistics Expert ( Science of protectiles in motion)xi) Officers of MINTxii) Motor Vehicle Expertxiii) Physicistxiv) Entomologistxv) Toxicologistxvi) Photographer

31. Relevancy and Admissibility

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a) These two expressions are not identical.

b) Relevancy is determined by logic whereas admissibility is founded upon Law.

c) When we say that a particular evidence is admissible, we presuppose that it is also relevant.

d) Roughly speaking, what is relevant is generally admissible.

e) Strictly, all relevants facts are, however, not admissible.

f) Relevant facts are those which have some sort of connection or relationship with the Facts-in-issue.

(g) In an inquiry or trial, the basic idea is to establish facts-in-issue but when direct evidence to prove fact-in-issue is not available, then evidence is or may be given of relevant facts, with a view to substantiating the facts-in-issue.

(h) In order to find out whether or not a particular fact is relevant, you are to check up whether or not it falls within the purview of any of the sections 6 to 55 of the Indian Evidence Act.

(i) If it comes within the ambit of any such section, then it is relevant.

(j) Then the question to be addressed is :

- Has its reception been expressly barred under any of the provisions of the Indian Evidence Act, as for example, Sections 122, 123, 124 and 126 etc. (Previleged Communications).

(k) If it is barred under the provisions of Indian Evidence Act, then it becomes inadmissible, notwithstanding its relevancy.

(l) There is certain facts which may not be relevant but the Indian Evidence Act permits them to be received in Evidence, as for example - questions to test the veracity of

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a witness and to discover who he is and what is his position in life vide Section 146 Indian Evidence Act.

(m) Admissibility, therefore, signifies that a particular fact is relevant u/s 6 to 55 Indian Evidence Act and also that its reception in evidence is not prohibited.

(n) Admissibility should be determined with reference to the provisions of the Indian Evidence Act.

32. Relevancy -

Sections 6 to 55 Indian Evidence Act - a broad division

(i) Connected facts (Sections 6 - 16)

(ii) Statements

(a) Sections 17-31(b) Sections 32-33(c) Sections 34-39

(iii) Judgements (Sections 40-49)

(iv) Opinions of third persons (Sections 45-51)

(v) Character of Persons (Sections 52-55)

33. Admissibility

A fact, in order to be admissible, should not only be relevant u/s 6-55 Indian Evidence Act, but must not also be prohibited under the Indian Evidence Act, as for example :

(i) Contents of documents can not generally be proved by oral evidence (S.59)

(ii) Oral evidence must be direct (S. 60) Hearsay is not admissible.

(iii) Contents of documents may be proved either by primary or secondary evidence and not otherwise (S.61)

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(iv) Documents must be proved by primary evidence except in cases falling under Section 65(vide S.64)

(v) Contents of public documents are proved by production of certified copies (S.77)

(vi) Proof of other official documents (S. 78)

(vii) Presumptions (S.79-90 and S.114)

(viii) Exclusion of oral by documentary evidence (S.91-100)

(ix) Estoppel (S.115-117)

(x) Competency and compellability (S.118-121)

(xi) Privileged communications (S.122-129, 132 and 133 etc.)

(xii) Lending questions can not be asked during the Examination-in-chief (S.142)

(xiii) Questions not to be asked without reasonable grounds (S.149)

(xiv) Indecent and scandalous questions may be forbidden (S.151)

(xv) Question intended to insult of annoy may be prohibited (S.152)

(xvi) Exclusion of evidence to contradict answers(S.152)

(xvii) Question that may be asked to a Hostile witness by the party which called him (S.154)

34. Standard of Proof

While Civil case may be proved by mere preponderance of evidence, in criminal case prosecution must prove the charge beyond reasonable doubt (AIR 1990, SC 209)

Note : Only proof beyond reasonable doubt and not conclusive proof is required for conviction (Ref. AIR 1987, SC 482)

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Reference and Bibliography

(1) Law of Evidence by Sudipto Sarkar and V.R. Manothar,Fourteenth Edition, 1993 in two volumes

Publishers : Wadhwa and Company, Agra, Nagpur

(2) Law of Evidence by S.P. Sen Gupta,

Publishers : Kamal Law House, Calcutta

(3) Law of Evidence by A.N. Saha

Publishers : Eastern Law House, Calcutta

(4) Principles and Digest of the Law of EvidenceOriginal Author, Chief Justice M. Monir

Revised by : Justice Deoki Nandan

Publishers : The University Book Agency, Allahabad

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EXAMINATION OF WITNESSES

1. Explanation

(a) "Witness" means a person who gives evidence before a court. In other words, he is one who testifies about something at any Trial or Inquiry.

Note: Court includes all Judges and Magistrates and all persons except arbitrators, legally authorised to take evidence vide Sec.3 of the Evidence Act.

(b) Examination In the context of examination of witnesses, the term "examination" implies "interrogation" it generally consists of putting a number of questions to the witness by the parties or their lawyers with a view to obtaining matters in dispute and placing them before the Court :

Note:(i)All statements which the Court permits or requires to be made before it by witnesses are called "oral evidence".

(ii)Oral evidence should be direct. The testimony must be of a person who

perceived the fact deposed through his or her senses.

2. Examination of witnesses where the related law is to be found

(a) Chapter X of the Indian Evidence Act deals with "Examination of witnesses".

(b) Chapter X contains 32 Sections, beginning from Sec. 135 and ending with Sec. 166.

(c)I It is expected that you will read the Chapter as a whole as part of your self study and learn the rules laid down therein.

(d) Emphasis ought to be given to the following aspects :

(j) Order of examination of witnesses.

(ii) Examination-in-chief, Cross-Exam. and Re-examination. Their objects and questions that may be asked during each of such examinations.

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(iii) Leading questions. (iv) Corroboration and contradiction. (v) Hostile witness and evidentiary value of his testimony. (vi) Impeaching credit of witnesses.

3. Order of examination of witnesses

(a) In civil cases, the order of examination of witnesses is regulated by order 17 of the code of civil procedure. The general rule is that the party upon whom the burden of proof rests should begin.

(b) In criminal cases, the legal burden of proof invariably lies upon the prosecution to prove the charge against the accused beyond reasonable doubt and hence, the prosecution, always begins.

The prosecution should examine witnesses in their proper order so as to bring out facts in their logical sequence. Generally eye-witnesses, if any, are examined first and there after the other witnesses, such as post occurrence witnesses, expert witnesses and formal witnesses.

4. Examination of a witness

(a) It has three parts, namely :-

(i) Examination-in-chief (ii) Cross-examination (iii) Re-examination

(b) The examination of a witness by the party who calls him is called "Examination-in-chief".

(c) The examination of a witness by the adverse party is known as "cross-examination".

(d) The examination of a witness subsequent to the cross-examination by the party which called him is described as "Re-examination" (vide Sec.137 Evidence Act.).

5. Order of Examination

(a) A witness is first examined-in-chief.

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(b) He shall thereafter be cross-examined, if the adverse party so desires.

(c) He may then be re-examined, if the party calling him so desires. (vide Sec.138 Evidence Act.)

6. Examination-in-chief

(a) It must relate to relevants facts.

(b) It is generally not permissible to ask leading questions during examination-in-chief.

(c) Leading questions may, however, be allowed if the adverse party does not object or when the court permits them to be put.

(d) The court permits leading questions as to matters which are introductory or undisputed or which have, in its opinion, been already sufficiently proved (vide Sec.142 Evidence Act.).

(e) It is through the process of examination-in-chief that a party, who has called the witness, elicits from the witness the evidence relevant to the issues and favourable to him.

7. Cross-examination

(a) As soon as a witness is examined-in-chief, by the party calling him, he may be cross-examined by the adverse party.

(b) Leading questions may be asked in cross-examination.

(c) Cross-examination must also relate to relevant facts but it need not be confined to the facts to which the witness testified during the examination-in-chief.

(d) The objects of cross-examination are :

(i) to discredit the witness.

(ii) to obtain from such witness statements and admissions favourable to the party, cross-examining him.

(iii) to destroy or weaken the case of the opponent.

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(e) Questions that may be asked during the cross-examination, besides those already indicated, are specified in Sec. 146 of the Indian Evidence Act.

(f) The court is competent to control cross-examination.

(g) Indecant and scandalous questions may be forbidden by the Court (vide Sec.151).

(h) Questions intended to insult or annoy ought to be rejected (vide Sec.152).

8. Re-examination

(a) After the cross-examination is over, the party who called the witness, may re-examine him.

(b) The purpose of re-examination is to seek-explanation or clarification on matters that arose during the cross-examination and may be unfavourably construed against the party which called the witness.

(c) Re-examination can not be allowed for new matters except with the leave of the court.

(d) If any new matter is permitted to be introduced during re-examination, the adverse party acquires the right to cross-examine upon that matter.

9. Leading Questions

(a) Any question suggesting the answer which the party putting it wishes or expects to receive is called a leading question (vide Sec.141).

(b) In other words, a leading question is one which puts words into the month of the witness or suggests the answer which the examiner expects of him.

(c) When a leading question may or may not be asked has already been spelt out vide paragraphs 6(b), (c) and (d) and 7(b).

(d) The question "were you playing football, at that time? is a leading question.

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It should have been put in this form - what were you doing at that time?

10. Corroboration

(a) Its meaning - corroboration literally means the act of corroborating or confirming.

(b) To corroborate is to confirm, to strengthen, to support, to add weight to credibility.

(c) Corroboration pre-supposes that there is some evidence to be corroborated. The evidence by means of which corroboration is made is called "corroborating" or "corroborative evidence".

(d) Corroborative evidence should be legally admissible and independent of the evidence sought to be corroborated.

(e) Corroborative evidence may be direct or circumstantial.

(f) The object of corroboration is to satisfy the court that the witness, whose testimony is corroborated, told the truth.

(g) When evidence is wholly reliable, the court need not insist on corroboration. When the evidence is wholly unreliable, the court should reject it without looking for corroboration. But when the evidence is neither wholly reliable nor wholly unreliable, it is the duty of the court to ask for corroboration.

(h) When the court should ask for corroboration is more a matter of prudence and practice than of law.

(i) Questions tending to corroborate evidence of relevant fact is admissible vide Sec. 156 Evidence Act.

(j) Former statement of a witness may be used to corroborate his present testimony vide Sec.157 of the Evidence Act.

(k) Examples : (i) F.I.R. is a piece of corroborative evidence. It corroborates

the maker of the FIR when he gives evidence in court as to matters mentioned in the FIR.

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(ii) The statement of a witness recorded by a Judicial Magistrate u/s 164 Cr.P.C. during Police Investigation may be used to corroborate his testimony at the trial.

(iii) The oral testimony of a witness may be corroborated by circumstantial evidence.

Note: Substantive Evidence :

(a) The word `substantive' implies something essential, independent or real.

(b) Substantive Evidence means the "evidence" which may form the foundation of a judicial decision.

(c) the expression "substantive Evidence" is used in contra-distinction to the term "corroborative evidence"

(d) A dying declaration is a substantive evidence, because if it is found to be voluntary, truthful and reliable, a conviction even in a case of murder, can be based solely upon a "dying declaration".

(iv) (a)Contradiction is the act of contradicting.

(b)To contradict is to affirm to the contrary.

(c)The second part of Sec.145 Evidence Act deals with contradiction of a witness with reference to his previous statement.

(d)Attention of the witness should be drawn to that part of his previous statement which is intended to be used for the purpose of contradiction vide Sec.145.

(e)The object of contradiction is to impeach the credit of the witness vide Sec.155(3) Evidence Act.

(f)A witness may be contradicted with reference to his previous statement.

(i)recorded by the police u/s 161 Cr.P.C.

(ii) taken down by the Magistrate u/s 164 Cr.P.C.

(iii)deposition or

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(iv) or any other document such as FIR, letter, report or case diary, tape-recorded conversation etc.

12. Hostile witness

(a)The term "hostile witness" does not occur in the Indian Evidence Act.

(b)It has not, therefore, been defined in the Evidence Act.

(c)In common parlance, it means a witness who is permitted by the court to be cross-examined by the party which called him. Such permission may be granted by the court, in the exercise of its judicial discretion, u/s 154 Evidence Act.

(d)If such permission is granted, then the party, which called the witness, shall become entitled to ask questions to him which may be put in cross-examination by the adverse party.

(e)A hostile witness is he who, from the manner in which he gives evidence, shows that he is not desirous of telling the truth to the court. This description is based on judicial decisions.

(f)The discretion conferred upon the Court u/s 154 E. Act is unqualified. It should be exercised whenever the court from the witness's demeanour, temper, attitude, bearing or the tenor and tendency of his answers or from perusal of his previous inconsistent statement or otherwise, think that grant of such permission is expedient to extract the truth and to do justice.

13. Evidentiary value of the testimony of a hostile witness

(a) When a witness is cross-examined and contradicted by the party calling him, with the leave of the court, his evidence can not, as a matter of law, be treated as washed off the record. It is for the court to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to part of his testimony.

(b) Simply because a witness has been declared hostile, his testimony does not become unreliable on that count. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence.

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(c) The evidence of a hostile witness can not be excluded from consideration altogether. It should be taken into account for whatever it is worth.

14. Impeaching credit of a witness

(a) The credit of a witness may be impeached by the adverse party or by the party which called him with the permission of the court.

(b) There are various modes of impeaching the credit of a witness. Cross-examination is one of them. Production of independent evidence is another, Contradiction is another.

(c) Cross-examination has been mentioned and dealt with under Secs. 137, 138, 140, 143, 145, 146 etc.

(d) Contradiction has been provided for in Sec.145 and 153.

(e) The other modes of impeaching the credit of a witness have been enumerated in Section 155.

(f) After the evidence for the parties has been produced and after the arguments for them have been heard, it is the duty of the court to appreciate the evidence, namely, oral, documentary and material.

As evidence is tendered through human agency, that is, witnesses, the court is called upon to assess the credibility of each witness.In doing so, the court has to consider the following :

(i) Is the witness possessed of the knowledge of the facts and circumstances of the case ?

(ii) Is the witness impartial ?

(iii) Is the witness truthful ?

(iv) Has the witness respect for his oath or affirmation ?

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The adverse party may assail any or two or more of those attributes and once he succeeds in doing so and disauading the court from placing reliance upon the testimony of a witness, his credit may be said to have been impeached.

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BURDEN OF PROOF

1. Where to be found

(a) The expression "Burden of proof" occurs in Chapter VII of the Indian Evidence Act.

(b) Sections 101 to 111 contained in Chapter VII of the Indian Evidence Act deal with and relate to Burden of the proof.

(c) Out of these eleven sections, namely, Sections 101 to 111, the first six sections, that is sections 101, 101, 103, 104, 105 and 106 are more important.

2. The meaning of "Burden of Proof"

(a) The term "Burden of Proof" has not been defined in the Indian Evidence Act.

(b) It is used in two different senses. Its two distinct meaning are sometimes confused.

(c) In the first place it means the obligation of a party to establish a case. In the second place, it refers to the obligation of a party to adduce evidence.

(d) The burden of proof, in the first sense, never shifts. It remains constant.

(e) The burden of proof, in the second sense, is unstable and may shift from time to time.

3. Name given to the two burdens

(a) The burden of proof, in the sense of "duty to establish a case, is known as legal burden.

(b) The burden of proof, in the sense of duty to adduce evidence, is called "evidential burden". It is sometimes termed as "onus of proof" or "onus probandi".

4. Onus Probandi - its strict meaning

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It is that if no evidence is given by the party on whom the burden is cast, the issue must be found against him.

5. Examples :

(i) A is charged with murder of B. The defence of A is that he was insane when B was killed. Here, by reason of Sec. 105 Evidence Act, the burden is upon `A' to prove his alleged insanity. This burden is the evidential burden. If `A' does not produce any evidence at the trial, the issue whether he was insane at the relevant point of time, has to be decided against him.

The failure of `A' to prove his insanity will not, however, entitle the prosecution to succeed. Because in a criminal trial, the legal burden of proof is always upon the prosecution. It is the duty of the prosecution to establish the guilt of the accused beyond reasonable doubt. The prosecution, in order to succeed, must discharge that burden of proof.

(ii) A is charged with having committed dacoity in Calcutta on 2nd January 1988. The plea of `A' is that he was in Delhi on 2.1.88 at the time of the commission of dacoity.

`A' is thereby raising what is known as `alibi'. Whether or not he was in Delhi at the relevant time and date is a matter within his special knowledge. Hence, by virtue of Sec. 106 Evidence Act, the evidential burden is upon him to prove that alibi.

At the trial, A produces some evidence in support of his alibi, but the court considers it insufficient and rejects the alibi of the accused.

Inability of `A' to prove his alibi will not, however, help the prosecution to secure his conviction. The prosecution must, by independent evidence, prove the essential elements of dacoity and the complicity of `A' therein. This duty of the prosecution to establish the case is what may be described as the Burden of proof in the first sense of the term.

Note: "Alibi" means "elsewhere". It postulates physical impossibility of the accused at the scene of crime by reason of his presence at some other place.

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6. Legal Burden of proof - determination

(a) The question on which party the legal burden of proof lies has to be decided (i) on the state of the pleadings of the parties and (ii) on the basis of the substantive law applicable to the case.

(b) The essential elements of a claims or defence are determined by reference to the substantive law.

(c) Example : `A' sues `B' on a bond for recovery of a sum of Rs.500/- with interest. His case is that `B' took a loan of Rs.500/- and executed the bond in token thereof. `B' denies all the material allegations of `A'.

Here `A' in order to succeed, must prove all the essential elements of his claim.

But suppose `B' admits the execution of the bond by him but alleges that the bond was contained by fraud, which `A' denies. In such event, the burden of proof shall be upon `B' because if no evidence were given by either side, `A' would succeed, as the bond is not disputed and the fraud is not proved.

7. Burden of proof - how to be discharged

(i) by production of evidence(ii) by the assertion of presumptions(iii) by reliance on admissions(iv) by inviting the court to take judicial notice of certain facts(v) by combination of two or more of these modes.

8. General principles of burden of proof

(a) The burden lies upon the party who asserts the affirmative of a fact-in-issue.

(b) The burden lies upon the party who would fail if no evidence were adduced.

(c) A party who brings another person (his opponent) to the Court must rely on the strength of his own case and the clearness of his own proof.

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(d) The legal burden of proof in a criminal case is always upon the prosecution and there is no duty cast upon the accused to prove his innocence.

(e) Burden of proof when the accused seeks to invoke any of the general exceptions to criminal liability under chapter iv. of the Indian Penal Code is upon the accused.

(f) Burden of proof may be shifted by presumption of a law or fact.

9. Burden of proof - when it becomes immaterial

When the parties have led evidence and the relevant facts are before the Court and all that remains for decision is what inference is to be drawn from them, the question of burden of proof is not pertinent.

10. Standard of proof

(a) Standard of proof means the degree upto which the burden of proof has to be discharged.

(b) In a sense, standard of proof indicates the extent of quality and cogency of evidence that ought to be there for establishment of a case.

(c) In a civil case, the standard of proof demanded is no more than a preponderance of probabilities.

(d) In a criminal case, a higher standard of proof is necessary. The prosecution must establish the guilt of the accused beyond reasonable doubt.

(e) In exceptional situation, when the accused in a criminal case has to discharge any burden of proof on an issue, the standard of proof is the same as is required in a civil case, the preponderance of probabilities.

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Claim of Privilege

1. Explanation of the topic

(a) The title of the topic consists of two words joined by the preposition "of". They are (i) claim and (ii) privilege.

(b) "claim" means a demand of a right or supposed right.

(c) "Privilege" means an advantage conferred upon a person over and above the ordinary law. It implies "immunity" "exemption" or "non-liability".

2. "Claim of privilege" - its underlying principle

(a) Administration of justice demands disclosure of evidence. Parties to a litigation should disclose, for the purpose of trial, the evidence relevant to the issues involved which is or has been in their possession or power. The idea is that withholding of evidence by any of the parties to a legal proceeding may lead to the failure of justice. Hence, they have a duty to produce in court relevant and admissible evidence.

(b) What has been stated in clause (a) above is the general rule. It is based on "interest of Justice". This is, however, not an absolute rule. (c) The public interest in the doing of justice may sometimes come in conflict with another kind of public interest, say, for instance, when disclosure of evidence is prejudicial to the interest of the Nation. In such an event, the interest of justice between the parties has to be considered against a different public interest, which may be more important.

(c) Upon balancing of the two rival public interests, the interest of justice may have to be subordinated to a more demanding public interest. This is the principle upon which the claim of privilege is based.

(d) In this context, the "claim of privilege" signifies an assertion by a party to be exempted from the disclosure/production of evidence, oral/documentary, in connection with a legal proceeding, without the risk of any liability being incurred.

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(e) A claim of privileges, in order to be worthy of being sustained by the court, ought to be founded upon a rule recognised by Law.

3. "Claim of privilege" where the related law is to be found?

To find where the law is, please turn to the Chapter IX of the Indian Evidence Act and read Sections 121 to 131 in particular, along with Sec. 132, 162, 163 and 165 of that Act.

4. Privileged Communication- its meaning

(a) It means a communication made to a witness which he cannot disclose vide Section 121 to 129 I.E. Act.

(b) It actually implies the statement made to the witness earlier by certain persons within a protected relationship, such as, husband wife, lawyer client and the like, the withholding of which is authorised by the Law.

5. Privileged document what it is?

Generally it refers to a document, concerning the affairs of the State, which the State can not be compelled to produce in court vide Sections 122 and 123 I.E.Act.

6. Privilege - who can claim and against what - an overview

(i)Judge or Magistrate can not be compelled to answer questions relating to

(a)his own conduct in court as Judicial Officer

(b)anything which came to his notice in court as Judicial Officer, Unless ordered by a superior court vide Sec.121.

(ii) (a)Communication made to a spouse by the other spouse during marriage vide Sec.122.

(b)The communication need not be confidential. It may be of any nature.

(c)The privilege is conferred upon the spouse who made the communication.

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(d)The privilege may be waived by the spouse who made the communication or her representative-in-interest. It must be by express consent.

(e)Exceptions : The privilege is not available in suits between the spouses or in prosecution for any crime committed by one spouse against the other.

(iii) Privilege of the Government to withhold document vide Sec.123.

(a) This privilege extends to any evidence derived from unpublished official record.

(b) It must relate to the affairs of the State.

(c) It is available when disclosure of the contents of the documents would be against public interest.

(d) The Head of the Department concerned may permit such evidence to be produced. He may, in his discretion, withhold such permission and claim privilege.

(e) The final decision in regard to the validity of a claim of privilege against disclosure of evidence U/S 123 would always be with the Court.

(f) A person summoned to produce a document is bound to bring it or Send it to the court. He may then at the time of production of the document, claim any privilege and thereupon the court shall be called upon to determine the validity of the objection vide Sec.162 I.E. Act.

(iv) Communication made to a public officer in official confidence vide Sec. 124 I.E. Act.

(a) Sec. 124 I.E. Act relates to the disclosure of communication made to a public officer in official confidence.

(b) The term "public officer" would include "clerks".

(v) A police officer or Magistrate or a Revenue Officer is not bound to disclose the source of information as to commission of offence vide Sec.125 I.E. Act. This Section affords protection against the disclosure of the name of the spy or informer.

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(vi) (a)Professional communication made by a client to his barrister, attorney, pleader or Vakil vide Sec.126 I.E. Act.

(b)Section 126 should be read in conjunction with Sec.127.

(c)Sections 126 and 127 are designed to afford protection to the clients.

(d)Sections 126 and 127, which confer privilege on communication between legal advisor and his client, contemplates a situation when the legal adviser or his clerk figures as a witness in the court.

(e)The privilege U/S 126 shall not be available in the two circumstances mentioned in clauses (1) and (2) of the Proviso to Sec. 126.

The privilege is available for act or offence committed prior to the commencement of the employment of the lawyer.

(f)This privilege is not intended to cover communication made in furtherance of any illegal purpose.

(g)This privilege does not apply to communication between lawyer and the client when litigation arises between them and the communication is relevant to the issue.

(h)To be privileged, the communication must be of a confidential or private nature.

(vii) When the privilege may be deemed to have been waived has been stated in Section 128 I.E. Act.

(viii) (a)Confidential communication with legal adviser is protected U/S 129. This Sec. presupposes a situation when the client is examined as a witness in the court, whether or not he is a party to the proceeding.

(b)Sec. 129 confers privilege upon the client's own testimony.

(c) It is founded upon the principle that if a party becomes a witness of his own accord, he shall, if the court so requires it, be made to disclose everything necessary to the true comprehension of his testimony and shall be bound to produce such confidential writing or correspondence as would be necessary for the said purpose.

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(ix) Production of title deeds of witness not a party (Sec.130).

(x) Production of documents, which another person, having possession, could refuse to produce (Sec.131).

Note : Sec. 130 relates to a witness who is not a party to the suit, that is stranger. It refers to the title deed of the witness who is a stranger to the suit.

Sec.131 refers to document of another person in possession of the witness.

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ADMISSION AND CONFESSION

Reference : Sections 17 to 31 of the Indian Evidence Act.

(1) Admission - its legal definition

(a) This has been defined in the Indian Evidence Act which shall henceforth be called "the Act".

(b) For the definition, you are to read Section 17, alongwith Sections 18, 19, and 20 of the Act.

(c) In short, admission is -

(i) a statement, oral or documentary.

(ii) which gives rise to an inference.

(iii) about any fact in issue or relevant fact.

(iv) made by a party to the proceeding or by his authorised agent or by some other person recognised under the law.

(2) Admission - a judicial formulation

(a) Admission is a concession or voluntary acknowledgment.

(b) made by a party or someone identified with him in legal interest.

(c) of the existence of certain facts.

(d) which are in dispute or relevant to an issue involved in the case.

Vide Ayodhya Prasad Vs. Bhawani Shankar reported in AIR 1951 Allahabad -1

(3) Admission - examples

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(a) A sued B for recovery of a sum of Rs. 9,000/- alleging that B had taken the amount from him by loan but did not pay it back. B, by filing a written statement, denied that he took loan of Rs. 9,000/- from A.

At the trial, A produced a letter of B, where he acknowledged the debt and asked for time for repayment.

The question whether B took loan from A was a fact in issue in that suit. The statement of B, as contained in his letter, tended to establish that fact.

Such statement is an admission and is relevant under Section 21 of the Indian Evidence Act.

(b)A was murdered at midnight at a place (p). B was arrested with injuries on his person. B stated to the Doctor that A had caused those injuries at the midnight at P. That statement of B would amount to an admission establishing his presence at the place of occurrence at the relevant time.

(4) Confession - what it is

(a) A confession is a statement, admitting in terms the offence or in terms substantially all the facts which constitute the offence (AIR 1966 Sec. 40).

(b) A confession is a total acknowledgment of the guilt.

(c) A confession is a statement made at any time by a person charged with a crime stating that he committed that crime (Stephen).

(5) Admission and confession - points of difference

(i) Admission is the genus whereas confessions is a species.

(ii) All confessions are admissions but all admissions are not confessions.

(iii) "Confession" is applicable in the context of a crime only. Admission, though generally employed in connection with civil proceedings, is not confined in its application to civil cases only. It may also be extended to criminal matters.

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(iv) When a statement, read as a whole, does not amount to a clear acknowledgment of guilt, and as such, falls short of confession, it may be used as an admission.

(v) Confession is generally used against the maker of it (accused in a criminal case). In certain circumstances(vide Sec. 30 of the Indian Evidence Act) it may be taken into consideration as against a co-accused also.

Admission may be proved against the maker or his representative-in-interest, but in cases falling within clauses (1), (2) and (3) of Section 21 of the Indian Evidence Act, it may also be proved by or on behalf of the maker.

(vi) In criminal cases, where conviction may be based on the statement alone, it is confession but when some supplementary evidence is needed to authorise a conviction it is an admission (Ram Singh Vs. State of U.P. reported in AIR 1959 Allahabad 518).

(6) Confession and Police

(a) A confession made to a police officer is inadmissible vide Section 25 of the Indian Evidence Act.

(b) Section 27 is an exception to the prohibition imposed by Section 25.

(c) If an accused, while in police custody, makes a statement, that part of the statement, whether confessional or not, which leads to the discovery of a material fact, may be received in evidence under Section 27 of the Indian Evidence Act.

(d) Section 27 is based upon the rationale that the discovery of a material fact in consequence of the information given out by the accused is, by itself, a guarantee of truth and hence, the embargo placed by Section 75 ought to be relaxed.

(e) Examples of discovery of material facts -

(i) a blood -stained dagger;

(ii) a revolver used for commission of crime;

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(iii) body of the deceased in a case of murder;

(iv) ornaments the deceased was wearing.

(7) Confession - its relevancy and admissibility

(a) A confession made by an accused under threat, inducement or promise made to him by a person in authority is not relevant (for details, see Section 24 of the Act).

(b) A confession made to a police officer is inadmissible vide Section 25. Section 27 is, however, an exception to Section 25.

(c) A confession made by an accused while he is in police custody can not be proved against him, unless he made it in the immediate presence of a Magistrate. Such restriction has been imposed by Section 26. It should, however, be noted that Section 27 is an exception also to Section 26.

(d) In short, a confession, in order to be relevant and admissible, should be free and voluntary, not tainted by threat, inducement or promise and not vitiated by police influence.

(8) Confession - Classification

(a) It is of two kinds, namely (i) Judicial Confession and (ii) Extra-Judicial Confession.

(b) Judicial confessions are those which are made before a Magistrate or in court in course of legal proceedings.

NOTE :

(i) A confession recorded by a Metropolitan Magistrate or a Judicial Magistrate, First Class, under Section 164 Cr. P.C. is a judicial confession.

(ii) Section 164 Cr. P.C. applies to the stage of police investigation. During inquiries/trials, accused may be examined by the Court under Section 313 Cr. P.C. in accordance with Section 281 Cr. P.C.

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(c) Extra Judicial Confessions are those made to or before persons or group of people other than before Magistrate or in Court.

Example : A dacoity was being committed. The villagers assembled near the house of occurrence on being attracted by the hue and cry. As soon as the dacoits came out of the house, they were given a chase by the villagers. One of the dacoits was apprehended by the villagers.He admitted before the villagers that he had taken part in the dacoity. That admission of guilt by him before the villagers was an extra-judicial confession.

(9) Confession - its evidentiary value

(a) A judicial confession - if found to be true and voluntary, may form the sole basis of conviction.

(b) Confession of an accused is, therefore, a substantive evidence.

(c) As a rule of prudence, the Court looks for corroboration in support of a confession. The extent and nature of corroboration that may be required will depend upon the facts and circumstances of each case.

(d) If the Court is satisfied that the confession is perfectly voluntary and wholly true, the question of corroboration will not arise.

(e) Extra-Judicial Confessions are distinguished from judicial confession even for the purpose of evidentiary value.

(f) An extra-judicial confession should be examined with greater care and caution.

(g) Extra-Judicial Confessions are generally not rated as high as the judicial confessions.

(h) It is, however, not correct to start with the presumption that extra-judicial confessions are a very weak type of evidence. Its value depends upon certain factors.

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(i) An extra-judicial confession, if believed and if found voluntary, can form the basis of conviction at a criminal trial.

(j) When an extra-judicial confession is proved by an independent witness and is corroborated by recovery of incriminating articles, a conviction may be founded upon it.

(k) Ultimately, it is a question of appreciation of evidence, the result of which will determine how much value is to be given to a particular confession.

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DYING DECLARATION

(1) Dying Declaration - what it is ?

It is the statement, oral or written of a person, relating to his/her death or as to the circumstances leading to his/her death, when that person dies subsequent to the making of such statement.

(2) Nature of the Dying Declaration

(a) It is the statement of a person since deceased.

(b) When proved, it may be used, as evidence.

(c) It is a kind of hearsay evidence, because the declarant (maker of the statement) has died and somebody else appears to say what the deceased stated about his/her death.

NOTE:- "Hearsay Evidence"- in this context- means "derivative or second-hand or unoriginal evidence", that is , the evidence given by a person, not on this basis of his own knowledge but on the authority of another person.

(d) The declarant, being dead, the veracity of his/her statement cannot be tested by cross-examination.

(e) Even then, it is received in evidence and as such, it is an exception to the rule that hearsay evidence is inadmissible (vide section 60m of the Indian Evidence Act).

(3) Why Dying Declaration is admitted in Evidence?

(a) It is based on the principle of "necessity".If it is shut out, not better evidence may be available. In such event, Justice is Liable to be defeated.

(b) The other ground may be described as "circumstantial guarantee of trustworthiness". The presumption is that truth sits on the lips of dying person. The shadow of impending death creates an awful and solemn condition, which silences any motive for falsehood and which provides a substitute for oath.

The fear of divine displeasure may be present in his/her mind.

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(4) Relevancy and admissibility of Dying Declaration

(a) Section 32 (1) of the Indian Evidence Act declares that "Dying Declaration" is relevant.

(b) Evidence may be given of facts in issue and also of relevant facts (vide Section 5 of the Indian Evidence Act)

(c) There is no prohibition, either express or implied, in the Indian Evidence Act, against `Dying Declaration' being received in evidence.It is, therefore, admissible.

Note:- Admissibility presupposes relevancy and something more. In order to be admissible, a fact should be relevant under any of the provisions contained in Sections 6 to 55 of the Evidence Act and at the same time, there ought to be nothing in Law to exclude its reception in evidence.

Dying Declaration satisfies both these conditions and hence, it is relevant and admissible.

(5) Conditions for reception of Dying Declaration in evidence

(a) It must relate either to the cause of death or to any of the circumstances of the transaction which has resulted in the death.

(b) Here, the death means the death of the declarant himself or herself.

(c) The declarant must have died after the declaration.

(d) The cause of death of the declarant must be a question involved in the case.

(e) The death may be homicidal or suicidal or even accidental.

(f) The case may be criminal or civil.

(6) Apprehension of death - is it a pre-requisite ?

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No, it is not the requirement of the Indian Law that the person making the Dying Declaration should have been under expectation of death at that point of time.

(7) Proximity of time between declaration and death - is it essential ?

(a) Distance of time alone can not render a dying declaration irrelevant.

(b) It would depend upon the circumstances of each case.

(c) When letters had been written or statements made by the deceased, which were directly connected with or related to his or her death, they would certainly fall within the four corners of Section 32 of the Indian Evidence Act, even if there was "not short" time-gap between such letters/statements and death of the writer/maker thereof.

Example :- Letters written by a married woman to her mother alleging cruelty committed by her husband and incitement given by him for her suicide in a case of dowry death.

Reference - Sharad Birdichand Vs State of Maharashtra reported in 1984 CrLJ 1738 or AIR 1984 S. C. 1622.

(8) Who may record "Dying Declaration" ?

(a) Generally speaking, it may be recorded by anybody, including a Police Officer or a private individual.

(b) Law has not indicated who is competent or who is incompetent to record "Dying Declaration".

(c) Admissibility is one thing, credibility is another.

(d) What has been said in clause (a) above is true from the angle of admissibility but it does not hold good from the view-point of credibility.

(e) A Magistrate inspires greater confidence and deserves more credence. Hence, efforts should be made to secure the services of a Magistrate for recording of a Dying Declaration.

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Note (i) Magistrate may be a Judicial Magistrate or an Executive Magistrate.

Note(ii) In practice, Judicial Magistrates are called upon to hold T.I. Parades and Executive Magistrates are invited to record dying declarations.

(f) In absence of a Magistrate, a doctor, if available, may be requested to take down the dying declaration.

(g) A Police Officer is not disqualified for recording of a Dying Declaration.

(h) Dying Declaration has been exempted from the restriction, which otherwise attaches to a statement recorded by a Police Officer, in course of investigation (vide Section 162 Cr. P.C.).

(i) In other words, a dying declaration, though recorded by a Police Officer, is not hit by Section 162 Cr. P.C. and is admissible in evidence.

(j) The practice of the Investigating Officer himself recording the dying declaration, without exploring the possibility of the availability of a Magistrate, ought not to be encouraged.

(k) It is, however, not a hard and fast rule that a Dying Declaration recorded by a police officer, when there was facility for having it recorded by a Magistrate, must necessarily be rejected. It depends upon the facts and circumstances of each case.

Authority:

(i) Surinder Kumar Vs. State (Delhi Administration reported in (1987) 1 Crimes 250 (S.C.)

(ii) State of Punjab Vs. Amarjit Singh reported in 1989 Cr. LJ 95 vide para 18.

(9) Dying Declaration - when may be made

Dying Declaration may be made before or during investigation.

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(10) Procedure for recording of a Dying Declaration (assuming that the person recording it is a Magistrate ) :-

(i) Be satisfied that the proposed declarant is in a fit condition to make a statement. He should be in senses.

(ii) If a doctor is available, ask for his opinion on point Number (i). He is the best person to opine as to that matter.

(iii) Otherwise, have a close look at the general condition of the dying person and put to him simple questions to ascertain whether he is in a position to make conscious statement with normal understanding.

(iv) Once you are satisfied on the point of fitness of mind, proceed to take down the statement.

(v) Do it in the form of questions and answers (Not in narrative).

(vi) Don't ask any leading question.

(vii) Put simple questions, other than in leading form, in the language he understands.

(viii) Record his replies in vernacular exactly in his own words - verbatim reproduction.

(ix) If you understand the language used by him but can not write it, then render it faithfully into English or the Official Language of the State.

(x) After the statement has been recorded, read over and explain it to the declarant.

(xi) If he affirms that it has been correctly recorded, take his signature or thump impression, as the case may be.

(xii) Affix your signature with your designation, date and time.

(xiii) Obtain a certificate from the doctor as to the fitness of the declarant by getting it endorsed in the Dying Declaration itself under his dated signature, at an appropriate place, whenever he has been consulted and is present. If no

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doctor is there, it is for you (the Magistrate) to append a certificate to the effect that the Declaration was conscious and in a fit condition to make statement.

(xiv) At the top of the dying declaration, don't forget to note down the name and other particulars, such as Father's or Husband's name, and address of the declarant and also the date, time and venue of the Dying Declaration.

(xv) Put the Dying Declaration in an envelope, get it sealed in your presence and forward it to the CJM, SDJM or JM having jurisdiction, as early as possible.

(xvi) Always remember that the object of taking the dying declaration from a dying person is to ascertain the cause of his/her impending death or the circumstances of the transaction which may result in his/her death.

(xvii) If he/she names any assailant, take from him/her such particulars as may establish the identity of the assailant.

(xviii) Take such steps, as the circumstances may permit, to exclude the possibility of tutoring/prompting and to remove any outside influence. The statement should be his/her own in its entirety - free, voluntary and untainted.

(xix) Please bear in mind that there is no prescribed form for dying declaration.

(11) Dying Declaration - need for scrutiny by the Court

As a dying declaration is taken in absence of the accused and the declarant, being dead, can not be cross-examined, the dying declaration should be subjected to the strictest scrutiny and closest circumspection by the court.

(12) Points to be considered by the Court in assessing the probative value of a Dying Declaration :

(a) Did the declaration have sufficient opportunity of seeing the assailant?

(b) Whether the capacity of the declarant to remember facts stated by him was impaired at the time of his making the statement by circumstances beyond his control, either due to the nature of injuries or for any other causes?

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(c) Whether the statement was made at the earliest opportunity?

(d) Whether the declarant was conscious and in a condition fit to make statement?

(e) Whether there was any scope for tutoring/ prompting/ outside influence operating on the mind of the declarant?

(f) Did the declarant have any hostile bias or enmity as against any of the assailants named by him?

(g) Was the dying declaration coherent and consistent?

(h) Did the Dying Declaration suffer from any inherent infirmity/ improbability?

(13) Dying Declaration - may be oral or written

(a) A dying declaration is generally reduced to writing but it may also be oral.

(b) The exact words uttered by the declarant are required to be proved when the Dying Declaration has not been documented.

(c) In case of oral dying declaration, proof of it becomes difficult, because the witnesses can hardly be expectedto remember what the declarant actually said.Their memories are likely to fade.This is not to suggest that an oral dying declaration can not be proved or relied upon.

(d) An oral dying declaration, which has been duly proved by independent and reliable witnesses, may be acted upon.

(14) Proof of Dying Declaration

(a) A dying declaration may be proved by the person who recorded it (usual mode of proving a written dyingdeclaration).

(b) When oral, it may be proved by any person who heard the declarant making the statement u/s 32 (1).

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(c) If the original written dying declaration is shown to have been destroyed or lost, it may be proved by the Production of secondary evidence. (vide Sections 63 and 65 of the Indian Evidence Act).

NOTE:- A Written dying declaration is a document within the meaning of Section 3 of the Indian Evidence Act, which includes a definition of the term "document".

(15) Evidentiary value of Dying Declaration

(a) As indicated earlier, the Dying Declaration should be subjected to strictest scrutiny.

(b) If after such scrutiny, the Court is satisfied that the Dying Declaration is truthful and reliable, it may be acted upon without corroboration and it may form the sole basis of conviction in a criminal trial.

(c) The Dying Declaration is a substantive evidence and the finding of a Court of Law may be founded upon it, provided that it is founded true and worthy of credit.

(d) If upon scrutiny, the court is not inclined to accept the Dying Declaration as wholly reliable and fully truthful, it may look for corroboration.

(e) Such corroboration may be provided by circumstantial evidence, expert testimony and oral evidence of witnesses unconnected with the Dying Declaration.

(f) While the principles indicated above apply to the Dying Declaration recorded by any person including a Magistrate, an additional safeguard is required to be taken when the Dying Declaration has been taken down by a police officer. In such case, Dying Declaration recorded by the Police ought not to be taken into account unless and until it is explained to the satisfaction of the Court as to why the better method of having it recorded by a Magistrate was not adopted.

(g) If the dying declaration appears to be tainted or the result of tutoring or product of rancor, or suffers from inherent infirmity, it is liable to be rejected.

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(h) Corroboration is not essential, when the Dying Declaration commends itself to be fully truthful and wholly reliable.

(i) If a part of the dying declaration is false, it is not necessary that the Dying Declaration must be discarded in its entirety.

(j) The dying declaration recorded by a police officer, if believed, can be relied upon for conviction.

(k) Each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made.

(16) Dying Declaration when the victim survives:

(a) If the victim chances to live, his/her statement can not be used as a Dying Declaration.

(b) In such events, it may be used as previous statement for the purpose of contradiction, u/s 155/145 Evidence Act or for corroboration u/s 157 Evidence Act.

(c) A dying declaration recorded by a Police Officer, when the victim survives, may be used for the purpose of contradiction only.

(17) Illustrative Cases :

(a) The cow of `A' was detained by `B' in his house. `A' told his wife that he was going to the house of `B' to take back his cow.

In the house of `B' a quarrel ensued between `B' and `A' in course of which `B' stabbed `A'.

`A' succumbed to the injury. The statement made by `A' to his wife is admissible u/s 32(1) Evidence Act, because it related to one of the circumstances of the transaction which resulted in his death.

(b) There was illicit intimacy between `M' a man and `W', a woman, who were not related as husband and wife.

`W' became pregnant as a result of such illicit connection.

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`W' stated to her friend, `F', that here pregnancy was caused by `M' and that `M' was trying to do away with her.

Later on, `W' was poisoned to death by `M' in order to avoid a scandal.

The statement made by `W' to `F' is relevant u/s 32(1), as it related to the circumstances leading to her death.

(c) `A' was seriously injured in a railway accident.

He made a declaration as to the cause of his injury holding the Railway Company responsible for negligence.

He died from the effect of such injury.

His wife filed a suit for damages for death of her husband due to negligence of the Railway Company.

In that civil suit, the declaration of `A' as to the cause of his death was admitted in evidence u/s 32 (1) of the Evidence Act.

(d) `A' was stabbed in his abdomen. He was in severe bodily pain, though fully conscious. He was about to die.

A Police Officer recorded the statements of `A'.

`A' stated that he was stabbed by `B'.

It was very brief.

`A' died shortly.

At the trial of `B' on a charge of murder of `A'; the dying declaration was proved by the Police Officer.

The dying declaration was challenged by the defence on two grounds :-

Firstly, it was recorded by a Police Officer.

Secondly, the dying declaration was very brief.

Both these contentions were rejected by the Court.

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Reasons :-

i. (a) There is no requirement of Law that a dying declaration must necessarily be made to a Magistrate.

i. (b) A Police Officer is not legally incompetent to record a dying declaration.

i. (c) In the circumstances of the case, there was no time to call a Magistrate.

i. (d) The death of `A' was so imminent that the Police Officer was fully justified in recording his dying declaration without wasting time in search of a Magistrate.

i. (e) The dying declaration was not vitiated in any way and as such, it was entitled to be given due weight.

ii (a) When `A' was in severe bodily pain, his natural impulse would be to tell, without wasting his breath on details, as to who stabbed him.

ii (b) The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from taint of tutoring.

(e) `W', a married woman, died of burn injuries.

The incident took place on 10th April.

She was alive upto 18th April.

She met the villagers, who appeared on the scene just after the occurrence and took her to the hospital. She did not make any statement implicating her husband, either to any of the villagers or to the doctor or the nurse attending on her.

It was only on the 18th April when she met her uncle that she disclosed for the first time that her husband sprinkled kerosene oil and set heron fire.

Later on, she repeated that statement to the Magistrate, who recorded her dying declaration.

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At the trial where the husband was an accused, the dying declaration was tendered in evidence.

The Court refused to rely upon that dying declaration.

The consideration which weighed with the court is that it is notoutside the realm of probability that her statement may have been inspiredby her uncle and therefore, it will not be safe to base the conviction of the husband on such a dying declaration.(AIR 1983 SC 274)

(f) `W', a married woman, died an unnatural death under suspicious circumstances.

She was writing letters to her mother over a period of two years prior to her death alleging demand may by her husband for additional dowry, ill-treatment and torture inflicted upon her by him and also of threats held out to her by him that she would do away with her, if his demand was not met.

Allthoseletters are admissiblein evidence u/s 32(1) of the Evidence Act as Dying Declarations.

Reasons:-Here, death was a logical culmination of a continuous drama of the story, the statement regarding each step directly connected with the end of the drama, and as such, would be admissible.

Such statements come to light only after the death of the unfortunate wife.

The test of proximity can not be too literally construedand practically reduced to a cut and dried formula of universal application to be confined in a straight-jacket.

(The reasons are based on the propositions propounded by the SupremeCourt in Sharad vs State of Maharashtra reported in AIR 1984 SC 1622)

NOTE:- A suicide note may be accepted as dying declaration u/s 32(1) of the Indian Evidence Act.

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(g) `A' was stabbed by `B'.`A' stated to a Magistrate that it was the `B's hand which inflicted the injury on his person.

`A' was also sufferingfrom cardiac ailments. `A' died.

The clear finding of the Doctor was that the death of `A' was not due to the injury but on account of heart failure, which was independent of the injury.

The statement of `A' to the Magistrate was not regarded as dying declaration, because his death had no nexus with the injury and hence, his statement did not relate to the cause of his death.

Section 32(1) of the Indian Evidence Act was not attracted to the facts of that case.

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APPRECIATION OF EVIDENCE - an outline

I. APPRECIATION OF EVIDENCE - WHAT IT MEANS ?

1. It is a matter of experience, common sense and knowledge of human affairs.

2. It is left to the discretion of the Judge/Magistrate.

3. Weighing evidence and drawing inferences.

4. Possible effect of evidence upon the minds of the Judge/ Magistrate.

II. EVIDENCE - WHAT IT IS ?

Evidence: It means all the legal means, exclusive of argument which tends to prove or disprove any fact the truth of which is submitted for judicial determination.

It is the instrument by which the court is convinced of the truth or other wise of the matter under trial.

III. DUTY OF THE JUDGE OR MAGISTRATE

1. Application of the mind to the material on record and arguments of both sides.

2. Discussion of the evidence and its evaluation.

3. Consideration of the contentions of the parties.

4. Findings on issues.

5. Reasons for decisions.

6. Reliefs granted.

IV. WHAT MATTERS ARE BEFORE THE COURT WHICH MAY BE CONSIDERED

1. Material objects.

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2. Demeanour of the witnesses.

3. Local Inspection by the Judge.

4. Answer given by the accused u/s 313 Cr.P.C.

5. Confession made by a prisoner u/s 30 Evidence Act.

6. Admissions made in the pleadings.

7. Oral and documentary evidence.

V. WHAT THE JUDGE OR MAGISTRATE SHOULD BEAR IN MIND ?

1. The respective cases of the parties.

2. Points in controversy

3. Facts admitted need not be proved

4. Consideration of the matters before the court including the statements of witnesses and the documents produced.

5. Who has the burden of proof?

6. What presumption, if any, applies?

7. When corroboration is required ?

8. Which facts are beyond dispute?

9. Which version is more probable?

VI. CLASSIFICATION OF WITNESS

1. Wholly reliable

2. Wholly unreliable

3. Neither wholly reliable nor wholly unreliable.

VII. KINDS OF WITNESSES

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1. Eye-witness

2. Post-occurence witness.

3. Formal witness

4. Expert witness

5. Independent witness.

6. Interested witness.

7. Partisan witness

8. Chance witness

9, Hostile witness

10. Pocket or stock witness

11. Trap witness

12. Seizure witness

13. Rustic witness

14. Solitary witness

15. Won over witness

16. Child witness

17. Woman witness

18. Related witness

19. Police witness

20. Official witness

21. Approver as a witness

22. Accused as a witness

23. Party as a witness

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24. Convict as a witness

25. Prosecutor as witness

VIII. DEMEANOUR OF WITNESS

1. His hesitations

2. His doubts

3. His tone

4. His accent

5. His variations

6. His confidence

7. His calmness

8. How he is affected by questions.

9. His evasiveness

10. Is he frank or suppressive ?

IX. OBJECT OF APPRECIATION OF EVIDENCE

1. To separate the grain from the chaff.

2. To disengage the truth from falsehood.

3. The truth or false hood of testimony depends upon motives or balance of the motives operating upon the mind of a witness.

X. ASSESSMENT OF T HE CREDIBILITY OF A WITNESS

1. His character

2. Extent and manner of his interestedness.

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3. How he fared in the cross-exam

4. Whether the story told by him is probable ?

5. Does his testimony conform to the admitted or established facts?

6. His animus

7. His demeanour

8. Intrinsic worth

XI. INTERFACE

1. Presiding Officer, (Judge/Magistrate)

2. Court staff including Bench Clerk

3. Litigants

4. Lawyers

5. Law clerks

6. Witnesses

7. Prosecutors

8. Accused.

9. Spectators

10. Police officials

11. Professional sureties

12. Touts

XII. FUNCTION AND QUALITIES OF AS JUDGE OR MAGISTRATE

Function

1. To settle dispute

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2. To adjudicate3. To grant relief

Qualities

a)Civilityb)Rectitutec)Impartialityd)Fairnesse)Proprietyf)Opennessg)Socially sensitizedh)Active in securing justice

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EVIDENCE - PART- II

I. Contents of document -

How to prove?:

By primary evidence which the law requires to be given first document itself

By secondary evidencewhich the law permits to be given in absence of primary evidence after due explanation

II. How to prove hand - Writing :

(1) by the testimony of the person who wrote the document.

(2) by the evidence of the person in whose presence the document was written.

(3) by calling a person as witness who is familiar or acquainted with the handwriting in question.

(4) by an expert on comparison.

(5) by the admission of the part against whom the document is sought to be used.

Note :

(a) A court has power to compare writing including signatures.

(b) A court has power to direct a person to give hand- writing signatures (see 73 I.E. Act.)

III. Photographs - how to prove

(1) The photographer should be examined.

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(2) He should depose as to taking of photographs and developing them into negatives.

(3) The negatives are to be produced and proved in the first instance.

(4) No print or enlargement is admissible without the negatives being exhibited first.

(5) The positive print or enlarged print may be proved by the person preparing the same.

(6) Accuracy of the photograph is to be established on oath by the photographer or some one who can testify as to it.

IV. Tape- record : Conditions for admissibility.

(1) The statement recorded is relevant according to the Rules of evidence.

(2) The voice is identified.

(3) The time, place and accuracy of the voice are proved.

(4) Possibility of tampering or erasure is ruled out.

(5) The voice should be clearly audible.

(6) The recorded cassette is sealed and kept in safe custody.

Note : Evidence of tape-recorder must accepted with caution.

V. Certain Powers of the Court under the Indian Evidence Act.

(1) Court to decide when question shall be asked and when witness shall be compelled to answer.Section 148 I.E. Act.

(2) Question not be asked without reasonable grounds.Section 149 I.E. Act.

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(3) Procedure of Court when question being asked without reasonable grounds.Section 150 I.E. Act.

(4) Court may forbid indecent and scandalous questions.Section 151 I.E. Act.

(5) Court shall forbid question intended to insult or annoy.Section 152 I.E. Act.

(6) Court may put questions, relevant or irrelevant to any witness at any time or order production of any document or thing.Section 165 I.E. Act.

VI. Duty of a lawyer - five fold

a) To clientb) To courtc) To societyd) To opposite partye) To himself

VI. Court and Lawyer - Co-relationship.

1) An advocate is an officer of the court.

2) He is not subordinate to court.

3) Co-operation between the Bench and the Bar is a must.

4) he shall maintain towards the court - a respectful attitude bearing in mind that the dignity of a Judge or Magistrate is essential for the survival of a free society.

5) While it is the duty of an advocate to maintain dignity, he should not be servile.

6) There is no guarantee of justice except the personality of the Judge or the Magistrate.

VII. How to control an unruly lawyer ?

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a) Professional misconduct : Rules framed by the Bar Council under the Advocate Act.

b) Contempt :

:

Under 345,Cr. P.C.

Sec. 346 Under Contempt of Court Act.

c) It is better to use moral authority than legal authority.

d) To report to the High Court or other authority as envisaged in Sec. 150 of the Indian Evidence Act.

VIII. How to control recalcitrant Police Personnel.

Administrative Legal1) Write letters to

SP/DIG/IG/DG1) Section 29 Police Act.

2) Meeting of Co-ordination Committee DJ/DM/SP/CJM

2) In case of non- attendance by police witness Sec. 350 Cr. P.C.

3) Provision of Chapter X IPC mayalso be applied in appropriate

cases.

4) Contempt of Courts Act.

5) Contempt u/s 345 Cr. P.C.

IX. Recording of Evidence by the Court- There are three modes as indicated below:

1) Question and answer form.

2) Narrative form.

3) Memorandum of substance of evidence.

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AFFIDAVIT1. Affidavit: What it is?

(a) It is a statement or a declaration in writing.

(b) Made under oath or on affirmation.

(c) Before a Court, Magistrate or Officer having authority to administer oath or affirmation.

2. Who has the power to administer oath or affirmation ?

(a) The answer may be found in Section 3 of the Oaths Act (Act 44 of 1969).

(b) All Courts or persons having by law or consent of the parties, authority to receive evidence, may administer oath or affirmation.

(c) Any Court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf :

i) by the High Court in respect of affidavits for the purpose of judicial proceedings.

ii) by the State Governments, in respect of the other affidavits.

3. Form of oath/affirmation in case of affidavits.

“I do swear in the name of Godsolemnly affirm that this is my name and signature (or mark ) and that the contents of my affidavit are true.”

(Reference Schedule to Oaths Act, read with Sec.6 thereof.)

4. Authorities before whom affidavits may be sworn for the purpose of being used under the Code of Criminal Procedure.(Vide Sec.297 Cr. PC.)

(a) Any Judge or Judicial or Executive Magistrate.

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(b) Any Commissioner of Oaths appointed by the High Court or Court of Session.

Or

Any notary appointed under the Notaries Act, 1952 (Act 53 of 1952)

5. Affidavits under the Cr. PC.) may contain:

(a)facts based on personal knowledge of the deponent.

(b)facts founded upon belief of the deponent and the grounds of such belief.

(Reference Sec. 297 Cr. PC.)

6. When evidence may be given by affidavit at any trial or inquiry under Cr. PC :

(a) When the evidence is of a formal character, as for example, evidence of a person who took specimen fingerprint of an accused (vide Sec. 296 Cr. PC)

(b) When allegations against a Public Servant are made (Sec. 295 Cr. PC)

(c) An application for transfer of a case ought to be supported by affidavit (Vide Sec.. 407 (3) and 408(3) Cr. PC)

(d) When affidavit evidence is tendered the opposite party may file counter-affidavit.

(e) The Court may, if it thinks fit, call the deponent for examination as to the facts contained in the Affidavit.

(Reference : Sec. 296 Cr. PC)

6. Affidavits under the Code of Civil Procedure.

(a) Sec. 30(c) C.P.C. provides that the court may order any fact to be proved by affidavit.

(b) This is, however, subject to such conditions and limitations as may be prescribed.

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(c) In this context, reference should be made to order 19 C.P.C.

(d) Affidavits may be filed in the following matters before a Civil Court.

i) Affidavit in answer to interrogatories (vide Order 11 Rules 8 and 9 C.P.C.)

ii) Affidavits in Discovery and inspection (Vide Order 11 Rules 13 and 15 C.P.C.

iii) Admission may be made on affidavit.

iv) Affidavit for interlocutory matters, as for example:

(a) Attachment before judgement order 38 rule 4 C.P.C.

(b) Temporary injunction Order 39 Rule 1 C.P.C.

8. Affidavit and the Indian Evidence Act.

(a) The Indian Evidence Act does not apply to affidavits presented to any Court or Officer.

(b) Affidavit is not evidence under the Indian Evidence Act. If a fact is allowed to be proved by affidavit by C.P.C., Cr. P.C. or any other law, it can be proved by affidavit notwithstanding the provision of the Indian Evidence Act vide 1955 Cr. L.J. 1451.

7. Who may administer oath for the purpose of swearing affidavits under the Civil Procedure Code (Vide Sec. 139 C.P.C.).

(a) The Indian Evidence Act does not apply to affidavits presented to any Court or Officer.

(b) Affidavit is not evidence under the Indian Evidence Act. If a fact is allowed to be proved a affidavit by C.P.C., Cr. P.C. or any other law, it can be proved by affidavit notwithstanding the provision of the Indian Act vide 1995 Cr. L.J. 1451.

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8. Who may administer oath for the purpose of swearing affidavits under the Civil Procedure Code (Vide Sec. 139 C.P.C.)

(a) Any Court or Magistrate.

(b) Any Notary appointed under the Notaries Act., 1952.

(c) Any Officer or other person whom a High Court may appoint in this behalf.

(d) Any Officer appointed by any other Court which the State Government has generally or specially empowered in this behalf.

9. Affidavit - What the Magistrate, empowered to administer Oaths/ affirmation, should bear in mind.

(a) Affidavit should contain facts personally known to the deponent or it may be based on information from a source which be believes to be correct. The grounds of belief should be stated.

(b) The contents of the affidavit must be read over to the deponent in a language which be understands and vouched by him to be correct (1975 Cr. L.J. 948 (950).

(c) Affidavits must be properly verified and must clearly state what is based on knowledge and what is on belief. (1963 (I) Cr. L.J. 512 and AIR 1987 SC 294).

(d) The Magistrate must satisfy himself about the identity of the deponent and that the deponent had owned the statements contained in the affidavit.

(e) The endorsement in the affidavit should show that the essential formalities had been observed by the Magistrate attesting the affidavit.

(f) Seal of the Magistrate, before whom the affidavit is sworn, should be affixed.

(g) The affidavit should bear stamp as required under the Law.

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(h) Scandalous matter should be avoided in an affidavit as far as possible.

(i) When the matter is both scandalous and irrelevant, it may be struck out from the affidavit.

(j) The deponent is responsible for making precise and accurate statements in affidavit and the part or the role assigned to the person entitled to administer oath is no less sacrosanct (AIR 1985 SC 28).

10. Affidavit- evidentiary value

(a)Unless Law recognizes proof of a fact by affidavit, affidavit evidence is inadmissible, say for instance, actual possession u/s 145(4) Cr. P.C. can not be proved by affidavit.

(b)If the deponent does not produce himself for cross-examination in answer to a demand by other side, the affidavit loses all its value (1955 Cr. L.J. 1451).

(c) If affidavits are conflicting, deponents should be summoned for cross-examination to ascertain the truth (AIR 1965 SC 1303).

(d)Contempt proceedings before the Supreme Court or the High Courts are generally decided on the basis of affidavits (AIR 1955 All. 638).

(e)Writ petitions may be decided on affidavits and counter- affidavits. If necessary, the Supreme Court or the High Court may order inquiry into alleged facts (1964 SC 1625) or permit cross-examination of the deponent on either side (AIR 1967 SC 295 and AIR 1950 SC 27 (67).

(f) General principles of appreciation of evidence shall apply as far as possible, to the affidavit evidence, when it is receivable in evidence.

(g)Vague denial in counter-affidavit of an assertion made in the affidavit is no denial.

11. Affidavit and Prosecution

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(a)Law enjoins that persons making statements on oath or solemn affirmation speak the truths.

(b)To file a false affidavit is a serious wrong and the person who does so can not be said to have respect for sanctity of oath.

(c) A person who binds him on oath to state the truth is bound to state the truth.

(d)Filling false affidavit in a Court in proof of a fact relevant to the judicial proceeding, where affidavit evidence is admissible, is an offence as defined in Section 191 I.P.C., which is known as perjury and which is punishable u/s 193 I.P.C.

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PRESUMPTIONS - AT A GLANCE

I. Proof of a Fact and Presumption

A fact may be proved by any or the following means or a combination of two or more of them.

1) By production evidence.

2) By relying on admissions, which may be found in evidence or in pleadings or otherwise (matters before the Court).

3) By invoking the aid of presumption.

4) By taking assistance from the matters before the Court (other than evidence such as demeanour of a witness).

5) By combination of two or more of these modes.

II. Presumption

Simply speaking, presumption is an inference. Basically it is of two kinds :

1) Presumption of fact

2) Presumption of law

III. Here, reference should be made to Section 4 of the Indian Evidence Act. In the context of a Court making presumptions, three different expressions have been used, namely,

i) "May presume",

ii) "Shall presume",

iii) "Conclusive proof"

IV. When the Court may presume or shall presume or accept it as conclusive proof is given below in a tabular form:

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May presume Shall presume Conclusive proof

Sec. 86Sec. 87Sec. 88Sec. 90Sec. 114Sec. 113A

S. 79S. 80S. 81S. 82S. 83S. 84S. 85S. 89S. 105S. 111AS. 113BS 114 A

S. 41S. 112S. 113

V. Examples of Presumption

1. If ornaments of the deceased woman are found in possession of a person, soon after the murder , a presumption of guilt may be made.

2. If the accused was found soon after the theft in possession of a large number of stolen articles, if may be presumed that he was either the thief or the Receiver of stolen properties.

3. An accused is presumed to be innocent unless his guilt is established beyond reasonable doubt.

4. Judicial and official acts may be presumed to have been regularly performed.

5. The evidenec, which could be and is not produced, would, if produced, be unfavourable to the person who withholds it.

V. Facts judicially noticeable need not be proved. (Sec. 56 Indian Evidence Act)

Examples

1. Historical Facts

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2. Geographical Facts

3. Scientific inventions

4. Socio-economic conditions

5. Price hike.

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Case Study No. 1

PROMOD MAHAJAN & OTHERS (APPELLANT)VS.

STATE OF BIHAR (RESPONDENT)Reported in AIR 1989 Supreme Court 1475

In this case, four appellants before the Supreme Court, had been the accused No. 1 to 4 before the Sessions Judge who tried them. The case of the prosecutions was as follows:

The accused No. 1 to 4 and some other persons entered the house of the victims. The accused No. 1 to 4 first committed rape on Jaiboon Nisa, an unmarried girl aged about 15 or 16 years. They then raped on Shakina Khatoon. Thereafter, they committed rape on Maimum Nisa. Both Shakina and Maimum were married. It was, therefore a case where the four accused committed rape on each of the three women in succession.

The plea raised by the defence, was that the case was foisted on the accused persons due to communal feelings.

The Supreme Court rejected the defence pea and held, "even if communal feelings had run high, it is inconceivable that an unmarried girl and two married women would go to the extent of staking their reputation and future in order to falsely set up a case of rape on them for the sake of communal interests".

The accused No. 1, Dr. Bharti who played a leading role in the commission of the offences, was sentenced to imprisonment for life. The other three accused were sentenced to rigourous imprisonment for 10 years each.

It was a case of Gang Rape. The Supreme Court observed, "It is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under Section 376 IPC.

This case is covered by Sec. 376 (2) IPC. The minimum punishment prescribed was ten years imprisonment. The Supreme Court awarded the minimum of ten years as a against each of the three accused. The remaining accused (Dr. Bharti) was sentenced to imprisonment for life.

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Caste Study No. 2

BALWANT SINGH & OTHERS (APPELLANTS)VS

STATE OF PUNJAB (RESPONDENT)

REPORTED IN AIR 1987 SUPREME COURT 1080

In this case. Km. Rajwant Kaur, aged about 19 or 20 years who was a student of B.A. Part-II, was raped by the four accused, Balwant Singh, Gurdish Singh, Nirmal Singh and Saudagar Singh. The contention of the accused was that because of the enmity of the father of the prosecutrix against the accused. the accused had been falsely implicated. The Supreme Court did not accept the contention and observed that "it may be that the litigations are going on between Dalip Singh (father of the prosecutrix) and the appellants, but it is absurd to suggest that because of the litigations or any enmity that he may have against the apellants, he would have falsely involved his daughter in a case of rape by the appellants".

In this case, the evidence of the prosecution that she was raped by the accused persons one after the other, was supported by the Medical Report and also by the evidence of the father.

The Supreme Court also observed that it cannot be said that whenever resistance is offered there must be some injury on the body of the victim. In this case, the prosecutrix had red abrasions on her right breast. The absence of any injury on the back of the prosecutrix or any other part of her body, does not falsify the case of rape by the appellants on her.

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