The Code of Criminal Procedure, 23rd ed
Ratanlal & Dhirajlal: Code of Criminal Procedure (PB), 23rd ed / The Code of Criminal Procedure, 1973
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The Code of Criminal Procedure, 1973
(Act No. 2 of 1974) [25th January 1974]
An Act to consolidate and amend the law relating to Criminal Procedure.
BE it enacted by Parliament in the Twenty-fourth Year of the Republic of India as follows:—
The Code of Criminal Procedure, 1973 CHAPTER I PRELIMINARY
[s 1] Short title, extent and commencement.—
(1) This Act may be called the Code of Criminal Procedure, 1973.
(2) It extends to the whole of India1.[***]:
Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply—
(a) to the State of Nagaland, (b) to the tribal areas,
but the concerned State Government may, by notification, apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification.
Explanation.— In this section, "tribal areas" means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong.
(3) It shall come into force on the 1st day of April, 1974.
The Code of Criminal Procedure, 1973 (CrPC), came into effect from 1 April 1974. It received the assent of the President on 25 January 1974. For its application to the Union Territories of Andaman and Nicobar Islands, Dadra and Nagar Haveli and Lakshadweep, see the Code of Criminal Procedure (Amendment) Regulation, 1974 (I of 1974).
There was at first no uniform law of criminal procedure for the whole of India. There were separate Acts, mostly rudimentary in their character, to guide the procedure of the Courts in the erstwhile provinces and the presidency towns. Those applying to the presidency towns were first consolidated by the Criminal Procedure Supreme Courts Act (XVI of 1852), which in course of time gave place to the High Court' Criminal Procedure Act (XIII of 1865). The Acts of Procedure applying to the provinces were replaced by the general Criminal Procedure Code (Act XXV of 1861), which was replaced by Act X of 1872. It was the Criminal Procedure Code of 1882 (Act X of 1882) which gave for the first time a uniform law of procedure for the whole of India both in presidency towns and in the moffusil; it was supplanted by the Code of Criminal Procedure, 1898 (Act V of 1898). This last-mentioned Act had been amended by many amending Acts, the most important being those passed in 1923 and 1955. The extensive amendments of 1955 were made with intent to simplify procedure and speed up trials. The State Governments too made a large number of amendments to the Code
of 1898. But, on the whole, the Code of 1898 remained unchanged for a very long period.
In the meanwhile, the Law Commission, as first constituted, presented its report on the Reform of Judicial Administration (14th Report) on 26 September 1958. The Commission after being reconstituted was asked by the Central Government to undertake a detailed examination of the Code of Criminal Procedure, 1898. After making recommendations separately on some specific problems arising out of certain provisions in the Code, the Commission, under the chairmanship of Shri JL Kapur, submitted a very comprehensive Report on 19 February 1968, on sections 1 to 176 of the Code. The Commission was again reconstituted in 1968. After its reconstitution, the Commission made a detailed study of the Code, met Judges and representatives of the various Bar Associations in different parts of the country, received suggestions from various quarters and ultimately submitted a detailed report, namely, the Forty-first Report, in September 1969. These recommendations of the Commission were examined by the Government in the light of the following basic considerations:
(i) An accused person should get a fair trial in accordance with the accepted principles of natural justice;
(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to the society; and
(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.2.
Thereafter, a draft Bill, Bill No. XLI of 1970, was introduced in the Rajya Sabha on 10 December 1970. The Bill was referred to a Joint Select Committee of both the Houses of Parliament and finally emerged in its present form and passed by both the Houses.
Ordinarily, the Code does not affect (1) any special law (section 41, Penal Code), (2) any local law (section 42, Penal Code), (3) any special jurisdiction or power, or (4) any special form of procedure (see section 5).
With the above exceptions, the Code extends to the whole of India except the State of Jammu and Kashmir. This provision excluding Jammu and Kashmir from the application of the Act was held to be not violative of Article 1 of the Constitution.3.
The above-mentioned position is no longer valid in the light of the recent amendment wherein the words "except the State of Jammu and Kashmir" has been omitted.4.
However, an order for attachment of salary for the recovery of maintenance in favour of a wife has been held to be executable notwithstanding the fact that the husband was in the service of the Income-tax Department in J&K.5. A Constitution Bench of the Supreme Court in Anita Kushwaha v Pushap Sudan6. was seized of a challenge that section 406 CrPC did not extend to the State of Jammu and Kashmir and cannot, therefore, be invoked to direct any such transfer. It was held that absence of an enabling provision cannot be construed as a prohibition against transfer of cases to or from the State of Jammu and Kashmir. The provisions of Articles 32, 136 and 142 are wide enough to empower the Supreme Court to direct such transfer in appropriate situations, no matter Central Code of Civil and Criminal Procedures do not extend to the State nor do the State Codes of Civil and Criminal Procedure contain any provision that empowers the Supreme Court to transfer cases.
The provisions of the Code, other than those relating to Chapters VIII (Security for Keeping the Peace and for Good Behaviour), X (Maintenance of Public Order and Tranquillity) and XI (Preventive Action of the Police), do not apply to the State of
Nagaland and to the tribal areas as defined in the Explanation. However, the concerned State Government is empowered to apply such provisions with modifications, if necessary, either to the whole or any part of the State of Nagaland and tribal areas.
The Criminal Procedure Code is mainly an adjective law of procedure. The object of a CrPC is to provide a machinery for the punishment of offenders against the substantive criminal law,7. e.g., the Indian Penal Code (IPC). In fact, the two Codes are to be read together. Some terms are specially defined in the Criminal Procedure Code, but in the absence of such definition, the definitions set out in the IPC are to be adopted [section 2(y)]. The Code also provides machinery for punishment of offences under other Acts.
It is, however, worth noting that the Code is not a pure adjective law. There are certain provisions of the Code which partake of the nature of substantive law, e.g., prevention of offences (Chapters VIII, X and XI) and maintenance proceedings (Chapter IX).
Enactments regulating the procedure of courts seem usually to be imperative and not merely directory.8. In other words, the rules of procedure are enacted to be obeyed. The object of these rules is to simplify and shorten proceedings. It is not always easy to keep strictly to the line of procedure prescribed, and irregularities do occur now and then in trials of cases. The Code itself divides such irregularities into two classes: (1) irregularities which do not vitiate proceedings (section 460) and (2) irregularities which vitiate proceedings (section 461). It also provides that no error, omission or irregularity in a trial shall vitiate a finding, sentence or order unless it has occasioned a failure of justice (sections 464 and 465). The Code further preserves the inherent right of the High Court to make orders (1) to give effect to any order under the Code, or (2) to prevent abuse of the process of any Court, or (3) to secure the ends of justice (section 482).
The provisions of the Code are procedural, where the violation of any provision does not cause prejudice it has to be treated as directory despite the use of the word "shall".
So while interpreting section 202(2) (proviso), the Supreme Court said examination of all the witnesses cited by the complainant was not mandatory.9.
[s 1.1] Amendments.—
The Code, being a Parliamentary Legislation, can be amended only by another Act or by an Ordinance but cannot be amended by a simple notification issued by State Government. Criminal Law comes under List III (Concurrent List) of the Seventh Schedule of the Constitution; therefore, both State and Centre have powers to amend Criminal Law.10. Moreover, a Central Act can be amended even by a State Act only after obtaining assent of the President vide Article 254(2) of the Constitution of India.
Notification No. 777/VIII-9 4 (2)-87, dated 31 July 1989 published in UP Gazette, which purported to amend CrPC 1973, without the assent of the President was held to be illegal.11.
[s 1.2] How far exhaustive.—
So far as it deals with any point specifically, the Code must be deemed to be exhaustive, and the law must be ascertained by reference to its provisions; but where a case arises, which demands interference and it is not within those for which the Code specifically provides, it would not be reasonable to say that the Court did not have the power to make such order as the ends of justice required.12. Absence of any provision on a particular matter in the Code does not mean that there is no such power in a criminal Court which may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited by law.13.
[s 1.3] Limitation period.—
In general, there is no limitation of time in filing complaints. They can be filed at any time. But it is to be remembered that delay in the filing of complaints is attended with two evils: first, the memory of witnesses is likely to fade by passage of time; and, secondly, valuable links of evidence may disappear, e.g., death of witnesses, destruction of property, etc. The Limitation Act, 1963, provides periods of limitation within which appeals and revision applications should be filed (Articles 114, 115 and 131). A specific chapter in the Code, viz., Chapter XXXVI, containing sections 467 to 473 prescribes limitations for taking cognizance of certain offences.
[s 1.4] Citizens' right to set criminal law in motion.—
It is trite law that ordinarily, it is open to anyone, even a stranger, to set the criminal law in motion.14. In certain classes of offences, however, it is only the person aggrieved who can start the proceedings (see sections 195 to 199, infra).
[s 1.5] Tribal area.—
"Tribal Areas" means the territories which immediately before 21 January 1972 were included in the tribal areas of Assam as referred to in para 20 of the Sixth Schedule of our Constitution other than those within local limits of the municipality of Shillong.
Paragraph 5(1) of the Fifth Schedule, Part B of our Constitution runs as under:—
Notwithstanding anything in this Constitution, the Governor may by public notification, direct that any particular Act of the Parliament or of the legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the state subject to such exceptions and modifications, as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.
In exercise of this power, the Governor of Andhra Pradesh issued a notification published in the Gazette of 29 March 1974 directing that this Code shall apply to the Scheduled areas in the State of Andhra Pradesh subject to the modification that in section 1(2) of this Code after the existing proviso, the following proviso shall be inserted:
Provided further that the provisions of this Code shall not apply on and from the 1st day of April, 1974 to the Scheduled areas in the State of Andhra Pradesh, but the State Government may by notification, apply such provisions or any of them to the whole or part of such scheduled areas with effect from such date or dates and with such supplemental, incidental or consequential modifications as may be specified in the notification.
This direction came into force on 1-4-1974.
By virtue of this notification, another proviso has been added, directing the tribal areas, which are scheduled areas also, will be governed by the provisions of the Criminal Procedure Code, 1898. This Code shall not apply to the tribal areas of Andhra Pradesh.15.
1. The words "except the State of Jammu and Kashmir" has been omitted by the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019), sections 95, 96 and Fifth Sch, Table-1 (w.e.f. 31- 10-2019).
2. Statement of Objects and Reasons, See Gazette of India Extraordinary, Pt II, section 2, pp 1309–1310.
3. KRK Vara Prasad v UOI, AIR 1980 AP 243 (DB).
4. Omitted by the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019), sections 95, 96 and Fifth Sch, Table-1 (w.e.f. 31-10-2019).
5. Madhav Kumar Anand v Sudesh Kumar, 1984 Cr LJ NOC 175 (Punj).
6. Anita Kushwaha v Pushap Sudan, (2016) 8 SCC 509 : AIR 2016 SC 3506 : 2016 Cr LJ 4151 : 2016 (7) Scale 235 .
7. Mona Puna, (1892) 16 Bom 661.
8. Maxwell on the Interpretation of Statutes, 10th Edn, p 379.
9. Shivjee Singh v Nagendra Tiwary, AIR 2010 SC 2261 : (2010) 7 SCC 578 .
10. As for example, in the State of Uttar Pradesh, section 438 of the Code has been deleted and anticipatory bails are filed under Article 226 of the Constitution.
11. Virendra Singh v State of UP, 2002 Cr LJ 4265 (All).
12. Nagen Kundu v Emperor, AIR 1934 61 Cal 498 .
13. Hansraj, (1942) Nag 333; Rahim Sheikh v Emperor, (1923) 50 Cal 872 , 875 : AIR 1923 Cal 724 .
14. Re Ganesh Narayan Sathe, ILR (1889) 13 Bom 600 .
15. Re State of Andhra Pradesh, 1992 Cr LJ 1827 (AP) : AIR 1961 AP 448 .
The Code of Criminal Procedure, 1973 CHAPTER I PRELIMINARY
[s 2] Definitions.—
In this Code, unless the context otherwise requires,—
(a) "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence;
(b) "charge" includes any head of charge when the charge contains more heads than one;
(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;
COMMENT
In order to be a cognizable case under this section, it would be enough if one or more (not necessarily all) of the offences are cognizable offences. The Code does not contemplate any case to be partly noncognizable.16.
(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.— A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;
In general, a complaint into an offence can be filed by any person, except in cases of offences relating to marriage, defamation and offences mentioned in sections 195 to 197.17.
A complaint in a criminal case is what a plaint is in a civil case. It is one of the modes in which a Magistrate can take cognizance of an offence (section 190). The requisites of a complaint are: (1) an oral or a written allegation; (2) that some person known or unknown has committed an offence; (3) it must be made to a Magistrate18. and (4) it must be made with the object that he should take action.19. No form is prescribed which the complaint may take. The word has a wide meaning.20. There is no particular format of a complaint. A petition addressed to a Magistrate, containing an allegation that an offence has been committed and ending with a prayer that the culprit be suitably dealt with, is a complaint. Thus, no format is envisaged and nomenclature is also immaterial.21.
The words "complainant" and "informant" are not words of literature and cannot be used interchangeably. In a case registered under section 154 of the Code, the State is the prosecutor and the person whose information is the cause for lodging the report is the informant. However, the complainant is the person who lodges the complaint. The word "complaint" is defined in the Code to mean any allegation made orally or in writing to a Magistrate. Therefore, these words carry different meanings.22.
[s 2.1] Allegations of fact constitute complaint.—
It is the "allegations of fact" which constitutes a complaint. An omission to mention the offence made out by the facts, or the mentioning of a wrong section of the IPC, does not vitiate a complaint and does not take away the jurisdiction of the Court to try a person complained against for the offences which can be made out on the basis of the allegation in the complaint.23. A charge-sheet submitted by police cannot be regarded as complaint.24. Where offences mentioned in section 195(1)(b)(i) could be taken cognizance of only on a complaint in writing of that court or some other court to which that court is subordinate, a police report could not be treated as a complaint.25.
However, where a private complaint discloses two offences, one mentioned in section 195(1)(b)(ii) and the other not so mentioned, the cognizance of the other may be taken by the Magistrate.26.
[s 2.2] Complaint and police report.—
A "police report" as defined under clause (r) has been expressly excluded from the definition of complaint, but the Explanation makes it clear that the report made by the police officer shall be deemed to be a complaint in a case where after investigation it discloses the commission of a non-cognizable offence. In such a case, the police officer shall be deemed to be the complainant. A Protest petition, filed by the accused against final report of police, is not a "complaint".27.
[s 2.3] Need not state ingredients of offences.—
It is not necessary that a complaint should contain in verbatim all the ingredients of the offence. More important than that is the laying down of the factual foundation of the offence.28.
(e) "High Court" means,—
(i) in relation to any State, the High Court for that State;
(ii) in relation to a Union territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court;
(iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India;
COMMENT
The whole of India, that is, the territories to which the Code extends (see clause (f)), is divided into States and Union territories. (1) For each State, the High Court of that State; (2) for Union territory to which the jurisdiction of the High Court of a State has been extended, that High Court; and (3) for other Union territories, the highest Court of
criminal appeal for that territory (but not the Supreme Court) are High Courts within the meaning of this clause.
(f) "India" means the territories to which this Code extends;
(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
COMMENT
Where a Sessions Judge convicted a person under various sections of IPC, but in appeal, it was revealed that the convict was a "delinquent juvenile", who ought to have been governed by Juvenile Justice Act, 1986, the AP High Court set aside the conviction and sentence and directed inquiries to be held as provided for in the Juvenile Justice Act. The High Court further clarified that "inquiry" is a term different from trial. The definition of "inquiry" in section 2(g) CrPC excludes "trial".29.
From the definition of the word "inquiry" given in the Code, it is clear that inquiry under the Code is relatable to a judicial act and not the steps taken by police which are either investigation after the stage of section 154 of the Code or termed as "Preliminary Inquiry" and which are prior to the registration of FIR.30.
It has been held that where no specific mode or manner of inquiry is provided under section 202 of the Code, the inquiry mandated under section 202 is an inquiry under section 2(g).31.
The stage of inquiry commences, insofar as the court is concerned, with filing of charge-sheet. Trial is distinct from an inquiry and must necessarily succeed it. Section 2(g), which defines inquiry, clearly envisages inquiry before the actual commencement of the trial and is an act under the Code by the Magistrate or the Court. The word
"inquiry" is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the Court on filing of charge-sheet.32.
In the inquiry envisaged under section 202 of the Code, the witnesses are examined, whereas under section 200 of the Code, examination of the complainant only is necessary. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry.
Thus, where the Magistrate has examined the complainant on solemn affirmation and two witnesses and only thereafter he had directed for issuance of process, it could be said that the Magistrate has held inquiry as mandated under section 202 of the Code.33.
(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;
COMMENT
[s 2.4] Investigation and inquiry.—
In criminal matters, inquiry is different from a trial. Inquiry stops when trial begins. The ambit of an inquiry is wider than trial. Trial presupposes the idea of an offence, but inquiry relates to offences and matters which are not offences vide security proceedings and other proceedings and other inquiries relating to dispute about possession of immovable property, etc. All those proceedings before a Magistrate prior
to the framing of a charge which do not result in conviction can be termed as inquiry.34.
An inquiry preparatory to commitment of a case to the Sessions under section 209 is inquiry within the meaning of section 2(g).35. Similarly, the proceedings under section 209 fall within the term inquiry.36. The three terms "investigation", "inquiry" and "trial"
denote three different stages of a criminal case. The first stage is reached when a police officer either by himself or under orders of a Magistrate investigates into a case (section 202). If he finds that no offence has been committed, he reports the fact to a Magistrate who drops the proceedings and the case comes to an end (section 203).
But if he is of a contrary opinion, he sends up the case to a Magistrate. Then begins the second stage, which is either a trial or an inquiry. The Magistrate may deal with the case himself, and either convict the accused or discharge or acquit him. In cases of serious offences, the trial is before the Sessions Court which may either discharge the accused or convict or acquit him (Chapter XVIII). The main purpose of an investigation is collection of evidence, and it must be conducted by a police officer or a person enjoying the powers of a police officer or authorised by a Magistrate in his behalf or a person in authority.37.
[s 2.5] Collection of evidence.—
The definition of the term is not exhaustive. An "investigation" means search for material and facts in order to find out whether or not an offence has been committed. It does not matter whether it is made by a police officer or a custom officer or any other officer authorised to investigate into the matter of an offence committed under a law other than the IPC.38. The arrest and detention of a person for the purpose of investigation of a crime forms an integral part of the process of investigation.39.
Examining witnesses and arranging raids for the purpose of dealing with a complaint by an Inspector of Anti-Corruption Department was included within the meaning of the word "investigation".40. Searches are also proceedings for the collection of evidence and therefore part of investigation under section 2(h).41. Medical examination of the arrested person also forms part of the investigation.42. The word "investigation" has to be read and understood in the light of not only the powers conferred on police officers but the restrictions placed on them in the use and exercise of such powers.43.
[s 2.6] FIR, requisite for investigation.—
The provisions of Chapter XII of the Code apply to investigations conducted by CBI
"Police" referred to in the Chapter for the purposes of investigation would apply to officers under the Delhi Police Establishment Act. On completion of an investigation, CBI has to file its report in the manner prescribed by section 173(2). A direction for conducting investigation requires registration of FIR beforehand. An investigation into the fact whether the death in question was suicidal or homicidal could have been taken up only after registration of FIR. That is why the CBI was justified in registering the FIR.44.
The term "investigation" in section 2(h) and (o) and "officer incharge of Police Station"
in section 2(o) have been held to be inclusive and have expansive meaning. They must be given liberal interpretation.45.
(i) "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath;
COMMENT
The term "judicial proceeding" includes any proceedings in the course of which evidence is or may be legally taken on oath46.. It includes "inquiry" and "trial" but not investigation. It is also explained in section 193 and referred to in sections 192 and 228 of the IPC.
(j) "local jurisdiction", in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code 47.[and such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify];
(k) "metropolitan area" means the area declared, or deemed to be declared, under section 8, to be a metropolitan area;
COMMENT
The colonial presidency towns, Bombay, Calcutta and Madras, and the city of Ahmedabad are deemed to have been declared as metropolitan area by the respective State Governments. Section 8 empowers the State Governments to declare by notification an area comprising a city or town with a population exceeding one million to be a metropolitan area.
(l) "non-cognizable offence" means an offence for which, and "non-cognizable case"
means a case in which, a police officer has no authority to arrest without warrant;
(m) "notification" means a notification published in the Official Gazette;
(n) "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871);
COMMENT
The term "offence" is more elaborately defined in section 40 of the Indian Penal Code, 1860.48. There is also a special definition of offence under section 39 of this Code.
Maintenance proceedings under Chapter IX of this Code do not relate to any offence as defined in this section.49.
An offence would always mean an act of omission or commission which would be punishable under any law for the time being in force.50. The Supreme Court has observed that adults willingly engaging in sexual relations outside marital settings do not commit an offence.51.
(o) "officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present;
(p) "place" includes a house, building, tent, vehicle and vessel;
(q) "pleader", when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding;
COMMENT
Under the inclusive part of the definition, a non-legal person appointed with the permission of the Court will also be included.52. However, such permission may be withdrawn half way through the proceedings if the representative proves himself to be reprehensible.53.
(r) "police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173;
(s) "police station" means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf;
COMMENT
A beat house, unless it is declared generally or specially by the State Government to be a police station, cannot be held to be a police station.54. Where the boundary between two police station areas is declared or specified by the Government as the midstream of a river, and that river changes its course, such change will automatically determine increase or decrease in the territorial jurisdiction under the police stations.55. Criminal Investigation Department and Corps of Detectives are covered by the definition of
"police station" under section 2(s).56.
(t) "prescribed" means prescribed by rules made under this Code;
(u) "Public Prosecutor" means any person appointed under section 24 and includes any person acting under the directions of a Public Prosecutor;
COMMENT
A Public Prosecutor, though an executive officer, is, in a larger sense, also an officer of the Court. He is bound to assist the Court with his fairly considered view, and the Court is entitled to have the benefit of the fair exercise of his function.57.
An advocate General who is asked by the Governor to represent an accused in a Session Court does not become a Public Prosecutor within the meaning of clause (4) of section 2 unless he is appointed as such Public Prosecutor under section 24 of the Code.58.
(v) "sub-division" means a sub-division of a district;
(w) "summons-case" means a case relating to an offence, and not being a warrant- case;
59. [(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir];
(x) "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;
COMMENT
The division of cases into summons and warrant cases is based on the quantum of punishment which can be awarded. Those cases which are punishable with imprisonment for two years and under are summons cases, and the rest are all warrant cases. The division marks ordinary cases from serious ones, and determines the mode of trials. The procedure for the trial of summons cases is provided by Chapter XX, while that for warrant cases is dealt with in Chapter XIX. It may be noted that summons will
16. Vadlamudi Kutumba Rao v State of Andhra Pradesh, (1961) 2 Cr LJ 605 .
17. Re Ganesh Narayan Sathe, ILR (1889) 13 Bom 600 ; Farzand Ali v Hanuman Prasad, (1896) ILR 18 All 465; Miyabhai Pirbhai v The State, (1963) 2 Cr LJ 141 : 4 Guj LR 253 : AIR 1963 Guj 188 .
18. J&K v Ismail Sher, 1979 Cr LJ 557 .
19. See Bharat Kishore Lal Singh Deo v Judhistir Modak, (1929) ILR 9 Pat 707 : AIR 1929 Pat 473
; Lakhan, (1937) All 162 .
20. Bhimappa v Laxman, AIR 1970 SC 1153 : 1970 Cr LJ 1132 . 21. Mohd Yousuf v Afaq Jahan, AIR 2006 SC 705 : (2006) 1 SCC 627 .
22. Ganesha v Sharanappa, AIR 2014 SC 1198 : (2014) 1 SCC 87 : 2014 Cr LJ 1146 (SC).
23. Ram Brichha Misra, (1947) All 796 : AIR 1948 All 121 ; Belsand Sugar Co v The State, (1965) 2 Cr LJ 398 : AIR 1965 Pat 369 .
24. Surajmani Srimali v State of Orissa, 1980 Cr LJ 363 .
25. K Rama Krishnan v Station House Officer, 1986 Cr LJ 392 (Ker).
26. Rajendra Singh v Surendra Singh, 1992 Cr LJ 3749 (MP) : 1192 (0) MP LJ 650 . 27. Mahendra Pal Sharma v State of UP, 2003 Cr LJ 698 (All).
28. Rajesh Bajaj v State (NCT) of Delhi, AIR 1999 SC 1216 : 1999 Cr LJ 1833 : (1999) 3 SCC 259 . 29. Bandela Ailaiah v State of AP, 1995 Cr LJ 1083 (AP) : 1994 (2) Andh LT 519 .
30. Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC) [Five- Judge Constitution Bench].
31. Vijay Dhanuka v Najima Mamtaj, (2014) 14 SCC 638 : 2014 Cr LJ 2295 : 2014 (4) Scale 413 . 32. Hardeep Singh v State of Punjab, AIR 2014 SC 1400 : (2014) 3 SCC 92 : 2014 Cr LJ 1118 (SC) [Five-Judge Constitution Bench].
33. Vijay Dhanuka v Najima Mamtaj, 2014 Cr LJ 2295 (SC) : (2014) 14 SCC 638 . 34. Alim v Taufiq, 1982 Cr LJ 1264 (All).
35. Chauthmal v State of Rajasthan, 1982 Cr LJ 1403 (Raj) : 1982 WLN 396 ; Tuneshwar Prasad Singh v State of Bihar, AIR 1978 Pat 225 : 1978 Cr LJ 1080 .
36. Swaroop Singh v State of Rajasthan, 1976 Cr LJ 1655 (Raj).
be issued in all summons cases, and warrant in all warrant cases, unless the Magistrate thinks fit to issue summons (section 204).
When no prejudice is caused in adopting a procedure of summons case instead of warrant case, it will be an irregularity curable under section 465 of the Code.60.
A summons case can be tried as a warrant case in the interest of justice. Similarly, a case being tried as warrant case may be proceeded under summons procedure in the midst of the case, if the justice demands. However, a Magistrate should pass a specific order to this effect and the order-sheet should disclose such a change of procedure, although omission is not fatal.61.
(y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code.
37. UP v Sant Prakash, 1976 Cr LJ 274 , 283 (All—FB).
38. Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 : (1994) 3 SCC 440 . 39. Baldev Singh v State of Punjab, 1975 Cr LJ 1662 , 1665 (Punj—FB).
40. Maha Singh, 1976 Cr LJ 346 : AIR 1976 SC 449 : (1976) 1 SCC 644 : AIR 1976 SC 456 : (1976) 2 SCC 808 .
41. Krishan Kumar v State of Haryana, ILR (1978) 2 Punj 305 .
42. Ananth Kumar Naik v State of Andhra Pradesh, 1977 Cr LJ 1797 , 1799 (AP).
43. Asstt Collector of CEC Preventive v V Krishnamurthy, 1983 Cr LJ 1880 . 44. Ashok Kumar Todi v Kishwar Jahan, AIR 2011 SC 1254 : (2011) 3 SCC 758 .
45. Nirmal Singh Kahlon v State of Punjab, AIR 2009 SC 984 : (2009) 1 SCC 441 . It was also observed in this case that by virtue of the provision in Article 21 of the Constitution, fair trial includes fair investigation.
46. Asoke Kumar Chaudhuri v Kunal Saha, AIR 2017 SC 618 . 47. Ins. by Act 45 of 1978, section 2 (w.e.f. 18-12-1978).
48. Section 40 "Offence".—Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code.
In Chapter IV, Chapter VA and in the following sections, namely, sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 118, 119, 120, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined.
And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word "offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.
49. Anil Kumar Jha v State of Bihar, 1992 Cr LJ 2510 (Pat) : 1992 (40) BLJR 707 . 50. SEBI v Ajay Agarwal, AIR 2010 SC 3466 : (2010) 3 SCC 765 .
51. S Khushboo v Kanniammal, AIR 2010 SC 3196 : (2010) 5 SCC 600 . 52. See Dorabshah v Emperor, (1925) 28 Bom LR 102 : AIR 1926 Bom 218 .
53. Harishankar Rastogi v Girdhari Sharma, 1978 Cr LJ 78 : AIR 1978 SC 1019 : (1978) SCC (Cri) 168 .
54. Srimanta v State, AIR 1960 Cal 519 : 1960 Cr LJ 1078 .
55. Narayan Das v Bolta Ram, 1973 Cr LJ 818 (FB); Nar Bahadur Bhandari v State, 2003 Cr LJ 2799 (Sikh), absence of a declaration as to a particular area to be a police station by the State Government under section 2(a) was held to be of no consequence for the lodging of an FIR. This was so because the Superintendent of Police of that area was an officer incharge of the police station under section 5(3) of the Delhi Special Police Establishment Act, 1946.
56. Narasimaiah v State of Karnataka, 2002 Cr LJ 4795 (Kant).
57. The State of Bihar v Ram Naresh, AIR 1957 SC 389 , 393 : 1957 Cr LJ 567 : 1957 SCR 279 . 58. TA Rajendra v PV Ayyappan, 1986 Cr LJ 1287 (Ker).
59. Ins. by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 2 (w.e.f.
31-12- 2009).
60. Prem Das v State, AIR 1961 All 590 (FB) : 1961 Cr LJ 737 . 61. Kishori Lal v Mahadeo, 1993 Cr LJ 1173 (All).
The Code of Criminal Procedure, 1973 CHAPTER I PRELIMINARY
[s 3] Construction of references.—
(1) In this Code,—
(a) any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires,—
(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;
(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;
(b) any reference to a Magistrate of the second class shall, in relation to an area outside a metropolitan area, be construed as a reference to a Judicial Magistrate of the second class, and, in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;
(c) any reference to a Magistrate of the first class shall,—
(i) in relation to a metropolitan area, be construed as a reference to a Metropolitan Magistrate exercising jurisdiction in that area;
(ii) in relation to any other area, be construed as a reference to a Judicial Magistrate of the first class exercising jurisdiction in that area;
(d) any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Chief Metropolitan Magistrate exercising jurisdiction in that area.
(2) In this Code, unless the context otherwise requires, any reference to the Court of a Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Court of the Metropolitan Magistrate for that area.
(3) Unless the context otherwise requires, any reference in any enactment passed before the commencement of this Code,—
(a) to a Magistrate of the first class, shall be construed as a reference to a Judicial Magistrate of the first class;
(b) to a Magistrate of the second class or of the third class, shall be construed as a reference to a Judicial Magistrate of the second class;
(c) to a Presidency Magistrate or Chief Presidency Magistrate, shall be construed as a reference, respectively, to a Metropolitan Magistrate or the Chief Metropolitan Magistrate;
(d) to any area which is included in a metropolitan area, as a reference to such metropolitan area, and any reference to a Magistrate of the first class or of the second class in relation to such area, shall be construed as a reference to the Metropolitan Magistrate exercising jurisdiction in such area.
(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters—
(a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.
[s 3.1] State Amendments
Andaman and Nicobar Islands (U.T.).— The following amendments were made by Regn. 1 of 1974, S. 3 (w.e.f. 30-3-1974).
S. 3A.—(1) In its application to Union Territory of Andaman and Nicobar Islands, after S. 3, S. 3A shall be inserted as follows—
"3A. Special provision relating to Andaman and Nicobar Islands.—(1) References in this Code to—
(a) the Chief Judicial Magistrate shall be construed as references to the District Magistrate or, where the State Government so directs, also to the Additional District Magistrate;
(b) a Magistrate or Magistrate of the first class or of the second class or Judicial Magistrate of the first class or of the second class, shall be construed as references to such Executive Magistrate as the State Government may, by notification in the Official Gazette, specify.
(2) The State Government may, if it is of opinion that adequate number of persons are available for appointment as Judicial Magistrates, by notification in the Official Gazette, declare that the provisions of this section shall, on and from such day as may be specified in the notification, cease to be in force and different dates may be specified for different islands.
(3) On the cesser of operation of the provisions of this section, every inquiry or trial pending, immediately before such cesser before the District Magistrate or Additional District Magistrate or any Executive Magistrate, as the case may be, shall stand transferred, and shall be dealt with, from the stage which was reached before such cesser, by such Judicial Magistrate as the State Government may specify in this behalf."
Arunachal Pradesh & Mizoram.— The following amendments were made by Gaz. of Ind., dt. 20-3- 1974. Pt. II, Section 3(ii), Ext., p. 421 (w.e.f. 1-4- 1974).
S. 3(5).—In its application to the Union Territories of Arunachal Pradesh and Mizoram this provision stands modified as under:
(i) After sub-section (4) insert following sub-section (5)—
"(5) Notwithstanding anything contained in the foregoing provisions of this sub-section—
(i) Any reference in such of the provisions of this Code, as apply to the Union Territories of Arunachal Pradesh and Mizoram, to the Court mentioned in column (1) of the Table below shall, until the Courts of Session and Courts of Judicial Magistrates are constituted in the said Union territories, be construed, as references to the Court of Magistrate mentioned in the corresponding entry in column (2) of that Table.
Table
1 2
Court of Session or Sessions Judge or Chief Judicial Magistrate.
District Magistrate.
Magistrate or Magistrate of the First Class or Judicial Magistrate of the First Class.
Executive Magistrate.
(ii) the functions mentioned in clause (a) of sub-section (4) shall be exercisable by an Executive Magistrate."
Nagaland.—The following amendments were made by Nagaland Gaz., dated 19-6-1975, Extra. No. 15.
S. 3(5).—Modifications of the provisions with reference to the State of Nagaland are as follows:—
(a) After sub-section (4) following sub-section (5) which shall be deemed always to have been inserted:—
"(5) Notwithstanding anything contained in the foregoing provisions of this section—
(i) any reference in such of the provisions of this Code as apply to the State of Nagaland to the Court and authority mentioned in column (1) of the Table below shall, until the Courts of Session and Court of Judicial Magistrates are constituted in the said areas, be construed as references to the Court and authority mentioned in the corresponding entry in column (2) of that Table.
Table
1 2
Court of Session or Sessions Judge or Chief Judicial Magistrate.
District Magistrate or Additional District Magistrate
Magistrate or Magistrate of the First Class or Judicial Magistrate of the First Class.
Executive Magistrate.
(ii) references mentioned in sub-section (3) to a Judicial Magistrate and functions mentioned in sub-section (4) exercisable by a Judicial Magistrate and Executive Magistrate shall be construed as references to and exercised by, Deputy Commissioner and Additional Deputy Commissioner and Assistant to Deputy Commissioner appointed under any law in force:
Provided that an Assistant to Deputy Commissioner shall exercise such powers of a Judicial Magistrate as may be invested by the Governor."
62. Somari Rai v Raghu Nath Prasad Sharma, 1977 Cr LJ 718 (Pat) overruled in Radha Devi v Mani Prasad Singh, 1980 Cr LJ NOC 61 (Pat) : AIR 1980 Pat 41 (FB).
63. Mammoo v State of Kerala, AIR 1980 Ker 18 : 1980 Cr LJ NOC 75 (Ker); Also see, AP Police Officers' Association, 1981 Cr LJ 641 (AP).
64. Prakash Singh Badal v State of Punjab, AIR 2007 SC 1274 : (2007) 1 SCC 1 .
[s 3.2] Separation of judiciary from executive.—
This section is the natural result of separation of the judiciary from the executive and allocations of functions between the Executive Magistrate and the Judicial Magistrates made in Chapter II of the Code. The revised set-up of Magistracy under different names for different areas necessitated introduction of the section to explain the corresponding Magistrates for each area. The first two sub-sections are concerned with references to Magistrates and Courts in the present Code; the third sub-section substantially equates the present set-up with corresponding set-up in any enactment passed before the commencement of the Code. "Any enactment passed before the commencement of this Code" means the repealed Code of Criminal Procedure, 1898, also.62. Sub-section (4) divides the functions exercisable by Magistrate under any law other than the Code into judicial and administrative or executive functions in clauses (a) and (b) and entrusts exercise of these functions respectively to the Judicial Magistrate and the Executive Magistrate.63.
[s 3.3] Appointment of Special Judge.—
The Notification for appointment of a special Judge related to allocation of cases registered at a police station to an existing Court of Special Judge of a particular District. The impugned Notification allocated certain cases to courts of Special Judges already established with consultation of the High Court. Thus, no further consultation with the High Court was required. Once a group of cases was allocated to the special court, other special courts could not deal with them.64.
The Code of Criminal Procedure, 1973 CHAPTER I PRELIMINARY
[s 4] Trial of offences under the Indian Penal Code and other laws.—
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Sections 4 and 26 govern every criminal proceeding both as regards the tribunal by which a crime is to be tried and as to the procedure to be followed. The combined operation of sections 4(2) and 26(b) CrPC is that the offence complained of should be investigated or inquired into or tried according to the provisions of the Code, where the enactment which creates the offence indicates no special procedure.65.
Where a resident of Kerala had committed embezzlement in United Arab Emirates, it was held that Kerala police had powers to investigate, without prior sanction of the Government of India, an offence committed by an Indian citizen. It was further held that the proviso to section 188 CrPC requiring prior sanction of the Government of India is mandatory but applies only to inquiry or trial and does not apply to pre- inquiry stage, and as such it does not bar issuing summons, warrants or taking any other steps preliminary to an enquiry, and the proviso is not a condition precedent in taking cognizance of such offences.66.
Even where an offence is committed outside India by a citizen of India, it is subject to the jurisdiction of the courts of India.67.
[s 4.1] "Otherwise".—
The word "otherwise" points to the fact that the expression "dealt with" is all comprehensive and that investigation, inquiry or trial are some aspects of dealing with the offences.68. In view of the provisions of section 4, the power of releasing the motor vehicle seized under the Act has been conferred on specified authorities. Therefore, impliedly in this regard, the power of the Magistrate, being a court of general jurisdiction, will stand excluded.69.
A special court, established for trial of offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, can also take cognizance and try an offence under the IPC (such as offence under section 376 IPC) along with the offences under the Act in the same proceedings, without committal by Magistrate, if the offences are committed in the same transaction.70. The expression "subject to any enactment .... otherwise dealing with such offences", in section 4(2), was taken by the Supreme Court to mean "in the absence of any contrary provision in any other law,
provisions of the Code would apply." Section 5 does not nullify this effect of section 4(2).71.
[s 4.2] "Any other law".—
The words "any other law" in this section do not cover contempt of a kind punishable summarily by the High Courts.72. Where no Court of Municipal Magistrate has been established, the Supreme Court held that the ordinary Criminal Courts of general jurisdiction can take cognizance of the offences committed under the Municipal Act, rules regulations or by-laws made thereunder.73.
If the offence committed is cognizable, provisions of Chapter XII containing section 154 and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same. Section 4 CrPC provides that provisions of the Code would be applicable where an offence under the IPC or any other law is being investigated, inquired into, tried or otherwise dealt with. Thus, offences under any other law could also be investigated, inquired into or tried with according to the provision of the Code except in case of an offence where the procedure prescribed thereunder is different than the procedure prescribed under the Code.74.
[s 4.3] Fair trial.—
A fair trial means a trial in which bias or prejudice for or against the accused, witnesses or the cause which is being tried is eliminated. The Supreme Court stressed the importance of a fair trial in criminal cases. It was observed that adjournments are sought on the drop of hat by counsel, even though witnesses are present in court. The Supreme Court deprecated the conduced of a trial where cross-examination of one witness was done one year and eight months after his examination-in-chief.75. Dipak Misra J (speaking for the Bench) observed as follows:
There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The court has a sacrosanct duty to see that the trial is conducted as per law.76.
[s 4.4] No copyright in judgment, being public property.—
A judgment is an affirmation by an authorised societal agent of the State speaking by warrant of law in the name of the State. Judgments belong to the State and its people.
A judgment cannot therefore be treated as a document over which copyright can be claimed. Every judgment is a public document.77.
[s 4.5] Trial Commencement of.—
"Trial" means determination of issues adjudging the guilt or the innocence of a person.
The person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same. Thus, the trial
65. Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 : (1994) 3 SCC 440 . 66. Mohd. Sajeed K v State of Kerala, 1995 Cr LJ 3313 (Ker).
67. AV Mohan Rao v M Kishan Rao, (2002) 6 SCC 174 : AIR 2002 SC 2653 : (2002) 111 Comp Cas 390 .
68. Delhi Administration v Ram Singh, AIR 1962 SC 63 : (1962) 1 Cr LJ 106 : (1962) 2 SCR 694 . 69. Sharangdhar Sharma v State of Bihar, 1992 Cr LJ 2063 (Pat) : 1992 (40) BLJR 393 . 70. Re Director General of Prosecution, 1993 Cr LJ 760 (Ker).
71. Gangula Ashok v State of AP, AIR 2000 SC 740 : 2000 Cr LJ 819 : (2000) 2 SCC 504 . 72. Sukhdev Singh v Teja Singh, AIR 1954 SC 186 : 1954 Cr LJ 460 .
73. Attiq-ur-Rehman v Municipal Corp of Delhi, AIR 1996 SC 956 : 1996 Cr LJ 1997 .
74. Vishal Agrawal v Chhattisgarh State Electricity Board, AIR 2014 SC 1539 : (2014) 3 SCC 696 : 2014 Cr LJ 1317 (SC).
75. Vinod Kumar v State of Punjab, AIR 2015 SC 1206 : (2015) 3 SCC 220 . 76. Ibid, Para 41 at p 1223 (of AIR).
77. Infoseck Solutions v Kerala Law Times, AIR 2007 Ker 1 : (2006) 4 Ker LT 311 . A judgment which has been reported by a particular reporter giving it his own lay out, head notes, comments, etc. becomes the subject matter of his copyright. Also see Eastern Book Co v DB Modak, (2008) 1 SCC 1 : AIR 2008 SC 809 .
78. Hardeep Singh v State of Punjab, AIR 2014 SC 1400 : (2014) 3 SCC 92 : 2014 Cr LJ 1118 (SC) [Five-Judge Constitution Bench].
79. Moly v State of Kerala, AIR 2004 SC 1890 : (2004) 4 SCC 584 .
commences only on charges being framed; it does not commence on the cognizance being taken.78.
[s 4.6] Expeditious hearing and disposal.—
For expeditious hearing of a case, every party must co-operate. It would not be proper for the Supreme Court to give any direction to a Magistrate regarding fixing of dates in a criminal case as it depends upon the docket of the Court. Any direction for out of turn hearing of a case would have the effect of putting some other case behind. But the Court directed that the Magistrate should make all possible endeavours to decide a criminal case expeditiously.
[s 4.7] Special Court.—
A Special Court has been constituted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Supreme Court has described such special Court as essentially a Court of Session. It cannot take cognizance of an offence straightaway without the case being committed to it by a Magistrate.79.
The Code of Criminal Procedure, 1973 CHAPTER I PRELIMINARY
[s 5] Saving.—
Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
Ordinarily, the Code will not affect (i) any special law (see section 41, Penal Code); (ii) any local law (see section 42, Penal Code); (iii) any special jurisdiction or power, and (iv) any special form of procedure.
[s 5.1] "In the absence of any specific provision to the contrary".—
These words mean a specific provision that the Code is to override the special law.80.
The Calcutta High Court has held that these words mean and contemplate a provision specifically withdrawing the saving provision relating to the special or local law. This specific provision to the contrary need not be in the Code itself, but may also be in a special or local law. These words do not refer to any possible contradiction between a specific provision in the Code and a provision in a special statute. In order that one provision can be said to be a specific provision to the contrary to another, the former must completely cover the field of operation of the latter and must altogether nullify it.81. The Allahabad High Court has held that "a specific provision to the contrary"
means that the particular provision of the Code must, in order to affect the special law, clearly indicate, in itself and not merely by implication to be drawn from the statute generally, that the special law in question is to be affected, without necessarily referring in express terms to that special law or the effect on it intended to be produced.82.
The Code lays down procedure for trial of all criminal cases except "any special form of procedure prescribed by any other law for the time being in force". Therefore, the procedure prescribed in the Official Secrets Act, 1923, for holding trial in camera will apply in supersession of the provisions of the Code.83. Similarly, the Customs Act, 1962, is a special Act which confers special powers on the Customs Officer to confiscate goods and also prescribes a special form of procedure therefor. Therefore, those provisions of the Customs Act prevail over the provisions of the Code.84. Even when there is a specific provision as in section 4(1) of the Official Secrets Act, 1923, stating that the special procedure provided therein would not be invalid as being inconsistent with the provisions of the Code, where an enactment provides a special procedure only for some matters, its provisions must apply in regard to those matters only and the provisions of the Code will apply to the matters on which the special law is silent.85.
[s 5.2] "Special jurisdiction".—
The power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all Courts of Record, and this
80. Emperor v Biram Sardar, (1940) 43 Bom LR 157 : (1941) Bom 333 : AIR 1941 Bom 146 . 81. Naresh Chandra Das v Emperor, (1942) 1 Cal 436 : AIR 1942 Cal 593 .
82. Baldeo v Emperor, (1940) All 396 : AIR 1940 All 263 .
83. Ramendra Singh v Mohit Choudhary, 1969 Cr LJ 1361 : AIR 1969 Cal5 35 . 84. Officer-in-charge Customs, Berhampore v Minali Biswas, 1982 Cr LJ 1311 (Cal).
85. Frank Dalton Larkins v State (Delhi Administration), 1985 Cr LJ 377 (Del); Mirza Iqbal Hussain, 1983 Cr LJ 154 : AIR 1983 SC 60 : 1982 (2) Scale 1081 : (1982) 3 SCC 516 .
86. Central Talkies Ltd v Dwarka Prasad, AIR 1961 SC 606 : 1961 (1) Cr LJ 740 ; SL Bhasin v Rucy Colabawala, (1973) 76 Bom LR 422 .
section expressly excludes special jurisdiction from the scope of the Code. Therefore, the High Court can deal with matters of contempt summarily and adopt its own procedure.86.
The Code of Criminal Procedure, 1973
CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES
The revised set-up of Criminal Courts and allocation of magisterial functions between the Judicial Magistrates and the Executive Magistrates is intended to bring about the separation of the Judiciary from the Executive. As far as possible, the pattern as provided in this Code has been adopted in most states.
As a consequence of the separation, there are two categories of Magistrates, namely, the Judicial Magistrates and the Executive Magistrates, the former being under the control of the respective High Court and the latter under the control of the State Government. Broadly speaking, functions which are essentially judicial in nature are the concern of the Judicial Magistrates, while functions which are "police" or
"administrative" in nature are the concern of the Executive Magistrates.
So far as the Magistracy is concerned, for performance of magisterial functions allotted to the Executive, there will be in each district the District Magistrate [section 20(1)]; the Additional District Magistrates (where necessary) [section 20(2)]; the Sub- divisional Magistrates [section 20(4)]; and other Subordinate Executive Magistrates [section 20]. The State Government may, if it thinks fit, appoint Special Executive Magistrates [section 21].
On the judicial side for each district (other than metropolitan area—see section 8), there will be a Chief Judicial Magistrate, Additional Chief Judicial Magistrate, Sub-divisional Judicial Magistrates and other Judicial Magistrates [sections 11 and 12]. The High Court may, if requested by the Central or the State Government, appoint "Special Judicial Magistrates" [section 13].
[s 6] Classes of Criminal Courts.—
Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:
—
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates..
Criminal Courts are classified into four groups, but in reality, there are more. The Courts classified above are (i) Courts of Session; (ii) Judicial Magistrates of the first class; (iii) Judicial Magistrates of the second class; (iv) in metropolitan areas Metropolitan Magistrates; and (v) the Executive Magistrates. Besides these, we have also "Courts constituted under any law, other than this Code", eg, the Courts of Coroners in the presidency towns constituted by the Coroners Act, 1871 (IV of 1871) and Courts of Cantonment Magistrates in cantonments, under the Cantonments Act, 1924 (II of 1924). The High Courts also act as a criminal court and have power to conduct a trial [section 474], revisional powers [section 397] and inherent powers to do complete
justice [section 482]. Under the Indian Constitution, the Supreme Court has been empowered to deal with certain criminal matters (cf. Articles 132, 134 and 136). The Supreme Court also has power to set up special court, which has been done in major scams such as Coal Block Allocation Scam, Vyapam Scam, etc.
The class known as Magistrates of the third class in the Code of Criminal Procedure, 1898 has been abolished and, in place of Presidency Magistrates, Metropolitan Magistrates are to function in metropolitan areas (see section 8).
