CRIMINAL LAW

PRACTICE

Dr. Sakshi
Prevention and detection of crime.-Criminal investigation is fun-
damentally a police function, Section 23 of the Police Act (1861) casts on the
police the duty of preventing the commission of crimes. Sections 149- 151 of
Cr.P.C. deal with the preventive action, information of design to commit
cognizable offences, and arrest to prevent the commission of cognizable
offences. Rule 118 of the Police Regulations of Bengal (in short, PRB)
recognizes that the F.I.R.st and foremost important duty of the police is the
prevention of crime and maintenance of law and order.
Steps to be carried out in course of investigation.-The
Code of Criminal Procedure contemplates the following
steps to be carried out during 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 the offence which may consist of-

• (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,
• (b) the search of places or seizure of things considered neces- sary for
the investigation and to be produced at the trial; and

• (5) formation of the opinion as to whether on the material collected

• there is a case to place the accused before a Magistrate for trial and, if
so, to take necessary steps for the same by the filing of a charge-sheet
under sec. 173.
• Under the scheme of the Code, investigation commences with lodgment of information relating to the
commission of an offence. If it is a cognizable offence, the officer in-charge of the police station, to
whom the information is supplied orally has a statutory duty to reduce it to writing and get
thesignature of the informant. He shall enter the substance of the information signature given in
writing or reduced to writing as aforesaid, in a book prescribed by the State in that behalf. The officer
in-charge has no escape from doing so if the offence mentioned therein is a cognizable offence and
whether or not such offence was committed within the limits of that police station. I But when the
offence is non-cognizable, the officer-in-charge of the police station has no obligation to record it if the
offence was not committed within the limits of his police station. Investigation thereafter would
commence and the investigating officer has to go step by step-
• Ashok Kumar Todi v Kishwar Jahan (2011)2 SCC (Cri) 75: (2011)3 SCC 758; see also H.N. Rishbud v
State AIR 1955 SC 196: 1955 Cr LJ 526 State v Mubarak Ali AIR 1959 SC 707: 1959 Cr LJ 920;
Navinchandra v State of Meghalaya (2000)8 SCC 323: 2000 SCC (Cri) 1510.
 Investigation, if can be started without
recording FIR.
• As per sec. 2(h) investigation includes all the proceedings under
Cr.P.C. for col- lection of evidence conducted by a police officer.
The direction to conduct investigation requires registration of an
FIR preceding investigation and, therefore had to be treated as
casting an obligation on the 1.0. to first register an FIR and
thereafter proceed to find the cause of the offence vis-a-vis the
persons connected with the offence. If it is a case of death, the
police will investigate to find out the cause of death, whether
suicidal or homicidal - see Ashok Kumar Todi v Kishwar Jahan
2011 Cr LJ 2317 (SC).
Can court monitor investigation by
police?-
• In appropriate cases, the courts may monitor an investigation into an offence when it is satisfied that either the
investigation is not being pro- ceeded with or is being influenced by interested persons.
• In cases where it has been brought to the notice of the courts that investigation into an offence was not being carried on in
the manner in which it should have been carried on, directions have been given by the courts to the investigating agencies
to conduct the investigation accord- ing to certain guidelines, as otherwise the very purpose of the investiga- tion could
become fruitless Babubhai Jamnadas Patel v State 2010 CrLJ 2249 (SC).
• In the following cases, the Supreme Court directed CBI to conduct fresh investigation in order to complete justice to the
parties State of W.B. v Nuruddin Mallick (1998)8 SCC 43: 1998 AIR SCW 3989; Nirmal Singh Kahlon v State of Punjab
(2009)1 SCC 441: 2009 AIR SCW 60; Gudalure M.J. Cherian v Union of India (1992)1 SCC 397; Comptroller and Auditor
General of India, Gian Prakash, New Delhi v K.S. Jagannathan (1986)2 SCC 679: AIR 1987 SC 537.
 Relation between Court and police in
respect of investiga- tion.
• There is a statutory right on the part of the police under secs. 154 and 156 of
Cr.P.C. to investigate the circumstances of the alleged cogni- zable crime without
requiring any power from the judicial authorities, and it would lead to an unfortunate
result if it be possible to interfere with those statutory rights by an exercise of the
inherent jurisdiction of the Court. The functions of the judiciary and the police are
complementary, not overlapping and the combination of individual liberty with due
obser- vance of law and order is only to be obtained by leaving each to exercise its
own function, always, of course, subject to the right of the Court to intervene in an
appropriate case 1985 Cr LJ 516: AIR 1985 SC 195 approving (1943)44 Cr LJ 413
(PC).
 High Court's inherent power to quash
investigation.-
• Save in exceptional cases where non-interference would result in miscarriage of justice, the Court should not interfere with the investigation
Eastern Spinning Mills v Rajiv Poddar 1985 Cr LJ 1858: AIR 1985 SC 1668. Un- der inherent powers it is not permissible to quash
proceedings or appre- ciate evidence at a stage when the trial has not even commenced State of Bihar v K.J.D. Singh 1994 SCC (Cri) 63.
High Court is not compe- tent to hold a parallel trial in the exercise of inherent powers for quashing the prosecution - Radheyshyam
Khemka v State (1993)3 SCC 54: 1993 SCC (Cri) 591.

The following categories of cases can be stated by way of illustration wherein the extraordinary power under Art. 226 of the Constitution and
the inherent powers under sec. 482 Cr. P.C. can be exercised by the High Court to prevent abuse of the process of any court or otherwise to
secure the ends of justice:

• (1) Where the allegations made in the F.I.R or the complaint, even if they are at their face value and accepted in their entirety, do not prima
facie constitute any offence or make out a case against the accused.

• (2) Where the allegations in F.I.R. and other materials, if any, ac- companying the F.I.R. do not disclose a cognizable offence, jus- tifying an
investigation by police officers under sec. 156(1) of the Code except under an order of a Magistrate within the purview of sec. 155(2) of the
Code.
• (3) Where the allegations made in the F.I.R. do not constitute a cog- nizable but constitute only a non-cognizable offence, no
investi- gation is permitted by a police officer with an order of a Magis- trate as contemplated under sec. 155(2) of the Code.

• (4) Where the uncontroverted allegations made in the F.I.R. or com-

• plaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case
against the accused.

• (5) Where the allegations made in the F.I.R. or complaint are so absurd
 and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there is
proceeding against the accused. sufficient ground for

• (6) Where there is an express legal bar engrafted in any of the provi sions of the Code of the concerned Act (under
which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is
specific provision in the Code or the concerned Act, providing efficacious redress for the griev ance of the aggrieved
party.

• (7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously
instituted with an ulte- rior motive for wreaking vengeance on the accused and with a view to spite him due to
personal and private grudge - 1991 Cr LJ 1438: AIR 1991 SC 1260; and State of Haryana v Bhajan Lal 1992 SCC (Cri) 426.

• Inordinate delay on the part of the investigating agency in completing investigation itself is no ground for quashing the
F.I.R. or the proceeding arising therefrom State of A.P. v P.V. Pavithran 1990 Cr LJ 1306: AIR 1990 SC 1266.
Right of police to investigate
and its control.

• The unrestrictive power of the police to

investigate into cognizable offences is not a
licence to do whatever the police would like to.
The regulations made under sec. 12 of the
Police Act (1861) are the fetters on the police
to put them under bounds. Section 12 of the
Police Act (1861) has empowered the Inspec-
tor-General to make rules, from time to time,
subject to the approval of the State
Government,
Sec 197
• Jaswant Singh v. The State of Punjab, AIR 1958 SC 124.
• S.B. Saha vs. M.S. Kochar, AIR 1979 SC 1841:1979 Cr.L.J. 1367 (S.C.).
Is sanction required to prosecute public servants?

Section 197 in The Code of Criminal Procedure, 1973

• 197. Prosecution of Judges and public servants.

• NEED OF SANCTION WHEN TO BE CONSIDERED - Matajog Dobey vs

H. C. Bhari(With Connected Appeal) on 31 October, 1955

• APPLICATION OF MIND -Mohd. Iqbal, Ahmad vs State Of Andhra

Pradesh on 18 January, 1979
• State Of Maharashtra vs Ramdas Shrinivas Nayak & Anr on 28
July, 1982
 • Process fee is the fee for summoning of witness or issuing of
notice to the opposite party. Process fee of seventy-five paisa is
required to be deposited in case, the matter pending before Civil
What is Judge or Magistrate in case, number of the opposite party being
summoned is less than four. Process fee of Rs. 1.50 paisa is

Process required to be deposited in case, the matter pending before

Addl. District and Sessions Judge in case, number of the
opposite party to be summoned is less than four. Where,
Fee- When number of parties to whom process is to be issued, exceeds
four, for every addition of next four parties/witnesses, additional

it is process fee at the aforesaid rates is to be pasted and then

deposited with the Ahlmad.

required to • Process fee in the shape of stamps is to be pasted on the

process fee form. Process fee stamps are available with stamp
vendors or at outlets authorised by the government. Process fee
be paid forms are available with vendors in the court complex. Process
fee is required to be filed with the Ahlmad of the court for issuing
of notice to the witnesses or the accused. Stamps are to be
affixed on a process fee form available in the court complex.
Who can Conduct Prosecution?
• Normally, a Public Prosecutor conducts the case in Criminal Courts,
but in some situations, you, as a complainant, can yourself conduct
your case without assistance of any Advocate. Therefore, you need
not engage a pleader. Magistrate inquiring into or trying a case may
permit you to conduct prosecution. If you engage a private pleader
and instruct him to prosecute any person in any Court, even then the
Public Prosecutor or Assistant Public Prosecutor in charge of the
case is to conduct the prosecution. However, your pleader can then
assist the Public Prosecutor or Assistant Public Prosecutor. Court
may permit your pleader to submit written arguments after the
evidence is closed in the case. (Section 302 CrPC
 How service of summons is to be
effected upon accused?
Accused before
What to do, if one is summoned as
Appearance of

an accused, by a Court?

If you ever think of avoiding service

Securing

of summons issued by Court

Court

Execution of bailable warrants

Rights of an Accused on Arrest
What steps are to be taken by police at the time of arrest of accused?
Any police officer may without an order from a Magistrate and without a warrant, arrest any person
described in section 41 of Cr.P.C. At the time a police officer enquires from a person (who has
committed a non-cognizable offence) as to what is his name and address, but said person refuses
to give the same or provides false information about it, such a person may be arrested so as to
ascertain his correct particulars. So, never refuse to tell your name and residence or give false
information about the same.
No woman can be arrested, save in exceptional circumstances, after sunset and before sunrise.
Where exceptional circumstances exist, woman police officer has to seek prior permission of
Judicial Magistrate of the first class, within whose local jurisdiction the offence is alleged to have
been committed or the arrest of woman is to be made.
The person arrested cannot be subjected to more restraint than is necessary to prevent his escape.

• in case of arrest
• Information to friends or relatives about
arrest of accused
• Medical Examination of accused Where
the person arrested by the police
alleges, at the time he is produced
before a Magistrate or at any time during
the period of his detention in custody,
that any person has committed an
offence against his body, Magistrate
shall direct examination of his body by a
registered medical practitioner. (See
sections 41, 42, 43, 50, 50A, 54, 55, 57,
58, 151 and 436, Cr.P.C.)
Information to be given to accused while being arrested

Production before Magistrate

When an arrested person can request for his medical

examination?
Detention of a Juvenile
Period of Detention
in Custody
• For how long an accused can be kept in
detention
• Period of detention in police custody -When
the person in detention is produced before the
Magistrate, he may order detention of such
person by way of police custody for a term not
exceeding 15 days in the whole.
• Period of detention in judicial custody
 Procedure for Investigation
Non-Cognizable Case
• As noticed in prior slide, investigation starts with the registration
of FIR. In case of non-cognizable case, no police officer can
investigate the case without order of Magistrate, (Section 155
Cr.P.C.) In case of such investigation on orders of the Mastral,
police ofer has all powers to investigate, except to arrest. For
aest of accused, the police officer has to obtain warrants from
the Magistrate.
Cognizable case
(Section 156 Cr.P.C.)

(Sections 157 and 158 Cr.P.C.)

Special Report- Sawai Ram v. State of Rajasthan,

(1997) 2 Crimes 148.
• Power to call witnesses to police station
• Complainant and witnesses not required to accompany police
to Court -
Where you are a complainant or a witness in a criminal case, and
you are going to appear before Court, you cannot be required to
accompany a police officer. Similarly, you cannot be subjected to
unnecessary restraint or inconvenience.
 Bail-When investigation cannot be completed
Entitlement to Bail in prescribed period of 90 or 60 days

Bail-in case of bailable offence

Bail-in case of non-bailable offence

As to when Court may refuse to grant bail?

• Bail in case of a woman or minor
Anticipatory Bail

What to do when you Bail-bonds - Surety Which

apprehend arrest by the important aspects are to
police during investigation be kept in mind at the
or in execution of any time of furnishing bai-
process issued by Court? bonds?
 Bail-bonds - Surety

• The surely must take along documents in proof of his/her identity,

residence, employment (a ide, salary or financial soundness. These
may be photograph, Ration card, Identity Card, Election I-card,
Driving Licence, PAN number card, salary sup certificate issued by
employer of the surety regarding employment and salary of Receipt
issu Vikas Patra, Short or Long Term Deposit Receipts Fied Deposit
Rocips issued by Bank, Life Insurance Perm Depe Receipts are
avalabe in respect. Court premises. Never come into contact of a tout
or
• Draft of bail application where your client is accused of committing an
offence under section 326 of IPC.
Complaint in a Cheque-
Bounce-Case

• Dishonour/bouncing of a cheque
In case of issuance of cheque in someone's
favour, sometimes it may not be honoured by
the bank for one or the other reason. As a
result, the payee or holder in course of the
cheque may feel aggrieved. In suchlike
cases, the payee or the holder in course of
the cheque received as dishonoured may file
a complaint under section 138 of the
Negotiable Instruments Act.
 (a) any cheque has been drawn by a person
on a bank account maintained by him for
payment of sum of money to the other to

Section
discharge whole or part of any debt or
other liability;

138 comes
into (b) said cheque is returned by the bank as
unpaid;

application
where: (c) it has been so retuned because of
insufficient amount to the credit of that
account or that the amount exceeded the
amount arranged to be paid by the bank or
for any other reason;
(d) the cheque must have been presented within the validity period;

(e) the payee or the holder in course of the cheque, makes a demand for of the
cheque, within 15 days of the receipt of information about return of the
cheque as unpaid

(f)the drawer of such cheque fails to make payment of the amount to the
payee or, as the case may be, to the holder in due course of the cheque, within
15 days of the receipt of said notice.
Maintenance of
Parents & Senior
Citizens

• Maintenance of Parents & Senior Citizens

Although there is provision under section
125 Cr.P.C. for maintenance of parents, in
order to provide for more effective
provisions for maintenance and welfare of
parents and senior citizens, The
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 has been
enacted. This Act received assent of the
President of India on 29-12-2007 and has
come into force from this date. The
provisions of this Act shall have effect even
if there is anything inconsistent therewith
contained in any Act already in force
Senior Citizen

• A "senior citizen" who has attained the age of 60 years or above, and
unable to maintain himself from his own earning or out of the property
owned by him, is entitled to maintenance under this Act. (Section 5)
• Parent Similarly, "parent" who is unable to maintain himself from
his own earning or out of the property owned by him or her
orout of the property owned by them is entitled to maintenance
under this Act. (Section 5)
• Father or mother (whether biological, adoptive ) or step father
or step mother (whether or not the father or mother is a senior
citizen) are included in the definition of "parent". [Clause (d) of
section 2).
• Property
Expression "property" means property of any kind, whether movable or immovable,
ancestral or self acquired, tangible or intangible and includes rights or interests in
such property. [Clause (f) of section 2).
• What is maintenance?
Maintenance includes provision for food, clothing, residence and medical attendance
and treatment.
• What is welfare?
Welfare means provision for food, health care, recreation centres and other
amenities necessary for the senior citizens.
Application for maintenance Parent or grand parent are entitled to file application for
maintenance against one or more of his children
• A childless senior citizen is entitled to file
application for maintenance against any
relative. "Relative" means any egal heir
(who is not a minor) of the chigains
senior citizen and who is in possession
of or would inherit property of slech
childless senior citizen after his death. It
is noteworthy that under this Act, senior
citizen or parent is entitled not only to
maintenance, but also to claim expenses
for the proceedings.
Extent of liability of children or relative to
maintain senior citizen
• Children or relative are under obligation to maintain a senior
citizen to his or her needs so that such senior citizen may lead a
normal life. Any relative of a senior citizen and having sufficient
means is required to maintain such senior citizen subject to the
condition that such relative is in possession of the property of
such senior citizen or he would inherit the property of such
senior citizen. However, where there are more than one
relatives of such senior citizen, who are entitled to inherit the
property of a senior citizen, the maintenance shall be payable
by such relative in proportion to the property they woul inherit.
 • Children are under obligation to
Extent of maintain their parents to their needs
(needs of father or mother or both of
liability of them) so that they may lead a normal
children to life. Expression "Children " include son,
daughter, grandson and grand-daughter.
maintain It is noteworthy, that this definition of
Parent children does not include a minor son,
daughter, grandson or grand-daughter.
How and where to file application under the
Act?
• Maintenance Tribunal
Application for maintenance is parent and senior citizens is to be filed before a
Tribunal. Every State is required to constitute, for adjudicating and deciding upon
the order for maintenance, for each sub-division one or more Tribunals. (Section 7)
Tribunal shall have all powers of a Civil Court for the purpose of taking evidence on
oath. Tribunal may have assistance of one or more persons having special
knowledge of any matter relevant to the inquiry. Tribunal shall also have all powers
to secure presence of witnesses and compelling discovery and production of
documents and other material objects. Tribunal falls within the ambit of a Civil Court
for the purposes of section 195 Cr.P.C.
• Where to file such an application?
Such an application may be filed against any children or relative
in any district—
• Where the applicant resides or last resided; or
• Where children or relative resides.
Although there is provision for grant ofmaintenance under section
125 Cr.P.C. and where a senior citizen or a parent is entitled for
maintenance under section 125 Cr.P.C. and under this Act, he
may file application under either of the two provisions. But,
application cannot be filed under both the provisions
Who can file application?
An application for maintenance may be made:
• By the senior citizen or a parent;
• By any other person or organisastion authorized by senior
citizen or a parent, where the senior citizen or parent is incapable
to make an application;
Tribunal may suo motu take cognizance of the matter regarding
grant of maintenance, even if no such application has been filed.
Notice of application
• As and when such an application is filed, its notice is to be
issued to the children or relative against whom application has
been filed. In order to secure presence of children or relative,
against whom application has been filed, Tribunal is empowered
to exercise powers of a Judicial Magistrate of Ist Cass as
provided under Code of Criminal Procedure. Tribunal is alo
empowered to proceed to hear and determine the case ex parte
where it is satisfied that the children or retive, against whom
application has been filed, is wilfully avoiding service or wilfully
neglecting to attend the proceedings
 Reference to Conciliation Officer
• Before hearing an application, Tribunal may refer the same to a
Conciliation Officer. The Conciliation Officer is required to
submit his findings within one month. to pass order to that
effect. If amicable settlement has been arrived before
Conciliation Officer, Tribunal is to pass the order to the effect

• Maintenance Officer designated by the State Government may

also act as Conciliation Officer. Any member or representative
of voluntary association registered under Societies
RegistrationAct, 1860 may also act as Concilition Officer.