The Code of Criminal Procedure, 1973 (CrPC) is a procedural law that regulates the administration of the Indian Penal Code, 1860 (IPC), addressing issues arising from multiple legal systems in India.

Initially enacted in 1861, CrPC underwent revisions and a comprehensive replacement in 1973, introducing changes like anticipatory bail—subsequent amendments in 2005 incorporated provisions for plea bargaining and the rights of arrested individuals.

The Supreme Court has interpreted the CrPC over time, mandating FIR registration for cognizable offences, restricting arrests for punishments less than seven years, and emphasizing bail as an absolute right for bailable offences.

The criminal justice system grapples with challenges such as case backlogs and delays despite judicial interventions addressing concerns like custodial interrogations and speedy trials. A proposed replacement, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), aims to amend bail provisions, broaden property seizure scope, and modify the police system and Magistrates’ powers.

Transformative Legislation Introduced by Union Home Minister in 2023

Union Home Minister Amit Shah presented three crucial bills in Parliament on 11 August 2023, signalling a transformative overhaul of India’s criminal justice system. These bills, namely the Bharatiya Nyaya Sanhita Bill, 2023; the Bharatiya Sakshya Bill, 2023; and the Bharatiya Nagrik Suraksha Sanhita Bill, 2023, aim to replace the antiquated British-era Indian Penal Code (IPC), the Indian Evidence Act, and Code of Criminal Procedure (CrPC).

The proposed changes, meticulously crafted by the Committee for Reforms in Criminal Laws under the Ministry of Home Affairs, target offences related to terrorism, crimes against women, corruption in elections, and acts against the state.

These bills were introduced during the last day of the monsoon session, designed to usher in a paradigm shift, ensuring expeditious justice, bolstering evidence integrity for higher conviction rates, and reducing case pendency. The bills were then forwarded to the Parliamentary Standing Committee for further deliberations, reflecting a thorough examination and scrutiny commitment.

Brief History of the Bharatiya Nagrik Suraksha Sanhita Bill, 2023 (BNSSB) to the Bharatiya Nyaya Sanhita, 2023 (BNS)

Let us now review the legislative journey from the introduction of the Bharatiya Nagrik Suraksha Sanhita Bill, 2023 (BNSSB) to its evolution into the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), noting key dates, stages, and the subsequent enactment details of the consolidated and amended law, which repeals the Code of Criminal Procedure, 1973 (CrPC).

Here are the three small tables presenting these facts:

Bharatiya Nagrik Suraksha Sanhita Bill, 2023 (BNSSB)

Bharatiya Nyaya Suraksha (Second) Sanhita Bill, 2023 (BNSSB)

Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

Act Details

Salient Features/ Key Changes/ Key Amendments in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

Here are the salient features of Bharatiya Nagarik Suraksha Sanhita, 2023.

New Framework

BNSS Sections vs CrPC Sections: BNSS introduces 531 sections, surpassing CrPC’s 484 sections.

Amendments and Additions:

• 107 sections amended, reflecting substantial changes.
• 9 new sections incorporated to address evolving legal needs.
• 9 sections were deleted for streamlining the legal framework.

Detention of Undertrials

• CrPC stipulates release on personal bond if half of the maximum imprisonment period is served, excluding death penalty cases.
• BNSS excludes this provision for offences punishable by life imprisonment and individuals facing proceedings in multiple offences.

Medical Examination

• CrPC permits medical examination in some instances, including rape, by a registered medical practitioner upon a sub-inspector’s request.
• BNSS allows any police officer to request such an examination.

Forensic Investigation

• BNSS mandates forensic investigation for offences with at least seven years of imprisonment.
• Forensic experts will collect evidence at crime scenes, documenting the process electronically. States without facilities can utilize those in other states.

Signatures and Finger Impressions

• CrPC empowers Magistrates to order specimen signatures or handwriting.
• BNSS expands this to include finger impressions and voice samples, which are applicable even if the person is not arrested.

Timelines for Procedures

• BNSS establishes timelines for various procedures, including the requirement for rape victim examination reports within seven days.
• Other specified timelines include delivering judgments within 30 days (extendable to 60 days), informing victims of investigation progress within 90 days, and framing charges by a sessions court within 60 days from the first hearing.

Hierarchy of Courts

• CrPC outlines a hierarchy of courts, including Magistrates, Sessions, High Courts, and the Supreme Court.
• BNSS retains the hierarchy but omits the provision allowing state governments to designate metropolitan areas with a population of over one million, which had Metropolitan Magistrates. It also omits the concept of the Assistant Session Judge.

Trial in Absentia

• BNSS allows trials in absentia for cases where the accused has absconded from India or cannot be procured.

e-Filing of FIR

• BNSS facilitates the electronic filing of FIRs, streamlining the initiation of legal proceedings.

Time-Bound Investigation and Judgment

• Emphasis on time-bound processes, from filing FIR to delivering judgments, reducing delays in the justice system.

Trial on Video Conference

• Video conferencing was introduced for legal proceedings, enhancing accessibility and efficiency.

Police Custody

• BNSS introduces changes in the criteria and regulations for police custody, addressing concerns and ensuring fairness.

Video Recording of Search and Seizure

• Police actions, such as search and seizure, are to be video-recorded for transparency and accountability.

Electronic Recording of Depositions

• Depositions of accused and witnesses are recorded electronically, ensuring accurate documentation.

Service of Process in Electronic Form

• Legal notifications and processes to be served electronically, aligning with modern practices.

e-FIR (to be signed within three days)

• Introduction of Electronic FIRs signed promptly within three days for efficient record-keeping.

Sanction of Government for Trial

• Government sanction is required for the trial to be given within 120 days, streamlining administrative processes.

Magistrate’s Authority for Samples

• The magistrate was empowered to order the collection of handwriting, fingerprints, etc., for investigative purposes.

Victim or Informant Notification

• Police are mandated to inform the victim or informant about the case’s progress.

Summary Trial Scope Expansion

• Increase the scope of summary trials to offences punishable with imprisonment up to 3 years, reducing the workload of session courts.

 Zero FIR – Specific Provision

• Implementation of a specific provision for “Zero FIR,” allowing FIR lodgement in any police station, with a duty to transfer it to the relevant station within 15 days.

 Use of Handcuffs

• Authorization for police officers to use handcuffs in specific cases, including habitual offenders, escapees, organized crimes, murder, rape, human trafficking, offences against children, and offences against the state.

Conclusion

The evolution from the CrPC to the BNSS signifies a significant paradigm shift in India’s criminal justice system. The legislative amendments, meticulously crafted by the Committee for Reforms in Criminal Laws, reflect a commitment to expeditious justice, evidence integrity, and the reduction of case pendency.

The BNSS introduces a new framework with 531 sections, surpassing the CrPC, and brings forth substantial amendments, additions, and deletions to streamline the legal landscape. Crucial alterations in undertrial detention, medical examinations, forensic investigations, and the hierarchy of courts mark a progressive approach to addressing contemporary challenges. Integrating technology, such as video conferencing and e-filing of FIRs, underscores the legislative intent to enhance efficiency and transparency.

Moreover, the proposed changes in police custody criteria, video recording of search and seizure, electronic recording of depositions, and the introduction of specific provisions like “Zero FIR” demonstrate a commitment to modernizing and aligning the legal system with evolving societal needs. The expansion of summary trial scope and regulations on the use of handcuffs further contribute to the comprehensive nature of the BNSS.

As the BNSS progresses through the legislative stages, including the examination by the Parliamentary Standing Committee, its potential impact on the criminal justice system remains a focal point for legal scholars, practitioners, and the public. The enactment of this legislation promises a redefined legal landscape, striving to address contemporary challenges while upholding the principles of justice and fairness.

Related:

• Overview of Bharatiya Sakshya Adhiniyam, 2023
• Overview of Bharatiya Nyaya Sanhita, 2023

Overview of Bharatiya Nagarik Suraksha Sanhita, 2023
Dinesh Verma

A court can take cognizance of an offence only when conditions requisite for initiating proceedings before it, as set out in Chapter XIV of the Criminal Procedure Code (Conditions Requisite For Initiation Of Proceedings), are fulfilled. Otherwise, the court does not obtain jurisdiction to try the offence.

The article explains the process of taking cognizance of an offence by Magistrates in the Indian legal system. It covers who can take cognizance, how it can be taken through complaints, police reports, information from individuals, and the Chief Judicial Magistrate’s empowerment. It also discusses the meaning of “may take cognizance,” relevant cases, and limitations on taking cognizance within prescribed time limits.

Cognizance of Offence by Magistrates (Section 190 of CrPC)

In the Indian legal system, initiating criminal proceedings is known as “taking cognizance of an offence.”

Who can take cognizance of an offence?

• Magistrates: The power to take cognizance of an offence lies with Magistrates.
• Types of Magistrates: There are two classes of Magistrates – Magistrate of the first class and Magistrate of the second class.
• Special Empowerment: A Magistrate of the second class can be specially empowered under sub-section (2) to exercise this power.

How can cognizance be taken?

(a) Upon receiving a complaint: If a complaint contains facts that constitute an offence, a Magistrate can take cognizance of the offence. The victim or anyone who knows the offence can file a complaint.

(b) Upon a police report: If the police submit a report containing facts about an offence, a Magistrate can take cognizance of the offence. It typically happens when the police have conducted an investigation and gathered evidence.

(c) Upon information from any person: If anyone other than a police officer provides information to the Magistrate about the commission of an offence, the Magistrate can take cognizance of the offence. The Magistrate can also take cognizance based on their own knowledge of the offence.

Empowerment by Chief Judicial Magistrate

The Chief Judicial Magistrate has the authority to empower a Magistrate of the second class. This empowerment allows the Magistrate of the second class to take cognizance of certain offences falling within their jurisdiction. The aim is to distribute the workload and ensure efficient handling of cases.

Meaning of “May Take Cognizance”

It was held by the Supreme Court in Sub-divisional Magistrate, Delhi vs Ramkali, AIR 1968 SC I, that here ‘may‘ means ‘must‘ and, therefore, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. Thus, where the Magistrate refuses to accept the police report but takes cognizance of a case after receiving affidavits of the complainant and his witnesses, it is not illegal. He has no discretion in the matter. Otherwise, section 190(1)(b) of CrPC will violate Article 14 of the Constitution.

It was held in Hastimal vs State of Rajasthan, 1994 Cr.L.J. 3384 (Bom.), that the order of Magistrate under section 190 of CrPC must be a speaking order, where police submit a final report after a thorough investigation, the order of Magistrate refusing to accept the same and taking cognizance of an offence without giving any reasons amounts to abuse of process of court and such an order is liable to be quashed.

It was held in CREF Finance Ltd. vs Shree Shantoli Homes Pvt. Ltd., 2005 Cr.L.J. (NOC) 145 (Raj.), that a court must be held to have taken cognizance of the offence when on perusal of the complaint, it is satisfied that the complaint discloses the commission of an offence and proceeds further. The words “cognizance was taken” need not be mentioned in the order.

In B. Jagdish vs State of A.P. and Another, (2009) 1 Cr.L.J. 828 (SC), the complaint related to medical negligence that the accused (doctor) gave wrong treatment leading to the death of the complainant’s daughter. Evidence of doctors produced by the complainant, prima facie, disclosed a case of criminal negligence. It was held that refusal to quash proceedings was not liable to be interfered with because evidence produced by the accused cannot be considered at the stage of quashing of order taking cognizance.

In Ashok Chaturvedi vs Shital H. Chanchan, 1998 Cr.L.J. 4091 (SC), the complaint was for the offence of forgery on the ground that shares of the complainant have been transferred on forged signatures. It was argued on behalf of the appellant that since a claim was filed before the consumer forum, the dispute was civil, and therefore, the order of cognizance passed by the magistrate should be quashed. It was held that a mere filing of a claim before the Consumer Forum could not make the dispute a civil dispute.

Taking Cognizance of Offence

Taking cognizance is “sine qua non” for trial. When the complaint was filed, the Magistrate had posted the case to the next day. On the subsequent date, the sworn statement of the complainant was recorded, and specific exhibits were marked, holding that the act of recording a sworn statement and issuing process indicated that the Magistrate had taken cognizance of the offence. The Magistrate is concerned with whether material exists to show the prima facie commission of an offence.

In the case of Smt. Mona Panwar v. Hon’ble High Court of Judicature at Allahabad through its Registrar, (2011) 2 Cr.L.J. 1619 (SC), it was established that taking cognizance refers to recognizing an offence, not the offender. It does not involve formal action but occurs when a Magistrate applies their mind to the suspected commission of a crime.

Cognizance takes place when the Magistrate first takes judicial notice of an offence. For a Magistrate to be deemed to have taken cognizance under section 190(1)(b) of the Criminal Procedure Code, they must not only have applied their mind to the complaint but also proceeded under section 200 and the subsequent provisions of the CrPC.

However, if the Magistrate only applies their mind to order an investigation under section 156(3) of CrPC or issues a warrant for investigation, it cannot be considered taking cognizance of the offence. Taking cognizance and initiating proceedings are distinct actions in this context.

Clause (a) of Section 190 of CrPC (Upon Receiving a Complaint of Facts Which Constitute Such Offence)

Complaints under clause (a) may be by word of mouth or in writing. As a general rule, any person knowing the commission of the offence may make a complaint even though he is not personally affected by the offence. Sections 195 and 199 of CrPC are exceptions to this rule. A complaint may be made even by post. A complaint also includes allegations against unknown persons.

The term complaint is defined in section 2(d) of CrPC. It can be made orally or in writing to a Magistrate with the intention that he will act. The complainant must set out in the complaint that any known or unknown person has committed an offence. The section clarifies that a complaint does not include a police report. Still, its explanation says that if a police officer submits a report after investigation, which discloses only the commission of a non-cognizable offence, it shall be deemed a complaint and the maker of the report to be the complainant.

Anyone can complain even though he is not personally injured or affected by the offence. The mere fact of filing a previous complaint cannot be a bar to filing another complaint to take it to its logical conclusion when the earlier complaint had been dismissed without trial.

Relevant Material for Taking Cognizance

The Supreme Court, in the case of Ajay Mehra vs Durgesh Babu (2002) 9 SCC 709, made it clear that where the statement made in the complaint and statements made under section 202 of CrPC taken on face value made out the offence, taking of cognizance would be justified. The High Court could not consider other material to quash the cognizance at this stage.

Clause (b) of Section 190 of CrPC (Upon a Police Report of Such Facts)

Clause (b) of section 190 of CrPC is confined to the cognizance of a police report of a cognizable and non-cognizable offence.

Police report is defined in section 2(r) of CrPC and means a report under section 173(2) of CrPC. The police report must state the facts that constitute the offence. It is a requisite of fundamental importance.

The magistrate is not bound to accept the opinion of the police. If the Magistrate concludes that apart from the persons named by the police, some others are also involved in the offence, he must proceed against those persons also. Therefore, when the Magistrate takes cognizance under section 190 (1)(b) of CrPC upon a report made by a police officer, his power to issue the process is not restricted only to the persons challenged by the police.

It was held in Union of India vs Prakash P. Hinduja, (2003) Cri. L.J. 3117 (SC), that when after completion of the investigation of an offence, a final (closer) report is submitted by the police before the Magistrate under section 173(2) of CrPC, he may not accept the report and can take cognizance of the offence if he feels that the evidence so collected during the investigation justifies the prosecution of the accused. He may summon the accused to exercise powers conferred by section 190 of CrPC.

It was held in Motilal Songara vs Prem Prakash alias Pappu and another, (2013) 3 Cri. L.J. 2977 (SC), that the Magistrate is not bound to accept the final report filed by the investigating agency. The magistrate can take cognizance and issue a process against the person, though acquitted by the investigating agency.

Clause (c) of Section 190 of CrPC (Upon Information Received From Any Person Other Than a Police Officer, or Upon His Own Knowledge, That Such Offence Has Been Committed)

Under clause (c) of section 190 of CrPC, cognizance may be taken on information received from sources other than a police officer. It applies to cases where the private individual who is aggrieved or someone on his behalf does not come forward to make a complaint. If the Magistrate believes that the facts set out in the final report constitute an offence, he can take cognizance of the offence under clause (c) of section 190 (1) of CrPC.

Information under this clause is distinct from a complaint under clause (a) of CrPC. The essential difference between a complaint and information is that a Magistrate acts on a complaint because the complainant has asked him to act. Still, in the case of information, a Magistrate acts of his own accord and initiative. For this reason, in the latter case, section 191 of CrPC requires that he inform the accused that another court may try him.

In Dharmatma Singh vs Harminder Singh and others, (2011) 3 Cri. L.J. 3591 (SC), police reports after the initial investigation and the report under section 173(8) of CrPC after further investigation gave a diverse opinion about the guilt of the accused. The Supreme Court held that this could not be grounds for the High Court to quash criminal proceedings in exercising inherent powers. It is for the Magistrate to form an opinion whether facts set out in two reports make out an offence committed by a person.

The phrase “upon his own knowledge” signifies that a Magistrate can take cognizance of an offence without any complaint only when it has come to his knowledge that such offence has been committed. A gratuitous suspicion or a belief founded on private information in an anonymous petition is not knowledge.

Application of Judicial Mind

In Bhusan Kumar and another vs N.C.T. Of (Delhi) and another, (2012) 2 Cri. L.J. 2286 (SC), it was held that under section 190 of CrPC, the application of judicial mind to the averments in the complaint constitutes cognizance. The Magistrate must be satisfied with sufficient ground for conviction at this stage. Whether the evidence is adequate to support the sentence can be determined only at the trial. If sufficient ground exists for proceeding, the Magistrate is empowered to issue a process under section 204 of the CrPC.

Limitation on Taking Cognizance

A magistrate is empowered to take cognizance of an offence within the prescribed time limits. Sections 467 to 473 of CrPC deal with the limitation provisions for taking cognizance of specific categories of offences. Suppose cognizance of offence has been taken within the prescribed period of limitation. In that case, it does not become by the process under section 202 of CrPC being taken out after the expiration of such period.

Jailok Thakur vs the State of Bihar, AIR 1980 Pat 126 (FB): In this case, the court said that even after the period of limitation, such offences can be taken cognizance of by the court if the delay is condoned before taking cognizance.

S.M. Vikas vs A.M. Chopra, (1978) 2 SCC 403: The Court can condone the delay even without a proper explanation in the interest of justice.

Arun Vyas vs Anita Vyas, (1999) 4 SCC 690: The court held that the delay should not be condoned without notice to the accused and without recording any reasons for it.

Conclusion

The process of taking cognizance of offences by Magistrates involves the initiation of criminal proceedings. The Magistrates, based on the provisions outlined, can take cognizance upon receiving a complaint, a police report, information from any person, or their own knowledge. The Chief Judicial Magistrate has the power to empower Magistrates of the second class for this purpose. These provisions aim to ensure a fair and efficient justice system in India.

Magistrate’s Power to Take Cognizance of Offences Under CrPC
Dinesh Verma

Unlike the other functionaries under the Criminal Procedure Code, such as the police and the prosecutors, the advocates and the pleaders engaged in defending the accused persons are not in regular employment of the state and in most cases, they receive remuneration for their services from the accused persons. Nevertheless, they are also the officers of the court and are quite indispensable if a fair trial is to be given to an accused person.

This law note highlights the crucial role of defence counsel in India’s criminal justice system, emphasizing the right to legal representation and provisions for state-funded legal aid.

Meaning of Defence Counsel/Pleader

By section 2(1)(q) of the Code of Criminal Procedure (CrPC) 1973, a pleader, in the context of legal proceedings in any court, refers to an individual duly authorized by prevailing laws to practice in that court. The designation encompasses individuals granted permission by the court to participate in such proceedings. A pleader includes any person entitled to represent and advocate for another in a court of law, such as an Advocate, a Vakil, or an Attorney of a High Court. A pleader constitutes a class of legal practitioners with the authority to present cases and arguments in a court of law.

T.C. Mathai vs Dist. & Sessions Judge, Thiruvananthapuram, 1999 Cri.L.J. 2092 (SC): In this case, the court emphasized that an agent who has the power of attorney holder can’t become a pleader for the party unless the party secures permission from the court to appoint him to act in such proceeding. Section 2 of the Power of Attorney Act can’t override the specific provisions of a statute requiring a person or party to do a particular act. Work in a court of law is a serious and responsible function. In the adversary system now being followed in India, both in civil and criminal litigation, the court must get proper assistance from both sides. The reason for making a provision that prior permission of the court must be secured before a non-advocate is appointed by the party to plead his cause in the court is to enable the court to verify the level of equipment of such person for pleading on behalf of the party concerned.

Section 303: Right of Person Against Whom Proceedings Are Instituted to Be Defended

Any individual accused of an offence in a criminal court or against whom legal proceedings are initiated under the provisions of CrPC has the inherent right to be represented by a pleader of their choosing.

Section 303 reinforces the Fundamental Rights guaranteed by Article 22(1) of the Constitution of India. It explicitly states that anyone facing accusations in a criminal court or subjected to legal proceedings under CrPC has the right to choose a pleader for their defence.

In situations where the accused lacks the financial means to engage a lawyer, section 304 mandates that, under specific circumstances, the court must facilitate the appointment of legal representation for the defence, and the State bears the expenses.

Article 39A of the Constitution acknowledges the imperative for the State to furnish free legal aid to economically disadvantaged individuals accused of offences. The provision underscores the commitment to ensuring all citizens have equal opportunities to access justice, regardless of economic circumstances. The principle is grounded in the notion that economic disabilities should not prevent any citizen from securing a fair and impartial legal defence.

The addition of the words “of his choice” at the end indicates that no advocate or pleader is to be imposed on the accused, and he should be permitted to be defended by a pleader or advocate in whom he has full confidence.

Tara Singh vs The State, AIR 1951 SC 441: The court emphasized that the Magistrate is duty bound to afford the accused the necessary opportunity to engage a lawyer. Therefore, the accused should have a reasonable opportunity, if he is in the custody of the police, to get into communication with his legal adviser to prepare his defence. This section applies not only to the person accused of an offence but also to any person against whom proceedings such as maintenance of wife and children or security for keeping the peace and for good behaviour, etc., are instituted under the Code.

Sandhu Charan Panda vs State, 1987 Cri. L.J. 1220 (Orissa): In this case, the court held that the accused is represented by a counsel in an appeal against conviction before the Sessions Judge. Still, the counsel does not appear when the case is called on for hearing; the judgment rendered by the appellate court with the assistance of the Public Prosecutor and on perusal of the material on record can’t be said to be vitiated. It can’t be set aside merely because the counsel for the appellant was not present.

R.M. Wasawa vs the State of Gujarat, AIR 1974 SC 1143: The Supreme Court has held that the Sessions Judge should view with sufficient seriousness the need to appoint State counsel for undefended accused in severe cases. Indigence should never be grounds for denying a fair trial or equal justice. Therefore, advocates competent to handle cases should be appointed. Sufficient time and complete papers should also be made available to them so that they may prepare the case, and the accused may also feel confident that the counsel chosen by the court has had adequate time and material to defend him properly.

Section 304: Legal Aid to Accused at State Expense in Certain Cases

Nevertheless, the right to legal counsel loses its significance when an accused individual cannot retain a lawyer for their defence due to poverty or impoverished conditions. In such cases, the indigent accused is susceptible to denying a fair trial, as they do not enjoy equal access to legal services compared to the opposing party. To address this issue to a considerable extent, the legal code has tried to provide a solution.

A Sessions Court can assign a pleader to defend an accused at the expense of the states if:

• A pleader does not represent the accused, or
• The accused has not had sufficient means to engage a pleader.

The High Court, with the previous approval of the State Government, makes rules providing for:

• The mode of selecting a pleader for defence;
• The facility is to be allowed to such pleader by the Courts; and
• The fees payable to such pleader.

The State Government may direct the same provisions to apply to any class of trials before others.

Various schemes are in place to facilitate free legal aid for needy accused individuals. Notable among these are initiatives like the Legal Aid Scheme offered by the State Bar Association, the Legal Aid and Service Board, and the Supreme Court Senior Advocates Free Legal Aid Society. Furthermore, the Legal Services Authority Act of 1987 plays a crucial role by mandating the provision of free legal aid for those in need. Collectively, these mechanisms ensure that individuals with limited financial means can access legal assistance when facing legal proceedings.

Suk Das vs State of Arunachal Pradesh, 1986 SC: The Supreme Court has held that a conviction of the accused in a trial where he is not provided legal aid would be set aside as violative of Article 21 of the Constitution. But where the accused pleaded guilty without the assistance of a counsel under the legal aid scheme and was convicted by the Magistrate, it was held that the trial and conviction were not vitiated because the Magistrate was fully satisfied that the plea was voluntary, authentic and genuine.

Jagmalram & others vs State of Rajasthan, 1982 Cri. L.J. 2314: The court emphasized that in case of the trial of a criminal case, which carries a sentence of imprisonment as and when the accused is produced or brought before a Magistrate, the Magistrate should make it known to the accused, that he has a right, a constitutional right of being represented by a counsel of his choice and if he has no means to engage a lawyer, then arrangement may be made for his defence.

Moolchand vs State, 1990 Cri. L.J. 682 (Del): The accused petitioner was convicted for various offences and was in custody for an entire period of one and a half, and no counsel was provided to him at the state’s expense. It was held to be a case of grave illegality. Therefore, while considering the revision application seeking modification of the sentence to the period already undergone, the court preferred to grant the relief prayed for instead of ordering a new trial.

State of Haryana vs Ram Diya, 1990 Cri. L.J. 1327 (SC): The court emphasized that wherein a criminal appeal, the counsel appointed by the court for the accused was not present at the hearing, and the appeal was disposed of without a hearing, it was held that the case must be remanded for a new hearing.

To sum up, in India, the defence counsel plays a significant part in the criminal justice system. The primary goal of defence counsel is to defend the accused person. Defence counsel includes an Advocate, a Vakil and an Attorney of a High Court.

Role of Defence Counsel in the Administration of Criminal Justice
Dinesh Verma

A crime is wrong not only against the individual victim but also against society at large. Because of this consideration, the state, representing the people collectively, participates in a criminal trial as a party against the person accused of a crime, mainly if the crime is a cognizable offence.

The Public Prosecutor (PP) or the Assistant Public Prosecutor (APP) is the counsel for the state in such trials. His duties mainly consist of conducting prosecutions on behalf of the state. The Public Prosecutor also appears as State Counsel in criminal appeals, revisions and other matters in the Sessions Courts and the High Courts. The Public Prosecutor should not appear on behalf of the accused.

Related: Public Prosecutor and Its Appointment in India as Per CrPC

Meaning of Public Prosecutor

Public Prosecutor is defined in section 2(1)(u) of the Criminal Procedure Code, 1973. A Public Prosecutor means any person appointed under section 24 of the CrPC and includes any person acting under the directions of a public prosecutor. A Public Prosecutor is a public officer charged with investigating and prosecuting punishable acts on behalf of a State.

State of Bihar vs Ram Naresh, AIR 1957 SC 389: A Public Prosecutor is an executive officer but, in a sense, an officer of the court. He is bound to assist the court with his fairly considered view, and the court is entitled to benefit from the fair exercise of his function.

T.A. Rajendra vs P.V. Ayyappan, 1986 Cri. L.J. 1287 (Ker): An Advocate General whom the Governor asks of a State to represent an accused in a Sessions Court will not be a Public Prosecutor unless appointed as such Public Prosecutor under section 24 of the CrPC.

Classes of Public Prosecutor

1. PP appointed by the Central Government;
2. PP appointed by the State Government;
3. Additional PP appointed by the Central Government;
4. Additional PP appointed by the State Government;
5. Special PP appointed by the Central Government;
6. Special PP appointed by the State Government;
7. Assistant PP appointed by the State Government;
8. Assistant PP appointed by the District Magistrate.

Nature of Duty of Public Prosecutor

The CrPC does not mention the spirit in which the duties of the Prosecutor are to be discharged. However, the principles in this regard are well-settled. The PP is not the protagonist of any party. In theory, he stands for the state in whose name all prosecutions are conducted.

The purpose of the criminal trial is not to support the all-costs theory but to investigate the offence and determine the guilt or innocence of the accused. A PP must represent not the police but the state, and his duty should be discharged fairly and fearlessly and with a full sense of the responsibility that attaches to his position.

The duty of the PP in a criminal trial is not merely to secure a conviction at all costs but to place before the court whatever evidence is in his possession, whether it be in favour or against the accused, and to leave it to the court to decide upon all such evidence whether the accused was or was not guilty of the offence alleged. It is not a part of the prosecutor’s duty to obtain convictions by hook or crook.

The counsel for the prosecution should not, by the statement, aggravate the case against the prisoners or keep back a witness because his evidence may weaken the case for the prosecution. His only object should be to aid the court in discovering the truth. He should avoid anything likely to intimate or unduly influence witnesses on either side.

There should be on his part no unseemly eagerness for or grasping at conviction. The ideal PP is not concerned with securing a conviction or satisfying departments of the State Government with which he has to be in the contract. He must consider himself an agent of justice.

Section 24: Public Prosecutors

Section 24 of the Code of Criminal Procedure, 1973, outlines the appointment of Public Prosecutors by the Central and State Governments for High Courts, districts, and local areas. The appointment is subject to consultation with relevant authorities, and Additional Public Prosecutors may also be appointed. The District Magistrate, in consultation with the Sessions Judge, prepares a panel of eligible candidates for the district. Only individuals appearing on this panel can be appointed as Public Prosecutors or Additional Public Prosecutors for that district. The eligibility criteria include at least seven years of advocacy practice for general appointments and ten years for Special Public Prosecutors. In cases where a regular cadre of Prosecuting Officers exists, appointments must be made from within the cadre unless the State Government deems no suitable candidate available.

P.M. Sunny vs State of Kerala, 1986 Cri. L.J. 1517 (Ker): It was held that the government couldn’t keep posts vacant because of administrative necessity and financial constraints. Appointing a prosecutor is a compelling constitutional necessity obligatory under this CrPC. Financial constraints can’t absolve the state of its constitutional obligation.

State of Maharashtra vs Prakash Prahlad Patil, (2010) 1 Cri. L.J. 466 (SC): It has been held that the close relatives of the victim challenged the appointment of a Special Public Prosecutor made after taking decisions at various levels by the State Government, picking up stray sentences from records by the High Court to conclude that non-application of mind in the appointment was not proper.

Section 25: Assistant Public Prosecutors

Section 25 of the Code of Criminal Procedure, 1973, addresses the appointment of Assistant Public Prosecutors by the State Government in every district to conduct prosecutions in Magistrates’ Courts. The Central Government may appoint Assistant Public Prosecutors for specific cases in Magistrates’ courts. Notably, police officers are generally ineligible for such appointments, with exceptions. Suppose no Assistant Public Prosecutor is available for a particular case. In that case, the District Magistrate has the authority to appoint any other suitable person for that role, excluding police officers involved in the investigation or holding a rank below Inspector.

Vijay vs State of Maharashtra, 1986 Cri. L.J. 2093 (Bom.): A police officer to the rank of Inspector or above may be appointed to act as Assistant Public Prosecutor in any case, provided that he has not himself been the investigation officer in the offence for which the accused was being tried. The discretion under section 25(3) of the CrPC should be exercised in such a manner as to ensure that a case is conducted correctly. Sections 24(8) and 25(1) of the CrPC do not violate Article 14 of the Indian Constitution. They lay down sufficient guidelines for the appointment of Special Public Prosecutor (SPP) and APP. The accused can’t demand that the prosecution should be conducted by a particular prosecutor only.

K. Tirupathi vs State of AP, 1983 Cri. L.J. 1243 (AP): Section 24 provides that the APP should also be a practising advocate. However, section 25 does not provide so; therefore, under certain circumstances, even a police officer can be appointed as an APP under this section.

Kannappan vs Abbas, 1986 Cri. L.J. 1022: It was held that an APP couldn’t be permitted to defend a case even if the accused are police officers because he is appointed to conduct the prosecution and not to defend the accused.

Does Section 25A Ensure the Independence of the Public Prosecutors?

The scheme under section 25A of CrPC (through the 2005 Amendment) departs from the set-up initially envisaged under the Criminal Procedure Code of 1973. The Director shall be in charge of the Directorate and shall function under the administrative control of the head of the Home Department in the state.

PP, APP and SPP shall conduct cases and work under the Directorate of Prosecution. There will undoubtedly be active coordination and cooperation between the Police and the Prosecution, though it may make the PP’s independence suspicious. It is pertinent to note that the Director and the Deputy Directors are appointed with the concurrence of the Chief Justice. The provisions of section 25A do not apply to the Advocate General for the state while performing the functions of the PP.

Section 301: Appearance by Public Prosecutors

The Public Prosecutor or the Assistant Public Prosecutor has the authority to appear and plead before any court in any case entrusted to him under section 301 of the CrPC. He can also advise the police or other government departments about the prosecution of any person if his advice is so sought.

The PP may avail himself of the assistance of the counsel retained by the private individual, but he will manage the case himself. Both of them may work in harmony, and if they do not, the counsel may retire, or the PP may keep the conduct of the case solely to himself.

With the court’s permission, the counsel appointed by the private party can submit written arguments after the evidence is closed in the case.

Re Rakhan Ojha, 1988 Cri. L.J. 278 (Cal.): The court held that section 301(2) of the CrPC says that the lawyer engaged by the private person can submit written arguments. It does not mean such a lawyer could also address the court orally.

Section 321: Withdrawal From Prosecution

Abdul Wahab K. vs State of Kerala & Ors., AIR 2018 SC 4265 (Para 8): The Supreme Court stated that it would be improper for the court, keeping in view the scheme of section 321 of the CrPC, to embark upon a detailed enquiry into the facts and evidence of the case or to direct retrial because that would be destructive of the object and intent of this section.

Mohammad Safi vs State of West Bengal, AIR 1966 SC 69: Where the court is not competent to frame a charge in an offence, it shall not be competent to permit withdrawing from prosecution.

L. Choraria vs State of Maharashtra, AIR 1968 SC 938: It is not unconstitutional under this section to withdraw a prosecution and make the accused a witness.

Conclusion

A Public Prosecutor represents the state in whose name the prosecution is conducted. All offences affect the individual injured as well as the public in general. Therefore, in all offences, the state is the prosecutor. Therefore, prosecutions are generally carried out in the name of the state for the commission of an offence, which is treated as an invasion of public peace and is not merely a contention between the complainant and the accused.

Role of Public Prosecutor in India Under CrPC
Dinesh Verma

The rights of the victim have been discussed under the Criminal Procedure Code from sections 357 to 358. To understand victims’ rights, first of all, we have to understand who is a victim.

Who Is a Victim?

Victim is explicitly defined in clause (wa) of section 2 by the CrPC (Amendment) Act, 2008. To grant specific rights to the victims’ guardians and legal heirs, this section introduces a definition of a victim.

A person who has been wounded, hurt or died due to a crime, accident, or other circumstance or action is referred to as the victim. He is the one who has suffered any damages as a result of the conduct or omission that the defendant is accused of. For this Code, the term “victim” also refers to a person’s guardian and legal heirs.

Section 357: Order to Pay Compensation

A crime victim experiences financial losses and physical/mental harm. While a civil court’s job is to make the wrongdoer pay for the loss or harm they caused to the aggrieved party, a criminal court’s job is to punish the perpetrator.

However, it would be equitable and practical to merge these two processes if it can be done without impairing the criminal and civil processes because doing so would spare time and money spent going to two different courts to seek redress. The concept is partially included in section 357 of the CrPC, which also gives the criminal court the authority to reimburse the prosecution’s costs and award damages to the victim.

This clause gives the court the authority to order the payment of the prosecution’s fees as well as compensation for the victim. According to this section, a compensation order may be issued from the fine imposed by the Trial court, Appellate court, High Court, or Court of the Session in revision at the time of passing judgment.

In the following four situations, the court may direct that all or a portion of the fine recovered to be used:

1. Costs of the prosecution: costs that the complainant legitimately incurred during the prosecution.
2. Compensation to the victim: anyone is entitled to compensation for the loss or harm brought on by the offence, including the deceased victim’s widow, spouse, parents, and children.
3. Compensation to dependents: when the accused was convicted of committing or abetting the death of another person, compensation is to be paid to the dependents of the deceased, who are entitled to claim compensation under the Fatal Accidents Act 1855.
4. Compensation to bona fide purchaser of stolen property: when the accused is found guilty of crimes such as theft, criminal misappropriation, criminal breach of trust, fraud, dishonestly receiving or returning stolen property, etc., he is required to pay any legitimate purchaser of the lost property compensation if the property is returned to the rightful owner.

The court shall consider any cash obtained as compensation under this provision for determining compensation in any later civil suit involving the same subject.

Section 357A: Victim Compensation Scheme

Under the CrPC (Amendment) Act, 2008, the newly introduced section 357A requires the collaboration of both the state and central governments to establish a “Victim Compensation Scheme.” This scheme aims to compensate victims or dependents who have suffered losses or harm due to a crime. In addition to a fine under section 326A or section 376D of the Indian Penal Code, compensation is required.

By section 357(1) of the CrPC, the state government must work with the central government to develop a plan that allocates funds to compensate victims of crime or their dependents who have experienced loss or harm due to the crime for their rehabilitation.

The District Legal Service Authority or the State Legal Service Authority, by section 357(2) of the CrPC, must determine the amount of compensation to be paid under the plan for compensating crime victims under section 357(1) of the CrPC. Only on the court’s recommendation would the aforementioned authorities reimburse the victim.

Suppose the trial court determines that the compensation granted under section 357 of the CrPC is insufficient for the victim’s rehabilitation, or if the case results in an acquittal or discharge of the accused, the court may suggest paying the victim after the trial by section 357(3) of the CrPC.

By section 357(4) of the CrPC, there may be circumstances where the dependent victim may apply to the State or District Legal Services Authority for compensation award if the criminal cannot be located or identified, but the victim is.

By section 357(5) of the CrPC, the State or the District Legal Services Authority must investigate to ascertain the veracity of any application submitted under section 357(4) of the CrPC before awarding compensation within two months.

Section 357(6) of the CrPC aims to lessen the victim’s suffering. Based on a certificate from a police officer not below the rank of the officer in charge of the station or a Magistrate of the relevant region, it enables the State or the District Legal Services Authority to order that a victim get prompt first assistance or free medical benefits.

Ravada Sasikala vs State of Andhra Pradesh, AIR 2017 SC 1166: The trial court had found the defendant guilty of throwing acid at the victim, causing significant burn injuries, and violating sections 326 and 448 of the IPC. The High Court released the accused while upholding the conviction under section 326 of the IPC by only giving him the time he had served in prison. But following a challenge to this decrease, the Supreme Court reinstated the one-year term the trial court had imposed. The Supreme Court did this while removing the victim’s right to compensation under sections 357 and 357A of the CrPC.

Section 357B: Compensation to Be in Addition to Fine Under Section 326A or Section 376D of Indian Penal Code

According to the guidelines in this section, in addition to any penalties imposed on the victim under sections 326A or 376D of the Indian Penal Code, the State Government or the District Legal Services Authority must provide the victim compensation under section 357A of the CrPC.

Section 357C: Treatment of Victims

This section tries to provide first aid care for crime victims. The Justice J.S. Verma Committee’s recommendations now include this new part.

According to the provisions of this section, regardless of whether the hospital is run by the Central Government or the State Government, all public or private hospitals are required to provide first-aid or medical treatment for victims of any offence covered by sections 326A, 376, 376A, 376B, 376C, and 376E of the Indian Penal Code. The hospital where the victim is treated is responsible for immediately reporting the occurrence to the authorities.

Section 358: Compensation to Persons Groundlessly Arrested

By this section, the Magistrate may grant compensation to a person unlawfully detained following a complaint that led to the detention without a valid justification. According to section 358 of the CrPC, the Magistrate may award damages up to one thousand rupees. The Magistrate may decide on the compensation given under this provision to make up for the time and money the person who was wrongfully detained lost.

The two prerequisites listed below must be met for this section to be applied:

1. A police officer must have been prompted to arrest by one individual.
2. The Magistrate who hears the case against the arrested individual must believe there was insufficient justification for the arrest.

By section 358(2) of the CrPC, the Magistrate may grant each person arrested in response to the complaint above compensation of up to one thousand rupees or as he deems appropriate.

According to section 358(3) of the CrPC, the compensation granted under this section may be recovered as if it were fine. If the person obliged to pay fails to do so, he will get a sentence of simple imprisonment for a duration that does not exceed 30 days.

Parmod Kumar vs Golekha, 1986 CrLJ 1634 (Orissa): It was decided that before ordering the informant to compensate the accused for their unjustified detention under section 358 of the CrPC, a show cause notice must be served on him, and there must also be a direct link between the information and the arrest. The information provided to the police station by the informant is just the beginning; more must be discovered. For the Magistrate to be satisfied that the informant was responsible for the accused’s arrest and that there was insufficient justification for such an arrest, there must be some objective foundation.

Section 372: No Appeal to Lie Unless Otherwise Provided (Proviso)

According to the proviso, the victim can appeal a criminal court’s decision to release the accused, convict him of a lesser crime, or impose insufficient reparations.

By way of amendment in 2008, this proviso was inserted into section 372 of the CrPC.

Naval Kishore Mishra vs State of UP and others, AIR 2019 SC 3352: The actual brother of the unmarried deceased was determined to be the legal heir of the deceased and thus had the right to appeal the court’s decision to acquit the accused or convict him for a lesser offence or to impose an inadequate fine. This appeal would be made to the court to which an appeal is typically made against the decision to convict made by that court.

Rights of Victims Under the Criminal Procedure Code
Dinesh Verma

Protest petitions were a novel concept until a decade ago. However, they are becoming more critical in protecting victims’ rights and providing them a voice in the criminal process. It is essentially a representation given to the court by the victim/informant while or after the police investigation is completed.

It is an opportunity given to the victim/complainant to raise objections against the police’s investigation is complete. It is commonly filed when the police present the final report under section 173 of the CrPC, wherein the police conclude that the allegations against the accused are not made out.

What Is a Protest Petition?

When an aggrieved person or complainant is dissatisfied with the police report filed before the relevant court, he or she may file a protest petition against the unfavourable police report. In simple terms, a protest petition is a submission made by the victim to the court during or after the conclusion of the police investigation.

Related: FIR and Charge Sheet – Section 154 and Section 173 CrPC

Procedure to File Protest Petition

The procedure to file a protest petition is mentioned below:

First, the officer-in-charge must submit a police report to the magistrate so that the magistrate can take care of the case. If the magistrate wishes to reopen the investigation, the magistrate can interrogate the victim or witness under section 200 of CrPC. Here, one gets the opportunity to relate their case.

To achieve the aims of justice, victims might pursue this remedy in cases where prior investigations incorrectly released the offender. Once the magistrate determines that this was not a fraudulent complaint and that the victim is legitimately dissatisfied, he/she can undertake the investigation himself/herself or order an inquiry by an officer-in-charge to whom the complaint is referred.

The main elements of the complaint must, however, be satisfied in the protest petition before the magistrate takes cognizance under section 190 (1)(a) of the Code of Criminal Procedure.

When the police present their final report, and the protest petition is filed, the magistrate has three alternatives:

1. The magistrate may accept or reject the final report and the protest petition.
2. He may accept the final report but consider the protest petition a complaint and proceed in line with sections 200 and 202 of the Criminal Procedure Code, 1973.
3. Under section 190 (1)(b) of the law, he may accept the protest petition, reject the final report, and take cognizance.

The correct legal position is that the magistrate is not required to accept the police authorities’ final report. The magistrate may disagree with that report and take cognizance even if no police files are filed with the police report. As a result, where a protest petition is submitted, the method prescribed for trial of the complaint case must be followed, and the protest petition must be dealt with in accordance with the law. The magistrate may review the protest petition before taking cognizance of the Closure Report.

After receiving a protest petition, the magistrate has the right to direct further investigation under section 156(3) CrPC. Similarly, it is decided that if the magistrate decides to take cognizance of the protest petition, it must satisfy the requirements of a ‘complaint’ under section 2(d) of the CrPC, and the complainant must be examined under oath before summons are issued.

Constitutional Approach in Protest Petition

Article 14 of the Indian Constitution guarantees equality before the law to all citizens. One of the primary principles of the “Rule of Law” is “Equality before the law,” as stated by Professor A.V. Dicey when discussing the rule of law. As a result, the Indian Constitution implicitly invites the rule of law into its constitutional machinery.

The Constitution, in Part III, read along with Part IV, subsequently empowers every citizen to seek remedies for violations of their constitutional rights for the omission of an act that would have led to proving the FIR was justifiable and cognizable but was marked closed for some valid reason at the discretion of the police officer-in-charge. This type of petition against the unfavourable complaint of the police is known as a protest petition.

Opportunities and Obstacles of Protest Petition

The concept of protest petition is helpful for the complainants, but there are certain obstacles to this concept as it is nowhere directly mentioned in Indian law. Thus, it’s important to understand the opportunities and obstacles of the protest petition.

Opportunity

The protest petition is significant for a victim’s rights since it can be delivered directly to the magistrate without police participation. It also widens a victim’s legal remedies and aids in giving justice to the victim. The protest petition can also be a double-edged sword in that it may compromise the accused’s rights.

For example, the magistrate cannot order further inquiry or re-investigation, but he or she can order it based on a protest petition, causing the accused to be held.

Obstacles

Aside from its absence in statutory language, it lacks certainty due to the small number of case laws accessible that separate it from confusion. Allowing magistrates to act as prosecutors, rejecting closure reports, and re-investigating cases might compromise justice.

For example, if the same case is heard by the same magistrate’s court, their prior beliefs may influence the proceedings.

Conclusion

The protest petition is a requirement for judicial innovation. Its presence and development in India during the last century immediately challenged the concept that the victim’s involvement was unnecessary. Its presence has highlighted significant considerations about the distinction between investigation and trial. This primarily regional judicial procedure has gained national recognition in the current circumstances.

The federal legislature should codify the protest petition and include it in the Criminal Procedure Code to overcome the ambiguities that have evolved during this transformative process.

What Is Protest Petition in India Under CrPC?
Anushka Saxena

Hearing of the accused on the question of sentence is discussed in sections 235, 248(2) and 325 of the Criminal Procedure Code. This law note explains it for you.

Section 235 of CrPC Judgment of Acquittal or Conviction

1. Following the presentation of arguments and points of law, if any, the judge will render a judgment in the case.
2. If the accused is found guilty, unless the judge chooses to proceed under the provisions of section 360 of the CrPC, the accused will have an opportunity to be heard on the question of the appropriate sentence. After considering the accused’s input, the judge will pass a sentence per the law.

Scope of Section 235 of CrPC

Now, we will discuss the scope of section 235 CrPC.

Scope of Section 235(1) of CrPC

This provision made it clear that the judge is to try the case from day to day, record the evidence, and, after hearing the argument, deliver the judgment on the evidence he recorded.

It is not contemplated that a judge would deliver the verdict on the evidence recorded wholly or partly by his predecessor. It is based on the principle that the judge who records the evidence and sees the witnesses is better positioned to evaluate their evidence.

The cancellation of the charge on full trial is unknown in law. The accused must either be convicted or acquitted on full trial, and cancellation of alternative charges on convicting the accused on the main charge is illegal. It also does not amount to an acquittal. Appreciation of evidence by the Sessions Judge in a session triable case can only be made to conclude whether the prosecution was able to bring home the charge against the accused or not after the whole evidence is brought on record.

Scope of Section 235(2) of CrPC

The provision in clause (2) was newly added and did not exist in the old Code of 1898. This provision is according to the new trend in penology. It envisages that after a court holds a person guilty, it must consider the question of sentencing in the light of various factors such as the prior criminal record of the offender, his age, employment, educational background, home life, sobriety of social adjustment and emotional and mental condition and the prospects of his returning to the normal path of life in conformity with the law.

Therefore, the accused and the prosecution should be allowed to put forward their viewpoints on the question of sentence. The court must give a hearing to the accused on the question of sentence. It is mandatory. On convicting an accused, the court must unquestionably hear him on the sentence question.

In case the Magistrate, for any reason, fails to pass a sentence upon the accused after finding them guilty, and the accused raises this issue in a higher court, the higher court has the authority to rectify the omission by granting a hearing to the accused on the question of the appropriate sentence. Returning the case to the lower court that recorded the conviction is not always necessary. Remanding the case is an exception and should be avoided whenever possible to ensure a prompt and fair resolution.

The application of section 235(2) comes into play after the conviction has been recorded and the question of the sentence arises. The sentence is a crucial aspect where the interests of the accused and society are at stake. When considering the question of the sentence, the court operates in a different realm, where various facts and factors of a distinct nature come into play compared to those involved in determining the conviction question.

Case Laws for Section 235 CrPC

Now, let us discuss some important cases related to section 235 CrPC.

Muniappan vs State of Tamil Nadu

In Muniappan vs State of Tamil Nadu, AIR 1981 SC 1220, the Supreme Court observed:

The obligation to hear the accused on the question of the sentence, which is imposed by section 235(2) of CrPC, is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The judge must genuinely try to elicit from the accused all information that will eventually bear on the sentence question. Since the provision is intended to allow the accused to place before the court all the relevant material having a bearing on the question of the sentence, there can be no doubt that the provision is beneficial and must be strictly followed. It is mandatory and should not be treated as a mere formality.

Allauddin Mian vs State of Bihar

In Allauddin Mian vs State of Bihar (1989) 3 SCC 5, the court also considered the effect of non-compliance with section 235(2) and held that the provision is mandatory.

The SC observed:

“The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. That is all the more necessary since the courts are generally required to choose from a wide range of discretion in sentencing. The legislature introduced this provision, which satisfies a dual purpose; it satisfies the rule of natural justice by giving the accused an opportunity of being heard on the question of sentence and, at the same time, helps the court choose the sentence to be awarded.”

Malkiat Singh vs State of Punjab

Later, three judges Bench in Malkiat Singh vs State of Punjab, (1991) 4 SCC 341, indicated the necessity of adjourning the case to a future date after convicting the accused and observed:

“On finding that the accused committed the charged offences, Section 235(2) empowers the judge that he shall pass sentence on him according to the law on hearing him. The hearing contemplated is not confined merely to oral hearing but also intended to allow the prosecution as well as the accused to place before the Court facts/material relating to various factors on the question or sentence and, if interested by either side, to have evidence adduced to how mitigating circumstances to impose a lesser sentence or aggravating grounds to impose the death penalty. Therefore, sufficient time must be given to the accused/prosecution on the question of sentence to show grounds on which the prosecution may plead, or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.”

Gurdev Singh vs State of Punjab

In Gurdev Singh vs State of Punjab, (2003) CriLJ 3764 (SC), the accused was convicted of murder and was punished with a death sentence. The order of sentence was pronounced on the same day on which the order of conviction was passed. The same was challenged. It was held that where the court passes the order of conviction and sentence on the same day, it cannot be said to be illegal. It is more so when there is no material on record to show that the accused made any request to the trial court for adjournment of hearing for the hearing case for sentencing after the order of conviction was pronounced.

Ajay Pandit vs State of Maharashtra

Ajay Pandit vs the State of Maharashtra, (2012) 8 SCC 43 case deals with the legal implications of section 235(2). It makes it clear that the court must hear the explicitly accused on the question of sentence after passing the judgment of conviction and before imposing the sentence. The accused had a right to lead evidence to prove why a lesser sentence should be awarded. Even though the accused had his chance to make arguments under section 234 of the CrPC, a subsequent opportunity has been given to make separate submissions as to the nature of the quantum of the sentence with regard to his circumstances, which might not have been brought to the notice of the court so far, e.g., that he is the breadwinner of the family.

Section 248(2) of CrPC – Acquittal or Conviction

In any case, under this chapter, if the Magistrate finds the accused guilty but decides not to proceed under the provisions of section 325 or section 360 of the CrPC, the Magistrate will then proceed to hear the accused on the question of the appropriate sentence. After considering the accused’s arguments for the sentence, the Magistrate will pass a lawful sentence upon the accused.

It was held in the State of Madhya Pradesh vs Saleem, 2005 Cr.L.J. 3435 SC, that the sentence imposed should respond to society’s cry for justice against criminals. Liberal attitude by imposing meagre sentences will be counterproductive.

Section 325 of CrPC

Section 325 of the Criminal Procedure Code outlines the procedure to be followed when a Magistrate, after hearing both the prosecution and the accused, believes that the accused deserves a punishment different from or more severe than what the Magistrate is authorized to impose.

In such cases, the Magistrate records their opinion, submits the case, and forwards the accused to the Chief Judicial Magistrate to whom they are subordinate. When multiple accused individuals are being tried together, and the Magistrate decides to proceed under this section for any of them, all such guilty accused are forwarded to the Chief Judicial Magistrate.

Upon receiving the case, the Chief Judicial Magistrate may choose to examine the parties, recall and re-examine witnesses, gather additional evidence, and then pass a judgment, sentence, or order that they deem appropriate and in accordance with the law.

Conclusion

An opportunity of hearing to the accused on the question of sentence is necessary. No opportunity of hearing to the accused on the question of sentence is essential where the judge proceeds by the provisions of section 360 of the CrPC. Section 360 of the Code empowers the court to pass an order of release on probation of good conduct or after admonition.

Accused Person’s Right to Fair Sentence Hearing Under CrPC
Dinesh Verma

The fundamental principle of the criminal justice system provides that the accused has a right to be prepared for his or her defence. To fulfil the above principle, the essential requirement of a fair trial is to give precise information to the accused regarding the acquisitions against him so that the accused can take the relevant steps for his defence in the court of law. Under the Criminal Procedure Code (CrPC), such precise information is known as charge.

In this law note, we will discuss the concept of “charge” in India as provided under the Code of Criminal Procedure, 1973.

What Is Charge Under CrPC?

Charge refers to the formal accusation made against a person. It is defined under section 2(b) of the CrPC. Charges are framed after the stage of investigation and inquiry and before trial. These are the foundations of the criminal trial or the disclosure of the commission of an offence.

Contents of a Valid Charge

The particulars or the content of a valid charge may be divided into two ways: legal content and factual content. A charge must contain both types of content.

Section 211 of the CrPC provides for the legal content of the charge. It provides that:

1. Every charge must state the offence, which means the offence for which the accused is charged.
2. The name of the offence provided in law or the definition of the offence when no specific name of the offence is provided in the law.
3. The law and the section of the law.
4. The essentials required by the law to constitute the offence.
5. It must be written in the language of the court.
6. If the accused was previously convicted for any offence, the facts and particulars of such previous conviction must also be stated in the charge.

Section 212 of the CrPC provides for the factual content of the charge. It provides that every charge must contain the particular as to the time (when the offence was committed), the place (where the offence was committed), the person (against whom the offence was committed) or the thing (in respect of which the offence was committed).

Further, section 212 also provides that if an offence like criminal breach of trust or dishonest misappropriation of property or other movable property is accused of having been committed, in such a case, approximate sum (money), or time or dates may also be stated.

Is It Necessary to State the Manner of Committing the Offence in Charge?

As a general rule, once the particulars of section 211 and section 212 of the CrPC are stated in the charge, it is not necessary that the manner of committing the offence in the charge must be stated. But section 213 of CrPC provides that if the accused still doesn’t have sufficient notice of the matter with which he is charged, then in such a situation, such particulars of the manner of committing the alleged offence must be stated in the charge. The purpose of section 213 is to give the accused sufficient notice of the matter for which he is charged.

For example: The offence of cheating is done in three manners (deceiving, fraudulently, and dishonestly) as provided in IPC. Thus, in order to let the accused know about his allegations, the manner must be stated in the charge.

Errors in Charge

The charges are framed by the Magistrate of the concerned court. There are chances that such Magistrate may make any error or omit any charge. Section 215 and section 464 of CrPC provide for the effect of errors in the charge.

A charge is said to have a material error only when it misleads the accused and creates a failure of justice.

Alteration or Addition in Charge and Its Effect

Section 216 of the CrPC provides that there are no boundations to alter or add to any charge. The court may alter or add to any charge at any time before pronouncing the judgement. After such alteration or addition, it must be read and explained to the accused.

If the alteration or addition to the charge prejudices the accused or the prosecutor, the court may direct for a new trial to be conducted or adjourn the trial for a future date. On the other hand, if such alteration or addition does not prejudice the accused in his defence or the prosecutor, the court may proceed with the same trial in the same manner as if the altered or added charge were the original charge.

Further, section 217 of the CrPC provides that whenever a charge is altered or added, the court may recall or re-summon the witnesses and may also call any new witness and may examine for securing the interest of justice.

What Is Charge and Its Contents Under CrPC?
Ankita Soni

On Indian Independence Day in 2022, the government of Gujarat passed an order directing the release of 11 convicts in the Bilkis Bano case. Following the remission order, a nationwide discussion erupted over what remission is. And how convicts are released early.

Section 3(5) of the Prison Act of 1894 defines the remission system. Remission is defined as shortening the jail sentence of prisoners. As the name implies, remission of a sentence implies that its duration has been reduced without affecting the nature of the sentence.

As an example, 20 years of rigorous imprisonment can be remitted into any lessening years in jail, but cannot change the nature, i.e., rigorous imprisonment to simple imprisonment.

Provisions of Remission Under Indian Criminal Law

Sections 432 to 435 of the Code of Criminal Procedure, 1973, deal with the provision relating to remission.

Section 433 of CrPC talks about the power of the appropriate government to suspend or remit sentences. An offender convicted of an offence may have the whole or any part of his punishment remitted by an appropriate government at any time after the sentence imposed.

However, section 432(2) of CrPC states that whenever a remission request is made to the appropriate government, the presiding judge of the court that convicted or confirmed the conviction must provide his opinion on whether or not to grant the remission request and his reasons for doing so.

The government is authorised to cancel any remission previously awarded if a convict breaches any condition of remissions. The convict may, however, still be arrested and taken into custody by officers.

According to section 433A of CrPC, a person who is sentenced to life imprisonment or whose death sentence has been commuted to life imprisonment shall serve at least 14 years in prison before being eligible for release.

To further understand sections 433 and 433A of CrPC, let us take an example.

A person was convicted under section 304 (para 1) IPC and sentenced to life imprisonment. If the government wants to release this person early, they can do so without the convict’s consent by ordering his release within 14 years of imprisonment. Para 1 here means the first paragraph, which is punishable with life imprisonment and imprisonment up to 10 years.

A person convicted under section 302 of IPC was sentenced to life imprisonment. If the appropriate government wants to remit this sentence, it cannot order the release of such convicts within 14 years of imprisonment because, under section 302, death was also a punishment prescribed by law.

Related: Is Life Imprisonment for the Rest of the Life or 20 Years or 14 Years?

Case Laws on Remission

In Union of India vs V Sriharan AIR 2015 SC, the Supreme Court was specifically asked to clarify the term appropriate government used in sections 433 and 433A of CrPC.

The issue was dealt with by a constitutional bench of the Supreme Court. The Supreme Court distinguishes two categories and said:

1. If the sentence is imposed under a law over which the Parliament has jurisdiction over it, then remission should be made by the central government.
2. If the sentence is imposed under a law over which the state legislature has jurisdiction, then search specific state is the appropriate government for remission.

In the case of the State of Haryana vs Mahender Singh AIR 2007, the Supreme Court held that there is no right guaranteed in the Constitution, which says that convicts must be released on remission, but a convict must have the right to be considered for release. This will protect the convicts’ constitutional rights guaranteed under Articles 20 and 21 of the Indian Constitution.

In Laxman Naskar vs Union of India AIR 2000 SC, the Supreme Court laid down five questions that should feature in states’ minds before deciding on remission:

1. The government will consider whether the criminal offence is an individual act that may not have a negative effect on society.
2. Whether there is a chance of repeat offending.
3. Whether the convict has lost their potential to commit future crimes.
4. The government will also consider the socio-economic conditions of convicts’ families.
5. The reason for holding the convicts in prison.

In Union of India vs Sriharan, the Supreme Court ruled that the judge’s opinion, stating the nature of the crime and other relevant facts of the case, would shed light on the circumstances of the case. The factors would show if the inmate was a repeat offender, as well as other relevant facts. This would enable a better decision to be made by the government on whether to reduce their sentence.

Conclusion

Granting remission to the convicted is not a matter of privilege but rather a matter of responsibility on the part of the appropriate government.

The fundamental principle of criminal justice says that “Justice must not only be done but must also be seen to be done.”

A balance must be struck between societal interests and the convict’s interests while granting remission because the commission of a crime affects not only victims but also society, which is the state’s prime responsibility to protect.

In this way, the government must make sure that granting remission does not undermine the nature of the crime committed.

Read Next: Simplifying Remission and Commutation Laws in India

What Is Remission Under Criminal Law in India?
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Bail is the temporary release of a defendant in a criminal matter where a trial is ongoing, and the court has not yet made a decision. It is the defendant’s conditional release under the promise to be present in court whenever required. There are four types of bail, i.e. regular, interim, anticipatory, and statutory bail. Learn More: Bail Explained Under CrPC

In this law article, you will read about statutory bail under the Criminal Procedure Code (CrPC) and the conditions to get it in India.

Meaning of Statutory Bail

Statutory bail is a right to bail that arises when the police fail to finish their investigation into a person in judicial custody within a certain time period.

Statutory bail is granted when a police department or other investigating agency fails to submit a report or complaint within the stipulated time period. Days spent in both judicial and police detention are included in a given period. (The given period here means the time period prescribed to investigating agencies for submitting a report or complaint. Days spent (by the person requesting for the statutory bail) in judicial as well as police detention are both included in the prescribed period.)

Statutory bail is also known as default bail and compulsive bail.

Important: Once a charge sheet is filed, statutory bail cannot be claimed.

Essential Conditions for Statutory Bail

Although the accused is eligible to be released on bail as per section 167 of the Criminal Procedure Code, the following two requirements must be followed:

1. Appeal From the Accused

The accused must submit a petition to the court requesting his release on bail in order to receive statutory bail. Without an application from the accused, the court cannot use its authority and issue a statutory bail merely because the time period has elapsed. In other words, the right to statutory bail becomes effective once the 60 or 90-day period, as the case may be, has ended and the charge sheet has not been filed. However, an application must be made before a court to use the right.

2. Pending Investigation

The charge sheet was not filed within the required timeframe. Statutory bail is only awarded while the investigation is ongoing. Therefore, the application for default bail must be submitted before the charge sheet is submitted. And, if the accused fails to do so and meanwhile charge sheet is filed, his right to statutory bail expires.

Further, if the default bail has already been approved, the subsequent filing of the charge sheet will not ipso facto result in the cancellation of the default bail.

Related: When the Investigation Cannot Be Completed in 24 Hours? Section 167 CrPC Explained

Statutory Bail Under the Narcotic Drugs and Psychotropic Substances Act, 1985

The time period specified for the completion of the investigation for offences that come under the purview of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) is provided under section 36A(4) of the NDPS Act.

If the offence involves the recovery of a significant amount of narcotic drugs or psychotropic substances or the offence is such that it is punishable under sections 19, 24, or 27A of the NDPS Act, the investigating agency has 180 days to finish the investigation and submit its report.

Thus, a person accused of offences under the NDPS Act can avail of statutory bail if investigating agencies do not furnish the report within 180 days. However, the court can extend the initial period of 180 days up to 1 year if the public prosecutor presents a report outlining the progress of the investigation and specific justifications for keeping the accused in custody even after that time.

Statutory Bail Under the Unlawful Activities (Prevention) Act, 1967

The time period specified for the completion of investigation for offences that come under the purview of the Unlawful Activities Prevention Act (UAPA) is 90 days. Thus, a person accused of offences under the NDPS Act can avail of statutory bail if investigating agencies do not furnish the report within 90 days.

However, the court can extend the initial period of 90 days to an additional 90 days if the public prosecutor presents a report outlining the progress of the investigation and specific justifications for keeping the accused in custody even after that time.

What Have We Learned?

Statutory bail is also known as default or compulsive bail. It is granted when a police department or other investigating agency fails to submit a report or complaint within the specified time period. But, to avail of the right of statutory bail, an application must be made by the accused before a court. Section 167(2) of the CrPC provides that the accused is eligible for statutory bail if the charge is not filed within 60 or 90 days, as the case may be by the investigating agency.

Further, in case of offences under the NDPS Act, the investigating agency has 180 days to finish the investigation and submit its report. And, in case of offences that come under UAPA, the specified time period to complete the investigation is 90 days.

Read Next: Bail Is a Rule, and Jail Is an Exception – Explained

What Is Statutory Bail in India and the Conditions to Get It?
Subhashini Parihar