161. Examination of witnesses by police.
(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case Put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
1[“Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.”.]
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1. Inserted by Section 15 of ‘The Criminal Law (Amendment) Act, 2013’
162. Statements to police not to be signed: Use of statements in evidence.
(1) No statement made by any person to a police officer in the course of’ an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of’ his statement, if duly proved, may be used by the accused, and with the permission of’ the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of’ such statement is so used, any part thereof’ may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement failling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.
Explanation: An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
163. No inducement to be offered.
(1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1 872).
(2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will:
Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of section 164.
164. Recording of confessions and statements.
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:
Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect-
“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A.B. Magistrate”.
(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
1[“(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:
Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed.
(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.”.]
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
STATE AMENDMENT
Andaman and Nicobar Islands and Lakshadweep:
After sub-section (1) of section 164, the following sub-section shall be inserted, namely.
“(1A) Where, in any island, there is no Judicial Magistrate for the time being, and the State Government is of opinion that it is necessary and expedient so to do that Government after consulting the High Court specially empower any Executive Magistrate (not being a police officer), to exercise the powers conferred by sub-section (1) on a Judicial Magistrate, and thereupon references in section 164 to a Judicial Magistrate shall he construed as references to the Executive Magistrate so empowered.”
[Vide Regulation 1 of’ 1974, sec. 5 (w.e.f. 30-3-1974)].
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1. Inserted by Section 16 of ‘The Criminal Law (Amendment) Act, 2013″
164A . Medical examination of the victim of rape.
1[164 A. Medical examination of the victim of rape. – (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of a such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her and prepare a report of his examination giving the following particulars, namely:-
(I) the name and address of the woman and of the person by whom she was brought;
(II) the age of the woman;
(III) the description of material taken from the person of the woman for DNA profiling;
(IV) marks of injury, if any, on the person of the woman;
(V) general mental condition of the woman; and
(IV) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted in the report.
(6) The registered medical practitioner shall, without delay forward the report to the investigation officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.
(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.
Explanation. – For the purposes of this section, “examination” and “registered medical practitioner” shall have the same meanings as in section 53’]
CrPC (Amendment) Act, 2005 (Notes on Clauses)
Section 164 A has been added to provide for a medical examination of the victim of a rape by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner by any other registered medical practitioner.
1. Ins. by Act 25 of 2005, sec. 17.
165. Search by police officer.
(1) Whenever an officer in charge of police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.
(2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person.
(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place.
(4) The provisions of this Code as to search warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section.
(5) Copies of any record made under sub-section (1) or sub-section (3) shall forth- with be sent to the nearest Magistrate empowered to take cognizance to the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.
166. When officer in charge of police station may require another to issue search warrant.
(1) An officer in charge of a police station or a police officer not being below the rank of sub-inspector making an investigation may require an officer in charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.
(2) Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.
(3) Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to cause a search to be made under sub-section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a police officer making any investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station in accordance with the provisions of section 165, as if such place were within the limits of his own police station.
(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub-sections (1) and (3) of section 165.
(5) The owner or occupier of the place searched shall, on application, be furnished free of cost with a copy of any record sent to the Magistrate under sub-section (4).
166A. Letter of request to competent authority for investigation in a country or place outside India.
1[166A. Letter of request to competent authority for investigation in a country or place outside India.
(1) Notwithstanding anything contained in this Code, if, in the Course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue letter of request to a court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and Circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the court issuing such letter.
(2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf.
(3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter.
1. Ins. by Act 10 of 1990, sec. 2 (w.e.f. 19-2-1990).
166B. Letter of request from a country or place outside India to a court or an authority for investigation in India.
(1) Upon receipt of a letter of request from a court or an authority in a country or place outside India competent to issue such letter in that country or place for the examination of any person or production of any document or thing in relation to an offence under investigation in that country or place, the Central Government may, if it thinks fit-
(i) Forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate or such Metropolitan Magistrate or Judicial Magistrate as he may appoint in this behalf, who shall thereupon summon the person before him and record his statement or cause the document or thing to be produced, or
(ii) Send the letter to any police officer for investigation, who shall thereupon investigate into the offence in the same manner, as if the offence had been committed within India.
(2) All the evidence taken or collected under sub-section (1), or authenticated copies thereof or the thing so collected, shall be forwarded by the Magistrate or police officer, as the case may be, to the Central Government for transmission to the court or the authority issuing the letter of request, in such manner as the Central Government may deem fit.
167. Procedure when investigation cannot be completed in twenty-four hours.
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
1[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) Sixty days, where the investigation relates to any other offence,
And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;
(c) No Magistrate of the second class, not specially empowered in this behalf by the high Court, shall authorize detention in the custody of the police.
2[Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in Custody so long as he does not furnish bail.]
3[Explanation II].If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention.
2[(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.]
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
1. Subs, by Act 45 of 1978, sec. 13, for paragraph (a)(w.e.f. 18-12-1978).
2. Ins. by Act 45 of 1978, sec. 13 (w.e.f. 18-12-1978).
3. Original Explanation numbered as Explanation II by Act 45 of 1978, sec. 13 (w.e.f.18-12-1978).
STATE AMENDMENTS
Andaman and Nicobar Islands and Lakshadweep:
In section 167, –
(i) in sub-section (1) after the words “nearest Judicial Magistrate” the words “or, if there is no Judicial Magistrate in an island, to an Executive Magistrate functioning in that island” shall be inserted;
(ii) after sub-section (1), the following sub-section shall be inserted, namely.
“(1A) where a copy of the entries in diary is transmitted to an Executive Magistrate, reference in section 167 to a Magistrate shall be construed as references to such Executive Magistrate;”
(iii) to sub-section (3), the following proviso shall be added, namely.
“Provided that no Executive Magistrate other than the District Magistrate or Sub-divisional Magistrate, shall unless he is specially empowered in this behalf by the State Government authorize detention in the custody of the police.”
(iv) to sub-section (4), the following proviso shall be added, namely.
“Provided that, where such order is made by an Executive Magistrate, the Magistrate making the order shall forward a copy of the order, with his reasons for making it, to the Executive Magistrate to whom he is immediately subordinate.”
[Vide Regulation 1 of 1974, sec. 5 (w.e.f. 30-3-1974)].
Gujarat:
In the proviso to sub-sec. (2) of section 167, –
(i) For paragraph (a), the following paragraph shall be substituted, namely.
“(a) the Magistrate may authorize detention of the accused person otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this section for a total period exceeding-
(i) one hundred and twenty days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.
(ii) If sixty days, where the investigation relates to any offence:
And on the expiry, of the said period of one hundred and twenty days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this section shall be deemed to be so released under tire provisions of Chapter XXXIII for the purposes at that Chapter;
(ii) in paragraph (b), for the words ” no Magistrate shall” the words “no Magistrate shall, except for reason to be recorded in writing” shall be substituted:
(iii) the Explanation shall be numbered as Explanation II and before Explanation II as so remembered, the following Explanation shall be inserted, namely.
Explanation 1 – For the avoidance of’ doubts, it is hereby, declared that, not withstanding the expiry of’ the period specified in paragraph (a) the accused person shall be detained in custody so long as he does not furnish bail.
Amendment to apply to pending investigation.-The provisions of’ section 167 of the Code of Criminal Procedure, 1973, as amended by this Act, shall apply to every investigation pending immediately, before the commencement of this Act. If the period of’ of detention of’ the accused person, otherwise than in the custody of the police authorised under that section, had not, at such commencement, exceeds sixty days.
[Vide President Act 21 of’ 1976 (w.e.f. 7-5-1976)]. [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 1978 (Central Act 45 of 1978), sec. 13 (w.e.f. 18-12-1978)].
Haryana:
After section 167, insert the following section namely.
“167A.-Procedure on arrest by Magistrate.- For the avoidance of doubt, it is hereby declared that the provisions of’ section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, Magistrate whether executive or Judicial”
[Vide President Act 20 of 1981, sec. 2 (w.e.f.22-12-1981)].
Orissa:
In section 167, in paragraph (a) of the proviso to sub-section (2),-
(i) for the words “under this paragraph” the words ” under this section” shall be substituted; and
(ii) for the words “ninety days” wherever they occur, the words “one hundred and twenty days” shall be substituted.
[Vide Orissa Act, 11 of 1997 sec. 2 9w.e.f. 20-10-1997)].
Punjab:
In section (2) of ‘section 167,, for the words “fifteen days” at both the places where they occur, the words “thirty days” shall be substituted.
[Vide president Act 1 of’ 1984, sec. 2 (w.e.f 23-6-1984)].
Tripura:
In paragraph (a) of the proviso to sub-section (2) of’ section 167, –
(a) For the words “ninety days” wherever they occur, the words under hundred eighty days shall he substituted;
(b) For the words “sixty days” wherever they occur, the words “one hundred twenty days” shall be substituted.
[Vide Tripura Act 6 of’ 1992. sec. 2 (w.e.f 29-7-1992)].
Uttar Pradesh:
After section 167, insert the following section namely:
“167A. Procedure on arrest by Magistrate.-For the avoidance of doubts, it is hereby declared that the provisions of section 167, shall so far as may be, apply in relation to any person arrested by, or under any order or direction of, a Magistrate whether executive or Judicial.
[Vide U.P. Act 18 of 1978].
West Bengal:
In section 167, –
(a) For sub-section (5). The following sub-section shall be submitted.
“(5) If, in respect of –
(i) Any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months, or
(ii) Any case exclusively triable by a Court of Sessions or a case under Chapter XVIII of the Indian Penal Code (45 of 1860), the investigation in not conducted within a period of three years, or
(iii) Any case other than those mentioned in clauses (i) and (ii), the investigation is not conducted within a period of two year, from the date on which the accused was arrested made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period mentioned in this sub-section is necessary”.
(b) In sub-section (6), after the words any order stopping further investigation into an offence has been made “the words “and the accused has been discharged” shall be inserted.
[Vide W.B. Act 24 of 1988 sec. 4].
168. Report of investigation by subordinate police officer.
When any subordinate police officer has made any investigation under this Chapter, he shall report the result of such investigation to the officer in charge of the police station.
169. Release of accused when evidence deficient.
If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient, evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.
170. Cases to be sent to Magistrate when evidence is sufficient.
(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
(3) If the court of the Chief Judicial Magistrate is mentioned in the bond, such court shall be held to include any court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.
(4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.
171. Complainant and witnesses not to be required to accompany police officer and not to be subject to restraint.
No complainant or witness on his way to any court shall be required to accompany a police officer, or shall be subject to unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond:
Provided that, if any complainant or witness refuses to attend or to execute a bond as directed in section 170, the officer in charge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed.
172. Diary of proceeding in investigation.
(1) Every police officer making an investigation under this Chapter shall day by day enter his proceeding in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they, are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.
173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) The names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witness.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the sub-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).
(8) Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of’ sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).
174. Police to inquire and report on suicide, etc.
(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighborhood shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.
(3)1[When
(i) the case involves suicide by a woman within seven years of her marriage: or
(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or
(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf, or
(iv) there is any doubt regarding the cause of death; or
(v) the police officer for any other reason considers it expedient so to do, he shall], subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf’ by the State Government or the District Magistrate.
1. Subs. by Act 46 of 1983, sec. 3., for certain words (w.e.f 25-12-1983).
175. Power to summon persons.
(1) A police officer proceeding under section 174 may, by order in writing, summon two or more persons as aforesaid for the purpose of the said investigation, and any other person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend and to answer truly all questions other than questions the answers to which have a tendency to expose him to a criminal charge or to a forfeiture.
(2) If the facts do not disclose a cognizable offence to which section 170 applies, such persons shall not be required by the police officer to attend a Magistrate’s Court.
176. Inquiry by Magistrate into cause of death.
(1) 1[2[***]When the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of section 174], the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.
3[(1A) Where,-
(I) any person dies or disappears, on
(II) rape is alleged to have been committed on any woman,
while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, under this Code in addition to the enquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.]
(2) The Magistrate holding such inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the causes of his death, the Magistrate may cause the body to be disinterred and examined.
(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry.
3[(5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under sub-section (1A) shall, within twenty-four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.]
Explanation – In this section, the expression “relative” means parents, children, brothers, sisters and spouse.
CrPC (Amendment) Act, 2005 (Notes on Clauses)
Section 176 has been amended to provide that in the case of death or disappearance of a person, or rape or a woman while in the custody of the police, there shall be a mandatory judicial inquiry and in case of death, examination of the dead body shall be considered within twenty-four hours of death.
1. Subs. by Act 46 of 1983, sec. 4 for certain words (w.e.f. 25-12-1983).
2. The words “when any person dies while in the custody of the police or” omitted by Act 25 of 2005, sec. 18.
3. Ins. by Act 25 of 2005, sec. 18
177. Ordinary place of inquiry and trial.
Every offence shall ordinary be inquired into and tried by a court within whose local jurisdiction it was committed.
178. Place of inquiry or trial.
(a) When it is uncertain in which of several local areas an offence was committed, or
(b) Where an offence is committed partly in one local area and party in another, or
(c) Where an offence is a continuing one, and continues to be committed in more local area has one, or
(d) Where it consists of several acts done in different local areas, It may be inquired to or tried by a court having jurisdiction over any of such local areas.
179. Offence triable where act is done or consequence ensues.
When an act is an offence, due to anything, which has been done, and of a consequence, which has ensued, the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.
180. Place of trial where act is an offence by reason of relation to other offence.
When an act is an offence by reason of its relation to any other act which is also all offence or which would be an offence if the doer were capable of committing all offence, the first-mentioned offence may be inquired into or tried by a court within whose local jurisdiction either act was done.
181. Place of trial in case of certain offences.
(1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the accused person is found.
(2) Any offence of kidnapping or abduction of a person may be inquired into or tried by, a court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained.
(3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to believe it to be stolen property.
(4) Any offence of criminal misappropriation or of criminal breach of trust may he inquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.
(5) Any offence which includes the possession of stolen property may be inquired into or tried by, a court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property.
182. Offences committed by letters, etc.
(1) Any offence which includes cheating deception is practice by means of letters or telecommunication message, be inquired into or tried by any court within whose local jurisdiction such letters or message were sent or were received; and any offence of cheating and dishonestly including deliver, of property may be inquired into or tried by a court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.
(2) Any offence punishable under section 495 or section 494 of the Indian Penal Code (45 of 1860) may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage 1[or the wife by first marriage has taken up permanent residence after the commission of offence].
1. Ins. by Act 45 of 1978, sec 15 (w.e.f. 18-12-1978).
183. Offence committed on journey or voyage.
When an offence is committed, whilst the person by or against whom, or the thing in respect of which, the offence is committed is in the course of performing a journey or voyage, the offence may be inquired into or tried by a court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage.
184. Place of trial for offences triable together.
Where-
(a) The offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of section 219, section 220 or section 221, or
(b) The offence or offences committed by several persons are such that they may be charged with, and tried together by virtue of the provisions of section 223,
The offences may be inquired into or tried by any court competent to inquire into or try any of the offences.
185. Power to order cases to be tried in different sessions divisions.
Notwithstanding anything contained in the preceding provisions of this Chapter, the State Government may direct that any cases or class of cases committed for trial in any district may be tried in any session’s division:
Provided that such direction is not repugnant to any direction previously issued by the High Court or the Supreme Court under the Constitution, or under this Code or any other law for the time being in force.
186. High Court to decide, in case of doubt, district where inquiry or trial shall take place.
Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided-
(a) If the courts are subordinate to the same High Court, by that High Court;
(b) If the courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced,
and thereupon all other proceedings in respect of that offence shall be discontinued.
187. Power to issue summons or warrant for offence committed beyond local jurisdiction.
(1) When a Magistrate of the first class sees reason to believe that any person within his local jurisdiction has committed outside such jurisdiction (whether within or outside India) an offence which cannot, under the provisions of sections 177 to 185 (both inclusive), or any other law for the time being in force, be inquired into or tried within such jurisdiction but is under some law for the time being in force triable in India, such Magistrate may inquire into the offence as if it had been committed within such local jurisdiction and compel such person in the manner hereinbefore provided to appear before him, and send such pe` rson to the Magistrate having jurisdiction to inquire into or try such offence, or, if such offence is not punishable with death or imprisonment for life and such person is ready and willing to give bail to the satisfaction of the Magistrate acting under this section, take a bond with or without sureties for his appearance before the Magistrate having such jurisdiction.
(2) When there are more Magistrates than one having such jurisdiction and the Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case shall be reported for the orders of the High Court.
188. Offence committed outside India.
When an offence is committed outside India-
(a) By a citizen of India, whether on the high seas or elsewhere; or
(b) By a person, not being such citizen, on any ship or aircraft registered in India.
He may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
189. Receipt of evidence relating to offences committed outside India.
When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of section 188, the Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the court holding such inquiry or trial in any case in which such court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate.
190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) Upon receiving a complaint of facts which constitute such offence;
(b) Upon it police report of such facts;
(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
STATE AMENDMENT
Punjab and Union Territory of Chandigarh:
After section 190 insert the following section, namely.
“190A. Cognizance of offences by Executive Magistrate.-Subject to the provisions of this chapter any Executive Magistrate may take Cognizance of any special offence-
(a) Upon receiving a complaint of facts which constitute such offence;
(b) Upon a police report of such facts;
(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.”
[Vide Punjab Act 22 of 1983 (w.e.f 27-6-1983)].
191. Transfer on application of the accused.
When a Magistrate takes cognizance of an offence under clause (c) of sub-section (I) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall ba transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.
STATE AMENDMENTS
Punjab Union Territory of Chandigarh.
In section 191, for the words “clause (c) of Sub-section (1) of section 190” substitute the words “section 190A” and for the words “Magistrate” and “Chief Judicial Magistrate” substitute the words “Executive Magistrate” and “District Magistrate” wherever occurring.
[Vide Punjab Act 22 of 1983 (w.e.f 27-6-1983)].
192. Making over of cases to Magistrates.
(1) Any Chief Judicial Magistrate after taking Cognizance of all offence, make over the case for inquiry or trial to and competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.
STATE AMENDMENTS
Punjab Union Territory of Chandigarh.
In section 192, for the words, “Chief Judicial Magistrate” and the words “District Magistrate of the First class” or Magistrate” wherever they occur, substitute the words “District Magistrate” and “Executive Magistrate” respectively.
[Vide Punjab Act 22 of 1983 (w.e.f 27-6-1983)].
193. Cognizance of offences by Courts of Session.
Except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this code.
194. Additional and Assistant Sessions Judges to try cases made over to them.
An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try.
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No court shall take cognizance-
(a)
(i) If any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) Of any abetment of, attempt to commit, such offence, or
(iii) Of any criminal conspiracy to commit, such offence,
Except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b)
(i) Of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, or
(ii) Of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or
(iii) Of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate.
1[except on the complaint in writing of that Court by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate].
(2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the court; and upon its receipt by the court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term “court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from appeal able decrees or sentences of such former court, or in the case of a civil court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situate:
Provided that-
(a) Where appeals lie to more than one court, the Appellate Court of inferior jurisdiction shall be the court to which such court shall be deemed subordinate;
(b) Where appeals lie to a Civil and to Revenue Court, such court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
1. Subs. by act 2 of 2006, sec.3, for “except on the complaint in writing of that Court , or of some other Court to which is subordinate” (w.e.f. 16-4-2006).
196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.
(1) No court shall take cognizance of-
(a) Any offence punishable under Chapter VI or under section 153A, 1[section 295A or sub-section (1) of section 505] of the Indian Penal Code (45 of 1860), or
(b) A criminal conspiracy to commit such offence, or
(c) Any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860), except with the previous sanction of the central Government or of the State Government.
2[(1A) No court shall take cognizance of –
(a) Any offence punishable under section 153B or sub-section (2) or sub-section (2) or sub-section (3) of section 505 of the Indian Panel Code (45 of 1860), or
(b) A criminal conspiracy to commit such offence,
Except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.]
(2) No court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit 3[an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceeding:
Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.
(3) The Central Government or the State Government may, before according sanction 4[under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under sub-section (1A)] and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of section 155.
1. Subs. by Act 63 of 1980, sec. 3, for “section 153B, section 295A or section 505” (w.e.f. 23-9-1980).
2. Ins. by Act 63 of 1980, sec. 3 (w.e.f. 23-9-1980).
3. Subs. by Act 45 of 1979, sec. 16, for “a cognizable offence” (w.e.f. 18-12-1978).
4. Subs. by Act 63 of 1980, sec. 3, for “under sub-section (1)” (w.e.f. 23-9-1980).
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no court shall take cognizance of such offence except with the previous sanction-
3[“Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code.”.]
(a) In the case of it person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
1[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of subsection (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, whenever they may be serving, and thereupon the provisions of that sub-section will apply as if lot the expression “Central Government” occurring therein, the expression “State Government were substituted.
2[(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued trader clause (I) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is here by declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the court before which the trial is to be held.
1. Added by Act 43 of 1991, sec. 2 (w.e.f. 2-5-1991)
2. Ins. by Act 43 of 1991, sec. 2 (w.e.f. 2-5-1991)
3. Inserted by Section 18 of “The Criminal Law (Amendment) Act, 2013”
STATE AMENDMENTS
Assam:
For sub-section (3) of section 197, the following subsection shall be submitted, namely.
“(3) The State Government may, by notification, direct that the provisions of’ subsection (2) shall apply.
(a) To such class or category of the members of’ the Forces charged with the maintenance of’ public order, or
(b) To such class or category of other public servants [not being persons to whom the provisions of sub-section (1) or subsection (2) apply] charged with the maintenance of public order.
As may be specified in the notification wherever they may be serving, and thereupon the provisions of sub-section (2) shall apply as if’ for the expression Central Government occurring therein, the expression State Government were substituted.”
[Vide President’s Act 3 of 1980. (w.e.f. 5-6-1980)].
Maharashtra:
After section 197, the following section shall be inserted namely.
“197A. Prosecution of commissioner of Receiver appointed by civil court.- When any person who is a Commissioner or Receiver appointed by a court under the provisions of the Code of Civil Procedure, 1908, is accused of any offence alleged to have committed by him while acting or purporting to act in the discharge of his functions as Commissioner or Receiver, no court shall take cognizance of such offence except with the previous sanction of the court, which appointed such person as Commissioner or Receiver, as the case may, be.”
[Vide Maharashtra act 60 of 1981, sec. 2 (w.e.f 5-10-1981)]
198. Prosecution for offences against marriage.
(1) No court shall take cognizance of all offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that-
(a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf,
(b) Where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf,
(c) Where the person aggrieved by an offence punishable under 1[section 494 or section 495 ] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s, brother or sister 2[, or, with the leave of the court, by any other person related to her by blood, marriage or adoption].
(2) For the purpose of sub-section (1), no person other than the husband of the woman, shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf
(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the court is satisfied that there is a guardian so appointed or declared, the court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorization referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(5) Any document purporting to be such an authorization and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) No court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.
(7) The provisions of this section apply to the abetment of, or attempt to commit an offence as they apply to the offence.
1. Subs. by Act 45 of 1978, sec. 17, for “section 494” (w.e.f. 18-12-1978).
2. Ins. by Act 45 of 1978, sec. 17 (w.e.f. 18-12-1978).
198A. Prosecution of offences under section 498A of the Indian Penal Code.
1[198A. Prosecution of offences under section 498A of the Indian Penal Code.
No court shall take cognizance of an offence punishable under section 498A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or, with the leave of the court, by any other person related to her by blood, marriage or adoption.]
2[“198B. No Court shall take cognizance of an offence punishable under section 376B of the Indian Penal Code where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.”.]
1. Ins. by Act 46 of 1983, sec. 5 (w.e.f. 25-12-1983).
2. Inserted by Section 19 of “The Criminal Law (Amendment) Act, 2013”
199. Prosecution for defamation.
(1) No court shall take cognizance of all offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by, the offence:
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf.
(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Government of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.
(3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.
(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction.
(a) Of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;
(b) Of the State Government, in the case of any other public servant employed in connection with the affairs of the State;
(c) Of the Central Government, in any other case.
(5) No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint.
200. Examination of complainant.
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
201. Procedure by Magistrate not competent to take cognizance of the case.
If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall, –
(a) If the complaint is in writing, return it for presentation to the proper court with to that effect;
(b) If the complaint is not in writing, direct the complainant to the proper court.
202. Postponement of issue of process.
(1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, 1[and shall, in a case where the accused os is residing at a place beyond the area in which he excercise his jurisdiction]. postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, –
(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or
(b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an offer in charge of a police station except the power to arrest without warrant.
1. Ins. by Act 25 of 2005, sec.19.
203. Dismissal of complaint.
If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
204. Issue of processed.
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) A summons-case, he shall issue his summons for the attendance of the accused, or
(b) A warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
205. Magistrate may dispense with personal attendance of accused.
(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of’ the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of’ the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.
206. Special summons in cases of petty offence.
(1) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under section 260 3[or section 261], the Magistrate shall, except where he is, for reasons to be recorded in writing of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorize, in writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader:
Provided that the amount of the fine specified in such summons shall not exceed 4[one thousand rupees].
(2) For the purposes of this section, “petty offence” means any offence punishable only with fine not exceeding one thousand rupees, but does not include any offence so punishable under the Motor Vehicles Act, 19391, or under any other law which provides for convicting the accused person in his absence on a plea of guilty.
2[(3) The State Government may, by notification, specially empower any Magistrate to exercise the powers conferred by sub-section (1) in relation to any offence which is compoundable under section 320 or any offence punishable with imprisonment for a term not exceeding three months, or with fine or with both where the Magistrate is of opinion that, having regard to the facts and circumstances of the case, the imposition of fine only would meet the ends of justice.]
1. Now the Motor Vehicles Act, 1988 (59 of 1988).
2. Ins. by Act 45 of 1978, sec. 18 (w.e.f. 18-12-1978).
3. Ins. by Act 25 of 2005, sec. 20.
4. Subs. by Act 25 of 2005, sec. 20, for “one hundred rupes”.
207. Supply to the accused of copy of police report and other documents.
In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.
(i) The police report;
(ii) The first information report recorded under section 154
(iii) The statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173.
(iv) The confessions and statements, if any, recorded under section 164;
(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173.
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is Voluminous, he shall, instead of furnishing the accused with a copy thereof’, direct that he will only be allowed to inspect it either personally or through pleader in court.
208. Supply of copies of statements and documents to accused in other cases triable by court of Session.
Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.
(i) The statements recorded under section 200 or section 202, or all persons examined by the Magistrate;
(ii) The statements and confessions, if any, recorded under section 161 or section 164;
(iii) Any documents produced before the Magistrate on which the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in court.
209. Commitment of case to Court of Session when offence is triable exclusively by it.
When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
1[(a) Commit, after Complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this code relating to bail, remand the accused the custody until Such commitment has been made;]
(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.
1. Subs. by Act 45 of 1978. sec. 19, for clause (a) (18-12-1978).
STATE AMENDMENTS
GUJARAT:
In section 209 for clause (a), the following clause shall he substituted. Namely.
“(a) Commit the case, after complying with the provisions of’ section 207 or section 208, as the case may be, to the Court of Session and, subject to the, provisions of this code relating to bail, remand the accused to custody until such commitment has been made.”
[Vide president’s Act 30 of 1976, sec. 2 (w.e.f. 7-7-1976)].
UTTAR PRADESH:
In section 209 for clauses (a) and (b), the following clauses shall be substituted be deemed always to have been substituted, namely.
“(a) As soon as may be after complying with the provisions of section 207, commit the case to Court of Session;
(b) Subject to the provisions of the Code relating to bail, remand the accused to the custody until commitment of the case under clause (a) and thereafter during and until the conclusion of the trial.”
[Vide U.P Act 16 of 1976. sec. 6.]
210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such export cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.
211. Contents of charge.
(1) Every charge under this Code shall state the offence with which the accused is charged.
(2) If the law that creates the offence gives it any specific name, the offence may be described in the charge by that name only.
(3) If the law that creates the offence does not give it any specific name so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the court.
(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the court may think fit to award for the subsequent offence, the fact date and place of the previous, conviction shall be stated in the charge; and if such statement has been omitted, the court may add it at any time before sentence is passed.
Illustrations.
(a) A is charged with the murder of B. This is equivalent to a statement that A’s act fell within the definition of murder given in sections 299 and 300 of the Indian Penal Code (45 of 1860); that it did not fall within any of the general exceptions of the said Code; and that it did not fall within any of the five exceptions to section 300, or that, if it did fall within Exception 1, one or other of the three provisos to that exception applied to it.
(b) A is charged under section 326 of the Indian Penal Code (45 of 1860) with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the said Code, and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property-mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property-mark, without reference to the definition, of those crimes contained in the Indian Penal Code; but the sections under which the offence is punishable must, in each instance, be referred to in the charge.
(d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.
212. Particulars as to time, place and person.
(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of ‘money or other moveable property, it shall be sufficient to specify the gross sum or, as the case may be, described the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219:
Provided that the time included between the first and last of such dates shall not exceed one year.
213. When manner of committing offence must be stated.
When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner is which the alleged offence was committed as will be sufficient for that Purpose.
Illustrations
(a) A is accused of the theft of a certain article at a certain time and place the charge need not set out the manner in which the theft was effected
(b) A is accused of cheating B at a given time and place. The charge must be set out the manner in which A cheated B.
(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the discharge or his public functions at a given time and place. The charge must set out the manner obstructed B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B.
(f) A is accused of disobeying a direction of the law with intent to save punishment. The charge must set out the disobedience charge and the law infringed.
214. Words in charge taken in sense of law under which offence is punishable.
In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.
215. Effect of errors.
No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure.
ILLUSTRATIONS
(a) A is charged under section 242 of the Indian Penal Code (45 of 1860), with “having, been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit,” the word “fraudulently” being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The court may infer from this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no d court may infer from such facts that the omission to set out the manner oft was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the murdered person’s name was Haidar Baksh, and the date of the murder was the 20th January. 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The court may infer from this that A was misled, and that the error was material.
216. Court may alter charge.
(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court to prejudice the accused in his defence or the prosecutor in the conduct of the case the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) lf the offence stated in the altered or added charge is one for the prosecution of which previous section is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
217. Recall of witnesses when charge altered.
Whenever a charge is altered or added to by the court after the commencement of the trial, the prosecutor and the accused shall be allowed-
(a) To recall or re-summon, and examine with reference to such alteration or additiona, any witness who may have been examined, uniess the court, for reasons to be recorded in writing, considers thal the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends ofjustice;
(b) Also to call any further witness whom the court may think to be material.
218. Separate charges for distinct offences.
(1) For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be trie separately:
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person.
(2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220, 221 and 223
Illustration
A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt.
219. Three offences of same kind within year may be charged together.
(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local laws:
Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1 860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.
220. Trial for more than one offence.
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section 212 or in sub-section (I) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence failing within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(4) Several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860).
Illustration sub-section (1)
(a) A rescues B a person in lawful custody, and in so doing causes grievous hurt to C, a constable, in whose custody B was, A may be charged with, and convicted of, offences under sections 225 and 333 of the Indian Penal Code (45 of 1860).
(b) A commits house-breaking by day with intent to commit adultery, and commits in the house so entered, adultery with B’s wife. A may be separately charged with, and convicted of, offences under sections 454 and 497 of the Indian Penal Code (45 of 1860).
(c) A entices B, the wife of C, away form C, with intent to commit adultery with B, and then commits adultery with her. A may be separately charged with, and convicted of, offences under sections 498 and 497of the Indian Penal Code(45 of 1860).
(d) A has in his possession several seals, knowing them to be counterfeit and intending to use them for the purpose of committing several forgeries punishable under section 466 of the Indian Penal Code(45 of 1860). A may be separately charged with, and convicted of, the possession of each seal under section 473 of the Indian Penal Code (45 of 1 860).
(e) With intent to cause injury to B, A institutes a criminal proceeding against him, knowing that there is no just or lawful ground for such proceeding, and also falsely accuses B of having committed an offence, knowing that there is no just or lawful ground for such charge. A may be separately charged with, and convicted of, two offences under section 211 of the Indian Penal Code (45 of 1860).
(f) A with intent to cause injury to B, falsely accuses him of having committed an offence, knowing that there is no just or lawful ground for such charge. On the trial, A gives false evidence against B, intending thereby to cause B to be convicted of a capital offence. A may be separately charged with and convicted of, offences under section 211 and 194 of the Indian Penal Code (45 of 1860).
(g) A with six others, commits the offences, of rioting, grievous hurt and assaulting a public servant endeavouring in the discharge of his duty as such to suppress the riot. A may be separately charged with, and convicted of, offences under sections 147, 325 and 152 of Indian Panel Code (45 of 1860).
(h) A threatens B, C and D at the same time with injury to their persons with intent to cause alarm to them. A may be separately charged with, and convicted of, each of the three offences under section 506 of the Indian Penal Code (45 of 1860).
The separate charges referred to in illustration (a) to (h) respectively, may be tried at the same time.
Illustrations to sub-section (3)
(i) A wrongfully strikes B with a cane. A may be separately charged with and convicted of, offences under sections 352 and 323 of the Indian Penal Code (45 of 1860).
(j) Several stolen sacks of corn are made over to A and B, who knew they are stolen property, for the purpose of concealing them. A and B thereupon voluntarily assist each other to conceal the sacks at the bottom of a grain-pit. A and B may be separately charged with and convicted of, offences under sections 411 and 414 of the Indian Penal Code, (45 of 1860).
(k) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure. A may be separately charged with and convicted of, offences under sections 3 17 and 304 of the Indian Penal Code (45 of 1860).
(l) A dishonestly uses a forged document as genuine evidence, in order to convict B, a public servant of an offence under section 167 of the Indian Penal Code. A may be separately charged with and convicted of, offences under sections 471 (read with section 466) and 196 of that Code (45 of 1860).
Illustration to sub-section (4)
(m) A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged, with and convicted of offences under sections 323, 392 and 394 of the Indian Penal Code (45 of 1860).
221. Where it is doubtful what offence has been committed.
(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once: or he may be charged in the alternative with having committed some one of the said offences.
(2) It in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
Illustrations
(a) A is accused of an, Act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property or criminal breach of trust or cheating.
(b) In the case mentioned, A is only charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust of receiving stolen goods (as the case may be) though he was not charged with such offence.
(c) A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot to be proved which of these contradictory statements was false.
222. When offence proved included in offence charged.
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, thought he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
Illustrations
(a) A is charged under section 407 of the Indian Penal Code (45 of 1860) with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said section 406.
(b) A is charged under section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code.
223. What persons may be charged jointly.
The following persons may be charged and tried together, namely.
(a) Persons accused of the same offence committed in the course of the same transaction;
(b) Persons accused of an offence and persons accused of abetment of, or abetment to commit, such offence;
(c) Persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;
(d) Persons accused of different offences committed in the course of the same transaction;
(e) Persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;
(f) Persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
(g) Persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:
Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the 1[Magistrate of Court of Session] may, if such persons by an application in writing, so desire, and, 2[if he is satisfied] that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.
1. Subs. by Act 25 of 2005, sec. 21, for “Magistrate”.
2. Subs. by Act 25 of 2005, sec. 21, for “if he is satisfied”.
224. Withdrawal of remaining charges on conviction on one of several charges.
When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent, of the court, withdraw the remaining charge or charges, or the court of its own accord may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said court (subject to the order of the court setting aside the conviction) may proceed with the inquiry into, or trial of, the charge or charges so withdrawn.
225. Trial to be conducted by Public Prosecutor.
In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.
226. Opening case for prosecution.
When the accused appears or is brought before the court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.
227. Discharge.
If, upon consideration of the record of the case and the documents submitted herewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. Framing of charge.
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1[ or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
STATE AMENDMENTS
KARNATAKA:
In clause (a), of sub-section (1), for the words “to the Chief Judicial Magistrate and hereupon the “Chief Judicial Magistrate” the words ” to the Chief Judicial Magistrate or to any Judicial Magistrate competent to try the case and thereulpon the Chief Judicial Magistrate or such other Judicial Magistrate to whom the case may have been transferred” shall be substituted.
[Vide Karnatka Act 22 of 1994, sec. 2 (w.e.f. 18-5-1994)].
WEST BENGAL:
In Clause (a) of sub-seclion (1) of section 228, for the words “to the Chief Judicial Magistrate” and thereupon the Chief Judicial Magistrate” the words “to the Chief Judicial Magistrate or to any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or such other Judicial Magistrate to whom the case may have been transferred” shall be substituted.
[Vide W.B. Act 63 of 1978 (w.e.f. 1-6-1979)].
1. Subs. by Act 25 of 2005, sec. 22, for “and thereupon the Chief Judicial Magistrate”.
229. Conviction on plea of guilty.
If the accused pleads guilty; the Judge shall record the plea and may, in his discretion, convict him thereon.
230. Date for prosecution evidence.
If the accused refuses to plead, or does not plead, or ciaims to be tried or is not convicted under section 229, the Judge shall fíx a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.
231. Evidence for prosecution.
(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in this discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.
232. Acquittal.
If after taking the evidence for the prosecution, examining the aceused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal.
233. Entering upon defence.
(1) Where the accused is not acquitted under section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thercof.
(2) lf the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
234. Arguments.
When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply:
Provided that where any point of law is raised by the accused or his pleader, the prosecution may, with the permission of the Judge, make his submissions with regard to such point of law.
235. Judgment of acquittal or conviction.
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360 hear the accused on the question of sentence, and then pass sentence on him according to law.
236. Previous conviction.
In a case where a previous conviction is charged under the provisions of sub-section (7) of section 211, and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted said accused under section 229 or section 235, take evidence in respect of. The alleged previous conviction, and shall record a finding thereon:
Provided that no such charge shall be read out by the Judge nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under section 229 or section 235.
237. Procedure in cases instituted under section 199 (2).
(1) A Court of Session taking cognizance of an offence under sub-section (2) of section 199 shall try the case in accordance with the procedure for the trial of warrant cases instituted otherwise than on a police report before a Court of Magistrate:
Provided that the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution.
(2) Every trial under this section shall be held in camera if either party thereto so desires or if the court thinks fit so to do.
(3) If, in any such case, the court discharges or acquits all or any of the accused and is of opinion that there was no reasonable cause for making the accusation against them or any of them, it may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed (other than the President, Vice-President or the Governor of a State or the Administrator of a Union Territory) to show cause why he should not pay compensation to such accused or to each or any of such accused, when there are more than one.
(4) The court shall record and consider any cause which may be shown by the person so directed, and if it is satisfied that there was no reasonable cause for making the accusation, it may, for reasons to be recorded, make an order that compensation to such amount not exceeding one thousand rupees, as it may determine, be paid by such person to the accused or to each or any of them.
(5) Compensation awarded under sub-section (4) shall be recovered as if it were a fine imposed by a Magistrate.
(6) No person who has been directed to pay compensation under sub-section (4) shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made under this section:
Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.
(7) The person who has been ordered under sub-section (4) to pay compensation may appeal from the order, in so far as it relates to the payment of compensation, to the High Court.
(8) When an order for payment of compensation to an accused person is made, the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed or, if an appeal is presented, before the appeal has been decided.
238. Compliance with section 207.
When in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial; the Magistrate shall satisfy himself that he has complied with the provisions of section 207.
239. When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
240. Framing of charge.
(1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.
241. Conviction on plea of guilty.
If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.
242. Evidence for prosecution.
(1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under section 241 Magistrate shall fix a date for the examination of witnesses.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:
Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.
243. Evidence for defence.
(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
(2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:
Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in court.
244. Evidence for prosecution.
(1) When, in any warrant-case instituted other wise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summon to any of its witnesses directing him to attend or to produce any document or other thing.
245. When accused shall be discharged.
(1) If, upon taking all evidence referred to in section 244 the Magistrate considers, for reasons to be recorded that the case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing, in this section shall be deemed to prevent a Magistrate from discharging he accused at any previous stage of the case if, for reasons to be recorded Magistrate, he considers the charge to be groundless.
STATE AMENDMENT
WEST BENGAL:
In section 245, after sub-section (2), the following sub-section shall be inserted, namely:-
“(3) lf the eviderice referred to in section 244 are not produced in support of the prosecution within four years from the date of appearance of the aecused, the Magistrate shall discharge the accussed unless the prosecution satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall be in the interest of justice to discharge the aceused.”
[Vide W.B. Act 24 of 1968 sec. 5].
246. Procedure where accused is not discharged
(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground r presuming that the accused has committed an offence triabie under this Chapter,wilich such Magistrate is competent to try and which, in his opinion, could be adeqtiateiv punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guiltty or has any defence to make.
(3) lf the accused guilty, the Magistrate shall record the plea, and may, in his discretion convict him thereon.
(4) lf the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3) he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthnwitth whether he wishes to cross-examine any, and if so. which of the witnesses for the prosecution whose evidence has been taken.
(5) lf he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken and afier cross-examination and re-examinalion (if any), they shall also be discharged.
247. Evidence for defence.
The accused shall then be calied upon to enter upon his defence and produce his evidence and the provisions of section 243 shall apply to the case.
248. Acquittal or conviction.
(1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.
(2) Where, in any case under this Chapter, the Magistrate find the accused guilty, but does not proceed in accordance with the provisions of section 325 or section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.
(3) Where in any case under this Chapter, a previous conviction is charged under the provisions of sub-section (7) of section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, lhe Magistrate may, after he has convicted the said aceused, take evidence in respect of the alleged previous conviction. said shall record a finding thereon:
Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has bee convicted under sub-section (2).
249. Absence of complainant.
When the proceedings have been instituted upon complaint and any day fixed for the hearing of the case, the complainant is absent and the offence lawfullly cmpounded or is not a cognizable offence, the Magistrate may in his discretion, notwithstanding anything herein before contained, at any time before the time has been framed, discharge the accused.
250. Compensation for aceusation without reasonabie cause.
(1) lf in any case instituted upon complaint or upon information given to a police officer or to Magistrite, one or more persons is or are acccused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is beard discharges or acquits all or any of the accused, and is of opinion that there was no reasonabie ground for making the accusation against them or any of them, the Magistrate may, by his orde of discharge or accuital , if the person upon whose complaint or information or the accusation is present, call upon him forth how cause why y be should not pay compensation to such accused or to cach or any of such accused when there are more than one or, if such peson is not present direct the issue of a summons to him to appear and show cause as aforesaid.
(2) The Magistrate shall record and consider any cause which such complainant or informant may show, and if he is satisfied that there was no reasonable ground for making the accusation, may for reasons to be recorded, máke an order that compensatíon to such amount not exceeding the amount of fine he is empowered to impose, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.
(3) The Magistrate may, by the order directing payment of the compensation under sub-section (2) further order that, in default of payment, the person ordered to pay such compensation shall under go simple imprisonment for a period not exceeding thirty days.
(4) When any person is imprisonment under sub-section (3), the provisions of sections 68 and 69 of the lndiail Penal Code (45 of 1860) shall, so far as may be, apply.
(5) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him:
Provided that any amount paid to an accused person under this section shall be taken in to account in awarding compensation to such person in any subsequent civil suit relating to the ssame matter.
(6) A complainant or informant who has been ordered under sub-section (2) by a Magistrate of the second class to pay compensation exceeding one hundred rupees, may appeal from the order as if such complainant or infonnant had been convieted on a trial had by such Magistrate.
(7) When an order for payment of compensation to an accused person is made in a case which is subject to appeal under sub-section (6), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided; and where such order is made in a case which is not so subject to appeal the compensation shall not be paid before the expiration of one month from the date of the order.
(8) The provisions of this section apply to summons-cases as well as to warrant cases.
251. Substance of accusation to be stated.
When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.
252. Conviction on plea of guilty.
If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him thereon.
253. Conviction on plea of guilty in absence of accused in petty cases.
(1) Where a summons has been issued under section 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons.
(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid.
254. Procedure when not convicted.
(1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
(3) A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in court.
255. Acquittal or Conviction.
(1) If the Magistrate, upon taking the evidence referred to in section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilt, he shall record an order of acquittal.
(2) Where the Magistrate does not proceed in accordance with the provisions of section 325 or section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.
(3) A Magistrate may, under section 252 or section 255, convict the accused of any offence triable under this Chapter which form the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons if the Magistrate is satisfied that the accused would not be prejudiced thereby.
256. Non-appearance or death of complainant.
(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
257. Withdrawal of complaint.
If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.
258. Power to stop proceedings in certain cases.
In any, summons that case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release, the accused, and such release shall have the effect of discharge
259. Power of court to convert summons-cases into warrant cases.
When in the course of the trial of summon-case relating to an offence it appears to the magistrate punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of Justice, the offence should be tried in accordance with the procedure for the trial of warrant- cases, such Magistrate may proceed to rehear the case in the manner provided by, this Code for the trial of warrant-cases and may recall any witness who may have been examined.
260. Power to try summarily.
(1) Notwithstanding anything contained in this Code-
(a) Any Chief Judicial Magistrate:
(b) Any Metropolitan Magistrate;
(c) Any, Magistrate of the first class specially empowered in this behalf by the High Court,
may any of he thinks fit, try in a summary way all or any of the following offences.
(i) Offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years;
(ii) Theft, under section 379, section 380 or section 381 of the Indian Penal Code (45 of 1860), where the value of the property stolen does not exceed 1[two thousand rupees];
(iii) Receiving or retaining stolen property, under section 411 of the Indian Penal Code (45 of 1860), where the value of the property does not exceed 1[two thousand rupees];
(iv) Assisting in the concealment or disposal of stolen property, under section 414 of the Indian Penal Code (45 of 1860) where the value of such property does not exceed 1[two thousand rupees];
(v) Offences under sections 454 and 456 of the Indian Penal Code (45 of 1860);
(vi) Insult with intent to provoke a breach of the peace, under section 504 and 2[criminal intimidation punishable with imprisonment for a term which may extend to two years, or with fine, or with both], under section 506 of the Indian Penal Code (45 of 1860).
(vii) Abetment of any, of the foregoing offences;
(viii) An attempt to commit any of the foregoing offences, when such attempt is an offence;
(ix) Any offence constituted by an act in respect of which a complaint may be made under section 20 of the Cattle-Trespass Act, 1871 (1 of 1871).
(2) When, in the Course of a summary trial it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear, the case in the manner provided by this Code.
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1. Subs. by Act 25 of 2005, sec. 23, for “two hundred rupees”.
2. Subs. by Act 25 of 2005, sec. 23, for “criminal intimidation”.
261. Summary trial by Magistrate of the second class.
The High Court may confer on any, Magistrate invested with the powers of a Magistrate of the second class power, to try summarily any offence which is punishable only with fine or with imprisonment for a term not exceeding, six months with or without fine, and any abetment of or attempt to commit any such offence.
262. Procedure for summary trials.
(1) In trial under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned.
(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
263. Record in summary trials.
In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely.
(a) The serial number of the case;
(b) The date of the commission of the offence;
(c) The date of the report of complaint;
(d) The name of the complainant (if any);
(e) The name, parentage and residence of the accused;
(f) The offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed;
(g) The plea of the accused and his examination (if any);
(h) The finding;
(i) The sentence or other final order;
(j) The date on which proceedings terminated.
264. Judgment in cases tried summarily.
In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a Judgment containing a brief statement of the reasons for the finding.
265. Language of record and judgment.
(1) Every such record and judgment shall be written in the language of the court.
(2) The High Court may authorize any Magistrate empowered to try offences summarily to prepare the aforesaid record or judgment or both by means of an officer appointed in this behalf by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by such Magistrate.
1[CHAPTER XXI A
PLEA BARGAINING
265 A. Application of the Chapter.
(1) This Chapter shall apply in respect of an accused against whom-
(a) the report has been forwarded by the officer in charge of the police station under section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or
(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under section 200, issued the process under section 204,
but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.
(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
PLEA BARGAINING
265 B. Application for plea bargaining.
(1) A person accused of an offence may file application for plea bargaining in the Court in which such offence is pending for trial.
(2) The application under sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.
(3) After receiving the application under sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.
(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under sub-section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where-
(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;
(b) the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under sub-section (1).
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
PLEA BARGAINING
265 C. Guidelines for mutually satisfactory disposition.
In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 265B, the Court shall follow the following procedure, namely:-
(a) in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:
Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:
Provided further that the accused, if he so desires, may participate in such meeting with his pleader, if any, engaged in the case.
(b) in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:
Provided that it shall be the duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:
Provided further that if the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his pleader engage in the case.
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
PLEA BARGAINING
265 D. Report of the mutually satisfactory disposition to be submitted before the Court.
Where in a meeting under section 265C, a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other persons who participated in the meeting and if no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265B has been filed in such case.
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
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265 E. Disposal of the case.
Where a satisfactory disposition of the case has been worked out under section 265D, the Court shall dispose of the case in the following manner, namely:-
(a) the Court shall award the compensation to the victim in accordance with the disposition under section 265D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused;
(b) after hearing the parties under clause (a), if the Court is of the view that section 360 or the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be;
(c) after hearing the parties under clause (b), if the Court finds that the offence committed by the accused is not covered under clause (b) or clause (c), then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence.
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
PLEA BARGAINING
265 F. Judgment of the Court.
The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court.
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
PLEA BARGAINING
265 G. Finality of the judgment.
The judgment delivered by the Court under section 265G shall be final and no appeal (except the special leave petition under Article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment.
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
PLEA BARGAINING
265 H. Power of the Court in plea bargaining.
A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in such Court under this Code.
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
PLEA BARGAINING
265 I. Period of detention undergone by the accused to be set off against the sentence of imprisonment.
The provisions of section 428 shall apply, for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Code.
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
PLEA BARGAINING
265 J. Savings.
The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code and nothing in such other provisions shall be constructed to constrain the meaning of any provision of this Chapter.
Explanation. – For the purposes of this Chapter, the expression “Public Prosecutor” has the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public Prosecutor appointed under section 25.
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
PLEA BARGAINING
265 K. Statements of accused not to be used.
Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining file under section 265B shall not be used for any other purpose except for the purpose of this Chapter.
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
1[CHAPTER XXI A
PLEA BARGAINING
265 L. Non-application of the Chapter.
Nothing in this Chapter shall apply to any Juvenile or Child as defined in sub-clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).]
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1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.
266. Definitions.
In this Chapter, –
(a) “Detained” includes detained under any law providing for preventive detention;
(b) “Person” includes, –
(i) Any place, which has been declared by the State Government, by general or special order, to be a subsidiary jail;
(ii) Any reformatory, Borstal institution or other institution of a like nature.
267. Power to require attendance of prisoners.
(1) Wherever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court.
(a) That a person confined or detained in a prison should be brought before the court for answering to a charge of an offence, or for the purpose of any proceedings against him, or
(b) That it is necessary for the ends of justice to examine such person as a witness,
the court may make an order requiring the officer in charge of the prison to produce such person before the court for answering to the charge or for the purpose of such proceeding or as the case may be, for giving evidence.
(2) Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate.
(3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order.
268. Power of State Government to exclude certain persons from operation of section 267.
(1) The State Government may, at any time having regard to the matters specified in sub-section (2), by general of special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained and thereupon, so long as the order remains to force, no order made under section 267, whether before or after the order of the State Government, shall have effect in respect of such person or class of persons.
(2) Before making an order under sub-section (1), the State Government shall have regard to the following matters, namely:
(a) The nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison;
(b) The likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison;
(c) The public interest, generally.
269. Officer in charge of prison to abstain from carrying out order in certain contingencies.
Where the person in respect of whom an order is made under section 267, –
(a) Is by reason of sickness or infirmity unfit to be removed from the prison or
(b) Is under committal for trial or under remand pending trial or pending a preliminary investigation; or
(c) Is in custody for a period which would expire before the expiration of the time required or complying with the order and for taking him back to the prison in which he is confined or detained or
(d) Is a person to whom an order made by the State Government under section 268 applies,
the officer in charge of the prison shall abstain from carrying out the court’s order and shall send to the court a statement of reasons for so abstaining:
Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometers distance from the prison, the officer in charge of’ the prison shall not so abstain for the reason mentioned in clause (b).
270. Prisoner to he brought to court in custody.
Subject to the provisions of section 269, the officer incharge of the prison shall, upon delivery of an order made under Sub-section (1) of’ section 267 and duly Countersigned, where necessary, under subsection (2) thereof, cause the person named in the order to be taken to the court in which his attendance is required, so as to be present there at the time mentioned in the order and shall cause him to be kept in custody in or near the court until he has been examine or until the court authorizes him to be taken back to the prison in which he was confined or detained.
271. Power to issue commission for examination of witness in prison.
The provisions of’ this chapter shall be without prejudice to the power of the court to issue, under section 284, a commission for the examination as a witness of any confined or detained in a prison and the provisions of part B of Chapter XXIII shall apply in relation to the examination on commission of any such person in the prison as they apply in relation to the examination on commission of any other person.
272. Language of Courts.
The state Government may determine what shall be for purposes of this code the language of each court within the State other than the High Court
273. Evidence to be taken in presence of accused.
Except as otherwise expressly provided all evidence taken in the course of the other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader.
1[“Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.”.
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1. Inserted by Section 20 of “The Criminal Law (Amendment) Act, 2013”
274. Record in summons cases and inquiries.
(1) In all summon cases tried before a magistrate in all inquiries under sections 145 to 148 (both inclusive), and in all proceedings under section 446 otherwise than in the Course of a trial, the Magistrate shall as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the court:
Provided that if the Magistrate is unable to make such memorandum himself, he shall the after recording the reason of his inability cause such member to be made in writing or from his dictation in open court.
(2) Such memorandum shall be signed by the Magistrate and shall form part of the record.
275. Record in warrant cases.
(1) In all warrant-cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by his dictation in open court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the court appointed by him in this behalf.
(2) Where the Magistrate causes the evidence to be taken down, he shall record a certificate that the evidence could not be taken down by himself for the reasons referred to in sub-section (1).
(3) Such evidence shall ordinarily be taken down in the form of a narrative, by the Magistrate may, in his discretion take down, or cause to be taken down, any part of’ such evidence in the form of question and answer.
(4) The evidence so taken down shall be signed by the Magistrate and shall form part of the record.
276. Record in trial before Court of Session.
(1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open court or his direction and Superintendence, by an officer of the court appointed by him in this behalf.
1[(2) Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding judge may, in his discretion take down or cause to be taken down, any part of’ such evidence in the form of question and answer.]
(3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record.
1. Subs by Act 45 of 1978. Sec. 20. for sub-section (2) (w.e.f. 18-12-1978).
277. Language of record of evidence.
In every case where evidence is taken down under section 275 or section 276, –
(a) If the witness gives evidence in the language of the court, it shall be taken down in that language:
(b) If he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or Presiding Judge, and shall form part of the record;
(c) Where under clause (b) evidence is taken down in a language other than the language of the court, a true translation thereof in the language of the court shall be prepared as soon as practicable, signed by the Magistrate or Presiding Judge and shall form part of the record:
Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the court is not required by any of the parties, the court may dispense with such translation.
278. Procedure in regard to such evidence when completed.
(1) As the evidence of’ each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness deities the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he think necessary.
(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he
279. Interpretation of evidence to accused or his pleader.
(1) Whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him.
(2) If he appears by pleader and the evidence is given in a language other than the language of the court and not understood by the pleader, it shall be interpreted to such pleader in that language.
(3) When documents are put for the purpose of formal proof, it shall be in the discretion of the court to interpret as much thereof as appears necessary.
280. Remarks respecting demeanour of witness.
When a Presiding Judge or magistrate has recorded the evidence of a witnesses, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.
281. Record of examination of accused.
(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the court and such memorandum shall be signed by the Magistrate and shall form part of the record.
(2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the or other incapacity, under his direction and superintendence by an officer of the court appointed by him in this behalf.
(3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable in the language of the court.
(4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language, which he understands, and he shall be at liberty to explain or add to his answers.
(5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(6) Nothing in this section shall be deemed to apply to the examination of an accused person in the Course of a summary trial.
282. Interpreter to be bound to interpret truthfully.
When the services of an interpreter are required by any Criminal Court for the interpretation of any evidence or statement, he shall be bound to state the true interpretation of such evidence or statement.
283. Record in High Court.
Every High Court may, by general rule, prescribe the manner in which the evidence of witnesses and the examination of the accused shall be taken down in cases coming before it; and such evidence and examination shall be taken down in accordance with such rule.
284. When attendance of witness may be dispensed with and commission issued.
(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court of Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter:
Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union Territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness.
(2) The court may, when issuing a commission for the examination of a witness for the prosecution direct that such amount as the court considers reasonable to meet the expenses of the accused including the pleader’s fees, be paid by the prosecution.
285. Commission to whom to be issued.
(1) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found.
(2) If the witness is in India, but in a State or an area to which this Code does not extend the commission shall be directed to such court or officer as the Central Government may, by notification specify in this behalf.
(3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such court or officer, and sent to such authority for transmission as the Central Government may, by notification prescribe in this behalf.
286. Execution of commissions.
Upon receipt of the commission, the Chief Metropolitan Magistrate of Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant cases under this Code.
287. Parties may examine witnesses.
(1) The parties to any proceeding under this Code in which a commission is issued may respectively forward any interrogatories to the issue, and it shall be lawful for the Magistrate, court or officer to whom the Commission is directed, or to whom the duty of executing it is delegated, to examine (he witness upon such interrogatories.
(2) Any such party may appear before such Magistrate, court or officer by pleader, or if not in custody, in person, and may examine, cross-examine and reexamine (as the case may be) the said witness.
288. Return of commissions.
(1) After any commission issued under section 284 has been duly, executed, it shall he returned, together with the deposition of the witness examined there under, to the court or Magistrate issuing the commission; and the commission, the return thereto and the deposition shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.
(2) Any deposition so taken, if it satisfies the conditions prescribed by section 31 of the Indian Evidence Act, 1872 (1 of 1872) may also be received in evidence at any subsequent stage of the case before another court.
289. Adjournment of proceeding.
In every case in which a commission is issued under section 284, the inquiry, trial or other proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.
290. Execution of foreign Commissions.
(1) The provisions of section 286 and so much of section 287 and section 288 as relate to the execution of a commission its return shall apply in respect of commissions issued by any of the courts, Judges Magistrates hereinafter mentioned as they apply to commissions issued under section 284.
(2) The courts, Judges and Magistrates referred to in sub-section (1) are-
(a) Any such court, Judge or Magistrate exercising jurisdiction within an area India to which this Code does not extend, as the Central Government may, by notification, specify, in this behalf;
(b) Any court, Judge or Magistrate exercising jurisdiction in any such country or place outside India, as the Central Government may, by notification, specie in this behalf, and having authority under the law in force in that country of place, to issue commissions for the examination of witnesses in relation in relation to criminal matters.
291. Deposition of medical witness.
(1) The deposition of a civil surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused or taken on commission under this Chapter, may be given in evidence in any injury or other proceeding under this Code, although the deponent is not called as a witness.
(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such deponent as to the subject matter of his deposition.
291 A. Identification report of Magistrate.
1[Identification report of Magistrate. (1) Any document purporting to be a report of identification under the hand of an Executive Magistrate in respect of a person or property may be used as evidence in any inquiry, trial or other proceeding under this Code, although such Magistrate is not called as a witness:
Provided that where such report contains a statement of any suspect or witness to which the provisions of section 21, section 32, section 33, section 155 or section 157, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), apply, such statement shall not be used under this sub-section except in accordance with the provisions of those sections.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine such Magistrate as to the subject-matter of the said report.]
CrPC (Amendment) Act, 2005 (Notes on Clauses)
Under the existing provisions of the Code an identification memo is required to be proved in the Court by examination of the Magistrate, who conducted the proceedings. These facts are generally not disputed. In order to save time of the Court, section 291A has been inserted with a view to make memorandum of identification prepared by the Magistrates admissible in evidence without formal proof of facts stated therein with a provision that the Court may, if it thinks fit, on the application of the prosecution or the accused, summon or examine the Magistrate as to the subject-matter contained in the memorandum of identification.
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1. Ins. by Act 25 of 2005, sec. 24.
292. Evidence of officers of the Mint.
(1) Any document purporting to be a report under the hand of any such gazetted officer of the Mint1[officer of any Mint or of any Note Printing Press or of any Security Printing Press (including the officer of the Controller of Stamps and Stationery) or of any Forensic Department or Division of Forensic Science Laboratory or any Government Examiner of Questioned Documents or any State Examiner of Questioned Documents, as the case may be,] as the Central Government may, by notification, specify in this behalf, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code, although such officer is not called as a witness.
(2) The Court may, if it thinks fit, summon and examine any such officer as to the subject-matter of this report:
Provided that no such officer shall be summoned to produce any records on which the report is based.
(3) Without prejudice to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872) no such officer shall, 2[except with the permission of the General Manager or any officer in charge of any Mint or of any Note Printing Press or of any Security Printing Press or of any Forensic Department or any officer in charge of the Forensic Science Laboratory or of the Government Examiner of Questioned Documents Organisation or of the State Examiner of Questioned Documents Organisation, as the case may be,] be permitted-
(a) to give any evidence derived from any unpublished official records on which the report is based; or
(b) to disclose the nature or particulars of any test applied by him in the course of the examination of the matter or thing.
CrPC (Amendment) Act, 2005 (Notes on Clause)
Section 292 has been amended to cover the specified officers of the Currency Notes Press, the Bank Note Press and the Security Printing Press, like other specified officers of the Mint and the India Security Press and also makes certain other consequential changes.
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1. Subs. by Act 2 of 2006, sec. 5 for “gazetted officer of the Mint or of the India Security Press (including the office of the Controller of Stamps and Stationery)” (w.e.f. 16-4-2006).
2. Subs. by Act 2 of 2006, sec. 5, for “except with the permission of the Master of the Mint, or the Indian Security Press or the Controller of Stamps and Stationery, as the case may be” (w.e.f. 16-4-2006).
293. Reports of certain Government scientific experts.
(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
1[(b) the Chief Controller of Explosives;]
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director 2[Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
3[(g) any other Government Scientific Expert specified by notification by the Central Government for this purpose.]
CrPC (Amendment) Act, 2005 (Notes on Clauses)
The designation “the Chief Inspector of Explosives” appearing in the Indian Explosives Act, 1884 has been changed to “the Chief Controller of Explosives” by the Indian Explosives (Amendment) Act, 1978. Section 293 has been amended to make the consequential amendment where the expression “ the Chief Inspector of Explosives” occurs.
COMMENTS
The court has to accept documents issued by any of the six officers who are mentioned in section 293 as valid evidence without examining the author thereof: Visakha Agro Chemicals (P) Ltd. v. Fertiliser Inspector-cum-Assistant Director of Agriculture (Regular), (1997) 2 Crimes 648 (AP).
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1. Subs. by Act 25 of 2005, sec. 26, for clause “(b) the Chief Inspector of Explosives”.
2. Ins. by Act 45 of 1978, sec. 21 (w.e.f. 18-12-1978).
3. Added by Act 25 of 2005, sec. 26.
294. No formal proof of certain documents.
(1) Where any document is filed before any court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit m deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the court may, in its discretion, require such signature to be proved.
295. Affidavit in proof of conduct of public servants.
When any application is made to any court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the application by affidavit, and the court may, if it thinks fit, order that evidence relating to such facts be so given.
296. Evidence of formal character on affidavit.
(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.
(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.
297. Authorities before whom affidavits may be sworn.
(1) Affidavits to he used before any court under this Code may be sworn or affirmed before-
1[(a) Any Judge or any Judicial or Executive Magistrate, or]
(b) Any Commissioner of Oaths appointed by a High Court or Court of Session, or
(c) Any notary appointed under the Notaries Act, 1952 (53 of 1952).
(2) Affidavits shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the ground of such belief
(3) The court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended.
1. Subs. by Act 45 of 1978, Sec. 22, for clause (a) (w.e.f. 18-12-1978).
298. Previous conviction of acquittal how proved.
In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any, law for the time being in force, –
(a) By an extract certified under the hand of the officer having the custody of the records of the court in which such conviction or acquittal was held, to be a copy of the sentence or order, or
(b) In case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered.
together with, in each of such cases evidence as to the identity of the accused person with the person so convicted or acquitted.
299. Record of evidence in absence of accused.
(1) If it is proved that an accused person has absconded and that there is no immediate prospect of arresting him, the court competent to try 1[or commit for trial] such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense inconvenience which, under the circumstances of the case, would be unreasonable.
(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if’ the deponent is dead or incapable of giving evidence or beyond the limits of India.
1. Ins. by Act 45 of 1978, Sec. 23 (18-12-1978).
STATE AMENDMENT
UTTAR PRADESH
In section 299 in Sub-section (1) for the words “competent to try such person” the words” competent to try such person or to commit him for trial” shall he substituted.
[Vide U.P. Act 6 of 1976, sec. 7 (w.e.f. 28-11-1975)].
300. Person once convicted or acquitted not to be tried for same offence.
(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under subsection (2) thereof.
(2) A person acquitted or convicted of any offence afterwards tried with the consent of ore State Government for any distinct offence for which a separate charges have been made against him at the former trial under sub-section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first-mentioned court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.
Explanation. The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.
Illustrations
(a) A is tried upon a charge of theft as a servant and acquitted. He cannot after-wards, while the acquittal remains in force, be charged with theft as a servant, or upon the same facts, with theft simply, or with criminal breach of trust.
(b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.
(c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.
(d) A is charged by a Magistrate of the first class with, and convicted by him of voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the case comes within sub-section (3) of this section.
(e) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may subsequently be charged with, and tried for, dacoity on the same facts.
(f) A, B and C are charged by a magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts.
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