The Code of Criminal Procedure, 1973

 51. Search of arrested persons.

(1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to, furnish bail.


The officer making the arrests or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe Custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person.


(2). Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.

 


52. Power to seize offensive weapons.

The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested.

 


53. Examination of accused by medical practitioner at the request of police officer.

(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting, at the request of a police officer not below the rank of sub-inspector, and for- any person acting in good faith in his aid and -under his direction, to make such all examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.


(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.


1[Explanation. – In this section and in sections 53A and 54,-


(a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;


(b) “registered medical practitioner” means a medical practitioner who possess any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 and whose name has been entered in a State Medical Register.]


CrPc (Amendment) Act, 2005 (Notes on Clauses)


Explanation seeks to explain the meaning of the expressions “examination” and “registered medical practitioner” appearing in sections 53A and 54.


Subs. by Act 25 of 2005, sec. 8, for “Explanation.- In this section and in section 54, “registered medical practitioner” means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register”.

 


53A. Examination of person accused of rape by medical practitioner.

153 A. Examination of person accused of rape by medical practitioner. – (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of this person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.


(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-


(i) the name and address of the accused and of the person by whom he was brought,


(ii) the age of the accused,


(iii) marks of injury, if any, on the person of the accused,


(iv) the description of material taken from the person of the accused for DNA profiling, and”.


(v) other material particulars in reasonable detail.


(3) The report shall state precisely the reasons for each conclusion arrived at.


(4) The exact time of commencement and completion of the examination shall also be noted in the report.


(5) The registered medical practitioner shall, without delay, forward the report of the investigating 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.]


CrPc (Amendment) Act, 2005 (Notes on Clauses)


Section 53A seeks to provide for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape by the 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. 9.

 


54. Examination of arrested person by medical practitioner at the request of the arrested person.

1[(1)] When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered  medical practitioner unless the Magistrate considers that  the request is made for the purpose of vexation or delay or for defeating the ends of justice.


2[(2) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the registered medical practitioner to the arrested person or the person nominated by such arrested person.]


CrPc (Amendment) Act, 2005 (Notes on Clauses)


Section 54 has been amended to provide that a copy of the report of the medical examination of the arrested person should also be furnished by the registered medical practitioner to the arrested person or his nominee, after his medical examination has been conducted.


State Amendment


Uttar Pradesh:


In section 54, the following sentence shall be inserted at the end, namely:-


“The registered medical practitioner shall forthwith furnish to the arrested person a copy of the report of such examination free of cost.”


[Vide Uttar Pradesh Act 1 of 1984, sec. 7 (w.e.f. 1-5-1984)].


After section 54, the following section shall be inserted, namely:-


“54-A. Test identification of the accused.- When a person is arrested on a charge of committing an offence and his test identification by any witness is considered necessary by any Court having  jurisdiction, it shall be lawful for an Executive Magistrate acting at the instance of such Court, to hold test identification of the person arrested.”


[Vide Uttar Pradesh Act 1 of 1984, sec. 8 (w.e.f. 1-5-1984)


1. Section 54 renumbered as sub-section thereof by Act 25 of 2005, sec. 10.


2. Ins. by Act 25 of 2005, sec. 10.

 


54A. Identification of person arrested

1[54A. Identification of person arrested:- Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so  arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.]


CrPc (Amendment) Act, 2005 (Notes on Clauses)


Section 54 A empowers the Court to direct specifically the holding of the identification of the arrested person at the request of the prosecution.


2[“Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with:


Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be videographed.”.]


——————————————-


1. Ins. by Act 25 of 2005, sec. 11.


2. Inserted by Section 12 of ‘The Criminal Law (Amendment) Act, 2013’

 


55. Procedure when police officer deputes subordinate to arrest without warrant

(1) When any officer in charge of a police station or any police officer making an investigation under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order.


(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under section 41.

 


56. Person arrested to be taken before Magistrate or officer in charge of police station.

A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

 


57. Person arrested not to be detained more than twenty-four hours.

No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

 


58. Police to report apprehensions.

Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.

 


59. Discharge of person apprehended.

No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.

 


60. Powers, on escape, to pursue and re-take.

(1) If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India.


(2) The provisions of section 47 shall apply to arrests under sub-section (1) although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest.

 


61. Form of summons.

Every summons issued by a court under this Code shall be in writing, in duplicate, signed by the presiding officer of such court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the court.

 


62. Summons how served.

(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant.


(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.


(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

 


63. Service of summons on corporate bodies and societies.

Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed, to have been effected when the letter would arrive in ordinary course of post.


Explanation:- In this section “corporation” means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act.1860 (21 of 1860).

 


64. Service when persons summoned cannot be found.

Where the person summoned cannot, by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.


Explanation :- A servant is not a member of the family within the meaning of this section.

 


65. Procedure when service cannot be effected as before provided.

If service cannot by the exercise of due diligence be effected as provided in section 62, section 63 or section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides, and thereupon the court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.

 


66. Service on Government servant.

(1) Where the person summoned is in the active service of the Government, the court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed: and such head shall thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the court under his signature with the endorsement required by that section.


(2) Such signature shall be evidence of due service.

 


67. Service of summons outside local limits.

When a court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.

 


68. Proof of service in such cases and when serving officer not present.

(1) When a Summons issued by a court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the manner provided by section 62, or section 64) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.


(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the court.

 


69. Service of summons on witness by post.

(1) Notwithstanding anything contained in the preceding section of this Chapter, a court issuing a summons to a witness may in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.


(2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the court issuing the summons may declare that the summons has been duly served.


STATE AMENDMENT


Andaman and Nicobar Islands and Lakshadweep:


In section 69, –


(a) in sub-section (I), after the words “lo be served by registered post” the words “or of’ the substance thereof to be served by wireless message” shall be inserted.


(b) in subsection (2), for the words “that the witness refused to take delivery of the summons” the words “or a wireless messenger that the witness refused to take delivery, of’ the summons or the message, as the case may, be” shall be substituted.


[Vide Regulation 6 of’ 1977. sec. 2 (w.e.f 17-11-1977)].

 


70. Form of warrant of arrest and duration.

(1) Every warrant of arrest issued by a court under this Code shall be in writing, signed by the presiding officer of such court and shall bear the sea] of the court.


(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

 


71. Power to direct security to be taken.

(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the court the officer to whom the warrant is directed shall take such security and shall release such person from custody.


(2) The endorsement shall state-


(a) the number of sureties;


(b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound;


(c) the time at which he is to attend before the court.


(3) Whenever security is taken under this section the officer to whom the warrant is directed shall forward the bond to the court.

 


72. Warrants to whom directed.

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.


(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.

 


73. Warrant may be directed to stay persona.

(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.


(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.


(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.

 


74. Warrant directed to police officer.

A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

 


75. Notification of substance of warrant.

The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.

 


76. Person arrested to be brought before court without delay.

The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person:


Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

 


77. Where warrant may be executed.

A warrant of arrest may be executed at any place in India.

 


78. Warrant forwarded for execution outside jurisdictions

(1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the Executive Magistrate or District Superintendent or Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner hereinbefore provided.


(2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under section 81 to decide whether bail should or should not be granted to the person.

 


79. Warrant directed to police officer for execution outside jurisdiction.

(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed.


(2) Such Magistrate or police Officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant.


(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the court which issued it.

 


80. Procedure of arrest of person against whom warrant issued.

When a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the court which issued the warrant is within thirty kilometers of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 71, be taken before such Magistrate or District Superintendent or Commissioner.

 


81. Procedure by Magistrate before whom such person arrested is brought.

(1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the court which issued the warrant, direct his removal in custody to such court:


Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under section 71 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent or Commissioner shall take such bail or security as the case may be, and forward the bond, to the court which issued the warrant:


Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of section 437), or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in sub-section (2) of section 78 to release such person on bail.


(2) Nothing in this section shall be deemed to prevent a police officer from taking security under section 71.


STATE AMENDMENT


Uttar Pradesh:


In sub-section (1) of’ section 81, the following third proviso shall be inserted, namely.


“Provided also that where such person is not released on bail or where he fails to give such security as aforesaid, the Chief Judicial Magistrate in the case on a non-bailable offence or any Judicial Magistrate in the case of a bailable offence may pass such orders as he thinks fit for his custody till such time as may be necessary for his removal to the court which issued that warrant.”


[Vide U.P. Act 1 of 1984, sec. 9 (w.e.f. 1-5-1984)].

 


82. Proclamation for person absconding.

(1) If Any court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.


(2) The proclamation shall be published as follows:-


(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;


(b) it shall be affixed to some conspicuous part of the house or home-stead in which such person ordinarily resides or to some conspicuous place of such town or village;


(c) a copy thereof shall be affixed to some conspicuous part of the Court house,


(ii) the court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.


(3) A statement in writing by the court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in Clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.


(4) Where  a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.


(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).]


CrPc (Amendment) Act, 2005 (Notes on Clauses)


Sub-sections (4) and (5) empower the Court to make the declaration that the person is a proclaimed offender where he fails to appear at the specified place and time mentioned in the proclamation issued under sub-section (1) in relation to offences under sections 302, 304, 364 etc., of the Indian Penal Code.


Ins, by Act 25 of 2005, sec. 12.

 


83. Attachment of property of person absconding.

(1) The court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:


Provided that where at the time of the issue of the proclamation the court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,–


(a) is about to dispose of the whole or any part of his property, or


(b) is about to remove the whole or any part of his property from the local jurisdiction of the court,


It may order the attachment simultaneously with the issue of the proclamation.


(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.


(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-


(a) by seizure; or


(b) by the appointment of a receiver; or


(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or


(d) by all or any two of such methods, as the court thinks fit.


(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the collector of’ the district in which the land is situate, and in all other cases-


(a) by taking possessions or


(b) by the appointment of’ a receiver; or


(c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or


(d) by all or any two of such methods, as the Court thinks fit.


(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the court.


(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).

 


84. Claims and objections to attachment.

(1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:


Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the even of the death of the claimant or objector, be continued by his legal representative.


(2) Claims or objections under sub-section (1) may be preferred or made in the court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under sub-section (2) of section 83, in the court of the Chief Judicial Magistrate of the district in which the attachment is made.


(3) Every such claim or objection shall be inquired into by the court in which it is preferred or made:


Provided that, if it is preferred or made in the court of a Chief judicial Magistrate, he may, make it over for disposal to any Magistrate subordinate to him.


(4) Any person whose claim or objection has been disallowed in whole or in part by an order under subsection (1) may, within a period of one year from the date of such order, institute a suit to establish the right which the claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.

 


85. Release, sale and restoration of attached property.

(1) If the proclaimed person appears within the time specified in the proclamation, the court shall make an order releasing the property from the attachment.


(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section; unless it is subject to speedy and natural decay, or the court considers that the sale would be for the benefit of the owner, in either of which cases the court may cause it to be sold whenever it thinks fit.


(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the court by whose order the property was attached, or the court to which such court is subordinate, and proves to the satisfaction of- such court that he did not abscond or conceal himself for the purpose of avoiding, execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying there from all costs incurred in consequence of the attachment, be delivered to him.

 


86. Appeal from order rejecting application for restoration of attached property.

Any person referred to in sub-section (3) of section 85, who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof may appeal to the court to which appeals ordinarily lie from the sentences of the first-mentioned court.

 


87. Issue of warrant in lieu of, or in addition to, summons.

A court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest-


(a) if either before the issue of summons, or after the issue of the same but before time fixed for his appearance, the court sees reason to believe that he has absconded or will not obey the summons; or


(b) if, at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

 


88. Power to take bond for appearance.

When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trial.

 


89. Arrest on breach of bond for appearance.

When any person who is bound by any bond taken under this Code to appear before a court, does not appear, the officer presiding in such court may issue a warrant directing that such person be arrested and produced before him.

 


90. Provisions of this Chapter generally applicable to summons and warrants of arrest.

The provisions contained in this Chapter relating to a summons and warrants, and their issue. Service, and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code.

 


91. Summons to produce document or other thing.

Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.


(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.


(3) Nothing in this section shall be deemed –


(a) to affect, sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers, Books Evidence Act, 1891(13 of 1891), or


(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

 


92. Produce as to letters and telegrams.

(1) If any document, parcel or thing in the custody of a postal or telegraph authority is, in the opinion of the District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court wanted for the purpose of any investigation, inquiry, trial or other proceeding under this Code, such Magistrate or court may require postal or telegraph authority, as the case may be, or deliver the document, parcel or thing to such person a the Magistrate or Court directs.


(2) If any such document, parcel or thing is, in the opinion of any other Magistrate, whether Executive or Judicial, or of any Commissioner of police or District Superintendent of police, wanted for any such purpose, he may require the postal or telegraph authority, as the case nay be, to cause search to be made for and to detain such document, parcel or thing pending the order of a District Magistrate, Chief Judicial Magistrate or Court under sub-section (1)..

 


93. When search warrant may be issued.

(1) (a) where any court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or


(b) where such document or thing is not known to the Court to be in the possession of any person, or


(c) where the court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection,


it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.


(2) The court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.


(3) Nothing contained in this section shall authorize any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority.

 


94. Search of place suspected to contain stolen property, forged documents, etc.

(1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorize any police officer above the rank of a constable-


(a) to enter, with such assistance as may be required, such place,


(b) to search the same in the manner specified in the warrant,


(c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies,


(d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety,


(e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies.


(2) The objectionable articles to which this section applies are-


(a) counterfeit coin;


(b) pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962);


(c) counterfeit currency note; counterfeit stamps;


(d) forged documents;


(e) false seals;


(f) obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860);


(g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f).

 


95. Power to declare certain publications forfeited and to issue search warrants for the same.

(1) Where-


(a) any newspaper, or book, or


(b) any document,


Wherever printed appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153 A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the news paper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any, Magistrate may by warrant authorise any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.


(2) In this section and in section 96, –


(a) “newspaper” and “book” have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867):


(b) “document” includes any painting, drawing or photograph, or other visible representation.


(3) No order passed or action taken under this section shall be called in question in any court otherwise than in accordance with the provisions of section 96.

 


96. Application to High Court to set aside declaration of forfeiture.

(1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may within two months from the date of publication in the official Gazette of such declaration, apply to the High court to set aside such declaration on the ground that the issue of the newspaper, or the books or the other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub-section (1) of section 95.


(2) Every such application shall, where the High Court consists of three or more, Judges be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such Special Bench shall be composed of all the Judges of that High Court.


(3) On the hearing of any such application with reference to any newspaper, any copy of such newspaper, may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper in respect of which the declaration of forfeiture was made.


(4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in sub-section (I) of section 95, set aside the declaration of forfeiture.


(5) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those Judges.

 


97. Search for persons wrongfully confined.

If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue, a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

 


98. Power to compel restoration of abducted females.

Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge or such child, and may compel compliance with such order, using such force as may be necessary.

 


99. Direction, etc., of search warrants.

The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all search-warrants issued under section 93, section 94, section 95 or section 97.

 


100. Persons in charge of closed place to allow search.

(1) Whenever any place liable to search of inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.


(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47.


(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.


(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.


(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witness; but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by it.


(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.


(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.


(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860).

 


101. Disposal of things found in search beyond jurisdiction.

When, in the execution of a search-warrant at any place beyond the local jurisdiction of the court which issued the same, any of the things for which search is made, are found, such things, together with the list of the same prepared under the provisions hereinafter contained, shall be immediately taken before the court issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction therein than to such court, in which case the list and things shall be immediately taken before such Magistrate; and unless there be good cause to the contrary, such Magistrate shall make an order authorising them to be taken to such court.

 


102. Power of police officer to seize certain property.

(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances, which create suspicion of the Commission of any offence.


(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.


1(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, conveniently transported to the Court 2[ or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigational], he may give custody thereof to any person on  his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as and when required and to give effect to the further orders of the Court as to disposal of the same:]


1. Ins. by Act 45 of 1978, sec. 10 (18-12-1978).

 


103. Magistrate may direct search in his presence.

Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant.

 


104. Power to impound document, etc., produced.

Any court may, if it thinks fit impound any document or thing produced before it under this Code.

 


105. Reciprocal arrangements regarding processes.

(1) Where a court in the territories to which this Code extends (hereafter in this section referred to as the said territories desires that-


(a) a summons to an accused person, or


(b) a warrant for the arrest of an accused person, or


(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or


(d) a search warrants,


1[issued by it shall be served or executed at any place, –


(i) within the local jurisdiction of a court in any State or area in India outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of section 68 shall apply in relation to such summons as if the presiding officer of the court to whom it is sent were a Magistrate in the said territories;


(ii) in any country of place outside India in respect of which arrangements have been made by the Central Government with the Government of such country or place for service or execution of summons or warrant in relation to criminal matters (hereafter in this section referred to as the contracting State), it may send such summons or warrant in duplicate in such form, directed to such court, Judge or Magistrate, and sent to such authority for transmission, as the Central Government may, by notification, specify in this behalf.]


(2) Where a court in the said territories has received for service or execution-


(a) a summons to an accused person, or


(b) a warrant for the arrest of an accused person, or


(c) a summons to any person requiring him to attend and produce a document or other things or to produce it, or


(d) a search warrant.


1[issued by–


(i) a court in any State or are in India outside the said territories


(ii) a court, Judge or Magistrate in a contracting State,


It shall cause the same to be served or executed] as if it were a summons or warrant received by it from another court in the said territories for service or execution within its local Jurisdiction; and where


(i) a warrant of arrest has been executed, the person arrested shall, so far as possible, be dealt with in accordance with the procedure prescribed by sections 80 and 81;


(ii) a search warrant has been executed, the things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by section 101:


2[Provided that in a case where a summons or search warrant received from a contracting State has been executed, the documents or things produced or things found in the search shall be forwarded to the court issuing the summons or search warrant through such Authority as the Central Government may, by notification, specify in this behalf.]


1. Subs by Act 32 of 1988, sec. 2, for certain words (w.e.f. 25-5-1988).

2. Ins. by Act 32 of 1988, sec. 2 (w.e.f. 25-5-1988).

 


105A. CHAPTER II-A

1 RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERTAIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY


1. Chapter VIIA (containing Sections 105A to 105L) Ins. by Act 40 of 1993, sec. 2 (w.e.f. 20-7-1994).


Definitions:-In this Chapter, unless the context otherwise requires, –


(a) “contracting State” means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise;


(b) “identifying” includes establishment of a proof that the property was derived from, or used in, the Commission of an offence;


(c) “proceeds of crime,” means any property derived or obtained directly or indirectly by any person as a result of criminal activity (including crime involving currency, transfers) or the value of any such property;


(d) “property” means property and assets of every description whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such properly or assets derived or used in the Commission of an offence and includes property obtained through proceeds of crime;


(e) “tracing” means determining the nature source, disposition, movement, title or ownership of property.

 


105B. Assistance in securing transfer of persons

(1) Where a court in India, in relation to a criminal matter, desires that a warrant for arrest of any person to attend or produce a document or other thing issued by it shall be executed in any place in a contracting State, it shall send such warrant in duplicate in such form to such Court, Judge or Magistrate, through such authority, as the Central Government may, by notification, specify in this behalf and that court, Judge or Magistrate, as the case may be, shall cause the same to be executed.


(2) Not withstanding anything contained in this Code, if, in the course of an investigation or any inquiry into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that the attendance of a Person who is in any place in a contracting State is required in connection with such investigation or inquiry and the court is satisfied that such attendance is so required, it shall issue a summons or warrant, in duplicate, against the said person to such court, Judge or Magistrate, in such form as the Central Government by notification, specify in this behalf, to cause the same to be served or executed.


(3) Where a court in India, in relation to a criminal matter, has received a warrant for arrest of any person requiring him to attend or attend and produce a document or other thing in that court or before any other investigating agency, issued by a court, Judge or Magistrate in a contracting State, the same shall be executed as if it is the warrant received by it from another court in India for execution within its local limits.


(4) Where a person transferred to a contracting State pursuant to sub-section (3) is a prisoner in India, the court in India or the Central Government may impose such conditions as that court or Government deems fit.


(5) Where the person transferred to India pursuant to sub-section (1), or sub-section (2) is a prisoner in a contracting State, the court in India shall ensure that the conditions subject to which the prisoner is transferred to India are complied with and such prisoner shall be kept in such custody subject to such conditions as the Central Government may direct in writing.

 


105C. Assistance in relation to orders of attachment or forfeiture of property.

(1) Where a court in India has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under the provisions of sections 105D to 105J (both inclusive).


(2) Where the Court has made an order for attachment or forfeiture of any property under sub-section (1), and such property is suspected to be in a contracting State, the court may issue a letter of request to a court or an authority in the contracting State for execution of such order.


(3) Where a letter of request is received by the Central Government from a court or an authority in a contracting State requesting attachment or forfeiture of the property in India, derived or obtained, directly or indirectly, by any person from the commission of an offence committed in that contracting State, the Central Government may forward such letter of request to the court, as it thinks fit, for execution in accordance with the provisions of sections 105D to 105J (both inclusive) or, as the case may be, any other law for the time being in force.

 


105D. Identifying unlawfully acquired property.

(1) The court shall, under subsection (1), or on receipt of a letter of request under sub-section (3) of section 105C, direct any police officer not below the rank of Sub-Inspector of Police to take all steps necessary for tracing and identifying such property.


(2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in respect of any person, place, property assets, documents, books of account in any bank or public financial institutions or any other relevant matters.


(3) Any inquiry, investigation or survey referred to in sub-section (2) shall be carried out by an offence mentioned in sub-section (1) in accordance with such directions issued by the said court in this behalf.

 


105E. Seizure or attachment of property

(1) Where any officer conducting an inquiry or investigation under section 105D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property and where it is not practical to seize such property, he may make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned.


(2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the said court, within a period of thirty days of its being made.

 


105F. Management of properties seized or forfeited under this Chapter.

(1) The court may appoint the District Magistrate of the area where the property is situated, or any other officer that may be nominated by the District Magistrate, to perform the functions of an administrator of such property.


(2) The Administrator appointed under sub-section (1) shall receive and manage the property in relation to which the order has been made under sub-section (1) of section 105E or under section 105H in such manner and subject to such conditions as may be specified by the Central Government.


(3) The Administrator shall also take such measures, as the Central Government may direct, to dispose of the property, which is forfeited to the Central Government.

 


105G. Notice of forfeiture of property.

(1) If as a result of the inquiry, investigation or survey under section 105D, the court has reason to believe that all or any of such properties are proceeds of crime, it may serve a notice upon such person (hereinafter referred to as the person affected) calling upon him within a period of thirty days specified in the notice to indicate the source of income, earning or assets, out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties, as the case may be, should not be declared to be proceeds of crime and forfeited to the Central Government.


(2) Where a notice under sub-section (1) to any person specifies any property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.

 


105H. Forfeiture of property in certain cases

(1) The court may, after considering the explanation, if any, to the show-cause notice issued under section 105G and the material available before it and after giving to the person affected (and in a case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are proceeds of crime:


Provided that if the person affected (and in a case where the person affected holds any property specified in the notice through any other person such other person also) does not appear before the court or represent his case before it within a period of thirty days specified in the show-cause notice, the court may proceed to record a finding under this sub-section ex parte on the basis of evidence available before it.


(2) Where the court is satisfied that some of the properties referred to in the show cause notice are proceeds of crime but it is not possible to identify specifically such properties, then, it shall be lawful for the court to specify the properties which, to the best of its judgment, are proceeds of crime and record a finding accordingly under sub-section (1).


(3) Where the court records a finding under this section to the effect that any property is proceeds of crime, such property shall stand forfeited to the Central Government free from all encumbrances.


(4) Where any shares in a company stand forfeited to the Central Government under this section, then the company shall, notwithstanding any thing contained in the Companies Act. 1956 (1 of 1956) or the articles of association of the company, forthwith register the Central Government as the transferee of such shares.

 


105-I. Fine in lieu of forfeiture

(1) Where the Court makes a declaration that any property stands forfeited to the Central Government under section 105H and it is a case where the source of only a part of such property has not been proved to the satisfaction of the Court, it shall make an order giving an option to the person affected to pay, in lieu of forfeiture, a fine equal to the market value of such part.


(2) Before making an order imposing a fine under sub-section (1), the person affected shall be given a reasonable opportunity of being heard.


(3) Where the person affected pays the fine due under sub-section (1), within such time as may be allowed in that behalf, the Court may, by order, revoke the declaration of forfeiture under section 105h and thereupon such property shall stand released.

 


105J. Certain transfers to be null and void.

Where after the making of an order under sub-section (1) of section 105E or the issue of a notice under section 105G, any property referred to in the said order or notice is transferred by any mode whatsoever such transfer shall, for the purposes of the proceedings under this Chapter, be ignored and if such property is subsequently forfeited to the Central government under section 160H, then the transfer of such property shall be deemed to be null and void.

 


105K. Procedure in respect of letter of request.

Every letter of request, summons or warrant, received by the Central Government from, and every letter of request, summons or warrant, to be transmitted to a contracting State under this Chapter shall be transmitted to a contracting State or, as the case may be, sent to the concerned court in India in such form and in such manner as the Central Government may, by notification, specify in this behalf.

 


105L. Application of this Chapter.

The Central Government may, by notification in the Official Gazette, direct that the application of’ this Chapter in relation to a contracting State with which reciprocal arrangements have been made, shall be subject to such conditions, exceptions or qualifications as are specified in the said notification.

 


106. Security for keeping the peace on conviction.

(1) When a court of Session or court of a Magistrate of the first class convict a person of any of the offences specified in sub-section (2) or of abetting any such offence and is of opinion that it is necessary to take security from such person for keeping the peace, the court may, at the time of passing sentences on such person, order him to execute a bond, with or without sureties, for keeping the peace of such period, not exceeding three years, as it thinks fit.


(2) The offences referred to in sub-section (1) are-


(a) Any offence punishable under Chapter VIII of the Indian Penal Code (45 of 1860), other than an offence, punishable under section 153A or section 153B or section 154 thereof-,


(b) Any offence which consists of, or includes, assault or using criminal force or committing mischief-,


(e) Any offence of criminal intimidation;


(d) Any other offence which caused, or was intended or known to be likely to cause, a breach of the peace.


(3) If the conviction is set-aside on appeal or otherwise, the bond so executed shall become void.


(4) An order under this section may also be made by an Appellate court or by a court when exercising its powers of revision.

 


107. Security for keeping the peace in other cases.

(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of’ the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond 1[with or without sureties] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.


(2) Proceeding under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.


1. Ins. by Act 45 of 1978, section. 11 (w.e.f. 18-12-1978).

 


108. Security for good behaviour from persons disseminating seditious matters.

(1) When 1[an executive Magistrate] receives information that there is within his local jurisdictions any person who, within or without such jurisdiction –


(i) either orally or in writing or in any other manner intentionally disseminates or attempts to disseminate or abets the dissemination of-


(a) any matter the publication of’ which is punishable under section 124A or section 153A or section 153B or section 295A of’ the Indian Penal Code (45 of’ 1860), or


(b) any matter concerning a Judge acting or purporting to act in the discharge of his official duties which amounts to criminal intimidation or defarmation under the Indian Penal Code


(ii) makes Produces, Publishes or keeps for sale, imports, exports, conveys, sells, lets to hire, distributes, publicly exhibits or in any other manner puts into circulation any obscene matter such as is referred to in section 292 of the Indian Penal Code (45 of 1860),


And the magistrate is of opinion that there is sufficient ground for proceeding, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit.


(2) No proceeding shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under, and edited, printed and published in conformity with, the rules laid down in the Press and Registration of Books Act, 1867 (25 of 1867), with reference to any matter contained in such publication except by the order or under the authority of the State Government or some officer empowered by the State Government in this behalf.


1. Subs. by Act 63 of 1980, sec. 2, a for “Judicial Magistrate” (w.e.f. 23-9-1980).

 


109. Security for good behaviour from suspected persons.

When 1[an Executive Magistrate] receive information that there is within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding, one year, as the Magistrate thinks fit.


1. Subs. by Act 63 of 1980, sec.2 for ” Judicial Magistrate” (w.e.f. 23-9-1980)

 


110. Security for good behaviour from habitual offenders.

When 1[an Executive Magistrate] receives information that there is within his local jurisdiction a person who-


(a) is by habit a robber, house-breaker, thief, or forger, or


(b) is by habit a receiver of stolen property knowing the same to have been stolen, or


(c) habitually protects or harbours thieves, or aids in the concealment of disposal of stolen property, or


(d) habitually commits, or attempts to commit, or abets the Commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code (45 of 1860), or under section 489A, section 489B, section 489C or section 489D of that Code, or


(e) habitually commits, or attempts to commit, or abets the Commission of, offences, involving, a breach of the peace, or


(f) habitually commits, or attempts to commit, or abets the commission of-


(i) any offence under one or more of the following Acts, namely:


(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);


2[(b) the Foreign Exchange Regulation Act, 1973 (46 of 1973);]


(c) the Employees, Provident Funds 3[and Family Pension Fund] Act, 1952 (19 of 1952);


(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954);


(e) the Essential Commodities Act, 1955(10 of 1955);


(f) the Untouchability (Offences) Act, 1955 (22 of 1955)


(g) the Customs Act, 1962 (52 of 1962) or


4[(h) the Foreigners Act, 1946 (31 of 1946); or]


(ii) any offence punishable under any other law providing for the prevention of hoarding of profiteering or of adulteration of food or drugs or of corruption, or


(g) is so desperate and dangerous as to render his being at large without security hazardous to the community.


Such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years as the Magistrate thinks fit.


1. Subs. by Act 63 of 1980, sec.2 for ” Judicial Magistrate” (w.e.f. 23-9-1980)


2. Subs. by Act 56 of 1974, sec 3 and second Sch., for item (b) (w.e.f. 20-12-1974).


3. Ins. by Act 56 of 1974, sec. 3, and second Sch. (w.e.f. 20-12-1974).


4. Ins. by Act 25 of 2005, sec. 14.

 


111. Order to be made.

When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.

 


112. Procedure in respect of person present in court.

If the person in respect of whom such order is made is present in court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him.

 


113. Summons or warrant in case of person not so present.

If such person is not present in court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the court;


Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to far the Commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.

 


114. Copy of order to accompany summons or warrant.

Every summons or warrant issued under section 113 shall be accompanied by a copy of the order made under section 111 , and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same.

 


115. Power to dispense with personal attendance.

The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace or for good behaviour and may permit him to appear by a pleader.

 


116. Inquiry as to truth of information.

(1) When an order under section 111 has been read or explained under section 112 to a person in court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113 the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.


(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons case.


(3) After the commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of’ breach of the peace or disturbance of the public tranquility or the Commission of any offence or for the public safety, may, for reason to be recorded in writing direct the per son in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded:


Provided that –


(a) no person against whom proceedings are not being taken over under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour;


(b) the conditions of such bond, whether as to the amount thereof or as to the provisions of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order undersection 111


(4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the Community may be proved by evidence of general repute or otherwise.


(5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt within the same or separate inquiries, as the Magistrate shall think just.


(6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs:-


Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention.


(7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.

 


117. Order to give security.

If, upon such inquiry, it is proved that it is necessary for keeping, the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate shall make an order accordingly:


Provided that-


(a) No person shall be ordered to give security of a nature different from, or of air amount larger than, or for a period longer than, that specified in the order made under section 111.


(b) The amount of every, bond shall be fixed with due regard to the circumstances of the case and shall not be excessive;


(c). When the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties.

 


118. Discharge of person informed against.

If, on an inquiry under section 116, it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made, should execute a bond, the Magistrate shall make an entry on the record to that effect, and if such person is in custody only for the purposes of the inquiry, shall release him, or if such person is not in custody shall discharge him.

 


119. Commencement of period for which security is required.

(1) If any person, in respect of whom an order requiring security is made under section 106 or section 117, is, at the time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the period for which such security is required shall commence on the expiration of such sentence.


(2) In other cases such period shall commence on the date of such order unless the Magistrate, for sufficient reason, fixes a later date.

 


120. Contents of bond.

The bond to be executed by any such person shall bind keep him to the peace or to be of good behaviour, as the case may be and in the latter case the commission or attempt to commit, or the abetment of, any offence punishable with imprisonment, wherever it may be commit, is a breach of the bond.

 


121. Power to reject sureties.

(1) A Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor under this Chapter on the ground that such surety is an unfit person for the purpose of the bond:


Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an enquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate him.


(2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the surety and to the person by whom the surety was offered and shall, in making the inquiry, record the substance of the evidence adduced before him.


(3) If the Magistrate is satisfied, after considering the evidence so adduced either before him or before, a Magistrate deputed under sub-section (1), and the report of such Magistrate (if any), that the Surety is an unfit person for the purposes of’ the bond, he shall make an order refusing to accept or rejecting, as the case may be, Such surety and recording his reasons for so doing-,


Provided that before making all order rejecting an surety who has previously been, accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause the person for whom the surety is bound to appear or to be brought before him.

 


122. Imprisonment in default of security.

(1) (a) If any person ordered to give security under section 106 or section 117 does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case next hereinafter mentioned, be committed to prison or if he is already in prison, be detained in prison until such period expires or until within such period gives the security to the court or Magistrate who made the order requiring it.


(b) If any person after having executed a 1[bond without sureties] for keeping the peace in pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of such Magistrate or his successor-in-office, to have committed breach of the bond, such Magistrate or successor- in-office may after recording, the grounds of such proof, order that the person be arrested and detained in prison until the expiry of the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law.


(2) When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be before such court.


(3) Such court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, and after giving the concerned person a reasonable opportunity of being heard, may pass such order on the case as it thinks fit:


Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years.


(4) If security has been required in the course of the same proceeding, from two of more persons in respect of any one of whom the proceedings are referred to the Sessions Jude under Sub-section (2), such reference shall also include the case of any other of such persons who has been ordered to give security, and the provisions of subsections (2) and (3) shall in that event, apply to the case of such other person also except that the period (if any) for which he may be imprisoned, shall not exceed the period for which he was ordered to give security.


(5) A Sessions Judge may in his discretion transfer any proceeding, laid before him under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings.


(6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the matter to the court of Magistrate who made the order, and shall await the orders of such court or Magistrate.


(7) Imprisonment for failure to give security for keeping the peace shall be simple.


(8) Imprisonment for failure to give security for good behaviour shall, where the proceedings have been taken under section 108, be simple and, where the proceedings have been taken under section 109 or section 110, be rigorous or simple as the court or Magistrate in each case directs.


1. Subs. by Act 25 of 2005, sec.15, for “bond with out sureties”.

 


123. Power to release persons imprisoned for failing to give security.

(1) Whenever the District Magistrate in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case is of opinion that any person imprisoned for failing to give security under this Chapter may be released without hazard to the community or to any other person, he may order such person to be discharged.


(2) Whenever any person has been imprisoned for failing to give security under this Chapter, the High Court or Court of Session, or, where the order was made by any other court, the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case], may make an order reducing the amount of the security or the number of sureties or the time for which security has been required.


(3) An order under sub-section (1) may direct the discharge of such person either without conditions or upon any conditions which such person accepts:


Provided that any condition imposed shall cease to be operative when the period for which such person was ordered to give security has expired.


(4) The State Government may prescribe the conditions upon which a conditional discharge may be made.


(5) If any condition upon which any person has been discharged is, in the opinion of the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117 or Chief Judicial Magistrate in any other case] by whom the order of discharge was made or of his successor, not fulfilled, he may cancel the same.


(6) When a conditional order of discharge has been cancelled under sub-section (5), such person may be arrested by any police officer without warrant, and shall thereupon be produced before the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case].


(7) Unless such person gives security in accordance with the terms of the original order for the un-expired portion of the term for which he was in the first instance committed or ordered to be detained (such portion being deemed to be a period equal to the period between the date of the breach of the conditions of discharge and the date on which, except for such conditional discharge, he would have been entitled to release), the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] may remand such person to prison to undergo Such unexpired portion.


(8) A person remanded to prison under sub-section (7) shall, subject to the provisions of’ section 122, be released at any time on giving security in accordance with the terms of the original order for the unexpired portion aforesaid to the court or Magistrate by whom such order was made, or to its or his successor.


(9) The High Court or Court of Sessions may at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under this Chapter by any order made by it, and the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] may make such cancellation where such bond was executed under his order or under the order of any other court in his district.


(10) Any surety for the peaceable conduct or good behaviour of another person, ordered to execute a bond under this Chapter may at any time apply to the court making such order to cancel the bond and on such application being made, the court shall issue a summons or warrant, as it thinks fit, requiring the person for whom such surety is bound to appear or to be brought before it.


1. Subs. by Act 45 of 1978, sec 12. for “the Chief Judicial Magistrate” (w.e.f. 18-12-1978).

 


124. Security for unexpired period of bond.

(1) When a person for whose appearance a summons or warrant has been issued under the proviso to sub-section (3) of section 121 or under sub-section (10) of section 123, appears or is brought before the Magistrate or court, the Magistrate or court shall cancel the bond executed by such person and shall order such person to give, for the unexpired portion of the term of such bond, fresh security of the same person description as the original security.


(2) Every such order shall, for the purposes of sections 120 to 123 (both inclusive), be deemed to be an order made under section 106 or section 117, as the case may be.

 


125. Order for maintenance of wives, children and parents.

(1) If any person leaving sufficient means neglects or refuses to maintain-


(a) his wife, unable to maintain herself, or


(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or


(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or


(d) his father or mother, unable to maintain himself or herself,


A Magistrate of’ the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate1[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::


Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of’ sufficient means.


2[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:


Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person]


Explanation. For the purposes of this Chapter.


(a) minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority;


(b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.


3[(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]


(3) If any Person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s 4[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:


Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:


Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.


Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.


(4) No wife shall be entitled to receive an 4allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent.


(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.


1. The words “not exceeding five hundred rupees in the whole” omitted by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).


2. Ins. by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).


3. Subs. By Act 50 of 2001, sec 2, for sub-section (2) (w.e.f. 24-9-200).


4. Subs. By Act 50 of 2001, sec 2, for “allowance” (w.e.f. 24-9-200).


STATE AMENDMENTS


Madhya Pradesh:


In section 125, in sub-section (1), for the words “five hundred rupees” the words m’ “three thousand rupees” shall be substituted.


[Vide M.P. (Act 10 of 1998), sec. 3 (w.e.f. 29-54998)] [Ed. This amendment has been I made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 W (Central Act 50 of 2001) whereby the words “not exceeding five hundred rupees in the I whole” have been omitted by sec. 2 (w.e.f. 24-9-2001)].


Maharashtra:


In section 125,-


(a) in sub-section (1),-


(i) for the words “not exceeding five hundred rupees” the words “not I exceeding fifteen hundred rupees” shall be substituted;


(ii) before the existing proviso, the following proviso shall be inserted, namely:-


Provided that, the Magistrate on an application or submission being made, supported by an affidavit by the person who has applied for the maintenance under this sub-section, for payment of interim maintenance, on being satisfied that, there is a prima facie ground for making such order, may direct the person against whom the application for maintenance has been made, to pay a reasonable amount by way of interim maintenance to the applicant, pending the final disposal of the maintenance application:


Provided further that, such order for payment of interim maintenance may, in an appropriate case, also be made by the Magistrate ex parte, pending service of notice of the application, subject, however, to the condition that such an order shall be liable to be modified or even cancelled after the respondent is heard in the matter:


Provided also that, subject to the ceiling laid down under this sub-section, the amount of interim maintenance shall, as far as practicable, be not less than thirty per cent of the monthly income of the respondent.”;


(iii) in the existing proviso, for the words “Provided that” the words


“Provided also that” shall be substituted;


(b) after sub-section (2), the following sub-section shall be inserted, namely:-


(2A) Notwithstanding anything otherwise contained in sub-sections (1) and (2), where an application is made by the wife under clause (a) of sub-section (1) for the maintenance allowance, the applicant may also seek relief that the order may be made for the payment of maintenance allowance in lump-sum in lieu of the payment of monthly maintenance allowance, and the Magistrate may, after taking into consideration all the circumstances obtaining in the case including the factors like the age, physical condition, economic conditions and other liabilities and commitments of both the parties, pass an order that the respondent shall pay the maintenance allowance in lump-sum in lieu of the monthly maintenance allowance, covering a specified period, not exceeding five years at a time, or for such period which may exceed five years, as may be mutually agreed to, by the parties.”;


(c) in sub-section (3),-


(i) after the words “so ordered” the words, brackets, figures and letter “either under sub-section (1) or sub-section (2A), as the case may be,” shall be inserted;


(ii) after the words “each month’s allowance” the words “or, as the case may be, the lump-sum allowance to be paid in lieu of the monthly allowance” shall be inserted.


[Vide Maharashtra Act, 21 of 1999 sec. 2 (w.e.f. 20-4-1999)] [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) sec. 2 (w.e.f. 24-9-2001)].


Tripura:


In section 125, for the words “five hundred rupees” the words “one thousand five hundred rupees” shall be substituted.


[Vide Tripura Act, 9 of 1999 sec. 2 (w.e.f. 9-4-1999}] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words” not exceed of five hundred rupees in the whole” have been omitted by sec. 2 (w.e.f. 24-9-2001)].


STATE AMENDMENTS


West Bengal:


In Sub-section (1) –


For the words “five hundred rupees” the words “one thousand and five hundred rupees” shall be submitted.


(2) After the existing proviso, following proviso shall be inserted, namely.


“Provided further that where in any proceeding under this section it appears to the Magistrate that the wife referred o in clause (a) or the minor child referred to in clause (b) or the child (not being a married daughter) referred o in clause (c) or the father or the mother referred o in clause (d) is in need of immediate relief for her or its or his support and the necessary expenses of the proceeding, the Magistrate may, on the application of the wife or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, order the person against whom the allowance for maintenance is claimed, to pay to the petitioner, pending the conclusion of the proceeding the expenses of the proceeding, and monthly during the proceeding such allowance as having regard to the income of such person, it may seem to the Magistrate to be reasonable.


[Vide West Bengal Act 25 of 1992 (w.e.f. 2-8-1993)] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words “not exceed of five hundred rupees in the whole” have been omitted by sec. 2 (w.e.f, 24-9-2001)].


[Vide W.B. Act 25 of 1992 (w.e.f. 2-8-1993)

 


126. Procedure.

(1) Proceedings under section 125 may be taken against any person in any district-


(a) where he is, or


(b) where he or his wife resides, or


(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.


(2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:


Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.


(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.

 


127. Alteration in allowance.

1[(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.]


(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.


(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-


(a) the woman has, after the date of such divorce, remarried; cancel such order as from the date of her remarriage;


(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-


(i) In the case where such sum was paid before such order, from the date on which such order was made,


(ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;


(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to 2[maintenance or interim maintenance, as the case may be] after her divorce, cancel the order from the date thereof.


(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom 3[ monthly allowance for the maintenance and interim maintenance or any of them has been ordered] to be paid under section 125, the civil court shall take into account the sum which has been paid to, or recovered by, such person 4[as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order.


1. Subs. by Act 50 of 2001, sec. 3, for sub-section (1) (w.e.f. 24-9-2001).


2. Subs. by Act 50 of 2001, sec. 3, for “maintenance” (w.e.f. 24-9-2001).


3. Subs. by Act 50 of 2001, sec. 3, for ” monthly allowance has been ordered” (w.e.f. 24-9-2001).


4. Subs. by Act 50 of 2001, sec. 3, for “as monthly allowance in pursuance of” (w.e.f. 24-9-2001).


STATE AMENDMENT


Maharashtra: In section 127,-


(a) in sub-section (1), in the proviso, for the words ” five hundred rupees” the words “fifteen hundred rupees” shall be substituted;


(b) in sub-section (4),-


(i) for the words “monthly allowance”, where they occur for the first time, the words “maintenance allowance” shall be substituted;


(ii) after the words “monthly allowance”, where they occur for the second time the words “or, as the case may be, the lump-sum allowance” shall be inserted.


[Vide, Maharashtra Act 21 of 1999, sec. 3 (w.e.f.20-4-1999)] [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure ( Amendment) Act, 2001 (Central Act 50 of 2001) sec. 3 (w.e.f. 24-9-2001)].


Tripura: In section 127, in the proviso to sub-section (1), for the words “five hundred rupees”, the words ” one thousand five hundred rupees” shall be substituted.


[ Vide Tripura Act 9 of 1999, sec. 3 (w.e.f. 9-4-1999) ] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words ” not exceeding five hundred rupees in the whole” have been omitted by sec. 2 (w.e.f.24-9-2001)]


West Bengal:


In section 127, in the proviso to sub-section (1), for the words “five hundred rupees” the words “one thousand and five hundred rupees” shall be substituted.


[Vide West Bengal Act 14 of 1995, sec. 2 (w.e.f. 2-8-1995) ] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words ” not exceeding five hundred rupees in the whole” have been omitted by section 2 (w.e.f. 24-9-2001)].

 


128. Enforcement of order of maintenance.

A copy of the order of 1[maintenance or interim maintenance and expenses of proceeding, as the case may be,] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to his guardian, if any, or to the person to 2[whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the 3[allowance, or as the case may be, expenses, due].


1. Subs by Act 50 of 2001, sec. 4, for “maintenance” (w.e.f. 24-9-2001).

2. Subs by Act 50 of 2001, sec. 4, for ” whom the allowance” (w.e.f. 24-9-2001).

3. Subs by Act 50 of 2001, sec. 4, for “allowance due” (w.e.f. 24-9-2001).

 


129. Dispersal of assembly by use of civil force.

(1) Any Executive Magistrate or officer in charge of a police station or, in the absence of such officer in charge, any police officer, not below the rank of a sub-inspector, may, command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty, of the members of such assembly to disperse accordingly.


(2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law.

 


130. Use of armed forces to disperse assembly.

(1) If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.


(2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may, direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law.


(3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.

 


131. Power of certain armed force officers to disperse assembly.

When the public security is manifestly endangered by any such assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse such assembly with the help of the armed forces under his command, and may arrest and confine any persons forming part of it, in order to disperse such assembly or that they may be punished according to law, but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the Magistrate as to whether he shall or shall not continue such action.

 


132. Protection against prosecution for acts done under preceding sections.

(1) No prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 shall be instituted in any Criminal Court except-


(a) with the sanction of the Central Government where such person is an officer or member of the armed forces;


(b) with the sanction of the State Government in an other case.


(2) (a) no executive Magistrate or police officer acting under any of the said sections in good faith;


(b) no person doing any act in good faith in compliance with a requisition under section 129 or section 130;


(c) no officer of the armed forces acting under section 131 in good faith;


(d) no member of the armed forces doing any act in obedience to any order which he was bound to obey,


Shall be deemed to have thereby, committed an offence.


(3) In this section and in the preceding sections of this Chapter, –


(a) the expression “armed forces” means the military, naval and air forces, operating as land forces and includes any other Armed Forces of the Union so operating;


(b) “officer,” in relation to the armed forces, means a person commissioned, Gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer of’ the armed forces a non-commissioned officer and a non-Gazetted officer.


(c) “member” in relation to the armed forces, means a person in the armed forces other than an officer.

 


133. Conditional order for removal of nuisance.

(1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers —


(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel, which is or may be lawfully used by the public; or


(b) that the conduct of any trade or occupation or the keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such, goods or merchandise should be removed or the keeping thereof regulated; or


(c) that the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or


(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighborhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or


(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or


(f) that any dangerous animal should be destroyed, confined or otherwise disposed of,


Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within time to be fixed in the order-


(i) to remove such obstruction or nuisance; or


(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or


(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or


(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or


(v) to fence such tank, well or excavation; or


(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;


or, if he objects so to do, to appear before himself or some other Executive Magistrate Subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.


(2) No order duly made by a Magistrate under this section shall be called in question in any civil court.


Explanation. A “public place” includes also property belonging to the state, camping grounds and grounds left unoccupied for sanitary or recreative purposes.

 


134. Service or notification of order.

(1) The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons.


(2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rules, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such persons.

 


135. Person to whom order is addressed to obey or show cause.

The person against whom such order is made shall –


(a) perform within the time and in the manner specified in the order, the act directed thereby; or


(b) appear in accordance with such order and show cause against the same.

 


136. Consequences of his failing to do so.

If such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in section 188 of the Indian Penal Code (45 of 1860,) and the order shall be made absolute.

 


137. Procedure where existence of public right is denied.

(1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter.


(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court; and if he finds that there is no such evidence he shall proceed as laid down in section 138.


(3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.

 


138. Procedure where he appears to show cause.

(1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.


(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be with such modification.


(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

 


139. Power of Magistrate to direct local investigation, examination, and examination of an expert.

The Magistrate may, for the purposes of an inquiry under section 137 or 138-


(a) direct a local investigation to be made by such person as he thinks fit; or (b) summon and examine an expert.

 


140. Power of Magistrate to furnish written instructions, etc.

(1) Where the Magistrate directs a local investigation by any person under section 139, the Magistrate may-


(a) furnish such person with such written instruction as may seem necessary for his guidance;


(b) declare by whom the whole or any part of necessary expenses of the local investigation shall be paid.


(2) The report of such person may be read as evidence in the case.


(3) Where the Magistrate summons and examines an expert under section 139, the Magistrate may direct by whom the costs of such summoning and examination shall be paid.

 


141. Procedure on order being made absolute and consequences of disobedience.

(1) When an order has been made absolute under section 136 or section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860).


(2) If Such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate’s local jurisdiction and if such other property is without such jurisdiction, the order shall authorize its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.


(3) No suit shall lie in respect of anything done in good faith under this section.

 


142. Injunction pending inquiry.

(1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.


(2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to he used, such means as he thinks fit to obviate such danger or to prevent such injury.


(3) No suit shall he in respect of anything done in good faith by, a Magistrate under this section.

 


143. Magistrate may prohibit repetition or continuance of public nuisance.

A District Magistrate or sub-divisional Magistrate, or any other Executive Magistrate empowered by the State Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Indian Penal Code (45 of 1860), or any special or local law.

 


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

(1) In cases where, in the opinion of’ a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material fact of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.


(2) An order under this section may, in cases of’ emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex-parte.


(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.


(4) No order under this section shall remain in force for more than two months from the making thereof:


Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any, affray, it may by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the faid notification.


(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate Subordinate to him or by his predecessor-in-office.


(6) The State Government may either on its own motion or on the application of any person aggrieved, rescind or alter an order made by it under the proviso to sub-section (4).


(7) Where an application under subsection (5), or sub-section (6) is received, the Magistrate, or the State Government, as the case may be shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part he or it shall record in writing the reasons-for so doing.

 


144A. Power to prohibit carrying arms in procession or mass drill or mass training with arms.

1[144 A. Power to prohibit carrying arms in procession or mass drill or mass training with arms.-


(1) The District Magistrate may, whenever he considers it necessary so to do for the prevention of public peace or public safety or for the maintenance of public order, by public notice or by order, prohibit in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of, or taking part in, any mass drill or mass training with arms in any public place.


(2) A public notice issued or an order made under this section may be directed to a particular person or to persons belonging to any community, party or organisation.


(3) No public notice issued or an order made under this section shall remain in force for more than three months from the date on which it is issued or made.


(4) The State Government may, if it considers necessary so to do for the preservation of public peace or public safety or for the maintenance of public order; by notification, direct that a public issued or order made by the District Magistrate under this section shall remain in force for such further period not  exceeding six months from the date on which such public notice or order was issued or made by the District Magistrate would have, but for such direction, expired, as it may specify in the said notification.


(5) The State Government may, subject to such control and directions as it may deem fit to impose, by general or special order, delegate its powers under sub-section (4) to the District Magistrate.


Explanation. – The word “arms” shall have the meaning assigned to it in section 153AA of the Indian Penal Code (45 of 1860).]


CrPC (Amendment) Act, 2005 (Notes on Clauses)


Section 144 A enables the District Magistrate to prohibit mass drill or mass training with arms in public places. This section has been added to curb the militant activities of certain communal organisations and to strengthen the hands of State authorities for effectively checking communal tension and foster a sense of complete security in the minds of members of the public.


1. Ins. by Act 25 of 2005, sec. 16.

 


145. Procedure where dispute concerning land or water is likely to cause breach of peace.

(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.


(2) For the purposes of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.


(3) A copy of the order shall be served in the manner provided by the Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.


(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thinks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under subsection (1), in possession of the subject of dispute:


Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).


(5) Nothing in this section shall preclude any party so required to attend, or arty other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.


(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.


(b) the order made under this sub-section shall be served and published in the manner laid down in sub-section (3).


(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.


(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.


(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.


(10) Nothing in this section shall be deemed to be in derogation of the Magistrate to proceed under section 107.


STATE AMENDMENT


Maharashtra:


In section 145, –


(a) In subsection (1), for the words “whenever an Executive Magistrate” the words “Whenever in Greater Bombay, a Metropolitan Magistrate and elsewhere in the State, an Executive Magistrate” shall be substituted;


(a) for sub-section (10), the following sub-section shall be substituted, namely.


“(10) In the case of an Executive Magistrate taking action under this section nothing in this section shall be deemed to be in derogation of his power to proceed under Section 107. In the case of a Metropolitan Magistrate taking action under this section, if at any stage of the proceeding, he is of the opinion that the dispute calls for an action under Section 107, he shall after recording his reasons, forward the necessary information to the Executive Magistrate having jurisdiction, to enable him to proceed under that section.”


[Vide Maharashtra Act 1 of 1978, sec.2 (w.e.f 15-4-1978)].

 


146. Power to attach subject of dispute and to appoint receiver.

(1) If the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145 , or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:


Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any like hood of breach of the peace with regard to the subject of dispute.


(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any civil court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908):


Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any civil court, the Magistrate-


(a) Shall order the receiver appointed by him to hand over the possession of the subject of the dispute to the receiver appointed by the Civil court and shall thereafter discharge the receiver appointed by him;


(b) May make such other incidental or consequential orders as may be just.

 


147. Dispute concerning right of use of land or water.

(1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so certified and requiring the parties concerned in such disputes to attend his court in person or by pleader on a specified date and time and to put in written statements of their respective claims.


Explanation. The expression “land or water” has the meaning given to it in sub-section (2) of section 145


(2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and if possible decide whether such right exists: and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry.


(3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right:


Provided that no such order shall be made where the right is exercisable at all times of the year unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.


(4) When in any proceedings commenced under subsection (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right to user of land or water, he may after recording his reasons, continue with the proceedings as if they had been commenced under subsection (1);


And when in any proceedings commenced under subsection (1) the Magistrate finds that the dispute should be dealt with under section 145, he may after recording his reasons, continue with the proceedings as if they had been commenced under subsection (1) of section 145.


STATE AMENDMENT


Maharashtra:


In sub-section (1) of section 147, for the words “whenever an Executive Magistrate” the words “whenever in greater Bombay, a Metropolitan Magistrate and elsewhere in the state, as Executive Magistrate” shall be submitted.


[Vide Maharashtra Act 1 of 1978, sec.3 (w.e.f 15-4-1978)].

 


148. Local inquiry.

(1) Whenever a local inquiry is necessary for the purposes of section 145 section 146 or section 147, a District Magistrate or Sub-divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid.


(2) The report of the person so deputed may be read as evidence in the case.


(3) When any costs have been incurred by any party to a proceeding under section 145, section 146 or section 147, the Magistrate passing a decision may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding and whether in whole or in part or proportion and such costs may include any expenses incurred in respect of witnesses and of pleaders’ fees, which the Court may consider reasonable.

 


149. Police to prevent cognizable offences.

Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence.

 


150. Information of design to commit cognizable offences.

Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.

 


151. Arrest to prevent the commission of cognizable offences.

(1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.


(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorized under any other provisions of this Code or of any other law for the time being in force.


STATE AMENDMENT


Maharashtra:


In section 151 –


(a) In sub-section (2), after the words “required or authorised” the words “under sub-section (3) or” shall be inserted;


(b) After sub-section (2), the following sub-section shall be inserted, namely, –


“(3) (a) Where a person is arrested under this section and the officer making the arrest or the officer of the police station before whom the arrested person is produced, has reasonable grounds to believe that the detention of the arrested person for a period longer than twenty-four hours from the time of arrest (excluding the time required to take the arrested person from the place of arrest to the court of a Judicial Magistrate) is necessary by reason that-


(i) The person is likely to continue the design to commit, or is likely to commit, the cognizable offence referred to in sub-section referred to in sub-section (1) after his release; and


(ii) The circumstances of the case are such that his being at large is likely to be prejudicial to the maintenance of public order.


The officer making the arrest, or the officer in charge of the police station, shall produce such arrested person before the nearest Judicial Magistrate, together with a report in writing stating the reasons for the continued detention of such person for a period longer than twenty-four hours.


(b) Notwithstanding anything contained in this Code or any other law or the time being in force, where the Magistrate before whom such arrested person is produced is satisfied that there are reasonable grounds for the temporary detention of’ such person in custody beyond the period of twenty-four hours, he may from time to time, by order remand such person to such custody as he may think fit


Provided that, no person shall be detained under this section for a period exceeding fifteen days at a time, and for a total period exceeding thirty days from the date of arrest of such person.


(c) When any person is remanded to custody- under clause (b), the Magistrate shall, as soon as may be communicate to such person the grounds on which the order has been made and such person may, make a representation against the order to the Court of Session. The Sessions Judge may on receipt of such representation after holding such inquiry is he deems fit, either reject the representation, or if he considers that further detention of the arrested person is not necessary, or that it is otherwise proper and Just so to do, may vacate the order and the arrested person shall then be released forthwith.”


[Vide Maharashtra Act 7 of 1981 (w.e.f. 27-5-1980)].

 


152. Prevention of injury to public property.

A police officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal or injury of any public landmark or buoy or other mark used for navigation.

 


153. Inspection of weights and measures.

(1) Any officer in charge of a police station may, without a warrant, enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instruments for weighing, used or kept therein, whenever he has reason to believe that there are in such place any weights, measures or instruments for weighing which are false.


(2) If he finds in such place any weights, measures or instruments for weighing which are false, he may seize the same, and shall forthwith give information of such seizure to a Magistrate having jurisdiction.

 


154. Information in cognizable cases.

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.


(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.


(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.


1[“Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, 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, then such information shall be recorded, by a woman police officer or any woman officer:


Provided further that—


(a)     in the event that the person 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, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;


(b)     the recording of such information shall be videographed;


(c)     the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.”.]


——————————————————-


1. Inserted by Section 13 of ‘The Criminal Law (Amendment) Act, 2013″

 


155. Information as to non-cognizable cases and investigation of such cases.

(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate.


(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.


(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.


(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

 


156. Police officer’s power to investigate cognizable cases.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.


(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this section to investigate.


(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.

 


157. Procedure for investigations.

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may by general of special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary to take measures for the discovery and arrest of the offender:


Provided that-


(a) When information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the office in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;


(b) If it appears to the officer in charge of a police station that there is sufficient ground for entering on an investigation, he shall not investigate the case.


(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.

 


158. Report how submitted.

(1) Every report sent to a Magistrate under section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf.


(2) Such superior officer may give such instructions to the officer in charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.

 


159. Power to hold investigation or preliminary inquiry.

Such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into or otherwise to dispose of, the case in the manner provided in this Code.

 


160. Police Officer’s power to require attendance of witnesses.

(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:


Provided that no male person 1[“under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person”] shall be required to attend at any place other than the place in which such male person or woman resides.


(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.


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1. Inserted by Section 14 of ‘The Criminal Law (Amendment) Act, 2013″

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