Criminal Procedure Code at a Glance

How to take forward the procedure of criminal offences to be established either by complaint/application or taken up by the Government Machinery.

               Synopsis:

1.      Introduction

2.      An exception code, an exception’s within

3.      Historical Background

4.      Explicit Procedure Law

5.      Important Terminology

6.      Jurisdiction of Courts

7.      Trending Case Laws with respect to various laws

              

1.       Introduction

The Criminal Procedure Code OR CrPC, as it is popularly known as a comprehensive codified law that sustains the legal compactness in toto and thereby, immaculately organizes the very process of Criminal Litigation in India. The Code of 1973 is an Act No 2 of 1974 that holistically embodies all rules of conduction ranging from governing the constitution to providing a fool proof frame work to be reckoned with. The Code is a complete code within it and respect to the matters provided under it, So it is  deemed to be an exhaustive law. The Apex Court of India has pronounced in the case of Iqbal vs State of Maharashtra (1975)3 SCC 140).

“It is the procedure that spells much of the difference between the rule of Law and the rule of Whim and Caprice”.

The CrPC consists of 37 Chapters which contains 484 sections and 2 Schedules addition to the chapters. There are 56 types of Forms which are available and field for various purposes Bail, Anticipatory Bail, Seeking Adjournment, Surety Bonds, Cognizance of an offence by Metropolitan Magistrate etc. Till date, 44 amendments are there. So at present 528 section are there in Cr PC.

In other words, the Law of Criminal procedure is a law of actions with reference to the proceedings of the face of it. This major act encompasses the ways and means of administration of justice; so that the substantive law or the penal code be dealt with en bloc unto the last section within the purview of Cr PC.

2.       An exceptional code with exceptions within:

The Cr PC 1973 does not apply to J&K and certain parts of North East. It lays down the procedure for investigation, inquiry and trial of all offences that fall under IPC of 1860 and other Criminal Laws. The CrPC has broad spectrum and checks the exercise of despotic and draconian powers of arrests, summons, warrants and search or seizure. It also incorporates underlined prowess of criminal justice system equipped with investigators, prosecutors, Magistrates and Separate Trail courts for minor and heinous offences lock stock and barrel. It also exempts separate charge for distinct offence under sec 218-221 and 223.

                 Difference between Crime, Criminal offense, offense, Criminology              

Crime: A crime is an offence that merits community condemnation and punishment, usually by way of fine or imprisonment. This is different from a civil wrong (a tort), which is an action against an individual that requires compensation or restitution.

A criminal offense is a type of wrongdoing that we distinguish from a civil wrong. 

An offense may consist of a felony or a misdemeanor. The term is used to indicate a violation of public rights as opposed toprivate ones. For example, murder is an offense whereas libel is not.

Criminology

Criminology is an interdisciplinary science that gathers and analyzes data on crime and criminal behavior. As with all scientific disciplines, its goal is to understand the phenomena that it studies and to use that understanding for the benefit of humankind. In pursuit of this understanding, criminology asks questions such as the following:

◆ Why do crime rates vary from time to time and from culture to culture?

◆ Why are some individuals more prone to committing crime than others?

◆ Why do crime rates vary across different ages, genders, and racial/ethnic groups?

◆ Why are some harmful acts criminalized and not others?

◆ What can we do to prevent crime?

3.       Historical Background

 The enactment of existing code of criminal procedure traces back to the initial years of colonial rule of east India company. Although, there were no civil or criminal courts as such and civil as well as criminal justice under the rulers of the existent provinces, but with the conquest of Bengal, the English stream lined a system which was significantly all the more systematic and uniform. Beside, towards the end of the 18^th century, Lord Cornwallis brought about certain changes in the criminal justice system and thus Indian Judges gave way to their British Counterpart in criminal courts. Courts were established far and near in India as a consequence of the expansion of British Regime and the code of criminal procedure was hurriedly enacted for the experimental usage in 1861 for the very first time. It was primarily coded to rain the aboriginal revels and endowed the whites with utmost immunity from criminal jurisdiction and justice of the District Courts; only the High Courts Could try the British subjects living in India.

 In 1872 the biased version of CrPC empowering the British Magistrates to try the British accused came into being and no Indian Magistrate was allowed to take cognizance against any British subject  in India even for the crimes as heinous as murder or rape. But with the passage of time sense of justice prevailed upon the British landmark codification of Cr PC came to the fore in 1882 which empowered the Indian Magistrates to exercise jurisdiction over whites nut it was confined only to the presidency towns.  The next version of Cr PC was witnessed in 1898 providing uniformity of law of criminal procedure for whole of  India  regardless of one being a British or an Indian…it applied to all and sundry.  The last mentioned Code was amended several times, with major amendments in 1923 and 1955.The First Law Commission of independent india, set up in 1955, studied the old Code extensively, and made various recommendations and suggestions in its detailed report submitted in September 1969. These suggestions were incorporated in the Criminal Procedure Code, 1973, which came into force on 1st April 1974, and which has since been amended several times thereafter. This legacy of the British ensued till its reframing in 1973, yielding the extant code.

4.       Explicit Procedural Law

 The Cr PC instructs us how courts and officers of law act in giving effect to substantive law of the land. However quite interestingly the Cr PC is inclusive as well as being conclusive as certain provisions of the court which are of semi -substantive character such as prevention of offence and maintenance proceedings as laid down in Sections 107,110,116,151 and 125 respectively  amongst others in the Code. It is, therefore, dejure and defacto codified law with all essential features to do away with every possible legal bedlam.

               Important Legal Terminology

                     Offence:

Section 2(n) of the CrPC defines the word “offence” to mean any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle-trespass Act, 1871. However, the term is more elaborately defined under Section 40 of the IPC which states that “offence” denotes a thing made punishable by the Code. Section 39 of the CrPC imposes a duty on every person who is aware of the commission of or of intention to commit an offence, to give information of certain offences which are specified in Clause (i) to (xii) of sub-Section (1). An offence is what the legislature classes as punishable. Mens Rea a bad intention or guilt is an essential ingredient in every offence.

A.      Bailable Offence and Non-bailable Offence

A “bailable offence” means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force. “Non-bailable” offence means any other offence. [Section 2(a)]

B.      Cognizable Offence and Non-cognizable Offence

“Cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.

“Non-cognizable offence” means an offence for which, and “non-cognizable” case means a case in which, a police officer has no authority to arrest without warrant. Thus, a non-cognizable offence needs special authority to arrest by the police officer. [Section 2(c) and 2(l)]

In order to be a cognizable case under Section 2(c) of the Code, it would be enough if one or more (not ordinarily all) of the offences are cognizable.

(Note: It may be observed from the First Schedule that non-cognizable offences are usually bailable while cognizable offences are generally non-bailable).

C.      Complaint

“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but it does not include a police report. [Section 2(d)]

However, a report made by the police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer making the report as a complainant. In general a complaint into an offence can be filed by any person except in cases of offences relating to marriage, defamation and offences mentioned under Sections 195 and 197. A complaint in a criminal case is what a plaint is in a civil case. The requisites of a complaint are:

·                     an oral or a written allegation;

·                     some person known or unknown has committed an offence;

·                     it must be made to a magistrate; and

·                     it must be made with the object that he should take action.

There is no particular format of a complaint. A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprit be suitably dealt with is a complaint. (Mohd. Yousuf v. Afaq Jahan, AIR 2006 SC 705)

Police report is expressly excluded from the definition of complaint but the explanation to Section 2(d) makes it clear that such report shall be deemed to be a complaint where after investigation it discloses commission of a non-cognizable offence. Police report means a report forwarded by a police officer to a Magistrate under Subsection (2) of Section 173.

D.      Bail

It means the release of the accused from the custody of the officers of law and entrusting him to the private custody of persons who are sureties to produce the accused to answer the charge at the stipulated time or date.

An “anticipatory bail” is granted by the High Court or a Court of Session, to a person who apprehends arrest for having committed a non-bailable offence, but has not yet been arrested (Section 438). An opportunity of hearing must be given to the opposite party before granting anticipatory bail (State of Assam v. R.K. Krishna Kumar AIR 1998 SC 144).

E.        Inquiry

It means every inquiry other than a trial, conducted under this Code by a Magistrate or Court. [Section 2(g)]. It carries the following three features:

·                     the inquiry is different from a trial in criminal matters;

·                     inquiry is wider than trial;

·                     it stops when trial begins.

F.       Investigation

It includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. [Section 2(h)]

The three terms – ‘investigation’, ‘inquiry’ and ‘trial’ denote three different stages of a criminal case. The first stage is reached when a police officer either on his own or under orders of a Magistrate investigates into a case (Section 202). If he finds that no offence has been committed, he submits his report to the Magistrate who drops the proceedings. But if he is of different opinion, he sends that case to a Magistrate and then begins the second stage – a trial or an inquiry. The Magistrate may deal with the case himself and either convict the accused or discharge or acquit him. In serious offences the trial is before the Session’s Court, which may either discharge or convict or acquit the accused. (Chapter XVIII)

G.      Judicial Proceeding

It includes any proceeding in the course of which evidence is or may be legally taken on oath. The term judicial proceeding includes inquiry and trial but not investigation. [Section 2(i)]

H.      Pleader

With reference to any proceedings in any Court, it means a person authorised by or under any law for the time being in force, to practise in such Court and includes any other person appointed with the permission of the Court to act in such proceeding. [Section 2(q)] It is an inclusive definition and a non-legal person appointed with the permission of the Court will also be included.

I.        Public Prosecutor

A “public prosecutor” means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor. [Section 2(u)]

Public prosecutor, though an executive officer is, in a larger sense, also an officer of the Court and he is bound to assist the Court with his fair views and fair exercise of his functions.

J.        Summons and Warrant Cases

“Summons case” means a case relating to an offence and not being a warrant case. [Section 2(w)] A “Warrant case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. [Section 2(x)]

Those cases which are punishable with imprisonment for two years or less are summons cases, the rest are all warrant cases. Thus, the division is based on punishment which can be awarded. The procedure for the trial of summons cases is provided by Chapter XX and for warrant cases by Chapter XIX.

5.      Jurisdiction of Courts

Jurisdiction of the courts is laid down under sec 177 which states that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed.  Section 2 determines the place under Crpc. Crimes are in their nature local and jurisdiction of Criminal Courts in Local. There are many facts that constitutes venue of inquiry. There are following sections:

To ensure that justice is served to the one whose right has been infringed, the Constitution of India gave the judiciary system. To ensure that the judiciary is working in an efficient manner, various courts having different powers were established. Code of Criminal Procedure, 1973 (hereinafter referred as CrPC) under Section 6, directs that beside High Courts in every state the following criminal courts will be established:

1. Courts of Session
2. Metropolitan Magistrate in any Metropolitan area
3. Judicial Magistrate of the first class in areas other than Metropolitan area
4. Executive Magistrate

Court of Session

Establishment

As per Section 7 of CrPC, every state will have session division and the number of such division will be decided by State Government after consulting the High Court. Section 9 of CrPC, states that the State Government will have to establish a Court of Session for every session’s division which shall be presided by a Judge and he will be appointed by the High Court. Further, the High Court can also appoint Additional Session Judge and Assistant Session Judge.

Triable offence

As per Section 26, a Court of Session can try any offence given under IPC or any other offence which has shown to be triable by the Court of Session in the First Schedule.

Subordination

The Assistant or Additional Session Judge appointed by the High Court will be subordinate to their respective Sessions Judge who will distribute the work among them. Session Judge can make rules with respect to the additional and assistant judges but they must be consistent with the Code. [Section 9]

 Punishment

A Sessions Judge and Additional Sessions Judge can pass any sentence that is authorised by law but, in case of death sentence confirmation of High Court is required. An Assistant Sessions Judge can pass any sentence excluding sentence of death or imprisonment for life or for a term exceeding ten years. [Section 28]

Court of Metropolitan Magistrate

Establishment

Areas having population more than one million and notified by the State Government are Metropolitan areas. The area of Mumbai, Kolkata, Chennai and Ahmedabad are the areas that are mentioned in the Code as Metropolitan Areas. [Section 8]

As per Section 16, the State Government after consulting the High Court will establish as many courts of Metropolitan Magistrates as it may deem fit in the Metropolitan Area. The High Court will appoint the presiding officer and the jurisdiction of the officer will extend throughout the metropolitan area.

Under Section 17, High Court will appoint a Metropolitan Magistrate as Chief Metropolitan Magistrate (CMM) for a particular area. High Court can also appoint any Metropolitan Magistrate as Additional Chief Metropolitan Magistrate.

 Subordination

The CMM and every Additional CMM will be subordinate to the Sessions Judge. Every other Metropolitan Magistrate will be subordinate to CMM and the extent of the subordination will be defined by the High Court. Further, the CMM can make rules consistent with the Code and can also distribute the work among the Metropolitan Magistrate. [Section 19].

Triable Cases

As per Section 26, Court of Metropolitan Magistrate can try offence which has shown to be triable by the Court of Metropolitan Magistrate in the First Schedule.

Punishment

CMM may pass any sentence authorised by the law except a sentence of death or of imprisonment for life or a term exceeding seven years whereas a Metropolitan Magistrate can pass a sentence for a term not exceeding three years or fine not exceeding five thousand rupees or both. [Section 29]

Court of Judicial Magistrate

Establishment

As per Section 7, each division is divided into districts and the State Government in every district after consultation with the High Court will establish as many Courts of Judicial Magistrates of First Class and Second Class as it may deem fit. The presiding officer of such Courts shall be appointed by the High Court. [Section 11]

In every district a Judicial Magistrate of First Class (JMFC) will be appointed as a Chief Judicial Magistrate (CJM) under Section 12 of CrPC. The High Court can also appoint any JMFC to be an Additional CJM.

A CJM, subject to the control of High Court, can define the local limit of the areas within which the Magistrates appointed under Section 11 or Section 13 can exercise their powers. [Section 14]

Subordination

As per Section 15, a CJM will be subordinate to the Sessions Judge and the other Judicial Magistrate will be subordinate to CJM, subject to general control of Sessions Judge. Also, the CJM can make rules consistent with this Code and can distribute the work among the Judicial Magistrate subordinate to him.

Triable Cases

As per Section 26, Court of Judicial Magistrate can try offence which has shown to be triable by the Court of Judicial Magistrate in the First Schedule.

Punishment
CJM may pass any sentence authorised by law except a sentence of death or of imprisonment for life or a term exceeding seven years whereas a JMFC can pass a sentence for a term not exceeding three years or fine not exceeding five thousand rupees or both. Judicial Magistrate of Second Class can pass a sentence of imprisonment wherein the term will not be exceeding one year and in terms of fine, the amount will not exceed one thousand rupees, or of both. [Section 29]

Court of Executive Magistrate

Establishment

Under Section 20, the State Government in every district and in every metropolitan area will appoint as many Executive Magistrates as it thinks fit and shall appoint one of them as District Magistrate (DM). The State Government can also appoint any Executive Magistrate as an Additional District Magistrate (ADM) who will have same power as that of a DM.

The DM subject to the control of State Government will define the local limits in which the Executive Magistrate can exercise their power. 

Subordination

Every Executive Magistrate other than ADM will be subordinate to the DM and every Executive Magistrate exercising power in a Sub-division shall also be subordinate to the Sub-Divisional Magistrate, subject to the general control of DM. [Section 23]

Triable Cases

As per Section 3(4)(b), the matters which are administrative or executive in nature will be exercisable by an Executive Magistrate.

Order

The order that can be passed by an Executive Magistrate will be either administrative or executive in nature and hence it will depend on the facts and circumstances of the case.

6.         IMPORTANT PROVISION WITH DETAILED CASE LAWS

Chapter XXXIX (Section 372 – 394 of Cr.PC) deals with Appeals.

A right of Appeal is not a natural or inherent right. It is a statutory right and must be governed by the statute which grants it.

SECTION 372 provides, no appeal lies except otherwise provided by the Code or by any other law for the time being in force. Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present an appeal to the Supreme Court against the order of acquittal passed by the High Court.

SECTION 373 – APPLIES TO APPEALS FROM 

1.    Orders requiring security for keeping peace or good behavior and

2.    Against order refusing to accept or rejecting to accept or rejecting a surety under s. 121. 

The appeal lies to Court of Session, except, of course, in cases where under sub-s. (2) Or (4) of S. 122, the proceedings are already laid before the Session Judge.

                SECTION 374: APPEALS FROM CONVICTIONS 

·         Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

·         Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years [has been passed against him or against any other person convicted at the same trial]; may appeal to the High Court

·         Save as otherwise provided in sub-section (2), any person,

o    convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class,

o    sentenced under section 325, or

o    in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.

While disposing of appeals from the sentences of the Sessions Court under this Section, the High Court should specify the reasons for rejection of appeal and should not reject it summarily. This will enable the Supreme Court to know the view of the High Court, in case the appellant moves the Supreme Court in appeal. For computing the sentence of imprisonment for seven years for the purpose of ascertaining the appellate forum under Section 374 (2), the sentence in default of payment of a fine is not to be added to the substantive sentence of imprisonment.

An appeal from an order of acquittal must be filed within the period of limitation prescribed by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period of limitation, and for exclusion of time in computing the period of limitation, Sections 5 and 12 of the Limitation Act, 1963 would be useful.

NO RIGHT OF APPEAL

Section 375 and 376 bar appeals in certain cases, though a provision of Revision is maintainable. Thus no appeal shall lie-

·         Where a High Court passes a sentence of imprisonment not exceeding six months or fine not exceeding one thousand rupees or both;

• Where a Court of Session or a Metropolitan Magistrate passes a sentence of imprisonment not exceeding three months or fine not exceeding two hundred rupees or both;
• Where a Magistrate of the First Class passes a sentence of fine not exceeding one hundred rupees; or
• Where in a summary case, a Magistrate passes a sentence of fine not exceeding two hundred rupees.

APPEAL FOR ENHANCEMENT OF SENTENCE

Section 377 confers right on the Government to file an appeal against the inadequacy of sentence awarded by any court other than a High court. If the sentence appears to be manifestly inadequate resulting in failure of justice, the appellate court can interfere with it and can enhance the sentence. But at the same time, the high court can also exercise its revisional jurisdiction, suo motto call for the record and enhance the sentence in appropriate cases after giving an opportunity to the accused.[4]The appellate court must pass a speaking order for enhancing the sentence. A bold statement that the ends of justice demanded enhancement of sentence was held insufficient by courts.

An appeal under Section 377 must be filed by the State within a period of 60 days and the contention of the State that it was under a mistaken belief that period of limitation is ninety days would be no excuse for condonation of the delay.

APPEAL IN CASE OF ACQUITTAL

Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present an appeal to the Supreme Court against the order of acquittal passed by the High Court.

An appeal from an order of acquittal must be filed within the period of limitation prescribed by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period of limitation, and for exclusion of time in computing the period of limitation, Sections 5 and 12 of the Limitation Act, 1963 would be useful.

Appeal against an order of acquittal is an extraordinary remedy. In exercising this power the High Court should give proper weight and consideration to “Very substantial and compelling reasons. 

“Very substantial and compelling reasons” exist when:

• The trial court’s conclusion with regard to the facts is palpably wrong;
• The trial court’s decision was based on an incorrect view of law;
• The trial court’s judgment is likely to result in “grave miscarriage of justice”;
• The entire approach of the trial court in dealing with the evidence was patently illegal;
• The trial court’s judgment was manifestly unjust and unreasonable;
• The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.
• This list is intended to be illustrative, not exhaustive.

The Appellate Court must always give proper weight and consideration to the findings of the trial court. If two reasonable views can be reached – one that leads to acquittal, the other to conviction – the High Court’s/appellate courts must rule in favour of the accused.

POWERS OF APPELLATE COURT IN APPEAL AGAINST ACQUITTAL

In Chandrappa & Others v. State of Karnataka, Supreme Court held:

1. An appellate court has full power to review, re-appreciate and reconsiders the evidence upon which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
3. Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseology are more in the nature of “flourishes of language” to emphasize reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

SECTION 379 – APPEAL AGAINST CONVICTION BY HIGH COURT IN CERTAIN CASES

Where the High Court has, on appeal, reversed an order of acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more, he may appeal to the Supreme Court.

An appeal to would lie to the Supreme Court as a matter of right when High Court, on appeal,

1. Reversed an order of Acquittal of an accused person and
2. Convicted and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more.

In other cases appeal can be filed, if the High Court certifies that the case is a fit one for appeal to the Supreme Court. Only grave injustice manifest on record can induce the Supreme Court to interfere with the concurrent finding of guilt of Courts below. The Court would be slow in reversing the finding entered by the High Court unless there is a perverse and erroneous appreciation of evidence. If the High Court, for acquitting the accused has given certain tenable reasons, the Supreme Court would not be justified in interfering with such acquittal. The word “acquittal” doesn’t mean that the trial must have ended in a complete acquittal but would also include the case where an accused has been acquitted of the charge of murder and has been convicted of a lesser offense.

SECTION 380- SPECIAL RIGHT OF APPEAL IN CERTAIN CASES

Notwithstanding anything contained in this Chapter, when more persons than one are convicted in one trial, and an appealable judgment or order has been passed in respect of any of such person, all or any of the persons convicted at such trial shall have a right of appeal.

Form of Appeal -SECTION 382 – Petition of appeal.

Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against. A copy of the judgment or order means a certified copy. The court has, however, discretion to dispense with the copy of the judgment.

SECTION 383 – APPEAL FROM JAIL

Where a convict is in jail and intends to challenge his conviction, he can file an appeal from jail by presenting it to the officer in charge of the jail. It is the duty of the jail officer to forward such appeal to an appropriate court.  No Jail Appeal can be dismissed without affording the reasonable opportunity to the appellate court of being heard.

 SECTION 384 – Summary Dismissal of Appeal or  Dismissal in Limine

·      If upon examining the petition of appeal and copy of the judgment received under section 382 or section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily.

·      DISMISSAL IN LIMINE (U/S 384)

      The Appellate court’s power to dismiss an appeal must be exercised sparingly and with great circumspection. The Apex court has dealt with cases where the summary dismissal of criminal appeal is permissible. Even if the records of the case is destroyed or is not available, it would justify acquittal. Bolin v. Jagdish (2005) AIR 2005 SC 1872; State v. Abhai Roy (2004)4 SCC 6

      SECTION 385 – Procedure for hearing of the appeal which has been admitted and not dismissed summarily under Section 384

The section lays down the procedure for hearing of the appeal which has been admitted and not dismissed summarily under Section 384.

An order of the High Court setting aside the acquittal of the accused in appeal without notice having been sent to the accused was held to be illegal. The accused must be heard and his appearance must be ensured while disposing of the appeal.

Where the appeal is not dismissed summarily under Section 384, the Appellate Court is bound to call for the record if such record has not already been sent by the Court and then give a hearing to the parties However, the Court may dispose of the appeal even without asking for the record where the appeal is only as to the legality of the sentence.

POWERS OF APPELLATE COURT

SECTION 386 Of the Code specifies powers of the appellate court. It provides that after persuing the record and after hearing the parties, the court may dismiss the appeal, allow the appeal or pass any other order that may appear to it be just and proper.

It includes appeal –

·   Against Acquittal

·   Against conviction

·   For enhancement of sentence

·   From other orders

Clause (d) of section 386 applies to all orders other than that of conviction, or of acquittal, or for enhancement of sentence. The power which the appellate court possess is of alteration or reversal of the order of the lower court. According to Section 386(e) of the Code, the appellate Court may make any amendment or any consequential or incidental order that may be just or proper.

Trending Case Laws with respect to various laws

1.      Right To Privacy Is A Fundamental Right

Settling the decades long debate on the issue of the right to privacy being a fundamental right, the Supreme Court held that right to privacy is protected under Article 21 of the Constitution of India. In a unanimous decision nine judges bench overruled the decision of the cases Kharak Singh and MP Sharma.

A.   Right to privacy is protected as intrinsic part of right to life and liberty.

B.    All decisions subsequent to Kharak Singh makes the position clear and will hold the field.

2.        Triple Talaq Unconstitutional In a landmark decision, 

Supreme Court of India declared the practice of Triple Talaq as unconstitutional by a 3:2 majority.  While Justices Nariman and Lalit held that instant Triple Talaq is unconstitutional and violation of Article 14(Right to Equality).

3.       Placing Ordinance Before Legislature Mandatory; Re-Promulgation Fraud On The Constitution

A seven Judge Constitution Bench of the Supreme Court in Krishna Kumar Singh v. State of Bihar held that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes. The court also held that the satisfaction of the President under article 123 and the Governor under Article 213 while issuing ordinance is not immune from judicial review.

Further, Chief Justice of India T.S. Thakur, in his separate concurring opinion, observed, “I would, in that view, leave the question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the ordinance before the parliament and legislature open.”

4.       Sex With Minor Wife Is Rape

A two Judge Bench of Supreme Court held that sexual intercourse with minor (below 18 years) wife is rape. Justice Deepak Gupta in his Judgment Clarified that Section 198(6) of the CrPC will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code. To this end, the Court read down exception 2 to Section 375 (which defines rape) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013) which allowed such a sexual act. The age of consent has been made 18 from 15 in these cases.

5.       Death for Nirbhaya convicts

Supreme Court of India upheld the death penalty of convicts in Nirbhaya rape and death case.  In a voluminous judgment (430 pages), the bench opined that the attitude of the offenders amounted to “beastial proclivity” and that the incident “sounds like a  story from a different world where humanity is treated with irreverence”. The three-Judge Bench comprising Justice Dipak Misra, Justice R. Banumathi and Justice Ashok Bhushan then dismissed the Appeals filed by t filed by the convicts, confirming the capital punishment awarded to them by the Trial Court.

6.       Guidelines To Reduce Road Accident Deaths

The Supreme Court issued guidelines to reduce the number of deaths that occur as a result of road accidents. The Bench comprising Justice M.B. Lokur and Justice Deepak Gupta noted that the number of deaths due to road accidents in the country is said to be over 100,000 in a year, which translates to about one death every three minutes. It further noted that the compensation awarded for deaths and other motor accident claims runs into hundreds of crores of rupees. It then considered the suggestions put forth by all parties and issued the directives.

7.       Uphaar Tragedy: Ansal Sentenced

The Supreme Court sentenced Uphaar cinema co-owner 69-year-old Gopal Ansal to one year imprisonment in the 1997 Uphaar cinema tragedy which killed 59 cine-goers. The Bench, however, kept intact the earlier order that his brother Sushil Ansal’s punishment will be awarded the five months jail term which he already underwent. Sending Gopal Ansal to jail, the Court opined that the fine of Rs. 30 crore was not sufficient in view of the irreparable loss of lives. It then ruled that the gravity of the offence and the illegal means employed by him to make gains called for an enhancement of the punishment.

8.       Directives To Prevent Misuse of Section 498A of IPC

The Supreme Court issued new set of directions to prevent the misuse of Section 498A of Indian Penal Code. A two Judge Bench of Justices AK Goel and UU Lalit observed that Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman.

“It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women.To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose,” it had then observed”.

9.       Cheque Bouncing Cases Can Be Closed  if complainant is compensated

The Supreme Court clarified that an accused in a case under Section 138 of Negotiable Instruments Act can be discharged even without the consent of the complainant, if the Court is if the Court is satisfied that the complainant has been duly compensated.  It was also held that the normal role of criminal law that composition of offence is possible only with the consent of complainant/victim is not applicable for cases under Se under Sec.138 of NI Act.  This was because the offence under Section 138 was ‘primarily a civil wrong’.  Therefore, the power under Section 258 of the Code of Criminal Procedure to stop trial and discharge the accused was available to the Magistrate

even though the summary trial under Chapter XXI of CrPC.

10.   Woman’s Right To Love And Reject

A three Judge Bench of  Justices Dipak Misra, A.M. Khanwilkar and Mohan M. Shantanagoudar while considering an appeal filed by Accused against his conviction for abetment to suicide of a girl because of his continuous harassment and eve teasing held that

One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject”

11.   SIT For Manipur Extra Judicial Killings In a landmark Judgment

 a two Judge Bench of Justices Madan B Lokur and Deepak Gupta directed the CBI to constitute a Special Investigation Team and to investigate the alleged extra judicial killings in Manipur.

we are of opinion that it would be appropriate if the Central Bureau of Investigation (or the CBI) is required to look into these fake encounters or use of excessive or retaliatory force. Accordingly, the Director of the CBI is directed to to nominate a group of five officers to go through the records of the cases mentioned in the three tables given above, lodge necessary FIRs and to complete the investigations into the same by 31st December, 2017 and prepare charge sheets, wherever necessary The entire groundwork has already been done either by the Commissions of Inquiry or by a Judicial Inquiry or by the Gauhati or Manipur High Court or by the NHRC. We leave it to the Special Investigating Team to utilize the material already gathered, in accordance of Law.

12.   Accused Is Entitled To Default Bail After 60 Days For Offences Punishable With ‘Imprisonment Up To 10 Yrs.

Settling the conflicting views of various High Courts, the Supreme Court in a 2:1 majority held that an accused is entitled to statutory bail (default bail) under Section 167(2)(a)(2) of Code of Criminal procedure if the police failed to file the charge-sheet within 60 days of his arrest for the offence punishable with ‘imprisonment up to 10 years’.

So here are some important judgements through which Indian judiciary has played an important role. These judgements has made some changes to Cr PC  recently in past years.

13.   Compoundable and Non-Compoundable Criminal Offenses: Sec 320 od Cr PC 1973 will give a vivid picture on such important issues.

14.   Summary Trial: Sec 260 to sec 265 of Cr PC 1973 deals with issues relating to Summary Trial.

By Utkarsh Vatsa and Prashant Pundhir, Faculty of Law, Global College of Law, Ghaziabad UP 201016

          References:

S.N.misra

Bare Act

Wikipidiea

Article times of india

Live law

The hindu

SSC

Law handbook