CHAPTER - 4

PROCEDURAL RIGHTS OF THE ACCUSED

1. Introduction: Social responsibility demands the prosecution of the

accused but at the same time, there is an equally important counter
responsibility to treat him fairly and lawfully conduct his case in the court of
law. The procedural laws, as it is said, also include substantive rights which
cannot be violated by anybody including the courts.

2. Rights against arbitrary arrest : Sections 41 to 60 of Cr.P.C. here-

after referred to as code have been devoted entirely to the subject matter of
arrest of persons. At considerable length this aspect is dealt with under the
preceding chapter. Hence, a detailed discussion:

2.1 Right to be informed : To enjoy a good reputation is an important

personal right. The dignity of a person has to be protected. Lodging of FIR
and arrival of police for arrest of a person, on a false or frivolous FIR or
complaint, does result in great damage to a person’s reputation and self
respect. We must remember that arrest is not a must in every case.
Therefore, there must be sufficient reasons for exercise of power of arrest
(Ram Prapanna Vs. State of Uttar Pradesh)1.

2.2 Right to private defence : The Supreme Court in State of Uttar

Pradesh Vs. Niyamat2. Case decided that every person has a right to private
defence against the power of the police to arrest without warrant.

1
2007 Cri. LJ (NOC) 439 (All))
2
AIR 1987 SC 1652 : 1987 Cri. LJ 1881

63
2.3 Right to be produced before jurisdiction Magistrate : If a person
is arrested he should be produced before a Magistrate having jurisdiction
over the place of occurrence. Thougth the arrest may be justified, it is
declared in Kuru Rajaiah @ K. Rajanna Vs. Govt. of A.P.3, case that the
police cannot arrest a person from the place of occurrence and take him to
altogether a different place which has no jurisdiction over the place of
occurrence because it is a violation of Section 56 of the code. Another
safeguard under Section 57 of the Code, Says that a person arrested cannot
be detained beyond twenty four hours, that is to say that an arrested person
should be produced before the jurisdictional Magistrate before twenty four
hours of his arrest.

2.4 Safeguard respecting warrant : A warrant for arrest must be issued

by an officer superior in rank to the officer in charge of the police station
who under Section 36 of the Code exercises same powers throughout the
local area to which he is appointed.

2.5 Right respecting torture : The Supreme Court in Shakila Abdul

Gafar Khan Vs. Vasant Raghunath Dhoble4, case held that Section 54 of
the code provides a right to an arrested person to bring to the notice of the
Court, if he is subjected to any torture. It is the right of the accused, if he so
desires, to be examined by a medical practitioner and it is the duty of the
court to inform him of this right. (Sheela Barse Vs. State of M.H.)5.

3
2007 Cri. LJ 2031 (AP)
4
AIR 2003 SC 4567 : 2003 Cri. LJ 4548
5
AIR 1983 SC 378 : 1983 Cri. LJ 642

64
2.6 Right of female detainee : While arresting a female, the arresting
officer should take extra precaution. A female cannot be searched except by
a female (State of Punjab Vs. Baldev Singh)6.
According to the Section 46 of the code no woman shall be arrested,
save in exceptional cases after sunset, and before sunrise. Sub section (4) of
this provision requires that even in exceptional cases, the woman officer has
to obtain prior permission of the first class jurisdictional Magistrate.

2.7 Right against arbitrary restraint : Keeping in mind that personal

liberty is precious and a constitutional right, Section 49 of the code mandates
that the officer arresting a person cannot subject him to greater restraint than
what is necessary. This should be done only for preventing such person from
escaping.

2.8 Magistrate’s power to arrest : Section 44 of the code vests power in

an Executive or Judicial Magistrate to arrest a person. But he can do so if an
offence is committed in his presence and not otherwise (Din Dayal Vs.
Emperor)7.

2.9 Arrest by private person : Arrest by a private person is also possible

under section 43 Code provided the committed offence is non bailable or
cognizable. Here a twofold restriction is placed on the power of a private
person to arrest : firstly if is confined to the time of commission of the
offence and secondly, he should exercise his power at least immediately

6
AIR 1999 SC 2378 : 1999 Cri. LJ 3672
7
AIR 1920 Pat 516 : 21 Cri. LJ 795

65
after commission or pursuit, because his power ceases thereafter
(Kolavennu Venkayya, in re)8 .

2.10 Protection against causing death : When an arrest is imminent, and

if circumstances warrant the police can lawfully effect the same. Law also
permits the authorities to apply necessary means to arrest a person.

2.11 DNA Test : Section 53 (2) of the Code has been substituted by an
amendment of Act 25 of 2005, in which an arrested person can be subjected
to DNA test by obtaining his blood stains, finger nail clipping, hair etc, from
him. Though this would not violate the fundamental rights of the person
arrested under Article 20 and 21 of the Constitution, there should be a
balance between the public interest and the rights of the accused under the
said articles.

2.12 Blood test : The Apex Court in Goutam Kundu Vs. State9, case has
issued certain guidelines with regard to blood test. The guidelines are given
below :
(1) The court cannot order blood test routinely.
(2) If an application seeking blood test is made with an object of having a
roving enquiry, the court should reject the same.
(3) There should be a strong Prima Facie case.
(4) The Court should examine the consequence of granting given prayer,
carefully.

8
AIR 1956 AP 156
9
AIR 1993 SC 2259

66
(5) The Supreme Court in Haribhat Chanabhai Vs. Keshubai haribhai
Vora10, case held that “ No one can be compelled to submit himself
to DNA test or give blood Sample.”

2.13 Arrest by subordinate officer : Arrest of a person by subordinate

officer without warrant is possible under section 55 of the code. But an order
must emanate from the officer who deputes another officer for arrest and this
order should specify the person to be arrested and the reason for such arrest.
However the person who is going to be arrested by a sub ordinate officer has
the following rights. (1) He has a right to know the sum and substance of
such an order. (2) He has a right to see the order (Bir Bhandra Pratap
Singh Vs. District Magistrate)11.

2.14 Right to be discharged : An arrested person has right to be

discharged. Section 59 of the Code explains the circumstances under which
an arrested person is entitled to be released or discharged. These are :
(1) On his own bond
(2) On bail
(3) By an order of the Magistrate
These remedies are available to an arrested person as a matter of right
excepting the third one which is available under Section 167 of the Code.

3. Summons : Summons is a process issued by court requiring a person to

appear before it in a cause of action (Black’s Law Dictionary 8th Edn.). It is
derived from the Latin word Summoner which simply means a notice to

10
AIR 2005 Guj 157
11
AIR 1959 All 384 : 1959 Cri. LJ 685

67
appear or a call to surrender. It would be in Form 1 of the Second Scheduled
to the Code.
Format of summons
SUMMONS TO AN ACCUSED PERSON
( Section 61)
To (Name of accused) of (address).
Whereas your attendance is necessary to answer to a charge of (state
shortly the offence charged). You are hereby required to appear in person (or
by pleader, as the case may be) before the (Magistrate) of ………………on
the ……………….. day of …………………herein fail
not…………………..
Dated this ………………… day of ………………………..2017
(seal of the court) (Signature)

3.1 Requirements of a valid summons : Section 61 of the Code is

relevant here and it reads thus:
Section 61- Form of summons - Every summons issued by a court under
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. It shall bear the seal of the court.

4 Warrant : Warrant is a written order of a court directing an officer to

arrest, search and seize. Section 70 of the Code prescribes requirements
of a warrant which are almost similar to the summons, except that it

68
 should be in Form 2 of the Second schedule. It should be signed by the
presiding officer or else it is not valid (Daitaridas Vs. State of Orissa)12.
Format of Warrant
WARRANT OF ARREST
(Section 70)
To, (name and designation of the person or persons who is or are to
execute the warrant).
Whereas (name of accused) of (address) stand charged with the
offence of (state of offence), you are hereby directed to arrest the
said…………………………………… and to produce him before me.
Herein fail not.
Dated, this ……………..day of ……………………..2017
(Seal of the Court)………………….. (Signature)……
( section 71)
This warrant may be endorsed as follows :
If the said…………shall give bail himself in the sum of rupees with one
surety in the sum of rupees ……..(or two sureties each in the sum of
rupees………………..) to attend before me on the ……..day of ……and
to continue so to attend until otherwise directed by me. He may be
released.
Dated, this……………….day of……………….2017
(Seal of the Court)………………….. (Signature)……

4.1 Proclamation : According to section 82 of the Code the court is

empowered to publish a proclamation against a person who is absconding
after the issue of a warrant against him. The proclamation subject to
12
1956 Cri. LJ 635

69
 certain condition necessary for its publication, will contain specified
time and place for the person to appear before the court.

PROCLAMATION REQUIRING THE APPEARANCE OF THE

PERSON ACCUSED
(Section 82)
Whereas complaint has been made before me that (name, description and
address) has committed (or is suspected to have committed) the offence
of …………………………….. punishable under section………….. of
the Indian Penal Code and it has been returned to a warrant of arrest
thereupon issued that the said (name) cannot be found, and whereas it has
been shown to my satisfaction that the said (name) has absconded (or is
concealing himself to avoid the service of the said warrant)
Proclamation is hereby made that the said…………….. of ……….. is
required to appear at (place) before this court (or before me) to answer
the said complaint on the …………………. Day of …………………
Dated, this ……………day of ………………….2017
(Seal of the Court)………………….. (Signature)……

4.2 Attachment of property. : If the person does not respond to the

proclamation published under section 82 of the Code, Section 83 thereof,
authorizes the court to attach the property of the proclaimed person only
after a proclamation is made and not before.

5. Order under section 144 of the code : Section 144- empowers the
court to issue order in urgent cases of nuisance or apprehended danger :
such as (1) In cases where, in the opinion of a District Magistrate, a sub

70
divisional Magistrate or any other Executive Magistrate specially
empowered by the State Government for this purpose, there is sufficient
ground for proceeding under this section and immediate prevention or
speedy remedy is desirable, Here the magistrate may issue a written order
stating the material facts of the case and 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.

6. First Information Report FIR : The criminal law (Section 154 of the
code) comes into motion as soon as FIR is lodged.
Section 154- Information in cognizable cases : (1) Every information
relating to the commission of a cognizable offence, shall be reduced to
writing by the in-charge police officer and shall be read over to the
informant and it shall be signed by the person giving it, and the substance
thereof shall be entered in a book to be kept by such an officer in such form
as the State Government may prescribe in this behalf.

6.1 Evidentiary value of FIR : The First Information Report is not a

substantive piece of evidence. It can only be used for corroborating or
contradicting its maker when he appears in court as a witness. It can by
no means be used for any other purpose. (State Vs. Anirudh Singh)13.

13
(1997) 6 SCC 514 : 1997 (3) Crimes 82

71
6.2 FIR by the accused : If the accused himself lodges FIR, it is
admissible against him as evidence of his conduct under Section 8 of the
Evidence Act. However the confessional part of his FIR cannot be used
at all against him in view of the provisions of Section 25 of the Act.
(Bheru Singh Vs. State of Rajasthan)14.

6.3 Dropping of proceedings : if the Magistrate after receiving a copy of

the FIR does not to take cognizance of the offence and thinks that there is
no sufficient ground for proceeding against the accused, he can do so, but
subject to the only rider that he should give a notice to the informant/
complainant and give him an opportunity of being heard. (Bhagwant
Singh Vs. Commissioner of Police)15.

7. Investigation : There are two kinds of investigations, quite different

from each other. The first is investigations of cognizable offences by police
under Section 156 of the Code and the Second is investigations by police as
directed by Magistrate under Section 202 of the Code. The Apex court in
Suresh Chand Jain Vs. State of M.P. 16 and Mohd. Yosuf Vs. Afar
Jahan17 has succinctly differentiated between these two. The court observed
that the investigation referred to in section 156 has to be conducted as
provided under Chapter XII of the Code and it begins with making an entry
of the information in a book to be maintained by the officer in charge of a
police station. The investigation begun thereafter can end up only with the
report filed by the police as indicated in Section 173 of the Code.

14
(1994) 2 SCC 467 : 1994 (1) Crimes 630)
15
AIR 1985 SC 1285 : 1985 Cri. LJ 1179
16
AIR 2001 SC 571 : 2001 Cri.LJ.594
17
AIR 2006 SC 705 : 2006 Cri. LJ 788

72
7.1 Physical torture : Despite huge and vast powers, the police are
supposed to adopt scientific and dignified ways and means as custodians
of law, held the Supreme Court in Bhagwan Singh Vs. State case18. The
police cannot indulge themselves in committing crimes in the name of
effective investigation. Torturing a person and using third degree
methods are barbaric and contrary to law.

7.2 Defective investigation : Injuries to the accused is a ticklish

proposition. The Apex court therefore has held in Kashi Ram Vs. State
of M.P.19. case that the failure of the I.O. to investigate the cause and
circumstances resulting in injuries to the accused and failure to record
statement of such accused persons, is a serious matter which causes
prejudice to the accused.

7.3 Dual Role of I.O. : A police officer cannot play the double role---
complainant on one hand and investigation officer on the other. Say for
example if a police officer witnesses an incident, records his complaint
on one side and thereafter he himself undertakes the task of investigation,
it goes against the principle of fairness Bhagwan Singh Vs. State of
Rajasthan20.

7.4 Prohibition against private funding : Investigation by police has

legal sanction and sanctity and as long as the I.O. is independent the
investigation would remain unbiased. Financial aspect of investigation is
the look out of the State. The Apex Court in Navichandra N. Majithia

18
AIR 1992 SC 1689 : 1992 Cri.LJ3144
19
AIR 2001 SC 2902 : 2001 (4) Crimes 344
20
1975 SCC (Cri.)737; 1995 Cri. LJ 3988)

73
 Vs. State of Meghalaya case21 , has declared that if the expenses are
borne by the private party it would vitiate the investigation and lead to
miscarriage of justice.

7.5 Ballistic evidence : where an offence is committed with fire arms and
some recoveries are made during the investigation, the natural conclusion
would be that, the expert opinion should be produced before the court. If
it is not done, it is fatal to the prosecution’s case (Sukhwant Singh Vs.
State)22.

7.6 Section 161 Statements : Statements recorded under Section 161, held
the Supreme Court in Baldev Singh Vs. State of Punjab case23, must
not be used for any other purpose except for contradicting a witness.
Same principle applies to any statement made to I.O. during inquest
(Babu Singh Vs. State of Punjab, AIR 1996 SC 3250 : 1996 Cri. LJ
2503).

7.7 Prohibition against inducement : Section 163 of the code prohibits

inducement, threat or promise during investigation and while recording
any statement (Bhagwan Singh Vs. State of M.P.24,

8. Recording of confession : The Supreme Court in Ram Singh Vs.

Sonia25, case held that recording confession under Section 174 of the code
is the duty of the Magistrate who while doing so has to explain to its maker,

21
AIR 2000 SC 3275 : 2000 Cri.LJ 4600
22
1995 Cr.LR 438 (SC)
23
AIR 1991 SC 31 : 1990 Cri. LJ 2604
24
AIR 2003 SC 1088 : 2003 Cri.LJ 1262)
25
AIR 2007 SC 1218 : 2007 Cri.LJ 1642

74
that he is not bound to make a confession and if made, it may be used as
evidence against him. He should make sure that such a statement is made
voluntarily. It is also held in Bhagwan Singh’s case, that the Magistrate
should ask him the reason of making a statement. While recording such
statement, even the presence of police outside the court may not render any
credibility to the statement.

9. Search by police officer : Section 165 of the code authorizes search by

I.O. subject to fulfillment of certain conditions. They are : (1) the police
officer should have a reasonable ground for believing that it is necessary for
the purpose of the investigation and that it is not possible to do so by any
other means (2) that he should record the grounds of his belief, (3) as far as
possible, search should be made by him, if not possible, he should record
reasons therefore (Rajasthan Vs. Rahman)26.

10. Indefeasible right under section 167 : Section 167 of the Code clearly
lays down, declared the Apex court in State of West Bengal Vs. Dines
Dalmia case 27, that where investigation cannot be completed within twenty
four hours and the accused is under the arrest with police, he for further
detention has to be produced before the Magistrate if necessary.

11. Taking cognizance : The court takes cognizance of the offence and not
the offender Anil Saran Vs. State of Bihar28 , State of W.B Vs. Manmal
Bhutoria29. While the court takes cognizance of an offence, it can ignore the

26
AIR 1960 SC 210 : 1960 Cri.LJ 286
27
AIR 2007 SC :1801 : (2007) 5 SCC 773
28
AIR 1996 SC 204 : 1996 Cri. LJ 408
29
AIR 1977 SC 1772 : 1977 Cri. LJ 1164

75
conclusion arrived at by the I.O. India Carat Pvt. Ltd. Vs. State of
Karnataka30.

12. Bar under Section 195, CRPC : As noted , no court can take
cognizance for an offence under Section 195 unless there is a complaint in
writing. The Apex court in M.S. Ahlawat Vs. State of Haryana 31 case has
declared that the provisions of section 195 are mandatory .

13. Protection of public servants : For prosecution of judges and public

servants Section 197 of the Code should be looked into. It reads thus: (1)
When any person who is or was a Judge or Magistrate or a public servant not
removable from his office save by or with the sanction of the Government, is
accused of any offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty, no court shall take
cognizance of such offence except with the previous sanction of cental
government or state government as the case may.
In the said connection I (Researcher being an Advocate of the petitioner Shri
Jagdish Gome) have also dealt with the similar issue in the case Jagdish
Gome Vs State of M.P. ( M.Cr.C No. 3741/2013) . The Hon’ble High Court
of M.P. Bench at Indore held as under :-
“ In the present case, the documents on record reveal that the crime, if
any alleged to have been committed by the present applicant, was certainly
committed, while discharging public duty. The act or omission, if any, is
attributed while discharging public duty, and therefore, in the considered
opinion of this court, keeping in view the judgment delivered by the Hon’ble

30
AIR 1989 SC 885 : 1989 Cri. LJ 963
31
AIR 2000 SC 168 : 2000 Cri.LJ 388

76
Apex Court, until and unless, there is sanction, no court can take cognizance
of such offence. Resultantly, this present petition filed under section 482 of
Cr.P.C. stands allowed and the criminal proceedings pending in the trial
court at Bagli in Criminal Case no. 748/2012 stands quashed, however, a
liberty is granted to the State Government to proceed ahead afresh, in case
sanction is granted in the matter. ”

13.1 Official Duty : The said expression as found in the section extracted
above, implies that the act or omission must have been done by the public
servant in the course of his service and that it should have been in discharge
of his duty. The protection under this provision is further widened by
extending it even to those acts or omissions which are done in purposrted
exercise of official duty, that is, under the colour of office.

13.2 Protection under Section 197 : Where an act of omission is

committed by a public servant in the course of his official duty, he cannot be
prosecuted without a sanction of the appropriate authority. This bar is
mandatory in nature Raj Kishor Roy Vs. Kamaleshwar Pandey32.

13.3 Objection as to sanction : Thus an accused person, can raise the

issue of bar of taking cognizance for want of sanction, at any stage of the
proceedings. The Supreme Court in Suresh Kumar Bhikamchand Jain Vs.
Pandey Ajaybhushan33, held there should not be any bar for the accused
producing the relevant documents and material which will be ipso facto
admissible, for adjudication of the question.

32
AIR 2002 SC 2861 : 2002 Cri.LJ 3780.
33
(1998) 1 SCC 205 : 1998 Cri. LJ 1242

77
13.4 Prosecution of retired public servants : The protection given to
retired public servants against prosecution under Section 197, held the
Supreme Court in R. Balakrishna Pillai Vs. State of Kerala 34, case is
available if the offence alleged relates to his service and if the prosecution is
launched after his retirement.

14. Offences against marriage: Section 198 of the code which relates to
offences against marriage reads that no court can take cognizance of an
offence punishable under Chapter XX of the Indian Penal Code without
there being any complaint by an aggrieved person.

15. Private complaint Cases: Under Section 200 of the code, a Magistrate
is empowered to take cognizance of an offence in a private complaint. While
considering the rights of the accused in such cases, the legal requirements
which are conditions precedent for taking cognizance, shall not be taken of.

15.1 Enquiry : According to N. Harihara Iyer Vs. State of Kerala35,

case the inquiry envisaged under section 200 of the code is held for
ascertaining the truth or falsehood of the complaint and also for ascertaining
whether there is any evidence in support of the complaint so as to justify the
issue of process. Therefore, the Magistrate while doing so has to satisfy
himself as to the truthfulness of the complaint. The object is to test whether
the allegations make out a prima facie case to enable him to issue process.
i.e. taking of sworn statement of the complainant and recording of the sworn

34
AIR 1996 SC 901 : 1996 SCC (Cri) 128
35
2000 Cri. LJ 125 (Ker)

78
statement (Maharaja Developers Vs. Udaysingh Pratapsinghrao
Bhousle)36.

15.2 Second Complaint : The Second complaint can be made only if the
first one is dismissed for default or for any other reason without touching the
merits thereof (Jatindersingh Vs. Rajit Kour)37.

15.3 Right to copy of complaint : The accused person is entitled to a copy

of the complaint along with the process.

15.4 Summons : A detailed order is not required to be passed by the

Magistrate while issuing process to the accused (U.P. Pollution Control
Board vS. Mohan Meakings Ltd.)38.

15.5 Dispensation with personal appearance : In a private complaint case,

especially, personal appearance of the accused need not be compelled in
every case. When an application is made under Section 205 of the Code
seeking dispensation with personal appearance, held the Supreme Court in
S.V. Muzumdar Vs. Gujarat State Fertilizer Co. Ltd case.39 the court has
to consider whether any useful purpose would be served by requiring the
personal attendance of the accused or whether progress of the trial is likely
to be hampered on account of his absence.

36
207 Cri. LJ 2207 (Bom).
37
AIR 2001 SC 784 : 2001 Cri. JL 1015
38
AIR 2000 SC 1456 : 2000 Cri. LJ 1799
39
AIR 2005 SC 2436 : 2005 Cri. LJ 2566

79
16. Right to copies of documents and statements: Section 207 and 208 of
the code contain certain valuable rights on the accused to get copies of
documents, statements, police report etc. In any case where the proceeding
has been instituted on a police report, the Magistrate shall without delay
furnish to the accused, free of cost, a copy of each of the following: -
(1) The police report
(2) The first information report recorded under section 154.
(3) The statements recorded under sub section (3) of section 161 of all
persons whom the prosecution proposes to examine as its witnesses,
excluding there from any part in regard to which a request for such
exclusion has been made by the police officer under sub section (6) of
section 173.
(4) the confessions and statements, if any, recorded under section 164.
(5) Any other document or relevant extract thereof forwarded to the
Magistrate with the police report under sub section (5) of section 173.

17. Protection Under Section 209: The court observed in Parasnath Rai
Vs. State of Jharkhand 40 , case that where no protest petition is filed
against the police, the committing Magistrate is not competent to take
cognizance of offence against persons other than those recommended or sent
up for trial as mentioned in the police report. He is not supposed to use his
discretion regarding the merits of case and to find out as to who are the
persons, besides those recommended for trial by the I.O. to face trial before
the court of sessions.

40
2007 Cri. LJ 3094 (Jhar)

80
18. Framing charge: The trial judges normally frame charges but hear
before charges only in those cases where defense wants to argue for
discharge. According to State of Karnataka Vs. Abdul Raheem41, They
are blindly guided by the provisions of law quoted by the I.O. in the charge
sheet. Therefore, in order to overcome the vain display of learning, it is
necessary that the criminal court in every trial shall insist the prosecution
and the defence to submit a draft charge and if necessary give oral evidence
to see that the framed charge is sound both factually and technically .

18.1 Use of confession : A confession of an accused is relevant and

admissible against a co-accused, declared the Apex Court in Suresh
Budharmal@ Poppu Kalani42, only if both are jointly facing trial for the
same offence. If the accused has been discharged from the case and is not
facing the trial any more, his confession cannot be used against the co
accused.

18.2 Alternative charge: This provision as given in section 221 of the code
applies to a case where from the evidence led by prosecution it is not certain
that out of several offences which offence has been committed by the
accused. According to Punjab and Haryana High Court in Omprakash
Vs. State of Haryana43, it applies to a situation where, on the basis of facts
to be proved by the prosecution, it is doubtful as to which of the acts
constitutes an offence for framing charge and where framing of charge in the
alternative is permissible. In the instant case, charge was framed under
section 306, read with Section 34 of IPC.
41
2006 Cri LJ 3169 (Kar)
42
AIR 1998 SC 3258 : 1998 Cri. LJ 4592
43
2007 Cri. LJ 398

81
18.3 Alternation of Charge : Alteration of a charge , held the Supreme
Court in Sohanlal Vs. State of Rajasthan case44, means changing of an
existing charge or making of a different charge. Under Section 216 of the
code, addition to and alteration of the charge or charges implies one or more
existing charge or charges. So far as the said case is concerned the accused
were discharged of all charges and hence the court declared that an
application under Section 216 is not maintainable.

18.4 Joinder of charges : It is here relevant to refer to a full Bench decision

of the Bombay High Court rendered by his Lordship M.C. Chagla, C.J. in
D.K. Chandra vs. State45, This decision refers to Section 234 (1) of the old
code which is similar to Section 219 of the present Code. The full bench
observed that it is not helpful to consider whether the exceptions contained
in sections 234, 235 and 236 are having the power to exclude. It would be
better to lay down that if the prosecution wishes to justify a trial in which
charges are joined, it is for the prosecution strictly to establish that the
joinder is permissible.

18.5 Doubt as to offence : Section 221 of the code permits that an accused
can be convicted for an offence which he is shown to have committed,
though he was not charged with it. But, according to the Supreme Court in
Shamnsaheb M. Multani Vs. State of Karnatka 46 , case the principal
condition for applying of Section 221 is that the court should have felt doubt

44
AIR 1990 SC 2158 : 1990 Cri. LJ 2302
45
AIR 1952 Bom 177 : 1952 Cri. LJ 779
46
AIR 2001 SC 921 ; 2001 Cri.LJ 1075

82
at the time of framing charges as to which of the several acts will constitute
the offence on account of the nature of the acts alleged against the accused.

18.6 Opportunity to enter defence : Where an accused is charged for one

offence but in the opinion of the court the facts, circumstances and evidence
available prove that the accused is liable for some other offence, the accused
should be given an opportunity to enter on his defence or else, it would lead
to serious miscarriage of justice. (refer to Shamnsaheb’s M Multani case).

19. Prohibition to pursue trial : It is the sole field of public prosecutor

under Section 225 to pursue a trial. In Abhilasha vs. State, (2000) 10 SCC
237, the Apex Court therefore declared that an informant cannot pursue the
trial though he can assist the Public Prosecutor. In the same way there is a
restriction to seek appointment of a special prosecutor.

20. Right to challenge appointment of Special Public Prosecutor :

Justice N. Kumar of the Karnataka High Court in K. Shiva Reddy Vs. State
47
of Karnataka . has on a large scale dealt with the duties and
responsibilities of a public prosecutor and appointment of a special public
prosecutor. It is held in this case that the accused does not have any voice in
the matter of appointment of a special public prosecutor. But, his right to fair
trial is quite justified. It is well known position in criminal jurisprudence
that the state is the prosecutor and that is why the primary position is
assigned to the public prosecutor.

47
2005 AIR- Kant. HCR 1476 : ILR 2005 Kar 4780

83
21. Right to be discharged : Section 227 of the code gives an accused the
right to be discharged held the Apex court in Stree Atyachar Virodhi
Parishad Vs. Dilip Nathumal Chordia48 case, for it is designed to prevent
harassment of an innocent person by the difficult trial of the ordeal of
prosecution. Just because the prosecution has brought a person to court with
an allegation, as a rule, the court need not proceed further. Dilawar Babu
Kurane Vs. State of M.H.49.

22. Protection against plea bargaining : Section 229 and 241 of the code
permit that an accused can be convicted if he pledges guilty. But, as held by
the Supreme Court in Thippaswamy Vs. State of Karnataka case50, it is
violative of Article 21 of the Constitution to persuade an accused person to
plead guilty with a promise that he would be let off lightly and thereafter in
appeal or revision to seek enhancement of sentence. In that case the
appellate or revisional court, as the case may be, should set aside the
conviction itself.

23. Evidence of Prosecution : In criminal cases the rules of evidence are

matters publici juris, and cannot be dispensed with by consent of parties.
Some sort of proof is necessary to support an accusation of crime than will
suffice when the charge is only of a civil nature. But in criminal cases the
burden to prove that the accused is guilty beyond reasonable doubt lies with
the prosecution (Kenny : outlines of criminal law, 19th Edn. Pp. 472, 516).
Here, the expression beyond reasonable doubt is important and the burden of
proof is more on the prosecution than on the defence. If the prosecution does
48
(1989) 1 SCC 715 : 1989 (1) Crimes 443
49
AIR 2002 SC 564 : 2002 Cri. LJ 980
50
AIR 1983 SC 747 : 1983 Cri. LJ 1271

84
not stand on its own legs, it will perish. As noticed earlier, the office of the
public prosecutor is a public office. The Prosecutor should make all efforts
to maintain the confidence reposed in him. He should be fair in his role, for a
fair trial is the basic tenet of Article 21 and he should pursue this.

24. Evidence of defence : In cases that are criminal in nature, the

presumption of innocence is stronger and accordingly a higher minimum of
evidence is required. The more heinous is the crime, the higher will be the
minimum of necessary proof. Thus the burden is heavy on the prosecution.
When the case for the prosecution is closed after sufficient evidence has
been brought to notice to necessitate an answer from the defence, the
defence need not do any thing more than raising a reasonable doubt
regarding the guilt of the accused.

25. Compensation for accusation without reasonable cause :

Summoning of an accused in a criminal case in a serious matter. Criminal
law, declared the court I M/s LMJ International Ltd. Vs. State of
Karnataka51, cannot be set into motion only when there is a Prima facie
case against the accused. If the complaint or information is found to be
baseless or without reasonable cause. according to Supreme Court’s decision
in Nandkumar Krishnarao Navgive Vs. Jananath Laxman Kushalkar52
case, the Magistrate in case of information or complaint found to be baseless
and unreasonable, can award compensation to the accused which is
equivalent to his jurisdiction to impose fine on the accuse.

51
AIR 2007 NOC 2350 (Kar) : 2007 Cri. LJ 4437
52
(1998) 2 SCC 355 : 1999 Cri. LJ 5022

85
26. Trial procedure: Safeguards : A trial should normally take place in
presence of the accused. His presence can also be dispensed, held the court
in Jigga Vs. State53. However the personal appearance of the accused before
the court is not necessary if the judge is satisfied, if it is done in the interest
of justice or if the accused is likely to disturb the proceedings.

27. Double Jeopardy : Section 300 of the code does not allow a fresh trial if
a person had already been tried and convicted or acquitted by a competent
court for the same offence. The word offence as defined under section 2 (n)
of the code, means an act or omission that is punishable under law. The bar
under section 300 applies to the trial and conviction for the same offence
(Vijayalakshmi Vs. Kunnath Kumaran’s son Vasudeva)54.
27.1 Conditions requisite : Section 300 (1) applies, essentially when the
conditions for invoking the bar are : Firstly the court had jurisdiction to take
cognizance and try the accused, and Secondly the court had recorded an
order of conviction or acquittal and that such order of conviction or acquittal
is remaining in force (Balbir Singh Vs. State)55.

28. Right to be defended : Right of the accused to get him self defended in
a criminal case by a counsel of his choice, is precious. It is available to him
under law. According to section 303 of the code two kinds of pleaders are
contemplated : one, the legal practitioners who are entitled to practice law,
two, any other person. If the court permits an accused person can avail the

53
ILR 2007 Kar 4321
54
(1994) 4 SCC 656
55
AIR 2007 SC 2397 : 2007 Cri.LJ 3507

86
assistance of any other person who is not entitled to practice law (T.C.
Mathai Vs. District and Session Judge)56.

29. Right to be legal Aid : While dealing with accused persons during trial
when they are not represented by counsel, the courts must keep the mandate
of section 304 of the code which provides for free legal aid. The apex Court
in Suk Das Vs. Union Territory of Arunachal Pradesh case 57 , has
declared that free legal aid at State’s cost is a fundamental right of an
accused person for offence which may involve jeopardy to his life or
personal liberty.

30. Power to pardon : Section 306 and 307 of code are relevant here and
they read thus: Section : 306- Tender of pardon to accomplice : (1) In order
to obtain the evidence of any person supposed to have been directly or
indirectly concerned in or privy to an offence to which this section applies,
the chief Judicial Magistrate or a Metropolitan Magistrate at any state of the
investigation or inquiry into , or the trial of, the offence, or the First class
Magistrate inquiring into or trying the offence, at any state of the inquiry or
trial, may tender a pardon to such a person on the condition that he makes a
full and true disclosure of the whole of the circumstances within his
knowledge related to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof.

31. Protection against voice recording : Section 311-A : Section 311-A

was inserted by Cr.PC (Amendment) Act, 2005 and came into force w.e.f

56
AIR 1999 SC 1385 : 1999 Cri. LJ 2092
57
AIR 1986 SC 991 : 1986 Cri. LJ 1084

87
23-6-2006. Section 311-A- deals with the Power of Magistrate to order a
person to give specimen signatures or handwriting: if first class Magistrate is
satisfied that, he can direct any person, including the accused person, to
give specimen signature or handwriting or he may make an order to that
effect. In that case the person to whom the order relates shall be produced or
shall attend at the time and place specified in such order and shall give his
specimen signature or handwriting.

32. Examination of the accused (Section 313) : Section 313 empowers the
court to examine the accused. But, the accused person cannot be compelled
to be examined as a witness. Moreover, the court cannot draw any adverse
inference from the fact that the accused has abstained from the witness box
(Kashi Ram Vs. State of M.P.)58.

33. Trial of deaf , dumb etc. : while dealing with the conviction of a person
who is deaf, dumb etc, the court trying him should feel satisfied that he is
same and that he is of sufficient intelligence as to know the nature of the act
he has committed (In re : Peethambaran)59.

34. Power to summon other persons : Section 319 of the code empowers
the court to summon any person who is not accused initially. This power
should be used only when it is very necessary and for compelling reasons. A
judicial exercise is called for, keeping a general view of the case, including
the state at which the trial has proceeded already and the required portion of

58
AIR 2001 SC 2902 : 2001 (4) Crimes 344
59
AIR 1959 Ker 165 : 1959 Cri. LJ 596

88
evidence collected till then and also the amount of the which the court had
spent for collecting such evidence.

35. Compounding of offences : Section 320 of the code permits

compounding of offences. The said provision reads as under : (1) The
offences punishable under the sections of the Indian Penal Code specified in
the first two columns of the Table next following may be compounded by
the persons mentioned in the third column of the table.

36. Withdrawal from Prosecution : According to section 321 of the code

the public prosecutor can withdraw from the prosecution of any person
accused of an offence under two conditions: One, Evidence is taken and
second, when the entire evidence has been taken. This provision enables the
public prosecutor in charge of the case to withdraw prosecution before
judgment is pronounced with the consent of the court. With the consent of
the court the accused will be discharged if no charge is framed or acquitted
if charge is farmed or where no charge is required to be framed
(Sheonandan Paswan Vs. State of Bihar)60.

37. Right to just and fair sentence : The court should be very careful
regarding the right of the accused to be awarded just and fair punishment i.e.
justice tempered with mercy as he may justly deserve (Surja Ram Vs. State
of Rajasthan)61.

60
AIR 1987 SC 877 : 1987 Cri. LJ 793
61
AIR 1997 SC 18 : 1997 Cri. LJ 51

89
37.1 Second imprisonment for life : A prisoner sentenced to life
imprisonment, held the Supreme Court in Saibanna Vs. State62, is bound
to serve the rest of this life in prison unless the sentence is exchanged or
pardoned.
37.2 Right to set off: Prior to the introduction of Section 428 of the code,
the accused, after being convicted, had to undergo the entire sentence of
imprisonment awarded without any consideration of the length of period
spent by him in detention during investigation, enquiry or trial. This
provision is aimed at amelioration to a prisoner in a case where he has been
in detention for no fault of his.

38. Bar to take cognizance of cases barred by limitation : A bar is

enacted under section 468 of the code and it prohibits taking cognizance of
offences mentioned therein after the period of limitation enumerated
thereunder. It reads thus: Section 468 – Bar to taking cognizance after lapse
of the period of limitation : (1) Except as otherwise provided elsewhere in
this code, no court shall take cognizance of an offence of the category
specified in sub section (2), after the expiry of the period of limitation.

39. Quashing of proceedings : Section 482 of the code saves inherent

powers of the High Court. The power under this provision can be exercised
for securing justice and preventing the abuse of the process of any court.
This power can be exercised to put an end to the criminal proceedings
pending in any court (State Vs. Pastor P. Raju)63. Section 482 envisages
three circumstances under which the inherent jurisdiction can be exercised :

62
(2005) 4 SCC 165 : 2005 (2) Crimes 146
63
AIR 2006 SC 2825 : 2006 Cri. LJ 4045

90
(1) to give effect to an order under the code (2) to prevent abuse of the
process of court, and (3) to otherwise secure ends of justice (CBI Vs.
Ravishankar Srivastava)64.

64
AIR 2006 SC 2872 : (2006) 7 SCC 188

91