Due Process – CrPC Notes

According to the case of Maneka Gandhi v. Union of India (1978), laws can be struck down as unconstitutional on grounds of reasonability, as per Articles 21 and 19. This is the incorporation of due process in Indian law, where the Supreme Court can strike down laws plainly on the basis of how reasonable it is and how well it upholds the principles of fairness, equity and justice even if there is no explicit violation of fundamental rights of lack of competency.

Therefore, the CrPC has to conform to the fundamentals of due process or the SC can strike the relevant sections down as unconstitutional if they are inhumane or contrary to principles of natural justice.


Due Process – Fair process

Developed by Magna Carta and used by the American Constitution. In India it came in because of the 1975 Emergency. The Maneka Gandhi case brought about the idea of due process of law.

Article 21 talks about due process of the law.

Expressio unius est exclusio alterius – the US constitution gives everything else to the people and the state. The Indian Constitution includes it by interpreting it under A. 14 19 and 21.

Article 14, 19, 21 forms the due process. Only Royappa case read them together. Only later did they start reading them together.

Article 21 – No person shall be deprived of his life or personal liberty except according to procedure established by law.

  1. Substantive due process
  2. Procedural due process

Zahira Habibulla H Sheikh v. State of Gujarat – Given under Rights of the Court


Article 14 – The State shall not deny to any person equality before the law1 or the equal protection of the laws2 within the territory of India.

2 Equal protection would mean that the state extends to the state the duty to protect.


Article 20(1) – Cant be convicted retrospectively (only in criminal cases not for civil cases). Even then the defences of estoppels and

Article 20(2) – Right against double jeopardy

Section 300 of the CrPC

  • The elements of the section:
    • Tried by court of competent jurisdiction
    • Convicted or acquitted
    • Same offence or “same facts” – Section 26 of the General Clauses Act, Section 258 of the CrPC. There are different kinds of judgements which may be pronounced. They are conviction there is an acquittal and there is discharged and there is quashing. For S. 300 there needs to be only either conviction or acquittal.

Maneka Gandhi v. Union of India

The Supreme Court in this case reiterated the proposition that the fundamental rights under the constitution of India are not mutually exclusive but are interrelated. According to Justice K. Iyer, ‘a fundamental right is not an island in itself’. The expression “personal liberty” in Article 21 was interpreted broadly to engulf a variety of rights within itself. The court further observed that the fundamental rights should be interpreted in such a manner so as to expand its reach and ambit rather than to concentrate its meaning and content by judicial construction. Article 21 provides that no person shall be deprived of his life or personal liberty except in accordance with procedure established by law but that does not mean that a mere semblance of procedure provided by law will satisfy the Article , the procedure should be just , fair and reasonable. The principles of natural justice are implicit in Article 21 and hence the statutory law must not condemn anyone unheard. A reasonable opportunity of defense or hearing should be given to the person before affecting him, and in the absence of which the law will be an arbitrary one.

One of the significant interpretation in this case is the discovery of inter connections between Article 14, 19 and 21. Thus a law which prescribes a procedure for depriving a person of “personal liberty” has to fulfill the requirements of Article 14 and 19 also. Moreover the ‘procedure established by law’ as required under Article 21 must satisfy the test of reasonableness in order to conform with Article 14.

Justice Krishna Iyer in this case observed that, “the spirit of man is at the root of Article 21”, “personal liberty makes for the worth of the human person”.

Sunil Batra v. Delhi Administration

While it is true that a person who is convicted is deprived of certain fundamental rights like the right to carry on business from jail, in certain aspects, yet, his rights under Arts. 21 and 14 are still enforceable. Limitations on his right to life and movement are subject to the procedure established by law. The question here is whether the procedure is reasonable and just.

The term under the sentence of death is applicable only to prisoners who have exhausted all sources of appeal, i.e., all appeals till the plea for presidential/governor’s clemency. Only once the plea for clemency which is the highest appeal available is exhausted then only can any prisoners fall under this term. Till then, they are not under the ambit of the term.

Sec 366(2) directs that once a decision for death sentence has been granted by a sessions court, the prisoner is remanded to jail custody under a warrant. Sec 73 & 74 of the IPC show that solitary confinement is a substantive punishment.

It was contended here that sec 30(2) amounts to double jeopardy as they are facing punishments under sec 366(2) as well as sec 73 & 74 of the IPC which is violative of Art. 20(2) of the Indian constitution. The court holds that, ‘But as the prisoner is not to be kept in solitary confinement and the custody in which he is kept under s. 30(2) would prelude detention in solitary confinement, there is no chance of imposing a second punishment upon him and, therefore, s. 30(2) is not violative of Art. 20.’

It further holds that there is no unreasonable restriction on his life or liberty as once the obnoxious element of sec 30(2) is read down, it is in tune with the procedure established by law. The court holds that the prisoner should not be deprived of his rights as available to other prisoners, like the right to eat with them, to enjoy certain time outside of his cell, etc. This is all subject to certain limitations with regard to safety. Thus, it’s not violative of Art. 21.

Also, when looking at Art. 14 it is hard to dispute that a person under the sentence of death is in a separate category as compared to other prisoners. This classification looking at the scenario, state of the prisoners mind and safety is reasonable. Thus, sec 30(2) is not violative of Art. 14.

Regarding sec 56:

It was also held that the prisoners have a right to counsel provided by prison authorities to them so they can find recourse about the treatment meted out to them in jail. Majority of the prisoners are illiterate and need the assistance of the court in this regard.


Sec 30(2) is expanded to include certain liberties but is not considered ultra vires.

Sec 56 is read down and restrictions are to be imposed on it to ensure that bar fetters are used only in the rarest circumstances.

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Double Jeopardy – CrPC Notes

This is the right of a person to not be tried for the same offence twice. There are three provisions in Indian law that deal with this. It is based upon the common law principle of ‘nimo bis in idipsum which means that no man ought to be punished twice for the same offence.

Autrefois acquit – if a person is charged and subsequently acquitted of the offence, he cannot be put on trial for the same offence again (embodied in S.300, not Art.20(1))

Autrefois convict – if a person is prosecuted and punished for a particular offence, he cannot be put on trial for the same offence again. (embodied in both, Art.20(1) and S.300)

Article 20(2), Constitution of India

“No person shall be prosecuted and punished for the same offence more than once.”

A limitation read into Art. 20 (2) is that the former ‘prosecution'(which indicates that the proceedings are of a criminal nature) must be before a court of law, or a judicial tribunal required by law to decide matters in controversy judicially on evidence and on oath which it must be authorized by law to administer, and not before a tribunal which entertains a departmental or administrative enquiry, even though set up by a statute, but not required to proceed on legal evidence given on oath. It is thus established that action taken by a quasi-judicial body does not bar a latter prosecution before a court. Thus, immunity against a second prosecution has become confined to a situation when the first proceeding has been before a court of law. The same will be the position when after ‘prosecution and punishment’ for an offence, further action is taken by a quasi-judicial body.

It also only refers to autrefois convict as it limits the applicability of the plea to a person who has been prosecuted and punished previously.

Section 300, CrPC

“(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under subsection (2) thereof.”

What does this mean?

  • If a person is convicted or acquitted by a court of competent jurisdiction, he cannot be tried for the same offence.
  • If charge has been made against a person under sub – section (1) of 221 and the facts are the same and he has been charged under sub -section (2) of Sec. 221 then he cannot be tried on the same facts. Of course this holds true only till the conviction or acquittal remains in force.
  • “Tried” does not mean tried on merit. It just has to be an acquittal of the accused.
  • The basic rule is that the offences should be same i.e. identical. It is therefore necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. 300 bars the trial for same offences and not different offences which may result from the commission or omission of the same set of acts. Where the legislature provides that on the same facts proceedings could be taken under two different sections and the penalties provided under those sections are also different, it is obviously intended to treat the two sections as distinct.

“(2) A person acquitted or convicted of any offence afterwards tried with the consent of ore State Government for any distinct offence for which a separate charges have been made against him at the former trial under sub-section (1) of section 220.”

What does this mean?

  • Where a person has been acquitted or convicted of any offence and a separate charge for another offence could have been made but was not made against him in the former trial, he should not be liable to be again prosecuted for the other offence as a matter of course because this might lend itself to abuse.
  • To provide a check against such abuse, 300 (2) makes it obligatory to obtain the consent of the State Government before a new prosecution is launched against any person for any distinct offence for which a separate charge might have been made against him at the formal trial under Sec. 220 (1).
  • Where the charge on the second trial is for a distinct offence the trial is not barred i.e. the section permits a trial for a distinct offence.

“(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted.”

What does this mean?

  • This section is applicable only in cases of conviction and not in cases where there has been an acquittal.
  • This section allows the re-trial of an accused for acts which did not come to light in front of the court of prior conviction.
  • A conviction simply in itself does not bar re-trial of the accused for similar offences which were not bought to the notice of the courts. The facts or the circumstances must be such as to indicate a different kind of offence of which there could be no conviction at the first trial. The new evidence must constitute a different kind of offence for which the accused could not have been tried at the first trial. The new facts or consequences must have occurred since the conviction or acquittal at the first trial. For, if the new facts or consequences were known to the court at the time of the first trial, a second trial for the offence constituted by the new facts would be barred.

“(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.”

What does this mean?

  • If any court is incompetent to try an accused of any offence which is the consequence of an offence for which he has already been convicted or acquitted, the prior acquittal or conviction would not act as a bar to the proceedings for the consequential offence as the court could not have possibly tried the accused of that offence.

“(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first-mentioned court is subordinate.”

What does this mean?

  • In a summons case instituted otherwise than upon a complaint the court has got power under 258 to stop the proceedings at any stage without pronouncing the judgment. If the stoppage of proceedings is made before the recording of the evidence of the principal witness, it shall have the effect of discharge of the accused person.
  • However, according to 300 (5) such accused person cannot be tried again for the same offence without the consent of the concerned court. It is believed that this provision will be helpful as a safeguard against the abuse of power of fresh prosecution in such cases.

“(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.”

What does this mean?

  • When S.26 applies, S.300 is not required.
  • For S.26 to operate, the offences have to have the same ingredients.
  • More on S.26 in the next section.

“Explanation: The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.”

These pleas are taken as a bar to criminal trial on the ground that the accused person had been once already charged and tried for the same alleged offence and was either acquitted or convicted. Therefore, it encompasses the plea of autrefois acquit as well.

Section 26, General Clauses Act

 “Provision as to offences punishable under two or more enactments – Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

Although, the above Sec. 26 refers to “acts and omissions constituting an offence under two or more enactments”, the emphasis is not on the facts alleged in the two complaints, but rather on the ingredients which constitute the two offences with which a person is charged. This is obvious from the concluding portion of the section which refers to “shall not be liable to be punished twice for the same offence”. If the offences are not the same but are distinct, the ban provided by Sec. 26 cannot be imposed.

Kolla Veera Raghava Rao v. Gorantla Venkateswara Rao


Whether a person can be prosecuted under the same facts, but for a different offence under a different statute? (Difference between Article 20(2) of the Constitution of India, 1949 and Section 300(1) of the Indian Penal Code)

Decision: Prosecution barred as Art.20 (2), Constitution of India, 1949- . Protection in respect of conviction for offences (2) No person shall be prosecuted and punished for the same offence more than once.

Section 300(1), IPC- Person once convicted or acquitted not to be tried for same offence-

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221 or for which he might have been convicted under Sub-section (2) thereof.

Difference between Article. 20 (2) and Sec 300 (1)

The Sec is wider in the sense that it says that no one can be tried and convicted for the same offence or a different offence ON THE SAME FACTS.

While Art 20(2) may leave a lingering doubt in our minds as to whether a person can be prosecuted for the same offence on different facts, the Sec makes it clear that as long as the facts are same, the person cannot be prosecuted at all.

Monica Bedi v. State of Andhra Pradesh


1) Monica Bedi obtained a second passport in the assumed name of Sana Malik from the regional passport office in Secundarabad by submission of false documents such as residence proof, educational certificates etc. This was done with the help of accused no.4 to accused no. 7.

2) This passport was used to travel to Portugal and Lisbon.

3) The accused has been convicted under s. 419,420 and 120 B of IPC for the above mentioned offence.

4) Monica Bedi was convicted under section 256 of the IPC of Lisbon and served a part of her sentence.


Was the convict entitled to the protection u/Art. 20(2) of the Constitution and S. 300 of the CrPC?


The Judgment and sentence passed against Monica Bedi is not violative of Article 20(2) of the Constitution and s. 300 of CrPC.

Article 20(2) of the Constitution states that, “No person shall be prosecuted and punished for the same offence more than once”. This provision finds its roots in the common law principle that man shall not be brought into danger for one and the same offence more than once.Section 300 of the CrPC also embodies the same principle. It is important to note that the ban against second prosecution under s. 20(2) of the Constitution and s. 300 of CrPC can be attracted only when a person has been a) prosecuted and b) punished c) for the same offence.

Thus, there must be prosecution and punishment for the same offence. If the offences are distinct there can be no ban on second prosecution. In the case of State of Rajasthan v. Hat Singh it was held that if the same facts give rise to two distinct offences, then there can be no ban on second prosecution under s. 20(2) of the Constitution and s. 300 of CrPC.

In the present case, Monica Bedi was convicted in Lisbon u/s 265 of the IPC of Lisbon. However, it cannot be accepted or admitted that she was convicted for the offence of forgery of documents in Lisbon for which she was convicted under the IPC in India. Thus, same set of facts is giving rise to two distinct offences and therefore the ban of Art. 20(2) of the Constitution and s. 300 of CrPC is not applicable.

Institute of Chartered Accountants v. Vimal Surana


A gentleman is found to be impersonating a Chartered Accountant and extracting money and entering into agreements with people. Therefore, he is culpable under Sections 24 and 26 of the Chartered Accountants Act. However, he is also liable to be punished under Sections 419, 420, 465, 467 and 473 read along with the sections of the Act.


Whether the provisions contained in Sections 24, 24A and 26 of the Chartered Accountants Act, 1949 (for short, `the Act’) operate as a bar against the prosecution of a person who is charged with the allegations which constitute an offence or offences under other laws including the Indian Penal Code (IPC).


A person can be convicted for the same actions under different acts as are applicable to the offences. The court recognised the inequality if someone who had committed an offence similar to the sections under the IPC but could also fall under the law in another act with lesser punishment.

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What happens after the investigation is completed – CrPC Notes

Section 169- Release of accused when evidence is deficient

Section 170- Cases to be sent to Magistrate when evidence is sufficient

  • The Magistrate cannot direct the police to give a particular kind of report. However, once the report is given, the Magistrate needs to apply his mind. The Magistrate may then look at the police dairy to see the direction of the investigation. Under Section 156(3) the Magistrate may order a further investigation by the policy. The Magistrate may also drop the charges. The complainant may file a protest petition against this drop. However, this is a mere hearing and does not have a persuasive value.

Section 207- Supply to the accused of copy of police report and other documents

Section 171 – Complainant and witnesses not to be required to accompany police officer and not to subject to restraint.

The main reason is to ensure that they are not subjected to questioning.

Section 173 – Report of police officer on competition of investigation

Here there is a time frame within which investigation needs to be completed. This is however, not a hard rule and is flexible. The case will continue even if the time period is extended.

173(2)(ii)- This is just a protective measure to ensure that there is no compromise of the security of the complainant in any manner.

173(3) – The senior police officer is the Superintendent as given in Section 36.


173(6) – This is a strange power to the police officer that all documents need not be given to the accused. A reason however, has to be given as to why the documents are not being given. The denial of documents is only till the date of the trial. This power cannot deny the right to cross examine in any manner.

The defence, however, is not under any obligation to disclose their case. They only have to defend the case of the Prosecution.

173(8) – The police has the right to further investigate a case. This is different from the power with the Magistrate under Section156(3), where the Magistrate may ask for further investigation in a case.

Further investigation refers to the investigation subsequent to the initial report which has been filed by the police.
‘Investigation’ : Section 2(h)- Collection of physical evidence, statements, expert evidence, examination of a body etc. conducted by a police officer or by any person other than a magistrate, who is authorized by a Magistrate.

State of Bihar v. JAC Saldhana


  • Whether the State Government was competent to –
  1. Appoint further investigation to Inspector General Vigilance (a.k.a IGV) as per S.173(2) of the CrPC
  2. Give the Magistrate jurisdiction to try the case
  • Whether the Magistrate in exercising his jurisdiction committed an illegality to postpone the case?
  • Whether the HC was justified in interfering with the investigation?


1) a) In the present case, the State Government had given the investigation the Inspector General Vigilance.

36 – CrPC

The officer directed by the State Govt. to carry on the investigation is the Inspector General Vigilance who as per S.36 of the CrPC is an officer superior in rank to the officer in charge of a police station. In S. 36 –

  • The use of word rank leads to the hierarchy of police officers
  • The Vigilance Department is deemed to be a police station having its jurisdiction throughout the State of Bihar.
  • They can also exercise the powers of an officer in charge of a police station throughout the local area to which he was appointed meaning the State of Bihar.

S. 173(8) – CrPC

The source of power of the State Government to direct IGV to investigate comes from S.173(8) which enables an officer in charge of a police station to carry on investigation. Also, due to the unfettered nature of the State Government’s power to direct an officer superior in rank to investigate is allowed with a combined reading of S.173(8) and S.36.

2) The power of the Magistrate under S.156(3) to direct further investigation is not in conflict with the power of the State government. The Magistrate can exercise the power even after submission of a report by the investigating officer to accept the conclusion or not. And this power does not affect the power of the investigating officer to further investigate the case as is provided in S.173(8). Therefore, the HC was in error holding that the State Government, in exercise of S.3 of the Police Act as superintendence, lacked the power to direct further investigation.

3) There is a clear-cut and demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendent over which vests in the State Government. The executive is charged with a duty to keep vigilance over law and the police investigates a crime. After the full investigation and when the Court takes cognizance of the offence, the police investigation comes to an end, as stated in S.173(8). The adjudication function by the state commences. The present case is at the stage where investigation is not complete and by the order of the HC there is interference in this investigation in exercise of extra-ordinary jurisdiction. The Court should take a step back and refrain from entering this sphere which is clearly demarcated for the police and executive.

Therefore, the order by HC is quashed and the order by Addl Chief Judicial Magistrate restored to continue investigation.

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Inquiry – CrPC Notes

S.2(g) CrPC 

  • Inquiry, according to Sec. 2(g) Cr.P.C. means every inquiry, other than a trial, conducted under the Code, by a Magistrate or a Court.
  • It follows that Inquiry, as contemplated in the Cr.P.C can be held either by a Magistrate or by a Court.
  • What is done by a Police Officer under the Cr.P.C. can never be described as Inquiry.
  • Inquiry is distinct and different from trial. In practice, trial begins when the Inquiry ends.
  • The object of inquiry is determination of truth or falsehood of certain allegations with a view to taking further action according to law.
  • Inquiry may involve examination of witnesses and inspection of the locale.

Types of Inquiry:

  • Judicial Inquiry
  • Non-Judicial/Administrative Inquiry
  • Preliminary Inquiry
  • Local Inquiry
  • Inquiry into an offence
  • Inquiry relating to a matter other than the offence 
S.No. Subject Investigation Inquiry
1. By Whom By a Police Officer or a person other than a Magistrate who is authorised by a Magistrate By a Court or Magistrate
2. Object Collection of Evidence Ascertainment of Truth
3. Nature Always non-judicial, pertaining to an offence It may relate to an offence or a matter other than the offence
4. Initiation It commences when there are grounds for investigation, based on information or otherwise. It may start on vague rumours with shadowy beginning vide AIR 1968, Madras 117.
5. Sequence In cognizable offence, police investigation is a normal preliminary to the accused being put up for trial. In a warrant case instituted other than on Police report, the proceeding upto the framing of the charge is inquiry. Here, Trial follows inquiry.

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Inquest – CrPC Notes

S.174, S.175 and S.176 

  • An inquest by the police falls under S.174 of the CrPC. The main object is to ascertain the cause of death in cases of suicide, unnatural death and death caused in commission of offence, etc. The police cannot administer oath to the person summoned for inquest.
  • An inquest by the magistrate falls under S.176 of the CrPC. Its main object is to determine the cause of death occurring in police custody and in the cases mentioned in S.174. A magistrate is authorised to administer the oath to the people examined by him.
  • 175 of the CrPC talks about the power to summon persons. It gives the police the authority to summon witnesses at the inquest. It is not necessary for the police officer to record any statements from them or get them to sign the inquest report. Their statements fall under S.162 of the CrPC.

Inquest Report:

  • Document of vital importance and has to be prepared promptly as it is handed over to the doctor along with the dead body when it is being sent for the post-mortem examination.
  • If the facts of the inquest are mentioned in the report, it shows the true version of the occurrence has been given therein. If they are not mentioned, it shows that the police officer was unsure about the facts.
  • It is not substantive evidence.
  • It can corroborate the evidence given by the officer making the report.

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Statements To Police – Self Incrimination – CrPC Notes

  1. 160, S. 161, S.162, S. 163, S. 161 A, S. 164 of CrPC
  2. 24, S.27 of the IEA
  • 160 deals with the power of the police to require attendance of witnesses.

Examination of Witnesses by the Police

  • 161 and S.162 deal with the oral examination of witnesses by the police, the record to be made of the statements and their use subsequently.
  • 161 aims at obtaining evidence which may later be produced at trial. In case of a trial of a warrant case or before a sessions court, a charge may be framed against the accused on the basis of such statements.
  • A statement of a person recorded by the police may be used for contradiction under S.145 of the Evidence Act for purposes of contradiction if the person is called as a prosecution witness.
  • “Any person” in 161(1) includes any person who may be accused of the crime subsequently. “Any person supposed to be acquainted with the facts and circumstances of the case” includes the accused.
  • 161(2) and Article 20(3) cover the same area and the accused is protected by the right against self-incrimination in light of the requirements of S.161(2).
  • 161(3) gives the police a wide discretion to decide whether or not to record statements. If he does so, he must furnish a copy to each person whose statements he records.
  • 162(1) says that there is no requirement for the person giving the statement to sign it and S.161(3) doesn’t require the same.
  • Delays in the taking of statements by the police could render the evidence unreliable if there is a suggestion of unfair practice by the investigating agency.
  • Recording of one joint statement of all witnesses is in contravention of S.161(3). It will not make their statements inadmissible but just affect the weight of the evidence.\
  • Non-compliance of S.161(3) will not vitiate the entire trial unless it causes prejudice to the accused in his defence and that resulted in a failure of justice.
  • “Statement” includes all written, oral statements and signs and gestures. S.161(3) and S.162 mean all that is stated by a witness to the police during the course of the investigation.

Evidentiary Value of Statements made to the Police

  • A statement recorded by the police officer during investigation is not given on oath or tested by cross examination. According to the law of evidence, this is not evidence of facts stated and so cannot be substantive evidence.
  • 162 bans the use of the statements collected by the police in the course of the investigation for corroboration. However, the proviso says that if the person giving the statement is called as a witness in court, the statement can be used to corroborate his testimony.
  • The expression “statement or any part of a statement” in S.162 is not confined to a single statement given by a witness to a police officer but includes the statements given by him/her on different dates at different stages to the same or different IO.
  • Evidence of a witness in court becomes inadmissible if it is established that the statement was signed by the witness at the instance of the police officer.
  • Defence witnesses cannot be contradicted using such statements. The proviso only applies to prosecution witnesses.
  • The bar in S.162 applies only to “an inquiry or trial in respect of any offence under investigation at the time when such statement was made”.

Inducement or Pressure

  • 163 prohibits the offering of inducement to witnesses to obtain statements.
  • 164(4) overrides this.

Kathi Kalu said that self incrimination is the conveying information based upon the personal knowledge of the given and does not include the mere mechanical process of producing documents in court which do not contain’ any statement of the accused based on his personal knowledge;

Aghnoo Nagesia v. State of Bihar


The appellant was tried for murder. The principal evidence against him consisted of a first information report containing a full confession of the crime. The appellant was convicted under s. 302 Indian Penal Code by the trial court and the High Court upheld the conviction, by special leave he appealed to the Supreme Court.

The question before the court was whether the whole confessional statement in the first information report was banned by s. 25 of the Evidence Act or only those portions of it were barred which related to the actual commission of the crime.


A confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the provocation etc. If the confession is tainted the taint attaches to the whole statement of the accused. [140 B-C]. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. Little substance and content would be left in ss. 24, 25 and 26 if proof of admissions of incriminating facts in confessional statement is permitted.

The appellant’s first information report was a confessional statement to a police officer and as such no part of it could be admitted into evidence on account of the ban in s. 25 except in so far as the ban was lifted by s. 27 and except in so far as it identified the appellant is the maker of the report.

The custody may also mean constructive custody. Therefore, in the current case though the person was technically not in the custody of the police while filing the FIR, it was held that the statement was self-incriminatory.

M.P. Sharma v. Satish Chandra

Issue: Search and seizure of documents under ss. 94 and 96 of the Code of Criminal Procedure. Whether compelled production of items acquired under Section 94 and 96 is within the meaning of Art. 20(3)?

Decision:  Held, that the provision for the search warrants under the first alternative of a. 96(1) of the Code of Criminal Procedure does not offend art. 19(1)(f) of the Constitution. A search and seizure is only a temporary interference with the right to hold the property searched and the articles seized. Statutory recognition in this behalf is a necessary and reasonable restriction and cannot per se be considered to be unconstitutional.

A compelled production of incriminating documents by a person against whom a First Information Report has been made is testimonial compulsion within the meaning of Article 20(3) of the Constitution. But a search and seizure of a document under the provisions of as Section 94 and 96 of the Code of Criminal Procedure is not a compelled production thereof within the meaning of Article 20 (3) and hence does not offend the said Article.

A power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.

V.S. Kuttan pillai v. Ramakrishnan & anr.

Facts:  A search warrant was issued by the magistrate in favor of the petitioner to search the office premises and seize the books, documents etc. described in the application. The office premises is the HDMP Sabha.

Issue:  Whether the documents obtained by manner of search and seizure lead to self-incrimination of the individual?  Whether the Sabha could be searched?

Decision: The court held that the allowing of the search in itself cannot be considered as an act of self-incrimination. The reason being that during the search one does not have to be a party to the search. It is a mere passive submission and not a compulsion on the person being searched. Therefore, the documents therein acquired cannot be said to be inadmissible.

Additionally, the Sabha can be searched as it is a public place within the ambit of Section 93(1)(c) .

Nandini Satpathy v. P. L. Dani


The appellant shall undertake to answer all questions put to her which do not materially incriminate her in the pending or imminent investigations or prosecutions. If she claims immunity regarding any questions she will, without disclosing details, briefly state in which case or offence in the offing makes her reasonably apprehend self- incrimination by her refused answers. If, after the whole examination is over, the officer concerned reasonably regards any refusal to answer to be wilful violation under pretence of immunity from self-incrimination, he will be free to prosecute the alleged offender after studying the refusal to answer in the light of the principles earlier set out, Section 179 I.P.C. should not be unsheathed too promiscuously and teasingly to tense lay people into vague consternation and covert compulsion although the proper office of Section 179 I.P.C. is perfectly within the constitutional limits of Art. 20(3).

161(2) meaningfully uses the expression ‘expose himself to a criminal charge’. Obviously, these words mean, not only cases Where the person is already exposed to a criminal charge but also instances which Will imminently expose him to criminal charges. In Art. 20(3) the expression (accused of any offence’ must mean formally accused in present not in future-not even imminently as decisions now stand. The expression “to be witness against himself” means more than the court process, Any giving of evidence, any furnishing of information, if likely to have an incriminating impact ensures the description of being witness against himself. Not being limited to the forensic stage by express words in Art. 20(3) the expression must be construed to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Art. 20(3).

The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Art. 22(1) is that it is fundamental to the rule of law that the service of a lawyer shall be available for consultation to any accused person tinder circumstances of near-custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. Lawyer’s presence is a constitutional claim in some circumstances in our country also, and, in the context of Art. 20(3), is an assurance of awareness and observance of the right to silence.

Murray v. UK

M was arrested after being found in a house in which an IRA informer, L, had been held captive. On being taken for police questioning M was refused access to a solicitor for 48 hours. M chose to remain silent during a number of police interviews, despite being warned that adverse inferences might be drawn at trial from his silence. He was convicted of aiding and abetting the false imprisonment of L and sentenced to eight years’ imprisonment. The trial judge exercised his discretion under the Criminal Evidence (Northern Ireland) Order 1988 Art.4 and Art.6 to draw adverse inferences from the fact that M refused to account for his presence at the house. When M’s appeal against conviction was dismissed he lodged an application with the European Commission of Human Rights who referred the case to the European Court of Human Rights.

Held, that (1) by 14 votes to five, an accused’s right to silence was not absolute in the sense that no adverse inferences could ever be drawn at trial from that silence. It was a matter for the court in every case to determine what weight should be given to the fact that an accused had chosen not to offer an explanation of the circumstances of his case and to determine whether there had been improper compulsion on the part of the authorities. Having regard to all the evidence in the instant case, it could not be concluded that the drawing of reasonable inferences infringed M’s rights under the European Convention on Human Rights 1950 Art.6(1) and Art.6(2) and (2) by 12 votes to seven, having regard to the scheme under the 1988 Order, it was imperative in the interests of fairness for an accused to have access to a lawyer at the initial stages of police questioning. The refusal of the police to grant M access to a solicitor during the first 48 hours of his detention was therefore in breach of Art.6(1) read with Art.6(3)(c).

State of Bombay v. Kathi Kalu


Whether handwriting and fingerprints would amount to self-incrimination?


Section 73, Evidence Act also contemplates the obtaining of specimen handwriting. If a person gives the specimen handwriting voluntarily ,it cannot be said that he was compelled to give it. If the police merely requests the accused, then it does not amount to compulsion, but if it directs the

“To be a witness” means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.

When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a “personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness’.

A specimen handwriting or signature or finger impressions by themselves are no testimony at all being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable.They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.

Smt. Selvi v. State of Karnataka

Polygraph test, narco-tests etc are considered to be self-incriminations. This is unless it is done voluntarily. Even then, it can be used only as directive evidence.

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Investigation – CrPC Notes

Investigation includes all the proceedings under the CrPC for the collection of evidence conducted by a police officer or any person, other than a Magistrate, who is authorised by a Magistrate.

The Supreme Court has viewed an investigation as consisting of:

  1. Proceeding to the spot
  2. Ascertaining facts and circumstances of the case
  • Discovery and arrest of the suspected offender
  1. Collection of evidence related to the offence – examination of persons related to the case including the written statements; search and seizure of things that may be necessary for the investigation or at the trial stage
  2. Forming an opinion about whether there is a case that can be presented before a Magistrate for trial based on the materials collected.


FIR – Section 154 of CrPC

Contradiction–  Section 157 of IEA

CorroborationsSection 145 of IEA

Cross- examinationSection 145 of IEA

Dying declarationSection 32 of IEA

The basic objective of the FIR is to set criminal law in motion through the agency of the police and to furnish to the police early information of any alleged criminal activity.


The characteristics of an FIR are:

  • It must disclose the commission of a cognizable offence
  • It should be given to the officer-in-charge of a police station
  • It should be at the earliest point in time

If the above conditions are satisfied, the information lodged with the police and recorded under Section 154 CrPC can be treated as an FIR.


Other features of FIRs:

  • In writing
  • If orally given, reduced to writing by the police officer
  • Signed by the person giving it
  • A copy should be delivered to the informant free of charge
  • It can be made by any person irrespective of whether he/she has first-hand knowledge of the crime (except in certain cases)
  • Any delay in making the FIR must be mentioned and explained in the FIR itself
  • Telegrams and telephonic messages cannot be treated as an FIR because they are not given in writing signed by the informant; neither are they reduced to writing by the police and read back to the informant. There is also no guarantee of their authenticity.


The value of the FIR can be explained in the following:

  • Gives the earliest version of the occurrence
  • Not a substantive piece of evidence
  • It can be used for corroboration under Section 157 of the Evidence Act
  • If the maker is if a witness, it can corroborate his testimony (FIRs are recorded before the investigation and so do not come under the purview of Section 162 of the CrPC.)
  • It can be used to contradict the author under Section 145 of the Evidence Act.


Special uses of an FIR:

  • As a conduct under 8 of the Evidence Act if lodged by the accused
  • As an admission under 21 of the Evidence Act if lodged by the accused
  • As a dying declaration, if lodged by the deceased whose death is in the issue
  • As an entry by a public servant in the discharge of his official duties under 35 of the Evidence Act

S.180 of the IPC punishes refusal by the informant to sign the FIR.

If the police refuses to record the FIR, the remedy is provided by S.154(3) of the CrPC.

Tapinder Singh v. State of Punjab

Facts: Tapinder Singh fired 5 shots of bullets on his wife’s sister’s husband. The man was taken to a hospital. There was a phone call made to the police station (anonymous). A dying declaration was also taken from the deceased.


  • Whether the telephonic conversation was the FIR
  • Whether the dying declaration was the FIR


  • The telephonic conversation is not an FIR as it did not in terms clearly specify a cognizable offense and cannot be treated as an FIR. The conversation merely informed the police about the happening of an event, so that further action can be taken.
Dying declaration can be recorded by the Executive Magistrate or any other person in a particular format. Even if it is not in a particular format it would not be in violation to § 162.
  • The dying declaration was taken as the FIR. The importance of it being taken as an FIR is that now it could be corroborated with other evidence. Thus, making the case stronger. 

Aphren Joesph v. State of Kerala

The principal contention on behalf of the appellants (accused) was that there was a major delay in the lodging of the FIR and therefore that itself was sufficient to destroy the credibility of the prosecution case. Therefore, they also alleged that the complaint was not lodged as the prosecution witnesses took that time to concoct the story and they were not actually present at the sight of the crime.

Ratio of the case (majority opinion):

FIR, relating to the commission of an offence, is not a condition precedent to setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by on eyewitness. F.I.R. is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant’s evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish, or before the informants’ memory fades.

Undue or unreasonable delay lodging the F.I.R., therefore, gives rise to suspicion, which put the Court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness of the prosecution version. No duration of time in the abstract can be fixed as reasonably for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case.

In the present case, the eye-witnesses were afraid to go to the police station during night time and their evidence could not be shaken in cross-examination Keeping in view the local tense atmosphere and the effect of the ghastly murder on the eye-witnesses, their strong disinclination to go and lodge the report during the night after the alleged occurrence, which seems quite normal, cannot by itself arouse any suspicion about the prosecution case. Further, both the Courts below have also accepted the prosecution version as a whole, for reasons, which cannot be said to be unsound or implausible. Therefore, the delay in making the F.I.R. has reasonably been explained by the prosecution witnesses.

Conclusion: There is no automatic presumption of lack of credibility of prosecution’s case in the event of a delay in lodging of an FIR. FIR is an important start to the investigatory process, but not the only one (the level of it’s importance has been elucidated above in the ratio). If a delay has occurred, the prosecution has the leeway to establish reasons for the delay and the Court can assess it’s credibility on a case to case basis.

State of Haryana v. Bhajan Lal

Irregularities in the investigation do not vitiate the proceedings.

Ramsinh Bavaji Jadeja v. State of Gujarat


There were two brothers who wanted to watch a movie. The cycle stand owner, the appellants, in the theatre was charging a higher rate of 40ps. when compared to the price of other stands of 30ps hence the deceased decided to park their vehicles in a hotel adjacent to the theatre. This angered the appellants who then refused to let them enter the theatre. This led to a quarrel in which the deceased was hit.


  • Whether the telephonic conversation may be treated as an FIR (as in the case of Soma Bhai State of Gujurat)?


However, it was held that in the current case, unlike in the Soma Bhai case, there was no information with regard to who the accused was amongst other details. This case is in furtherance of the Tapinder case, which held that a telephonic conversation since it did not provide proper information cannot be treated as an FIR and it was a mere information to the police of the happening of the event.

Babubhai v. State of Gujarat

Facts:   FIR 1 (7/7/2008) – There is a fight which ensues between two communities. This fight further leads to massive brawl. By the time the police was informed, the crowd had dispersed.   FIR 2 (8/7/2008) – At about 5.30 pm the same fight continued leading to the murder of 3 people and extensive rioting between the two communities. Some of the conspirators were common in both the FIR and the object of conspiracy in both the cases was not the same.

Issue: This Court while considering the question as to whether investigation and further proceedings on the basis of both the FIRs was permissible held that no straightjacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not.

Held:  After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not identical. Therefore, lodging of two FIRs was held to be permissible.

Reasoning:  In T.T. Antony Vs. State of Kerala, the investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under S.158 of CrPC and all other subsequent information would be covered by S.162 CrPC.

This is for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence report in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the Investigating Officer has to file one or more reports under

S.173 CrPC.

Even after submission of the report under S.173(2) CrPC., if the Investigating

Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report ounder S.173(8) CrPC.

There cannot be any controversy that Clause (8) of S.173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report to the Magistrate. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under S.173(2) CrPC.

It would clearly be beyond the purview of S.154 and 156 CrPC if a case of abuse of the statutory power of investigation in a given case. In the Court’s view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under S.173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under S.482 CrPC which deals with the powers of HC to give an order necessary for securing means of justice or under Articles 226/227 of the Constitution.

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Cognizance – CrPC Notes

Firstly, Section 2(c) and Section 2(l) define cognizable and non-cognizable offences.

  • Cognizable: The police, for a cognizable offence/cognizable case, may arrest without a warrant.
  • Non-cog: Police has no authority to arrest without a warrant.

*Whether an offence is cognizable or not is provided in the First Schedule of the CrPC.

Understand this – two types of people may take cognizance under the CrPC – a police officer and a magistrate. The information may be given to either of the two and the informant has the freedom to approach either one.

Under Section 154 and Section 156, what a police officer must do when the offence is cognizable is given.

  • Under 154 -If information is received by the officer of a cognizable offence, then he will put the information down into writing, read it over to the informant and makes sure he signs the same.
  • Under 156 – he now has the power to launch an investigation, without an order of a magistrate, into the cognizable case.

Under Section 155, what a police officer must do when he is approached with a non-cognizable offence is given. He is to enter the information of the case into a book and refer the informant to a Magistrate. He does not have the power to investigate without the approval of the Magistrate. If he receives the approval, he is to proceed with investigation as if he had powers under Section 156.

*If a case has two or more offences, in which on is cognizable, the entire case shall be deemed to be a cognizable one and the police can investigate without warrant.

Section 2(d) defines a complaint – allegation of an offence made to a Magistrate (does not include a police report)

Section 2(r) defines a police report – a report made a police officer to a magistrate under Section 173(2) of the Code – it is the report forwarded after the completion of the investigation.

What is ‘taking cognizance’ has not been defined in the Code, but it simply means to be aware and when taken in context of a judge it means “to take judicial notice”.

  • The Magistrate takes cognizance when he applies his mind to a suspected commission of an offence with the purpose of proceeding to take steps under Sections 200, 202 or 204 towards inquiry or trial.
  • The Magistrate does not take cognizance when he applies his mind for the purpose of some other kind eg. Ordering an investigation under Section 156(3) or issuing a search warrant for the purpose of investigation.
  • The presumption under Section 156(3) is that the information of a cognizable case has come directly to the Magistrate. He can now do two things. He can send it for investigation by the police, the inference of which is that he has not taken cognizance of the complaint. If he chooses to apply his mind and go through the processes mentioned under Sections 200 -204e. dealing with examination of the complainant, postponement of the issue of process etc.
  • Under Section 156(3) – the police will then submit a report to the Magistrate and he can THEN choose to take cognizance of the report, under Section 190 (1) (b) and issue directions for the process to begin. His conclusion does not depend on what the police have recommended. He can take cognizance of the information in the police report under Section 190 (1)(b) even if the police themselves recommend that there is no grounds for proceeding.
  • The Magistrate can even decide not to take cognizance of the police report, but instead go back to the original complaint and initiate examinations under Section 200 etc (which can be tagged as direct cognizance by the Magistrate).
  • Section 190 (1) (c) – purpose here is to not inhibit the Magistrate from delivering justice just because he has not seen the offence or has not been given a police report. He can act on any source of information.


No cognizance can be taken by the Magistrate in the following offenses : Unless :
Offences involving contempt of lawful authority of public servant (Sec. 172 – 188 of the IPC) On the written complain of the  concerned public servant (Section 195 of the CrPC)
Offences against public justice (Section 193- 196, 199, 200 205- 211 of IPC) On the written complain of the concerned court (Section 195 of the CrPC)
Offences relating to documents produced in court (Section 463, 471, 475, 476 of IPC) On the written complain of the concerned court (Section 195 of the CrPC)
Offences against State etc. (Section 121 – 130, 153 A, 153 B, 295 A, 505 of IPC) With the previous sanction of the appropriate Governemnt or, in certain case, of the Dist. Magistrate (Section 196 of the CrPC)
Offences of criminal conspiracy to commit an offence punishable with less than two years’ imprisonment 9Section 120 B of IPC_) With the written consent of the State Govt. or in certain cases of the District Magistrate (Section 196 of the CrPC)
Offences committed by judge or public servants acting in the discharge of their official duties With the previous sanction of the appropriate Government (Section 197 of the CrPC)
Offences committed by the members of the armed forces acting in the discharge of official duties With the previous sanction of the appropriate Government (Section 197 of the CrPC)
Offences against marriage (Section 493- 498 of IPC) On a complain of the person aggrieved (Section 198 of the CrPC)
Rape by husband against his minor wife (Section 376 of IPC) When the complaint is filed within one year (Section 198(6) of the CrPC)
Offence of defamation etc (Section 499 – 502 of IPC) Upon a complain of some person aggrieved (Section 199 of the CrPC)

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Hierarchy of Criminal Courts & Jurisdiction

The relevant sections for understanding the hierarchy of criminal courts:

 S.6, s.227, s.26, s.28, S. 16, 20, 28 of the Crpc.

The relevant sections for understanding jurisdiction:

S.1, s.177 of Crpc.

The functionaries discharging duties under the Code of Criminal Procedure are many, of which the roles of magistrates and courts is pivotal. The rest are accessories to the process (like the police, public prosecutors, defence counsels, prison authorities etc.)

The Constitution already establishes the SC and HC’s in every State and clearly defines their powers and jurisdictions. Section 374 and 379 of the CrPC allow for appeals to the Supreme Court under certain circumstances and also provides for the transfer of cases from one HC to another or one subordinate court to another, in the interests of justice.

Apart from the SC and the HC’s, Section 6 of the CrPC has specified certain classes of criminal courts:

  • Courts of Session
  • Judicial Magistrates of the First Class and in any metropolitan area – Metropolitan Magistrates.
  • Judicial Magistrates of the Second Class
  • Executive Magistrates.

Every sessions division in the State will have a Court of Session, to be presided over by a judge appointed by the HC. There may be Additional or Assistant Session judges whose exercise of powers of the Court of Session itself, and not a separate Court. They shall be subordinate to the Sessions judge – Section 9.

Section 227 of the CrPC deals with power of the Sessions Court to discharge a case after hearing both sides and viewing all documents.

Section 26 – courts by which offences are triable. (self explanatory)

Section 28: Clearly states that the HC may pass any sentence authorised by the law. However, a Sessions/Additional Sessions Judge may pass any sentence except the death sentence, which requires confirmation by the HC. Similarly, the Assistant Sessions Judge can pass any sentence except for death sentence and life imprisonment (or imprisonment exceeding 10 yrs).

Section 16: specifies the establishment of Metropolitan Magistrates in every metropolitan area. Jurisdiction and power shall extend throughout the metro.

Section 11: Courts of Judicial Magistrates to be established in districts that are not metropolitans. Parallel function to that of Metro judges. Two types – first and second class.

Section 20: Executive Magistrates – as many as the State government thinks is fit – one of them will be the District Magistrate. When an executive magistrate is placed in charge of a particular sub-division, he is known as a Sub-Divisional Magistrate. Both Judicial Magistrates and Executive Magistrates have jurisdiction over a district (if not specified otherwise limited). However, executive magistrates perform the magisterial functions of the executive.

Section 177: the ordinary place of inquiry and trial shall be in the Court in whose jurisdiction the act was committed.

Hierarchy of Criminal Courts & Jurisdiction

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Code of Criminal Procedure – CrPC Notes

Contributed by Nisha Raman, JGLS

Contributed by Nisha Raman, JGLS

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