Download law notes for llb students and more Exams Law in PDF only on Docsity!
Third Semester Three Year LL.B. Examination, January 2011 CRIMINAL LAW – II Criminal Procedure Code, JJ Act and Probation of Offender Act (Course – III) Duration: 3 Hours Max. Marks: 100
Instructions : 1. Answer all five (5) questions.
- Answer one essay type and one short note question or problem from each unit.
- Figures to the right indicate marks.
- Answers should be written either in English or Kannada completely.
UNIT – I
Q.No.1.(a) Examine the procedure for recording First Information Report (FIR). Discuss the evidentiary value of FIR and the effect of delay in lodging the FIR. Marks: 15
ANS : The procedure of filing an FIR is prescribed in Section 154 of the Criminal Procedure Code,
- Commission of a cognizable offence is given orally, the police must write it down. I nformation or making a complaint to demand that the information recorded by the police is read over to you
An information given under sub-section (1) of section 154 CrPC is commonly known as first information report though this term is not used in the Criminal Procedure Code (in short CrPC). It is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under section 169 or 170 CrPC, as the case may be, and forwarding of a police report under section 173 CrPC. It is quite possible and it happens not infrequently that more information than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in section 154 CrPC. Apart from a vague information by a phone call, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of a police station is the first information report- FIR postulated by section 154 CrPC. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 CrPC. No such information or statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC.
Take a case where an FIR mentions cognizable offence under section 307 or 326 IPC and the investigating agency learn during the investigation or receive fresh information that the victim died, no fresh FIR under section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt.
Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns
up the responsibility and during investigation the truth is detected, it does not require filing of fresh FIR against H – the real offender who can be arraigned in the report under section 173(2) or 173(8) of CrPC, as the case may be.
Purpose and Object.
The purpose of registration of FIR is manifold that is to say (1) to reduce the substance of information disclosing commission of a cognizable offence, if given orally, into writing. (2) If given in writing to have it signed by the complainant. (3) To maintain record of receipt of information as regards commission of cognizable offences. (4) To initiate investigation on receipt of information as regards commission of cognizable offence. (5) To inform Magistrate forthwith of the factum of the information received.
The principal object of the FIR from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty.
Evidentiary value of FIR
FIR is not a piece of substantive evidence. It can be used only for limited purposes, like corroborating under section 157 of the Evidence Act or contradicting (cross-examination under section 145 of Evidence Act) the maker thereof, or to show that the implication of the accused was not an after-thought. It can also be used under section 8 and section 11 of the Evidence Act. Obviously, the FIR cannot be used for the purposes of corroborating or contradicting or discrediting any witness other than the one lodging the FIR. It cannot be used for corroborating the statement of a third party. If the FIR is of a confessional nature it cannot be proved against the accused-informant, because according to section 25 of the Evidence Act, no confession made to a police officer can be proved as against a person accused of any offence. But it might become relevant under section 8 of the Evidence Act.
The statements made to the police are if three categories- a) A statement which has been recorded as an First Information Report ( herein after referred to as FIR) b) statement recorded by the police in the course of investigation c)a statement recorded by the police but not falling under the above (a) and (b) category.
None of the above statements can be considered as substantive evidence, that is to say, as evidence of facts stated therein. Because it is not made during trial, it is not given on oath, nor is it tested by cross- examination. If the person making any such statement to the police subsequently appears and gives evidence in court at the time of trial, his former statement could , however be used to corroborate or to contradict his testimony according to the provisions of the Evidence Act, 1872.
Section 157 of the Evidence Act is as follows: “In order to corroborate the testimony of a witness, any former statement made by such a witness relating to the same fact, at or about the time when the offence took place, or before any authority legally competent to investigate the fact may be proved.”
Further, Section 145 of the Evidence Act provides:
It was held that, in these circumstances, the explanation offered by the informant for not lodging the FIR after the occurrence, was quite satisfactory, and convincing and there was no deliberate delay on his part in reporting the crime to police and, therefore, FIR would not be liable to be rejected on ground of delay in lodging.
If lodging F.I.R. in a rape case was delayed for two days, the delay will be deemed to have been reasonably explained where the honour of the family was involved and its members had to decide whether to take the matter to the Court or not. Two days delay is not fatal to prosecution when rape committed on minor girl and her father is illiterate villager. Delay stands well explained if it is due to anxiety of the relatives for providing medical aid.
In case of gruesome murder in the family, the family members must take some time to reconcile to what happened and the delay in lodging F.I.R. is held not fatal.
The delay in transmission of the copy of the F.I.R. to the magistrate if not properly explained may also make the prosecution story suspicious that the report was recorded much later than the stated date. Mere omission to mention the time of dispatch of the F.I.R. to Court is, however, immaterial. If the dead body is sent for post-mortem examination within a reasonable time, it gives an assurance that the case was registered at the time alleged in the F.I.R.
Where accused alleges that original F.I.R. has been substituted by another one, in spite of Court’s order, F.I.R. book and General Diary of Police Station are not produced before Court Court can draw inference that original F.I.R. has been replaced by another F.I.R., rendering the prosecution story suspicious. An F.I.R. or charge-sheet against the accused is not violative of constitutional mandate under Article 21 of the Constitution.
The High Court exercising inherent powers under Section 482 of the Code of Criminal Procedure cannot quash F.I.R., more so when even investigation has not yet commenced. Quashing of F.I.R. under Article 226 of the Constitution of India shall be used only in rarest of rare cases. Writ petition for quashing F.I.R. was found not maintainable.
OR
State the circumstances under which the police officer can arrest a person without warrant.
ANS : Arrest means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus, after arrest, a person's liberty is in control of the arrester. Arrest is an important tool for bringing an accused before the court as well as to prevent a crime or prevent a person suspected of doing crime from running away from the law. Cr P C contemplates two types of arrests - an arrest that is made for the execution of a warrant issued by a magistrate and an arrest that is made without any warrant but in accordance with some legal provision that permits arrest.
Section 41 to 44 contain, provisions that govern the arrest of a person by police and private citizens, while Section 46 describes how an arrest is a made.
Arrest without warrant There are situations when a person may be arrested by a police officer, a magistrate or even private citizen without a warrant. These are described in Section 41, 42, 43, and 44 as follows -
Arrest by Police - Section 41. When police may arrest without warrant (CIPSODOBO) (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -
(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or (b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or (I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.
In the case of Joginder Kumar vs State of UP, CrLJ, 1994 , it was held that no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest. Further, in State vs Bhera, CrLJ, 1997 , it was held that the "reasonable suspicion" and "creditable information" must relate to definite averments which must be considered by the Police Officer himself before he arrests the person.
Section 42 allows a police officer to arrest a person for a non-cognizable offence, if he refuses to give his name and residence. As per Section 42(1) , when any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
However, as per sub clause (2), the person must be released when the true name and residence of such person have been ascertained. He may be required to execute a bond, with or without sureties, to appear before a Magistrate if necessary.
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India
Further, as per sub clause (3), should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
by the High Court. Further, the CMM can make rules consistent with the Code and can also distribute the work among the Metropolitan Magistrate. [Section 19]
Triable Cases As per Section 26, Court of Metropolitan Magistrate can try offence which has shown to be triable by the Court of Metropolitan Magistrate in the First Schedule.
Punishment CMM may pass any sentence authorised by the law except a sentence of death or of imprisonment for life or a term exceeding seven years whereas a Metropolitan Magistrate can pass a sentence for a term not exceeding three years or fine not exceeding five thousand rupees or both. [Section 29]
Court of Judicial Magistrate Establishment As per Section 7, each division is divided into districts and the State Government in every district after consultation with the High Court will establish as many Courts of Judicial Magistrates of First Class and Second Class as it may deem fit. The presiding officer of such Courts shall be appointed by the High Court. [Section 11] In every district a Judicial Magistrate of First Class (JMFC) will be appointed as a Chief Judicial Magistrate (CJM) under Section 12 of CrPC. The High Court can also appoint any JMFC to be an Additional CJM. A CJM, subject to the control of High Court, can define the local limit of the areas within which the Magistratesappointed under Section 11 or Section 13 can exercise their powers. [Section 14]
Subordination As per Section 15, a CJM will be subordinate to the Sessions Judge and the other Judicial Magistrate will be subordinate to CJM, subject to general control of Sessions Judge. Also, the CJM can make rules consistent with this Code and can distribute the work among the Judicial Magistrate subordinate to him.
Triable Cases As per Section 26, Court of Judicial Magistrate can try offence which has shown to be triable by the Court of Judicial Magistrate in the First Schedule.
Punishment CJM may pass any sentence authorised by law except a sentence of death or of imprisonment for life or a term exceeding seven years whereas a JMFC can pass a sentence for a term not exceeding three years or fine not exceeding five thousand rupees or both. Judicial Magistrate of Second Class can pass a sentence of imprisonment wherein the term will not be exceeding one year and in terms of fine, the amount will not exceed one thousand rupees, or of both. [Section 29]
Court of Executive Magistrate Establishment Under Section 20, the State Government in every district and in every metropolitan area will appoint as many Executive Magistrates as it thinks fit and shall appoint one of them as District Magistrate (DM). The State Government can also appoint any Executive Magistrate as an Additional District Magistrate (ADM) who will have same power as that of a DM. The DM subject to the control of State Government will define the local limits in which the Executive Magistrate can exercise their power.
Subordination
Every Executive Magistrate other than ADM will be subordinate to the DM and every Executive Magistrateexercising power in a Sub-division shall also be subordinate to the Sub-Divisional Magistrate, subject to the general control of DM. [Section 23]
Triable Cases As per Section 3(4)(b), the matters which are administrative or executive in nature will be exercisable by an Executive Magistrate.
Order The order that can be passed by an Executive Magistrate will be either administrative or executive in nature and hence it will depend on the facts and circumstances of the case.
OR
Explain the provisions of cr.p.c. relating to summary trials. Marks: 5
ANS :
Summary jury trial is an alternative dispute resolution technique, increasingly being used in civil disputes in the United States. In essence, a mock trial is held: a jury is selected and, in some cases , presented with the evidence that would be used at a real trial.
Cr.P.C. Sections 260 to 265 deal with the Summary Trials. Provisions of Cr. P.C. relating to Summary Trials :
Trial before Magistrates Court Summary trial
Section 260 of CrPC, 1973, empowers the Magistrates Court to try certain offences in summary fashion. In Summary trials, the procedure prescribed for trial of summons-case are to be followed. However, in such trial, in the case of any conviction, sentence of imprisonment cannot exceed three months.
Section 260: Power to try summarily (1) Notwithstanding anything contained in this Code (a) any Chief Judicial Magistrate; (b) any Metropolitan Magistrate; (c) any Magistrate of the first class specially empowered in this behalf by the High Court, may, if he thinks fit, try in a summary way all or any of the following offences: (i) offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years; (ii) theft, under section 379, section 380 or section 381 of the Indian Penal Code, 1860 (45 of 1860), where the value of the property stolen does not exceed two thousand rupees; (iii) receiving or retaining stolen property, under section 411 of the Indian Penal Code, 1860 (45 of 1860), where the value of the property does not exceed two thousand rupees; (iv) assisting in the concealment or disposal of stolen property, under section 414 of the Indian Penal Code, 1860 (45 of 1860) where the value of such property does not exceed two thousand rupees; (v) offences under sections 454 and 456 of the Indian Penal Code, 1860 (45 of 1860); (vi) insult with intent to provoke a breach of the peace, under section 504 and criminal intimidation punishable with imprisonment for a term which may extend to two years, or with fine, or with both, under section 506 of the Indian Penal Code, 1860 (45 of 1860); (vii) abetment of any of the foregoing offences; (viii) an attempt to commit any of the foregoing offences, when such attempt is an offence;
Instructions for leading Oral and documentary evidence http://commonlaw-sandeep.blogspot.in/2016/03/leading-evidence-during-trial.html
- Oral arguments and memorandum of arguments: The Prosecution, after the conclusion of their evidence, is entitled to offer oral arguments in respect of their whole case; and may also submit a written arguments setting forth concisely and under distinct headings, the arguments in support of their case and such written submission forms part of the record. No adjournment of the proceedings shall be granted for the purpose of filing the written submissions unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment. The Court may, if it is of opinion that the oral arguments are not concise or relevant, regulate such arguments. A copy of every such submission should be furnished to the opposite party. [ Section 314]
- Examination of accused u/s 313: After taking evidence of all prosecution witnesses, by reason of mandate of section 313 of CrPC, 1973, the Judge would bring to the notice of the accused, all the evidence which has come against him and would call upon the accused as what he has to say on those evidences. Such recording of statement of accused u/s 313 is not on oath. The accused may also submit a written submission in this behalf. It is extremely important to bear in mind that whilst examination of accused under this section, all the evidences led by the prosecution must be brought to the knowledge of the accused. If any of the evidence was omitted to be brought to his knowledge, the said evidence cannot be relied upon by the Court whilst recording his findings and passing order of conviction. However, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination. 8. Section 254: Evidence of accused: After the conclusion of evidence of the prosecution, the Magistrate would call upon the accused person to state his defense, if he has any and if he so wishes. The Magistrate may, if he thinks fit, on the application of the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.
Instructions for leading Oral and documentary evidence
- Oral arguments and memorandum of arguments: After the examination and cross examination of defense witnesses, if there were any, the accused would summarize the whole case before the Court and is also entitled to file written submission in that behalf. However, no adjournment of the proceedings would be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment. The Court may, if it is of opinion that the oral arguments are not concise or relevant, regulate such arguments. A copy of every such submission should be furnished to the opposite party. 10. Section 255: Acquittal or conviction: If the Magistrate, upon taking the evidence referred to in section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he would record an order of acquittal. If the Magistrate finds the accused guilty, and in case the Magistrate does not proceed in accordance with the provisions of section 325 or section 360, he would pass the sentence upon the accused according to law. The provisions of Sections 325 and 360 are stated hereinafter. A Magistrate may, under section 252 or section 255, convict the accused of any offence triable under this Chapter, which from the facts admitted or proved, he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced there by.
Section 263: Record in summary trials In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely: (a) the serial number of the case; (b) the date of the commission of the offence; (c) the date of the report or complaint; (d) the name of the complainant (if any); (e) the name, parentage and residence of the accused; (f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed; (g) the plea of the accused and his examination (if any); (h) the finding; (i) the sentence or other final order; (j) the date on which proceedings terminated.
Section 264: Judgment in cases tried summarily In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.
Section 265: Language of record and judgment (1) Every such record and judgment shall be written in the language of the Court. (2) The High Court may authorize any Magistrate empowered to try offences summarily to prepare the aforesaid record or judgment or both by means of an officer appointed in this behalf by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by such Magistrate.
UNIT – II
Q.No.2.(a) Discuss the provisions relating to bail in non-bailable offences. Marks: 15 ANS : Code of Criminal Procedure Act
Section 437.When bail may be taken in case of non-bailable offence:
(1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.
Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.
Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (I) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
Section 83 - Attachment of property of person absconding (1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:
Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise that the person in relation to whom the proclamation is to be issued, - (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation. (2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate. (3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made- (a) by seizure; or (b) by the appointment of a receiver; or (c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; on (d) by all or any two of such methods, as the Court thinks fit. (4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases- (a) by taking possession; or (b) by the appointment of a receiver; or (c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or (d) by all or any two of such methods, as the Court thinks fit. (5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court. (6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908(5 of 1908).
Section 84 - Claims and objections to attachment (1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part: Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.
(2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under sub-section (2) of section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made. (3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made: Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him. (4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub- section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.
Section 85 - Release, sale and restoration of attached property (1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment. (2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit. (3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale, and the residue of the property, shall, after satisfying there from all costs incurred in consequence of the attachment, be delivered to him.
Section 86 - Appeal from order rejecting application for restoration of attached property Any person referred to in sub-section (3) of section 85, who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof may appeal to the Court to which appeals ordinarily lie from the sentences of the first-mentioned Court.
(b) ‘A’ is accused of a theft on one occasion and causing grievous hurt on another occasion. Can ‘A’ be charged and tried in one trial? Give reasons. Marks: 5
ANS : No, the accused cannot be charged and tried in one trial, because as per Section 218 Cr.P.C., for every specific offence, there must be a separate charge.
However, on the written application of the accused, the Magistrate may try all or any number of charges jointly against such person.
The illustration to Sec. 218 reads -
1. The person must be accused of an offence. The word offence has to be taken in the sense in which it is used in the General Clauses Act, 1897 as meaning ‘an act or omission made punishable by any law for the time being in force’. 2. The person should have been prosecuted before a Court or a judicial tribunal. The term prosecution means initiation or starting of any proceedings, criminal in nature, before a court, or a judicial tribunal. It means that Art. 20(2) would have no application where the proceedings are held under any revenue authorities.
In Maqbool Hussain v. State of Bombay, the appellant, a citizen of India, brought from a foreign country some gold without making a declaration. The Customs Authorities took action against him under Sec. 167 of the Sea Customs Act, 1878 and confiscated the gold. Subsequently, he was charged under Sec. 8 of the Foreign Exchange Regulation Act, 1947 and prosecution started against him under the said Act. A Constitution Bench of the Supreme Court held that the Sea Customs Authorities were not a court or a judicial tribunal and confiscation of gold be them did not constitute a judgment. Thus the plea of double jeopardy could not be maintained.
3. (^) The person must have been punished after his prosecution before a Court or judicial tribunal. The protection against double jeopardy under this article would be applicable only if the accused has been not only prosecuted but also punished after such prosecution. Therefore, if there is no punishment for the offence as a result of the prosecution this article will have no application.
The words “prosecuted and punished” are not to be taken distributively so as to mean prosecuted or punished. Both the factors must co-exist.
4. The person must be prosecuted for the second time before a Court or a judicial tribunal. Art. 20(2) would have no application where the person is prosecuted and punished for the second time, but the subsequent proceedings is merely the continuance of the previous proceeding, as is the case of an appeal. 5. The offence must be the same in both the proceedings. Further, Art. 20(2) can operate as a bar only when the second prosecution and punishment is for the identical offence for which the person concerned has already been prosecuted and punished earlier. The same offence means an offence whose ingredients are the same. If the offences are distinct, there is no question as to the rule of double jeopardy being applicable. If one and same act of a person constitutes two different offences, then the punishment for one offence does not bar the prosecution and punishment for the other offence.
OR
Explain the scope of maintenance to wife, children and parents under Cr.PC. State the circumstances under which maintenance once granted could be altered. ANS : Section 125 of Cr. PC – Order for Maintenance of Wives, Children and Parents F 0 B 7If any person having sufficient means neglects or refuses to maintain.- a. his wife, unable to maintain herself, or b. his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or c. his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or d. his father or mother, unable to maintain himself or herself, A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this Sub-Section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.”;
Explanation – For the purposes of this Chapter-
a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of
- is deemed not to have attained his majority;
b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. F 0 B 7“Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.”; F 0 B 7If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any port of each month’s allowance allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation – If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. F 0 B 7No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent. F 0 B 7On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by
Asha Pant vs State And Ors. on 17 March, 2008 Author: S Muralidhar Bench: S Muralidhar
JUDGMENT S. Muralidhar, J.
- These petitions under Section 482 of the Code of Criminal Procedure, 1973 ('CrPC') challenge two Kalandaras arising out of the same set of events. The first is titled State v. Asha Pant And Anr. and the other is titled State v. Kanwal Chaudhri and Anr. both pending in the court of Special Executive Magistrate ('SEM'), New Delhi and the notices issued to the petitioners in each of the petitions under Sections 107 and 111 CrPC.
- The events leading to the filing of the present case, as stated in the petition Crl.M.C. No. 2077 of 2006, is that the property at 10A Kasturba Gandhi Marg, New Delhi (hereinafter 'the property') was owned by Mrs. Kanwal Chaudhri, the Petitioner No. 1 in Crl. M.C. 2416-17 of 2006. Mr. Ranjan Pant , the husband of Mrs. Asha Pant, the petitioner in Crl.M.C. No. 2077 of 2006, purchased a portion of the said property from Mrs. Kanwal Chaudhri on 8th July, 2002. It is stated that Mrs. Asha Pant and her husband stay out of Delhi most of the time as they are engaged in consultation business. Although according to Mrs. Pant things were peaceful soon after the purchase of the portion of the property, she was surprised when some time in 2003 Mrs. Chaudhri filed a Civil Suit No. 1447 of 2003 against her claiming that she was the owner of the entire first floor including the appurtenances to the portion sold by her to Mr.Pant. This led to further cases filed by one party against the other. Mr. Pant filed Suit No. 1453 of 2003 in this Court against Mrs. Chaudhri. Mrs. Chaudhri filed Complaint Case No. 1406/1 of 2003before the learned Metropolitan Magistrate ('MM') against Mr. Pant in which he was summoned. Mr. Pant filed Criminal Writ Petition No. 335 of 2004 in which a stay of the above Criminal Complaint case was granted. Consequent upon an order by the learned MM under Section 156 (3) CrPC, FIR No. 126 of 2004 was registered against Mr.Pant. This led to the filing of another Criminal Writ Petition No. 1334 of 2004 by him in this Court. The said writ petition was listed for final disposal on 21st February, 2005.
- On 31st March 2006 Mrs. Chaudhri complained to the police about a quarrel that took place between her and some unknown person in relation to an attempted trespass on the property. It appears that Mrs. Pant too gave a complaint at the same time as is evident from the following entry in DD No. 21A was recorded by ASI Naubat Ram, Police Station Tilak Marg at 7.45 pm on 31st March, 2006: That Smt. Kanwal Chaudri and Smt. Pant submitted their respective complaints in writing to Additional SHO that civil and criminal cases are pending between both the parties and both of them keep on complaining against each other.... No cognizable offence is found to take place hence DD No. 11-A is filed.
- According to Smt. Asha Pant within 24 hours of the aforementioned DD, another DD entry No. 12A dated 1st April, 2006 was recorded at her instance when she informed the police that somebody who had forcibly entered the property had been detained by her.
- Turning to the narration in Crl. M.C. No. 2416 of 2006, Petitioner No. 1 Mrs. Chaudhri does not dispute that the first floor of the premises was sold by her to Mr. Ranjan Pant. She states that the remaining portion of the property and the second floor was owned and used by her. According to her the Pants had started claiming exclusive rights to the common staircase and in the process often obstructed the passage hampering the usage of the same by Mrs.Chaudhri and her employees on some pretext or the other. She also adverted to the fact that a civil suit for injunction was filed by her in this Court which is pending adjudication. She also acknowledges that Mr. Pant had filed a suit.
- According to Mrs. Chaudhri on 31st March 2006, Mrs. Pant had placed an almirah at the front of the staircase and also occupied a certain area on the top portion of the staircase in front of the servant quarters, in violation of the status quo order. It is then stated that Mrs. Chaudhri reported the matter to the police on the same date. It is stated that on 1st April, 2006, "another incident took place and the same was also reported but the police failed to take an action against Asha Pant and another." She states that later she learnt that a kalandara DD No. 25 A dated 1st April 2006 had been drawn up at the instance of Mrs. Pant.
- On the basis of the kalandaras as noticed hereinbefore notices under Sections 107 and 111CrPC were issued to both parties by the Special executive Magistrate (SEM). The notice issued to Mrs. Pant reads as under:
IN THE COURT OF SH ONKAR PRADAD SPECIAL EXECUTIVE MAGISTRATE POLICE
STATION PARLIAMENT STREET NEW DELHI DISTT, NEW DELHI.
NOTICE UNDER SECTION 107/111 Cr.PC Whereas, as has been made to appear to me be a credible information received in the report of SHO/- Tilak Marg New Delhi and complaint filed through SI Rajender Pradad that you Mrs. Asha Pant W/o Sh. Ranjan Pant R/o 10-A, 'B' Portion Flat, First Floor Kashtourba Gandhi Marg New Delhi on 1.4.06 at Kothi No. 10-A, K.G. Marg New Delhi along with your associate were likely to pick up quarrel with Kanwal Choudhary and others, over the issue of use of common stair case/passage. You created nuisance there and also threatened them with dire consequences. And thus there is every likelihood of disturbance of peace and public tranquility with in the area of this court.
And that you are likely to commit a breach of peace or to do a wrongful act which may probably accession in breach of peace or disturbance of public tranquility with in the jurisdiction and local limits of this court. I am therefore, satisfied that there are sufficient ground to initiate proceeding against you under Section 107/150 Cr.PC.
I Onkar Prasad Special Executive Magistrate, New Delhi Distt. New Delhi hereby require you to attend in persons of (by a duly authorised agent) in my court on the date of 7.4.2006 at 2.00 PM to show cause as to why you may not be required to execute a personal bond in the sum of Rs.20,000 with one surety/ Sureties in the sum of Rs. 20,000/- that you will keep peace for a period of one year.
Given under my hand and seal of this court on the dated 3.4.06. Case to come up on 10.4.06.
OR
A case is committed to Judicial Magistrate of First class for trial by a Sessions Court under S-307 of Cr.PC which court has the jurisdiction and power that could tender pardon to the accused? Decide giving reasons.
ANS : Section 307 - Power to direct tender of pardon At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.
Section 308 - Trial of person not complying with conditions of pardon
(1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by willfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence:
Provided that such person shall not be tried jointly with any of the other accused:
