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4.1-Criminal Law II (Cr.P.C.)

Lecture – 1 Introduction

The criminal law can be set into motion mainly by two methods -
a) First, by lodging a F.I.R. in the police station and
b) Second, by lodging a complaint directly to the Magistrate.
Whenever an F.I.R is lodged (S.154 & 155 Cr.P.C.) in the police station, police takes
the cognizance of offence. Police can take the cognizance directly in all cognizable
offences without the orders of the Magistrate. If the offence is of non-cognizable nature
then police has no authority to start investigation without the orders of the Magistrate.
The term ‘cognizable offence’ and ‘cognizable case’ have been defined in S.2(c) of
Cr.P.C. Cognizable offence means an offence for which, and cognizable case means a
case in which, a police officer may, in accordance with the first schedule attached to
Cr.P.C. or any other law for the time being in force, arrest without warrant. Meaning
thereby, whether an offence is cognizable or not we have to look into the schedule
attached to Cr.P.C.
Second method of initiating the criminal process is complaint. Complaint u/s 2 (d)
means any allegation made orally or in writing to a Magistrate, with a view to his taking
action under this code, that some person, whether known or unknown, has committed
an offence, but does not include a police report. Magistrate is authorized to take
cognizance of offence upon a complaint u/s 190 (1) (a) Cr.P.C. Whenever a complaint is
lodged directly to the Magistrate, he may take the cognizance himself and examine the
complaint (S.200 Cr.P.C.). He may also take the statement of witnesses to the crime, if
any, u/s 202 Cr.P.C. If, after considering the statements on oath of the complainant
(S.200) and of the witnesses (S.202) the Magistrate is of the opinion that there is no
sufficient ground for proceeding, he shall dismiss the complaint (S.203) and shall
briefly record his reason or doing so. But if in the opinion of the Magistrate, there are
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sufficient grounds for proceeding, he may issue the process u/s 204 Cr.P.C. and may
issue summons or warrants to the accused.
Magistrate has another option besides taking cognizance; he may empower the
police officer to investigate the matter (S.156 (3). Similar powers police acquires when
the F.I.R. of a non-cognizable offence is registered. In such case police officer shall not
investigate a non-cognizable offence without the orders of the Magistrate but if the
Magistrate orders for police investigation then police officer may exercise same powers
in respect of investigation except the power to arrest without warrant as in cognizable
case. In cognizable offence the police is fully empowered to investigate the case
without the orders of the Magistrate and has power to arrest the accused without
warrant. S.154 to 173 Cr.P.C. deal with the process of investigation.
There are three stages of a criminal proceeding, i.e.,
a) Investigation, b) Inquiry and c) Trial (I I T).
Investigation is always done by police while inquiry is done always by the orders
of the Magistrate. In complaint cases, truly speaking, the stage of investigation is absent
because the cognizance is directly taken by the Magistrate and the investigation, if any,
done by the police is done on the orders of the Magistrate only. The investigation results
into,
(a) filing of charge sheet/challan showing that a particular offence is made out or final
report that no case is made out (S.173 Cr.P.C.) or
(b) that there is no sufficient evidence or reasonable ground for forwarding the accused
to a Magistrate, i.e., final report (S.169 Cr.P.C.). The inquiry always results into either
charge or discharge. It is only after the framing of charge that the trial begins. There are
five types of trials in Cr.P.C.: -
a) Session trial (S.225-235),
b) Warrant trial on police report (S.238-243 and 248),
c) Warrant trial otherwise than on police report, i.e., Complaint case (S.244-250),
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d) Summons trial (S.251-259) and

e) Summary trial (S.260-265).
Term investigation has been defined u/s 2 (h); investigation includes all the
proceedings under this code for the collection of evidence conducted by a police officer
or by any person (other than a Magistrate) who is authorized by a Magistrate in this
behalf. Inquiry has been defined u/s 2 (g); inquiry means every inquiry, other than a
trial, conducted under this code by a Magistrate or court. Inquiry and trial are together
known as judicial proceedings. (Inquiry + Trial = Judicial Proceedings)
After filing of a complaint or after receiving a police report u/s 173 Cr.P.C. the
Magistrate may issue process for the appearance of accused to attend the trial before the
court. Magistrate may issue (i) summons (ii) bailable warrants (iii) non-bailable
warrants. Mainly there are three methods to compel the presence of the accused before
the court for trial, i.e., by issue of summons, by arrest and bail.
In summons cases, ordinarily the summons are issued first (S.204 r/w S.2 (w), while
in warrant cases court may issue warrants in the first instance. Warrant-case means a
case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding 2 years (S.2 (x). Summons-case means a case
relating to an offence punishable upto 2 years and not exceeding 2 years (S.2 (w).
Summons are ordinarily issued in all summons cases and also in warrant cases at
court’s discretion (S.204 r/w 2 (x). Warrants are issued in all warrants cases and also in
summons cases (S.87). If the accused is present in the court when the Magistrate takes
cognizance of the case, Magistrate may require him to execute a bond for appearance
(S.88). If the accused in any case commits breach of this bond, warrant may be issued
for his appearance u/s 89 Cr.P.C.
Arrest by the police without warrant is also a method to produce the accused before
the court for trial. Police officers are authorized to arrest without warrant an accused
who has committed a cognizable offence (S.41). The police officer has also power to
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arrest a person on his refusal to give his name and address if he has committed a non-
cognizable offence in his presence (S.42). Private persons are also authorized to arrest
any person, who in his presence commits a non-bailable and cognizable offence (S.43).
Likewise Magistrate himself may arrest the offender without warrant u/s 44 Cr.P.C.
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Lecture - 2 Classification of offences
In Cr.P.C., offences are classified as: -
a) Cognizable and non-cognizable offences.
b) Bailable and non-bailable offences.
c) Compoundable and non-compoundable offences (S. 320)
Whether the offence is cognizable or non-cognizable police officer or court is not
supposed to apply its mind. One has to look into schedule attached to Cr.P.C. Column
no. 4 of schedule classifies all I.P.C. offences either into cognizable or non-cognizable
offences. The significance of this classification is that in cognizable offences police
officer can start investigation suo moto and can arrest without warrant, whereas in non-
cognizable offences police comes into motion only upon the orders of the Magistrate.
Column 5 of the schedule classifies all I.P.C. offences into bailable or non-bailable
offences. Bailable offence means an offence, which is shown as bailable in the first
Schedule, or which is made bailable by any other law for the time being in force (S.2
(a). A non-bailable offence means an offence, which is non-bailable (S.2 (a). The
significance of this distinction is that in bailable offences accused has a right to get bail
(S.436) while in non-bailable offences; it is at the discretion of the court whether to
grant bail or not (S.437). New Cr.P.C. of 1973 also provides for ‘Anticipatory Bail’ to a
person apprehending arrest for a non-bailable offence (S.438).
Next classification of offences from another dimension is compoundable and non-
compoundable. Word compoundable means to forbear from prosecuting or to
compromise or to come to terms with a person, for forgoing a claim for an offence.
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S.320 of the code provides for compounding of certain offences. There are two tables in
S.320. The offences mentioned in the first table can be compounded by the person who
was aggrieved and launched the criminal proceedings. But the offences mentioned in
the second table u/s 320 (2) can be compounded only with the permission of the court
by the aggrieved person, who had originally set the criminal law into motion. The
composition of an offence u/s 320 shall have the effect of an acquittal of the accused
with whom the offence has been compounded.

Lecture – 3 Hierarchy of Criminal Courts

Hierarchy of criminal courts under Cr.P.C. has been created for the trial of offences
and rectification of errors. This hierarchy along with their powers is as follows: -
1. Supreme Court – (Any sentence, any fine, authorized by law)
2. High Court – (Any sentence authorized by law)
3. Session Court including Additional Sessions Judge – (Any sentence authorized
by law but the death penalty is subject to confirmation by High Court – (S.366
Cr.P.C.)
4. Assistant Session Judge – (sentence not exceeding 10 years, no fine limits).
5. Chief Judicial Magistrate including A.C.J.M. – (Chief Metropolitan Magistrate
including A.C.M.M. in Metropolitan areas) – Sentence not exceeding 7 years, no
fine limit.
6. Judicial Magistrate Class Ist – Metropolitan Magistrate in Metropolitan area –
(sentence not exceeding 3 years and fine not exceeding Rs. 10,000/-) (as
amended by Cr.P.C. Amendment Act, 2005).
7. Judicial Magistrate Class IInd – (sentence not exceeding one year and fine not
exceeding Rs. 5,000/-) (as amended by Cr.P.C. Amendment Act, 2005).
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These powers of criminal courts are defined u/s 28 and 29 of the Cr.P.C. Sentence
may be imposed in default of payment of fine but such sentence shall not exceed 1/4 th of
the term of imprisonment which is maximum fixed for the offence (S.65 I.P.C.).
If the Magistrate thinks that the offence, which he is trying, deserves a punishment,
which is beyond his power, he shall transfer the case to a higher Magistrate having the
powers (S.325). The Magistrate should be competent to impose the sentence on the
offences individually. But if a person is convicted, it shall not be necessary for the court
to send the offender for trial before a higher court by reason only of the aggregate
punishment for several offences exceeds the total limits for which the Magistrate is
competent.
To conclude, the rationale behind the creation of hierarchy of criminal courts is first
to assign petty matters to lower criminal courts so that experienced judges may be
awarded more serious matters. When a challan under M.V. Act can be tried and
summarily disposed of by a newly appointed Magistrate, why an experienced judge
with much higher salary be assigned the same job. Thus, saving a public exchequer is
the first rationale behind creation of hierarchy of courts. Secondly, hierarchy is meant
for rectification of human errors committed by lower courts.
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Lecture 4 Bail
The idea behind the arrest and detention of the accused persons is to secure his
attendance at the time of trial and to ensure that if he is found guilty he is available to
receive the sentence. If his presence can be procured before the court otherwise than by
arrest and detention then the concept of personal liberty (A.21) demands that the person
should be released on bail.
Word ‘Bail’ is nowhere defined in the Cr.P.C. Bail is to procure the release of a
person from legal custody with an undertaking that he shall appear at the time and place
designated and submit himself to the jurisdiction and judgment of the court.
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When a person is accused of a serious crime and is likely to be convicted and

punished for such a crime and chances are that he will abscond or jump bail; if such
person is arrested, it is not desirable to grant him bail and restore his liberty. Similarly,
if the arrested person, if released on bail, is likely to temper with the prosecution
witnesses and obstruct in the conduct of the trial, or is likely to commit more offences
during the period of his release on bail, it would be improper to release such person on
bail. On the other hand, where there are no such risks involved, the person should be
released on bail.
“The bail and not the jail” should be the rule because accused is presumed to be
innocent unless and until proved guilty hence it would be unjust to keep him in jail
before his guilt is proved. The law of bail, truly speaking, has to balance out between
individual liberty of the accused and the liberty of the society, in the sense of its
protection.
The Cr.P.C. has classified all offences into bailable and non-bailable, as per schedule
attached to it. An analysis of the schedule shows that all serious offences, i.e., offences
punishable with imprisonment for three years or more have been classified as non-
bailable though there are exceptions to this rule. (Part IInd of schedule)
If a person accused of bailable offence is arrested or detained without warrant, he
has the right to be released on bail but if the offence is non-bailable then it does not
mean that the person accused of such offence shall not to be released on bail. In such
cases bail is not a matter of right but a matter of discretion only.
Bail in Bailable offence: - S.436 Cr.P.C. says that when any person who has committed
a bailable offence is arrested or detained without warrant by the police or appears or is
brought before a court, such a person shall be released on bail. This bail may be granted
by the police officer at the police station or by the Magistrate in the court. Such person
is generally required to produce bail bond of 2 sureties to the satisfaction of police
officer or the court, but such a person may be released on his executing a bond without
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sureties also. Police or the court has no option but to grant the bail in bailable offence. It
may be recalled that u/s 50 (2) it is mandatory for a police officer to inform the accused
of his right of bail as soon as he is arrested. If the accused person is ready to give bail,
the police or court is bound to release him.
S.436 (2) makes it clear a provision to the effect that a person who absconds or has
broken the condition of his bail bond when he was released on bail in bailable cases on
a previous occasion, he shall not be entitled to bail when brought to the court on any
subsequent date even though the offence is bailable. Meaning thereby, that the court
may refuse to release him on bail if he has failed to comply with the conditions of the
bail-bond as regards the time and place of attendance. But if the person released on bail
in bailable offence indulges in acts which are against the concept of fair trial, the High
Court or Court of Session may cancel his bail and commit him to custody (S.439 (2).
Whenever an accused person is arrested and detained by the police during
investigation and it appears that the investigation cannot be completed within 24 hours
as fixed by S.57, the accused persons has to be forwarded to the nearest judicial
Magistrate for remand (S.167). The Magistrate to whom the accused was so forwarded
may from time to time authorized the detention of the accused either in police custody
or in judicial custody (remand). Maximum police remand of 15 days can be granted. If
further detention of the accused is necessary for the purpose of investigation, the police
may ask for further remand and the Magistrate may grant further judicial remand for a
period of 15 days again but the total period of detention shall not exceed 60 days in all.
On the expiry of this period of 60 days the accused persons shall be released on bail, if
he is prepared to furnish bail. This bail is equivalent to bail under chapter 33 of Cr.P.C.
Executive Magistrate is also empowered to grant remand for 7 days where Judicial
Magistrate is not available and Executive Magistrate is authorized u/s 13 & 18.
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S.437 (2) also gives a right of bail to the accused where there are no reasonable
grounds to believe that the accused was involved in the commission of a non-
cognizable/non-bailable offence, the accused shall be released on bail.
S.437 (6) also gives to the accused person a right of bail if the trial by a Magistrate
is not concluded within a period of 60 days from the first date fixed for taking evidence
in the case. Provided that the accused person was in custody during the whole of the
said period.
Bail in Non-Bailable Offences
S.437 Cr.P.C. provides for bail at the discretion of the court in non-bailable
offences. In non-bailable offences, bail can only be granted on the discretion of the
court. This discretion to grant or not to grant the bail depends upon the gravity of the
crime, the likelihood of absconding the accused etc. This discretion is not arbitrary but
judicial.
The judicial discretion in granting or refusing bail has to be applied keeping in mind
the enormity of the charge, nature of accusation, severity of punishment, nature of
evidence, danger of witnesses being tampered with, opportunity of the applicant for
preparation of his defence, his death, age and sex. The previous conviction and criminal
record of the accused person and the likelihood of the repetition of the offence by the
accused person if released on bail, are also be taken into account while deciding the
question of bail. A specific negative direction is given by law u/s 437 (1) third proviso
in the matter of bail. The mere fact that an accused person may be required for being
identified by witness during investigation shall not be sufficient ground for refusing to
grant bail if he is otherwise entitled to be released on bail.
Bail provisions were made more stringent by the Amendment Act of 1980 in Cr.P.C.
Accused shall not be released on bail if there appears reasonable grounds for believing
that he has been guilty of an offence punishable with death or life imprisonment (S.437
(1) (i). S.437 (1) was substituted by 1980 Amendment Act and it was provided that the
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accused shall not be released on bail if his offence is cognizable one and he had been
previously convicted of an offence punishable with death, imprisonment for life or for a
term of 7 years or more. He shall also be not released on bail if he had been previously
convicted on two or more occasions of a cognizable offence punishable with
imprisonment for three years or more but not less than 7 years (Amendment Act, 2005).
The police officer or the court releasing any person on bail in case of non-bailable
offence has to record in writing his reasons or special reasons for doing so (S.437 (4).
S.437 (1) clearly says that the Magistrate or Police officer in cases of offences
punishable with death or imprisonment for life shall not grant bail. However, the court
may direct that any person under age of 16 years or any woman or any sick or infirm
person accused of any such offence be released on bail (First proviso of S.437 (1).
Hence, except in cases of children, woman and sick or infirm person, the discretion to
grant bail has been taken away from the Magistrate and police officer in cases of non-
bailable offences punishable with death or imprisonment for life. The basis of this rule
is that the graver the offences greater will be the chances of absconding; hence, there
will be no bail. However, High Court or Court of Sessions may grant bail even in
offence punishable with death or life imprisonment.
The phrase “An offence punishable with death or imprisonment for life” should be
read disjunctively as if it meant “Offences punishable with death” or “Punishable with
life term”.
Bail may also be granted subject to certain conditions. This is a balance between
grant of bail and not granting it. S.437 (3) provides that when a person is accused or
suspected of the commission of an offence punishable with imprisonment which may
extend upto 7 years or more or of an offence under chapter VI (offences against the
state), chapter XVI (offences against human body) or chapter XVII (offences against
property) of I.P.C. or abetment or conspiracy or attempt to commit any such offence, is
released on bail u/s 437 (1) the Court shall impose following conditions: -
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1) that such person shall attend the court in accordance with the conditions of the
bond executed; or
2) that such person shall not commit an offence similar to the offence of which he is
accused, or suspected; or
3) that such person shall not directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the Court or to any police officer or tamper with the
evidence,
and may also impose, in the interests of justice, such other conditions as it considers
necessary.
This power to impose conditions has been given only to the court and not to police
officers. Any such bail granted u/s 437(1), (2), may be cancelled and the person be
arrested and committed to the custody (S.437 (5) and (S.439 (2). This power of
cancellation is given exclusively to the court and not to police officers.
S.439 Cr.P.C. gives very powers and discretion to the High Court and Court of
Sessions in the matter of granting bail. Their discretion u/s 439 is not restricted by the
restriction contained in S. 437. S.439 (1) says that the High Court or a Court of Sessions
may release a person on bail even if the offence is of the nature specified in S.437 (3)
and may impose any condition which they think necessary.

Cancellation of bail
The Magistrate who granted bail cannot cancel bail in bailable offences u/s 436. He
can refuse bail if on any subsequent occasion in the same case accused is brought before
him on his failure to comply with the conditions of the bail bond as regard time and
place of attendance (S.89). But no express powers of cancellation like S.437 (5) have
been given u/s 436. According to S.437 (5), any court, which has released a person on
bail, may, if it considers necessary to do so, direct that such person be arrested and
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commit him to custody after cancellation of his bail. This power to cancel bail has been
given to the court and not to the police officers. Secondly, the court, which has granted
the bail, can alone cancel it or higher court can cancel it. A court of Magistrate cannot
cancel the bail granted by a police officer. For cancellation of bail in such a situation, it
is only the High Court or Court of Sessions u/s 439, who is empowered to cancel the
bail.
S.437 (5) gives power and discretion to cancel the bail. It does not lay down any
guidelines as to when and how the discretion is to be utilized. Bail can be cancelled if
the accused on bail commits the same offence for which he is being tried or if the
accused forcibly prevents the search of place under his control or if he tampers with
prosecution witnesses or if he runs away to a foreign country or absconds.
The HC and Court of Sessions may direct u/s 439 (2) that any person who has been
released on bail, his bail be cancelled and he be arrested and committed to custody.
These powers of cancellation given to these higher courts are quite wide. Whether the
offence was bailable or non-bailable is immaterial; whether police officer or a court
granted the bail is also immaterial.
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Lecture 5 Anticipatory Bail (AB)
S.438 Cr.P.C. empowers the High Court and Court of Sessions to issue direction for
grant of bail to the person apprehending arrest. AB is a bail in anticipation of being
arrested. S.438 Cr.P.C. is omitted in U.P. S.438 was not present in the old Cr. P.C. of
1898. It was introduced on the recommendations of 41st Law Commission Report. The
necessity to grant AB arose mainly because sometimes influential persons try to
implicate their rivals in false cases for the purpose of disgracing and harassing them by
keeping them in jail for some days. On the other hand, when a person accused of an
offence is not likely to abscond, or otherwise misuse his liberty while on bail, there
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seems no justification to require him first to go into jail and then apply for bail. For
such category of persons S.438 was introduced in 1973 in the new Cr.P.C.
S.438 provides that when a person has reason to believe that he may be arrested on
accusation of having committed a non-bailable offence, he may apply to the High Court
or Court of Sessions for a direction under this section and the court may issue direction
that in the event of such arrest he shall be released on bail.
AB is granted only in non-bailable offences while no such provision is made if the
person is accused of a bailable offence. The reason is that whenever a bailable warrant
is issued, it is endorsed with a direction that the person shall not be arrested if he is
ready to give sureties to the extent of amount mentioned in the bailable warrant itself.
Truly speaking, the grant of direction u/s 438 Cr.P.C. converts a non-bailable offence
into bailable one, since it gives direction to the police not to arrest such person. No AB
is available for unspecified offences. This has been held by Punjab and Haryana High
Court (Gurubux Singh Sibbia v. State) because the moment an accusation is launched
against a person, the apprehension of arrest gets crystallized and confirmed and there is
no occasion to grant AB in such a situation, he should apply for a regular bail u/s 437.
AB can only be granted when the clouds of charges are roaming around one’s head.
S.438 (2) provides that the conditions may be imposed while granting AB. Such
conditions may include: -
1) that the person shall make himself available for interrogation by a police officer
as and when required;
2) a condition that the person shall not, directly or indirectly, make any inducement,
threat or promise to any person who is acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the Court or to any police officer;
3) a condition that the person shall not leave India without the prior permission of
the court;
4) any other condition which the court is empowered to impose u/s 437 (3).
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The effect of AB is described in S.438 (3); that if the person to whom AB has been
granted if thereafter arrested without warrant by an officer incharge of a police station,
on such accusation, and is prepared either at the time of arrest or at any time while in
custody to give bail, he shall be released on bail. If a Magistrate, taking cognizance of a
cognizable offence decides that a warrant should be issued in the first instance against
that person, he shall issue a bailable warrant in conformity with the direction of the
court granting AB.
Bail at Appellate or Revisional Level: - The Appellate Court is also empowered to
release the appellant on bail in cases of appeal against conviction u/s 389 (1) Cr.P.C.,
irrespective of whether the offence is bailable or non-bailable, the release of convicted
persons on bail is entirely at the direction of the Appellate Court. Likewise, when the
appeal is presented against acquittal u/s 378 Cr.P.C., the High Court has power to issue
the warrant and direct that the accused be arrested and brought before it or any
subordinate court, and the court before which he is brought may commit him to the
prison pending the disposal of the appeal or admit him to bail u/s 390 Cr.P.C.
Similarly, the revisional court has also power to grant bail u/s 397 (1). When the
matter is referred to the High Court for reference u/s 395 (1) the court making reference
has power to grant bail u/s 395 (3).
Bail may also be granted u/s 389 (3) after conviction but before filing appeal, by the
sentencing court. The sentencing court is required to grant bail in two circumstances (i)
where such person being already on bail, is sentenced to imprisonment for a term not
exceeding 3 years; or, (ii) where the offence of which such person has been convicted,
is a bailable offence and the person is already on bail.
No express provision for cancellation of bail appears to have been made in the
Cr.P.C. when the appellate, revisional or sentencing courts grant bail or when the bail is
granted on reference to High Court. A clear provision like S.439 (2) enabling the High
Court or Court of Sessions to cancel the bail in suitable cases should have been enacted
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by the legislature for appellate and revisional courts. In the absence of any such
provision, it is submitted that in the interest of justice the High Court should invoke its
inherent powers u/s 482 Cr.P.C. and cancel the bail wherever it thinks fit.
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Lecture 6 Trial Procedures
After the completion of investigation and inquiry, the trial begins after the framing
of the charge. There are five types of trials provided under Cr.P.C.: -
1) Session trial: - A Court of Sessions cannot directly take the cognizance of any
offence. A competent Magistrate may take cognizance of such an offence and commit
the case to the Court of Sessions for trial. All such cases committed to the Court of
Sessions are to be tried by the Sessions Judge according to the procedure laid down in
S.225 to 235. S.225 provides that a public prosecutor, who will open the case in the
Court of Sessions (S.226), shall conduct every trial before the Court of Sessions.
According to S.207 the copies of police report, F.I.R. u/s 154, statements recorded u/s
161, confessions and statements recorded u/s 164 or any other document or relevant
extracts are to be given to the accused. In complaint cases, the copies of the statements
recorded u/s 200 & 202 should also be given to the accused free of cost (S.208). If upon
consideration of the record of the case and documents submitted therewith and after
hearing the accused and the prosecution, the judge is of the opinion that there is no
sufficient ground for proceeding against the accused, he shall discharge the accused
(S.227). If after such consideration the judge is of the opinion that the accused has
committed an offence, the judge shall frame the charge, which shall be read over and
explained to the accused and the accused shall be asked whether he pleads guilty or
claims to be tried (S.228). If the accused pleads guilty, the judge shall record the plea
and may, in his discretion, convict the accused (S.229).
If the accused refuse to plead guilty and claims to be tried or is not convicted u/s
229, the judge shall fix a date for examination of prosecution witnesses (S.230). On the
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date so fixed the judge shall record all such evidence in support of the prosecution case
(S.231 (1). The witnesses shall be first examined in chief, and then cross-examined by
the adverse party. The judge may, in his discretion, permits the cross-examination of
any witness to be deferred until any other witness or witnesses have been examined in
chief (S.231 (2).
When the prosecution evidence is recorded and is over, S.314 enables the prosecutor
to submit his arguments after the conclusion of prosecution evidence. After this, the
accused shall be examined u/s 313 for the purpose of enabling the accused personally to
explain any circumstances appearing in evidence against the accused. If after taking the
evidence or the prosecution, examining the accused and hearing the prosecution and the
defence, the judge considers that there is no evidence that the accused has committed
the offence; the judge shall record an order of acquittal (S.232). This stage is absent in
any other type of trial.
But if the accused is not acquitted u/s 232 Cr.P.C., a date shall be fixed for defence
evidence (S.233 (1). Recording of defence evidence will be in the same manner as that
of prosecution evidence. If the accused applies for issue of summons for attendance of
any witness, document or things, the judge shall issue such summons. Accused person,
if he so desires, can put in any written statement in his defence (S.233 (2).
When the defence evidence is over, court may examine any court witness(s) u/s 311
if his evidence appears to be essential to the just decision of the case. After the
examination of court witnesses and the defence evidence, the prosecutor shall sum up
his case and the accused shall be entitled to reply. This is the stage of final arguments
(S.234). Now comes the stage of judgment of acquittal or conviction. After hearing the
arguments and point of law the judge shall give a judgment in the case (S.235 (1) and if
the accused is convicted and the judge does not release him on probation (test) of good
conduct or after admonition (warning) u/s 360, the judge shall hear the accused on the
question of sentence and then pass sentence on him according to law (S.235 (2).
 17

2) Warrant Trial: - A warrant case is a case relating to an offence punishable with death,
life or for a term exceeding 2 years. All cases tried before a Court of Sessions are
warrant cases. Rest of the warrant cases are to be tried by the Magistrate as shown in
column 6 of schedule I. Trial of warrant cases is given in S.238 to 250 Cr.P.C. S.238 to
250 are divided into three groups (A) S.238 to 243 deals with warrant cases instituted
on a police report; (B) S.244 to 247 deals with warrant cases as are instituted otherwise
than on police report; (C) S.248 to 250, which are equally applicable to cases instituted
on a police report and instituted otherwise then on a police report. This difference in
two types of warrant trial is justified because in cases instituted on a police report, a lot
of record made during investigation by the police is made available to the court and to
the accused persons. Such record does not exist in cases instituted on complaint. In such
cases, it becomes necessary to provide special procedure to enable the accused to
acquaint him with the facts of the case.
A) Warrant trial on police report: - First of all u/s 238 Cr.P.C., the copies of F.I.R.
recorded u/s 154, statements recorded u/s 161, confessions and statements recorded u/s
164 Cr.P.C. and police report shall be given to the accused as per requirement of S.207
Cr.P.C. Accused shall be discharged if the allegations against him are baseless (S.239)
but if upon considering the police report and the documents sent along with charge
sheet u/s 173 Cr.P.C. and hearing the accused, the Magistrate is of the opinion that there
are sufficient grounds for believing that the accused has committed an offence, he shall
frame in writing a charge against the accused which shall be read over and explained to
the accused and the accuse will be asked whether he pleads guilty or claims to be tried
(S.240). If the accused pleads guilty, the Magistrate may, in his discretion, convict the
accused (S.241). If the accused refuses to plead guilty and claims to be tried or the
Magistrate does not convict him u/s 241 Cr.P.C., the Magistrate shall fix a date for
examination of prosecution witnesses. First of all the examination-in-chief, then cross-
examination shall be recorded but the Magistrate may permit the cross-examination of
 18

any witness to be deferred until any other witness has been examined. The Magistrate is
to take all evidence produced by the prosecution. He cannot acquit the accused only on
consideration of part of the prosecution evidence. After the completion of prosecution
evidence the two important steps are taken as in session trial, i.e., (1) Oral argument and
memorandum of argument on behalf of the prosecution (S.314 Cr.P.C.); and (2)
examination of the accused u/s 313 Cr.P.C.
When the prosecution evidence is over, a date shall be fixed for defence evidence.
On the application of the accused, the Magistrate will issue summons to compel the
attendance of any D.W. for the purpose of examination or cross-examination. The
Magistrate may require that the reasonable expenses of D.Ws attending the trial be
deposited in the court by the accused. The accused can also file a written statement in
his defence (S.243 (1). When the defence evidence is over the court may examine any
court witness u/s 311. After this, defence may submit to the court a memorandum of
argument. After hearing the arguments, the court will pronounce judgment.
B) Warrant trial otherwise than on a police report (complaint case): - Warrant cases
instituted otherwise than on police report means cases instituted on private complaint.
All complaints are filed in the court of C.J.M. He may transfer the complaint to any
subordinate court thana-wise. Immediately on receipt of a complaint, the statement of
the complaint is recorded u/s 200 Cr.P.C. After this, a date is fixed for recording
statements of witnesses u/s 202 Cr.P.C. At the stage of S.202 Cr.P.C., court may send
the case to the police for further investigation. Police officer will comply with such
orders u/s 156 (3) and will proceed with investigation and will submit his report either
u/s 173 Cr.P.C. (challan/chargesheet) or u/s 169 (final report), i.e., no case is made out.
If after considering the statement on oath of the complaint u/s 200 Cr.P.C., and
statement of witnesses u/s 202 Cr.P.C. and the result of any investigation or inquiry u/s
202 Cr.P.C., Magistrate is of the opinion that there is no sufficient ground for
proceeding, he shall dismiss the complaint and accused shall be discharged u/s 203 (not
 19

acquitted). But if the grounds are sufficient for proceeding, process shall be issued in
the form of summons or warrants u/s 204 Cr.P.C. On the date fixed for “appearance”,
accused will appear before the court and will apply for bail. Next date will be fixed for
prosecution evidence u/s 244 Cr.P.C. (before charge)
In warrant cases instituted on a complaint, in the absence of any copies to be given
to the accused (which are not present) a preliminary hearing of the prosecution case
becomes necessary; hence S.244 Cr.P.C. provides that in a warrant case first of all the
Magistrate shall proceed to hear the prosecution and take all such evidences as may be
produced in support of the prosecution. (A prosecution witness who appeared in the
witness box u/s 200/202 Cr.P.C. has to come to the court second time and give his
statement u/s 244 Cr.P.C. At the stage of 200/202 Cr.P.C., he is not cross-examined
since at that stage accused has no right to appear. Upon taking of such evidence as
provided in S.244 Cr.P.C. if the Magistrate thinks that no case against the accused has
been made out, the Magistrate shall discharge the accused (S.245) and if the accused is
not discharged then the Magistrate will frame a charge against the accused who shall be
asked whether he pleads guilty or wants to enter into defence (S.246 (1) & (2). If the
accused pleads guilty, the Magistrate shall record the plea and may, in his discretion,
convict the accused (S.246 (3). If the accused refuses to plead guilty and claims to be
tried, he will be required to state whether he wants to cross-examine any of the P.Ws.
(S.246 (4). If the accused wants to cross-examine then such P.W. shall be recalled
(S.246 (5). A prosecution witness who was invited at the stage of 200/202 Cr.P.C., had
to come in witness box second time at the stage of S.244 Cr.P.C. But accused has a right
to further cross-examine the same P.W. at the stage of prosecution evidence u/s 246 (4).
Meaning thereby, one witness can be invited thrice in the witness box. After this, the
accused shall be asked to enter into defence on the completion of the prosecution
evidence (S.247). The evidence for defence will be recorded only after examination of
accused (S.313) is over.
 20

When the recording of prosecution as well as defence evidence is complete in a

warrant trial on a police report or otherwise than on a police report, the court shall write
a judgment of acquittal or conviction after hearing the final argument and if the
Magistrate finds the accused guilty and does not release him on probation of good
conduct or admonition u/s 360 Cr.P.C., he shall hear the accused on the question of
sentence, and then pronounce judgment in accordance with the law.
3) Summons trial: - A summons case means a case punishable with imprisonment upto
2 years or less. Trial of summons cases is provided in S.251 to 259 Cr.P.C. In summons
cases, when the accused appears or is brought before the Magistrate, the particulars of
the offence shall be stated to him and he shall be asked whether he pleads guilty or has
any defence to make (S.251). It is not necessary to frame a formal charge in summons
case. Only the substance of the accusation is to be stated to the accused by the
Magistrate. If the accused pleads guilty the Magistrate shall record his plea and may
convict him (S.252). But if the Magistrate does not convict the accused u/s 252 Cr.P.C.
the Magistrate shall fix a date for hearing the prosecution and taking all such evidence
in support of the prosecution (S.254 (1). When the prosecution evidence is over, the
accused shall be heard (S.313) and then he will be asked to produce evidence in
defence, if any (S.254). The Magistrate upon taking all evidence u/s 254 Cr.P.C. if finds
the accused not guilty, he shall record an order of acquittal (S.255 (1). But if the
Magistrate finds the accused guilty and does not release the accused on probation of
good conduct or on admonition u/s 360 Cr.P.C. then he shall pass sentence upon him
according to law.
Note: - Procedure of complaint case of an offence upto 2 years of punishment is the
same as that of summons case on police challan/chargesheet.
4) Summary trial: - (Its procedure is equivalent to that of summons trial).
Summary trial is a short form of regular trial. Only C.J.M. or M.M. or J.M. Class I st
is empowered to conduct summary trial. Only certain kinds of offences are tried
 21

summarily, e.g., S.379, 380, 381 I.P.C. dealing with theft of property of value less than
Rs.2,000/-, receiving or retaining stolen property u/s 411, assisting in concealment or
disposal of stolen property u/s 414 I.P.C. of value less then Rs.2,000/-, S.454 & 456,
504 & 506 I.P.C. or an offence u/s 20 Cattle Trespass Act 1871. The summary trial of
abetment or attempt of any of the above offences can also be held (S.260 Cr.P.C.). The
HC may authorize JM IInd class to try any offence summarily which is punishable only
with fine or with an imprisonment for a term not exceeding 6 months and its abetment
or attempt (S.261). The procedure to be followed in summary trial will be that of
summons cases (S.262 (1). The court is not authorised to impose a sentence for a term
exceeding 3 months in a summary trial (S.262 (2). Recording of evidence in the
summary trial is also done in a short cut way. The Magistrate shall record the serial
number of case, the date of commission of offence, the date of F.I.R. or complaint,
name of complainant, name, parentage and residence of the accused, the offence
complained of and the offence proved, the plea of the accused and his examination, the
finding, the sentence or final order and the date on which the proceedings terminated
(S.263). In every case tried summarily where the accused does not plead guilty, the
judgment will contain a brief statement of reasons for the finding (S.264).
*-*-*-*-*
Lecture-7 Rectification of errors in criminal law appeal

Human judgment is subject to normal errors, therefore, Cr.P.C. provides for appeal
and revision to rectify the mistake of the lower courts. This gives an additional
satisfaction to the parties aggrieved by the decision. The appeal as a corrective measure
is not very much relevant in petty cases where the error of the lower court is more likely
to be of insignificant nature. E.g., if the accused is convicted on his own plea of guilt,
no right of appeal is given to him (S.375). This is justified because once an accused is
 22

convicted and has voluntarily submitted him for conviction he will not apply to the
higher court for appeal.
S.372 says that appeal is a creature of law. Meaning thereby, no appeal shall lie
from any judgment or order of a criminal court except as provided by this code. There is
no inherent right of appeal. S.376 provides no appeal in following petty cases: -
1) where the High Court passes a sentence for a term not exceeding 6 months or fine
not exceeding Rs.1,000/- or both.
2) where a Court of Sessions or Metropolitan Magistrate passes only a sentence of
imprisonment for a term not exceeding three months and fine not exceeding
Rs.200/- or both.
3) where a Magistrate of Ist class passes only a sentence of fine not exceeding
Rs.100/- or
4) in summary trial the Magistrate passes a sentence of fine not exceeding Rs.200/-.
Proviso to S.376 makes it clear that in above-mentioned non-appealable sentences,
an appeal may be preferred, if any other sentence is combined with it. But it is further
made clear that such sentences shall not be appealable merely on the ground: -
(1) that the convicted person is ordered to furnish sureties to keep peace; or
(2) that a direction for imprisonment in default of payment of fine is included in the
sentence; or
(3) that more then one sentence of fine is passed in the case, if the total amount of fine
imposed does not exceed the amount provided in S.376.
It may be recalled that u/s 31 (3), for the purpose of appeal by a convicted person,
the aggregate of the consecutive sentence passed against him at one trial shall be
deemed to be a single sentence.
S.375 provides no appeal where the accused is convicted on his plea of guilt by a
High Court or if the conviction is by the Court of Sessions, C.J.M., M.M., or J.M. I st, or
IInd, no appeal shall lie except to the extent or legality of the sentence.
 23

(A) Appeal from convictions

I) Appeal to the SC: -
a) Any person convicted on a trial held by the High Court in its extraordinary original
criminal jurisdiction may appeal to SC (S.374 (1).
b) S.379 provides that where the High Court has on appeal reversed an order of
acquittal of accused person and convicted him and sentenced him to death or life or for
a term exceeding 10 years, he may appeal to the SC.
c) A.131 (1) of the Constitution provides that an appeal shall lie to the SC from any
judgment, decree or final order of the High Court if the High Court certifies that the
case involves a substantial question of law, as to the interpretation of the Constitution.
d) A.134 (1) of the Constitution provides that an appeal shall lie to the SC from any
judgment, final order or sentence in a criminal proceedings of a High Court in the
territory of India if the High Court has withdrawn for trial before itself any case from
any subordinate court and has convicted the accused and sentenced him to death or if
the High Court certifies that the case is a fit one for appeal to the SC.
e) A.136 (1) of the Constitution provides that SC may in its discretion grants special
leave to appeal from any judgment, decree, sentence or order in any case or matter
passed by any court (S.L.P.).
II) Appeal to the High Court: - Any person convicted on a trial held by Sessions Judge
or Additional Sessions Judge or by any other court (Assistant Sessions Judge) in which
a sentence of more than 7 years has been passed, may appeal to the High Court (S.372).
III) Appeal to the Court of Sessions: - Any person convicted on a trial by a C.J.M.,
M.M. or Assistant Sessions Judge or J.M. Ist or IInd may appeal to the Court of Sessions
(S.374 (3).
IV) Special right of appeal: - S.380 provides that when more persons than one are
convicted in one trial and an appealable judgment of order has been in respect of any of
 24

such person, all or any one of the persons convicted at such trial shall have a right of
appeal.
V) Appeal by State Government against sentence: - S.377 provides that State Govt. may
in case of conviction on a trial held by any court (other than a High Court), the State
Govt. may direct the public prosecutor to present an appeal against the sentence on the
ground of its inadequacy. The Central Govt. may also direct to file appeal on the same
ground if the offence has been investigated by the Delhi Special Police.
An appeal against the sentence on the ground of its inadequacy may be presented
to the Court of Sessions, if the sentence is passed by the Magistrate; and to the HC, if
the sentence is passed by any other court (Cr.P.C. AA, 2005)
(B) Appeal from acquittal
S.378 provides that the DM may direct the public prosecutor to present an appeal to
the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence. Similarly, the State Govt. may direct the public
prosecutor to present an appeal to the High Court from an original or appellate order of
acquittal passed by any court other than the High Court or an order of acquittal passed
by the Court of Sessions in revision.
If such an order of acquittal is passed in any case in which the offence has been
investigated by the Delhi Special Police. Central Govt. may also direct the public
prosecutor to present such an appeal to the Court of Session, from an order of acquittal
passed by a Magistrate in respect of a cognizable and non-bailable offence and to the
HC from an original or appellate order of an acquittal passed by any court other than a
HC or an order of acquittal passed by the Court of Session in revision.
Before filing any appeal to the High Court against the order of the acquittal, the
leave of the High Court has to be taken by the public prosecutor (S.378 (3). U/s 378 (4)
the complainant can also obtain such special leave and present an appeal to the High
Court against the order of acquittal.
 25

Procedure of filing an appeal: - S.382 provides that every petition of appeal must be in
writing and accompanied by a certified copy of the judgment or the order appealed
against. S.383 provides that if the appellant is in jail he may present his petition of
appeal and the copies of the judgment through the officer incharge of jail, who shall
thereupon forward such petition to the proper appellate court.
Powers of Appellate Court: - The appellate court has power to dismiss the appeal
summarily (S.384) or dismiss it after hearing but not summarily (S.385). If upon
examining the petition of the appeal and copies of the judgment, the appellate court
considers that there is no sufficient ground for interfering, it may dismiss the appeal
summarily (S.384 (1). But a right of hearing shall be given to the appellant or his
pleader before an appeal is dismissed summarily (S.384 (1) (a). No jail appeal shall be
dismissed summarily until the period allowed for preferring such appeal has expired
(S.384 (1) (c). Before dismissing any appeal summarily the appellate court may call for
the record of the lower court (S.384 (2). If a jail appeal has been dismissed summarily
and a different appeal u/s 382 has been preferred by the appellant through his counsel
against the same judgment then the summary dismissal of jail appeal shall not be a bar
to the hearing of regular appeal filed u/s 382 (S.384 (4).
The appellate courts while dealing with appeals have following additional powers: -
i) To grant bail or suspend the execution of sentence (S.389).
ii) To order for arrest of the accused in appeals from acquittal (S.390).
iii) Take further evidence himself or order it to be taken by the lower court (S.391
(1).
iv) Dismiss the appeal (S.386).
v) Reverse the order of acquittal or direct further inquiry in the case or order for
retrial or convict him (S.386 (a) (Best Bakery Case).
vi) Reverse the order of conviction and acquit or discharge the accused or order
him to be retried by the lower court (S.386 (b) (i).
 26

vii) Alter the finding, maintaining the sentence (S.386 (b) (ii).
viii) Alter the nature or extent of the sentence (S.386 (b) (iii).
ix) In an appeal for enhancement of sentence, reverse the order and acquit or
discharge the accused or order or retrial or alter the finding or nature of the
sentence (S.386 (c).
S.388 provides that every order of the High Court in an appeal is to be certified to
the lower court and the lower court shall amend its order in conformity with the High
Court’s judgment. S.392 provides that if the judges of the court of appeal are equally
divided in their opinions, the appeal shall be laid before another judge of that court who
will give judgment; unless he so desires, the appeal may be re-heard and decided by a
larger bench. S.393 provides that the judgment and order passed by the appellate court
shall be final except in cases of appeal by the state on the ground of inadequacy u/s 377
or S.378 or the judgment will be subject to reference and revisional jurisdiction of the
court.
To conclude, it is submitted that appeal is nothing but continuation of the trial. The
appellate court cannot impose more punishment than which trial court could have
imposed. Meaning thereby, power of sentencing of appellate court are not more than
powers of the trial court. In other words, appellate judge sits in the chair of trial court
while deciding an appeal.
Reference
S.395 & 396 deal with reference. S.395 provides that reference always lies to High
Court, when any court is satisfied that in a case pending before it, involves a question as
to validity of an Act, Ordinance or Regulation, the determination of which is necessary
for the disposal of the case and on such question there is no express opinion or ruling of
High Court or SC. Court of Sessions or M.M. may also refer the matter to the High
Court on question of law arising in the hearing of any case where S.395 (1) does not
apply. S.396 says that the High Court on a matter so referred shall pass such order as it
 27

thinks fit and shall send a copy of the same to the lower court by which the reference
was made. The lower court shall dispose of the case in conformity with the orders of the
High Court.
Revision
In order to avoid the possibility of any miscarriage of justice the right of revision is
given in cases where no right of appeal is available. S.397 to 405 deals with the powers
of revisional courts. The power of revision conferred on higher courts is very wide and
are purely discretionary in nature. Therefore, no party has any right as such to be heard
before any revisional court. Following limitations circumscribes the revisional powers: -
1) In cases where an appeal lies, no appeal is brought; ordinarily no revision shall be
entertained at the instance of the party who could have appealed (S.401 (4).
2) The revisional powers are not exercisable in relation to any interlocutory order
(provisional order which is not final) (S.397 (2).
3) The revisional court is not authorised to convert a finding of acquittal into one of
conviction (S.401 (3).
4) A person is allowed to file only one application of revision either to the Court of
Sessions or to the High Court (S.397 (3), S.399 (3).
Powers of the Revisional Court: - S.397 to 405 relate to the powers of revision. S.399,
400 & 401 respectively deal with powers of revision of Session Judge, Additional
Sessions Judge and the High Court. S.397 read with S.400 empowers these Judges and
the High Court to call for the records of the subordinate court for the purpose of
exercising powers of revision. S. 398 empowers them to order for further inquiry.
S.397 (1) empowers the High Court or Court of Sessions who may call for and
examine the record of any case before any inferior criminal court situated within its
local jurisdiction for the purpose of satisfying himself as to the correctness, legality or
propriety of any sentence or order passed by any inferior court. The revisional court
may when calling for such record direct that the execution of any sentence or order be
 28

suspended or if the accused is in confinement, he may be released on bail or on his

personal bond. S.397 (2) provides that no revision shall be entertained in relation to any
interlocutory order passed in any appeal, inquiry, trial or other proceedings. S.397 (3)
provides that no second revision shall be entertained by the HC or Sessions Judge on
the application of the same person. S.398 empower the revisional court to order or
further inquiry into any complaint, which has been dismissed u/s 203 or S.204 (4) or
into the case of any person accused of an offence who has been discharged.
Sessions Judges’ powers of revision: - S.399 provides that powers of Sessions Court
while exercising revisional jurisdiction are same and equivalent to the High Court. No
further revision shall lie to the High Court from a matter decided by the Sessions Judge
in revision (S.399 (3). S.400 provides that the powers of the Additional Sessions Judge
are equivalent to the powers of a Sessions Judge. But he shall deal with only those
revision petitions, which are transferred to him by the Sessions Judge.
Powers of Sessions Judge = Powers of Additional = Powers of the High Court of
Sessions Judge Revision
(S. 399) (S.400) (S.401)
The High Court’s powers of revision are very wide. There is no form of judicial
injustice which revisional court cannot rectify. S.397 is linked up with S.401 which
indicates the revisional powers of the revision court. S.401 (1) confers on the High
Court, all powers of appellate court u/s 386, 389, 390 & 391. It also empowers the High
Court to direct tender of pardon to the accused as contemplated by S.307. Similarly, the
revisional court if equally divided in opinion (division bench) the procedure of S.392 of
referring the matter to a third judge or to a larger bench shall be followed. The
Revisional Court cannot convert a finding of acquittal into one of conviction (S.401 (3)
while in appeal the appellate court has jurisdiction to convert a finding of acquittal into
one of conviction. S.401 (5) provides that if a right of appeal is provided under this
code but a revision petition has been preferred under the erroneous belief that no appeal
 29

lies thereto, the Revisional Court may treat the application for revision as a petition of
appeal in the interest of justice.
The High Court can exercise its revisional powers suo moto, i.e., on its own
initiative or on the petition of an aggrieved party. S.403 provides that no party has any
right to be heard either personally or by pleader before any court exercising revisional
powers but the court may, if it thinks fit may hear any party either personally or through
pleader. S.404 makes it clear that when the record of the trial held by a M.M. is called
for by the High Court or Sessions Court u/s 397, the M.M. may submit with the record
of the case a statement stating forthwith the ground of his decision. The Revisional
Court shall consider such statement before over ruling or setting aside the said decision
or order of M.M.
In cases of joint trial, if one of the several accused persons moves the High Court
and any other accused person moves the Sessions Court on the same matter in revision,
there would be a conflict of jurisdiction. In such cases, High Court shall decide having
regard to the general convenience of the parties that which of the two courts (High
Court or Sessions Court) should finally dispose off the matter. The High Court may
decide to dispose off both the revisions itself or may direct that the Sessions Judge shall
decide both the revision applications. The High Court has a power to withdraw and
transfer revision cases u/s 402. Where the application for revision is transferred by the
High Court to the Sessions Judge, his decision shall be final. No party has any right to
file further revision application before the High Court (S.402 (4). S.405 provides that
every order of the High Court in revision shall be certified to the lower court and the
lower court shall thereupon pass orders in conformity with the orders of the High
Court/Sessions Court.
To conclude, it is submitted that interlocutory orders are not revisionable. Whether
the revision lies or not, following is the test.
Test – whether an order is revisionable or not: -
 30

If the order sought to be revised is reversed in favour of revisionist, it would have

finally terminated the entire proceedings of the lower court, than the order is
revisionable. E.g., revision against framing of charge is maintainable because if order of
framing of the charge is reversed, it will discharge the accused and will terminate the
proceedings of the lower court.
If the trial court rejects an adjournment application, this order is an interlocutory
order, and its revision is not maintainable because even if this order is reversed, it will
have no effect on the merit of the case in lower court.
*-*-*-*-*
Lecture - 8 Autre fois acquit and autre fois convict
A person cannot be tried second time for an offence with which he was previously
charged. S.300 Cr.P.C. constitutes a preliminary objection to the commencement of the
trial. A person who has been convicted or acquitted by a competent court cannot be
retried for the same offence again. This rule is substantially known as autre fois acquit
and autre fois convict, which is equivalent to the rule of res judicata (S.11 Cr.P.C.). In
civil proceedings, the rule is based upon the obvious public policy that no one should be
vexed (annoyed) twice for the same offence. A.20 (2) of our Constitution also says that
no person shall be prosecuted and punished for the same offence more than one.
This principle is enshrined in S.300 (1) Cr.P.C., which says that 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
to 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 one made against him might have been made
in doubtful case u/s 221 (1) or for which he might have been convicted u/s 221 (2).
There must be trial of the accused, i.e., hearing and determination on merits. Trial
begins after framing of the charge. In a summons case, the accused is said to be tried
when he appears and answers u/s 251 though no formal charge is framed. In Session
 31

trial, the trial commences after the charge is framed u/s 228. There is no trial before the
charge is framed. All things done before trial are known as enquiry.
Enquiry always results either into discharge or charge. The trial always concludes
either into conviction or acquittal. For the application of bar of S.300 it is essential that
the person must have been convicted or acquitted. If he is discharged, he can be
recharged, and S.300 will not be a bar. The explanation attached to S.300 (6) also makes
it clear that the discharge of the accused is not an acquittal for the purpose of S.300. The
explanation also makes it clear that the dismissal of the complaint u/s 203 Cr.P.C. is not
an acquittal for the purposes of this section and a fresh complaint can be filed on
availability of further evidence.
The conviction or acquittal in order to operate as res judicata must be by a court of
competent jurisdiction. If the court, which held the first trial, was not competent to try
the accused, this section will not apply and the accused can be tried for the same
offence. E.g., A is charged by a Magistrate of IInd Class with, and convicted by him of,
theft of property. A, may subsequently be charged with and tried for robbery on the
same facts.
The trial must be for an offence. A person against whom security proceedings u/s
107/116 Cr.P.C. are taken cannot be said to have committed an offence. Similarly, the
dismissal of the application u/s 125 Cr.P.C. for maintenance is no bar for second
application because the proceedings do not amount to an offence.
Second trial is barred only when the accused is convicted or acquitted. There is a
distinction between discharge and acquittal. Discharge of the accused does not amount
to an acquittal. An order of discharge is not a judgment. Discharge may be made after
preliminary enquiry or during a trial before a Magistrate before the accused has been
called upon to plead guilty. When there is no prime facie evidence against the accused,
he should be discharged and not acquitted. A man who is only discharged may again be
charged with the same offence if other evidences are discovered. But a person who has
 32

been acquitted can never be put on trial again for the offence of which he has been
acquitted.
The bar of S.300 applies so long as a court of appeal or revision has not set the
judgment or order aside. If it is set aside, the accused can again be put on his trial
because the previous trial is annulled thereby.
The first conviction or acquittal is bar to second trial if the offence is same. Second
trial is also barred for any offence based on same facts. This is a very important
limitation. The offence must be the same or some other or for which a separate charge
might have been made at the first trial on the same facts (constructive res judicata). If a
charge might have been made for another offence in the first trial, the accused cannot be
tried again for such offence. The protection given by S.300 applies only to some
offences but, however, the protection is extended to different offences only when they
are based on the same facts and falls within the provision of S.221, i.e., where it is
doubtful what offence has been committed.
Where the charge on second trial is for different offences, the trial is not barred.
S.300 (2) says that a person acquitted or convicted of any offence may be afterwards
tried, with the consent of State Govt. for any distinct offence for which a separate
charge might have been made against him at the former trial u/s 220 (1), i.e., where one
series of acts so connected together as to form the same transaction, more offences than
one are committed by the same person, he may be charged with and tried at one trial for
every such offence. But if some of the offences are left and not covered in one trial, he
cannot be tried again for the rest of the charges unless the sanction of the State Govt. is
taken. This acts as a safeguard against abuse of power by the authorities.
S.300 (3) says that 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
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time when he was convicted. E.g., A is tried for causing grievous hurt and is convicted.
The person injured, afterwards dies. A may be tried again for culpable homicide. The
facts or 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 facts or consequences must have
occurred after the conviction or acquittal at the first trial. If the court knew the new facts
of consequences at the time of first trial, second trial for an offence constituted by new
facts would be barred.
S.300 (4) says that if the court by which the person was tried first was not
competent to try the offence with which he is subsequently charged; the person may be
subsequently charged and tried for any other offence constituted by the same facts. E.g.,
A, B & C are charged by a Magistrate of Ist Class and convicted of robbery. All the three
accused may afterwards be charged with and tried for dacoity on the same facts because
the offence of dacoity is not triable by a Magistrate of I st Class, it is triable only by the
Court of Sessions.
S.300 (5) says that when a person is acquitted during summon trial u/s 258 where
the Magistrate makes an order to stop the proceedings, such person discharged u/s 258
shall not be tried 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.
This is also a safeguard against the misuse of power by the proceeding authorities.
S.300 (6) says that the bar of this section shall not affect the provisions of S.26 of
the General Clause Act, 1897, which provides that where an act or omission constitutes
an offence under two or more enactments, the offender shall be liable to be prosecuted
and punished under either or any of these enactments, but shall not be liable to be
punished twice for the same offence.
In Pritam Singh v. State of Punjab, it was held that the acquittal of Pritam Singh on
a finding that the prosecution had failed to establish the possession of revolver u/s 25
Arms Act, which was a fact in issue, could not be re-agitated by the prosecution again.
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SC observed that the effect of a verdict of acquittal pronounced by a competent court on

a lawful charge and a lawful trial is not completely stated by saying that the person
acquitted cannot be tried again for the same offence; to that it must be added that the
verdict is binding and conclusively in all subsequent proceedings between the parties to
the decision. Once it has been proved that he was not in possession of revolver and
acquitted, prosecution is not at liberty to agitate this issue again, which is clearly barred
by S.300 Cr.P.C. (old S.403).
Issue estoppel: - This rule in a criminal trial is that where a competent court has tried an
issue of fact on a former occasion and a finding has been reached in favour of the
accused, such a finding would constitute an estoppel against the prosecution. No further
evidence shall be received to disturb that finding of fact when the accused is tried
subsequently even for a different offence.
In Manipur Administration v. T.B.Singh, AIR 1965 SC 87, where A was charged for
breaking the prohibitory orders u/s 144 Cr.P.C. and then committing a murder. The trial
court decided that A was not present in the crowd which broke the prohibitory orders u/s
144 Cr.P.C. at his trial u/s 188 I.P.C. On the trial of A on the charge of murder, he cannot
be tried for murder because once it has been decided finally that A was not present
there, the prosecution is estopped from agitating that A was present there and committed
murder. Prosecution is barred by the rule of issue estoppel.
The issue estoppel is a rule of evidence which does not work as a bar to the trial but
as precluding the reception of evidence to disturb that finding of fact on which the court
once has applied its mind, heard the parties and finally decided it.
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Lecture 9 Discharge and Acquittal
The principle of res judicata contained in S.300 is applicable only if the person is
acquitted. Order of discharge is such that the accused can be re-charged and his second
trial is not barred u/s 300. Explanation attached to S.300 (6) clearly says that the
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dismissal of a complaint or discharge of accused is not acquittal for the purposes of this
section. This section is based on the well-known principle that no person should be
twice vexed for the same offence. Where an offence has already been the subject of
judicial investigation, and adjudication, and there has been an acquittal, the acquittal is
conclusive and it would be a very dangerous principle to adopt to regard a judgment of
not guilty as not fully establishing the innocence of the accused.
For application of S.300, it is not necessary that there should be an acquittal on the
merits. The withdrawal of remaining charges u/s 245 Cr.P.C. upon conviction on one of
the several charges has the effect of acquittal and bars the same trial on the same facts.
The non-appearance of the complainant in a summon trial u/s 256 Cr.P.C. has the effect
of acquitting the accused and he cannot be tried again for the same offence. Similarly,
withdrawal of a summon case by the complainant operates as acquittal of the accused. A
compromise or compounding u/s 320 Cr.P.C. has the effect of acquittal. But a wrong
order of acquittal will not bar a subsequent trial. If a Magistrate tries a warrant case as
summons case an acquits the accused without framing a charge, such an order of
acquittal will be treated as one of discharge only and cannot operate as a bar to a re-
trial.
The explanation attached to S.300 (6) provides that the discharge of the accused is
not an acquittal for the purposes of this section. Code has not drawn any distinction
between a discharge where all evidence has been heard for prosecution and a discharge
where it has not been heard. Law permits fresh proceedings against the person
discharged.
The dismissal of a complaint u/s 203 is not an acquittal; hence, fresh complaint is
not barred. Similarly, the dismissal of a complaint u/s 204 (3) for non-payment of the
process fee for summoning the accused does not amount to an acquittal, hence, does not
bar the fresh trial. An order of discharge u/s 245 or 249 does not bar fresh complaint on
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the order of discharge; no formal order u/s 398 is necessary for the institution of the
fresh trial.
An order of discharge has to be taken as an order of acquittal when, in the
circumstances, an order of acquittal was the only order that could largely be passed.
Conversely, an order that purports to be one of the acquittals has to be recorded as one
of the discharge when under the law; only discharge order could be passed.
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