Q. Describe the organization of police, prosecutor, defense counsel and prison authorities and their functions, duties, and powers. Police The ordinary criminal courts derive their existence from CrPC. However, CrPC does not say anything about the constitution of Police. It assumes the existence of police and devolves various powers and responsibilities on to it. Functions
-
As per The Police Act, 1861, the police force is an instrument for the prevention and detection of crime. Organization
-
Every state establishes its own police force which is formally enrolled. The force consists of such number of officers and men and is constituted in such manner as the state govt. may decide from time to time. The overall administration of police in the entire state is done by Director General of Police. The administration of police in a district is done by District Superintendent of Police under the general control and direction of District Magistrate who is usually the Collector of the district. Every police officer appointed to the police force, other than Inspector General of Police and District Superintendent of Police, receives a certificate in prescribed form by virtue of which he is vested with the powers, functions and privileges of a police officer.
The Police Act, 1888 also empowers the Central Govt to create special police districts and to extend the jurisdiction of police of any state to that district. The Police Act 1949, creates a police force for Union Territories. Powers
-
1. The Cr P C confers specific powers on the members of police force who are enrolled as police officers. These powers include power to make an arrest, search, and investigate. Wider powers have been given to police officers in charge of a police station. As per Section 2(s), police station means any post or place that is generally or specially designated by the state govt as a police station. Further, as per Section 2(o) officer in charge of a police station includes the officer who is present at the police station and is next in rank to the police officer in charge, if he is on leave or is absent. This only increases the importance of the police officer in charge of a police station. 2. Section 36 of CrPC specifies that officers of police who are superior in rank to police officer in charge of a police station can exercise all the powers of that police officer. In the case of State of Bihar vs J A C Saldanha SCC 1980, SC held that if the Inspector General (Vigilance) is an officer superior to the officer in charge of the police station he can exercise the powers of that officer through out the territory to which the superior officer has been appointed, which,
in
this
case
is
the
entire
territory
of
Bihar.
Prosecutor A crime is a wrong not only against an individual but is also against the society. It is because of this reason that the state, which represents the collective of people, participates in the criminal trial of an accused, specially if the crime is of cognizable nature. Public Prosecutor or Assistant Public Prosecutor is the state counsel for such trials. As per section 2(u), Public Prosecutor means any person appointed under Section 24 and includes any person acting under the directions of the public prosecutor. Section 24 of CrPC specifies the rules for appointment of Public Prosecutor. A person shall be eligible to be appointed in High Court as Public Prosecutor if he has been in practice as an advocate for not less than seven years. The appointment can be made only after consultation with the High Court. Further, the central govt. can appoint a Public Prosecutor for conducting in a high court any prosecution, appeal, or other proceeding on behalf of the Central Govt. Assistant Public Prosecutor are appointed under Section 25. It authorizes the State Govt. to appoint one or more APPs for every district for conducting any case in Court of Magistrates. No police officer is allowed to be appointed as APP. Duties
-
Duty of a public prosecutor mainly consists in conducting the prosecution on behalf of the state. His goal is not merely to produce a conviction but the help the court arrive at a just decision.
He also appears as the state counsel in criminal appeals, revisions, and such other matters in the Session Courts and High Court. It is important to note that he does not appear on behalf of the accused.
Powers
-
1. As per Section 301, a Public Prosecutor or Assistant Public Prosecutor has the authority to appear and plead before any court in any case entrusted to him. 2. As per Section 321, he can withdraw from the prosecution against any person with the consent of the court. According to the pattern set by CrPC, Public Prosecutors conduct the proceedings in Session Courts and the High Courts and Assistant Public Prosecutors are appointed for conducting prosecution in Magistrates' Courts. As per prevailing practice, in respect of cases initiated on police reports, the prosecution is conducted by the APP and in cases initiated on a private complaint the prosecution is either conducted by the complainant himself or by his duly authorized counsel.
Defense Counsel: As per Section 303, any person accused of an offence before a Criminal Court has a right to be defended by a pleader of his choice. Such pleaders are not in regular employment of the state and a paid remuneration by the accused person. Since, a qualified
legal practitioner on behalf of the accused is essential for ensuring a fair trial, Section 304 provides that if the accused does not have means to hire a pleader, the court shall assign a pleader for him at state's expense. At present there are several schemes through which an indigent accused can get free legal aid such as Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board, and Supreme Court Senior Advocates Fee Legal Aid Society. The Legal Services Authorities Act, 1987 also provides free legal aid for the needy.
Prison Authorities: CrPC presumes the existence of Prisons and Prison authorities. The code empowers magistrates and judges under certain circumstances to order detention of under trial prisoners in jail during the pendency of proceedings. The code also empowers the courts to impose sentences of imprisonment on convicted persons and to send them to prison authorities. However, the code does not make specific provisions for creation and administration of prison authorities. These matters are dealt with in separate acts such as The Prisons Act 1894, The Prisoners Act, 1900, and the Probation of Offenders Act 1958.
Q. What do you understand by Arrest? How is an arrest made? When can the police arrest a person without an order from a magistrate and/or without a warrant? Explain the rights of an arrested person. [Right to know the grounds of arrest Art 22(1), Sec 50, 50(A), Right to consult and to be defended by legal practitioner of his choice - Art 22(1), Sec 303, Right to legal aid - Art 21, Sec 304, Right to bail Sec 50(2), Right to be produced before nearest magistrate within 24 hrs - Art 22(2) Sec 56, 57, Right not to be detained in custody beyond 24 hrs - Art 22(2) Sec 57, 167, Right to be examined by medical practitioner] 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. (Note - Arrest in case of Warrant is discussed in another question.)
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 noncognizable 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.
Arrest by Private person Even private persons are empowered to arrest a person for protection of peace in certain situations. This is important because police cannot be present at every nook and corner and it is up to private citizens to protect the society from disruptive elements or criminals. As per section 43(1), any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. Thus, if a person is drunk and is committing assault on others, he may be rightly arrested by any citizen and taken to the nearest police station. However, it is important to note that this power can be exercised only when the person making an arrest is under a bona fide impression that a non-bailable and cognizable office is being committed in his presence. One does not have a right to arrest on mere suspicion or on mere opinion that an offence has been committed. Procedure on arrest by private person –
As mentioned above, the private person must take the arrested person to the police officer or police station without any reasonable delay. If he keeps the person in his own custody, he will be guilty of wrongful
confinement
as
given
in
Section
342
of
IPC.
As per section 43(2), If there is reason to believe that such person comes under the provisions of section 41, a police officer shall rearrest him. Further, as per section 43(3), if there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released. A new provision has been incorporated as Section 50A, which makes it obligatory for the police officer or any other person making an arrest to give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. Further, the police officer shall inform the arrested person of his rights under subsection as soon as he is brought to the police station. He must make an entry of the fact as to who has been informed of the arrest of such person in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. It is the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the
requirements of this section has been complied with in respect of such arrested person.
Arrest by Magistrate As per Section 44(1), when any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. Further, (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant. Important thing to note here is that magistrates have wider power than private citizen. A magistrate can arrest on the ground of any offence and not only on cognizable offence. As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the arrested person must be produced before another magistrate within 24 hours, otherwise his detention will be illegal. Arrest how made – Section 46 describes the way in which an arrest is actually made. As per Section 46(1), unless the person being arrested consents to the submission to custody by words or actions, the arrester shall actually touch or confine the body of the person to be arrested.
Since arrest is a restraint on the liberty of the person, it is necessary for the person being arrested to either submit to custody or the arrester must touch and confine his body. Mere oral declaration of arrest by the arrester without getting submission to custody or physical touching to confine the body will not amount to arrest. The submission to custody may be by express words or by action. For example, as held in the case of Bharosa Ramdayal vs Emperor AIR 1941, if a person makes a statement to the police accusing himself of committing an offence, he would be considered to have submitted to the custody of the police officer. Similarly, if the accused proceeds towards the police station as directed by the police officer, he has submitted to the custody. In such cases, physical contact is not required. In case of Birendra Kumar Rai vs Union of India, CrLJ, 1992, it was held that arrest need not be by handcuffing the person, and it can also be complete by spoken words
if
the
person
submits
to
custody.
Section 46(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. Thus, if the person tries to runaway, the police officer can take actions to prevent his escape and in doing so, he can use physical force to immobilize the accused. However, as per Section 46(3), there is no right to cause the death of the person who is not accused of an offence punishable with death or with imprisonment for life, while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is necessary to
prevent
him
from
escaping.
Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer after making a written report and obtaining a prior permission from the concerned Judicial Magistrate of First class. In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the police station or confining the movement of the person in the precincts of the police station amounts
to
arrest
of
the
person.
Rights of an Arrested person (GBMLLIM)
Cr P C gives wide powers to the police for arresting a person. Such powers without appropriate safeguards for the arrested person will be harmful for the society. To ensure that this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can be seen as recognition of the rights of a person being arrested. Further, once arrested, a person is already at a disadvantage because of his lack of freedom and so he cannot take appropriate steps to defend himself. Thus, to meet the needs of "fair trial", several provisions are given in CrPC, that give specific rights to an arrested person. described as follows –
These rights can be
1. Right to know the grounds of arrest - Section 50(1) According this provision, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Similarly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55, the subordinate officer must notify the person to be arrested of the substance of the written order given by the senior officer, which clearly specifes the offence for which he is being arrested. The same provision exists in case of an arrest made under a warrant in Section 75. In this case, the police officer or any person making arrest under warrat must notify the substance of the warrant to the person being arrested and if required, must show the warrant. As held in Satish Chandra Rai vs Jodu Nandan Singh, ILR 26 Cal 748, if the substance of the warrant is not notified, the arrest would be unlawful. In Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows him to move the proper court for bail, make a writ petition for habeas corpus, or make appropriate arrangements for his defence.
This right is also a fundamental right given by the Constitution in Art 22(1), which says, "No person who is arrested shall be detained in custody without being informed, as soon as may be, of
the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.". It embodies two distinc rights - the right to be told of the grounds of arrest and the right to consult a legal practioner of his choice. The second right of consulting a legal practitioner of his choice actually depends on the first right of being told about the grounds of arrest. If the person doesn't know why he is being arrested, he cannot consult a legal practioner meaningfully. In Harikishan vs State of Maharashtra AIR 1962, SC held that the grounds of arrest must be communicated to the person in the language that he understands otherwise it would not amount to sufficient compliance of the constitutional requirement.
2. Right to be informed of the provision for bail - Section 50(2) - Some offences that are not very serious do not require the offender to be kept in custody. For such offences, Cr P C allows the offender to ask for bail as a matter of right. However, not every person knows about Cr P C and so they cannot know that they can get bail immediately. Thus, Section 50(2), provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.
3. Right to be taken to magistrate without delay - Holding a person in custody without first proving that the person is guilty is a violation of human rights and is completely unfair. At the same
time, holding a person in custody is necessary for the police to carry on their investigation of a crime. These two are contradictory requirements and a balance must be found between them. Since police has arrested the person, it cannot be the agency that determines whether person must be kept confined further. This can only be decided by a competent judicial authority. This is exactly what is embodied in Art 22(2) that gives a fundamental right to the arrested person that he must be produced before a magistrate within 24 hours of arrest. It says, "Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a
magistrate."
Section 57 of CrPC also contains a similar provision for a person arrested without a warrant. It says, "No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's
court."
Section 76 contains a similar provision for a person arrested under a warrant. It says, "The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the
person arrested before the court before which he is required by law to produce such person. Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's
court."
Thus, it can be see that it is a very important right that is meant to prevent abuse of police power and to prevent the use of a police station as a prison. It prevents arrest merely for the purpose of extracting confessions. The arrested person gets to be heard by a judicial
authority
that
is
independent
of
the
police.
In Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours be scrupulously met. This is a healthy provision that allows magistrates to keep a check on the police investigation. It is necessary that the magistrates should try to enforce this requirement and when they find it disobeyed, they should
come
heavily
upon
the
police.
Further, in Sharifbai vs Abdul Razak, AIR 1961, SC held that if a police officer fails to produce an arrested person before a magistrate within 24 hours, he shall be held guilty of wrongful detention. Constitutional Perspective on Art 22(2) - On the face of it, this article seems to be applicable on arrests with or without warrants. However, in State of Punjab vs Ajiab Singh AIR 1953,
SC observed that it applies only to cases of arrests without warrant because in case of an arrest with warrant, the judicial mind has already been applied while issuing the warrant. So further safeguard is not required. This decision has been widely criticized. In any case, the proviso to Section 76 unmistakably provides that a person arrested under a warrant must be produced before a magistrate
within
24
hours.
4. Right to consult Legal Practitioner -
Art 22 (1) - For
conducting a fair trial it is absolutely necessary that the accused person is able to consult with a legal practitioner whom he trusts. Second part of Article 22(1) gives this fundamental right to an arrested person. It says that no person who is arrested shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. However, this does not mean that the State must provide a legal practitioner of the person's choice. It is up to the arrested person to contact and appoint a such a legal practitioner. The State's responsibility is only to ensure that he is not
prevented
from
doing
so.
The same right is also provide by CrPC under Section 303, which says, "Any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may of right
be
defended
by
a
pleader
of
his
choice."
5. Right to free legal aid - Art 21 and Section 304 - A person who does not have the means to hire a legal practitioner is unable to defend himself appropriately. This casts a cloud on the fairness of the trial. Therefore, Section 304 provides that where, in a trial
before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State. In Khatri (II) vs State of Bihar 1981 SCC, Supreme Court has also held that access to a legal practitioner is implicit in Article 21, which gives fundamental right to life and liberty. The state is under constitutional mandate to provide free legal aid to an indigent accused person and this constitutional obligation arises not only when the trial is commenced but also when the person is first produced before a magistrate and also when he is remanded from time to time. In Suk Das vs Union Territory of Arunachal Pradesh 1986, SCC, SC has held that non-compliance of this requirement or failure to inform the accused of this right would vitiate the trial entailing setting aside of the conviction and sentence. The right of an accused person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be within the presence of a police officer but not within the police officer's hearing. SC also held that it is the duty on all courts and magistrates to inform the indegent person about his right
to
get
free
legal
aid.
6. Right to be informed about the right to inform of his arrest to
his
relative
or
friend -
In order to ensure a fair trial and to improve people-police relationship, the Supreme Court, in Joginder Kumar vs State of UP 1994, formulated the rules that make it mandatory on the police officer to inform one friend, relative, or any other person of the accused person's choice, about his arrest. These rules were
later incorporated in CrPC under section 50 A in 2005. Section 50 A (1) provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person's choice, about his arrest. He must also tell the place where the arrested person has been kept. This is a very important step in ensuring justice with the arrested person because this allows the arrested person and his well wishers to take appropriate legal steps to secure his release. However, all this will amount to nothing if the arrested person does not even know about this very critical right. Thus, Section 50 A (2) provides that the police officer must inform the arrested person of this right. Further, as per Section 50 A (3) he must note down the name and address of the person who was informed about the arrest. To make sure that there is no violation of this right, section 50 A (4) makes it a duty of the magistrate to verify that the provisions of this section were complied
with.
7. Right to be examined by a medical practitioner - While Section 53 allows a police officer to get the accused examined by a registered medical practitioner, Section 54(1) gives the accused a right to get himself examined by a registered medical practitioner. Section 54 (1) says thus, "When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested
person so to do direct the examination of' the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice". While Section 53 is meant to aid the police in investigation, Section 54(1) is meant for the accused to prove his innocence. This right can also be used by the accused to prove that he was subjected to physical injury. In Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the arrested accused person must be informed by the magistrate about his right to be medically examined in terms of Section
54(1).
However, it is not clear in the section whether the medical person must be of the choice of the accused or shall be appointed by the magistrate. The section is also silent on who will bear the expense of
the
examination.
Non compliance to this important provision prompted Delhi High court to issue directions that make it obligatory for the magistrates to ask the arrested person as to whether he has any complaint of torture
or
maltreatment
in
police
custody.
Consequences of non-compliance with the provisions relating to
arrest
-
In general, non-compliance does not void a trial. Just because any provision relating to arrest was not complied with does not affect whether the accused is guilty or not. However, the violation will be material in case the accused is prosecuted on the charge of
resistance
to
or
escape
from
lawful
custody.
Further, everybody has a right to defend himself against unlawful arrest and a person can exercise this right under Section 96 to 106 of IPC and he will not be liable for any injury caused due to it. Also, a person who is making an illegal arrest is guilty of wrongful confinement and also exposes himself to damages in a civil suit. If a person who has an authority to arrest, arrests a person with full knowledge that the arrest is illegal, he will be liable to be prosecuted under Section 220 of IPC. Similarly, any private person who does not have an authority to arrest, arrests a person with full knowledge that the arrest is illegal, can be prosecuted under Section
342
of
IPC
for
wrongful
confinement.
A person making illegal arrest also exposes himself to civil suit of false
imprisonment.
It is important to note that the provisions regarding arrest cannot be by-passed by alleging that there was no arrest but only an informal detention. Informal detention or restraint of any kind by the police is not authorized by law. Differences and Short Notes. Compoundable and Non Compoundable Offences - Some offences largely affect only the victim and no considerable harm is considered to be done to the society. In such offences, if the offender and victim compromise, there is no need to waste court's time in conducting a trial. The process of reaching a compromise is called Compounding. Conceptually, such offences, in which a compromise can be done and a trial can be avoided, are called
Compoundable
offence.
Rest
of
the
offences
are
non-
compoundable. Technically, offences classified as Compoundable by Section 320 of Cr P C are compoundable. Section 320 specifies two kinds of Compoundable offences - one where permission of court is required before compounding can be done for example, voluntarily causing grievous hurt, Theft, criminal breach of trust, assault on a woman with intention to outrage her modesty, etc. and one where permission of the court is not required for example, causing hurt, adultery, defamation, etc. As per S. 320(3), if the abetment of an offence is an offence and if the offence is compoundable then abetment is also compoundable. Only the person, who is specified in the classification tables in Section 320, has the right to compound the offence. The person is usually the victim. The offender cannot demand compounding as a
right.
However, when an offender has been committed to trial or when he has been convicted and his appeal is pending, compounding can only be done with the leave of the court to which he is committed or to which the trial is pending. If an offender is liable for enhanced punishment or a different punishment on account of a previous conviction, compounding cannot be done. High Court and Court of Session may, under their power of revision in Section 401, can allow any person to compound any compoundable offence. When an offence is compounded, it is equivalent to an acquittal.
Compoundable Offence Section 320
Non Compoundable Offence
Offences classified as compoundable by S. 320 of CrPC
Rest of the offences
Offence mostly affects a private party.
Private party as well as society both a
The victim and the offender may reach compromise with or without the permission of the court depending on the offence.
Upon compromise, the offender is acquitted without any trial.
No compromise is allowed. Even cour
Full trial is held and acquittal or convic
In Bhima Singh vs State of UP, AIR 1974, SC held that when an offence is compoundable with the permission of the court, such permission may be granted by SC while an appeal is made against the conviction provided the parties have settled the matter amicably. In Ram Lal vs State of J&K, 1999, SC held that when an offence is declared non-compoundable by law, it cannot be compounded even with the permission of the court. However, the court may take the
compromise
into
account
while
delivering
judgment.
The case of B S Joshi vs State of Haryana, AIR 2003 is interesting in this regard. The case was about the matter related to Section 498A, which is non-compoundable offence. In this case, the parties reached a compromise but the High Court refused to quash the FIR, on the ground that the offence is noncompoundable. However, SC held that in the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under Section 482 of the Code, such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly
defined
and
sufficiently
channelised
and
inflexible
guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. It further observed that in this case, the parties were not asking for compounding the offence but for quashing the FIR. It observed that since because of the amicable settlement, there is no chance of conviction and in such a case the court has the power to quash the proceeding.
Cognizable offence and Non-cognizable offen
Cognizable offence
Defined in Section 2(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 or under any other law for the time being in force, arrest without warrant. Examples - Murder, Dowry death, grevious hurt, theft.
Police has to record information about a cognizable offence in writing as per Section 154.
Police can start investigation without the order of a magistrate.
In general, cognizable offences are of serious nature which involve imprisonment of more than three years. However, there is no such precise rule. To be cognizable, an offence must be declared so by the law defining that offence. Several offences which carry less prison term such as rioting (2 yrs) have been declared cognizable, while several with bigger prison term such as False Evidence (7 yrs) or Rape by a man with his own wife of not less than 12 yrs have been declared non-cognizable.
Non Cognizable offence
Defined in Section 2(l) - "non-cognizable offence" means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant. Example - keeping a lottery office,voluntarily causing hurt, dishonest misappropriation of property. As per Section 155, Police has to enter information in register prescribed for it and refer the informant to a magistrate.
Police officer cannot investigate the case without the order of a magistrate.
First Information Report:The name FIR is given to the information given by any person about a cognizable offence and recorded by the police in accordance with Section 154. As per this section, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. SC in the case of State of Bombay vs Rusy Mistry, AIR 1960, defined FIR as so - A FIR means the information, by whomsoever given, to the officer in charge of a police station in relation to the commission of a cognizable offence and which is first in point of time and on the strength of which the investigation into that offence is commenced. Thus, FIR is nothing but information of the nature of a complaint or accusation about a cognizable offence given by any person to the police so that the police can start investigation. When a person reports any information about a cognizable offence to the police, the police is bound to register a case and proceed with investigation. However, for police to investigate the matter, the offence must be a cognizable offence. The police is not allowed to investigate a non-cognizable offence without an order from a magistrate. So, once the duty officer is certain that the offence alleged to have been committed is a cognizable offence, he directs the complainant to put his statement in writing. In the presence of the complainant, the duty officer shall complete all the columns in the FIR register with the information given by the complainant. He shall then read out all the contents of the FIR registered to the complainant. Once the complainant is certain that all the details have been correctly written, he should sign the FIR.
FIR merely contains the facts of the offence as known by the informant. The FIR is a statement by the complainant of an alleged offence. The informant is not required to prove his allegations in any manner at the police station. It is the job of the police to ascertain facts, verify details and substantiate the charges or otherwise. However, the facts must not be vague. The facts must divulge at least some concrete information about the offence committed. In case of Tapinder Singh vs State, 1972, SC held that when a telephone message did not disclose the names of the accused nor did it disclose the commission of a cognizable offence, it cannot be called a FIR. In case of State of UP vs R K Shrivastava, 1989, SC held that if the allegations made in an FIR do not constitute a cognizable offence, the criminal proceeding instituted on the basis of the FIR should be quashed. Sometimes multiple persons may report the same incident and in such situation the police must use commonsense and record one statement as FIR. Usually, the statement that contains enough information to allow the police to proceed with investigation is recorded as FIR. Evidentiary Value of FIR A FIR is not substantive evidence that is, it is not evidence of the
facts which it mentions. However, it is very important since it conveys the earliest information about the occurrence of an offence and it can be used to corroborate the information under Section 157 of Indian Evidence Act or to contradict him under Section 145 of Indian Evidence Act, if the informant is called as a witness in a trial. It is considered that FIR has a better corroborative value if it is recorded before there is time and opportunity to embellish or before the memory of the information becomes hazy. There must be a reasonable cause for the delay. For example, in case of Harpal Singh vs State of HP, 1981, involving rape, the FIR was registered after 10 days. It was held that the delay was reasonable because it involved considerable matter of honor for the family and that required time for the family to decide whether to take the matter to court or not. As FIR can also be used in cross examination of the informant. However, if the FIR is made by the accused himself, it cannot be used against him because of Section 25 of Evidence act which forbids any confession made to the police to be used against the accused. A FIR can also be used as a dying declaration under Section 32 of Indian Evidence Act.
Summons Case and Warrant Case As per Section 2(w), "summons-case" means a case relating to an offence, and not being a warrantcase and as per Section 2 (x), "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Cr P C classifies an
offence as either cognizable or non-cognizable, and a trial procedure as summons case or warrant case. Thus, the terms summons case and warrant case are in reference to the procedure adopted for the trial of the case. Thus, the difference between the two can be seen from the point of view of their trial procedures as highlighted below D2CCPAWO
Summons Case Cr P C prescribes only one procedure for all summons cases, whether instituted upon a police report or otherwise. No charge needs to be framed only the particulars of the offence needs to be conveyed to the accused. As per S. 252, if the accused pleads guilty, the magistrate must record the plea of the accused and may, in his discretion, convict him on such plea. Accused my plead guilty by post without appearing before the magistrate. The accused may be acquitted, if the complainant is absent or if the complainant dies. The complainant may, with the permission of the court, withdraw the complaint against the accused. When a warrant case is tried as a summons case and if the accused is acquitted under S. 255, the acquittal will only amount to discharge. Trial of a warrant case as a summons case it is a serious irregularity and the trial is vitiated if the accused has been prejudiced. A summons case cannot have charges that require a warrant case. Accused gets only one opportunity.
No such power to the magistrate in summons case. All cases which are not punishable by death, imprisonment for life, or for more than two years are summons cases. Conversion As per Section 259, a summons case can be converted into a warrant case if the case relates to an offence that entails more than 6 months of imprisonment as punishment and the judge feels that in the interest of justice it the case should be tried as a warrant case.
Warrant case Cr PC prescribes two procedures for the trial of a warrant case my magistrate - one for case instituted upon a police report and one for case instituted otherwise than on a police report. A charge needs to be framed against the accused. As per S. 241, After the charge is framed, the accused may plead guilty and the magistrate may convict him on his discretion. Accused must appear personally. Magistrate can discharge the accused if complainant is absent, or no charge is framed, or if the offence is compoundable and non cognizable. The complainant may, with the permission of the court, withdraw the remaining charges against an accused, if he is charged with several offences and convicted on one or more of them. When a summons case is tried as a warrant case and if the accused is discharged under S 245, the discharge will amount to acquittal. Trial of a summons case as a warrant case is an irregularity which is curable under Section 465. A warrant case may contain charges that reflect a summons case.
Accused may get more than one opportunity to cross-examine the prosecution witness. A charge under a warrant case cannot be split up into its constituents for trial under summons case. After convicting the accused, the magistrate may take evidence regarding previous conviction not admitted by the accused. All cases which are punishable by death, imprisonment for life, or for more than two years are warrant cases. A warrant case cannot be converted into a summons case.
