Friday, July 2, 2010

Introduction

The code applies to whole of India except certain areas like Nagaland, parts of tribal areas in Assam, and Andhra Pradesh. However, the State Government by notification in the gazette can make it applicable. The code cannot be amended even by a State Govt except by the assent of the President [Art254(2)].

Cr.P.C has 3 basic considerations.
1> accused person should get a fair trial with accepted principles of natural justice.
2> to avoid delay in investigation and harmful trials
3> the procedure should not be complicated and a fair trial to the poorer sections of the community.

The rules contained in the code need to be obeyed. If not then the High Court has the inherent power to 1) give effect to any order under the code, 2) to prevent abuse and 3) to secure the ends of justice.

There is no limitation of time in filing complaints but delay in filing is attended by 2 evils namely that memory fades over time and valuable evidence is destroyed. The Limitation Act 1963 (Art 114, 115 and 131 ) is applicable to all appeals and review petitions.

Bailable offence means that you can deposit money or surety with the police officer and the list of offences is specified in the 1st Schedule. Cognizable offence is where a police officer can arrest without warrant. So if you are booked under 3 sections and 1 of the section is cognizable then it would be deemed to be cognizable.

Who can complain ? What is the difference between complaint and police report ?

Any person of sound mind and competent can complain except for offences of marriage, defamation and offences covered under S.195-197.
Complaint means any allegation in writing or orally made to the Magistrate urging him to take action on that person/s who have committed an offence. Magistrate may or may not take cognizance. Complainant and First Informant are not the same. For ex: In a case of murder of husband, the wife was the complainant. Affidavit is also a complaint. Complaint need not contain all ingredients of offence but allegations of fact are necessary.
While police report means a report made by an officer after investigation declares it in the report that a non-cognizable offence has been committed, he then forwards it to the Magistrate. Here the police report is a complaint and the police officer is the complainant.

What is the difference between inquiry, investigation and trial ?
All proceedings before the framing of a charge and which do not result in conviction is an inquiry. Inquiry stops when trial begins.
The police officer first of all investigates(collection of evidence) the subject matter and if he finds there was no commission of offence, he reports to Magistrate who drops proceedings. If he finds any thing contrary then Magistrate can order an inquiry or trial. He can conduct the trial or an inquiry. He may discharge, acquit or convict. When someone says 'judicial proceedings' it includes both inquiry and trial conducted by a Magistrate and not investigation done by a police officer.

Collection of evidence means - search of material, arrest and detention of a person, examining witnesses, raids, medical examination etc.

What is the difference between 'summons case & warrants case' ?
Ordinary cases where the punishment is below 2 years is a summons case. A warrant case is more serious and includes offence punishable by death, imprisonment for life or imprisonment for a term exceeding 2 years. A summons case can be tried as a warrant case and vice-versa if justice demands or the Magistrate passes a specific order and order-sheet should reflect it.

The hierarchy of the Magistrate is as follows and they deal with appreciation or sifting of evidence, punishment,penalty, detention in custody until investigation/inquiry or trial etc..:

Supreme Court Judge
High Court Judge
Chief Judicial Magistrate or District Magistrate(Executive) or Sessions Court/Judge
Judicial Magistrate of First Class/Metropolitan Magistrate of First Class
Judicial Magistrate of Second Class/Metropolitan Magistrate of Second Class
Judicial Magistrate of Third Class

The Executive Magistrate deals with administrative functions which are executive in nature. For Ex: Granting of License, Sanctioning prosecution or withdrawing from a prosecution. The EM is ranked with JMFC cadre.

If no code is available for a particular offence then S4(2) and 26(6) Cr.P.C be availed for investigation and inquiry or trial. For Example: If offence is committed in USA and S.188 Cr.P.C requires sanction from Govt of India for enquiry and trial of Indian citizen...not for pre-enquiry stage.
In certain cases such as seizure of vehicle and the authorities release the vehicle, then Magistrate powers stand excluded. Sales Tax, Income Tax and Customs will be governed by their respective Acts and will prevail. Only when provisions of IPC are attracted then the code will come into force. Special jurisdiction for CONTEMPT are with the High Courts which are court of records like the Supreme Court, they can formulate their own procedure.

3 comments:

  1. Thanks this is so useful! Would have any more such articles?

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