PRACTICE QUESTIONS Flashcards
EXAMINATION OF COMPLAINANT
Section 200 of the Cr PC, 1973 provides for the examination of the complainant when the same has been lodged and the Magistrate has taken cognizance.
This section provides that a Magistrate taking cognizance of an offence on complaint, shall examine the complainant and the witnesses, if any, upon oath and that the substance of the examination shall be reduced to writing and signed by the complainant and the witnesses and also by the Magistrate. This is, however, not necessary that the complaint is in writing and nothing even impliedly mean that the complaint must be presented to the Magistrate personally. This section comes into play only when the Magistrate has taken cognizance of an offence.
Purpose of examination
The main purpose of this examination, under section 200 of the Code is to protect general public so that they are not unnecessarily harassed by false and frivolous accusations. To avoid this mischief, before Magistrate issues a process and summons a person, accused of an offence, should satisfy himself of the truth or falsehood of the complaint and then see if the matter in the complaint requires inquiry by the Court of law. Section 200, however, talks about examination of the complainant and the witness who are present at the time when the complaint has been lodged by the complainant
Magistrate taking cognizance”?
Expression ‘taking cognizance’ means the Magistrate must have applied his mind to the offence for the purpose of proceeding in a particular way provided under section 190 of the Code. It is important to note that the expression ‘taking cognizance’ has not been defined in the Code nor does the Code prescribe any special form of taking cognizance. The word ‘cognizance’ is, however, used in the Code to indicate the point when the
Magistrate takes judicial notice of an offence. It is a word of indefinite import, and is perhaps not always used in exactly the same sense
Meaning of word ‘may’ in the expression ‘may take cognizance’
The word ‘may’ imports exercise of judicial discretion and the Magistrate, on receiving a complaint or a police report, will have to decide judicially whether or not to take cognizance of the offence. The provisions of this section cannot, therefore, be read as meaning that once a complaint is filed, the Magistrate is bound to take cognizance. The word ‘may’ cannot be taken in a way that it means ‘must’; Gopal Das Sindhi v. State of Assam,
When can a Magistrate postpone the issue of process against the accused?
Section 202: (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient grounds for proceeding.
Provided that no such direction for investigation shall be made:
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the court of session; or
(b) where the complaint has not been made by a Court unless the complainant and witnesses present (if any) have been examined on oath under section 200.
(2) In an enquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a Police Station except the power to arrest without arrest- warrant.
This section contains yet another check to prevent false and vexatious complaints being filed. Section 202 makes it clear that a Magistrate is not bound to issue process immediately when a complaint is filed before him. If he has doubt about the truth of the complaint, it gives him power to postpone the issue a process if he thinks fit, and either to inquire into the case himself or direct an investigation by a police officer or such other person as the Magistrate thinks fit “for the purpose of ascertaining whether or not there is sufficient ground for proceeding”;
Name the factors which a Magistrate shall take into consideration while discussing the complaint
(i) When the complaint does not involve any criminal liability of the accused;
(ii) When the Magistrate does not see any prima facie evidence against the accused;
(iii) Where the complainant does not appear before the court in person;
(iv) Where the complaint discloses a cognizable offence against an unknown offender, the Magistrate must record in his judgment under section 203 that
there are no sufficient grounds for proceeding.
(v) Where a complaint is based on some official communication, oral or in writing, falling within the sections 123 to 125 of the Indian Evidence Act, and there is no likelihood of proving the communication by primary or direct evidence;
(vi) It is in the true interests of justice that complaints should not be entertained when allegations considered to be utterly false and liable to lead to perjury are made which may ruin the prosecution case even as regards that part of it which may reasonably be true;
Can fresh complaint can be entertained after dismissal?
The Supreme Court time to time in its pronouncements held that, dismissal of any complaint under section 203, Cr PC does not necessarily bar any fresh complaint, the well established principle of law is that the fresh complaint can be entertained only when it is established that certain material produced in the proceedings of the second complaint could not be produced earlier for sufficient reasons and the new
material so produced helps in establishing a prima facie case
What is the importance of `charge’ in a criminal trial?
In any criminal trial, ‘charge’ is an important aspect of the trial as it gives an opportunity to the accused to understand in his own language the ‘accusations’
which are sought to be made against him by the prosecution in order to bring him to book by the Court/Magistrate. The ‘charge’ is written in the language of the court which is read out to the accused in open Court and accused is asked whether he/she pleads guilty or pleads not guilty to the charge. In case, an accused pleads guilty to the charge, the Court records the plea of the accused and convicts him thereon and in case the accused chooses to plead not guilty and claims to be tried, the court fixes a date for the examination of witnesses and on the date so fixed, the court shall proceed to take all such evidence as may be produced in support of the prosecution and trial proceeds in the court till judgment of acquittal or conviction is pronounced by the trial court.
Section 212 of the Code
Section 212 of the Code says that “charge” must contain such particulars as to the time and place of the alleged offence and the person against whom, or the thing in respect of which it was committed so that accused clearly takes notice of the matter with which he is charged.
It further says that when the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence, provided that the time included between the first and last of such dates shall not exceed one year.
Section 213 read
When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.
In case the charge does not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in
which the alleged offence was committed so that the accused understands the charge fully well.
Section 214
Section 214 says that in every charge, words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable, and section 215 says that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was infact misled by such error or omission and it has occasioned a failure of justice.
section 216
(1) Any Court may alter or add to any charge at any time before judgment is pronounced. It does not use word ‘omission’.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If in the opinion of the Court,
the alteration or addition to a charge is such that proceeding immediately with the trial
is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the
case,
the Court may, in its discretion, after such alteration or addition has been made,
proceed with the trial as if the altered or added charge had been the original charge.
(4) If in the opinion of the Court,
the alteration or addition is such that proceeding immediately with the trial is to prejudice the accused or the prosecutor as aforesaid,
the Court may
either direct a new trial or
adjourn the trial for such period as may be necessary.
Prior sanction for proceeding - If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
For example if Court has added charge of Sedition, the case shall not be proceeded with until such sanction is obtained. Reason is that section 196 says that for sedition there must be prior sanction prescribed Government.
Recall of witnesses when charge altered-Section 217 - Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed -
(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material.
“Section 238
Whereunder in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of section 207 of the Code. Section 207 provides for supply of copy of police report and other documents.”
What factors are to be considered by a court of law while granting bail in non- bailable cases?
It is necessary for the courts dealing with application for a bail to consider among other circumstances, the following factors also before granting bail, they are:
(i) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence:
(ii) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant:
(iii) Prima facie satisfaction of the Court in support of the charge.
Can a bail once granted be cancelled?
It should be remembered at the outset that the grant of bail in the case of non- bailable offence cannot be claimed as a matter of right; it is purely discretionary. And while granting bail, the Court has to ensure that there is no reasonable ground for believing that the accused or detained person has been guilty of an offence- punishable with death or imprisonment for life.
The formation of such belief does not and cannot be taken in vacuum. Such belief will be founded on facts as come to light during the course of investigation conducted by the Police Officer. Thus, if on the basis of the facts discovered during the investigation, any incriminating matter comes to the knowledge of the investigating officer and such incrimination matter prima facie establishes the guilt of the accused to the extent that he may possibly be sentenced to death or life imprisonment, bail shall not be granted, or if bail has been granted, it may be cancelled vide section 437(5) and sub-section (2) of section 439 and such a person
may be arrested and committed to custody.
Gurcharan Singh v. Delhi Administration
In this case, various factors were taken into consideration by the High Court and by the Supreme Court. The case had already assumed political colouring and there were misgivings in the mind of the general public as to the manner in which the dacoit Sunder was alleged to have committed suicide. Secondly, the appellants were senior police officials of the rank of Deputy Inspector General of Police, Superintendent of Police, Deputy Superintendent of Police and so on. The case was investigated by the C.B.I. and the witnesses were mostly the junior police officials who had worked at one time or the other, under the appellants. There was every likelihood that such officials would not hesitate to misuse the liberty allowed by bail pressurizing the witnesses or by tampering with the prosecution evidence. It was alleged by the prosecution that these officials had already indirectly or directly exerted a lot of pressure on the eye-witnesses of the prosecution so that some of them had become ‘hostile’ and had to be declared so. It was against this background that their Lordships observed that the order of the High Court cancelling the bail was correct.
P, a former minister alleges that he has been falsely implicated in a case of receiving kickbacks from a foreign country. P, apprehending his arrest moves an application for `anticipatory bail’. What factors should be kept in mind while considering P’s application?
It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest, a person shall be released on bail. Manifestly, there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. The power exercisable under section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under section 438. The power being of important nature, it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail.
Thus, bail is basically release from restraint, more particularly the custody of police. The distinction between an ordinary order of bail and an order under section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the police, the latter is granted in anticipation of arrest and
is therefore effective at the very moment of arrest;
Whether Court can pass an interim order during pendency of application under section 438, Cr PC?
What the accused can do after surrendering to custody is to file an application in terms of section 437 or 439, as the case may be. Even otherwise, the direction which a Court can issue under section 438 of the Code is that in the event of arrest of an accused on an accusation of committing a non-bailable offence, he shall be released on bail subject to such conditions as the Court may deem fit to impose. An application under section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the concerned Court either under section 437 or section 439 of the Code. In the very nature of the direction which the Court can issue under section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under section 438 of the Code, the Court cannot restrain arrest.
“Inherent jurisdiction of the High Court under section 482 Cr PC has to be exercised sparingly, carefully and with caution”. Comment.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real substantial justice for the administration of which alone Courts exists. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the Court may examine the question of fact.
Section 203
- Dismissal of complaint
If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202,the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
Section 206 -Special summons in cases of petty offence.
If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under section 260 or section 261, the Magistrate shall, except where he is, for reasons to be recorded in writing of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorise, in writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader:
Provided that the amount of the fine specified in such summons shall not exceed one thousand rupees.
