UNIT-5. LEGAL ASPECTS - C R P C CODE (Cr PC)- RELEVANT EXTRACTS

UNIT STRUCTURE

5.1 Learning Objective 5.2 Introduction. 5.3 Criminal procedure Code 5.3.1 Definitions 5.3.2 Arrest of person 5.3.3 Summons 5.3.4 Warrant of Arrest 5.3.5 Search 5.3.6 Bail & Bonds 5.4 Criminal procedure Code, Sec. 154 and 155

5.4.1 Information in Cognisable Cases. (Sec. 154) 5.4.2 Information in non cognisable cases. (Sec.155) 5.5 Summary 5.6 Progress Report 5.7 Probable Questions.

5.1 LEARNING OBJECTIVES

After completing the chapter there security person will study and come to know about

 How arrest and summons are made under Criminal Procedure Code 1973.  How warrant of arrest is issued and search conducted under Criminal Procedure Code 1973.  How Bail and Bond is given under Criminal Procedure Code 1973  What is understood by FIR (Sec 154)  What is understood by New FIR (Sec 155)

5.2 INTRODUCTION

It is the duty of the Government to bring the breakers to book. Indian Penal Code 1861 defines different crimes and punishments. Criminal Procedure Code lays down the procedure of and Indian Act lays down the criterion of acceptable evidence required in trial. The Cr P C also differentiates between cognisable and non cognisable offences. Criminal Procedure Code 1973 ,plays a very important role in implementation enacted by the Central Government. In this chapter you will learn about the relevant sections of Cr P C 1973 as well as FIR (Sec155) and new FIR (Sec 155)

5.3. CRIMINAL PROCEDURE CODE 1973

The Code of Criminal Procedure, was enacted in 1973. It extends to the whole of except the State of Jammu and Kashmir: and certain provisions of the Act does not apply to the State of Nagaland & tribal areas.

5.3.1 DEFINITIONS

Chapter II of Cr P C gives legal definition of terms used in it. Broad meaning of relevant definitions are given below.

 "Offence" means any act or omission made punishable by any law for the time being in force.

 “Bailable offence" /Non bailable offence

 An offence which is shown as bailable in Cr P C, or by any other law for the time being in force. “Non bailable” means any offence which is not shown as bailable.

 "Cognizable offence" means an offence for which, a officer can arrest a person without warrant.

 "Non-cognizable offence" means an offence for which, a police officer has no authority to arrest without warrant.

 "Complaint" means any allegation made orally or in writing to a , for taking action, that some person, whether known or unknown, has committed an offence, but does not include a police report.

 "Inquiry" means every inquiry, other than a trial, conducted by a Magistrate or .

 "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,

 "Judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath.

5.3.2 ARREST OF PERSON

 When police may arrest without warrant, 41

Any police officer may without an order from a Magistrate and without a warrant, arrest any person under any of the following conditions

1. If the person is involved or a reasonable complaint has been made against the person or reasonable doubt exist of his having involved in any cognizable offence. 2. House breaking implement is found in his possession. 3. He is declared as a proclaimed offender. 4. If stolen property is found in his possession. 5. If he has obstructed police officer while execution of duty. 6. If he as escaped or attempted escape from lawful custody. 7. If he is a deserter from armed forces. 8. If it is suspected that or if there is complaint against him. information having received of his committing a crime of a punishable offence within India. 9. If he is an ex convict and commits a breach of rule under subsection (5) of section 365. 10. For his arrest a requisition has been received from another police officer. 11. If he falls in the category of person specified in section 109 or section 110.

 Arrest on refusal to give name and residence, Sec 42

I. If any person who, has committed (or has been accused of committing) a non- cognizable offence refuses, on demand by the Police officer, to give his name and residence or gives a name or residence address which the police officer has reason to believe to be false, the police officer may arrest him to ascertain his name and address . II. When the true name and residence address of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: III. If true name and residence address is not furnished or obtained within 24 hrs of arrest or should he fail to execute the bond, or, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having .

 Arrest by private person and procedure on such arrest, Sec 43

Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or is a proclaimed offender without unnecessary delay, shall hand him over to a police officer, or in the absence of a police officer, hand over such person to the nearest police station.

 Arrests by Magistrate, Sec 44

When any person commits an offence in the presence of a Magistrate, whether or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, an commit the offender to custody.

 Arrest how made, Sec 46

In making an arrest the police officer or other person making the arrest shall do so by physically touching the person, if the person does not agree to arrest verbally or by action. If the person tries resist or attempts to evade arrest, the police officer or other person may use means to effect the arrest.

Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

 Search of place entered by person sought to be arrested, Sec 47

If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into a place of any person residing in or in charge of the place, such person shall, on demand, allow him free access, and provide all reasonable facilities for a search therein.

When entry is refused, if the officer working under warrant of arrest or a police officer is of the opinion that if not arrested immediately ,the person against whom the warrant is issue is likely to escape may carry out the search by giving his identity and purpose However in case of a house solely occupied by a female whose custom is not to appear before public, the female will be asked to come out of the house to enable the search inside the house.

 Pursuit of offenders into other , Sec 48

A police officer may, for the purpose o of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India

 No unnecessary restraint, Sec 49

The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

Measure of progress

Q No. 1: May any private person arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, shall hand him over to a police officer, or in the absence of a police officer, hand over such person to the nearest police station?

5.3.3 SUMMONS

These sections gives the procedure of issuing summons . Relevant clauses of the same are enumerated below

 Form of summons, Sec 61 Every summons issued by a court under this Code shall be in writing, in duplicate, signed by the presiding officer of such court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the court

 Summons how served, Sec 62

Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant. The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons. Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt there for on the back of the other duplicate.

 Service of summons on corporate bodies and societies, Sec 63

Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed, to have been effected when the letter would arrive in ordinary course of post.

 Service when persons summoned cannot be found, Sec 64,65

Where the person summoned cannot be found after due efforts, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.

Note :A servant is not a member of the family within the meaning of this section.

The serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides if after due efforts the person or family is not found. and thereupon the court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.

 Service on Government servant, Sec 66

Where the person summoned is in the active service of the Government, the court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed: and such head shall thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the court under his signature with the endorsement required by that section.

 Service of summons outside local limits, Sec 67 When a court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.

5.3.4 WARRANT OF ARREST

These sections lays down the procedure of arrest of a person.

 Form of warrant of arrest and duration, Sec 70

Every warrant of arrest issued by a court under this Code shall be in writing, signed by the presiding officer of such court and shall bear the seal of the court.

Every such warrant shall remain in force until the court, which issued it, cancels it or until it is executed.

 Power to direct security to be taken, Sec 71

Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the court the officer to whom the warrant is directed shall take such security and shall release such person from custody.

 Warrants to whom directed, Sec 72

A warrant of arrest shall ordinarily be directed to one or more police officers; but the court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.

When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.

 Warrant may be directed to stay personal, Sec 73

The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.

Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.

When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer

 Warrant directed to police officer, Sec 74

A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

Measure of progress

Q No. 2: May direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest?

5.3.5 SEARCH

These sections lay down the procedure of searching and individual or premises.

 Search of place suspected to contain stolen property, forged documents, etc, Sec 94

If a District Magistrate(DM) , Sub-divisional Magistrate(SDM) or Magistrate of the first class, may by warrant authorize any police officer above the rank of a constable to enter, search take possession of stolen or objectionable article in any premise if he suspects that such article is stored or dealt from within the premises and arrest the persons in the premises dealing in such business.

The objectionable article include Counterfeit coins, currency and stamps, forged documents, forged seals ,obscene materials and instruments used in making such articles.

 Power to declare certain publications forfeited and to issue search warrants for the same, Sec 95

Whenever the State Government is of opinion that some material published in newspaper periodical, magazine, book or other published matter the publication which is punishable under certain section 292 , section 293& section 295A of the Indian Penal Code. it may by notification declare every copy of published matter to be forfeited and in pursuant to the declaration Magistrate may by w\arrant authorize any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises there any copy of such issue or any Such book or other document may be reasonable, suspected to be.

 Application to High Court to set aside declaration of forfeiture, Sec 96

Any person having any newspaper, books or other document, in respect of which a declaration of forfeiture has been made under section 95, may within two months from the date of publication in the official Gazette of such declaration, apply to the High court to set aside such declaration.

 Search for persons wrongfully confined, Sec 97

If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue, a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

 Power to compel restoration of abducted females, Sec 98

Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge or such child, and may compel compliance with such order, using such force as may be necessary.

 Persons in charge of closed place to allow search, Sec 100

 Whenever a place liable to search is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress, and afford all reasonable facilities for a search.

 When any person within or about the place of search is suspected to conceal stolen item in his body, he may be searched and in case the person being a woman to be searched by another woman with strict regard to decency.

 Before making the search, two respectable inhabitants of the locality who are willing to be witness the search may be ordered in writing to be present and the search to be carried out in their presence and a list of things seized to be made and their signatures taken as witness. Such witnessing personnel are not required to attend court. The occupant or some person on his behalf also to be permitted to be present. and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to the occupant or the person attending on his behalf.

 Similarly when any person is searched a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code .

5.3.6 BAILS AND BONDS

 In what cases bail to be taken, Sec 436

When any person (other than a person accused of a non-bailable offence) is arrested or detained without warrant by an officer in charge of a police station, or appears, or is brought before a court, such person may be released by the officer or by the court on bail and in case of court instead of bail a bond without sureties may be taken from the person.

 When bail may be taken in case of non-bailable offence, Sec 437

When any person is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court (other than the High Court or Court of Session) being accused or suspected of the commission of a non bailable offence, he may be released on bail, subject to the following

1) There is reasonable ground to believe that he is guilty of an offence for which punishable by death or Life imprisonment. 2) If the offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment of life or imprisonment for 7yrs or more or he has been previously convicted on two or more non bailable and cognizable offence.

Notwithstanding the above, the court may direct that a person be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

If a person is entitled to be released on bail, the mere fact that he is required for identification by witnesses should not be sufficient reason to refuse bail on undertaking given by the person to comply with the directions of the court.

2. During investigation, inquiry or trial as the case may be, if it appears that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail or, at the discretion of such officer or court on the execution by him of a bond without sureties for his appearance as hereinafter provided.

3. When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more, (or of an offence under certain sections of IPC), is released on bail the court may impose any condition which the court considers necessary In order to ensure that such person shall attend in accordance with the conditions of the bond executed.

 Direction for grant of bail to person apprehending arrest, Sec 438

When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that court may, if it thinks fit, direct that in the even of such arrest, he shall be released on bail.

5.4: LEGAL ASPECTS: CRPC SECTION 154 &155 (FIR)

The primary objective of F.I.R is to set into motion the judicial process. Normally investigation starts only after recording of F.I.R. It also serves as a record related to an offence so that later on they cannot be distorted.

It can be lodged by a victim, any person who is aware of the commission of an offence, by the accused, by the officer in charge of a police station, by a magistrate or by a superior police officer of the area concerned.

It can be lodged through a written application, by telephone, through letter to the SP/SHO, by e-mail or under the orders of High Court/ Supreme Court.

There may be several occasions when a Private security person is required to lodge F.I.R with regard to crimes in his area of responsibility and the points discussed above become become handy on such occasions.

5.4.1: INFORMATION IN COGNISABLE CASES(SEC. 154)

(1) 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 informants 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.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

5.4.2: INFORMATION AS TO NON COGNISABLE CASES AND INVESTIGATION OF SUCH CASE.(Sec. 155)

(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

Measure of progress

Q No. 3: Can FIR be lodged by telephone? ……………………………………………………..

5.5: SUMMARY

Through the Code of Criminal Procedure (Cr P C) the Central Govt has laid down the code of procedure to be followed in dealing with a crime.

Section 41 to 49 deals with Circumstances when a police officer, a private person or a Magistrate can arrest without warrant ;procedure to be followed during and subsequent to arrest, carry out search of premises or locations where the person to be arrested is within or hiding; pursuit of an offender not within jurisdictions etc.

Sections 61 to 67 are relevant sections in respect of issue of summons to individual and corporate body and the procedure to be followed when the person against whom the summons issued is not found.

Sections 70 to 74 are relevant sections in respect of issue of warrant to a person or persons, the duration of the warrant to be in force Sections 94 to 100 are relevant sections lays down the procedure of searching individual or premises for stolen property, documents, person wrongfully confined and abducted females, power delegated to the officer carrying out search to forfeit stolen property ,forged documents; obscene literature/documents or documents like newspaper, periodical, book declared to be forfeited by the Govt. These sections also include right of individual to appeal against forfeiture of newspaper, periodical etc.

Sections 436 to 438 lays down the procedure of releasing an accused on bail baring offences under certain sections of the IPC.

F.I.R is required to initiate the investigation of a cognisable offence by the police. This information regarding a cognisable offence can be given by anyone who has come to know of the commission of the offence. It is a social, legal and moral duty of a citizen to give information to the police or nearest magistrate about a cognisable offence under section 39 of Cr.P.C.

It is the duty of the state to bring law breakers to and punish them. The Indian Penal Code, 1861, defines offences and punishments with respect to various offences. The procedure for conducting the are given in Cr.P.C and the evidence admissible in such trials are given in Indian Evidence Act. The Cr.P.C also makes distinction between cognisable offence and non cognisable offences. In the case of a cognisable offence the police can arrest the accused without a warrant and in the case of a non cognisable case police can arrest the accused only with a warrant from the magistrate.

1.5 PROGRESS REPORT

Q No. 1 Answer : Yes Q No. 2 Answer : Yes Q No. 3 Answer : Yes

1.5 PROBABLE QUESTIONS

1) What is full form of Cr P C ? 2) In which year Cr P C was enacted and by whom ? 3) What is an offence ? 4) As a private person can you arrest a person without warrant ? Explain. 5) Name tree conditions under which a police officer can arrest a person without warrant ? 6) Why F.I.R is required to be filed in case of cognisable offences? 7) Who can file an F.I.R? 8) How can one file an F.I.R?