Chapter III

Enquiry And Trial by Magistrate

Complaints 1. As soon as the Complaints/Charge­sheet (other than that for petty offence), is filed in the Court, it shall be examined with reference to the following points :­ (1) Whether the Charge­sheet/Complaint is filed in the Court having jurisdiction (2) Whether the Charge­sheet/Complaint is filed within the prescribed period of limitation. (3) (a)Whether a sanction of any authority is necessary under the law for launching the prosecution. (b) If yes, is it obtained at the prescribed point of time and from the prescribed authority. (c) Whether the original Order of sanction or a copy of the same is produced as required by law. (4) (a) Whether the names and addresses of Complainant / accused and witnesses are properly mentioned; (b) Whether the accused is juvenile and as such, is it necessary to deal with accused under Probation of Offenders Act, 1958. (5) Whether the identification marks of the accused are furnished in Police Cases. (6) Whether the accused was arrested and released on bail before launching the prosecution, whether the dates of his arrest and release are mentioned in the Charge­sheet/ Complaint and the bail bond (if not already in custody of the Court), is attached to the case papers. (7) Whether the accused is released by the Court on bail before launching the prosecution. ­ (a) whether the date of such release is mentioned in the Charge­sheet ; and (b) whether the bail papers are available in Court records (attach the bail papers to the case.). (8) Whether the First Information Report is received by the Court (attach the First Information Report to the Charge­sheet.) (9) Whether sets of legible copies of relevant papers are supplied for the use of the Court and for delivery to the accused. (10) (a) Whether all items of muddemal property mentioned in the Charge­ sheet / Complaint are produced. (b) whether every item of muddemal property is properly and separately described and numbered in the Charge­sheet / Complaint; (c) Whether value of each item is properly mentioend; (d)whether the Law expects the Court to make any early action in respect of any item of muddemal property (e. g. Sending to chemical analyser, food analyst, taking steps for preservation / disposal / security ) etc. (11)Whether confession / dying declaration / statements of witnesses under section 164 of Code of Criminal Procedure, 1973, are recorded in the course of investigations. ­

(a) whether such original docuemtns are produced. (b) if not produced, what is the reason assigned for such omission; (c) what steps are required to be taken by the Copurt for obtaining these documents in custody. (12) Where the accused is ­ (a) a juvenile offender; (b) a member ofmilitary personnel; (c) a person of unsound mind; (d) a deaf and dumb person; (e) a person who is required to be dealt with under a specific provision of law,­ (i) whether the relevant fact is mentioned in the charge­sheet / Compaint (ii) what steps are required to be taken by the Court in his context.

1. A. (i) Attention of the Magistrate is drawn to Chapter XXXVI of the Code of Criminal Procedure, 1973, which provides for taking cognizance of contain offences. The Magistrate before taking cognizance should bear them in mind. ii. (a) When the Magistrate takes cognizance of a complaints the examinations as laid down in section 200 of the Code of Criminal Procedure 1973 of the complaints and his witnesses, if any should, as far as possible, be taken immediately, and in any case within a maximum period of 7 days. (b) Except in cases contemplated in first provisio (a) and (b) of section 200 of the Code of Criminal procedure 1973, care should be taken by the Magistrates in conducting the examination of a complainant and the witnesses present, if any, under section 200, to makes the inquiry sufficiently full to enable him to judges whether there are any grounds for proceedings. Before enquiring or directing an enquiry or investigation into the case under section 202 of the Code of Criminal Procedure, 1973, or the purpose of deciding whether or not there is sufficient ground for proceedings the Magistrate may, if he thinks fit, postpone the issue of process against the accused and for holding or directing such inquiry or investigation. Simillarly, he must record his reasons for dismissing a complaint under section 203. where it appears to the Magistrate that the offence complained of is traible exclusively by the Court of Sesion, the Magistrate shall not make any direction for investigations to be made by the Plice Officer, as contemplated in provisio (a) to sub­ section (i) of section 202 of the Code of Criminal Procedure 1973. He shall, however, call upon the complainant to produce all his witnesses an examine them on oath.

iii.In cases where a private complaint is filed in a Court of Law, the complainant must be given a Criminal case number and must be registered in the register of Criminal Cases immediately after the complaint is filed in the Court. iv. In petty cases of assault, hurt, insult, simple trespass, etc, and in non­cognizable cases, which are of private rather than of public interest, the Magistrate should not ordinarily direct the police to make an enquiry or investigation.

Roznama i. A proceeding sheet (Roznama) should in the form given below, be kept in English in all inquiries, trials and other cases. It is meant only as a guide and is not intended to be exhaustive. In uncontested non­cognizable cases, a proceeding sheet (Roznama) may not be maintained.

ii. The object of Roznama is to show in concise form the proceedings taken in each case with the date of each proceeding. It is to be a faithfull history of the case and correct list and description of the exhibits; and at the same time, it should be so drawn up as to show all the details of the case at one view and yet be as concise as possible. It is not to include a record of ministerial acts, such as the receipts of bhatta or process fees, the preparation of summonses and the like. iii.It must be kept from day to day as an original document. It may be written by a clerk but must be initialled or signed by the Magistrate at the end of the proceeding recorded every day. iv. All the papers in the case should, as far as posible, be arranged in the manner in which papers in civil suits are arranged. v. Following is the list of documents which may not be exhibited unless they happen to fall also within the description givin in the sub­paragraph next hereinafter following :­

i. Papers subsidiary to orders sanctioning promotions. ii. Reports as to marks of violence on undertrial prisioners in a case. iii.Summonses. iv. Warrants, and v. Commissions for examination of witnesses. vi. Following is the list of documents (apart from articles) which should be exhibited :­

1. Order sanctioning prosecution, 2. Political Agent's certificates, 3. Complaints, 4. Charge­sheets 5. Vakalatnamas, 6. Applications for bail and orders, 7. Remand applications and orders, 8. Bail papers and bonds, 9. Charges (framed by the Court), 10.Pleas of accused, 11.Depositions, 12.Confessions, 13.Documentary evidence, 14.Statements of the accused. 15.All applications submitted to the Court including applications for with drawing and compounding cases, and 16.Judgments and final orders regarding disposal of property.

vii.Each document required to be exhibited should be given a distinctive serial number as it comes before the court. viii.The category of he (A, 'B', 'C', and 'D') in which each paper or document mentioned in the Toznama is required to be kept before forwarding the record to the record­room as per instructions contained in paragraph 17 of Chapter XX of this Manual should be noted in red ink or pencil in the margin of the Roznama against each paper or document. Similarly, a note as regards the return or loss or destruction of a document should be made in red ink in the Roznama.

ROZNAMA

IN THE COURT OF SHIR...... JUDICIAL MAGISTRATE, FIRST CLASS,...... CIVIL JUDGE AND JUDICIAL MAGISTRATE, FIRST CLASS,...... SPECIAL JUDICIAL MAGISTRATE, FIRST CLASS,......

Case No. OF 19

State

Complainant

Versus

Name ...... Age...... Occupation...... Residence...... The accused was arrested on......

He was remanded to Police/Magistrate custody on...... Was in such custody till......

He was released on bail on ...... He is at present on bail/in custody.

1. State...... Represented by Pleaader Complainant Shri ...... 2. Accused...... Represented by Pleaader Shri......

3. Section or Sections of Law under which the accused is/are tried...... 4. Details of muddemal property before the Court (if many items, enter as per list Exhibit). ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ Date on which the case comes No.of Exhibit Proceeding Date to which the before the Court for case is adjourned proceeding 1. 2. 3. 4.

(Note :­ In cases committed to the Court of Sesion for trial, if the accused is charged with a bailable offence, and is released on bail, the proceedings will show that he appearson bail instead of in custody, and instead of referring to the warrant of commitment, the proceedings will show that he was ordered to be released on giving bail for his appearance before the Court of Session, and will state the number and amount of the securities required.)

Supply of Copies to the accused

3. (i) The Magistrate should bear in mind that under Sections 207 and 208 of the Code of Criminal Procedure, 1973, the statutory duty is cast upon them to furnish to the accused, free of cost, copies of the documents specified in the said sections. Before the proceding in the case, they should satisfy themselves the copies of all the documents specified in the said sections are furnished to the accused. ii. In cases wherein the proceedings have been instituted on Police kreports, such copies of the documents specified in sections 173(5) and 207 the code of the Criminal Procedure, 1973, should be furnished to the accused by the Police Officer, if it is convenient to him. In this connection, the Inspector General Of Police who was asked by the High Court to continue the existing arrangement regarding prepration of copies and furnishing them to the accuded has agreed to continue the existing practice as an interim arrangement till the appointment of necessary staff by the High Court. (Vide Government letter, Home Department, No.PRO­0774/27694..VII­P, dated 5th February 1977). iii.In cases wherein the proceedings have been instituted otherwise than on Police reports, wherein the offence is triable exclusively by the Court of Session, the Magistrate shall furnish the accused, free of cost, copies of the documents specified in section 208 of the Code of Criminal Procedure,1973 if he is satisfied that any such document is not voluminious. In case such document is voluminious, he shall, instead of furnishing the accused with a copy thereof, direct the accused that he will only be allowed to isnpect them personally or through pleader in the Court.

Valuable Muddemal

4. Attention of the Magistrate is invited to paragraph 70 of Chapter VI of the Criminal Manual which lays down instructions about maintaining of property Register in Criminal Courts. 5. In regard to the muddemal and other valuable properties lying in the custody of criminal Courts, the presiding Magistrate should arrange to lodge, for safe custody in the Treasury or Sub­treasury, a box or boxes containing such property of which he holds charge.

Any specially valuable property and boxes containing cash and valuables, which it is considered would not sufficiently be protected, if left in the Court safe or strong room, when the Court is closed, should be deposited by the Magistrate concerned in the treasury or Sub­Treasury for safe custody during the night. The Treasury Officer or Sub­Treasury Officer concerned should be requested to receive such property and cash boxes upto the closing hour every working day.

Any property sent by the criminal Courts to a Treasury or Sub­Treasury for safe custody after the closing hour, should be delivered to the Senior Officer of the Police Guard at the Treasury or Sub­Treasuty who should receive it, if it is proeperly secured in a sealed receptacke and should be responsible for its safe custody.

6. Two boxes should be maintained in every Court for keeping the valuable muddemal property, one for the muddemal of disposal of cases or of cases taken on the dormant file, and the other for the muddemal of current cases, so that it may be convenient to handle the valuable muddemal in current cases, which has often to be brought to the Court and taken back to the treasury. 7. In cases triable by the Court of Session, when any proeerty is sent to the Nazir of the Sessions Court,. It should be sealed in a bundle or bundles and labelled with the number of the case and a list should accompany showing each item and its identifying mark, a corresponding mark being attached to each item.

8. (i) The procedure to be followed in sending articles to the Chemical Analyser will be found in paragraphs 147 to 150,152 and 167 of the Police Manual, Volume III, 1959 edition. Delay should be avoided by an early decision as to whether there should be a reference to the Chemical Analyser and by an immediate despatch of the articles. The Magistrate should personally see that the procedure mentioned in the above rules is strictly followed when despatching the articles.

ii. The following extract from paragraph 167 is reproduced for information :­

“167, Identity of articles to be preserved – It is essential that the identify of each article attached by the Police in the course of investigation of medico­legal as well as all other cases should be preserved unmistakeably from the commencement of attachment and writing the panchanama upto its production, in the trying Court and identification by witnesses and through all its intermediate stages, if any, such as while in the custody of the Civil Surgeon and the Chemical Analyser. With this end in view, the following instruction should be followed by the investigating officers :­

1. In describing in the panchanamas the articles attached, they should be serially numbered. Separate serial numbers should be given to the articles described in each panchanama in case where simultaneous searches are carried out at different places in connection with one and the same registered offence, or where more than one panchama in connection with the same offence have to be drawn up because of property being recovered at different times.

2. Large and distinctive labels, showing the names of, and the numbers given to the articles attached in the Panchanama and the names of the persons from whom and dates on which they are attached, should be securely fastened to the articles, as soon as they are attached.

3. Receptacles containing small articles of value should be sealed in addition to being labelled. 4. In cases where it is not possible to fasten tie­on­labels, the articles should be packed in paper or cloth as may be convenient, unless they are very bulky labels bearing the number and name of articles being put on the covering.

5. It is not necessary to label live­stock. In such cases, it will be enough, if a full description of the animal or animals attached has been given in the panchanama, for action being taken under section 516A, 517 or 523 of the Criminal Procedure Code (The corresponding sections of the 1973 code are 451, 452 and 457). It may be necessary to attach, in the course of investigation, such articles as foler, grain, etc, which cannot be labelled. In such cases, labels need not be attched.

6. Whenevern any such articles is attached which may have to be sent to the Chemical Analyser to Government, the investigating Officer must see that it is enclosed in a proper receptacle or covernin, so far as possible, on the spot and in any case in his presence and in that of the panch and that the cover is sealed by him in such a way as to preclude tampering.

7. The lables on articles sent to the medical Officers should be attached in such a manner as to permit of their being detached without damagebeing done to them and used again by medical officers in repacking and transmitting the articles to the Chemical Analyser.

8. The investigating Officer should be careful to see that such articles are sent in proper custody to the Medical Officer. The numbers given to such articles in the panchanama should be quoted in the forwarding report. The number of seals put on the receptacle or covering should also be stated in the body of the report. A receipt acknowledging these articles with seals intact should be obtained from the Medical Officer.

9. (a) A Statement containing the following particulars in a tabulated form, should invariably be furnished tostrying Courts by investigating Police and prosecuting Officers and public prosecutors with regard to the article to be produced in Courts, in all cases in which articles have been sent to the Chemical Analyser for examination:­

i. Numbers of the articles sent for examination to the Chemical Analyser. ii. Corresponding numbers of the articles in the list of property submitted to the court. iii.Corresponding numbers of the articles in the certificate of the Chemical Analyser. iv. Corresponding numbers of the articles in the panchanamas bearing on the point and dates of the panchanamas. v. Names and numbers of the accused persons connected with the respecive articles. vi. Names of deceased persons (if any) connected with the respective articles.

The Statement should, as far as possible, be submitted by the Station House Officer prior to the provisional date fixed by the Magistrate or the Judge trying the case.

(b) In other cases in which there are many accused persons and a mass o exhibits, the list of property submitted to Courts should be arranged according to the serial numbers of the accused persons connected with the particular articles.”

Case Traible by Courts of Session i. In all cases instituted on Police Reports or otherwise , whenevern the accused appears or is brought before the Magistrate, and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall commit the case to the Court of Sessions, send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence and notify to the Public Prosecutor of the commitment of the case to the Court of Sessions under section 209 of the Code of Criminal Procedure,1973

ii. The Magistrate should report to the Sessions Judge about such cases pending before, him stating therein reason or the reasons as to why it is pending and seeking extension of time required by him for that purpose. In such case, the Court of Sessions should then satisfy itself as to whether the reasons stated are satisfactory and whether the Magistrate should be allowed extension of time. He should then issue such instructions to the Magistrate as he deems proper.

10.Whenever a Magistrate,acting under section 333 of the Code of Criminal Proceddure,1973 sends for trial before the Court of Session an accused person regarding whose sanity at the time of committing the offence he entertains any doubt, he shall at the same time inform the Jail Authorities of his opinion about the state of mind of the accused, in order tha the accused may be placed under careful surveillance prior to his trial befor the Court of Session.

11.When a Magistrate Commits a person accused of an offence punishable with death, he should question the accused whether be desires to make his own arrangement for his defence in the Sessions Court, or whether arrangement should be made by the Sessions Court to engage a Lawyer on his behalf. In the latter case, the Magistrate Should, when committing the case for trial, intimate the Sessions Court accordingly.

12.When two or more persons are accused of the same offence or of offences arising out of the same transaction, the Magistrate should not convict some and commit others to the Court of Session. If any one of the accused is charges with an offence beyond the jurisdiction of the Magistrate, or with, one which in the opinion of the Magistrate, ought to be tried by the Court of Sessions, all the accused persons implicated, against whom there is prima evidence, should be committed for trial.

Custody Cases

13.Every Magistrate, on receiving or resuming charge of his office, should enquire which accused persons are in detention under the orders of his Court, with a view to their being brought before him within the period specified by law (see section 309 of the Code of Criminal Procedure, 1973). Every Magistrate shall maintain a Register of under­trial prisioners in the following form and check it once in every fortnight with a view to giving priority to the disposal of such cases.

Register of under­trial Prisoners in Jails ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ Police Station and Date and hour of Date and hour Name of the Period of police Crime Register No. apprehension by when the accus­ accused Custody remand police ed is produced from...... to before the Magistrate

1 2 3 4 5

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ period of Charge­sheet Whenever the The date on Date of Remark Magisterial received on and accused is on which the Decision custody Criminal Case bail or is in the accused remand No. Jail released on from...... to bail

6 7 8 9 10 11

Hearing and Adjournment 1. Magistrates should remember that priority should, as a rule, be given to criminal work over other work, and that every effort should be made to reduce, as far as possible, the hardship to parties and witnesses which the proceedings entail. 2. The Magistrates should settle their Boards personally and should not leave it to be done by their Bench Clerks. The Boards should be settled so as to have, as far as possible, only such number of matters as will occupy the whole day, after making allowance for the fact that some matters are likely to be adjourned owing to the absence of parties or their witnesses or for some other reason. The Magistrates should, however see that too many cases are not put on the Board, as this would cause unnecessary inconvenience and harassment to the parties.

3. The Magistrate should always sit punctually at the appointed hour so as not to keep pepople waiting. If the Magistrate finds that, owing to his absence from the Court or his being busy with other cases, it is not possible for him to hear any case on the day fixed for its hearing, he should, so far as possible, intomate to the parties in advance, so that parties and witnesses do not have to attend the Court unnecessarily.

15.Though no hard and fast rule may be laid down regarding the precedence in hearing cases, it would be useful to bar the following principles in mind:­

i. Cases in which Juvenile Offenders are involved should normally be disposed of with the utmost expedition and as soon as possible after the Offender is brought before the Magistriate. ii. Custody cases should take precedence over non­custody cases. iii.Cases in which Government servants are involved should be dealt with as expeditiously as possible. iv. Cases under the Indian Railways Act, and other petty non­cognizable cases, should be disposed of as soon as possible after the accused is produced before the Court. v. Part­head, cases and cases which are standing over from previous dates of hearing should take precedence over the cases to be heard for the first time. vi. Cases in which parties and witnesses come from a distance should, as far as possible, be given due preference. vii.The following cases should be disposed of as expeditiously as possible:­

1. Cases under the Protection of Civil Rights Act, 1955 2. Cases under the Essential Commodities Act. 3. Cases under the Bombay Shops and Establishments Act,1948 4. Cases of Riot, and Communal Disturbance. 5. Cases relating to Economic Offences. 6. Cases of reckless and dangerous driving under the influence of liquor etc. 7. Applications for grant of maintance filed under section 125 of the code of Criminal Proceddure 1973.

16.In order the minimize the hardship caused by unnecessary detention of parties and witnesses in cases which have to be adjourned for want of time, every Magistrate should, at the commencement of work on any day, consider applications for adjournment of cases in the day's list. Thereafter, he should asses the number of cases he would be able to take up during the course of the day. For this purpos, he should consider the position in regard to the part­heard and new cases on the Board due regard being given to the principles as to priorities indicated above. He should then discharge the cases which are not likely to be heard on that day so that the parties and the witnesses may not have to remain present in the court unnecessarily. In regard to cases retained on the Board, he should inform the paties and their Advocates at what time approximately their cases are likely to be taken up. Before rising for the afternoon recess, the Magistrate may again assess the positiion, and if he be of the opinion that any cases, which were not discharged earlier, are not likely to be taken up, he may discharge such cases after giving suitable dates fo the next hearing.

17.Section 309 (I) of the Code of Criminal Proceddure, 1973 Provides “in every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular when the examination of witnesses has once begun, the same shall be continued fro day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournemnt of the same beyond the following day to be necessary for reasons to be recorded”. The hearing of a case should, therefore, go on from day to day, and this practice should be strictly followed. Exception may be made only where as insistance on it would defeat the ends of justice or is required by the law.

18.(1) Under the second privisio to sub­section (2) of section 309 of the Code of Criminal Proceddure 1973, no adjournment shall be granted, when witnesses are in attancence, without examining them except for special reasons to be recorded in writing. So far as possible, all witnesses who are present on any day, should be examined.

2. The reasons for not hearing a part­heard case, and the adjournment of any case where the witnesses are in attendance, should be recorded by the Magistrate. 3. No case should be adjourned on the ground that all the witnesses, who have been summoned, are not present.

19.Adjournments should not ordinarly exceed seven days when the accused is in custody, and 15 days when he is on bail. Adjournment for longer priods should be granted only for special reasons which should be recorded.

20.The Convenience of lawyers shall not ordinarly be regarded as a good ground for adjourning the case.

21.Cases should not ordinarily be adjourned for the personal conveniance of the Police Prosecutor. Frequent absence of the Police Prosecutor should be reported by the Magistrate to the Sessions Judge. Ordinarrily, when a Police Prosecuter consents to be present on a particular date, the Magistrate should not adjourn the case, unless the absence of the Police Prosecuter is due to reason beyond his control or unless the Magistrate otherwise deems it proper to do so in the interest of justice.

22.The attention of the Magistrate is inviated to section 256(1) and to Section 317(1) of the Code of Criminal Proceddure 1973. In view of these provisions, the mere absence of either the complainant or the accused is not a sufficient cause for adjournment. The Magistrate should, whenever possible, proceed with the hearing of the case in their absence.

23.It is noticed that the trial of cases is often delayed by the absence of witnsses and that several Magistrate fail to take action when witneses, though duly served, do not attend without sufficient cause. Magistrtes may in proper cases proceed against witneses who fail to appear on a summons or a bond, unless satisfactory reasons are given for their absence. In this connection, the attention of the Judicial Magistrates is invited to section 350(i) of the Code of Criminal Proceddure,1973.

Warrant Cases

24 (1) The Magistrates should scrupulously follow the statutory directions in Chapter XIX (Trial of Warrant Cases by Magistrates) of the Code of Criminal Proceddure 1973, dealing with trials in Warrant Cases. In this connetion, the attention of the Magistrtates is also drawn to the proceddure laid down in Sections 238 to 243 of the Code of Criminal Procedure,1973, for the trial of warrant cases instituted on Police Reports and the procedure laid down in sections 244 to 247 applies only on Warrant Cases instituted otherwise than on Police report.

2. Sections 246(4) to 246(6) and 247 of the Code of Criminal Procedure,1973, Provide that, In warrant cases instituted otherwise than on police report, after the plea of not guily to the charge:­ i. the accused shall be asked which (if any) of the prosecution witneses already examined the wishes to have recalled for cross­examination, and that ii. this question shall be put to him at the comencement of the next hearing of the cases or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith.

3. To avoid needless harassment of witnesses by being recalled for cross­ examination after the charge has been framed, Magistrates will usually find it convenient not to wait for the completion of the evidence for the prosecution, but to frame the charge as permitted by section 246(i) of the Code of Criminal Proceddure 1973 at an earlier stage, as soon as, from the examination of the complainant or otherwise, it is apparent that there is a prima facie case. 4. Attention of the Magistrates is drawn to the provision of section 259 of the Code of Criminal Proceddure 1973 which empowers the Magistrates to Proceed to re­ hear the case in the manner provided for the trial of warrant cases and for that purpose may recall any witnesses which may have been examined in the course of the trial of a summons case relating to an offence punishable with imprisonment for a term exceeding six months, particularly when it appears to him that in the interest of justice the said offence should be tried as a warrant case.

Summary Trials 25.(1) Before connecting the trials of offences which can be tried summarily, Magistrates should consider the appropriateness and desirability of following the summary procedure :­

2. Summary procedure in the following cases, though strictly legal, is not appropriate and should not ordinarily be followed :­

i. Cases which are prima facie likely, in the event of a conviction, to call for more severe punishment than can be awarded on summary trial, e.g. Cases against previously convicted offenders; ii. cases which are prima facie likely to be long and complicated: iii.Cases arising out of disputed title; and iv. Serious cases in which, for any particular reason, it is desirable that there should be a full record of the evidence for future refrence, e.g. Cases in which Government servants are concerned as accused persons.

3. The Magistrate should record substance of evidence in all cases, tried summarily.

Attention of the Magistrates is drawn to the provisions of Section 206 and 253 of the Code of Criminal Procedure,1973, empowering the Magistrates taking cognizance of petty offences after issuing a special summorns to the accused requiring him either to appear in person or by pleader before hik on 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 the 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. Under the provisio to section 206(i) the amount of fine to be specified in such summons shall not exceed Rs.100 and the petty offence means any offence punishable only with fine not exceeding Rs.1,000 and the petty offence means any offence so punishable under the Motor Vehicle,Act 1939, or under any other law which provides for convicting the accused person in his absence on plea of guilty. 26.The attention of all Magistrates in invite to section 264 of the Code of Criminal Procedure,1973, which requires that the substance of the evidence of each witnesses should be recorded in cases which are tried summarily but in which appealable sentence are likely to be passed.

(A) Attention fo the Magistrates is invited to the Provisions of Section 262(i) of the Code of Criminal Procedure, 1973, which provides for summons case procedure for all the cases triable summarily.

(B) Attention of the Magistriates is invited to the provisions of sub­section (1) of Section 265 of the Code of Criminal Procedure,1973,according to which every such judgment in summary trials shall be written in the language of the Court. In this connection, the attention of the Magistrates is invited to the orders, contained in High Court Circular Letter No.P0101/II/71,dated 15th March 1974, read with High Court Circular No.A­ 0606/56, dated 22nd December 1956 and Government Notification No.OFL 1066­(ii)­ M,dated 30th March,1966, published in part IV­A of the Maharashtra under section 558 of the Code of Criminal Procedure, 1898, which inter atia provides that the language of the Court would be “Marathi” excepting for the purposes mentioned therein which include charge, notes of evidence, order and Judgment of the Criminal Court. The said notification is saved under section 448(2) of the Code of Criminal Procedure, 1973.

Medical Witnesses

27.(1) Section 291 of the Code of Criminal Procedure,1973, requires that the deposition of a medical witness should be not only taken, but also attested in the presence of the accused by the Magistrate, in order to render it admissible in other proceedings. An attestation in the following form should, therefore,always be appended to such depositions, namely :

“Taken before me and signed by me in the presence of the accused, to whom the deposition was explained and opportunity given in cross­examine.

Signature of Magistrate) Date : 2. Care should be taken to record medical evidence fully and intelligently on all the salient points so that a second examination by another Court may not be necessary. The evidence should be fully interpreted to the accused, if necessary, and he should be opportunity to cross­examine the medical witness.

Local Inspection

28.In all important cases under inquiry or trial before a Magistrate, where a just appreciation of the evidence requires some knowledge of the scene of the alleged offence, the Magistrate may personally visit the scene either before or during the inquiry or trial, so that he may more readily understand the statements of witness.

Care should be taken to see that the provisions of section 310 of the code of criminal Prodedure, 1973 are strictly complied with.

Judgment of Conviction

29.(1) The attention of the Magistrates is invited to the ruling reported in A.I.R. 1966 S.C. Page 22 (Mahant Koushalya Das Vs. State of Madras) which lays down that the admission of the accused shall be recorded as nearly as possible in his own words. The provisions of section 252 of the Code of Criminal Procedure, 1973, are manadatory.

2. Attention of the Magistrates is invited to provisions of sub­section (2) of section 248 of the Code of Criminal Procedure, 1973, which provides that the Court shall hear the accused on the question of sentence before passing it.

3. When a Magistrate decides to impose to sentence of imprisonment, he should arrange to supply free of cost a copy of the judgment to the accused immediately after the pronouncement of the judgment. The carbon copies of the judgment as far as possible should be taken out at the time of typing the original judgment to furnish them to the convicts.

Sentence of Fine Awarded to Military Personnel

30.(1) Military personnel who have to undergo imprisonment in jail, however short the period of imprisonment may be, are after release from Jail discharged or dismissed from service although the imprisonment may be merely in default of the payment of fine. The inability of the military personnel, sentenced merely to fines in respect of petty offence, to pay the fines would, in cases where a sentence of imprisonment in default of the payment of fine is imposed, involve the very serious consequence of dismissal from service after the period of imprisonment in default of the payment of fine is undergone. The penalty in such cases would, therefore, be too severe. 2. Magistrates should in such cases take the above circumstances into consideration when exercising discretion in the matter of imposing a sentence of imprisonment in default of the payment of fine, which is discretionary under section 64 of the Indian Penal Code. 3. Where Military personal are unable to pay the amount ordered to be recovered, the Magistrate may, instead of imposing sentence of imprisonment in default of the payment of fine, ascertain from the individual concerned his ame identity, particulars of his regiment and Commanding Officer and other particulars, and communicate the same to the Collector of the District with a warrant under section 421 of the Code of Criminal Procedure, 1973, for the recovery of thefine or dues. The collector can be then forwarded the warrant to the commanding Officer concerned for recovery of the amount of fine or dues from the pay or allowances of

the individusal concerned, as provided, as provided under section 90(f) or 91 (h) of the Army Act, 1950.

Cases under Chapter VIII of the Code of Criminal Procedure, 1973

31.(1) The Magistrates should bear in mind the privisions of sections 119 and 122 of the Code of Criminal Procedure, 1973 and direct that when a person ordered to furnish security or to undergo imprisonment in default of furnishing security is undergoing a sentence of imprisonment passed by any Court, the period for which security is required and the period of imprisonment in default of security shall commence after the expiry of the sentence which the person is undergoing.

2. Before the expiry of his sentence, a prisoner may offer security, which the Magistrate may reject or accept. If the security has not been offered or has been rejected, the Magistrate should fix a date immediately after the expiry of the sentence, for furnishing security and for determining in cases under section 109 or 110 (vide section 122 (7) and (8) whether imprisonment in efault should be simple or rigorous. All proper facilities for furnishing security should be given to the prisoner, but he need not be brought before the Magistrate if he intimates that security will not be offered.

3. Attention of the Magistrates is invited to the following instructions contained of High Court Circular Letter No.P.0101(ii)/71, dated the 6th March 1974, pointing out that the Code of Criminal Prodecure,1973 (Act II of 1974) provides that the Judicial Magistrate has to adjudicate in the cases under under Chapter VIII of the Code of Criminal Procedure, 1973 known in common parlance as “Chapter Cases” and that these cases should be instituted and heard in the Court of the Judicial Magistrates from 1st April,1974 and that a separate register for filing of these cases should be maintained and they should be numbered separately :­ i. All criminal cases, including the “Chapter Cases” arising from the jurisdiction of Judicial Magistrates who have their Courts not merely in the District headquarters but also in the same compound or adjacent to the Court of the Chief Judicial Magistrate should be first instituted and registered in the Court of the Chief Judicial Magistrate. ii. The Chief Judicial Magistraate should, in his turn, distribute them amongst the Judicial Magistrates sitting in the compound in which his Court is situate or adjacent to the compound. The cases should be distributed, as far as possible, according to the Police Stations alloted to each Judicial Magistrate. iii.The “Chapter Cases” (Cases arising out of sections 108, 109 and 110 of the Code of Criminal Procedure, 1973 (Act II of 1974) mentioned in (i) above should be first registered in the Court of the Chief Judicial Magistrate, as indicated above. They should, however, be registered in a separate Register maintained in this court for that purpose. These cases should then be distributed by the Chief Judicial Magistrates in the same manner in which other Criminal cases are distributed as stated above. The Judicial Magistrates to whom these “Chapter Cases” are transferred should also maintain separate Registers for these cases.

iv. Criminal Cases and “Chapter Cases” arising the jurisdictions of Judicial Magistrates in the Taluke places or of those Judicial Magistrates at the headquarters whose Courts are at a distance from the court of the Chief Judicial Magistrate should be received by them and registered in separate Registers maintained for that purpose.

32.It has been observed that orders for imprisonment for failure to furnish security under Chapter VIII of the Code of Criminal Procedure, 1973 are frequently passed against youths below the age of 21, and that such Magistrates do not consider the alternative of passing orders of detention in a Borstal school in fit cases instead of imprisonment in jail.

The attention of the Magistrates is, therefore drawn to sections 6 and 9 of the Bombay Borstal Schools, Act XVIII of 1929 which provides for the passing of orders of detention in Borstal School. The Magistrate should carefully consider in the case of a youthful person, the advisibility of passing an order of detention in the Borstal School instead of an order of imprisonment.

33.It has been observed that proceedings under Chapter VIII of the code of Criminal Procedure, 1973, are permitted by the Magistraate to be instituted against persons below the age of 16 who are “children” within the meaning of the Bombay Children Act,1948 (LXXI of 1948), and sometimes Magistrates even pass orders against these children for the execution of bonds under the same Chapter.

The attention of the Mgistrates is, therefore, invited to the provisions of section 70 of the Bombay Children Act, 1948 (LXXI of 1948) which prohibits institution of any proceedings or passing of any orders under Chapter VIII of the Code of Criminal Procedure 1973 against a child. The Magistrates should satisfy themselves by medical or other evidence as to the age of any person against whom proceedings under the same Chapter are instituted, if they have reason to believe that such persons is, or such a person appears to be, below the age of 16 years. Police reports or private complaints sometimes do not state the age of the person. The Magistrates should invariably insist upor the age being stated in the proceedings and delete the names of such persons who have not completed the age of 16. 34.The object of the proceedings under Chapter VIII of the Code of Criminal Procedure, 1973 is to prevent, and not to punish, a crime or breach of the peace. Delay may defeat the very object of these proceedings; and, therefore, proceedings under this Chapter should be disposed of with utmost expedition and the least possible harassment and trouble to the parties. Attention of the Magistrates is invited to the provision of sub­section (6) of Section 116 of the Code of Criminal Procedure, 1973 under which the inquiry must be completed within a period of six months from the date of its commencement. If such inquiry is not so completed, the proceedings under Chapter VIII of the Code of Criminal Procedure, 1973, on the expiry of the said period of six months, stand terminated, except in cases wherein it is directed by an order recording special reasons in writing.