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1. Preface 2. Chapter – I Evolution of the office of the

Executive Magistrate 3. Chapter – II General provisions relating to code of Criminal Procedure

4. Chapter – III Security for keeping the peace and for

good behaviour 5. Chapter – IV Unlawful Assemblies

6. Chapter – V Public Nuisance

7. Chapter – VI Urgent cases of nuisance or apprehended danger

8. Chapter – VII Disputes as to Immoveable property

9. Chapter – VIII Inquests and Inquiries into unnatural deaths

10. Chapter – IX Evidence in Inquiries

11. Chapter – X Judgments

12. Chapter – XI Appeals and Revisions

13. Chapter – XII Bails and Bonds

14. Chapter – XIII Provisions relating to initiation of contempt

proceedings and offences affecting administration of justice

15. Chapter – XIV Dying Declaration

16. Chapter – XV Identification Parades

17. Chapter – XVI Karnataka Police Act, 1963

18. Chapter – XVII Contempt of Courts Act, 1971

19. Appendix - I List of Central and State Acts conferring

powers on Executive Magistrates

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20. Appendix –II Government Notification issued under Code of Criminal Procedure, 1973 and Karnataka Police Act, 1963

21. Appendix –III Specimen Forms, Orders, etc. 22. Appendix –IV Etiquette, Manners, Ceremonials and Visits of Diginitaries 23. Appendix – V The Provisions Relating to Criminal Procedure Code – Which are found in Chapter II to XII 24. Appendix – VI The Provisions Relating to Indian Penal Code – Which are found in Chapter XIII 25. Appendix – VII The Provisions Relating to Indian Evidence Act – Which are found in Chapter XIV and XV 26. Appendix – VIII The Provisions Relating to Contempt of Courts Act, 1971 – Which are found in Chapter XVII 27. Appendix – IX The Karnataka (Investigation of Unnatural Deaths

and Conduct of Inquests) (Amendment) Rules, 2005

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CHAPTER – I

EVOLUTION OF THE OFFICE OF THE

EXECUTIVE MAGISTRATE

The word 'Magistrate' is derived from the Latin 'Magister' a medieval title

given to a person in authority. A magistrate has been described as a public civil officer

invested with executive or judicial powers. The office of the Executive Magistrate in India

evolved along with the office of the Collector and the district as the unit of administration

during the British period. Hence the powers and functions attached to this office can be

well appreciated in the background of the evolution of district administration.

1.2 The concept of the district as a unit of administration has existed in India or

about two centuries now. The district was the common unit of administration in all the

integrating units of Karnataka which came into being on 1st November 1956 and was

then known as Mysore and, although there were Some differences, basically the system

of administration was the same in all these areas.

1.3 "In India, whoever regulates the assessment of land, really holds in his hand

the mainspring of the country", said Sir Thomas Munro, a celebrated administrator of

Madras. In fact from ancient times, the main object of all kingdoms and principalities,

both Hindu and Mohammeden, was the collection of land revenue and their territorial

organisation was devised mainly for the convenience of revenue collection.

1.4 Territorial units of administration existed even under the Mauryas and the

Guptas. The "Rajuka" of the Mauryas, corresponding to a modern .District Collector was

appointed over "many hundred thousand men", and performed revenue and judicial

functions. The "Visaya" under the Guptas roughly corresponded to a modern district and

was presided over by an officer of the Central Government, "Visayapati", who was

responsible for maintaining law and order and collecting taxes and revenues. The village

was the land unit of revenue administration and the representative of the village who

supervised the collection of King's share came to be called the headman and became in

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course of time, the "Patel". "The village official personnel, was for government purposes

simply repeated in wider and wider circles, first over a small area and then again for a

slightly larger area such as we call a district" (Baden- Powell).

1.5 Under the Delhi "Sultanate", the empire was divided into a number of

provinces and the provinces into "Shiqs" which were put under "Shiqdars". The Shiqs

finally emerged as Sarkars. The Sarkar under the Mughals was the counterpart of the

present day district, with the "Fouzdar" as its head. The Fouzdar maintained law and

order in the area under his command. He also maintained an armed force. He had to put

down smaller rebellions, disperse or arrest robber gangs, take cognizance of all violent

crimes and make demonstrations of force to overawe oppositions to the revenue

authorities, or the criminal judge, or the censor. The people looked up to the Fouzdar for

justice and protection.

1.6 There was also a non-official organ of district administration under the

Mughals, consisting of village communities of joint proprietors or government

"assignees" and "zamindars". The Zamindars maintained their own force in order to

maintain peace in the zamindari areas of the Empire. On the whole, the official and non-

official organs worked together in harmony although the latter was subordinated to the

former. With the collapse of the Mughal empire and the political instability that followed,

the non-official organ became more powerful. The zamindars and jagirdars came to

exercise governmental power within their jurisdiction. They collected land revenue and

maintained law and order and also exercised judicial powers. In fact the British found

this 'native' model convenient in realizing their objectives of the collection of revenue and

consolidation of authority.

1.7 To begin with, the British continued the Mughal system of administration with

slight modifications and with a scheme of supervision over the native collecting agency.

They were however confronted with certain administrative problems. One was to

reconstitute into sizable units of administration the districts which had disintegrated into

tahsils. Secondly, they had to find men of integrity and experience to ascertain the

revenue resources of the district and to superintend their administration, in a situation

where zamindars and public officers were illegally performing functions which did not

belong to them. The circumstances called for a reorganisation of administration in the

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districts on a uniform principle. In the reorganisation that followed, the norms set by

Bengal were adopted with suitable modifications in other parts of India.

1.8 Initially, the East India Company appointed covenanted servants as Supervisors

in the existing districts of Diwani provinces in 1769-70. According to their instrument of

instructions, they were not only to be concerned with the collections in their jurisdiction,

but also to have a general knowledge of all that affected the districts. Many of the

Supervisors were, however, ineffective due to lack of training and experience. Hence in

1772, the Company decided to take over the entire executive management of the public

revenues through its officials and appointed "Collectors" of revenue in the place of the

former "Supervisors". Thus was born the office of the Collector on May 14, 1772.

1.9 The district became the common unit of revenue and judicial administration

and was placed under an European official. The Collector combined in himself the

powers of a tax collector and those of a magistrate. In 1787, the district courts were

placed under the collectors and they were empowered to try criminal cases within certain

limits. In 1790 the powers of the Collectors were further increased and they were made

responsible for the custody of prisoners and execution of sentences passed on them by

the provincial criminal courts. Thus the Collector also came to be the Judge-Magistrate.

Such a system of territorial administration by which the districts came to be controlled

directly by a Collector who was responsible for the collection of revenue and

administration of criminal justice became the basis of subsequent administration. In fact,

according to the plan of Sir John Shore, the Collector was to be the sole governor of the

district locally responsible for the execution of Government policy in all its details. It may

be noted here that an important reason for the development of such a system was the

commercial character of the Company which placed emphasis on the civil authority

exercising control over the military.

1.10 Lord Cornwallis was not in favour of the union of revenue and judicial functions

in a single person. The Cornwallis Code of 1793 divested the Collector of all judicial and

magisterial functions. The entire administrative work in a district was divided between

two officers -one acting as Collector of Revenue and the other as Judge-Magistrate. This

system was a failure in practice.In a Minute of October 2, 1815 Marquis of Hastings

observed thus: 'The duties of Judge necessarily confine him to the Court house. The

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duties of a magistrate can perhaps never be so properly executed as while he is

engaged in a personal visit to every part of the district. The administration of civil justice

requires the patient and cool deliberation of mature age. The preservation of peace of

the district calls for all the active energy of early youth. A judge shall perhaps be

abstracted from all private converse with the natives. A magistrate must maintain a most

intimate communication with them and carry his researches into the inmost recesses of

their privacy. Justice should be blind, but police requires the eyes of Argus".

1.11 The reforms introduced by Lord William Bentinck in 1831, again united the

offices of Collector and Magistrate. Bentinck also created the posts of Joint Magistrates

and placed them in charge of sub-divisions. Deputy Magistrates were also recruited to

provide more efficient assistance to the Magistrate-Collectors. Gradually, Deputy

Magistrates were also appointed as Sub-Divisional Officers.

1.12 The evolution of administration followed in the South nearly the same course

as in Bengal. However, under the influence of Sir Thomas Munro the system of district

administration which developed in Madras and Bombay made the collector a virtual ruler

of the district. He performed multifarious duties relating to revenue, police and jails.

Apart from combining executive and judicial powers, he came to exercise wide

discretionary power. In the former princely State of Mysore, we find that during the

regency of Dewan Purnaiya in the beginning of the 19th century, a new type of officials

called 'Kandachar' police was introduced to protect the life and property of the people.

The Amildar (Tahsildar) of a Taluk was also the head of the police in that area. During

the time of the British rule (1815-81) the Deputy Commissioner became the head of the

police in the district.

1.13 In 1837 during the administration of Lord Auckland, the offices of Magistrate

and Collector were again separated. However, as the magistracy fell into the hands of

junior civil servants, law and order was affected. After the Mutiny, the offices of

Magistrate and Collector were reunited on a general pattern throughout the country

which continues till this day. The district Magistrate-Collector has remained the Chief

Executive head and administrator of the district. As District Magistrate, the District

Collector was the head policeman, the head prosecutor and the chief of the district

magistracy. He directed police enquiries and obtained police reports.

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1.14 The Indian Police Act, 1861 however, constituted the police into a separate

department distinct from the magistracy. But the District Magistrate was authorised to

have control over the Superintendent of Police under the Criminal Procedure Code. Sir

George Campbell, Lieutenant Governor of Bengal from 1871 to 1874 made it clear that

the police was subordinate to the Magistrate for all and every purpose.

1.15 Here, it is necessary to distinguish between the judicial and police powers of

the Magistrate. As a judicial magistrate he was empowered to try cases and as an

executive magistrate he exercised control over the police, particularly in matters

concerning maintenance of law and order. Both these powers were combined in the

office of the Collector and District Magistrate. In addition, he also appointed officers to

conduct the prosecution in important cases.

1.16 However as the demand for separation of judiciary from the executive gained

ground in the country, particularly after independence, the policy which was accepted

by the Government came to be incorporated as one of the directive principles of the

State Policy enshrined in the Constitution (Art 50). During the period from 1951 to

1956, almost all the States of India initiated schemes for the separation of judiciary

from the executive. In Karnataka, judicial functions were separated from the executive

from 1st June 1956. Under the scheme of separation of the Judiciary from Executive

outlined in Government Order No.1438-57 CTS18-56-4, dated 29th May 1956, an

arrangement was made whereby all the functions of a Magistrate under the Code of

Criminal Procedure and under the various other statutes, were divided between two

categories of Magistrates - Judicial and Executive. The allocation of powers between

the two categories of Magistrates proceeded on the principle that matters which were

purely police or administrative in nature, should be dealt with by the Executive

Magistrates and those judicial in nature should be dealt with by the Judicial

Magistrates. The Executive Magistrates are executive officers of the Revenue

Department coming under the control of the Government while Judicial Magistrates

are under the control of the High Court.

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1.17 In order to discharge the functions expected of them effectively, the

Executive Magistrates will have to be familiar with the relevant provisions of the Code of

Criminal Procedure, the Police Act, the Evidence Act and other Acts which confer

specific powers on them.

1.18 In the Chapters following, a resume of important provisions of law conferring

powers and duties on Executive Magistrates and the procedures that are to be followed

by them in discharging their functions are given for guidance.

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CHAPTER – II

GENERAL PROVISIONS RELATING TO CODE

OF CRIMINAL PROCEDURE

2.1 The Code of Criminal Procedure, 1973, has a two- fold object. While

providing a machinery for punishment of offenders against substantive criminal law, it

also provides for prevention of offences. The provisions relating to the preventive

aspects are to be found in the Chapters dealing with:

(a) Security for keeping the peace and for good behaviour (Chapter VIII);

(b) Maintenance of public order and tranquillity (Chapter X); and

(c) Preventive action of the Police (Chapter XI).

As the responsibility of maintaining law and order is a function of the

Executive and prevention of offences is one aspect of this function, the Code has

provided for the constitution of Courts of Executive Magistrates and has conferred on

them powers to take preventive action wherever necessary.

2.2 The Code has created two categories of Magistrates:

(1) Judicial Magistrates (including the Magistrates for metropolitan areas);

and

(2) Executive Magistrates,

and has allotted magisterial functions under the Code between them.

The distribution of functions exercisable by judicial and executive magistrates

under any law other than the Criminal Procedure Code is as follows (Sub-section 4 of

Section 3);

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Judicial Magistrates: Matters which involve:

(a) Appreciation or sifting of evidence.

(b) Formulation of any decision which exposes any person

(i) to any punishment or penalty or detention in custody pending

investigation;

(ii) to any inquiry or trial would have the effect of sending him for trial

before any court.

Executive Magistrates: Matters which involve functions which are

administrative or executive in nature like the following:

(a) Granting of a licence, its suspension or cancellation.

(b) Sanctioning a prosecution or withdrawing from prosecution.

EXECUTIVE MAGISTRATES:

2.3 The State Government has the power to appoint as many persons as it

thinks fit to be Executive Magistrates and to appoint one of them as District Magistrate. It

may also appoint anyone of them as Additional District Magistrate who shall have such

of the powers of a District Magistrate under this Code or any other law for the time being

in force as may be directed by the State Government. It could also place an Executive

Magistrate in charge of Sub-Division and relieve him of such a charge. When a

Magistrate is placed in charge of a Sub-Division, he shall be called the Sub-Divisional

Magistrate. The State Government has also the power to confer on the Commissioner of

Police all or any of the powers of an Executive Magistrate in relation to a Metropolitan

area [Sec. 20 (1), (2), (3), (4) & (5)].

Section 20-Power of Additional District Magistrate – Additional District Magistrate

has the power of Executive Magistrate by virtue of the Notification passed by the

Karnataka State Government under Section 20 of the Act.

Held : Prohibitory order passed by ADM Prohibiting Dr. Praveen Togadia from

entering Dakshina Kannada District for a period of 15 days and participating in any

function in that district was valid and High Court should not have lightly interfered with

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that order of competent Authority. State of Karnataka and Another Vs. dr. Praveen

Bhai Thogadia, [Criminal Appeal No. 401 of 2004, dated 31.3.2004] 2004 (3) KCCR

SN 199:2004 (4) Kar. L.J. 484: (2004) 4 SCC 684:AIR 2004 SC 2081

2.4 In the event of the office of the District Magistrate becoming vacant, any officer

who succeeds to the Executive Administration of the District shall, pending orders of the

State Government, exercise all powers and perform all duties respectively conferred and

imposed by this Code on the District Magistrates [Sec. 20 (3)].

20[(4-A)- The State Government may, by general or special order and subject to

such control and directions as it may deem fit to impose, delegate its powers under sub-

section (4) to the District Magistrate.

2.5 The State Government may appoint Executive Magistrates as Special

Executive Magistrates for particular areas for performing particular functions and confer

on them such powers as are exercisable by the Executive Magistrates under the Code

(Sec. 21).

2.6 The District Magistrate, subject to the control of the State Government, will

define from time to time, the local limits and the areas within which the Executive

Magistrates may exercise powers conferred on them under this Code. Where no such

limits are defined, the jurisdiction and powers of every such Magistrate shall extend

throughout the District (Sec. 22).

2.7 All the Executive Magistrates in the District. except the Additional District

Magistrate will be subordinate to the District Magistrate. While exercising the powers in a

Sub-Division they will also be subordinate to Sub-Divisional Magistrate, subject however,

to the general control of the District Magistrate.

2.8 The District Magistrate has been empowered to make rules or give special orders

regarding the distribution of business among the Executive Magistrates subordinate to

him and as to the allocation of business to an Additional District Magistrate (Sec. 23).

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2.9 Under the Code, it is open to the District Magistrate to withdraw any powers

conferred by him [Sec. 34 (2)]. In order to ensure continuity, the Code provides that the

powers and duties of a Magistrate can be performed by his successor in office (Sec. 35).

2.10 Any District Magistrate or Sub-Divisional Magistrate, for reasons to be

recorded, may order the making over, for disposal of any proceedings which has been

started before him to any Magistrate subordinate to him or the withdrawal of any case

from or the re-call of any case which he has made over to any Magistrate subordinate to

him and dispose of such proceedings himself or refer it to disposal to any other

Magistrate (Sec. 411 and 412).

ARREST OF PERSONS:

2.11 Sec. 41 of the Code enumerates the cases where any Police Officer may

without an order from a Magistrate and without warrant, arrest any person. Sec. 42 deals

with the arrest of any person who, in the presence of a Police Officer has committed or

has been accused of committing a non-cognizable offence and who refuses to give his

name and residence or gives a name or residence which the officer has reason to

believe to be false. As very wide powers have been conferred on Police Officers to

enable them to act swiftly for the prevention or detection of cognisable offences without

the formality of having to go to a Magistrate for an order of arrest, the Courts should be

particularly vigilant to see that whenever arrested persons are brought before them, the

powers conferred on the Police are not in any way abused or likely to be used for the

satisfaction of private feelings or of designing complainants.

ARRESTING A FEMALE PERSON

In the STATE OF MAHARASTRA v C C W Council of India (AIR 2004 SC 7(A)

the High Court prevented the police from arresting a lady without the presence of a lady

constable. Said direction also prohibited the arrest of a lady after sunset and before

sunrise under any circumstances.

While it is necessary to protect the female sought to be arrested by the police

from police misdeeds, it may not be always possible and practical to have the presence

of a lady constable when the necessity for such arrest arises, therefore, the SC modified

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the said direction without disturbing the object behind the same. The object will be

served if a direction is issued to the Arresting Authority that while arresting a female

person, all efforts should be made to keep a lady constable present but in circumstances

where the Arresting Officer is reasonably satisfied that such presence of a lady

constable is not available or possible and/or the delay in arresting caused by securing

the presence of a lady constable would impede the course of investigation such

Arresting Officer for reasons to be recorded either before the arrest or immediately after

the arrest be permitted to arrest a female person for lawful reasons at any time of the

day or night depending on the circumstances of the case even without the presence of a

lady constable. (Para 9)

ARREST BY A PRIVATE PERSON:

2.12 The Code also provides for arrest by a private person and the procedure

to be followed on such arrest (Sec. 43).

ARREST BY MAGISTRATE:

2.13 When any offence is committed in the presence of an Executive or Judicial

Magistrate within his local jurisdiction, he may himself arrest or order any person to

arrest the offender and may thereupon subject to the provisions contained in the Code

as to bail, commit the offender to custody. Any Executive or Judicial Magistrate may at

any time arrest or direct the arrest in his presence within his local jurisdiction of any

person for whose arrest he is competent at the time and in the circumstances to issue a

warrant (Sec. 44).

SCOPE OF ARREST

Powers - The Code gives power of arrest not only to a police officer and a

Magistrate but also under certain circumstances or given situations to private persons.

Further, when an accused person appears before a Magistrate or surrenders voluntarily,

the Magistrate is empowered to take that accused persons into custody and deal with

him according to law. Needless to emphasize that the arrest of a person is a condition

precedent for taking him into judicial custody thereof. To put it differently, the taking of

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the person into judicial custody is followed after the arrest of the person concerned by

the Magistrate on appearance or surrender. In every arrest, there is custody but not vice

versa and that both the words „custody‟ and „arrest‟ are not synonymous terms. Though

„custody‟ may amount to an arrest in certain circumstances but not under all

circumstances, if these two terms are interpreted as synonymous, it is nothing but an

ultra legalist interpretation which if under all circumstances accepted and adopted, would

lead to a startling anomaly resulting in serious consequences. (Para 50) (S. 41 to S. 44

and S. 167)

Directorate of Enforcement v. Deepak MahajanAIR 1994 SC 1775

RIGHTS OF PERSON ARRESTED

(1) An arrested person being held in custody is entitled, if he so requests to have on

friend relative or other person who is known to him or likely to take an interest in

his welfare told as far as is practicable that he has been arrested and where is

being detained. He also has a right to consult privately with lawyer.

(2) The Police Officer shall inform the arrested person when he is brought to the

police station of this right.

(3) An entry shall be required to be made in the diary as to who was informed of the

arrest. These protections from power must be held to flow from Arts.21 and

22(1) of the constitution (dealing with fundamental rights) and enforced strictly.

It shall be the duty of the Magistrate, before whom the arrested person is

produced, to satisfy himself that these requirements have been complied with. The

above requirements shall be followed in all cases of arrest till legal provisions are made

in this behalf. These requirements shall be in addition to the rights of the arrested

persons found in the various Police Manuals. (Para 24, 25, 26, 27, 28)

(Joginder Kumar v. State of U.P. - AIR 1994 SC 1349)

PROTECTION TO MEMBERS OF ARMED FORCES:

2.14 Sec. 45 gives a qualified protection from arrest to a member of the Armed

forces of the Union for anything done or purported to have been done by him in the

discharge of his official duties. Under Sub-Sec. (2) of Sec. 45, it is open to the State

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Government to extend this immunity to specific categories of members of the forces

charged with maintenance of public order.

2.15 Police officers or other persons making the arrest shall actively touch or confine

the body of the persons to be arrested unless there is a submission to the custody by

word or action. If such person forcibly resists the arrest or attempts to evade the arrest,

all the means necessary to effect the arrest may be used [Sec. 46 (1) and (2)].

46(4). Save in exceptional circumstances, no woman shall be arrested after sunset

and before sunrise, and where such exceptional circumstances exist, the woman police

officer shall, by making a written report, obtain the prior permission of the Judicial

Magistrate of the first class within whose local jurisdiction the offence is committed or the

arrest is to be made.

*Inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.6 (to be effective from the date of its notification).

OBLIGATION OF PERSON MAKING ARREST TO INFORM ABOUT THE

ARREST, ETC., TO A NOMINATED PERSON.

*[50-A. Every police officer or other person making any arrest under this Code shall

forthwith give the information regarding such arrest and place where the arrested person

is being held to any of his friends, relatives or such other persons as may be disclosed

or nominated by the arrested person for the purpose of giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-

section (1) as soon as he is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such

person shall be made in a book to be kept in the police station in such form as may

be prescribed in this behalf by the State Government.

(4) It shall be the duty of the Magistrate before whom such arrested person is

produced, to satisfy himself that the requirements of sub-section (2) and sub-section

(3) have been complied with in respect of such arrest persons.]

*New Section 50A inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.7 (to be effective from the date of its notification).

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EXAMINATION OF ACCUSED BY MEDICAL PRACTITIONER AT THE REQUEST OF

POLICE OFFICER.

53(2) Whenever the person of a female is to be examined under this section, the

examination shall be made only by, or under the supervision of, a female registered

medical practitioner.

*[Explanation- In this section and in sections 53-A and 54, -

(a) “examination” shall include the examination of blood, blood-stains, semen, swabs

in case of sexual offences, sputum and sweat, hair samples and finger nail clippings

by the use of modern and scientific techniques including DNA profiling and such

other tests which the registered medical practitioner thinks necessary in a particular

case;

(b) “registered medical practitioner” means a medical practitioner who posses any

medical qualification as defined in clause (h) of section 2 of the Indian Medical

Council Act, 1956 (102 of 1956) and whose name has been entered in a State

Medical Register.]

*Substituted for the former explanation by the CrPC (Amendment) Act, 2005 (25 of 2005), S.8 (to be effective from

the date of its notification). Prior to its substitution, the Explanation read as under:

“ Explanation.- In this section and in section 54, “registered medical practitioner” means a medical practitioner who

possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council

Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register.”

54. †[(1)] - When a person who is arrested, whether on a charge or

otherwise, alleges, at the time when he is produced before a Magistrate or at any

time during the period of his detention in custody that the examination of his body will

afford evidence which will disprove the commission by him of any offence or which

will establish the commission by any other person of any offence against his body,

the Magistrate shall, if requested by the arrested person so to do direct the

examination of the body of such person by a registered medical practitioner unless

the Magistrate considers that the request is made for the purpose of vexation or

delay or for defeating the ends of justice.

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‡[(2) Where an examination is made under sub-section(1), a copy of the report of

such examination shall be furnished by the registered medical practitioner to the

arrested person or the person nominated by such arrested person.]

† S. 54 re-numbered as sub-sec.(1) of that section by the CrPC (Amend), Act, 2005 (25 of 2005), S.10 (to be

effective from the date of its notification).

‡ Sub-Section(2) inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.10 (to be effective from the

date of its notification).

PRODUCTION OF PERSON ARRESTED WITHOUT WARRANT

Section 54 undoubtedly provides for examination of an arrested person by a medical

practitioner at the request of the arrested person and it is a right conferred on the

arrested person. But very often the arrested person is not aware of this right and on

account of his ignorance, he is unable to exercise this right even though he may have

been tortured or maltreated by the police in police lock up. It is the duty of the

Magistrate to inform the arrested person about this right of medical examination in case

he has any complaint of torture of maltreatment in police custody.

(Sheela Barse v. State of Maharashtra AIR 1983 SC 378 (C))

A police officer making arrest without warrant shall without unnecessary delay and

subject to the provisions of bail take or send the person arrested before a Magistrate

having jurisdiction in the case or before an officer in charge of a police station (Sec.

56). The words "Magistrate having jurisdiction" has been interpreted to mean the

Magistrate having jurisdiction to try the case. No Police Officer shall detain in custody,

a person arrested without warrant for a longer period than what in the circumstances of

the case is reasonable and such period shall not in the absence of a special order of a

Magistrate under . Sec. 167 of the Code exceed 24 hours exclusive of the time

necessary for the journey from the place of arrest to the Magistrate's Court (Sec. 57)

(Article 22 of the Constitution of India).

2.16 Sub-Sec. 2 (A)' of Sec. 167 provides that the officer in charge of the Police

Station, or an officer not below the rank of Sub-Inspector, who is making investigation,

may where the Judicial Magistrate is not available, produce the accused before the

nearest Executive Magistrate, on whom the powers of Judicial Magistrate have been

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conferred, and also transmit a copy of the entry in the diary (prescribed in the Code)

relating to the case. Thereupon such Executive Magistrate may, for reasons to be

recorded in writing, authorise the detention of the accused person in such custody as he

may think fit, for a term not exceeding 7 days in aggregate and on the expiry of the

period authorised, the accused person shall be released on bail except where an order

for further detention of the accused person has been made by a Magistrate competent to

make such order. Before the expiry of the said period, the Executive Magistrate shall

transmit the records of the case together with a copy of the entries in the diary, relating

to the case, to the nearest Judicial Magistrate.

2.17 The Officer in charge of a Police Station shall report to the District Magistrate or if

he so directs to the Sub-Divisional Magistrate, the cases of all persons arrested without

warrant within the limits of their respective stations whether such persons have been

admitted to bailor otherwise (Sec. 58). No person who has been arrested by a Police

Officer shall be discharged except on his own bond or. on bail or under special orders of

a Magistrate (Sec. 59).

PROCESS TO COMPEL APPEARANCE

2.18 The processes to compel appearance are:

(a) Summons (b) Warrant and (c) Proclamation and Attachment Warrant.

Whether a summons or warrant should be issued in the first instance is determined

by Column 4 of Schedule II to the Criminal Procedure Code.

(a) SUMMONS:

2.19 The provisions dealing with summons are given in Chapter VI-A of the

Code. They relate to:

(1) The form of Summons (Sec. 61);

(2) Service of Summons (Sec. 62);

(3) Service of Summons on corporate bodies and societies (Sec. 63);

(4) Service of Summons when persons cannot be found (Sec. 64);

(5) The procedure when service cannot be effected under Sec. 62 to 64 (Sec. 65);

20

(6) Service on Government Servants {Sec. 66);

(7) Service of Summons outside the local limits (Sec. 67);

(8) Proof of service in case of service of summons outside local limits and in case

when the serving officer is not present at the hearing of the case (Sec. 68); and

(9) Service of Summons on witnesses by post.

61.Form of summons.- 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.

62.Summons how served.- (1) 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.

(2) 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.

(3) Every person on whom a summons is so served shall, if so required by the serving

officer, sign a receipt therefor on the back of the other duplicate.

63.Service of summons on corporate bodies and societies.- Service of a summons

on a corporation may be effected by serving it on the secretary, local manager or other

principle 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.

Explanation.- In this section, "corporation" means an incorporated company or other

body corporate and includes a society registered under the Societies Registration Act,

1860.

64.Service when persons summoned cannot be found.- Where the person

summoned cannot, by the exercise of due diligence, be found, the summons may be

served by leaving one of the duplicates for him with some adult male member of his

21

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 therefor on the back of the other duplicate.

Explanation.- A servant is not a member of the family within the meaning of this section.

65.Procedure when service cannot be effected as before provided.- If service

cannot by the exercise of due diligence be effected as provided in section 62, section 63

or section 64, 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; 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.

66.Service on Government.- (1) Where the person summoned is in the active service

of the Government, the Court issuing the summons shall ordinarily sent 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.

(2) Such signature shall be evidence of due service.

67.Service of summons outside local limits.-When a Court desires that a summons

issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily

send such summons in duplicate to a Magistrate within whose local jurisdiction the

person summoned resides, or is, to be there served.

68.Proof of service in such cases and when serving officer not present.-(1) When a

summons issued by a Court is served outside its local jurisdiction, and in any case

where the officer who has served a summons is not present at the hearing of the case,

an affidavit, purporting to be made before a Magistrate, that such summons has been

served, and a duplicate of the summons purporting to be endorsed (in the manner

provided by section 62 or section 64) by the person to whom it was delivered or

tendered or with whom it was left, shall be admissible in evidence, and the statements

made therein shall be deemed to be correct unless and until the contrary is proved.

22

(2) The affidavit mentioned in this section may be attached to the duplicate of the

summons are returned to the Court.

69.Service of summons on witness by post.- (1) Notwithstanding anything contained

in the preceding sections of this Chapter, a Court issuing a summons to a witness may,

in addition to and simultaneously with the issue of such summons, direct a copy of the

summons to be served by registered post addressed to the witness at the place where

he ordinarily resides or carries on business or personally works for gain

(2) When an acknowledgment purporting to be signed by the witness or an endorsement

purporting to be made by a postal employee that the witness refused to take delivery of

the summons has been received, the Court issuing the summons may declare that the

summons has been duly served

SUMMONS BY POST

1) Issuance of summons to the accused by post is not contemplated under the

procedure. Therefore posting of case for payment of RPAD charges is illegal.

Consequent dismissal of case on ground of non payment of charges is not proper.

(Nav Maharashtra Chakan Oil Mill Ltd. V. Shivashakti Poultry Farm - 2002 Crl. L.J.

4446 - KARNATAKA HIGH COURT)

2) In case of witnesses, when they fail to return summons issued, Magistrate can

issue fresh summons by registered post or through higher authorities of said

witnesses to secure their presence. Closing prosecution case by Magistrate without

taking any such steps is not proper. (State of Karnataka v. Nallayappa

KARNATAKA HIGH COURT 1996 CRI.L.J.3539)

2.20 It may be noted that a Magistrate will not be justified in issuing a warrant

unless he is convinced about the service of the summons and its disobedience.

(b) WARRANTS:

2.21 Chapter VI-B of the Code deals with the provisions regarding warrants.

of arrest. Every warrant of arrest shall be in writing signed by the Presiding Officer and

23

shall bear the seal of the Court. It may be directed against any person (Sec. 73) and

shall remain in force until it is cancelled by the Court which issued it or until it is

executed (Sec. 70). The Court issuing the warrant of arrest may provide by an

endorsement that the person to be arrested can be released on taking such security

as the court may show in the endorsement (Sec. 71). Warrant of arrest shall be

directed to one or more Police Officers and it may be executed all or by anyone of

them (Sec. 72). A warrant directed to a Police Officer can be executed by any other

Police Officer whose name has been endorsed upon the warrant by officer to whom it

is directed (Sec. 74). Sec. 75 to 79 describe how the arrest should be effected, how

the person arrested should be brought before the Court and also the procedure for

executing a warrant outside the jurisdiction of the Court. Unless the Court which

issues the warrant, is within 30 Kms., the person arrested shall be produced before

the nearest Executive. Magistrate or District Superintendent of Police or

Commissioner of Police within the local limits of whose jurisdiction the arrest was

made (Sec. 80). When a person arrested is brought before the Magistrate, the District

Police Superintendent of Police or Commissioner of Police, they have the power to

direct the removal of the arrested person in custody to such court. They may also

subject to the endorsement regarding bail and the provisions of bail contained in the

Code, release the person on bail (Sec. 81).

(c) PROCLAMATION AND ATTACHMENT:

2.22 Chapter VI-C deals with the provisions of proclamation and attachment.

Under Sec. 82 (1) of the Code, if any court has reason to believe that a person against

whom a warrant has been issued, has absconded, the Court can publish a written

proclamation requiring him to appear at the specific place and time not less than 30 days

from the date of proclamation. Sec. 82 (2) prescribes the procedure for publication of the

proclamation.

PROCLAMATION FOR PERSON ABSCONDING :

82.*(4) – Where a proclamation published under sub-section (1)is in respect of a

person accused of an offence punishable under section 302, 304, 364, 367, 382,

392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian

Penal Code and such person fails to appear at the specified place and time required

24

by the proclamation, the Court may, after making such inquiry as it thinks fit,

pronounce him a proclaimed offender and make a declaration to that effect.

* inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.12 (to be effective from the date of its

notification).

The court issuing a proclamation under Sec. 82 may at any time after the issue

of the proclamation order the attachment of any property movable or immovable or

both, belonging to the proclaimed person [Sec. 83 (1)]. Under certain circumstances,

the court issuing. a proclamation may attach the property simultaneously without

waiting to see whether the person proclaimed appears within the time prescribed or

not. The procedure of attachment and disposal of the attached property are found in

Subsections (2) to (6) of Sec. 83. While Sec. 84 indicates how claims and objections.

to attachment should be disposed off, Sec. 85 deals with the release, sale and

restoration of attached property.

OTHER RULES REGARDING PROCESS:

2.23 Sec. 87 is an important provision which contains the circumstances under which

a warrant can be issued in lieu of, or in addition to summons. If the court has reason to

believe that the person against whom a summons is issued has absconded or will not

obey the summons or if a summons is proved to have been duly served and the person

has failed to appear, the Court can issue a warrant in lieu of or in addition to the

summons. Sec. 88 provides that when any person for whose appearance or arrest the

court is empowered to issue a summons or warrant is found present in such court, such

officer may require such person to execute a bond with or without surety for his

appearance in such Court. Sec. 89 provides that if a person who is bound by any bond

to appear before a Court, does not appear, the Officer presiding in such court may issue

a warrant directing that such person be arrested and produced before him.

PROCESS TO COMPEL THE PRODUCTION OF THINGS

SUMMONS TO PRODUCE:

2.24 When any court considers that the production of any document or thing is

necessary for the purpose of any investigation, inquiry or any trial or other proceeding

25

under the Code, the Court may issue a summons to the person in whose possession the

document or thing is, to produce the same [Sec. 91 (1n. Under Sub-Section (2) of Sec.

91 the person to whom the summons is issued shall have to produce or cause the

documents or thing to be produced. Sec. 92 provides that if any document, parcel or

thing in the custody of a postal or telegraph authority, is in the opinion of the District

Magistrate, wanted for the purpose of any investigation, inquiry, trial or other proceeding

under the Code, such Magistrate may request the postal or telegraph authority as the

case may be to deliver the document, parcel or thing to such person as he directs. Sub-

section (2) of Sec. 92 provides if any such document, parcel or thing is in the opinion of

any other Magistrate, whether Executive or Judicial or of any Commissioner of Police or

District Superintendent of Police wanted for any such purpose, he may require the

Postal or Telegraph Authority, as the case may be to cause search to be made for and

to detain such document, parcel or thing pending the order of a District Magistrate, Chief

Judicial Magistrate or Court under Sub-sec. (1) of Sec. 92.

SEARCH WARRANTS

2.25 Sec. 93 describes the procedure for the production of a document or thing,

when the summons to produce it has failed or in other cases. A search warrant under

this section can be issued in the following cases:

(1) Where the Court has reason to believe that the person summoned

to produce a document or thing will not produce it.

(2) Where the Court is not able to know in whose possession the

document or thing is; and

(3) Where the Court considers that a general search or inspection is necessary.

2.26 Under Sec. 94 of the Code, if a District Magistrate, Sub-Divisional Magistrate

or a Magistrate of the First Class upon information and after such inquiry has reason to

believe that any place is used for the deposit or sale of stolen property or for the deposit,

or sale or production of any objectionable articles, he may issue a search warrant for the

search of any place shown in the warrant. Clauses (c) and (d) of Sub-see (1) of Sec. 94

26

further provide as to how the stolen property or objectionable article should be taken

possession of, conveyed or carried before a Magistrate. Clause (2) of Sub-sec. (1) of

Sec. 94 provides for taking into custody of every person found in such place and the

production of them before the Magistrate. Under Sub-sec. (2) of Sec. 94 the description

of objectionable articles has been given and it includes counterfeit coins, counterfeit

currency notes, forged documents, false seals and obscene objects.

2.27 Sec. 97 empowers any District Magistrate, Sub-Divisional Magistrate or

Magistrate of the First Class to issue a search warrant if he has reason to believe that

any person is confined under such circumstances which amounts to an offence. Upon

such search if any person is found, he shall have to be immediately taken before a

Magistrate who shall make such order as in the circumstances of the case seems

proper. Sec. 98 provides that upon a complaint made on oath regarding the abduction or

unlawful detention of a woman or a female under the age of 18 for any unlawful purpose,

the District Magistrate, Sub divisional Magistrate or the Magistrate of the First Class may

make an order for the immediate restoration of such woman to her liberty or for custody

of such female to her husband, parents or guardian. It further empowers the said

Magistrate to compel compliance with such order using such force as may be necessary.

GENERAL PROVISION RELATING TO SEARCHES

2.28 General provisions relating to searches are contained in Sec. 99 to 101 of

Chapter VII-C of the Code of Criminal Procedure, Under Sec. 100 persons in charge of a

closed place have an obligation to allow search. Sec. 101 provides for the disposal of

things found in search beyond jurisdiction.

MISCELLANEOUS

2.29 Sec. 102 to 105 of Chapter VII-D contain miscellaneous provisions. They relate

to the power of Police Officers to seize certain property, the power of a Magistrate to

direct search in his presence and the power of the Court to impound documents or

things produced before it.

27

POWER OF POLICE OFFICER TO SEIZE CERTAIN PROPERTY:

102(3)- Every police officer acting under sub-section (1) shall forthwith report the

seizure to the Magistrate having jurisdiction and where the property seized is such

that it cannot be conveniently transported to the Court, * [or where there is difficulty

in securing proper accommodation for the custody of such property, or where the

continued retention of the property in police custody may not be considered

necessary for the purpose of investigation] he may give custody thereof to any

person on his executing a bond undertaking to produce the property before the Court

as and when required and to give effect to the further orders of the Court as to the

disposal of the same.]

*[Provided that where the property seized under sub-section(1) Is subject to

speedy and natural decay and if the person entitled to the possession of such

property is unknown or absent and the value of such property is less than five

hundred rupees, it may forthwith be sold by auction under the orders of the

Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly

as may be practicable, apply to the net proceeds of such sale.]

inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.13 (to be effective from the date of its notification).

000

28

CHAPTER – III

SECURITY FOR KEEPING THE PEACE AND

FOR GOOD BEHAVIOUR

3.1 The Criminal Procedure Code has provided machinery for prevention of

offences by investing the Executive Magistrates with a very potent power of requiring

persons to furnish security for keeping the peace or for good behaviour.

(i) Security for keeping the peace is taken from persons likely to commit

breach of the peace (Section 107); and

(ii) Security for good behaviour is taken from:

1) Persons disseminating seditious matter (Sec. 108)

2) Suspected persons (Sec.109) and

3) Habitual Offenders (Sec. 110)

PROCEEDINGS UNDER SEC. 107 OF CRIMINAL PROCEDURE CODE:

Security for keeping the peace (Sec. ,107)

3.2 Sub-Section (1) of Section 107 of the Criminal Procedure Code reads

as follows:

“When an Executive Magistrate receives information that any person is likely

to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful

act that may probably occasion a breach of the peace, or disturb the public tranquillity

and is of opinion that there is sufficient ground for proceeding, he may, in the manner

hereinafter provided, require such person to show cause why he should not be ordered

to execute a bond with or without sureties, for keeping the peace for such period, not

exceeding one year, as the Magistrate thinks fit".

29

Ingredients of Sec. 107 (1)

3.3 The above provision contains the following ingredients:

(i) An Executive Magistrate receives information

(ii) That a person is likely to commit a breach of the peace or disturb the

public tranquillity, or

(iii) That a person is likely to commit any wrongful act that may probably

occasion a breach of the peace or disturb the public tranquillity; and

(iv) The Magistrate forms the opinion that there is sufficient ground to

proceed.

(v) Then the Magistrate may require such person to show cause why he

should not be ordered to execute a bond with or without sureties for

keeping the peace for such period not exceeding one year as the

Magistrate thinks fit.

Section 107 (2):

3.4 Under Sub-section (2) of Sec. 107 an Executive Magistrate can initiate

proceedings when:

(i) either the place where the breach of the peace or disturbance of public

tranquillity is apprehended is within his local jurisdiction; or

(ii) the person who is likely to commit the breach of the peace beyond such

jurisdiction is residing within his jurisdiction.

SINGLE PROCEEDING AGAINST TWO OPPOSING GROUPS ILLEGAL

The learned Magistrate, in one and the same proceedings has called upon the

members of both the parties to show cause why they should not be bound over for

maintaining peace. This procedure adopted by the learned Magistrate, initiating

proceedings under Sec. 107 Cr. P.C. against members of both the groups in one and the

same proceedings is also contrary to the provisions of law; because the persons

30

proceeded against were in the position of accused persons and they would be witnesses

in the case as against members of the other party. (Para 8).

(Mahadev V/s The Taluka Executive Magistrate, Raibag ILR 1982(1) Karnataka 471)

Important points to be noted by the Executive Magistrates

(A) Criminal P.C. (2 of 1974), Ss.107, 116(6) – Proceedings under S. 107 – Inquiry

lapsing due to expiry of six months – Accused approaching Magistrate to pass orders for

closing inquiry and proceedings – Magistrate was bound to pass such order (Para 5)

(B) Criminal P.C. (2 of 1974), Ss.107 and 111 – Proceedings under S.107 – Initiation of

– Quarrels between two private individuals – Initiation of proceedings under S. 107 Not

warranted – provision do not contemplate aforesaid situation (Para 7)

(C) Criminal P.C. (2 of 1974) Ss. 107 and 111 – Proceedings under S.107 Magistrate

directing accused to execute bond Magistrate must supply to accused whatever

incriminating material relied on by him to initiate proceedings under S.107 (Para 8)

(D) Criminal P.C (2 of 1974) Ss. 107 and 116- Proceedings under S. 107 – Direction to

accused to execute bond – Magistrate explaining to accused only substance of

allegations or complaint made against them by police – That does not dispense with duty

to issue show cause notice – Issue of show cause notice to accused was to why bond

should not be executed by them to maintain peace – Condition precedent. (Para 8)

(Smt. Christalin Costa and others, Petitioners v. State of Goa and others,

Respondents 1992 CR. LLJ 3608 (A)(B)(C)(D))

Magistrate must have Information:

3.5 So far as the first ingredient of Sub-sec. (1) of Sec. 107 is concerned,

it must be noted that the only requirement is that the Magistrate should have the

information. There is no restriction as to the source or the nature of the information on

which the Magistrate can take action. He may proceed on a report made by the police or

on the report made by any of his subordinate Magistrate or on any information given by

a private person/authority. The information may emerge from some previous

31

proceedings or trial in which the accused may have been acquitted. Since the

information is the foundation of the Magistrate's jurisdiction it must be clear and definite

so as to afford sufficient notice to the persons proceeded against. Pendency of a

prosecution for an offence is no bar for initiation of a proceeding under Sec. 107.

Persons proceeded against are not entitled to claim that Magistrate should disclose the

source of information.

Likely to commit a breach of the peace

3.6 According to the second ingredient, the information should be to the effect

that a person is likely to commit a breach of the peace or disturb the public tranquillity.

The factors which constitute or fulfil the requirements to prove that. a person is likely to

commit the breach of the peace or disturb the public tranquillity, depend upon the facts

and circumstances of the case.

WRONGFUL ACT

3.7 The third ingredient discloses that it would not be sufficient if a person is

likely to do any act that may probably occasion a breach of the peace or disturb the

public tranquillity. It is necessary that the act contemplated should be a wrongful one. A

rightful act cannot be a subject matter of a proceedings under Sec. 107 even though it

may prove to be the cause of a breach of the peace or the source of disturbance to

public tranquillity. Sec. 107 is intended to safeguard the interests of the public in general

and against such persons who indulge in wrongful acts which may occasion the breach

of peace or disturb the public tranquillity. Before proceeding under Sec. 107, the

Magistrate will have to ascertain the legal rights of the parties and examine whether the

person against whom proceedings are intended is likely to indulge in wrongful acts. The

information received against the person must show strong probability of a breach of the

peace of disturbance to public tranquillity on account of the wrongful acts likely to be

committed therein and not a bare possibility. The provisions contained in Sec. 202 and

Sec. 203 of the Criminal Procedure Code do not apply to a petition or application given

to an Executive Magistrate for taking action under Sec. 107, as, such petition or

application, cannot be termed as a "complaint" under Sec. 2(d} of the Criminal

Procedure Code. It is open to the Magistrate to refer the petition or application to any of

his subordinate Magistrates or to police or otherwise for inquiry and report.

32

Magistrate must be satisfied that there is sufficient ground:

3.8 The fourth ingredient goes to show that the Magistrate can take steps

under this Section only if he is of the opinion that there is sufficient ground for doing so.

He cannot initiate the proceedings merely on receipt of certain information. He must be

satisfied from the information and he should be of the opinion that there is sufficient

ground for the proceedings. If the Magistrate concludes that the apprehension of breach

of the peace is not well founded, he need not take action. The phrase" in the manner

hereinafter provided" in the section refers to the procedure prescribed in Sections 111 to

124. Once proceedings are started under Sec. 107 and the Magistrate has issued orders

under Sec. 111 and the party appears before him the Magistrate has to hold an inquiry

under Sec. 116(1} and cannot drop the proceedings without such inquiry. When part of

evidence has been adduced, the Magistrate will not be justified in dropping the

proceedings without considering such evidence and recording a finding on the points

involved. The proceedings cannot be brought to an end by the Government withdrawing

from the inquiry. Similarly it is not open to drop the proceedings for the reason that the

police did not produce any witness.

Nature of proceeding:

3.9 Since a proceeding under Sec. 107 does not amount to prosecution of an

accused person of any offence, no suit for malicious prosecution can be filed by the

opposite party after the proceeding under Sec. 107 initiated against him at the instance

of the other party fails.

Proceedings under Section 108 of Criminal Procedure Code:

Security for good behaviour from person disseminating seditious matters

(Sec. 108) :

3.10 Section 108 provides for demanding a bond for maintaining good

behaviour in the following circumstances:

33

(i) An Executive Magistrate of First Class receives information:

(iii) that there is within his local jurisdiction a person who within or without

such jurisdiction either orally or in writing or in any other manner

intentionally disseminates or attempts to disseminate or abets the

dissemination of:

(a) any matter the publication of which is punishable under Section

124 A or Section 153 A or 153 B or Section 295 A of the Indian

Penal Code (45 of 1860), or

(b) any matter concerning a Judge acting or purporting to act in the

discharge of his official duties which amounts to criminal

intimidation or defamation under the Indian Penal Code (45 of

1860), or

(iii) that there is within his local jurisdiction a person who with or without such

jurisdiction makes, produces, publishes or keeps for sale, imports,

exports, conveys, sells, lets to hire, distributes, publicly exhibits or in any

manner puts into circulation any obscene matter such as is referred to in

Section 292 of the Indian penal Code (45 of 1860), and

(iv) The Magistrate is of the opinion that there is sufficient ground to proceed;

(v) then the Magistrate may in the manner hereinafter provided, require such

person to show cause why he should not be ordered to execute a bond

with or without sureties for his good behaviour for such period not

exceeding one year, as the Magistrate deems fit.

3.11 Ordinary residence of a person within the Magistrate's jurisdiction is enough

for invoking his jurisdiction, even though the person may be outside it at the time when

the order under Section 108 read with Section 111 is made. The Magistrate can take

action only, if, with reference to the information received, he forms the opinion that there

is sufficient ground for proceeding under this Section. In order to form such opinion he

has to determine two questions viz,

34

(a) Whether such a person has been a party to dissemination of objectionable

matter as enumerated in Sub-section (1) of Section 108; and

(b) Whether there is a fear of repetition of such offence on his part so as to

necessitate binding him down for good behaviour.

3.12 Though the Magistrate acts primarily on the information received, he must

apply his mind to the antecedents of the person and the surrounding circumstances so

as to form his opinion as to the need for taking action under section 108. The phrase, "in

the manner hereinafter provided' in the section refers to the procedure prescribed in

Sections 111 to 124 of the Code of Criminal Procedure.

Intentionally disseminates or attempts to disseminate or abets the

dissemination of:

3.13 The issue to be examined in any proceeding under Section 108 is whether

there has been an intentional dissemination, attempt of dissemination or abetment of

dissemination of the offending material and that whether there is a fear of repetition of

such offence by the person proceeded against, so as to necessitate binding him down

for good behaviour. In each case, the issue would be a question of fact, to be

determined with reference to the antecedents of the person and to surrounding

circumstances. The mere act of, or attempt to, or abetment of dissemination of the

offending material is not sufficient for proceeding against a person under this provision,

unless it has been done, attempted, or abetted with a particular intention, and the real

intention of the person must be looked at by the Magistrate before forming an opinion

about there being sufficient ground for proceeding under Section 108 against the person.

The intention of the person has to be gathered generally by the Magistrate from the

language of the offending material itself, but other evidence is also admissible.

Or in any other manner:

3.14 The words "Or in any other manner" are meant to provide for the

contingency where any offending material covered by Section 108 has been

disseminated by other means than either orally or in writing, e.g., by newspaper,

gramophone records, radio, television, Internet, Mobile Phones or other modern audio

visual media.

35

Scope:

3.15 The test under this Section is whether the person proceeded against has

been disseminating offending matter and whether there is a fear of the repetition of such

offence. In each case it is a question of fact which will have to be determined with

reference to the antecedents of the person and other surrounding circumstances. A

person comes within the scope of the section if he disseminates matter which reveals an

intention to promote feelings of enmity between classes.

Proceedings under Section 109 of Criminal Procedure Code:

Security for good behaviour from suspect persons (Sec. 109):

3.16 Section 109 of the Criminal Procedure Code reads as follows:

When an Executive Magistrate receives information that there is within his

local jurisdiction a person taking precautions to conceal his presence and that there is

reason to believe that he is doing so with a view to committing a cognizable offence, the

Magistrate may, in the manner hereinafter provided, require such person to show cause

why he should not be ordered to execute a bond, with or without sureties, for his good

behaviour for such period not exceeding one year, as the Magistrate thinks fit.

Bond for good behavior cannot be asked in a proceeding u/s 107)

Facts: While initiating proceedings under S. 107 Cr.P.C., the petitioners were directed

by the Taluka Magistrate to show-cause why they should not execute a bond for one

year with one surety and to furnish security of Rs. 2,000/- for good behaviour. It was

urged that in a proceeding under S.107, the petitioners cannot be asked to execute a

bond for being of good behaviour and the High Court:

Held: Proceedings were instituted against the petitioners under S.107 Cr.P.C., for

keeping peace and not for being of good behaviour as is contemplated under Ss.108,

109 or 110 Cr.P.C. In view of S.116(3) (a) Cr.P.C., which states that in the absence of

any proceedings instituted under Ss. 108, 109, 110 Cr.P.C., no person shall be directed

to execute a bond for maintaining good behaviour, the show-cause notice issued by the

36

Taluka Magistrate was held to be illegal.

(Shivalingawwa & Ors. V. State of Karnataka-1984(1) Kar . L. J. 321)

Ingredients of Section 109

3.16 The Section has the following ingredients

(i) an Executive Magistrate receives information

(ii) that a person within his local jurisdiction is taking precautions to conceal

his presence;

(iii) that there is a reason to believe that he is doing so with a view

to committing a cognizable offence; and

(iv) then the Magistrate may require such person to show cause why he

should not be ordered to execute a bond for his good behaviour with or

without sureties for such period not exceeding one year as the Magistrate

thinks fit.

Receives Information

3.18 The information must be credible and contain the necessary particulars

to enable the person proceeded against to meet the charge against him.

There is within his local jurisdiction a person

3.19 Action can be taken against any person who is concealing his presence with

a view to committing cognizable offence, if such person is taking precautions to conceal

himself within the Magistrate's local jurisdiction whether he comes from outside or is a

resident of such jurisdiction or has a well known residence. What is relevant is (a) the

presence of the person within Magistrate's jurisdiction, and (b) his taking precautions to

conceal himself within such jurisdiction. Residence of such person is therefore irrelevant.

37

Taking precaution to conceal presence with a view to Committing a

cognizable offence:

3.20 Now coming to Second and Third Ingredients i.e.,:

(i) taking precautions to conceal his presence; and

(ii) the concealment must be with a view to committing a cognizable offence.

Thus if one of them is absent, then there can be no order under Section.

109. Taking precautions for concealing one's presence merely to avoid observation is

not an offence, even though the concealment may be for avoiding observation by the

Police, or by a portion of the Society at large. This section should be used with proper

discretion and should never be tried to be applied to a person merely found walking at

night time, in a place which is open to the public or merely found trying to conceal his

identity by covering his face without trying to conceal his presence or merely telling a

wrong name and address to conceal his identity without in any way taking any

precautions for concealment of his presence. There must be some definite attempt at

concealment. The words "conceal his presence" are very wide and can cover cases

ranging from concealment of bodily presence in a house, or a grove, or a field, or under

a bridge, etc., to cases of concealing his presence by mask, or by disguising himself by

a uniform or in some other manner. Mere concealment would not justify an order under

this section unless it is resorted to with the object of committing a cognizable offence.

There must be some material on the basis of which the deductions could be made that

the concealment was for the purposes of committing a cognizable offence and mere

speculation would not be enough. The phrase in the manner hereinafter provided in the

section refers to the procedure prescribed in Sections 111 to 124 of the Code.

Proceedings under Section 110 of the Criminal Procedure Code:

Security for good behaviour from habitual offenders (Sec. 110):

Scope and object:

3.21 The object of this section is only preventive and not punitive. This section is

not intended to afford the police a means of keeping a suspected person under detention

38

until they are able to work out a case against him. Where a person has lived all his life in

a locality and has never even been accused before a court of law for any crime, far less

convicted, there is absolutely no justification for making any presumption that he is a

criminal, not to say, a habitual criminal, This section is intended to deal with ex-convicts,

or habitual criminals, and dangerous and desperate outlaws who are so hardened and

incorrigible that the ordinary provisions of the penal law and the moral fear of condign

punishment for crime are not sufficient deterrents or adequate safeguards for the public.

For proceedings under Section 110 there must be proof of number of convictions

regarding previous acts or course of conduct by evidence of general reputation. The

Magistrate commits illegality if he passes a final order for binding down the counter-

petitioner without passing a preliminary order under section 111 charging him under one

of the other of the clauses of this section and without holding a judicial enquiry as to the

truth or otherwise of the information received by him on securing his presence by issuing

summons or warrant under section 113. The Magistrate should not initiate a proceeding

against a person immediately after he had been acquitted of an offence unless a very

strong case is made out against him. The Magistrate cannot remand delinquent to

further custody in a proceeding under Section 110.

Credible Information

3.22 Credible information coming from a reliable source is the foundation of a

Magistrate's jurisdiction. The Magistrate cannot proceed unless there is such information

as is considered by him sufficient for taking action under this Section. There is no limit to

the nature or as to the source from which the information is derived, but an order under

this section should not be based on the Magistrate's personal knowledge or on mere

gossip and vague rumour.

3.23 As the charge against the person proceeded against would be the

information received by the Magistrate, the Magistrate must in the preliminary order refer

to all the materials so as to enable the person concerned to meet the charge. A local

inquiry is most appropriate before instituting proceeding under Section 110, but once the

accused are before the court, the case must be decided on the evidence alone and not

on the basis of the local inquiry.

39

Within his local Jurisdiction:

3.24 It is not necessary that the person should have a permanent residence

within the local limits of the magistrate's jurisdiction. The words "within his local

jurisdiction" do not mean residing within the jurisdiction, but only mean literally or

physically present within the territorial limit of the magistrate's jurisdiction at the time of

the proceedings. Having regard to the plain language of this section, it is clear that the

Magistrate is given power to deal with persons who have a general reputation as bad

characters and who happen to be within his jurisdiction, no matter whether they are

residents of a place within his jurisdiction or not. The reason is that the most dangerous

criminals have no well-known residence anywhere and wander from place to place and it

should be left in the power of the magistrate to deal with them where the police or the

magistrate could be sure, at any time, of finding them.

Habit or habitually:

3.25 Clauses (a) to (i) of this section would become applicable only if that person

is an offender in respect of any of the offences mentioned in these clauses by habit.

Both the words" Habit & Habitually" have been used in the sense of depravity of

character as evidenced by the frequent repetition or commission of offences. They mean

repetition, or persistence in doing an act, and readiness to commit them again whenever

there is an opportunity but do not include an inclination by nature for committing offences

which does not manifest itself in repeated commission of offences. Habit is proved by an

aggregate of acts, or a number of previous convictions, but not by only one or two

instances, or one or two previous convictions. The number of facts required for an

inference of habit would depend upon circumstances of each case. Habit can also be

proved by providing that the person has committed offences to such an extent that his

general reputation is that of a habitual offender, but mere suspicion should not be the

cause for such reputation.

Desperate and dangerous persons hazardous to the community: 3.26 In order to bring a person under this clause, it must be shown that he, has

such a reckless disregard for the safety of the person and property of his neighbours that

his being at large would be detrimental to the community. It is to be noted however that

40

the word "habit" or "habitually" not having been used in the present clause, a person

may be desperate and dangerous even if he is not a habitual offender. His desperate

and dangerous character is not dependant on the number of past offences or convictions

but on the nature of his conduct e.g., an attack against several person indiscriminately at

a time. It follows that such desperate character need not necessarily be proved by

evidence of specific Acts committed by him since such character can be proved by

evidence of general repute.

3.27 The characteristic of being a desperate and dangerous character is a

personal attribute and should be proved separately against every individual charged with

that attribute. A man of desperate and dangerous character in clause (g) means a man

who has a reckless disregard of the safety of the person and of the property of his

neighbours. Evidence of acts of extortion committed by a person, unless those acts were

accompanied by acts causing danger to life and property, is not sufficient to bring the

case under this clause.

3.28 The following persons, though they are undoubtedly persons of bad

character, do not come under this clause as men of "desperate and dangerous"

character:

A person who had been arrested on suspicion of the commission of a dacoity

and released; and habitual gambler, especially if he is a man of some means; a person

who had been annoying the neighbours in various ways by knocking at their doors at

night or throwing brickbats over the roofs, or who had been annoying respectable

women; a person who attempts to seduce married women and behaves indecently and

immodestly to them; a person who has been caught while committing adultery; a person

who is a nuisance to his neighbours, declines to pay debts, abuses his neighbours, and

makes indecent overtures to school boys ,who pass by his shop; a person of a litigious

disposition or a person, who promotes litigation and is said to have had considerable

influence with patwaris; a person who is found to be an undisciplined local dictator. A

man who is quarrelsome engages in petty assaults with his neighbours and throws

bricks into people's houses or on to the streets does not come within this clause, The

fact that a man is by his temperament quarrelsome and that he occasionally gives

threats does not make him a desperate character or one who is dangerous to the

community.

41

Bond with Surety:

3.29 Surety is obligatory and not optional as in sections 107, 108 and 109 of the

Code. The phrase "in the manner hereinafter provided" in the section refers to the

procedure prescribed in sections 111 to 124 of the Code.

3.30 Sec. 109 and 110 overlap one another. A fact not relevant under Section 109

may form the basis of a proceeding under Section 110. But a person cannot be bound

over under both Section 109 and 110, nor can an order be passed under Section 110

against a person during the continuance of an order under Section 109.

SECURITY FOR GOOD BEHAVIOUR FROM HABITUAL OFFENDERS:

110(f)- habitually commits or attempts to commit or abets the commission of-

(i) any offence under one or more of the following Acts, namely:-

(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);

(b) the Foreign Exchange Regulation Act, 1973(46 of 1973);

(c) the Employees Provident Funds [and Family Pension Fund] Act, 1952

(19 of 1952);

(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954);

(e) the Essential Commodities Act, 1955 (10 of 1955);

(f) the Untouchability (Offences) Act, 1955 (22 of 1955);

(g) the Customs Act, 1962 (52 of 1962); † (***)

*(h) the Foreigners Act, 1946(31 of 1946); or

(ii) any offence punishable under any other law providing for the prevention of

hoarding or profiteering or of adulteration of food or drugs or of corruption, or

† The word or omitted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.14 (to be effective from the date of its notification).

* inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.14 (to be effective from the date of its notification).

Order under Section 111 of the Criminal Procedure Code

3.31 When a Magistrate gets information as shown in Sec. 107 (1), 109 and 110

and he is of the opinion that there is sufficient ground for proceeding further, the first

thing he has to do, is to pass order in writing under Sec. 111, setting forth:

42

(i) the substance of the information received;

(ii) the amount of the bond to be executed;

(iii) the term for which it has to be in force; and

(iv) the number, character and class of sureties, if any required.

The order under Sec. 111 is of the nature of a charge and it can be amended

if found expedient on a subsequent date. The only condition is that a copy of such

amended order shall be served on the person proceeded against and if any cause is

shown by him against such amended order, it can be taken into account.

3.32 If such person is present at the court, the order shall be read over and

explained to him (Sec. 112). If such person is not present in the court, the Magistrate

shall issue him a summons requiring him to appear (Sec. 113). If he is in custody, a

warrant may be issued directing the officer in whose custody he is, to bring him before

the court. Proviso to Sec. 113 states that whenever it appears to such Magistrate, upon

the report of a police officer or upon the information (the substance of which

report/information shall be recorded by the Magistrate), that there is reason to fear the

commission of a breach of the peace, and that such breach of the peace cannot be

prevented otherwise than by the immediate arrest of such person, the Magistrate may at

any time issue a warrant for his arrest.

Summons or warrant to be accompanied by order under Section 111.

3.33 It is obligatory that every summons or warrant issued under Sec. 113 is

accompanied by a copy of the written order of the Magistrate under Sec. 111 and is

delivered to the person to be served (Sec. 114). As an order passed under Sec. 111

forms the very basis of the proceedings under Sec. 107, any lapse to enclose the order

passed under Sec. 111 to the summons or warrant as provided in Sec. 114 would cause

prejudice to the person proceeded against. Sufficient time will have to be given to the

person proceeded to show cause against the order and to prepare his defence. The

provisions of Chapter VI of the Criminal Procedure Code relating to summons and

warrants apply to summons and warrants issued under the provisions of Chapter VIII of

Criminal Procedure Code. The person proceeded against may appear through a

43

Pleader, if the Magistrate dispenses with the personal appearance of the person

proceeded against (Sec. 115).

Bond for maintaining Law and Order outside the Scope of S. 107

Section 107 of the Code requires that when an Executive Magistrate receives

information that any person is likely to commit a breach of the peace or disturb the public

tranquility or to do any wrongful act that may probably occasion a breach of the peace or

disturb the public tranquility and is of opinion that there is sufficient ground for

proceeding, he may require such person to show cause why he should not be ordered to

execute a bond for keeping peace for such period not exceeding one year as the

Magistrate thinks fit. Section 111 of the Code requires that when a Magistrate acting

under Section 107 deems it necessary to require any person to who cause under

Section. 107 he shall make an order in writing setting forth the substance of the

information received, the amount of the bond to be executed, the term of which it is to be

in force and the number, character and class of sureties, if any required. (para 4)

The order in question is clearly erroneous to the extent or calling upon the

petitioners to execute a bond as stated therefore maintaining law and order at

Hirehadagli village for a period of one year. To this extinct, the order in question is

beyond the scope of section 107 of the code (Para 5)

(Nandi Bevoor Virupakshappa Vs. State of Karnataka - 1985(4) KLJ 4025)

3.34 When an Order under Sec. 111 has been read over or explained under Sec. 112

to a person present in the court or when any person appears before the Magistrate in

compliance with a summons or warrant issued under Sec. 112, the Magistrate shall

proceed to inquire into the truth of the information upon which action has been taken and

to take further evidence as may appear necessary [Sec. 116 (1)].

ORDER UNDER SECTION 111

Under S.111 it is obligatory on the Magistrate to set out in the preliminary order

the substance of the information received. Failure to do so vitiates the proceedings.

(1976) 2 Kar.LJ.458 rel on. The preliminary order contemplated under S.111 is a judicial

order in the nature of a charge, it has to be drawn up carefully and must contain so much

44

of the information received by the Magistrate as would enable the person or person

sought to be proceeded against to know as to what cause he or they have to show.

(Chandsab v. State of Karnataka Crl. R.P.432 & 433/79 dt.3.3.80- 1980(2) Kar. LJ

Short Notes 112)

INQUIRY u/s 116

3.35 Sec. 116 (2) provides that as far as practicable, the inquiry shall be made in

the manner prescribed for conducting trial and recording evidence in summons cases.

(Chapter XX & Chapter XXIII of the Code). The inquiry contemplated in Sec. 116 is a

judicial inquiry and should be based on legal evidence. Sec. 274 of Criminal Procedure

Code which deals with the recording of evidence in summons cases and inquiries

prescribes that as the examination of each witness proceeds, the Magistrate shall make

a memorandum of the substances of his evidence in the language of the Court. A

proviso is however made to the effect that when the Magistrate is unable to make such a

memorandum himself, he shall after recording the reasons for his inability, cause such

memorandum to be made in writing or from his dictation in open court. The

memorandum shall be signed by the Magistrate and will form part of the record.

Interim Bond

3.36 Sub-Section (3) of Sec. 116 provides that if the Magistrate concerned thinks

fit that immediate measures are necessary pending completion of the inquiry, for the

prevention of the breach of peace or disturbance to public tranquillity, he may for the

reasons to be recorded in writing direct the person in respect of whom an order under

Sec. 111 has been made, to execute a bond with or without sureties for keeping the

peace until the completion of the inquiry and may detain him in custody until such bond

is executed or in default of execution, until such inquiry is concluded. Proviso to Sub-

sec. (3) of Sec. 116 stipulates that conditions of such a bond whether as to the amount

thereof or as to the provisions of sureties or number thereof or the pecuniary extent of

their liability shall not be more onerous than those specified in order under Sec. 111. An

order under Sec. 116 (3) can be passed only in the case of an emergency where

immediate measures are necessary. It cannot be resorted to as a matter of routine. The

Magistrate need not record any evidence or hold an inquiry before passing an order

under Sec. 116 (3). He can act upon the application or the sworn testimony of a Police

Officer to the effect that an emergent situation exists and it is necessary to take

45

immediate measures. It should be noted that an order under Sec. 116 can be caused

only in a case where an order under Sec. 111 has been passed and not otherwise. In

order to invoke powers under Sec. 116 (3), it is necessary that an inquiry under

Sec. 116 (1) should have commenced.

IMPORTANCE OF PRELIMINARY ORDER UNDER SECTION 111

Secs. 106 to 119 reveal that a clear distinction is made in the object of obtaining

security under Secs, 106 & 107 of the Code on the one had, in which case the security

to be obtained is one for keeping the peace and Secs. 108, 109, and 110 of the code on

the other, in which case the security to be obtained is one for good behaviour.

An order which is bereft of the requirements of Sec.111 of the Code, such as, the

substance of information received, the amount of the bond to be executed, the terms for

which it is to be in force and the number, character and class of sureties (if any)

required, would not be valid.

A legal and valid preliminary order under Sec.111 is sine qua non for initiating the

proceedings under Sec.107 of the Code. In the other words, in a proceeding under

Sec.107 of the Code, the preliminary order under Sec.111 is the starting point or the

very foundation of it. Taking action u/sec.107 before making a preliminary order under

Sec.111 is a serious defect.

If the proceeding instituted is invalid in law for failure to comply with Sec.111 of

the Code, then the other proceedings taken subsequent thereto will not have any legal

sanction.

Where in a proceeding under sec.107, the order under Sec.116(3) is devoid of

reasons for calling upon the respondents to enter into interim bonds and called upon the

respondents to execute bonds for good behaviour, which is specifically prohibited by

CI(a) of the proviso, the order is invalid.

(Thimmaiah T.N. & Ane. V. State of Karnataka 1978(2) Kar. L.J. 324)

46

APPLICATION OF MIND BY MAGISTRATE

Criminal P.C 1974, Ss. 107, 111, 113, 116 – Proceedings under – Initiation of –

application of mind by Executive Magistrate to facts of case – Necessary – Execution of

bond – order passed without complying with statutory revisions – Illegal.

On receipt of the information given by the police the Magistrate is bound to

record him opinion as contemplated by S.107 and thereafter has to prepare the notice

under S.111 which must contain the substance of the information so received and is

bound to send the copy of such notice along with the summons to the person concerned.

The stage for passing any order under S. 116(3) can arise only after the summons and

the notice as required by Ss.111 and 113 have been served on the concerned persons

and the inquiry has commenced. (Para 9)

In the instant case on receipt of information from police the Magistrate made up

is mind to required the concerned person to execute bonds as an immediate necessary

measure under S. 116(3) of the Code. The Executive Magistrate has not recorded his

satisfaction with regard to the facts as to whether there exists any apprehension of

breach of peace at their hands before directing the issuance of notice to them even in

the notices prepared under S.111 the substance of the allegation against them has not

been incorporated and only a vague fact has been mentioned in the notice that they had

been threatening the complainant. Nothing has been mentioned as to when such

threats have been held out.

Held that the question of taking any immediate measures against the concerned

persons can arise only after they had appeared and the Magistrate is to be satisfaction

that some immediate measures are required to be taken and for that purpose any bond

is required to be obtained from them under S.116(3) or not. The orders made by the

Executive Magistrate on the information by police and the notices issued under S. 111

were not in consonance with the provisions of law (Para 6,10)

(Tavinder Kumar and another v The State – 1990 Cr L J 40)

47

Joint Inquiry:

3.37 Sec. 116 (5) provides that a joint inquiry can be held against two or more

persons where they have been associated together in the matter under inquiry. The

discretion to hold a joint inquiry arises only in such cases where the persons proceeded

against have acted in a concerted manner or there is something in the nature of

conspiracy in respect of the various acts alleged against them. It is essential that the

person should have been associated in the matter under inquiry. Though Sub-sec. (5) of

Sec. 116 provides for a joint inquiry, the court has still a duty to give separate and

distinct findings against each one of the persons associated on merits of the evidence.

Time limit for Inquiry:

3.38 Sec. 116 (6) prescribes a time limit for the inquiry. The inquiry must be

completed within a period of six months from the date of commencement, failing which

the proceedings shall stand automatically terminated on the expiry of that period, unless

for special reasons to be recorded in writing, the Magistrate otherwise directs. If a

person is detained pending such inquiry, the proceedings against him shall stand

terminated, on the expiry of the period of six months of such detention [Proviso to Sec.

116 (6)]. It is open to the aggrieved party to appeal to the Sessions Judge against any

direction passed by the Magistrate under Sec. 116 (6) permitting the continuance of the

proceedings beyond the period of six months and the Sessions Judge can vacate the

direction if he is satisfied that it was not based on any special reason or was perverse.

Order to execute Bond:

3.39 If after inquiry, it is proved, that it is necessary that the person proceeded

against should execute a bond with or without sureties, the Magistrate shall make an

order accordingly. The order shall, however, be subject to the directions contained in

provisions (a), (b) and (c) of Sec. 117 which are as follows:

(a) No person shall be ordered to give security of a nature different from or of

an amount larger than or for a period longer than that specified in the

order made under Sec. 111 of Criminal Procedure Code.

48

(b) The amount of every bond shall be fixed with due regard to the

circumstances of the case and shall not be excessive, and

(c) If the person proceeded against is a minor the bond shall be executed by

his sureties (Sec. 117).

3.40 If, however, after inquiry, it is not proved that it is necessary that such person

should, execute a bond, the Magistrate shall make an entry on the record to that effect

and discharge him or if he is in custody only for the purpose of the inquiry, shall release

him (Sec. 118).

3.41 If the person In respect of whom an order requiring security is made under

Sec. 117, is at the time such order is made, sentenced t6 or undergoing imprisonment,

the period for which surety is required, shall commence on the expiry of such sentence.

In other cases such periods shall commence on the date of such order unless the

Magistrate for sufficient reasons fixes a later date (Sec. 119). The bond executed by

such a person shall bind him to keep the peace (Sec. 120). A Magistrate may refuse to

accept any surety offered or may reject any surety previously accepted by him or by his

predecessor on the ground that such surety is an unfit person for the purposes of the

bond. However, before refusing to accept or reject any such surety, the Magistrate must

hold an inquiry on oath into the fitness of the surety or cause such inquiry to be held and

a report made thereon by the Magistrate subordinate to him. Before holding the inquiry,

the Magistrate will have to give reasonable notice to the surety and to the person, by

whom the surety was offered and shall have to record the substance of the evidence

adduced before him on consideration of evidence so adduced before him or before the

Magistrate to whom he had referred the matter and the report of such Magistrate, if the

Magistrate is satisfied that the surety is an unfit person for the purpose of the bond, he

shall make an order refusing to accept or reject as the case may be such surety and

record his reasons for so doing. Before passing an order rejecting any surety who has

previously been accepted, the Magistrate shall issue summons or warrant as deemed fit

and cause the person for whom the surety is bound to appear to be brought before him

(Sec. 121).

49

Crl.P.C 1973 (2 of 1974) Ss 111 & 116(3) – Direction to execute bonds stage for M.S.

Nesargi & Nagappa JJ : When respondents appeared before the magistrate in

response to the preliminary order issued under S.111 Cr.P.C at that stage the magistrate

cannot direct the respondents to execute bonds. He had no power to direct the

respondents to execute bonds as he had not passed an order under S.116(3) Cr.P.C.

(State of Karnataka V/s Kumar 1981 (1) KLJ 21)

Consequences of not furnishing security:

3.42 The consequences of not furnishing the required security are found in Sec.

122 (1) of Criminal Procedure Code. If a person against whom an order has been

passed fails to furnish security as per the order passed under Sec. 117 on or before the

date on which the period of such security commences, he shall be committed to prison.

If such a person is already in prison, the detention will continue until the period for which

the order has been passed expires.

3.43 The consequences of the breach of conditions of surety bond are found in

Sec. 122 (1) (b). If any person after having executed a bond, with or without sureties for

keeping the peace in pursuance of any order of the Magistrate under Section 117 is

proved to the satisfaction of the Magistrate or his successor in office to have committed

breach of bond, the Magistrate may after recording the grounds of such proof to order

that the person be arrested and detained in prison until expiry of the period of the bond

and it shall be without prejudice to any other punishment or forfeiture to which the said

person is liable to in accordance with law.

3.44 When a person has been ordered to give security for a period exceeding one

year, the Magistrate shall, if he does not give security, issue a warrant directing him to

be detained in prison pending orders of the Sessions Judge and the proceedings shall

be laid without delay before the Court [Sec. 122 (2)]. Such court after examining such

proceedings and requiring from the Magistrate any further information or evidence which

it thinks necessary, and after giving the concerned person a reasonable opportunity of

being heard may pass such order as it thinks fit. Under no circumstances can a person

be imprisoned for failure to give security for more than three years [Sec. 122 (3)]. Sub-

sec. (4) of Sec. 122 provides that if there is a joint inquiry and if the case of any of them

is referred to the Sessions Judge, as provided under Sub-sec. (2) of Sec. 122 the case

50

of other person shall also have to be referred. Under Sub-Sec. (5), the Sessions Judge

has been invested with the power to transfer the proceedings laid before him to any

Additional Sessions Judge or Assistant Sessions Judge. The order passed by such

Additional or Assistant Sessions Judge would have the same effect as if passed by the

Sessions Judge. The person against whom an order of imprisonment is passed for

default in furnishing security can furnish the security to the officer in charge of the jail

also. Under Sub-sec. (6) such officer in charge of the jail shall have to refer the matter to

the court or Magistrate who made the order and shall have to await the orders of such

court or the Magistrate. The nature of imprisonment for failure to give security for

keeping the peace shall be simple [Sec. 122 (7)].

3.45 Whenever the District Magistrate is of the opinion that a person imprisoned for

failing to give security, may be released without hazard to the community or to any other

person, he may order for the release of such person, in cases where the order has been

passed by the Executive Magistrate under Section 117 [Section 123 (1 )]. An order of

discharge made under this section may be without any conditions, or on any condition,

which such person accepts [Sec. 123 (3)]. In case the conditions are prescribed, the

same shall cease to be operative on the expiry of the term for which such person was

ordered to give security. If any of the conditions on which a person is discharged, are not

fulfilled, the District Magistrate may cancel the same [Sec. 123 (5)]. On such

cancellation of a conditional order, the person may be rearrested by any Police Officer

without warrant and shall thereupon be produced before the District Magistrate. Where

the order under Sec. 117 has been passed by the. Executive Magistrate, unless such

person gives security in accordance with the terms of the original order for the unexpired

portion of the term, the District Magistrate may remand him to undergo imprisonment for

such unexpired portion. [Sec. 123 (7)]. A person remanded to prison under Sec. 123 (7)

may be released at any time on giving security in accordance with the terms of original

order, before the District Magistrate / Executive Magistrate [Sec. 123 (8)]. The District

Magistrate may also cancel the bond for keeping peace or good behaviour at any time,

for sufficient reasons to be recorded in writing [Sec. 123 (9)]. The circumstances under

which the power of cancelling a bond is not enumerated in this section. The two possible

circumstances upon which such cancellation could be made are:

(a) If the Magistrate's order demanding execution of the bond was not legal

or proper, e.g., there was no ground for the view that a breach of peace

51

or any 'of the relevant offences was likely, so that the bond should not

have been required or that the order was void.

(b) Circumstances, which render the continuance of the bond unnecessary,

e.g., apprehension of breach of peace has since ceased.

The District Magistrate may also make an order reducing the amount of

security, or the number of sureties or the time for which security has been required, in

case of persons imprisoned for failing to produce security [Sec. 123 (2)].

Right of surety to cancel bond

3.46 A surety has a right to apply to the court to cancel the bond executed by him

[Sec. 123 (10)]. When such application is made, the court shall have to issue summons

or warrant as it thinks fit, requiring the person for whom such surety is given is bound to

appear before it. When such person for whose appearance a summons or warrant has

been issued under proviso to Sub-sec. (3) of Sec. 121 or under Sub-sec. (10) of Sec.

123, appears before the Magistrate, he shall cancel the bond executed by such person

and shall order such person to give, for the unexpired portion of such bond, fresh

security of the same description as the original security.

000

52

CHAPTER – IV

UNLAWFUL ASSEMBLIES

4.1 An important branch of preventive provisions contained in the Criminal

Procedure Code deals with an assembly which is unlawful or which is likely to cause a

breach of the peace. Sec. 129 of the Code empowers any Executive Magistrate or an

officer in charge of a police station to command such an assembly to disperse.

Dispersal of assembly by use of civil force:

4.2 'Unlawful assembly' has been defined in Sec. 141 of the Indian Penal Code.

If an assembly comes within the meaning of this provision. there would be no difficulty

for the Magistrate to command it to disperse. It depends upon the Magistrate to assess

at what point of time it can safely be held that the assembly which has been lawful from

its inception is exhibiting a pattern of behaviour which could lead one to think that it is

likely to cause disturbance of public peace. It is not sufficient if in the opinion of the

Magistrate the lawful assembly is showing such behaviour that is likely to cause

disturbance of public peace. In arriving at a conclusion whether the assembly is likely to

cause disturbance of public peace, the conduct and behaviour of the assembly shall

have to be considered objectively and thereupon an order shall have to be issued

commanding the same to disperse. Whether the command is legal or not depends upon

the conduct or behaviour of the assembly preceding the command and not on the

character of events that follow the command.

When to employ force:

4.3 If any assembly which has been commanded to disperse does not disperse

or conducts itself in such a manner as to show a determination not to disperse, the

Executive Magistrate or Police Officer concerned may employ force to disperse it. He

53

may also seek the assistance of any male person and if necessary arrest and confine

persons forming part of such assembly. Any male person when called upon by the

Magistrate or Police Officer demanding his aid is bound to assist. (Sec. 37 of Criminal

Procedure Code). For disobeying the command to disperse in case of an unlawful

assembly, the offenders are punishable under Sec. 145 of the I.P.C and in case of any

other assembly, the offenders are punishable under Sec. 151 of the Indian Penal Code.

4.4 Before resorting to force. it would be appropriate to arrest such of the persons

whom the Magistrate considers to be the ring-leaders or important persons and see

whether the situation can be effectively dealt with. If the assembly persists in holding

together and exhibits determination or a firm behaviour not to disperse the next proper

step would be to give a warning and if inspite of the warning it persists, then it would be

appropriate to use force.

4.5 It Is impor1ant to know the distinction between Sub-section (1) and Sub section (2)

of Soc. 129. Under Sub-section (2) of Section 129 even if an assembly has not been

commanded to disperse, the Magistrate would be having the power to disperse the

same if it conducts itself in such a manner as to show determination not to disperse.

Criminal P.C., S.144, S.129 – POLICE ATROCITIES – RIGHT TO LIFE –Unlawful

assembly – Firing by D.A.R. Police without lawful orders from authorities – Death of one

person – Vicarious liability of State Govt. – State must compensate the damages caused

to dependants of deceased.

Act of State – Firing by police on unlawful assembly without valid order – Act could not

be said to be in exercise of sovereign power of State.

Police firing – No valid orders – Killing one person – State vicariously liable.

Right to life – Unlawful assembly – Police firing without lawful orders killing one person –

State must repair damage done by its officers.

Constitution of India, Art. 21, Art. 162, Art. 166

Karnataka Police Manual, Cl. 1180.

54

Using Force without Valid Orders

Where a person was killed in firing opened by District Armed Reserve Police who

were called out of apprehension of disturbances to control the unruly mob but there was

no sufficient evidence to show that the mob had become uncontrollable and resorted to

violence that might have necessitated opening of fire and it was clear from evidence of

Taluka Executive Magistrate and Officer-in-Police Station that neither of them had given

orders of opening of fire and eye-witnesses had given several different versions of

incident which were inconsistent with one another, it was patently clear that the firing

could not be said to be done in delegation of the sovereign power of the State and State

could not plead immunity on this ground. Though the policemen were employed by the

State to quell rioting, if necessary by use force, the very exercise of their power

independently of any lawful order from the competent Police Officer or the Magistrate,

cannot be considered as an act that protects them under the sovereign powers of the

State. (Paras 10, 12, 13, 15. 16)

(State of Karnataka v. B. Padmanabha Beliya KARNATAKA HIGH COURT - 1992

CRI.L.J.634)

Use of armed forces to disperse assembly:

4.6 If the unlawful assembly does not disperse by the use of Civil force as

contemplated in Sec. 129, then the Magistrate of the highest rank, who is present may

cause it to be dispersed with the help of the armed forces. Any officer in command of a

group of persons belonging to the armed forces, may be called upon to disperse such

assembly with the help of the armed forces under his command, and to arrest and

confine such members forming part of the assembly as the Magistrate may direct or to

arrest and confine the members in order to disperse the assembly or to have them

punished according to law. Every such officer shall obey the requisition of the Magistrate

and use minimum force and cause minimum injury to person and property necessary to

disperse the assembly and arrest and detain such persons (Sec. 130).

55

Power of certain armed force officers to disperse assembly: 4.7 When (1) public security is manifestly endangered by such assembly and (2)

no Executive Magistrate can be communicated with, any commissioned or Gazetted

Officer of the Armed Forces may disperse such assembly with the help of the armed

forces under his command and may arrest and confine any person forming part of it. But

if, while he is acting under this section it becomes practicable for him to communicate

with an Executive Magistrate, he shall do so and shall thenceforward obey the

instructions of the Magistrate, as to whether he shall or shall not continue such action

(Sec. 131).

Protection for acts done In good faith:

4.8 For the acts done in good faith under the provisions of Sec. 129 and Sec.

130, protection has been given under Sec. 132. In order to prosecute any Executive

Magistrate for any act done under the provisions of Sec. 129 and Sec. 130, previous

sanction of the Government would be necessary.

Dispersal of Mobs and Mob Firing:

4.9 The following instructions regarding dispersal of Mobs and Mob Firing

incorporated in Order No. 1180 of Karnataka Police Manual, Vol. II, are reproduced

below for the guidance of Executive Magistrates:

"1180. (1) ...

(2) An unlawful assembly may be ordered to disperse by a Magistrate or

an Officer-in-charge of a police station and, when so ordered, it is the duty of the

members of the unlawful assembly to disperse. Any Police Officer may, without warrant

assert the members of an unlawful assembly and thus disperse the assembly. The

following points have to be carefully remembered:

(a) The Police must invariably make it a point to secure the presence of a

Magistrate where a breach of the peace necessitating the use of force is

anticipated.

(b) Where an actual situation arises and a Magistrate if present at the spot,

he should be in complete charge of the situation, and he has in law all the

56

necessary legal powers to order any Police Officer to assist him in

handling the situation.

(c) The senior most Police Officer present is bound to assist the Magistrate

by mobilizing the available Police Force and utilising it to maximum extent

possible.

(d) When the Magistrate is present., the Officer in command of the police will

act as ordered; but when he is alone and acting on his own authority, he

shall understand distinctly that no firing of any kind can be commenced

until some overt act of violence is committed by the rioters.

(e) If the crowd becomes defiant and the use of tear gas, lathi charge or both

are inexpedient or fail in their purpose, resort may be had to the use of

fire-arms. The Magistrate is responsible for taking a decision as to when

an unlawful assembly has to be dispersed by force and also as to the kind

of force to be used. As far as possible, use of tear smoke or lathi charge

or both should be made before resorting to the use of fire-arms. Lathi

charge should not be attempted if the strength of the police force is not

adequate to create an effect on the crowd.

(f) In order that a Magistrate accompanying the police during disturbances

may be marked out as such, he will wear on the right arm above the

elbow, a distinctive arm band "4" wide and red in colour with the letter "M"

in blue about 2 1/2" high.

(g) A definite opinion must be formed by the Officer ordering the dispersal of

the unlawful assembly by force, that it could not be dispersed or harm

prevented without the use of the type and amount of force actually used.

He should be able to say that but for the use of the type and amount of

force actually used, the unlawful assembly would have caused a breach

of the peace or violence to person and property or loss of life. The point to

be borne in mind is not merely that force was necessary but also that the

kind and amount of force actually used was necessary.

(h) The use of force should not be attempted if the force available for use is

57

not adequate to control and resist the unlawful assembly, for it will be

foolhardy invitation to certain disaster.

(i) After the Magistrate has decided on the kind of force to be used, the

officer in charge of the Police is solely responsible for deciding the exact

amount of force to be used, the manner of using it and the settling of the

details of the operations connected with the use of the force; the Police

Officer should, of course, bear in mind the principle that no more force

than is necessary should be used.

(j) The order of fire shall be given only in the last resort, when it is

impossible to disperse the mob by any other means; but when the order

is given, the firing shall be at once effective, and sufficient, with the

minimum of injury, to convince the crowd of the necessity of immediate

dispersing.

(k) When a police party is formed for dispersing an unlawful assembly, it

should be numbered and told off into two or more sections, if the size of

the party and the time available admit of it. Bayonets must be fixed as

soon as possible.

(l) All commands to the police are to be given by the Officer in command of

the party. The police are not on any account to fire except by word of

command of their officer, who is to exercise a humane discretion

respecting the extent of the line of fire.

(m) The Magistrate shall communicate his orders, as a general rule, to the

police through the Police Officer in command.

(n) As soon as it becomes necessary to resort to the use of firearms with

reference to Clause (e) above, the officer in command of the party will

give the order to load with bail and will bring the men to the Ioading

position. This will prevent the party from being rushed. on while the crowd

is being warned.

(o) Officers commanding police parties will, on every occasion, when

employed in the suppression of a riot or enforcement of the law, ensure

58

that the fullest warning is, if feasible given to the mob in a clear and

distinct manner before any order is given to use tear gas or lathis or fire-

arms, and Use the most effectual means to explain beforehand to the

people assembled that if they do not disperse within the specified period,

fire with live ammunition will be opened on them. Such warnings when

conveyed must be capable of being heard by the riotous mob. The nature

of the instrument to be used for conveying such warning would. therefore,

depend upon the noise created by the mob at the relevant time, as a

result of their shouting, hooting and yelling, its size, the distance at which

it is placed to the person conveying the warning and the various other

factors. If the size of the mob is small or even if it is a huge, silent and

concentrated crowd at one place, a megaphone might perhaps be

sufficient while on the contrary if the crowd is a huge crowd occupying a

vast area, the use of loud-speaker may be warranted.

(p) If, after being warned, the mob ;refuse to disperse, the order to fire may

be given. If the Officer in command of the party is of the opinion that it will

suffice if only one or two files fire, he will give orders accordingly,

specifying the files that are to fire. It, however, he considers that this will

be insufficient, he will give the word of command to one or more sections

to open fire. The fire of each section will be given by the regular word of

command of the officer in-charge of the party.

(q) Blank cartridges and buck-shot shall not be issued to the police employed

in suppressing a riot. When fire is to be opened, the responsible police

officer shall decide the minimum number of rounds to be fired to achieve

the desired effect in the circumstances and shall give precise orders

accordingly to the particular men or files who are to fire and number of

rounds to be fired and shall clearly specify the target. He shall further

ensure that his orders are not exceeded and that no firing contrary to or

without orders takes place. Whatever volume of fire is ordered, it shall be

applied with the maximum effect.

(r) Under no circumstances should a warning shot be fired in the air, nor

should the fire be directed over the heads of the crowd. Aim should be

59

kept low and directed against the most threatening part of the crowd.

Firing should cease the instant that it is no longer necessary.

(s) Files or sections ordered to fire shall load immediately after firing without

further word of command until the order to cease firing is finally given.

(t) Firing should be ceased the moment the rioters show signs of dispersing,

and all help should immediately be rendered to tend and convey the

wounded to the hospitals.

(u) An armed force should never be brought so close to a large and

dangerous mob as to risk its either being overwhelmed by numbers or

being forced to inflict heavy casualties. Firing should be carried out from a

distance sufficient to obviate the risk of being rushed on and to enable

strict fire control to be maintained.

(v) A police officer below the rank of Station House Officer has no power to

disperse such an assembly himself, but he may arrest any person without

a warrant for being a member of an unlawful assembly.

(w) In any situation where the police are compelled to deal with unlawful

assemblies in different places of the same village or town, it would be

necessary to secure, as far as possible, the presence and permission of a

Magistrate before resorting to the use of firearms for dispersing any or all

of such assemblies.

(x) Riot flags should be taken when Armed Reserve are called out in

apprehension of disturbances and, before firing or any other means of

dispersal is resorted to, should be hoisted before the mob in a position in

which the inscriptions on them are clearly visible.

(y) The Police used for dispersing mobs should wear uniforms, including

boots, putties and steel helmets. The tear gas section and the armed

party protecting the tear gas section should wear anti-gas respirators. The

police force should be trained to exercise strict restraint and self-control

even under gravest provocation and must under no circumstances take

60

action in a retaliatory or revengeful spirit. On occasions when fire arms

have been used against unlawful assembly it should be the duty of the

magistrate if one is present, and in his absence of the senior most Police

Officer, to make adequate arrangements for the care of the wounded

persons for their removal to hospital for medical aid. First aid should be

rendered by the Police. The dead should be removed to mortuary for post

mortem examination under proper escort.

(z) Superintendent should ensure that Sub-Divisional Officers, Inspectors

and S.H.Os.. see demonstrations of mob dispersal by the Armed Reserve

from time to time during their visits to the district headquarters. Such

demonstrations should invariably be given when meetings of Inspectors

are held."

Magisterial Inquiry In connection with opening of Fire:

4.10 Government letter No. HD 4 SAD 63, dated 25/3/1963 addressed to the

District Magistrate/ Additional District Magistrate deals with the inquiry to be conducted

by an Executive Magistrate in connection with the opening of Fire in defence of life and

property by the Police of suppress riots and other disturbances. The letter is reproduced

below for the guidance of the Executive Magistrates:

"Subject: Opening of Fire by Police to maintain law and order Holding of

Magisterial inquiry.

The Government of India, Ministry of Home Affairs have informed this State

Government that it is desirable that each incident of Police firing should be followed by a

Magisterial inquiry, Le.,' an inquiry by an Executive Magistrate, to ascertain that no

excesses are committed by the Police. I am to request that this procedure may be strictly

followed in future.

A copy of the magisterial inquiry report on each incident of Police firing

should be invariably sent to the Inspector General of Police, Mysore State, Bangalore,

who is required to supply this Government with information relating to Police firing in the

prescribed proforma for onward transmission to the Government of India.

61

The Inspector General of Police has been requested to instruct the

Superintendents of Police to bring to your notice each incident of Police firing, to enable

you to arrange for holding a Magisterial inquiry."

4.11 When an Executive Magisterial inquiry ordered, the inquiry is ordinarily

directed to the ascertainment of:

(i) how the trouble started;.

(ii) details of the incidents and the circumstances under which fire was

opened with an account of the agitation preceding it;

(iii) the strength and the kind of the mob and the weapons with which

it was armed;

(iv) the strength of the Police on the spot;

(v) the extent of damage caused to public and private property;

(vi) the number of police officers and others injured by the unlawful

acts of the mob;

(vii) whether the firing was individual or volley firing;

(viii) whether due warnings were conveyed to the mob

(a) before lathi charge was ordered;

(b) before tear gas shells were burst;

(c) before fire was opened;

(d) the means by which warnings were conveyed-megaphones,

loud-speakers, etc.

(e) were the warnings conveyed heard by the mob;

(f) how did the mob respond to the warnings each time it was

62

conveyed- whether they showed signs of dispersal or continued to

be defiant, jeering, hooting, and yelling.

(g) whether before fire was opened, were warnings conveyed

A. fire would be opened if the mob did not at once disperse;

B. that live ammunition would be used and

C. that firing would be effective.

(ix) Type of ammunition used;

(x) Number of rounds fired;

(xi) Whether the number of rounds fired, fired at one stretch or one after

another, after watching the reactions of the mob;

(xii) Was the firing ordered to be stopped the moment the mob showed

signs of dispersal;

(xiii) Whether the number of rounds fired and the bullet injuries reconcile;

(xiv) Who gave orders for fire- whether Magistrate or the senior most Police

Officer on the spot;

(xv) If the senior most Police Officer gave orders to open fire, was there time

to secure the Magistrate to the spot;

(xvi) Why in anticipation a Magistrate was not secured to the spot; Had goonda

elements mingled in the mob;

(xvii) Had any goondas been rounded up earlier; and

(xviii) Had goonda elements mingled in the mob;

(xix) Other inter-related matters.

4.12 For the ascertainment of the aforesaid facts and for adjudicating whether

firing was justified and if justified, whether or not it was excessive; it should be noted,

that the Executive Magistrate may examine:

I. Police Officers who were on the spot;

63

II. Police Officer or Magistrate who gave orders for:

(a) lathi charge;

(b) bursting tear gas shells, and

(c) for opening of fire

III. Police Officers who actually opened fire;

IV. Doctors who have treated the injured (Police Officers and others);

V. Spectators, if any;

VI. Residents of the locality where fire was opened;

VII. Private persons whose property was damaged by the mob;

VIII. Officials of the Electricity Department, Municipality and other

institutions, the property of which was damaged; and

IX. Other relevant witnesses

4.13 In order to secure the attendance of all such witnesses the Magistrate may

give public notice fixing dates and timings of the inquiry, calling upon the public that if

anyone desires to appear before him and give evidence touching the incidents he may

do so.

4.14 When in response to such notices witnesses appear before him, the

Magistrate may administer oath to them in accordance with the provisions of the Oaths

Act and in the forms prescribed by the High Court of Karnataka under the Act and record

their evidence.

4.15. It should be noted that the Magistrate may put such questions as he

may consider necessary for

(i) obtaining any 'clarification on any matters referred to by witnesses; and

(ii) testing the truth of their evidence and their credibility.

It should also be noted that the Magistrate ordered to conduct a Magisterial

inquiry may go round and inspect the places of the incidents and prepare a record of his

observations with regard to the damages caused to the public and private property and

all other relevant matters.

4.16 The Magisterial inquiry with regard to the incidents leading to the opening of

64

fire by the Police, ordered by the District Magistrate is not authorised by any provision of

the Code of Criminal procedure but it is only a fact finding inquiry, the inquiry being

mainly confined to the ascertainment of

(i) Whether the opening of fire by the Police was necessary and justified; and

(ii) Whether the firing. was excessive or only the minimum force was employed.

The Executive Magisterial inquiry is not directed to giving findings whether

the accused committed offences for which charge sheets are presented or being

presented to jurisdictional court.

000

65

CHAPTER - V

PUBLIC NUISANCES (SECTION 133)

5.1 Section 133 of Criminal Procedure Code enables a District Magistrate/ Sub-

divisional Magistrate or any other Executive Magistrate specifically empowered by the

State Government to deal with public nuisances. This power can be exercised either on

receipt of a police report or other information. Public nuisances which can be redressed

under this section fall under the following six categories:

Categories of Public Nuisance:

a) The unlawful obstruction or nuisance to any public place or to any way, river or

channel which is or may be lawfully used by the public;

b) The conduct of any trade or occupation, or keeping of any goods or

merchandise, injurious to the health or physical comfort of the

community;

c) The construction of any building, or disposal of any substance, as is likely to

occasion conflagration or explosion;

d) Any building, tent, structure or tree which is likely to fall and thereby cause injury

to persons;

e) Any tank, well or excavation adjacent to any such way or public place; and

f) Any dangerous animal which requires to be destroyed, confined or otherwise

disposed of.

5.2 A Magistrate may make a conditional order requiring the person causing

such obstruction or nuisance, or carrying on such trade or occupation, or keeping any

such goods or merchandise, or owning or possessing or controlling such building, tent,

structure, substance, tank, well or excavation owning or possessing such animal or tree,

within a time to be fixed in order to remove such obstruction or nuisance, etc., or if he

66

objects to do so, to appear before him or some other Executive Magistrate subordinate

to him at a time and place to be fixed by the order and show cause in the manner

provided why the order should not be made absolute.

Order should deal with removal of nuisance and not other things

A conditional order was passed requiring the appellant (baker) to demolish the oven and

chimney within 10 days. While confirming the conditional order, the Magistrate, however,

directed the appellant to cease carrying on the trade of a baker at the particular site and

not to lit the oven again. The proper order to pass would be to require the appellant to

demolish the oven and the chimney.

(Gobind Singh v. Shanti Sarup - AIR 1979 SC 143)

5.3 Sub-sec. (2) of. Sec. 133 provides that no order duly made by a Magistrate

under Sub-Sec. (1) of Sec. 133 can be called in question in any civil court.

The explanation given below the Section states that a 'public place' includes also

property belonging to the State, camping grounds and grounds left unoccupied for

sanitary or recreation purposes.

5.4 The remedies open for removal of public nuisances are:

(i) Filing of the suit under Sec. 91 C. P.C.

(ii) by prosecution for an offence under Chapter XIV of I.P.C; or

(iii) By initiating proceedings under Sec. 133 to 144 of Cr. P.C

Scope:

5.5 The provision of this Section should be sparingly used. The Magistrate must

be satisfied that speedy immediate prevention or remedy is necessary. A private person

has no right to insist that a Magistrate shall pass orders under Sec. 133. The

proceedings under Sec. 133 are not intended to settle private disputes between different

members of the public. . They are in fact intended to protect the public as a whole

against inconvenience. This section has no application to something which may become

a nuisance, that is, a potential nuisance, but applies only where the nuisance is in

existence in a way, river or channel which is or may be lawfully used by the public and

which is in existence in a public place.

67

5.6 The proceedings under Chapter 10 of Criminal Procedure Code are

summary in nature and are intended to enable the Magistrate to take immediate steps in

case of urgency or imminent danger to public interest. The danger intended to be

averted by the initiation of proceedings under this section should be' such that if no

action is taken and if the public is compelled to have recourse to ordinary law irreparable

damage would ensure. Section 133 enumerates certain specific invasion of public rights

which would be regarded as public nuisances. The section is an emergent one and

provides for summary remedy to deal with the public nuisances which are capable of

being removed. Proceedings under this Section are not originated by a complaint. Any

person. can give information to the Magistrate even though he is not a party to the

proceedings. When the Magistrate acts on the information he is acting 'suo-motto'. The

order issued by the Magistrate is a conditional order in conformity with Sec. 133 and not

a notice to show cause why action should not be taken, nor does it amount to an

injunction. This section' does not apply to private nuisances. The section applies only

when unlawful obstruction or nuisance is actually in existence and not to potential

nuisance.

Meaning of certain terms:

5.7 Before proceeding to pass an order under this section, the Magistrate shall

have enough material before him and there shall have to be a 'prima facie case'. He

shall consider whether the circumstances are such that a conditional order should be

passed. The words 'taking such evidence' do not necessarily make it incumbent on the

Magistrate to hold an inquiry before he makes an order under this Section. Whether

there is "unlawful obstruction" or not is a question of fact. The words "unlawful

obstructions" or "nuisance" appearing in Clause (a) have not been defined. The

definition of "public nuisance" given. in Sec. 268 of the I.P.C. will be applicable for the

purpose of this Section by virtue of Section 2 (y) of the Code. The word "channel" which

has not been defined in the Criminal Procedure Code has been interpreted in many

decisions to include a catchment area in the centre of which there is a water course. It

covers such flow of water as could be used for productive uses such as navigation or

irrigation. It is necessary for invoking the provisions of Clause (a) of Sub-sec. (1) of Sec.

133 that the way, river or channel from which obstruction is sought to be removed is one

which is or may be lawfully used by the public. It is not necessary that the way should be

68

one which is generally used by the public. The words "public place" have not been

defined in the Criminal Procedure Code but there is a definition in the I.P.C. That is a

'place' becomes public if the public have access to it. It depends upon the character of

the place itself and the nature of actual use made of it at a given time. For example, a

well belonging to a private individual which the public has been allowed to use for

drinking purpose. Railway platform is a public place at the time when the passenger train

arrives. The words "conduct of trade or occupation injurious to the health or the physical

comfort of the. community" appearing in Clause (b) of Sub-sec. (1) of Sec. 133 indicate

that the conduct or trade or occupation need not necessarily exist in a public place. What

is required is that such trade or occupation is injurious to the health or physical comfort

of the community.

Conditional Order:

5.8 The form of the conditional order is given in Form 20 of Second Schedule to

Criminal Procedure Code. The conditional order has to be in writing and should specify

the time within which the person directed should remove obstruction, etc., or if he

objects to do so appear and show cause. [Form No.20 is given in Appendix 2 (a)].

The Order:

5.9 The Order should not be vague or ambiguous. It should not be a general order.

It shall have to be directed to a particular individual or individuals. The order should be

such that the person reading the same should learn from its terms as to what he is

expected to do for complying with the order. If the order is to the effect that a portion of a

structure has to be demolished it should be specifically stated as to how much of the

structure should be removed. Clear indication or location of the portion of the structure to

be removed should, be mentioned. In case the order is against several persons, it

should be stated that what act is expected to be done by such of them unless it is stated

that all persons are jointly responsible for the obstruction and they are called upon to

remove the same jointly. The time specified in the order runs from the date of passing of

the order and not from the date of service and hence care should be taken to see that

reasonable time is given to the person against whom the order is made enabling him to

comply with the direction given.

69

Injury to health or considerable Physical discomfort of the public

It must be shown that public discomfort was considerable and large section of

public was affected injuriously – Magistrate is to conduct enquiry and decide whether

there was reliable evidence – Allegations that storage of red chillies in godown in

residential locality and loading, unloading thereof was causing physical discomfort and

injury to health of people in locality – SDM upon considering evidence of residents in

locality came to conclusion that people in general in locality suffered discomfort and

injury to physical health – It amounted to public nuisance. (Paras 8,10,11,12,15)

Comparison between Section 133 and Section 144

A comparison between the provisions of Ss.133 and 144 of the Code shows that

while the former is more specific the latter is more general. Therefore, nuisance special

provided in the former section is taken out of the general provisions of the latter section.

The proceedings under S.133 are more in the nature of civil proceedings than of criminal

nature. Sometimes there is confusion between S.133 and S.144 of the Code. While the

latter is a more general provision the former is more specific. While the order under the

former is conditional, the order under the latter is absolute. (Paras 10,13)

(Kachrulal Bhagirath Agrawal v. State of Maharashtra AIR 2004 SC 4818)

Imminent Danger to property

Criminal P.C. S.133 – Public nuisance – Applicability of S.133 – There must be

imminent danger – S.133 how different than S.144.

To bring in application of S.133 of the Code, there must be imminent danger to

the property and consequential nuisance to the public. The nuisance is the concomitant

act resulting n danger to the life or property due to likely collapse etc.

The object and purpose behind S.133 of the Code is essentially to prevent public

nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take

recourse immediately irreparable damage would be done to the public.

It applies to a condition of the nuisance at the time when the order is passed and

it is not intended to apply to future likelihood or what may happen at some later point of

time. It does not deal with all potential nuisance and on the other hand applies when the

nuisance is in existence.

70

It has to be noted that some times, there is a confusion between S.133 and

S.144 of the Code. While the latter is more general provision the former is more

specific. While the order under the former is conditional, the order under the latter is

absolute. The proceedings are more in the nature of civil proceedings than criminal

proceedings. (Para 8)

(State of M.P. v. Kedia Leather and Liquor Ltd - AIR 2003 SC 3236)

Final Order

5.10 After passing a conditional order, the Magistrate in his discretion, may direct

the person against whom order is passed and who objects to comply with the order to

appear before him or before some other Magistrate subordinate to him at a time and

place to be fixed by the order and show cause in the manner provided as to why the

order should not be made absolute. A combined reading of Sec. 133 (1) & 138 (2) shows

that depending upon the facts and circumstances of each case, the Magistrate may

modify a conditional order at a subsequent stage also. The death of a party to an order

makes the proceedings abate. If any action is contemplated against successors interest,

separate proceedings will have to be drawn up. The provisions contained in Sec. 326 of

the Code are applicable and the proceedings commenced by one Magistrate could be

continued by his successors in office. It is open to the District Magistrate/ Sub-divisional

Magistrate to transfer a proceeding. started under Sec. 133 to any other Executive

Magistrate by exercising their powers under Sec. 411.

Municipalities – Public Nuisance - Duty to abate

Financial Inability of Statutory body is not an excuse for non implementation of Order u/s 133 CrPC.

The Cr.P.C. operates against statutory bodies and others regardless of the cash

in their coffers, even as human rights under Part III of the Constitution have to be

respected by the State regardless of budgetary provision. Section 133, Cr.P.C., is

categoric, although reads discretionary. Judicial discretion when facts for its exercise are

present, has a mandatory import. The Magistrate‟s responsibility under Section 133 is to

order removal of such nuisance within a time to be fixed in the order. This is a public

duty implicit in the public power to be exercised on behalf of the public and pursuant to a

71

public proceeding. Failure to comply with the direction will be punish able under Section

188, I.P.C. If the Municipal Commissioner or other executive authority bound by the

order under Section 133, Cr.P.C., disobeys the same, it becomes punishable. The

imperative tone of Section 133, Cr.P.C., read with the punitive temper of Section 188,

I.P.C., makes the prohibitory act a mandatory duty.

(Ratlam Municipality v. Vardhichand AIR 1980 SC 1622 ; 1980 CrLJ 1075

= (1980)(4)SCC 162)

A self contained special Overrides Section 133

Criminal procedure Code 1973, Section 133- Public nuisance – Magistrate‟s power to

issue order for removal of – Whether that power, in cases of water pollution, has been

superseded by statutory power of Board constituted under water (Prevention and Control

of Pollution) Act, 1974? – Held, Yes.

Held: The Act water (Prevention and Control of Pollution) Act, 1974 is a self-contained

special enactment legislated with the avowed object of preventing and controlling water

pollution and maintaining or restoring the wholesomeness of water and the Board as the

statutory body is created and established by it to achieve this specific purpose. The Act

provides effective machinery for the Board for successful implementation of its came to

achieve its object. The remedies of appeal and revision against the order of the Board

are also provided by the Act to the aggrieved person. In that view of the object and

structural pattern of the Act investing the Board with the full power and providing the

necessary machinery to achieve the aforementioned object, the general power of the

Executive Magistrate under Section 133 of Cr.P.C. to take action in regard to any case

of water pollution must, by necessary implication, give way and yield to the superseding

statutory power of the Board to deal with and tackle the same. (Para 8). (M/s.

Executive apparel Processors, Bangalore Vs The Taluka Executive Magistrate and

Tahsildar, Bangalore North Taluka Bangalore and Another - 1997(4) Kar. L.J.182 )

72

(A) Criminal Procedure Code 1973, Section 133 – Water (Prevention and Control of

Pollution) Act, 1974, Sections 49 and 60 – Air (Prevention and Control of Pollution) Act,

1974, Sections 49 and 60 – Air (Prevention and Control of Pollution) Act, 1981, Sections

43 and 523 – Public nuisance Magistrate‟s jurisdiction to take cognizance of offence

Pollution of water and air by inductee holding letter of consent issued by State Board to

operate industrial plant in specified area – Magistrates power to pass appropriate order

to remove public nuisance, not taken away by acts of 1974 and 1981 Though scope and

purpose of Acts and Section 133 of Code may overlap, that of Acts is preventive,

whereas under Code it is remedial in nature – Acts deal with water and air pollution,

whereas Section 133 of code is general and provides easy remedy to remove existing or

emergent nuisance – Prior sanction of Board, not necessary for action under Section

133 of code – Proceedings under Section 133 of Code, Summary in nature Basis of

order under Section 133 of code is satisfaction of Magistrates that immediate remedy is

necessary. (Harihar Polygivress, Ranebennur Taluk, Dharwad District and Another

Vs The Sub-Divisional Magistrate, Haveri, Dharwad District and others 1997(5) Kar.

L.J. 385)

Service of Order under Section 133:

5.11 Sec. 134 provides that an order made under Sec. 133 shall be served on the

person against whom it is made as far as practicable in the manner provided for service

of summons. If an order cannot be so served as a summons, it shall be notified by

proclamation, published in such manner as the State Government may by rule direct and

a copy thereof shall be stuck up at such place or places as may be fittest for conveying

information to such a person.

Person to whom order is addressed to obey or show cause:

5.12 Section 135 enables a party against whom the order under Sec. 133

is made to do any of the following things:

(1) Obey the order within the time and in the manner specified in the order; or

(2) If he feels aggrieved to appear and show cause against the order.

If he fails to do any of these things within the time fixed, he shall be liable for

73

the penalty provided under Sec. 188 I.P .C, and the Magistrate shall make the order

absolute 'exparte' which can beset aside on general principles where sufficient cause is

shown for the absence of the party.

5.13 Sub-Sec. (1) of Section 137 provides that soon after the person against.

whom a conditional order is made appears before the Magistrate, he shall be.

questioned as to whether he denies the existence Of any public right in respect of the

way, river, channel or place, and if he does so, the Magistrate shall, before proceeding

under Sec. 138, inquire into the matter. Sub-sec. (2) of Sec. 137 provides that if after

inquiry the Magistrate finds that there is any reliable evidence in support of such denial,

he shall stay the proceedings until the matter of the existence of such right has been

decided by a Competent Court and if the Magistrate finds that there is no such reliable

evidence, then he shall proceed as laid down in Sec. 138. If the objector who on being

questioned by the Magistrate under Sub-sec. (1) of Sec. 137 fails to deny the existence

of the public right of the nature referred to or who, having made such denial has failed to

adduce reliable evidence in support thereof, he shall not in the subsequent proceedings

be permitted to make any such denial [Sec. 137 (3)].

5.14 Sec. 137 (1) provides for a preliminary inquiry which shall have to be on the

limited question whether the person who has appeared in response to a show cause

notice denies a public right and whether he has "prima facie" evidence with him to

support his denial. The provisions contained in Sec. 138 cannot be invoked unless and

until a preliminary inquiry is held as provided in Sec. 137. The object of staying the

proceedings provided in Sec. 137 (2) is obvious in that the Magistrate should not

unnecessarily take upon himself the role of a Civil Court and embark upon deciding the

civil rights of the parties. The only liability of a person failing to adduce reliable evidence

in support of his denial of the public right would be that he would be disentitled from

denying the said public right in the subsequent proceedings. Such failure to adduce

reliable evidence will not justify an order from the Magistrate that the conditional order is

made absolute. Thus even if the person against whom a conditional order has been

passed fails .to produce before the Court, reliable evidence in support of his denial of the

public right, the Magistrate shall have to proceed under Sec. 138 of the Code. On being

questioned by the Magistrate, if the person against whom a notice to show cause has

been issued does not dispute the public right but denies only the alleged obstruction, the

Magistrate then shall have to proceed under Sec. 138. In such a case the omission to

74

question as provided under Sec. 137 (1) would not be fatal.

5.15 The term 'public right' found in Sec. 137 (1) has not been defined. A public

right does not depend upon the number of individuals enjoying the same. It must be

enjoyed by members of the public in general as a right. The inquiry contemplated under

Sec. 137 is regarding the public right, its denial by the objector and regarding the

character of the evidence produced by the objector in support of his denial. The inquiry

under Sec. 138 is entirely different and care should be taken not to mix up the two. The

nature of the inquiry under Sec. 138 would be to examine and determine whether the

conditional order passed under Sec. 133 is reasonable and proper or not. It is obligatory

upon the Magistrate under Sec. 137 to see whether there is reliable evidence in support

of the denial of public right and the Magistrate need not go into the question whether in

fact there is such public right or not. In an inquiry under Sec. 137 the burden obviously

lies on the objector to show that he has reliable evidence in support of his denial of

public right. In order to satisfy himself that there is legal evidence, the magistrate may

allow the cross-examination of witnesses produced by the objector in support of his

denial. The inquiry is of a summary character. Under Section 137 it is not necessary that

the party complaining of obstruction should also be required to adduce evidence. To

counteract the evidence produced by the objector in support of his denial, the person

complaining of nuisance may be allowed to adduce evidence.

5.16 Provisions contained in Sec. 137 are mandatory and cannot be waived. If

the Magistrate proceeds under Sec. 138 without following the procedure laid down in

Sec. 137, the entire proceedings would be vitiated. The Magistrate recording a finding

that the objector has not placed reliable evidence in support of his denial shall have to

assign reason for his finding. Inquiry under Sec. 137 shall have to be held before the

Magistrate before whom the party appears in pursuance of an order under Sec. 133, the

reason being that further proceedings under Sec. 138 depend upon the finding of the

Magistrate whether the objector has adduced reliable evidence in support of his denial of

public right. The Magistrate in the inquiry under Sec. 137 has to consider only whether

the denial of public right has been supported by "prima facie" evidence. The Magistrate

should not consider whether the claim has been established to his satisfaction. It would

not be erroneous if the Magistrate only takes the evidence in support of the denial and

examines whether, as it stands, he could come to the conclusion that the evidence is

reliable. A good test of reliability is whether the evidence is such that if unrebutted it will

75

prove the non-existence of the public right. Public records such as Record of Rights,

R.T.C., extracts of Settlement Registers and Survey Maps; etc., may form reliable

evidence in support of the denial of the existence of public right.

5.17 Under Sub-sec. (2) of Sec. 137 if the Magistrate arrives at a finding that there is

reliable evidence in support of the denial of a public right he has no other opinion than to

stay the proceedings. The proceedings need not be stayed indefinitely. The Magistrate

can fix some time for establishing the right concerned in a competent court and if the

party concerned does not produce a finding of the competent court within the reasonable

time specified, the Magistrate can proceed to make the order absolute. If the

proceedings are stayed under Subsec. (2) of Sec. 137, the Magistrate has no jurisdiction

to initiate fresh proceedings under Sec. 133. If the Magistrate on the other hand finds

that the objector has not produced any reliable evidence in support of his denial, of the

existence of a Public right, he shall have to record his reasons for such a decision and

proceed to decide the case as laid down in Sec. 138 of the Code. If a party files any suit,

after the Magistrate records the finding that no reliable evidence has been induced in

support of the denial of the existence of a public right, the Magistrate need not stay the

proceedings, and he shall proceed under Sec. 138.

Procedure where he appears to show cause:

5.18 Sec. 138 (1) provides that the Magistrate shall proceed to take evidence in

the manner, as in a summons case, after the person against whom the order under See,

133 (1) has been made, appears and after the provisions of Sec. 137 are complied with.

The question regarding the existence of a public right which was the subject matter of

inquiry under Sec. 137 will not be allowed to be reagitated in the inquiry under Section

138. The reason for limiting the scope of the inquiry under Sec. 138 is obvious, because

the inquiry under Sec. 138 comes into the picture only when the existence of the public

right is either not denied or if denied no reliable evidence has been found to exist in

support of such denial. The word "Magistrate" appearing in Sec. 138 includes both the

Magistrate who made the conditional order under Sec. 133 and the Magistrate before

whom the party, is required to appear as shown in the conditional order. A Magistrate

who may not be competent to make a conditional order under Sec. 133 can pass a final

order under this Section if the case is transferred to him by the Magistrate making the

conditional order as his subordinate. Magistrate.

76

5.19 The words "shall take evidence in the matter" appearing in Sub-sec. (1) of

Sec. 138 indicate that the Magistrate is bound to hold inquiry by recording evidence and

following other provisions of this chapter before making the order absolute. The

Magistrate shall have to record a judicial decision on the evidence recorded.

Power of Magistrate to direct local investigation and examination of

an expert:

5.20 Sec. 139 empowers the Magistrate, for the purpose of inquiry under Sec.

137 and 138, to direct a local investigation to be made by such, person as he thinks fit

and also to summon and examine an expert.

5.21 Sec. 140 further empowers the Magistrate to furnish written instructions to

the person directed to make a local investigation. The report of local investigation may

be read as evidence in the case [Section 140 (2)]. Under Sub-sec. (3) of Sec. 140 the

Magistrate may direct by whom the costs of summoning and examining experts shall be

paid. The evidence admissible under Sec. 139 and 140 shall have to. be considered by

the Magistrate holding an inquiry under Sec. 138 of the Code. Even if the party against

whom a conditional order is made does not produce evidence, it is still incumbent on the

Magistrate to record evidence of the person' who complained and of others and then to

pass .final order. A conditional order cannot be made absolute merely on account of the

following:-

I. as a result of his local inspection.,

II. personal opinion

III. the report of the Tahsildar or Panchayatdars,

IV. arbitration,

V. the evidence or information or report received at the time the conditional order

was passed under Sec,. 133 or on the basis of the evidence taken under the

inquiry under Sec. 137.

5.22 The procedure to be followed in a summons case is found in Chapter XX 'of

the Code. It lays down that first the complainant (if any) and all his witnesses (if any)

77

should be examined and thereafter the objector shall beheard and his witnesses shall be

examined. Any inquiry shall have to be held in the presence of both the parties. The

burden of proof in such inquiry lies on the prosecution, i.e., the person at whose instance

the conditional order is passed. The provision contained in Sec. 254 (2) of the Code

regarding the issue of summons to the proposed witnesses applies to the proceedings

under Sec.138 also.

Final Order 5.23 On completion of the inquiry under Sec. 138 (1); if the Magistrate is satisfied

that the conditional order either as originally made or subject to such modification as he

considers necessary, is reasonable and proper, the Magistrate shall have to pass an

order making the order absolute. The wording of Subsec. (2) of Sec. 138 shows that a

conditional order can be made absolute only on the basis of evidence recorded by the

Magistrate. Hence, where the party appears to show cause against the preliminary order

and thereupon inquiry starts under this section, the Magistrate cannot, even if the,party

fails to appear at a subsequent hearing, make the order absolute without any evidence.

The procedure laid down for summons-cases under Sec. 241 to 249 of the Code

requires that evidence must be taken on behalf of the complainant when the other side

denies the allegation. An exparte order at subsequent stage is therefore not permissible.

The Magistrate has however the power to modify the conditional order on the basis of

the inquiry made by him and make such modified order absolute [Sec. 138 (2)]. Where a

person against whom a conditional order is passed under Sec. 133 appears and submits

that he has no objection to the removal of the obstruction, it would not be sufficient to

record his willingness and close the matter but a substantive order directing him to

remove the obstruction within a specified time shall have to be passed. If the nuisance

has ceased to exist subsequent to the conditional order passed under Sec. 133, there

would be no need to make the order absolute. Upon recording evidence and receiving

such other material on record as provided under Sections 139 and 140 of the Code if the

Magistrate is satisfied that the preliminary order was unreasonable and improper, he

shall have to drop the proceedings.

78

Procedure on order being made absolute and consequences of disobedience: 5.24 Sec. 141 provides that after an order is made absolute either under Sec. 136

or under Sec. 138, the Magistrate shall give notice of the same to the person against

whom the order was made and shall further require him to perform the act directed by

the order within the time specified in the notice and Inform him that in case of

disobedience he wilt be liable to the penalty provided under Sec. 188 of I.P .C. Form of

notice shall be as provided in Form No. 21 of Second Schedule [vide appendix 2 (a)].

5.25 Under Section 141 (1) only the Magistrate, who passed the order making the

conditional order absolute under Sec. 138 shall have to issue the notice. If the person

against whom a notice has been issued under Sub-sec. (1) of Sec. 141 fails to comply

with the same, the Magistrate may cause the act to be performed and recover the cost of

performing the same either by the sale of any building, goods or other property removed

by his order, or by the distress and sale of any other movable property of the person to

whom notice has been issued.

5.26 Sec. 141 (3) provides protection for acts done in good faith under this

Section. All the Magistrates acting under this chapter are courts under Sec. 6 of the

Code and even otherwise they are not liable to be sued In a Civil Court by virtue of Sec.

1 of the Judicial Officers Protection Act (Act No.1 of 1850).

When Injunctions may be Issued:

5.27 Under Sec. 142 of the Code, if the Magistrate passing an order under Sec. 133

considers that immediate measures should be taken to the public, he may issue an

injunction to the persons against whom the order was made, to obviate or prevent such

danger or injury pending the determination of the matter. The injunction under this

section shall have to be restricted to the checking of the particular nuisance which has

been prohibited by the conditional order made under Sec. 133. The Magistrate has no

jurisdiction to go beyond the scope of such conditional order.

79

Order to prevent repetition or continuance of Public Nuisance:

5.28 The repetition or continuance of public nuisance can be prevented by an

order passed by the District Magistrate or Sub-divisional Magistrate or any other

Executive Magistrate empowered by the State Government or the District Magistrate In

this behalf under Sec. 134. The order shall have to be in Form No. 23 of Second

Schedule to the Code and should be passed only after giving an opportunity to the

person against whom the order is made to show cause as to why the order should not

be passed [Appendix 2 (a)]. .

5.29 For any disobedience of the order made against a person under Sec. 143,

the person will be liable for punishment under Sec. 291 of I.P.C. Since the order under

Sec. 133 or 136 or 138 binds only a particular person or persons against whom it is

made, no order can be passed under Sec. 143 against a person who Is not a party to the

said proceedings.

000

80

CHAPTER – VI

URGENT CASES OF NUISANCE OR

APPREHENDED DANGER

(Sec. 144 of Criminal Procedure Code)

6.1 Sec. 144 of the Criminal Procedure Code confers very wide powers on the

District Magistrate, Sub-divisional Magistrate or any other Executive Magistrate specially

empowered by the State Government in this behalf to pass order on occasions of

emergency. The provisions contained in Sec. 144 can be invoked only in urgent cases of

nuisance or apprehended danger. Two conditions are necessary to be fulfilled before an

order can be passed under this Section, viz,

(1) The Magistrate must be satisfied that immediate prevention or speedy

remedy is necessary. Urgency of the action to be taken gives jurisdiction to the

Magistrate to exercise the powers conferred by this Section. A mere statement

that he considers. the case to be an urgent one is not sufficient. He shall have

to mention the grounds which made him conclude that there is urgent necessity

for action.

(2) The Magistrate must be satisfied that the direction to abstain from certain

act or to take certain order with respect to certain property is likely to prevent or

tends to prevent obstruction as shown in the Section. It is not necessary that the

provision should be invoked only when the alleged acts would constitute an

offence if allowed to be completed. It is sufficient even if the acts alleged are

such, when completed, would furnish grounds for a civil action only.

Scope

6.2 An order under this section is in the interest of maintenance of "public order", the

objects for securing it is being "to prevent obstruction", " annoyance", "injury", etc. The

power conferred by this section is not arbitrary, nor is it unlimited; it is reasonable. The

81

section is attracted only in an emergency. The power can be exercised for the purpose

of preventing obstruction, annoyance or injury to the persons lawfully employed or

danger to human life, health or safety or disturbance of the public tranquillity, or a riot or

"an affray". These factors condition the exercise of the power and it would consequently

be wrong to regard; that power, as, being unlimited or untrammeled. It is only where

emergency of the gravest character is made out then a Magistrate would be justified in

the exercise of his powers under this section to make an order which would J1ave the

effect of interfering with the exercise of private rights of individuals. Where there is a

conflict between public right and private right, the former must prevail. And so, although,

the persons may have obtained from a competent civil court a declaration of the right to

conduct processions with music before a particular mosque, the Magistrate may, in the

interest of public peace, prohibit the former from taking any procession in any street

where there are such mosques. It is not permissible for a Magistrate, under the cover of

an order under this section, to dispossess a particular individual of certain property to

deliver possession of it to another. This section is intended to provide for an emergency,

and it is idle to contend that in an emergency when a riot is apprehended and when

there is apprehension of a serious disturbance of public tranquillity, the Magistrate is

required to deliberate upon and decide the rights of the parties before acting. In the

proceeding under section 144 the Magistrate has no jurisdiction to attach property.

6.3 The power conferred by this Section cannot be exercised to interfere with the

execution of Civil Court's decree. Delivery possession of certain property cannot be

directed under cover of an order passed under this Section. If any civil court is seized of

the matter and if there is no apprehension of imminent breach of peace, the provisions of

this Section cannot be invoked. Orders under this section are passed only in the general

interest of the ,society and not in the interests of any particular individual. The main

objective to exercise the power must be to prevent breach of public tranquillity. In case

of conflict between the. public interest and private interest, the public interest shall have

to prevail and the Magistrate can override temporarily the private rights by passing an

order under this Section. However, care must be taken to see that this Section is not

invoked by one party in order to obtain material advantage over the other. The

Magistrate should endeavour as far as possible to uphold the rights declared by Civil

Courts and to resort to this section only when there is no time or opportunity for any

other recourse. The authority of the Magistrate to override temporarily, private rights in

cases of emergency lasts. As soon as it appears to the Magistrate that there is no more

82

apprehension of imminent danger to the public peace the order shall to be rescinded.

The objective should be to secure to every person the enjoyment of his legal rights and

by means of proper directions it should deter those who seek to invade the rights of

others. When a breach of peace is anticipated, as a general rule, action shall have to be

taken against the potential law-breakers and not against the peaceful citizens, who are

the victims of the law breakers,

Order to be in writing- must state material facts:

6.4 The words "Written order stating the material facts" appearing in Sec. 144(i)

indicate that the order should not only be in writing but should state the material facts of

the case. Before proceeding under this Section, the Magistrate must satisfy himself that

there is sufficient ground for doing so. There ought to be reasonable and reliable

evidence or information before the Magistrate that the act prohibited is likely to cause "a

riot, or affray or danger to human life. The information received by the Magistrate may be

oral or in writing or il1 the form of the police Report. A Magistrate cannot however base

his order merely on his local inspection or solely on a report of an interested person.

Contents of the Order:

6.5 The order must be an order which is absolute and definite in terms. The

order must contain a statement of the “material facts", which the Magistrate considers

to be facts of the case and upon the footing of which he bases his order. The thing which

is prohibited must be clearly stated. The duration of the order must be co-extensive with-

the emergency. Except where the order is addressed to the public under sub-sec (3), the

persons against whom the order is directed must be specified. The terms of the notice

must follow the terms of the order in pursuance of which the notice is issued.

Service of Order:

6.6 The order must be served in the manner provided by Section 134, i.e.,

served personally. If it is not served personally and not brought to the notice of the

accused a conviction under Section 188, I.P.C. for disobedience of the order is illegal.

An order must state who are prohibited and what are they prohibited from doing or

requiring to do.

83

When 'exparte’ order can be passed:

6.7 Sub-sec. (2) of Sec. 144 provides that an exparte order can be passed in

cases of emergency or when there is no time to serve the notice. Ordinarily an order

under this Section should not be made without an opportunity being afforded to the

person against whom it is directed. In other words Sub-sec. (2) of Sec. 144 provides only

an exception to the rule that an order should be passed after due notice to show cause

as to why it should not be made. The order passed under this Section shall have to be

served in the manner shown in Sec. 134 of the Code Le., as per the procedure provided

for service of summons. If the order cannot be served in the said manner, it has to be

notified by a proclamation (published in such a manner as the State Government may by

rule direct) and by affixing a copy of the order at the places suitable for conveying the

information to the person concerned.

6.8 The order should be clear and it should show the authority under which the

Magistrate has taken action. It shall have to be definite and unambiguous. Form No. 24

of the Second Schedule of the Code shall have to be used for an order under this

Section.

6.9 The Section envisages two kinds of orders, viz.,

(i) order directing a person to abstain from a certain act;

(ii) order directing a' person to take certain order with respect to certain

property in his possession or management.

6.10 The Section provides for an absolute and definite order and not a conditional

order to be made absolute later on. An order under Sec. 144 shall have to be a

temporary character. It should not be irrecoverable or perpetual in nature. It is one of the

conditions of the order that it should be addressed to a definite person or persons. It

must be addressed to a party to the proceedings and not to a third person. The act

prohibited should be clear and a definite physical act. The provisions contained in this

section authorise a Magistrate to pass restrictive orders and not to make a mandatory or

positive order directing a person to do a particular act, except in so far as such order

may be covered by the words, "or to take certain order with respect to certain property in

his possession or under his management". An act can be prohibited only if it is intended

84

to prevent obstruction, annoyance, etc. The word " annoyance" has been held to include

mental as well as physical annoyance. The Magistrate himself shall have to exercise the

discretion given to him under this section and he cannot delegate it to another. The

words" to take certain order with respect to certain property" appearing in Sub-sec(1) of

Sec. 144 indicate that the Magistrate can require the person to take certain order with

respect to certain property. The word "property" refers to immovable property only. The

property, in respect of which the order is made, should be in the possession or

management of the person against whom the order is passed. The section does not

authorise the attachment of movable properties. An order passed under this section

does not have the effect of disturbing either title or possession. It may prevent the

exercise of rights which a person in possession would otherwise be entitled to exercise.

An order under this section does not bind a person who was not a party to the

proceedings.

6.11 An 'exparte' order under Sub-sec. (2) of Sec. 144 can be passed, upon receipt of

a police report if the Magistrate is satisfied that immediate action is necessary. In such

cases, however, the Magistrate shall have to record his reasons for considering the

occasion as one of emergency. He must also state the materials on which he considers

immediate action is necessary. It is open to a person aggrieved by an exparte order to

apply under Sub-sec. (5) of Sec. 144 to rescind or alter the order. In a case where the

legality or propriety of an exparte order has been challenged, it is not proper to postpone

the hearing until the termination of the order. Where a party offers to adduce evidence

against the continuance of an exparte order, the Magistrate shall have to hold an inquiry

and pass necessary orders thereafter.

Orders to whom directed:

6.12 Sub-Sec. (3) provides that an order under this Section may be directed to a

particular individual or to person residing in a particular place or area or to the public

generally who frequently visit a particular place or area. This Section empowers the

Magistrate to interfere materially with the liberty of the citizens and therefore it would be

necessary that he should promulgate his order in terms sufficiently clear to enable the

public or persons affected by it, to know exactly as to what it is and what they are

prohibited from doing.

85

Order to be In force for two months

6.13 Sub-sec. (4) provides that an order under this Section can remain in force

only for two months from the date of such order. The order shall have to be in its nature

revocable and must be such that it can be recalled at the expiry of the two months. The

Magistrate is not empowered to pass an order, the effect of which would be granting..of

a perpetual injunction. He is also not authorised to pass successive orders at the end of

every two months.

Powers of State Government to extend the period:

6.14 In a case where it is found expedient that the order should extend to a period

beyond two months the power shall have to be exercised by the State Government

under the proviso to Sub-sec. (4). Where the proceedings initiated under this section are

cancelled as defective, nothing prevents a Magistrate from Initiating valid proceedings.

The order remains in force for a period. of two months from the date of its confirmation

on any subsequent date. It is however, not necessary that an order under this Section

should state expressly that its operation is confined to two months or some shorter

period. Under the proviso to Subsec. (4) of Sec. 144 the State Government if it considers

necessary to do so, for preventing a risk or any affray, has the power to extend by

notification the term of the order for such further period not exceeding six months from

the date on which the Magistrate's order would have expired.

Power to rescind or alter order:

6.15 Under Sub-Sec. (5) of Sec. 144 the Magistrate has the power to rescind

or alter an order made under this section either on his own motion or on the application

of any aggrieved party. The word "alter" does not mean that the Magistrate can

substitute the names of one party for the other. The Sub-section contemplates only a

change in the nature of the order and not in the name of the party against whom it is

made. A recession or alteration of the order will be justified where the reasons for the

order no longer exist. An application under this Sub- section is not covered by Sec. 192

or Sec. 411 of the Code, which deal with the subject of transfer of cases. Thus the

Magistrate to whom the case is made over cannot transfer it for disposal to another

Magistrate.

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6.16 Under Sub- Sec. (6) the State Government has the power either on its own

motion or on an application by an aggrieved person to rescind or alter the order made by

it under the proviso to Sub- Sec. (4).

6.17 Sub- sec. (7) Provides that where an application under Sub-sec. (5) or Sub-

sec. (6) of Sec. 144 is received by the Magistrate or the State Government, they shall

have to give an early opportunity to any person or persons aggrieved by the order and

hold an inquiry into the circumstances of the case to see if the order requires to be

rescinded or altered. The Magistrate or the State Government shall have to consider in

such an inquiry whether the claims advanced by one or either of the parties are within

their legal and natural rights or whether any recession or alteration of the order is called

for to obviate undue hardship to one or either of the parties. The provisions of Sub-sec.

(7) are mandatory and an application filed under Sub-sec. (5) cannot be summarily

dismissed. The inquiry under this section being a judicial inquiry, the Magistrate is bound

to take evidence in the usual way by examination and cross-examination of the witness.

He is bound to consider the evidence and arguments submitted on behalf of the parties.

The person proceeded against is entitled to a copy of the information to enable him to

rebut the same. A Magistrate proceeding under this Section may make a local

inspection for the purpose of appreciating the material and evidence produced before

him, but he cannot base his decision merely on his local inspection. A person disobeying

an order passed under this Section is liable to be punished under Sec.188 of the I.P.C.

The prosecution in such a case shall have to be in the manner provided under See 195

or Sec. 340 of the Code.

000

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CHAPTER – VII

DISPUTES AS TO IMMOVABLE PROPERTY

Procedure where dispute concerning land or water Is likely to cause

breach of peace

7.1 Sec. 145 deals with disputes concerning land or water likely to cause breach

of peace. An Executive Magistrate may proceed under this Section if he is satisfied that:

(1) a dispute exists concerning any land or water or the boundaries thereof within

his local jurisdiction and

(2) Such dispute is likely to cause a breach of the peace. After satisfying

himself, the Magistrate must first pass a preliminary order under Sub-see (1)

of Sec. 145 and then hold an inquiry as provided under Sub-sec (4).

7.2 Any party to the dispute may in an inquiry show that there is no dispute at all

or that the dispute is not likely to cause a breach of peace. If the Magistrate is satisfied

on such points he shall have to cancel his preliminary order. otherwise the inquiry must

be held. If the Magistrate decides that one of the disputing parties was in possession of

the subject of dispute as on the date of preliminary order, he should pass a final order

declaring that such party is entitled to possession of the property until evicted in due

course of law, and forbidding all disturbance of such possession until such eviction. If the

Magistrate considers that the case is one of emergency or if he is unable to decide as to

who was in possession on the date of preliminary order or if he finds that none of the

contending parties was in possession, he may attach the property under Sec. 146 and

may appoint a receiver.

7.3 The proceedings under this Section are of a summary nature. They are intended

to provide speedy and less expensive remedy. The primary objective is the prevention of

the breach of peace, arising in respect of a dispute relating to immovable property. The

Magistrate is empowered to take action under this Section in order to enable him to

settle the matter temporarily and to maintain the status-quo until the rights are decided

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by a competent court. The principle. on which the Section is based is that whether a

person has the best or worst claim he cannot be permitted to take the law into his own

hands and disturb the public peace. The pendency of a suit in a Revenue or Civil Court

in respect of the right in question is no bar to action being taken under this Section.

Similarly the pendency of the prosecution under Section 448 I.P.C. in respect of the

subject matter of dispute is no ground for staying the proceedings initiated under this

section. The justification for the proceedings is that breach of the public peace is to be

prevented. It is therefore expedient that the proceedings should be concluded promptly

and as quickly as possible.

7.4 The section is meant for deciding disputes regarding possession of

immovable property between the private parties. Action under this Section is not

contemplated where the dispute is between the Government and a private party. Where

the question of possession is disputed and the case is one of emergency, the proper

course should be to pass a temporary order under Sec. 144 and then to institute an

inquiry into possession or straightaway take up proceedings under Sec. 145 by attaching

the property in dispute. Recourse to proceedings under Sec. 107 against both the

parties to the dispute concerning the land without proceeding under Sec. 145 would not

be proper. The correct approach would be to proceed under Sec.145 where the dispute

relates to land and breach of public peace is apprehended therefrom. The important

distinction between Sec. 107 and 145 is that in a case under Section 107 the

commission of the breach of the peace is alleged to arise from' the side of the person

against whom an application is made whereas under Sec. 145 the breach of peace may

be caused by any party to the dispute. Nonetheless it has been observed in some of the

cases that even in the cases of land disputes, after the proceedings are initiated under

Sec. 145 action can be taken under Sec. 107 if the circumstances justify, and in such

cases proceedings under Sec. 107 should be drawn up against both the parties so that

no one is placed at a disadvantage. In a case where it is difficult to say which of the

parties to a dispute is creating disturbance and where speedy remedy is necessary, an

order under Sec. 144 may be passed. Merely to pass an order Under Sec.144 and leave

it at that stage without disposing of that dispute finally, would be postponing the evil and

inviting its recurrence in a more complicated form later on. Where the Magistrate finds

that after an order under Sec. 107 or Sec. 144 has been passed, the likelihood of the

breach of peace no longer exists, then action under Sec. 145 would be unnecessary. On

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the other hand, pending proceedings under Sec. 145, if an emergency referred to in Sec.

144 arises, an order under Sec. 144 will not be without jurisdiction. It is not advisable to

allow proceedings under Sec. 107, 144 and 145 to go on at one and the same time. The

Magistrate should state distinctly under what section he is proceeding.

7.5 The proceedings under this Section constitute, an inquiry within the meaning

of Sec.2(g) of the Code. It is quasi-executive in character. The action intended is purely

preventive and provisional in nature. Thus it may be termed as quasi-civil proceedings. It

constitutes a "case" within the meaning of Sections 192 and 407 of the Code. The

District Magistrate has power under Sec. 192 to transfer a proceeding of which he has

taken cognisance. The application filed under this section is not a complaint within the

meaning of Sec. 2(d) of the code. Since it does not relate to an offence. Sec. 8 to 11

(provisions regarding special Oath) of the Oaths Act 1873 apply to the proceedings

under this Section.

7.6 Where a petition under this Section has been dismissed by a Magistrate in

limini for want of specific allegations regarding the likelihood of breach of peace, a fresh

petition based on the same facts, containing such specific allegations can be entertained

by the Magistrate.

7.7 The words "is satisfied" appearing in Sub-sec. (1) of See 145 convey that in

order to initiate proceedings under this Section it is essential for the Magistrate to be

satisfied from a report of a police officer or other information that a dispute likely to

cause a breach of peace exists. Such a finding should be clear and unambiguous.

7.8 A person making an application to the Magistrate to initiate proceedings

under this Section does not initiate a 'CASE' but only informs the Magistrate. It is not

obligatory on the part of the Magistrate to record a sworn statement of the petitioner. A

Magistrate is not bound to take action on a police report only. He must have a statement

of facts before him so that he may exercise his own judgement in arriving at a

conclusion. It is not safe to proceed under this Section on the statements of interested

persons. In such case it would be advisable to call for a police report. The mere fact that

the Magistrate states in his order that he is satisfied about the circumstances is not

sufficient to give him jurisdiction. The Magistrate must have sufficient material before him

before he can proceed. The evidence which he may subsequently record after issuing a

notice under Subsec. (1) will not justify the preliminary order, since the Magistrate is

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required to be satisfied that apprehension of the breach of peace exists before the order

is issued.

7.9 The words "report of a Police Officer" appearing in Sub-sec. (1) indicate that the

Magistrate is entitled to use a police report for the limited purpose of satisfying himself

about the locality of the breach of peace, the identity of the subject matter and of the

contending parties. The police report would be inadmissible as evidence in the inquiry

relating to the parties. On receipt of an application for action under this Section the

Magistrate may call for a police report and on his being satisfied on such report that

there is no likelihood of the breach of peace he may dismiss the application. The

Magistrate should not forward the application itself to the police for inquiry and report. In

other words the police report can be taken as a piece of material for passing a

preliminary order. The Magistrate cannot delegate his discretion to the police to find out

whether circumstances exist to pass a preliminary order. The words "or other

information" appearing in Sub-sec. (1) of Sec. 145 show that the Magistrate has wide

discretion to take into account all possible material before a preliminary order is made.

They are wide enough to include knowledge derived from "any source whatever.

7.10 Whenever there is disagreement between the parties regarding land or water,

the Magistrate, will have jurisdiction if breach of peace is apprehended. It is not

important whether the dispute is reasonable or bona fide, or whether a " decree has been

passed in favour of a party or possession has been delivered to him in execution of

decree, or whether the. dispute can be easily resolved. The words "dispute likely to

cause a breach of the peace exists concerning any land or water or the boundaries

thereof" are wide enough to cover all kinds of disputes - not only as to the fact of

possession but also disputes as to the right to own or use immovable property if they are

likely to cause the breach of peace. The jurisdiction conferred under this Section is of a

special character and it can be exercised only if the dispute is such that it is likely to

cause a breach of peace. If the apprehension is that breach of peace may take place at

future date, the Magistrate will not be justified to take action under this Section. It is not

necessary that there should be a danger of immediate or imminent breach of peace.

There need not be overt acts of violence. It is sufficient if there is reasonable

apprehension that a disturbance of peace is likely to occur. Sub-sec.(2) of Sec. 145

makes it evident as to how the expression land or water should be interpreted. The

words within his local jurisdiction appearing in Sub-see (1) show that it is only where the

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dispute relates to property within the local limits of the Magistrate's jurisdiction that the

Magistrate is empowered to initiate proceedings under this Section. However, an

objection to the jurisdiction of the Magistrate shall have to be taken at the earliest

opportunity.

7.11 The preliminary order shall have to contain the following matters

(1) Statement that the Magistrate is satisfied as to the existence of a dispute likely to

cause breach of peace;

(2) Grounds on which he is so satisfied;

(3) Correct description of the property in respect of which there is dispute;

(4) Statement showing the names of the person concerned in such a dispute; and

(5) Direction calling upon the persons to attend the court of the Magistrate in person

or by a pleader within the time to be fixed and to put in written statement of their

claims in respect of the fact of actual possession of the subject matter in dispute.

When Preliminary order can be modified:

7.12 The Magistrate must see that his order is promulgated at the earliest. The

preliminary order can be modified at a later stage, if the Magistrate is satisfied that there

is some mistake in showing the property in dispute. If the Magistrate finds at a later

stage that there is no emergency in respect of a portion of the property, an amendment

can be effected to the preliminary order. If a preliminary order describes the property in

dispute wrongly, the proceedings would be vitiated and without correcting the description

of the property the Magistrate will have no jurisdiction to proceed with the matter. The

names of the parties to the dispute shall have to be specifically shown in the preliminary

order. The words " parties concerned in such dispute" do not mean merely the person

actually disputing. All persons having connection with the possession of the subject of

the dispute in some capacity or the other would be necessary parties to the proceedings.

The owner or proprietor of the property who is in possession through his servants or

manager is a person concerned in the dispute and he is therefore a necessary party. In

a dispute between rival landlords, tenants who are in actual possession in their own right

are necessary parties to the proceedings. In a dispute between a tenant and sub-tenant,

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the landlord is not a necessary party. In a dispute between two communities, the

Magistrate may choose the right persons to represent each community and pass an

order on the communities. There is no provision to the section for addition of parties.

Sub-sec. (7) only provides for bringing legal representatives of the deceased parties on

record. Sub-sec.(5) enables third parties who are interested in the property to intervene

only to show that no dispute likely to cause breach of peace exists.

7.13 The Court has no power to drop the proceedings on the death of any of the

parties. The legal representative of the deceased party shall have to be brought on

record and the proceedings shall have to continue. If there is any dispute as to who are

the legal representatives the Court should implead all the persons who claim to be the

representatives of the deceased. Proceedings need not commence afresh and may be

continued from the stage at which the deceased party had died.

7.14 If any party fails to attend the court on the specified date the proceedings should

not be dropped. The case may be disposed of 'exparte' after taking evidence adduced

by the other side. If both the parties are absent and there is no satisfactory material

before the Magistrate for proceeding under this Section, the Magistrate may proceed

under Sec. 146 and take steps to attach the subject matter of the dispute and to appoint

a Receiver. The proceedings under this Section are intended to prevent any breach of

public peace. It would therefore be the duty of the Magistrate to continue the

proceedings till the breach of peace subsists even if there is any default, by any party in

making appearance. It is not open to the Magistrate under any provision of the Code to

treat the informant as a complainant and to dismiss the proceedings for the default of

such complainant or his counsel on the date of hearing.

7.15 The provision made in Sub-sec. (1) to file written statements is merely to

assist the Magistrate in ascertaining the grounds on which each of the parties claims

possession. Such written statements are not in the nature of the pleadings in a civil

action. The question of possession need not therefore be limited and confined to the

points put forth in such written statements.

7.16 The words "fact of actual possession" appearing in Sub-sec. (1) show that the

Magistrate is empowered to deal with only the question of actual physical possession. It

must be noted that two elements must exist in order to constitute a possession in fact-

the 'animus possidendi' and the 'corpus possessionis'. The former is the mental element

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and consists in the intent to possess. The latter is the physical element and consists in

the concrete realisation of the intent by actual user of the thing sought to be possessed.

The mere existence of any one of these two elements without the other will not be

sufficient to constitute the actual possession. Accordingly, the mere existence of animus

possidendi will not be sufficient to constitute possession without actual use of the

property. All that is necessary to establish possession by user is that some acts of

possession should have been done with the property or on the property. As regards the

acts of possession required by the element of corpus possessionis in respect of

cultivable land, the easiest and the most proper act of possession would be the

cultivation of that land. A possession can be discontinued by giving up acts of

possession on the property and then it may be called a discontinuance or termination of

possession. But, so long as the persons continue to do acts of possession on a land,

they cannot be said to have terminated their possession. But acts of trespass and acts of

possession by another party on the same land which has been left fallow by a party may

terminate the possession of the first party. Mere entries in the record of rights do not

constitute possession, as required in Section 145 Cr.P.C. What is required is a fact of

actual possession, with the presence of both animus possidendi and corpus

possessionis. Presumption of possession flowing from title is not available where the

land is capable of actual possession by cultivation or otherwise and when there is no

evidence of possession or the evidence adduced is unworthy of credit. The words

"actual possession" do not imply any right to possession. They do not necessarily mean

lawful or legal possession. They include even the possession of mere trespasser. The

possession contemplated by this section is one that is continuous and the isolated act of

a trespasser of possession of a property for a few days cannot clothe him with any right

to have an order in his favour. In some cases it has been held that "actual possession" is

not confined merely to bodily personal possession and that the person may be deemed

to be in actual possession through his servant, agent or manager or tenant or

usufructory mortgagee. In a dispute between the landlords, the Magistrate may make an

inquiry as to who holds the property, though the tenants of the rival parties may be in

actual possession. In a case where a tenant disclaims that he is a tenant of a certain

party, possession of such tenant cannot be considered as the possession of the

landlord. In that case the tenant himself becomes a necessary party to the proceedings.

94

7.17 The following disputes are held to be cognizable under Sec. 145:

(1) Dispute regarding the rights to collect the rent in respect of immovable property;

(2) Dispute relating to possession of standing crops and crops harvested but still on

the land;

(3) Dispute relating to trees growing on the land;

(4) Dispute as to the right to the lac grown on the trees and as to the right to tap the

tree;

(5) Dispute as to possession of a bund;

(6) Dispute as to possession of a Temple, or a Mosque or a Dargha;

(7) Dispute as to mining and boring rights;

(8) Dispute as to right of ferry;

(9) Dispute as to right of fishing;

(10) Dispute relating to a mill.

7.18 Movable property cannot be the subject matter of a dispute under this Section

unless it is in the form of standing crops or other produce of the land or rents or profits

thereof. But where movable property included in the immovable property is in the

premises of such immovable property, it can be held that it belongs to the person entitled

to possession of the immovable property and the Magistrate will have jurisdiction to pass

orders. Cut and severed trees a few days prior to the preliminary order and which are

still laying on or near the lands do fall within the expression "crop or produce of land".

Crops cut and removed from the land do not come within the purview of this section.

7.19 Sub-sec. (3) of Sec. 145 provides for the service and publication of the

preliminary order. It shall have to be served on such person or persons as the Magistrate

may direct, in the manner provided for service of summons. Further the order shall have

to be published by affixing the same to some conspicuous place at or near the subject of

95

dispute. The purpose of publication is to bring the proceedings to the notice of all

persons interested in the preliminary order and also to make known the grounds on

which the proceedings are started. The proceedings are intended to prevent breach of

public peace and therefore the Magistrate cannot call upon any party to bear the

expenses or costs of service of the preliminary order on any party.

7.20 Sub-sec. (8) provides for taking immediate action in respect of crops or other

produce subject to speedy and natural decay. The power to attach in case of emergency

can be exercised by the Magistrate under Sec. 146 of the Code, whereas the power

under Sub-sec. (8) of Sec. 145 is to the effect that the Magistrate may make an order for

proper custody or sale of such property. The words "produce" is not necessarily confined

to what is grown on the land but includes finished articles also.

7.21 The procedure adopted in the inquiry is almost the same as in the trial of

summons cases. The witnesses should be examined in chief, cross examined and re-

examined. The inquiry is expected to be a short and summary one. Sub-sec. (9) gives

discretion to the Magistrate to summon any witness at any stage of the proceedings on

the application of any party. The power of the court under Sec. 311 of the Code to

summon any person as a witness at any stage of inquiry is not in any way impaired by

the provision of Sec. 145. If summons are issued to witnesses and if they do not appear

the Magistrate can issue warrants for their arrest after recording his reasons in writing.

Sub-sec. (4) states that the Magistrate shall hear the parties. It will not be sufficient for

the Magistrate to say that the parties had filed written statements and that it is not

necessary to hear them. Hearing of the arguments is, therefore, mandatory. Sub-sec. (4)

permits both the parties to adduce oral evidence. The Magistrate cannot pass an order

without examining all the witnesses intended to be examined by the parties. In addition

the Magistrate may take further evidence, if any, as he thinks necessary. Under the

provisions of the Code it is sufficient to make a memorandum of the substance of the

evidence in the manner required by Sec. 274. The Magistrate is bound to record the

evidence of the witnesses himself and cannot delegate the duty to a subordinate

Magistrate. An order passed by the Magistrate on the evidence recorded by a

subordinate Magistrate would be without jurisdiction.

7.22 Under Sec. 148 and 310 of the Code, the Magistrate can direct a local

inquiry or make a local inspection in order to appreciate the evidence placed before him.

96

He has no power to direct the subordinate Magistrate to inquire into the question of

possession and then act upon the latter's report. The purpose of holding a local

inspection is only to appreciate the evidence and not to collect evidence. The decision in

the case cannot be based only on the material collected at the time of the local

inspection. Local inspections shall have to be held after due notice to the parties. The

Magistrate must make a record of the relevant facts observed by him at the time of such

inspection.

7.23 In Sub-sec. (4) of Section 145 it has been stated that the Magistrate shall

decide the question of actual possession without reference to the merits or the claims of

any of the parties who have a right to possess. The Magistrate may however, consider

the question relating to title in order to effectively decide the question of possession. The

facts showing the title can be brought on record to corroborate or to supplement other

evidence showing possession. Where the evidence adduced by the parties is equally

balanced and the Magistrate is unable to decide from such evidence as to which of the

parties was in possession, he may hold that the party who has a right to possession was

in actual possession on the date of the preliminary order on the presumption, that

possession follows title. Such a presumption however does not apply to a case where

the evidence of possession on both sides is equally unworthy of credit. The proper

course in such a case would be to pass an order under Sec.146. The fact that a decree

has been passed by a Civil Court awarding possession of the property or the fact that

possession of the property was delivered by a court in a suit between the parties will not

affect the jurisdiction of the criminal court to institute proceedings under this Section. The

fact of delivery of possession or the entry in the record of rights may raise a presumption

in favour of the continuance of that possession. But the other party can show that

subsequently. they have succeeded in effectively dispossessing the person put in

possession. What weight should be attached to any previous order or decree is a

question of fact depending upon the facts and circumstances of each case. Delivery of

symbolic possession is of little value as against judgement debtors who are in actual

possession and the possession of the latter shall have to be upheld in a proceeding

under Sec. 145. The Magistrate is bound to refer to the civil court's decree or order

relating to possession and assign reasons if he arrived at a conclusion different from that

of the Civil Court. He will not be justified in discarding other evidence showing the actual

possession only on the ground that there has been a previous delivery of the possession

in respect of the property. Merely because the dispute relates to a question of joint

97

possession, the Magistrate cannot decline to take action under Sec.145. If once the

Magistrate is satisfied that a dispute exists concerning land, water or the boundaries

thereof he acquires jurisdiction to inquire into the fact of the actual possession. Even if

some of the parties have valid claim' for possession, if the Magistrate finds that on the

date of the preliminary order only one of the parties was in actual possession, he will

have to uphold the possession of person who was in actual possession on the date of

the preliminary' order irrespective of the rights of other parties. Where there are different

joint owners claiming possession of different portions of the properties on the date of the

passing of the preliminary order, the Magistrate must consider each portion of the

property as a separate subject matter of dispute and pass orders. If on the date of the

order, both the parties are in joint possession of the property the Magistrate cannot pass

any order upholding the possession of one of the parties to the exclusion of the other.

Equally so, the Magistrate cannot uphold the said joint possession. However, the

possession of a group of persons claiming exclusive possession as a unit against other

can be upheld under this section.

7.24 Under the proviso to Sub-sec. (4) of Sec.145 the Magistrate shall have to

first decide as to who was in actual possession of the property in dispute on the date of

the preliminary order. If the Magistrate finds that the person in possession on the date of

the preliminary order had obtained possession forcibly or wrongfully dispossessing

another party within a period of two months from the date of the preliminary order, the

possession of such party shall have to be upheld. The Magistrate shall have to treat the

party so dispossessed as if he had been in possession on such date (i.e., on the date of

the preliminary order) and restore his possession. The dispossession contemplated

under the proviso to Sub-sec. (4) should be both forcible and wrongful. If the forcible

entry is rightful, proviso to Sub-sec. (4) does not come into operation. For instance,

where a person issued with a warrant of delivery of possession makes a forcible entry

into the property 'it cannot be called as a wrongful possession. On the other hand where

a person who had only a right to possession forcibly takes possession by taking the law

into his own hands, it would be a case of wrongful and forcible dispossession. The word

"wrongful" thus means possession taken otherwise than in due course of law.

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7.25 The Magistrate may 'suo-moto' drop the proceedings if he is satisfied at any

stage of the proceedings that there is no likelihood of the breach of peace as for

example in the following cases:

(a) Where the petitioner agrees that he would give up his right and

he would not claim any possession of the property in dispute.

(b) Where one of the parties files a suit in respect of property in dispute and a

civil court appoints a Receiver for the property.

(c) Where a decree has been passed by a Civil court awarding possession to

one of the parties.

(d) Where a Revenue Court has restored a party to the possession of the

disputed land.

(e) Where the applicant's possession is joint and not exclusive, the

Magistrate would not be in a position to make an order regarding

exclusive possession in favour of the party.

7.26 Mere institution of a civil suit is no ground to stay the proceedings. Any

incidental finding by a court in a criminal case regarding possession of one of the parties

cannot make the proceedings liable to be stayed. Even if both the parties file a joint

petition for dropping the proceedings, the Magistrate must satisfy himself that the

compromise between the parties is real one and that there is no more cause for

apprehending the breach of the public peace and then only drop the proceedings. If,

after institution of the proceedings, the opposite party files a suit for the declaration of

title and confirmation of his possession and further obtain an interim injunction against

the applicant the Magistrate would not be justified in continuing the proceedings under

this Section.

7.27 Sub-Sec. (6) of Sec. 145 provides for making a final order. Such an order

shall have to justify the following requirements:

I. It should decide that one of the parties was in possession or should be deemed

to be in possession under the proviso to Subsec. (4).

II. The order should declare that such party is entitled to possession until evicted in

due course of law.

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III. It should forbid disturbance of possession until such eviction.

IV. In case the Magistrate proceeds under the proviso to Sub-sec. (4) it should

restore possession if the party is dispossessed.

7.28 The reasons for arriving at the findings must be recorded by the Magistrate. An

order which does not give reasons for the findings will not be sustainable. Magistrate will

not be justified in restraining both parties from entering into the disputed land without

deciding the question of possession. Such an order would be unsustainable. Similarly an

order in favour of a person who is not a party to the proceedings or who, though made a

party, disclaims any interest in the disputed property is without jurisdiction. Any order

passed under Sub-sec. (6) is no doubt final, but it is intended to be effective only upto

the time, till a competent court passes an order of delivery of possession to the

successful party to the proceedings or passes such order as may be necessary for the

protection of the property. Where a Civil Court appoints a Receiver in respect of the

property or where a Civil Court awards restitution of the property under Sec. 144 of the

Civil Procedure Code or under any proceedings under Sec. 6 of the Specific Relief Act,

1963, evicts the person in possession, the final order under Sub-sec. (6) comes to an

end and the person entitled to possession in accordance with the orders of the Civil

Court shall have to be put in possession. It is not necessary that such an order or decree

should be of a civil court. It is sufficient if the order is by a court acting under statutory

authority to award possession.

7.29 No express provision is made authorising the Magistrate to place the

successful party in possession. This statement is however, subject to the power of the

Magistrate to restore. possession to the persons who are entitled to get possession by

virtue of the proviso to Sub-Sec. (1). The result of the order of the Magistrate is to enable

the successful party to take possession of the property. The Magistrate would be

justified if he enforces his order against persons disobeying it either by instituting

proceedings against them under Sec. 188 I.P.C. or by proceedings under Sec. 114 or

107 of the Code. In addition, the Magistrate may initiate proceedings for contempt of

court. An order under Sub-sec. (6) amounts to dispossession of the party against whom

the order is passed. An unsuccessful party, cannot file a suit under Sec. 6b of the

Specific Relief Act, 1963. A final order passed under Sub-sec. (6) does not amount to

"Judgment" in trial. Section 353, 354, 362 of the Code do not apply, but still the general

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principles underlying these provisions do apply and a final order under Sec. 145 has to

be pronounced in open court by the Magistrate who heard the proceedings and not by

his successor.

7.30 On the question whether persons not actually parties to the proceedings are

bound by an order passed under this Section, many of the High Courts have held that it

binds all the persons concerned in the dispute who had notice of the proceedings. The

proceedings started under Sec. 145 can be converted into those under both the

sections. However, a proceeding started under Sec. 145 cannot be converted into one

under Sec. 107 on a mere finding that none of the parties to the dispute was in

possession of the land on the date of the preliminary order. Similarly, in a proceedings

under Sec. 145 the Magistrate cannot take security from any or all of the parties.

7.31 Under Sec.133 of the Karnataka Land Reforms Act, where the tenancy of a

person, claiming to be in possession of an agricultural land is disputed, the matter will

have to be decided by the Tribunal under that Act and any proceeding before any other

Court or authority in so far as such question is concerned shall have to be stayed and

the matter referred to the Tribunal for a decision. A Magistrate however, does not lose

jurisdiction to proceed under Sec. 145 of Criminal Procedure Code, because the same

proceeding is pending in respect of land before the Tribunal. The dispute mentioned in

Sec. 145 is not a dispute concerning any land but a dispute likely to cause a breach of

peace concerning any land. It has accordingly been held by the High Court of Karnataka

that Sec. 133 Land Reforms Act will not be a bar to a proceeding before a Magistrate

under Sec. 145 of Cr.P.C.

Power to attach subject of the dispute and to appoint Receiver:

7.32 Sec. 146 is a corollary to Sec. 145 and the proceedings under Sec.146

are in continuation of those under Sec. 145. If at any time after making an order under

145 (1) the Magistrate considers the case to be one of emergency or if on inquiry under

Sub-sec. (4) of Sec. 145 the Magistrate finds that none of the parties was in actual

possession of the subject of dispute on the date of the preliminary order or if the

Magistrate is unable to satisfy himself as to which of them was in such possession he

may attach the properties under this Section, until a competent court determines the

rights of the parties with regard to the person entitled to the possession. As soon as a

competent court determines the rights of the parties to the subject of dispute or its

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possession, the Magistrate ceases to have authority to retain control on the property,

and he has to withdraw the attachment and deliver possession on the basis of such

judgment. An order under this Section shall have to be in Form No 26 of Second

Schedule of Cr. P.C. Proviso to Sec. 146 (1) provides that the Magistrate may pass an

order raising an attachment whenever he is satisfied that there is no longer any

likelihood of breach of peace.

7.33 Under this Section the Magistrate has the power to make an order regarding

the management and control of the property during the period of attachment. He can

appoint some person to manage the property on his behalf and subject to his control and

supervision. The Magistrate may even settle the land with the highest bidder in the case

of temple property. He may also make necessary arrangements for the performance of

the daily puja. If the property attached is of a "mutt" the Magistrate has power to pass an

order regarding jewellery or other movable property belonging to the "mutt". He will not

be exercising his discretion judiciously if he appoints one of the parties to the dispute to

manage the property on his behalf. The person appointed to manage the property can

be reimbursed for legitimate cost incurred by him for the management of the property.

He is only an agent of the Magistrate and has all the powers of a receiver under the Civil

procedure Code. Soon after an attachment is made, the property passes into the

custody of the court and any person entering upon the land would be liable to be

punished under Sec. 447 I.P.C.

7.34 The Magistrate is empowered under this Section to attach the subject of

dispute in three cases, viz., (i) if it is a case of emergency; or (ii) if none of the parties

was in possession; (Hi) if no decision is possible as to the possession. And the order of

attachment remains in force until a competent court decides the rights of the parties or

until the Magistrate, on being satisfied that there is no longer any likelihood of a breach

of peace, withdraws it. If a receiver is appointed subsequently by any civil court, then the

Magistrate's receiver shall handover the subject of dispute to the receiver of the Civil

Court.

Dispute concerning right of use of land or water:

7.35 Sec. 147 deals with the power of the Executive Magistrate to take preventive

action in cases of disputes concerning rights of use of land or water, whereas Sec. 145

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empowers the Magistrates to take preventive action in respect of disputes concerning

land or water or the boundaries thereof. Under this Section, temporary orders can be

passed until the rights of the parties are decided by a Civil Court. Under Sub-sec. (2) the

Magistrate shall have to hold an inquiry and then pass necessary orders. The District

Magistrate has powers under Sec. 411 of the Code to transfer the proceedings instituted

under this Section. These proceedings are quasi-civil in nature.

Object and Scope:

7.36 A proceeding under this Section is a quasi-civil proceeding. If, therefore, the

question at issue between the parties has already been the subject-matter of suit in the

civil court, the trying Magistrate has no jurisdiction to institute the proceeding. It would

not be sufficient that there should be a mere discussion or verbal altercation between

persons claiming rights of the kind described. There must be an acute dispute. In order

to give jurisdiction to a Magistrate under this Section, he must be satisfied from the

police reports, or other materials that there is an imminent danger of a breach of the

peace resulting from a dispute between the parties concerned. There should be a

present dispute and a present fear of disturbance; and the section will not apply to a

state of things indicating that there may be a breach of the peace in future.

7.37 Under Sub-sec. (1) the jurisdiction of the Magistrate to institute proceedings

under this Section arises only when he is satisfied that a dispute exists concerning the

right of use of land or water and further that such a dispute is likely to cause a breach of

peace. The Magistrate has to record a finding that has is so satisfied on the material

before him and draw up a preliminary order showing the grounds. He cannot drop the

proceeding merely on the ground that the dispute relates to the rights exercisable only at

particular season and that the season is over.

7.38 The words" Land or water" carry the same meaning as in Sec. 145(2). They

are not confined to private property only, but they are wide enough to include public

properties, such as public roads, streets, pathways and channels. The power under this

Section should not be exercised until it is clearly proved that there is a right by custom or

by grant or by statute, in one section of the public to prevent another section of the

public from using the public street or pathway on particular occasions or for particular

purpose, when such use is prima facie lawful. The word "right" appearing in this

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section suggests that it must be a legal right. If the right claimed is not legal no

proceedings under this section can be started. For instance a right to restrain another

from fishing in the seas cannot be enforced under this Section. The use must be as right.

Any use by way of licence or permission will not be sufficient to proceed under this

section.

7.39 In some cases the following" rights" are held to be public rights in respect of

which proceedings may be initiated;

1) a right to take a car in procession along a public road to a temple.

2) a right to enter a temple or other place of public worship and perform puja

therein, or to worship therein.

3) a right to enter a mosque and officiate as kazi thereon.

4) a right to perform chandanakudam festival.

5) a right to bury dead in burial ground.

6) a right to enter a samadhi.

7) a right to erect a bund.

8) a right to go upon land of another for the purpose of collecting

gratuities for certain religious purpose.

9) a right of way absolute or limited by the exclusion of vehicular traffic.

10) a right to lay warps in a street.

11) a right to let off water by its natural course.

12) a right to fish.

13) a right to moor boats and dry fishing nets on the land of another.

14) a right to use the water emanating from the river and. running through a

particular channel; but not a right to the flow of water in a nullah.

15) a right to irrigate from a tank.

16) a right to use of water of a tank.

17) a right to use the water of a well.

18) a right to ply ferries.

19) a right to drain off surplus water

20) a right to hold a private market on the Government land by long and immemorial

user.

21) a right of grazing on certain land.

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7.40 On the other hand the following "rights of user" of land or water have been

held not to be such rights which can give cause to a proceedings under this Section;

1) a right to an undivided share in a property.

2) a right to remove sandalwood paste from the person of an idol.

3) a right to a dignity or privilege not property cognizable by a Civil Court.

4) a right relating to offering in a temple.

5) an obstruction of a drain into which the sewage of complainant's

premises fell.

7.41 The word "otherwise" appearing in this Section shows that the section

can be applied to cases where a person may not have a right of easement but may have

acquired a right of user by grant or custom. Such a right shall have to be a right distinct

from the use of the land as an owner. The word "easement" has been used in this

Section not in the restricted sense in which it is used under the English law, now is it

confined to such easement as required under Sec. 25 of the Indian Limitation Act, 1963.

What the Sub-sec. (3) provides is that the right must have been exercised within three

months next before the receipt of the report of the Police officer or other information

leading to the institution of inquiry.

7.42 In the first instance the Magistrate must make a preliminary order in writing

stating the grounds of his being satisfied as to the existence of a dispute likely to cause

a breach of peace and requiring the parties concerned to attend his court and put in

written statement the respective claims to the right in dispute. The preliminary order

may direct a party not to interfere with the exercise of the right claimed by the other party

pending disposal of the matter, but the Magistrate cannot pass an absolute order

requiring party not to interfere with the exercise of such right until he obtains a decree or

order from a competent Civil Court.

7.43 The words "parties concerned in such dispute" used in this Section show that

once an inquiry is instituted, the Magistrate will have power to add such person as he

deems necessary for the proper decision of the dispute. The owner of the land in regard

to which a way is claimed is a necessary party, though he may not be actually

concerned with the dispute. The right to use a pathway for carrying dead bodies is of

such a nature that the entire public will be interested and in such cases the provisions

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contained in order (1) Rule 8 of Civil Procedure Code may be followed. An order passed

without the necessary parties on record will not be binding on such parties and therefore

care should be taken to bring on record all the concerned parties to the dispute. But no

parties can be added after the commencement of the inquiry. It is obligatory upon the

Magistrate to see that the notices are served before a final order is passed under this

Section.

7.44 The proceedings under this section being of an emergency nature, elaborate

inquiry into the rights of the parties are not contemplated. After the parties file their

written statements, the Magistrate shall have to hear the parties, receive all such

evidence as may be produced by them, take such further evidence as may be necessary

and decide the question of existence of such right as claimed by the parties. As regards

the procedure, the provisions contained in Sub-sec. (5), (7) and (9) of Sec. 145 would be

applicable to the proceedings under Sec. 147. Where the Magistrate appoints a

Commissioner to hold a local inspection, he cannot take into evidence the report of the

Commissioner without calling him for examination in Court. The Magistrate should not

pass an order merely on the ground of the convenience of the parties or on the basis of

any private information given to him. The subject matter of the dispute under this Section

being a right of use of land or water the Magistrate cannot pass an order of attachment

or an order appointing a Receiver. Similarly he has no power to pass any interlocutory

order restraining the parties from exercising their rights pending inquiry. In case of

imminent danger to the public peace calling for immediate action, the Magistrate shall

have to proceed under Sec. 144 and not under this Section. The proceedings under this

Section having been instituted for the prevention of the breach of peace, the applicant or

the person on whose application the proceedings are started cannot be called as a

complainant. The proceedings, therefore, cannot be dismissed for default of such

applicant or informant.

7.45 According to Sub-sec. (3) of Sec. 147, if the Magistrate finds that such a right

exists he may make an order prohibiting any interference with the exercise of such right

and also order for the removal of such obstruction. Under the proviso to Sub-sec. (3), the

Magistrate is required to give a finding as to the exercise of such right. Where he finds

that the right itself did not exist no question of recording a further finding about its use

arises. It is not necessary that any specific instance of the exercise of the right should be

proved where a general continuance of exercise of such right is satisfactorily made out.

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In cases where the facts necessary are on record, the Magistrate may draw presumption

under Sec. 114 of the Indian Evidence Act to the effect that the party having the right of

user of the land exercised such right in the absence of clear evidence to the contrary.

Under the proviso to Sub-sec. (3) it has been now specifically laid down that the order

under this Section cannot be made, where the right is exercisable at all times of the

year, unless such right has been exercised within three months next before the receipt of

the report of the police officer under Sub-sec. (1) or other information leading to the

institution of the inquiry. In such cases where the right is exercisable only at a particular

season or on particular occasion, it must be found out whether such right has been

exercised during the last of such seasons or occasions. Under Sub-sec. (3) the

Magistrate is empowered even to order for the removal of any obstruction in the exercise

of any such right. An order under this Sub-section must be in Form No 27, of Second

Schedule of Cr.P.C.

7.46 Sub-sec. (4) provides for the conversion of the proceedings commenced

under Sec. 145 into proceedings under Sec. 147 if the Magistrate finds that the dispute

is regarding an alleged right of user of land or water. A proceeding commenced under

Sec. 133 cannot be converted into a proceeding under Sec. 147 unless the conditions

necessary to give the Magistrate jurisdiction under this Section are established and a

preliminary order is passed. It is competent for the Magistrate under this Section to pass

an order of staying or dropping the proceedings on the ground that a civil suit has been

instituted and that there is no likelihood of the breach of the peace. Once the

proceedings are dropped, they cannot be revived subsequently. However, dropping the

proceeding does not preclude any party from moving the Magistrate by another

application for asking fresh proceedings under this Section.

Local inquiry:

7.47 Sec. 148 provides for local inquiry in proceedings under Sections 145, 146, and

147. The object of holding a local inquiry is that it should assist the Magistrate in

determining the boundaries or identity of the property in dispute and to aid him in

appreciating the evidence on record. A local inquiry cannot be directed on matters which

are required to be proved by evidence. The function of making investigation into the

dispute regarding possession cannot be transferred to a Subordinate Magistrate. A

person deputed for local inquiry under this Section is competent to examine witnesses if

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directed. The report of the inquiry forms part of the proceedings and therefore the inquiry

should not be held without due notice to the parties. The Magistrate concerned must

depute only a Magistrate subordinate to him and not any other person to make a local

inquiry if examination of witnesses is required. Sub-sec. (2) of Sec. 148 provides that the

report of the person so deputed forms part of the evidence on record. A party affected by

this is entitled to an opportunity of rebutting the same. Any evidence of witness recorded

by the Magistrate deputed for local inquiry cannot be acted upon unless the parties are

heard on the point. After receiving the report, the Magistrate has to hold further inquiry

and decide the matter. He cannot base his order merely on such report without taking

into account the evidence tendered by the parties before him. However, if no evidence is

adduced by the parties the Magistrate can act upon the said report.

7.48 Sub-sec. (3) provides for the costs incurred by the parties to a proceeding

under Sec. 145, 146 and 147. The levy of costs are within the discretion of the

Magistrate who finally disposes of the proceedings. Where the Magistrate, trying the

case has passed an order for costs, the recovery or assessment thereafter can be made

by the successor. Compensation on account of loss suffered due to the inability to the

opposite party to harvest the crops on account of the proceedings under Sec.145 cannot

be treated as an order for costs. The Magistrate may include the cost in making an order

of attachment under Sec.145(4). The cost incurred for the payment of remuneration to

the manager appointed for the land attached can be ordered. The costs incurred must

be commensurate with the witnesses examined and the number of hearings. An order

awarding costs should ordinarily be made simultaneously with the order on the merits.

An actual assessment may be made later. However, there is no bar to pass an order on

merits and then reserve Judgement as to the costs, but it shall have to be. passed within

a reasonable time. In such a case notice must be given to the party against whom the

order will be passed. The Magistrate has the power to pass an order for the costs only

against the person who is a party. Where party has succeeded substantially, it is proper

that the opposite party should be ordered to pay the costs. Where an order awarding

costs has been made by a Magistrate, neither he nor his successor can refuse to

recover the costs on ground of delay, as there is no discretion given to the Magistrate by

this Section or by Section 421 to refuse to recover the costs.

000

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CHAPTER - VIII

INQUESTS AND INQUIRIES INTO

UNNATURAL DEATHS

(Sec. 174 to 176 of Criminal Procedure Code)

8.1 Sees. 174 to 176 of the Criminal Procedure Code deal with inquests or inquiries

into unnatural deaths. When the officer in charge of Police Station or some other police

officer specially empowered, receives information, that a person has committed suicide

or has been killed or has died under circumstances raising a reasonable suspicion that

some other person has committed an offence, he shall immediately send a report to the

nearest Executive Magistrate empowered to hold inquests (Sub-Divisional Magistrate) in

Form No. 142 of the Karnataka Police Manual. Thereafter the police officer concerned

shall immediately proceed to the place where the body of such deceased person is, and

unless otherwise directed by the Sub-Divisional Magistrate, shall make an investigation

and draw up a report of the apparent cause of death (Sec. 174 (1). He shall send the

dead body immediately for Post Mortem examination, to the nearest Civil Surgeon or

other qualified medical officer. He shall obtain the Post Mortem examination report

immediately and submit the. final report to the Sub-Divisional Magistrate, most

expeditiously, for further necessary action in the matter.

8.2 The Sub-Divisional Magistrate should obtain the final report from the police in

about three days after the occurrence of death of the deceased person; otherwise, the

very object of this Section is likely to get defeated. On perusal of the final report, if the

Sub-Divisional Magistrate agrees with the opinion furnished by the police officer

concerned as to the cause of death, he may accept the some and intimate the police

accordingly. However, if he disagrees with the opinion of the police or deems it fit and

necessary to inquire into the cause of death himself, either instead or in addition to the

investigation held by the police officer, he may do so at any time in the manner indicated

below.

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8.3 The Code has empowered any District Magistrate or Sub-Divisional

Magistrate and any other Executive Magistrate specially empowered in this behalf by the

State Government or the District Magistrate to hold inquests [Sec.174(4)].

8.4 Rules regarding the conduct of Post-mortem examination by the Medical Officer

and points to be observed while investigating case of unnatural or suspicious death are

found in orders 1374 to 1396 (Chapter XXXV) of Karnataka Police Manual (Volume II)

and it is necessary that Magistrate empowered to hold inquests should go through the

same.

8.5 Section 176 of the Code of Criminal Procedure, 1973, confers powers on the

District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate,

specially empowered in this behalf by the State Government or the District Magistrate to

hold inquest on the dead-body of the person who has died while in the custody of the

Police or in any other case mentioned in Sub-sec. (1) of Sec. 174. The object of this

Section is that an inquiry into a suspicious death should not depend merely upon the

opinion of the Police but there should be a further check by a Magistrate holding an

independent inquiry directed to elucidate the facts of a violent or unnatural death before

there is any reasonable suspicion of the commission of an offence. The Magistrate

conducting the inquest shall have all the powers which he would have in holding an

inquiry into an offence.

176. [(1) †[***] when the case is of the nature referred to in clause (i) or clause (ii) of sub-

section (3) of section 174] the nearest Magistrate empowered to hold inquests shall, and

in any other case mentioned in sub-section (1) of section 174, any Magistrate so

empowered may hold an inquiry into the cause of death either instead of, or in addition

to, the investigation held by the police officer; and if he does so, he shall have all the

powers in conducting it which he would have in holding an inquiry into an offence.

‡ [(1-A) Where-

(a) any person dies or disappears, or

(b) rape is alleged to have been committed on any woman,

while such person or woman is in the custody of the police or in any other custody

authorized by the Magistrate or the Court, under this Code in addition to the inquiry

or investigation held by the police, an inquiry shall be held by the Judicial Magistrate

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or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction

the offence has been committed.]

(2) The Magistrate holding such an inquiry shall record the evidence taken by him in

connection therewith in any manner hereinafter prescribed according to the

circumstances of the case.

(3) Whenever such Magistrate considers it expedient to make an examination of the

dead body of any person who has been already interred, in order to discover the

cause of his death, the Magistrate may cause the body to be disinterred and

examined.

(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever

practicable, inform the relatives of the deceased whose names and addresses are

known, and shall allow them to remain present at the inquiry.

*[(5)The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or

police officer holding an inquiry or investigation, as the case may be, under sub-

section (1-A) shall, within twenty-four hours of the death of a person, forward the

body with a view to its being examined to the nearest Civil Surgeon or other qualified

medical man appointed in this behalf by the State Government, unless it is not

possible to do so for reasons to be recorded in writing.]

Explanation.- In this section, the expression “relative” means parents, children,

brothers, sisters and spouse.

† The words “When any person dies while in the custody of the police or “ omitted by the CrPC (Amendment) Act, 2005 (25 of

2005), S.18 (to be effective from the date of its notification).

‡inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.18 (to be effective from the date of its notification).

*inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.18 (to be effective from the date of its notification).

WITNESSES TO INQUEST

Criminal P.C.S. 174 – Investigation- INQUEST REPORT – Is prepared by

Investigation Officer to find out prima facie the nature of injuries and the possible

weapon used in causing those injuries as also the possible cause of death – Witnesses

of inquest were also eye-witnesses – Fact that they did not state names of assailants

while describing cause of death in Inquest Report – Sufficient to doubt their presence at

spot at time of occurrence. (Para 15) (Suresh Rai v. State of Bihar AIR 2000 SC

2207)

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Exhumation:

8.6 Whenever a Magistrate empowered to hold inquest considers it expedient to

make an examination of the dead-body of any person, who has been already interred, in

order to discover the cause of his death, the Magistrate may cause the body to be

disinterred and examined by the nearest Civil Surgeon or other qualified medical officer.

8.7 The following points should be borne in mind regarding the formalities

precedent to exhumation and Post-mortem examination.

I. The Magistrate shall examine witness to prove the identity of the disinterred body

before commencing the investigation.

II. The dead-body should not be exhumed after sun-set.

III. The Corpse must be exhumed in the presence of two or more respectable

inhabitants of the locality.

IV. The Corpse must be exhumed in the presence of a doctor.

V. Wherever practicable, the relatives of the deceased, whose names and

addresses are known, shall be informed about the exhumation and examination

of the dead-body, and they shall be allowed to remain present at the exhumation.

VI. Crowding round the body should be avoided.

VII. The body may be handed over to the relatives of the deceased after post-mortem

examination depending upon the facts and circumstances of the case.

8.8 If the Magistrate suspects foul play, he shall direct the police to investigate

into the matter further.

8.9 The District Magistrate or the Sub-divisional Magistrate is also empowered to

pass an order authorising any officer-incharge of a Police Station or any superior Police

officer lawfully making an investigation into the unnatural or sudden death of any person,

whose body has been already buried, to exhume it and get it examined by the nearest

Civil Surgeon or any other qualified medical officer.

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Death in police Custody:

8.10 Order 193 of the Karnataka Police Manual deals with procedure to be

followed in cases of inquiry into cases of death or injury in Police custody. On receipt of

a requisition from the Police to hold inquest proceedings on the dead body of a person,

who has died while in the custody of the Police, the Executive Magistrate empowered to

hold inquest shall proceed to the Police Station where the death has occurred. It is

desirable that he should take an official of his office along with him for assistance. Before

starting the Inquest Proceedings, the Magistrate shall, wherever practicable, inform the

relatives (Parents, Children; Brothers, Sisters, and Spouses) of the deceased, whose

names and addresses are known, and shall allow them to remain present at the inquiry.

He shall secure two or more independent and respectable Panchayatdars, through the

official accompanying him, who should remain present throughout the Inquest Proceed-

ings.

8.11 The cause of death of the deceased, according to the Police, will be

generally:

(i) Suicidal hanging; or

(ii) Consuming poison; or

(iii) Heart-failure; or

(iv) Fits.

8.12 In order that no important medico-legal evidence may be overlooked, the

following relevant points of procedure and observation, mentioned in the Karnataka

Police Manual are to be carefully attended to by the Magistrate:

1. In cases of hanging

(a) to carefully inspect the position of the body and the surroundings and find

out whether the doors and windows of the room where the body is

suspended, are bolted from inside and outside;

(b) to note, before cutting down the body any lividity of face, especially of lips

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and eyelids, any projection of the eyes, the state of the tongue, whether

enlarged and protruded or compressed between the lips, the escape of

any fluid from the mouth and nostrils and direction of its flow;

(c) the ligature should be removed by cutting away from the knots;

(d) the ligature should be preserved for comparison and identification later

with the materials found in the room;

(e) the ligature should be examined for any blood stains on any foreign

material or hair sticking;

(f) on cutting down the body or removing the strangulating medium to note

the state of the neck whether bruised along the line of the strangulation.

(g) to note:

(i) the number of ligature marks;

(ii) their depths;

(iii) their directions;

(iv) their colour;

(v) their pattern positions;

(vi) discharges from mouth, nose and ear;

(vii) marks of saliva on the chin and chest

(viii) external appearances of decomposition such as:

- protrusion of eye-balls

- protrusion of tongue;

- discharge of blood-stained fluid from nose and mouth

- blobs on the body;

- peeling of the skin on the body;

(ix) injuries cause by the victim in attempting to commit suicide by the

means, viz., cuts in neck, wrist, etc.;

(x) injuries by coming into contact with furniture, walls, etc., during

convulsive movements of the body;

(xi) injuries caused by anti-bites, etc.; and

(xii) any particular smell emanating from the body;

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(h) to note the state of the thumbs, whether crossed over the palm;

(i) to examine the clothes;

(ii) for tears,

(ii) for signs of struggle,

(iii) blood stains

(iv) seminal stains,

(v) stains of vomit,

(vi) faecal matter, and

(vii) urine.

(j) to seal all materials, such as ropes, or clothes by which hanging has been

effected, as well as any other articles found in the room, where the body has been found

hanging.

In addition to the points mentioned above in the Police Manual, the

Magistrate should get the body photographed before and after lowering it. He should

also get the length, breadth and height of the room and the distance of the feet of the

deceased from the floor, measured. A sketch of the room indicating the position of the

dead body before it is lowered should be prepared.

2. In case of Poisoning:

(a) to get any food, drink, tobacco or drugs found near the body collected and

preserve the same under seal;

(b) if vomiting had occurred, to swab up with clean rag any vomited matter

which may be on the person or floor and seal up the rag. in a packet;

(c) to get any clothing, matting, etc., into which any vomit matter has soaked,

sealed;

(d) to ascertain the exact time between the taking of food, drinks or

medicines, the appearance of symptoms and the occurrence of death;

(e) to examine the colour of the body and the face; and

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(f) to see whether the body is contorted

It should be borne in mind that it is possible to push some poison through a tube

inserting it into the mouth and pressing it upto the stomach-even after the death of a

person, and that if the poison remains in the stomach only and does not enter the blood

vessels and effect all the organs and particularly the respiratory system, it cannot cause

death.

3. In case of Heart failure:

As regards death due to heart failure, it is the medical expert alone who can

say for sure whether the death has occurred due to heart failure. The Magistrate should

ascertain from the Police:

(a) approximate time when the deceased suffered heart attack;

(b) whether he was sweating; and

(c) arrangements made for the treatment.

4. In case of Fits:

(a) to ascertain from the relatives of the deceased whether he had

convulsions and epileptic fits in the past;

(b) to ascertain the time when the deceased had an attack of fits,

arrangements made for the treatment and the time of death;

(c) to find out whether the tongue is compressed between the teeth;

(d) Whether there are any signs of froth having come out of his mouth when

he fell unconscious.

In all the above cases, it is desirable to take the photograph of the body as it

is found without disturbing it. If the photograph does not give a view of the face, another

photograph should be taken of the head and shoulder keeping the body in a suitable

position.

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8.13 After completing the above formalities, the Magistrate should examine the dead-

body carefully and systematically starting either from the head or from the surface of the

feet and record the nature, shape, position, length, breadth and depth of wounds,

bruises, contusions or other marks of injuries. Whatever may be the apparent cause of

death, body should be carefully examined to see if there are any injuries. The Magistrate

should prepare a report of Investigation in Form No. 145 Karnataka Police Manual

carefully avoiding vague expressions. The investigation should be completed at a stretch

without adjourning it or completing it in instalments. He should also obtain the signatures

of the Panchayatdars who concur with the opinion furnished in the Inquest Report, and

record the statements of the concerned Police Officials, separately in Form No. 137

Karnataka Police Manual.

8.14 Thereafter, the dead-body must be sent for Post-mortem Examination along

with (i) necessary report prepared in the Annexure to Form NO. 146; and (ii) a copy of

the Inquest Report, Any substances found near or on the deadbody should also be sent

for examination.

8.15 If, after pursuing the Post-mortem Examination Report and weighing the

circumstantial evidence, collected by him while conducting the Inquest Proceedings the

Magistrate is satisfied that the death is not due to any foul play, he may close the case

and send a report to the District Magistrate. However, if he suspects any foul play, he

must send a detailed report to the jurisdictional Chief Metropolitan Magistrate or Chief

Judicial Magistrate as the case may be, under Sec. 190 of Cr.P.C for further inquiry into

the cause of death of the deceased.

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CHAPTER - IX

EVIDENCE IN INQUIRIES

Mode of taking and recording evidence:

9.1 Section 273 of the Code lays down that all evidence in the course of the

trials or inquiry, or other proceeding should be taken in the presence of the accused or

where his personal attendance is dispensed with, in the presence of his pleader. The

term accused includes a person in relation to whom any proceeding under Chapter VIII

has been commenced under this Code. A contravention of the provisions of this section

vitiates the trial or the inquiry. In counter cases or cases which are intimately connected

with each other, a court has no right to consider the evidence given in one case for the

purpose of reaching its conclusion in the other. The two cases shall have to be tried

separately and determined on the basis of the evidence. recorded in each of them.

However, where more than one similar case is consolidated proceeding can be used for

the disposal of all the cases which are consolidated.

9.2 Section 274 states that in all summons cases and in all inquiries under

Sec. 145 to 148 and in all proceedings under Sec. 446 the Magistrate shall, as the

examination of' each witness proceeds, make a memorandum of the . substance of the

evidence in the language of the court. If the Magistrate is unable to make such a

memorandum himself he shall after recording the reasons for his inability, cause such

memorandum to be made in writing or from his dictation in open Court. Such

memorandum shall have to be signed by the Magistrate and it forms part of the record.

Sec. 274 thus makes it clear that the evidence of each witness need not be recorded

verbatim and it is sufficient if the substance of such evidence is recorded as the

examination of each witness proceeds. The memorandum of the substance of the

evidence given shall have to be full. If it is inadequate or vague, the procedure followed

will be unsustainable. The memorandum made under this section need not be read over

to the witnesses, because it is not the evidence in the words of the witness. Such

memorandum recorded by a Magistrate can be used by his successors (Sec.336).

9.3 Whenever any evidence is given in a language not understood by the accused

and if he is present in the court in person, such evidence shall have to be interpreted to

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him in open court in a language understood by him. If the accused appears by a pleader

and if the evidence is given in a language other than the language of the court and not

understood by the pleader, it shall have to be interpreted to such pleader in that

language. When the documents are put for the formal proof, it is within the discretion of

the court to interpret as much thereof as appears to be necessary (Sec. 279).

9.4 Section 280 of the Code empowers the Magistrate who has recorded the

evidence of the witness to record such remarks as he thinks material, respecting the

demeanour of such witness whilst under examination. Indeed, unsatisfactory demeanour

is material, but does not always assure indication of falsehood. Similarly good or

satisfactory demeanour is not always a real test of truth. The attestation of a Magistrate

that at the time of the deposition of certain witness, he was in such a weak state of mind

that the Magistrate was unable to proceed with the examination and that the witness

could not answer more than two questions is proof. of unsatisfactory demeanour. Under

this section, a Magistrate is not authorised to record any remarks about the credibility of

the witness until the whole evidence is taken.

9.5 Sub-sec. 2 of Sec. 281 provides that whenever an accused is examined by

any magistrate, other than the Metropolitan Magistrate, or by a Court of Session, the

whole of such examination including every question put to him and every answer given

by him shall have to be recorded in full by the Magistrate himself or where. he is unable

to do so owing to physical disability or other incapacity" it shall have to be recorded

under his dictation and superintendence by an officer of the court appointed by him in

this behalf. The record must be in the language in which the accused is examined or if

that is not practicable in the language of the court {(Sec. 281 (3)). The record must be

read over to the accused or if he does not understand the language in which it is written,

it must be' interpreted to him in the language he understands and he should be at liberty

to explain or add to his answer { Sec. 281 (4)}. It shall thereafter be signed by the

accused and the Magistrate shall have to certify, under his own hand, that the

examination was taken in his presence and hearing, and that the record contains full and

true account of the statement made by the accused { Sec.281 (5)}.

9.6 The provisions contained in Sec. 281 regarding the record of examination of

the accused is applicable to the various proceedings held by the Executive Magistrates,

unless it is expressly provided otherwise in the Code.

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Duty of Interpreter

9.7 An interpreter is bound to state the true interpretation of such evidence

or statement made before the Court. (Sec. 282).

General Provisions as to Inquiries and Trials:

9.8 A person accused of an offence before the Criminal Court or a person against

whom proceedings are initiated before a Magistrate has a right to be defended by a

pleader of his choice (Sec.303). From this it follows that notice of the date fixed for

hearing shall have to be given to the accused person who is being proceeded against,

so that he may make arrangements for his defence by a pleader of his choice. Full

opportunity shall have to be given to the said person to get proper legal advice and

assistance before he is called upon to participate in the proceedings. He is entitled for

proper and reasonable opportunity for engaging a Pleader of his choice and for that

purpose he may seek adjournments. Inquiries should be, as a rule, held during the

court hours. Any departure from this rule is highly objectionable and can be justified

only on exceptional grounds. The counsel appointed to defend the accused or person

proceeded against must be given sufficient time to consult him and prepare the case for

his defence. The right to be defended necessarily includes the right to advance

arguments. The court is therefore bound to hear arguments offered at any criminal trial

or proceeding. It is the duty of the Presiding Officer to take such notice of such

arguments as he thinks fit when they are being submitted. Written arguments may also

be admitted. Discretionary power under this section should be invoked for the ends of

justice. An inquiry or trial comes to an end when the judgement/order is pronounced

and until then the Court has power to act under this Section. In order to afford proper

opportunity to the parties the court should inform before hand the names of the

witnesses intended to be examined under this section.

Documents:

9.9 By virtue of the provisions contained in Sec.91, Sec. 254 (2) and 243 (2)

parties are entitled to produce documents. It is the duty of the Court under Sec.311 of

the Code read with Sec. 165 of the Evidence Act to have an essential document

admitted in evidence by recalling any witness at any stage of the trial. A witness under

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this Section is examined at the instance of the Court and as such is liable to be cross-

examined by both the parties.

Expenses:

9.10 Sec. 312 provides for the expenses of complainants and witnesses. A

criminal court has got power under this Section to order for payment of the reasonable

expenses of any complainant or witness attending the court for the purpose of any

inquiry or trial or other proceedings under this Code. The Section applies even to

proceedings under Chapters VIII and X of the Code.

Arguments:

9.11 Under Sec.314 of the Code any party to a proceeding may after the close of his

evidence, address concise oral argument and may submit a memorandum to the court

setting forth the oral enquiries on the spot as to the truth of the matter in dispute. The

Section also requires that the Magistrate shall, without unnecessary delay, record a

memorandum of relevant facts observed by him at the time of inspection and it shall

form part of the record. The parties are entitled to have copies of such memorandum.

The parties are at liberty to qualify or contradict the same by an application for further

inspection or by adducing evidence and submitting arguments.

Examination of Witness:

9.12 Sec. 311 empowers the Magistrate to summon material witness or to

examine persons present in court. This Section consists of two parts. The first part of the

Section gives the discretion to the court to summon any person or witness, or examine

any person in attendance, though not summoned as a witness or to recall and re-

examine any person already examined. The second part imposes an obligation on the

court to summon and examine or to recall or re-examine any such person if his evidence

appears to be essential to the just decision of the case. The clause is intended to meet

such cases where on account of exceptional gaps it becomes necessary and desirable

to call for additional evidence. The object of the Section is to enable the Court to get at

the truth and to come to a proper conclusion in the matter under enquiry. The. Section is

not limited to witnesses whom the court examines on its own behalf but also applies to

witnesses for the prosecution or the defence.

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Adjournments:

9.13 Section 309 provides for the postponement or adjournment of the

proceedings. The adjournment shall have to be from time to time and it shall have to be

for such time as the court considers reasonable. As a general rule, Magistrate should

refrain from granting adjournment save in cases where they are clearly necessitated for

the purpose of rendering justice. Magistrates will have to assign reasons while

adjourning the cases. There is no rule which requires that a criminal proceeding should

be stayed pending decisions of similar issues in a civil suit. The matter is however, left to

the discretion of the court which should be exercised keeping in view the facts and

circumstances of the case. The principle in such cases is to examine whether the

accused or the person proceeded against is likely to be prejudiced if the criminal

proceedings are not stayed. No adjournment shall be granted for the purpose only to

enable the accused to show cause against the sentence proposed to be imposed on

him.

Local Inspection:

9.14 Section 310 provides that at any stage of any inquiry or trial, or other

proceedings the Magistrate after due notice to the parties may visit and inspect any

place which in his opinion is necessary for proper appreciation of evidence adduced by

the parties-. It is necessary to give notice of the local inspection to the parties. The

Magistrate, however, cannot make use of this section to find out for himself the facts of

the case, or to create new evidence in the case. A local inspection under this Section

should be held sparingly, and when doing so, the Magistrate should avoid making

arguments. A copy should be furnished to the opposite side. Under Sec. 315 (2) a

person against whom proceedings are instituted under Section 98,107, 108, 109, 110 or

Chapter IX or under Chapter X (8), (C) or (0) may examine himself as a witness in the

proceedings.

Court to be open:

9.15 Under Sec. 327 of the Code the place in which any Criminal court is held for

the purpose of any inquiry is deemed to be an open court, to which the public generally

may have access so far as the same can conveniently contain them. The proviso to the

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Section provides that in a particular case the Magistrate may order that the public

generally, or any particular person shall not have access.

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CHAPTER - X

JUDGMENTS

10.1 Order under Secs. 117, 138(2) and final orders under Secs. 145, 147 though

not judgment in trials have been equated with the judgment by an express provisions

made in Sub-sec. (6) of Sec. 354 in so far as the contents are concerned. Every order

shall contain the point or points for determination, the decision thereon and reasons for

the decision.

10.2 The following principles shall have to be kept in view while passing final

orders:

(i) It shall have to be ordinarily pronounced in an open court immediately

after the termination of the proceedings.

(ii) If it is not pronounced on the same day of the recording of the evidence

and hearing of the arguments, due notice shall have to be given to the

parties or the pleader of the date of the final orders.

(iii) The whole of the final order shall have to be delivered.

(iv) The whole of the final order shall have to be read over as far as possible.

(v) The operative part of the final order shall have to be read out and

explained in the language which is understood by the respondents or

their pleader.

(vi) The final order must be dated and signed by the Magistrate at the time of

pronouncing the same in the open court. Each page of the order requires

to be initialled and dated.

10.3 Since it is obligatory on the part of the Magistrate, to assign reasons for their

decisions they have to appreciate the evidence on record in the context of the provisions

relevant for the case, In considering the effect of evidence adduced, regard should be

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had only to the quality and weight of the evidence and not to the number of witness

examined. The court must shift the evidence and come to its own conclusion. The

testimony of the witness should be judged on its merits and the court should not draw an

adverse inference for the reasons of his being a Government Servant or in the

employment of the police.

10.4 The judgment or the final order in a criminal case must contain a fullfledged

discussion of the evidence, oral and documentary. It should contain findings on all the

ingredients required to make out the charge levelled against the respondent. In weighing

the evidence the court should take into account the defence taken and should express

opinion on it. It would not be sufficient merely to say that the prosecution has proved its

case beyond all reasonable doubt. Similarly it is not sufficient merely to reproduce the

evidence of all the witnesses on record and say that court believes the same. The court

must select such important evidence as it considers necessary to support a decision on

particular points arising for consideration. Where there are several respondents, the

judgment should analyse the evidence against each of them separately.

10.5 A judgment should not contain any damaging remarks against the character

of person, who are neither parties nor witnesses before the court and who therefore

have no occasion to defend themselves against such remarks. While the courts are at

liberty to discuss the conduct of the persons before them, either as parties or witnesses,

without any fear or favour, they are none the less not permitted to travel beyond the

record and are bound to exercise due restraint on the language employed by them.

Remarks and observations which are absolutely not called for or which are not justifiable

on the evidence on record or on the facts of the case or which are not necessary in the

disposal of the case or which are sweeping and general in nature must always be

avoided. Similarly unfounded remarks against the conduct of the counsel of any party

should not be passed. A judgment should not contain any remarks calculated to throw

doubt on the . conclusion which it embodies. The operative portion of the order shall

have to be concise, specific and clear. The orders passed under Sections 117, 138(2),

145 and 147 must be self contained. They must show that the court has considered the

evidence against each of the persons and has found that the evidence proves the case

against each of them individually.

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10.6 No court shall alter or review the judgment or the final order disposing of the

case once it has signed the same except to correct a clerical or arithmetical error, unless

other wise provided (Sec.362).

10.7 An order dropping the proceedings under Sec. 107 on the ground that there

no longer exists any danger of. breach of the peace, is a final order, and it cannot be

reviewed or reconsidered by the very court. Where the order is neither "judgment" nor "a

final order", there is nothing in law preventing the court which passed it, from

reconsidering it or from entertaining fresh application for the same relief asked for in the

proceeding in which the order was made. It is thus obvious that interlocutory orders can

be modified suo moto or on a move being made by any party. A judgment or a final order

becomes final only after it is pronounced and signed. The courts have power to alter or

vary the same before it is pronounced and signed.

10.8 Section 363 provides that a copy of the judgment should be given to the

accused or other persons. When a final order is made under Sec. 117, and if the

respondent is sent to jail for the non-production of surety, copy of the final order shall

have to be given to the respondent free of cost. In a case where the respondent is not

sent to jail and if he makes an application, the court shall have to give a certified copy of

the final order or if he so desires translation in his own language if practicable or in the

language of the court. The certified copy shall have to be given without delay and if the

judgment or the final order is appealable it shall have to be given free of cost. Any

person affected by judgment or a final order passed by a Criminal Court and whose case

does not fall under Sub-sec. (2) may on application to the court and on payment of

necessary charges obtain a copy of the judgment or final order or of any deposition or

other part of the record. However, the court has the discretion to give the same to him

free of cost if it thinks fit for some special reasons.

10.9 Under Sec. 363 the original or the final order shall have to be filed with the

record of proceedings and where the original is recorded in a language different from

that of the court and if the accused so requires, a translation thereof in the language of

the court shall have to be added to such record.

10.10 The Courts of the Sessions Judge, and Chief Judicial Magistrate shall have to

send copies of its findings and sentences if any, passed in the trials conducted by them

to the District Magistrate within whose local jurisdiction the trial was held. The purpose of

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sending the copy of the judgment is to enable the District Magistrate to be posted with

information about serious offences committed within his jurisdiction (Sec.365).

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CHAPTER - XI

APPEALS AND REVISIONS

11.1 Appeal is the right of carrying a particular case from an inferior to a superior

Court to ascertain whether the judgement or order is sustainable. An appeal lies only

where it is expressly provided by law.

11.2 Sec 373 provides that any person who has been ordered under Sec. 117 to

give security for keeping the peace or for good behaviour or who is aggrieved by an

order refusing to accept or rejecting a surety under Sec.121 may appeal against such

order to the Court of Sessions. This does not however apply where proceedings are laid

before a Sessions Judge in accordance with the provision of . Sub-sec.(2) of Sec.122.

11.3 Every appeal shall be made in the form of a petition in writing presented by

the appellant or his pleader and it shall be accompanied by a copy of the judgment or

order appealed against (Sec.382). If the appellant is in jail he may present his petition of

appeal and the copies accompanying the same to the officer-in-charge of the jail, who

shall thereupon forward such petition and copies to the proper appellate court (Sec.

383). Section 385 and 386 deal with the procedure for hearing appeals and the powers

of the appellate court.

11.4 Under Section 395 a provision is made to refer a case to a High Court when

it involves any question as to the validity of any Act or Ordinance or regulation or of the

kind.

11.5 The explanation to Sub-sec. (1) of Sec. 397 shows that all the Executive

Magistrates also are deemed to be subordinate to the Sessions Judge for the purposes

of Sections 397 and 398. Section 397 (1) thus provides for revision in a case disposed of

even by an Executive Magistrate. The Sessions Judge may do so for the purpose of

satisfying himself as to the correctness, legality or propriety of any finding, sentence or

order recorded or passed by such Executive Magistrate. The Sessions Judge may also

call for records of any Executive Magistrate to satisfy himself as to the regularity of any

proceedings of such court. Under this section, the High Court and the Court of Sessions

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have concurrent jurisdiction, but once one of the courts is moved by a revision petition,

there is a bar to move the other court for the same purpose. Sec.399 deals with the

powers of the Sessions Judge in revision. The section provides that (1) the Sessions

Judge may exercise all or any of the powers exercisable by the High Court on revision

under Sec. 401 (1) and (2); the order of the Sessions judge has been made final and no

further revision by the High Court is permissible. Sec. 401 deals with the scope of the

power of the High Court in revision.

11.6 Section 411 empowers any District Magistrate or the Sub-Divisional

Magistrate to make over for disposal of any proceeding which has been started before

him to any Magistrate subordinate to him. It further provides that any District Magistrate

or Sub-Divisional Magistrate may withdraw any case or recall any case which he has

made over to any Magistrate subordinate to him and dispose off such proceeding

himself or refer it for disposal to any other Magistrate. Transfers may be made by the

courts" under this Section "suo-moto" or on the motion of a party. If the transfer is sought

on the ground of reasonable apprehension of not having a fair trail, the principles laid

down under Sec. 407 of the Code would apply. Under this section, the District Magistrate

and the Sub- Divisional Magistrate have concurrent jurisdiction for withdrawal and

Divisional Magistrate transfer of cases. Sec. 412 states that when a Magistrate makes

an order under Sec.411 he shall have to record his reasons for making it.

11.7 Sec. 421 deals with levy of fine. If any occasion arises wherein the Executive

Magistrate would be required to levy any amount as fine, the provisions laid down in

Sec. 321 shall have to be followed. The amount of fine can be recovered by issue of a

warrant of attachment or sale of any movable property belonging to the offender. The

amount can also be recovered by issue of a warrant to the Deputy Commissioner of the

District, authorising him to realise the amount as arrears of Land Revenue from movable

or immovable property or both of the defaulter. Sub-sec. (3) of Sec.421 provides that

upon receipt of warrant for the realisation of the amount the Deputy Commissioner shall

realise the same in accordance with law relating to the recovery of arrears of land

Revenue. Sec. 422 states that when a warrant is endorsed by a District Magistrate within

whose local jurisdiction any property is found, it can be executed even beyond the

"jurisdiction of the court which issued it. Section 423 further makes a provisions for the

execution of a warrant for levy of fine issued by a court in a territory to which this code

does not extend.

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11.8 Under Sec. 478 of the Code if the Legislative Assembly of a State, by a

resolution, so permits the state Government may after consultation with the High Court,

by a notification direct that references in Sec;. 108,109, 110,145 and 147 to an

Executive Magistrate shall be construed as references to a Judicial Magistrate of the

First Class.

11.9 Sec. 479 makes it obligatory for a Judge or Magistrate not to try or hear any

case or appeal in which he is personally interested or in which he is a party. The

explanation to Sec. 479 makes it clear that a Magistrate shall not be deemed to be a

party or person interested in any case if he is concerned in his public capacity or if he

has viewed the place or if he has made any enquiry in connection with the case.

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CHAPTER - XII

BAILS AND BONDS

12.1 Sec. 436 (1) Cr.P.C. lays down that when any person other than a person

accused of a non-bailable offence is arrested or detained without warrant by any officer

in charge of a police station or appears or is produced before any court and if he is

prepared to give bail, he shall have to be released on bail. The Police Officer or the court

has a discretion to release the person on his executing the bond without surety. It may

be noted that there is an exception provided in Sec. 436 (1) to the effect that provisions

of Sec. 116 (3) are not affected by the said Section. The amount of every bond executed

under this Chapter shall have to be fixed with due regard to the circumstances of the

case and shall not be excessive (Sec. 440).

Bonds:

12.2 Sec. 441 deals with the manner in which the police or the court shall take

personal cognizance of the bail bonds under Sub-sec. (2) of Sec. 441, if it has been

made clear that where any condition is imposed for the release of any person on bail,

the bond shall contain such condition. If the case so requires the court can take a bond

and bind the person released so that he shall appear before any other court also to

answer the charge. Under Sub-sec. (4) of Sec. 441, the officer of the court may accept

affidavits in proof of facts contained in them, relating to the sufficiency or fitness of the

sureties and the officer or the court may hold an inquiry or cause an inquiry to be held in

that connection.

Discharge from Custody:

12.3 Sec. 442 (1) provides that as soon as the bond has been executed the

person for whose appearance i~ has been executed shall be released, and when he is in

jail, the court admitting him to bail shall issue an order of release to the officer in charge

of the jail and such officer on receipt of the orders shall release him. If the accused

person is required for some other case or matter, he can still be detained

notwithstanding grant of bail in one case [Sec. 442 (2)].

131

12.4 A provision is made under Sec. 444 for any surety to apply to the Magistrate at

any time to discharge the bond. On such application the Magistrate shall issue a warrant

of arrest directing that the person so released be brought before him. Sub-sec. (3)

provides that on the appearance of such person the Magistrate shall direct the bond to

be discharged either wholly or so far as it relates to the applicant and shall call upon the

person to find other sufficient sureties and if he fails to do so, commit him to jail.

Cash Security:

12.5 The Courts or officers have the discretion to permit the person who is

required to execute a bond to deposit a sum of money or Government Promissory Notes

of such amount as they deem fit in lieu of executing such bond. This provision is not

attracted when a person is called upon to execute a bond for his good behaviour (Sec.

445).

Forfeiture of Bond:

12.6 The procedure for forfeiture of the bond is contained in Sec. 446 of the Code.

If it is proved to the satisfaction of the Court that the bond has been forfeited, the court

shall have to record the grounds of such proof and may call upon the person bound by

such a bond to pay the penalty thereafter or to show cause as to why it should not be

paid. Under Sub-sec. (2) of Sec. 446, it is provided that if sufficient cause is not shown

and the penalty is not paid, the court may proceed to recover the same as if it is a fine

imposed by it. Where such penalty is not paid and cannot be recovered in the manner

aforesaid, the person so bound as surety shall be liable to imprisonment in Civil Jail for a

term which may extend to six months, by an order of the Court ordering the recovery of

the penalty. Sub-sec. (3) gives some discretion to the court to remit any portion of the

penalty and enforce payment in part only. Sub-sec. (4) provides that where a surety to a

bond dies before the bond is forfeited he shall have to be discharged from all liabilities in

respect of the bond. Where any person has furnished surety under Sec. 106 or 117 or

360 and he is convicted of an offence, the commission of which constitutes a breach of

the condition of his bond, a certified copy of the judgment of the court by which he is

convicted can be used as evidence in proceedings under this Section against sureties. A

provision has been made under Sub-sec. (5) that such judgment. shall be accepted to

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prove that the person concerned has committed the breach of the bond unless the

contrary is proved.

Cancellation of Bonds;

12.7 Section 446-A provides that without prejudice to the provisions of Sec. 446,

where a bond has been executed for the appearance of a person, and the same is

forfeited for breach of a condition, then the bond executed by such person and the

bonds by one or more of his sureties shall stand cancelled. When once the bond stands

cancelled, such person shall not be released, unless the Police officer or the Court, as

the case may be, for appearance before whom the bond was executed is satisfied that

there is sufficient cause for the breach of condition of the bond. Provided, a person can

be released in that case upon the execution of a fresh bond for such sum of money and

bond by one or more sureties, as the Police Officer or the Court, as the case may be,

thinks sufficient.

Death or Insolvency of Surety:

12.8 Sec. 447 provides that when any surety becomes "insolvent" or "dies", the

Court or the Magistrate will treat such surety bond as a nullity and may demand fresh

security in accordance with the directions of the original order. The expression "becomes

insolvent" is equivalent to "is adjudicated an insolvent". If the person does not furnish

fresh surety the court may proceed as if there has been a default in complying with the

original order. If the person required by any court or officer executing the bond is a minor

such officer or court may accept a bond executed by a surety or sureties only without

taking any bond from the minor.

Appeal:

12.9 Sec. 449 provides for appeal from the orders passed by the Magistrate under

Sec. 446 to the Sessions Judge.

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CHAPTER – XIII

PROVISIONS RELATING TO INITIATION OF

CONTEMPT PROCEEDINGS AND OFFENCES

AFFECTING ADMINISTRATION OF JUSTICE

(a) PROSECUTION FOR CONTEMPT OF LA WFUL AUTHORITY OF PUBLIC

SERVANTS FOR OFFENCES AGAINST PUBLIC JUSTICE AND FOR OFFENCES

RELATlNG TO DOCUMENTS GIVEN IN EVIDENCE

13.1 Chapter XIV of the Code of Criminal Procedure deals with the 'conditions'

requisite for initiation of contempt proceedings. The provisions contained in Sections

195, 196, 197 and 199 are relevant. Under Sec. 195 prosecutions can be launched for

contempt of lawful authority of public servant" for offences against public justice and

offences relating to documents given in evidence. If any person commits any offence

under any of the Sees. 172 to 188 of the I.P.C. (Offences relating to contempt of the

lawful authority of public servants) or abets or attempts to commit any such offence or of

criminal conspiracy to commit such offence, cognizance of the same will not be taken by

any court except on the complaint in writing of the public servant concerned or of some

other public servant to whom he is administratively subordinate [Sec. 195 (1) (a)].

13.2 Under Section 195 (1) (b) (i) when any offence is committed under any of the

sec. 193 to 196 (both inclusive), 199,200,205 to 211 (both inclusive) of the Indian Penal

Code or (ii) when such offence is alleged to have been committed in relation to any

proceeding in any court or when any offence described in sec. 463 or punishable under

sec. 471, sec.475 or sec. 476 of the Indian Penal Code is alleged to have been

committed in respect of a document produced in court or (iii) of criminal conspiracy to

commit or attempt to commit or the abetment of any offence specified in clause (i) or (ii)

above, prosecution can be initiated only on a complaint in writing from that court or by

some other court to which that court is subordinate. According to Section 195(3) the term

"Court" in Section 195 (1) (b) means a Civil, Revenue, or Criminal Court and includes a

134

tribunal constituted by/or under Central, Provincial or State Act if declared by that Act to

be a court for the purpose of this section.

Prosecution of Judges and Public Servants:

13.3 The object of Section 197 is to prevent improper or reckless prosecution by private persons for offences in connection with the administration of public justice and

also relating to the contempt of lawful authority of a public servant. Under this Section

there is a bar on complaints by all and sundry, whereas Sec. 340 confers exclusive

jurisdiction on a court to file a complaint on due satisfaction that there is a case 'prima

facie' against the accused. Sec. 195 and 340 of the Code shall have to be read together.

The complaint to be filed under clause (a) of Subsec. (1) of Sec. 195 is public duty and

hence the successor in office of the public servant concerned can also make a complaint

under this Section.

13.4 Under Section 196 of the Code, prosecution for offences against the State

and in certain cases of criminal conspiracy to commit such offences can be initiated only

with the previous sanction of the Central Government or the State Government or the

District Magistrate.

13.5 It is under Sec. 197 that there is a protection for Judges and public servants

not removable from office except with the sanction of the concerned Government against

prosecutions for offences alleged to have been committed while acting or purporting to

act in the discharge of their official duty. Sec. 197 states that no court shall take

cognizance of any such offence except with the previous sanction of the Central

Government or the State Government as the case may be.

13.6 Under Sec. 199 a special provision is made to the effect that when any

offence falling under Sec. 110 of the I.P .C. relating to defamation, is alleged to have

been committed against persons such as the President, Vice-President, Governor,

Minister or any other public servant employed in connection with the affairs of the

Government in respect of his conduct in the discharge of the public functions, a court of

Sessions can take cognizance of the offence upon a complaint by the Public Prosecutor.

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(b) OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE:

13.7 Sec. 340 gives the procedure to be followed in cases mentioned in Sec. 195 of

the Code. If the Court is of the opinion that it is expedient in the interest of justice that an

inquiry should be made into any offence referred to in clause (b) of Sub-sec. (1) of Sec.

195, the Court may hold a preliminary inquiry under this section and (a) record a finding

to the effect that offence appears to have been committed in relation to a proceeding in

that court in respect of a document produced or given in evidence; (b) make a complaint

thereof in writing, (c) send it to a Magistrate having jurisdiction; (d) take sufficient

security for the appearance of the accused before such Magistrate, and (e) bind over

any person to appear and give evidence before such Magistrate.

13.8 Under this Section the court gets jurisdiction to enquire and make a

complaint only where offence appears to have been committed' in or in relation to any

proceeding in that Court. The court can take action under this Section either "Suo-moto"

or on application made to it by a private person. A court has to decide under this Section

whether an offence referred to Sec. 195 (1) (b) appears to have been committed in or in

relation to any proceedings in a court as defined in Sub-sec. (3) of Sec.195 and

secondly whether it is expedient in the interest of justice that it should further be inquired

into. Under this Section, the Court is bound to hold a preliminary enquiry and follow the

procedure as shown above. Though it is not necessary for the court to issue a notice to

the person alleged to have committed the offence, it is desirable and expedient to give

notice to him and hold an inquiry. The question whether it is expedient in the interest of

justice that an inquiry should be made in respect of the offence alleged to have been

committed or not depends upon the facts and circumstances of each case. The Court

should see that the prosecution is undertaken in the interest of justice and not to satisfy

any private grudge of a litigant. The court proceeding under this Section should record a

finding that the offence alleged appears to have been committed and that it is expedient

in the interest of justice that an enquiry should be made into the offence.

13.9 A complaint under this Section should be carefully drawn up and the conditions

laid down in the section should be clearly followed. It should set forth the offence

complained of, the precise facts on which it is based and the evidence available for

proving it. It should also show the court before which, and the time and occasion on

which the offence is alleged to have been committed. In the case of a complaint the

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particulars and statements alleged to be false must be specifically set out. In the case of

forgery the particular documents or the portion of the document alleged to be forged

must be precisely mentioned. The provision regarding summary procedure for trial for

giving false evidence contained in Sec. 344 of the Code does not apply to the

proceedings before. the Executive Magistrates.

13.10 Sec. 345 deals with the procedure in certain cases of contempt. The section

deals with the subject as to what is the procedure for the contempt of court committed in

the presence of any court and empowers all courts to punish an offender summarily in

respect of the offences mentioned therein. It is however optional to the court to proceed

either under this Section or under Sec. 340. Apart from the power given under this

Section, the courts have no other power, to commit to prison for contempt of the court for

the failure to carry out its orders. Contempt of Court such as by the publication of

comments calculated to obstruct the due administration of justice, or to create a

substantial prejudice against the parties, or to scandalise the court, do not fall within the

ambit of this Section. The powers to punish a person committing such contempt can be

exercised only by the High Court under the power vested in it, under the provisions of

the Contempt of Courts Act. The procedure under 'this section is summary. It involves

the consideration of the sufficiency of what took place in the presence of the court to

constitute a punishable offence after hearing the statements of the offender. In the case

of an offence committed in the presence of the Court, the court may either sentence the

offender itself or discharge him upon his making an apology under Sec. 348. If the court

considers that the case should not be dealt with under this section it may forward the

case to a competent court under Sec. 346. This section deals with certain cases of

criminal contempt. A criminal contempt consists in words or acts of obstructing, or

tending to obstruct the administration of justice. The offences mentioned under this

section must be those committed in the view or presence of the court and when so

committed should be taken cognizance of on the same day. Every Civil, or Revenue or

Criminal Court in view or presence of which any of the offences mentioned in the

Section is committed has got jurisdiction to take cognizance of the offence and try

summarily. The procedure laid down in this section should be followed strictly. The

provisions should be applied then and there, at any rate before the court rises for the

day. Where an offence mentioned in this Section is committed the Magistrate may direct

the detention of the accused in custody. In all criminal cases it is necessary that there

should be a charge a finding and conviction as a foundation for the sentence. No person

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should be punished for the contempt of court unless the specific offence charged against

him is distinctly stated and an opportunity of answering it is given to him.

13.11 In every case, when the court takes cognizance for an offence shown in Sec.

345(1) it must make record of:

(1) the facts constituting the offence;

(2) statement (if any) made by the offender; and

(3) the finding and sentence.

Where the offender is punished for an offence under Sec. 228 of the I.P

.C. the record must show:

(i) the nature and stage of the judicial proceedings:

(ii) the nature of the interruption or insult.

Before sentencing an offender the court should give him an opportunity of

giving reasons against summary measures being taken against him and after explaining

and possibly correcting a misapprehension as to what had been, in fact, said or meant.

Form of warrant of commitment under this section shall be in Form 38 of the Second

Schedule to the Code.

13.12 If the Court considers that a person accused of an offence referred to in Sec.

345 should be imprisoned or that he should be fined to an amount exceeding Rs. 200/-, it

may record the facts constituting the offence and also record the statement of the

accused before proceeding under this Section and may forward the same to a

Magistrate having jurisdiction to try the same. Further, the Court may require security to

be given for the appearance of such person before such Magistrate, or if such security is

not given shall forward such person in custody of such Magistrate [Sec. 346 (1)]. Sub-

sec.(2) of Sec. 346 states that the Magistrate to whom any case is forwarded under Sub-

sec. (1) shall deal with it as if, it is a case instituted on a police report.

13.13 Where a court chooses to take action under Section 346, instead of taking any

action under Sec. 345, in respect of an offender mentioned in the later section, it must

give reasons for not taking cognizance of the offence under Sec.345.

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13.14 Section 348 provides that if an apology is made to its satisfaction by the

adjudged offender under Sec. 345 or an offender against whom a complaint is sent

under Sec. 346, the court may discharge the offender or remit the punishment.

13.15 Section 349 empowers a Magistrate to commit a person to the custody of an

office of the Court for a term not exceeding 7 days, if the witness or the person called

upon to produce a document or a thing before the court refuses to answer such

questions put to him or refuses to produce any documents or thing in his possession or

power. If the person persists in his refusal he shall have to be dealt with according to

Sees. 345 and 346 of the Code.

13.16 Section 350 provides for summary procedure for punishment for non

attendance by a witness in obedience to summons. Before taking cognizance under

section 350 of the Code, an opportunity shall have to be given to the person to show

cause as to why he should not be punished under this Section. After considering the

cause shown by the person if the court is satisfied that it is expedient in the interest of

justice that such a witness should be tried summarily for his non-attendance, the court

may try summarily and sentence him to a fine not exceeding RS.100.

13.17 Sec. 352 provides that except as provided in Secs. 344, 345, 349 and 359

no judge of a Criminal Court other than a Judge of a High Court or Magistrate shall try

any person for any offence. referred to in section 195, when such offence is committed

before himself or in contempt of his authority, or is brought under his notice as such

Judge or Magistrate in the course of a judicial proceeding.

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CHAPTER - XIV

DYING DECLARATION

Admissible in evidence:

14.1 A dying declaration is a statement made by a person as to the cause of his

death or as to any of the circumstances of the transaction, which resulted in his death. It

is admissible in evidence under Clause (1) of Sec. 32 of Indian Evidence Act in cases in

which the cause of that person's death comes into question. Such a statement is

relevant whether the person who made it was or was not at the time when it was made,

under expectation of death.

Who can record:

14.2 There is no hard and fast rule that a dying declaration should be recorded by

a competent Magistrate alone. It can be recorded by any Magistrate, Medical Officer or

under special circumstances by Police Officers.

14.3 Since a dying declaration which is free from doubt can be the sole basis of

conviction, it is the bounden duty of the investigating officer to request a competent

Magistrate to record the dying declaration of the victim. Such dying declaration recorded

by a Magistrate forms a part of the record of investigation.

Certificate of fitness from the Doctor essential

It is no doubt true that though there is no certificate of fitness, if any corroborative

piece of evidence is available, even such evidence can be acted upon. In the present

case as already mentioned that none of the witnesses have spoken regarding cause of

death of the deceased Shanthi when the Doctor has not certified the fitness of the

deceased Shanthi while recording her statement. It can not be constructed as one of

dying declaration. [M. Raju Vs. The state of Karnataka, ILR 2001 Kar. 5600 (Para 18].

(Sri. A Vasanth Kumar Vs. State of Karnataka, [ Criminal Appeal No. 890 of 1997,

dated 14.7.2003] 2003 (4) KCCR SN 29; ILR 2003 (3) Kar 3452; 2003 (5) KLJ 505)

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Held : We have the Dying Declaration. However the judicial dying declaration does not

inspire confidence in the Court since the deceased suffered 95% burns and must have

been in a state of shock and under sedation. No note has been appended by he Doctor

or the Taluka Executive Magistrate to the effect that the deceased was in a fit state of

mind to give a dying declaration. PWs 1, 2, 3 and 8 are independent witnesses and the

oral dying declaration given to them only refers to he persons who are inimically

disposed towards the deceased. We do not think that a conviction be based solely on

the Judicial dying declaration which contradicts the oral dying declaration. [Laxman Vs.

State of Maharastra, 2002 254 (para 35); Panchdeo Singh Vs. State of Bihar (2002) 1

SCC 577 (para 36) ; State of Mysore Vs. Hakaha and Another, 1963 (2) Mys LJ 225

(Para 45 ; state Vs. Radhamal Sangatmal Sindhi, AIR 1960 Bom 26 (Para 48) ; Boya

Polamma‟s Case, AIR 1941 Mad 225 (Para 49)]. Shantaram Dattatraye Somankar

and Others Vs. State of Karnataka, ILR 2003 (3) Kar 2838 (DB).

Dying Declaration need not necessarily be made to a Magistrate

Dying declarations – There is no requirements of law that a dying declaration

must necessarily be made to a Magistrate. Statement recorded by the head constable

of Police is admissible as dying declaration. Once the Court has come to the conclusion

that the dying declaration was the truthful version as to the circumstances of the death

and the assailants of the victim, there is no question of further corroboration. Ding

declaration need not necessarily be in question-answer from. Very often the deceased

is merely asked as to how the incident look place and the statement is recorded in a

narrative form. In fact such a statement is more natural and gives the version of the

incident as it has been perceived by the victim. (AIR 2003 SC 1074 ; 2003 (2) SCC

473)

Whole and Absolute Truth

Dying declaration – The real Parameter for admitting dying declaration is its

quality and the confidence in the Court from the record that it represent the whole and

the absolute truth.

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Mental Clarity and Fair Physical well being

The law insists on mental clarity and a fair degree of physical well being. The

only person who can certify this is a doctor. If the doctor does not issue a

contemporaneous certificate then it would be hazardous to rely on that document.

However, if the dying declaration inspires confidence in the Court and if the surrounding

circumstances support the view, the Court can base a conviction on the basis of such

dying declaration. In such a case, the absence of certificate of doctor is not fatal.

In the present case accused was charge sheeted for having put his wife ablaze.

Wife was admitted to hospital with 65% burn injuries. She was given high sedatives.

Doctor also stated that, though he certified the declaration, he was not present

throughout the recording. It was evident from record that the statement was made by

the deceased under great agony and extreme restlessness. Held, trail Court was

justified in refusing to rely upon such dying declaration and was justified in acquitting the

accused. [Kushal Rao Vs. State of Bombay, AIR 1958 SC 22 (Para 1 ; State of

Karnataka Vs. Basavaraj and Another 2002 Crl.L.J. 843 (DB) (Para 2)].

State of Karnataka by the Circle Inspector of Police, Nanjangud Vs. Shefi Ahamed,

[Criminal Appeal No. 516 of 1998, dated 18.11.2003] 2004 (1) KCCr 658 (DB).

Dying Declaration Language 14.4 It is always desirable and proper that the dying declaration should be

recorded in the very words of the victim or injured. If the person recording the

declaration, reproduces the same in the language not known to the victim and reads

over by interpreting it in the language known to him and certifies to that effect at the foot

of such declaration, that by itself is no ground for rejection. The fact that the declaration

was given in a language other than the one in which it was recorded cannot be a ground

for the rejection of the declaration.

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Procedure:

14.5 The proper procedure for recording a dying declaration would be as follows - first

the person recording the declaration must be satisfied that the declarant is in his senses.

If the declarant is not in senses, nothing should be done beyond making a note to that

effect. If the person recording the declaration is satisfied that the injured person is in his

senses, the second thing to be done is to ascertain whether the injured/victim is in a

position to speak coherently. If he is satisfied, then he may put any general questions to

elicit from the injured person/victim as to what had happened to him. It is always proper

that the questions put by the person recording the dying declaration should also be

recorded so that the court may judge the nature of the questions put. As far as possible,

leading questions should be avoided. The person recording the statement may record

what is said to him by the injured/victim. During the course of recording the statement of

the victim/injured, it is permissible to put questions if felt necessary to elucidate what is

stated by the declarant, but such questions must be recorded. What is thus recorded

may at the end be read over to the injured. Reading over the declaration to the injured

may be dispensed with if it is felt that the injured is to be removed immediately for

operation and reading over the declaration will cause delay. If the injured person is in his

senses but is not in a position to speak by mouth in a coherent way, he may be put short

questions, and his answers given by gestures may be noted. It is imperative, however, in

such cases that the gestures of the injured person signifying the answers given by him

should find an appropriate mention. This will enable the court at the trial to properly

evaluate the dying declaration. In such a case, leading questions may be permissible.

The anxiety of the person who records dying declaration should be to see that the

injured person comprehends what is asked from him and the gestures given in

pursuance of the questions put to him should be faithfully recorded and interpreted. Over

and above all this, it is necessary that the person recording the dying declaration should

see that there is no chance of prompting. of the injured/ victim person by any person

near to him and no replies should be recorded which are given on such prompting. The

possibility of prompting should be entirely excluded. This can be done by excluding from

the place where the dying declaration is recorded, the relatives of the deceased and all

other unauthorised persons.

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Dying Declaration as Evidence

Though a dying declaration is entitled to great weight, it is worthwhile to note that

the accused has no power of cross-examination. Such a power is essential for eliciting

the truth as an obligation of oath could be. This is the reason the Court also insists that

the dying declaration should be of such a nature as to inspire full confidence of the Court

in its correctness.

The court has to be on guard that the statement of deceased was not as a result

of either tutoring, or prompting or a product of imagination.

The Court must be further satisfied that the deceased was in a fit state of mind

after a clear opportunity to observe and identify the assailant. Once the Court is

satisfied that the declaration was true and voluntary, undoubtedly, it can base its

conviction without any further corroboration.

It cannot be laid down as an absolute rule of law that the dying declaration

cannot form the sole basis of conviction unless it is corroborated. The rule requiring

corroboration is merely a rule of prudence. The dying declaration is only a piece of

untested evidence and must like any other evidenceatisfy the Court that what is stated

therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful

scrutiny the Court is satisfied that it is true and free from any effort to induce the

deceased to make a false statement and if it is coherent and consistent, there shall be

no legal impediment to make it basis of conviction, even if there is no corroboration.

In present case there is no material to show that dying declaration was result of

product of imagination, tutoring or prompting. On the contrary, the same appears to

have been made by the deceased voluntarily. It is trustworthy and has credibility.

Moreovertate of mind was proved by testimony of the doctor who was present when the

dying declaration was recorded by Magistrate. In the aforesaid background it cannot be

said that there was any infirmity. Further if the person recording the dying declaration is

satisfied that the declarant is in a fit medical condition to make a dying declaration then

such dying declaration will not be invalid solely on the ground that the doctor has not

certified as to the condition of the declarant to make the dying declaration. In the instant

case contrary to what accused-appellants pleaded, the doctors‟ certificate is there.

Therefore, the Courts below have rightly relied upon the dying declaration to convict the

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accused. (Para 15, 16,17,19) (Muthu Kutty v. State by Inspector of Police, Tamil

Nadu – AIR 2005 SC 1473)

4.6 There is no rule which requires the Medical Officer in whose presence the

dying declaration is recorded to certify that the declarant is in a fit condition to speak. It is

the person who records the dying declaration, who puts questions to the declarant to

satisfy himself that the declarant is in a fit condition to speak. The business of the

Medical Officer is only to certify that the dying declaration was recorded in his presence,

in the hospital premises, by the person who recorded it.

14.7 If the declarant is found to be dumb or is in a fit state of mind, but not in a

position to speak, and if he answers the questions by gestures, the significance of such

questions should be ascertained through proper interpretation. If they are not commonly

understandable, a certificate to that effect may be appended to the dying declaration.

Even where answers given by way of gestures are commonly understandable by the

person recording the statement, a certificate to that effect should be appended to the

declaration. Signs made by an injured person whether by a nod of the head to indicate

assent or by the sign or motion of fingers or hand in answer to the questions put to him

for finding out the identity of the Individual causing the injury amount to verbal statement

within the meaning of Sec. 32 (1) of Indian Evidence Act.

14.8 No rules have been framed in regard to the contents of the dying declaration.

A dying declaration being a statement made by a person as to the cause of his death or

as to any of. the circumstances which resulted In his death, the questions should be

limited to the cause of death and the circumstances which resulted in the death of the

deceased.

14.9 A format of the Dying Declaration is .given in the Appendix.

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CHAPTER - XV

IDENTIFICATION PARADES

15.1 Whenever a witness says that he can identify an accused person or others

connected with the case under investigation, the investigating officer can arrange for

Identification Parades to be conducted by a Magistrate. Magistrates should bear in mind

that the Identification Parade should not be held as a matter of routine. It should be

conducted fairly and should be free from doubt and prejudice to the accused.

15.2 I n order to conduct a fair and free test identification, it is the duty of the

Magistrate conducting identification to observe the following precautions;

1) the suspects are not shown to the identifying witnesses before the identification

parade is completed.

2) that all unauthorised persons are removed from the place where the Identification

Parade is held.

3) the suspects are made to stand with persons of their own age, sex, height and

general appearance as far as possible.

4) the witnesses are allowed one by one into the court hall/chamber to identify the

suspects without giving room for the witnesses to communicate the general

appearance of the suspects to the witnesses who are still waiting to identify the

suspects.

5) the witnesses who have identified the suspects are not allowed to go out of the

court hall/chamber till the remaining witnesses are called in and the test

identification is completed.

6) the witnesses are prevented from seeing the photograph of the suspects.

7) every time the witness is called in to identify, the place of the suspect in the row,

is changed.

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8) the test identification of every suspect is held separately instead of clubbing the

suspects and holding their joint identification.

9) the persons unconcerned are also changed every time a suspect is put f{)r

identification.

10) a fair proportion i.e., at least 10 outsiders for every suspect are

made to stand with the suspects.

11) the Police Officers are not allowed to be present at the place of identification test,

if objected to by the accused. Even otherwise, it is desirable not to allow the

investigation officer or the police to be present personally at the actual place of

test identification.

15.3 Any well founded objection by any accused during the identification

parade should be recorded. After the completion of the Identification Parade and

drawing up 9f the proceedings, a certificate must be appended as follows and signed by

the Magistrate conducting the parade:

(1) I, the undersigned, took all the necessary precautions and I am satisfied that no

Police Officer was present at any time of the proceedings, when the parade was

held.

(2) No opportunity was given to the witnesses to see or know about the proceedings

of the parade.

Delay in Identification Parade

Evidence Act, S.9 – Test Identification parade – Robbery – Delay in holding –

Effect – Case of train robbery – Looted currency notes recovered from possession of

accused – Eye-witnesses, traveled for almost seven hours in same compartment – Had

ample opportunity of noticing facial features of accused in light in compartment –

Accused proved to be kept “baparda” right from day of their arrest – No irregularity in

holding T.I. parade – In circumstances delay in holding parade, if any, would be of no

consequence – More so when conviction of accused based not solely on evidence of

identification by eye-witnesses but also on basis of corroborative evidence in form of

147

recoveries of looted currency notes from accused. (Lal Singh v. St. of U.P - AIR

2004 SC 299)

Purpose of Identification Parade

The whole idea of a test identification parade is that witnesses who claim to have

seen the culprists at the time of occurrence are to identify them from the midst of other

persons without any aid or any other source. The test is done to check upon their

veracity. In other words, the main object of holding an identification parade, during the

investigation stage, is to test the memory of the witnesses based upon first impression

and also to enable the prosecution to decide whether all or any of them could be cited as

eyewitnesses of the crime.

(Munshi Singh Gautham (deceased) and Others Vs. State of M.P., [Criminal Appeal

No. 919 of 1999, decided on 16.11.2004] 2004 (4) KCCR SN 487 (SC).

15.4 Identification Parade can be arranged in a jail, or Hospital, if found

necessary. The proceedings of an Identification Parade cannot be used as evidence

against accused persons unless the Magistrate who recorded it has been called as a

witness.

15.5 A specimen copy of the Identification Parade proceedings to be drawn up is

given in the Appendix.

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CHAPTER - XVI

KARNATAKA POLICE ACT, 1963

DISTRICT MAGISTRATE AND THE POLICE:

16.1 Provisions contained in Sec. 16, 17 and 18 of the Karnataka Police Act 1963

deal with the relationship between the District Magistrate and the Superintendent of

Police in the matter of Administration of the Police in the District. Based on the said

provisions, instructions issued by the State Government in this behalf in their letter No.

HD 284 PEG 89 date 3-11-69 and incorporated as Order Nos. 126 to 132 of Karnataka

Police Manual (Vol. 1 ) are reproduced below for guidance of the officers:

Order No. 126:

1. The administration of the Police in a District by the Superintendent of Police shall

be subject to the general control of the District Magistrate of the District.

2. In exercising such control, the District Magistrate shall be governed by such rules

and orders as the Government may make in this behalf.

3. The maintenance unimpaired of the responsibility of the District Magistrate for the

peace and good order of his charge is of utmost importance. For this purpose, he

shall exercise general control in the Criminal Administration of his District and it is

the duty of the Superintendent of Police to assist him by keeping him fully

informed both by personal conferences and special reports, of all matters of

importance concerning the peace of District and the State of crime. The District

Magistrate shall not, however, interfere in questions of recruitment, internal

economy and organisation, nor with the administrative, disciplinary and other

details of the Force. When exercising his power of general control, the District

Magistrate shall also abstain from any action likely to weaken the authority of the

Superintendent or deprive him of his responsibility. For this purpose, the District

Magistrate shall avoid, as far as possible, the issue of executive orders to the

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police subordinates in his district until he has consulted the Superintendent of

Police of his District.

Order No. 127:

When the District Magistrate calls for reports on any matter referred to in

Sec. 17 of the Karnataka Police Act, 1963 (Act 4 of 1964) or on any political or religious

development or on any other matter affecting the District Criminal Administration, the

Superintendent of Police shall promptly send them. Further, when any such information

which ought to be brought to the notice of the District Magistrate is available to the

Superintendent of Police, he shall forthwith keep the District Magistrate informed by a

special report even if such report is not called for.

Order No. 128:

If the District Magistrate is not satisfied with any matter in so far as it relates

to the Criminal Administration of his District, he should first move the Deputy Inspector

General of Police in the matter endorsing a copy of his reference to the Inspector

General of Police. The Deputy Inspector. General of Police will intimate to the District

Magistrate the action taken by him. In case he considers the action taken by the Deputy

Inspector General of Police as inadequate or unsatisfactory, he may move the Inspector

General of Police, thereafter, if necessary, the Government. The Government may then

in consultation with the Inspector General of Police pass such orders as may be deemed

fit.

Order No 129:

The District Magistrate may inspect Police Stations of his District periodically

when he is touring. Such inspection should primarily be directed to the functional

aspects of the work of the police as an agency for the preservation of Law and Order

and the prevention and detection of crime and to matters of general administrative

interest, e.g., the records and check of vital statistics, the registration of arms, the

general state of crime, the proper use of the preventive sections. of the Code of Criminal

Procedure and the maintenance of records of communal disputes, if any. In particular he

150

should see that the village Police including the Police Patel are co-operating fully with

the regular police, since the administration of village Police in each district shall under

the general control and direction of the Government, be exercised by the District

Magistrate.

Order No. 130:

1. The Superintendent of Police shall send a copy of his monthly report together

with a copy of the forwarding note and abstract to the District Magistrate of the

District.

2. The Superintendent of Police shall also send him a copy of the weekly Reports of

the Assistant Superintendent of Police/Deputy Superintendent of Police in his

District together with a copy of the abstract and the forwarding note.

3. The District Magistrate shall carefully go through and scrutinize the reports more

specially the portion relating to crime, before passing them on to the Deputy

Inspector General of Police.

Order No. 131:

1. Whenever District Magistrates visit Divisional Headquarters for Coordination

Meetings, etc., they should take the opportunity of discussing general problems

regarding Law and Order and Crime with the Range Deputy Inspector General of

Police. When the matter is of urgency and importance they should arrange to

meet the Deputy Inspector General of Police individually.

2. The Deputy Inspector General of Police when visiting the Headquarters of a

District, will make it a point to see the District Magistrate.

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Order No. 132:

1. Whenever the Inspector General of Police visits the District Headquarters, the

District Magistrate shall call on the Inspector General of Police and discuss with

him problems regarding Law and Order, general state of crime, the working of

the Village police and other matters of Police Administration.

2. Whenever the District Magistrates visit Bangalore on official work it is desirable

that they should call on the Inspector General of Police and discuss with him the

Police problems in their Districts.

[NOTE: By an amendment to the Karnataka Village Defence Parties Rules 1965, the

Dalpathy of the village Defence Parties has been invested with the power and duties of

the Police Patel. The Dalapathy and the\ Village Defence Party have been brought under

the Administrative jurisdiction of the Police Department (Notification No. HD 187 PCA

74, dated 7-8-1975)]

POWER TO MAKE ORDERS FOR REGULATION OF TRAFFIC AND FOR

PRESERVATION OF ORDER IN PUBLIC PLACES, ETC.:

16.2 Sec. 31 of Karnataka Police Act confers powers on the Commissioner of Police

and the District Magistrate in areas under their respective charges or any part thereof to

make, alter or rescind orders not inconsistent with the Karnataka Police Act, .1963, for

public safety, health, maintenance of order. The matters on which order should be made

are listed out in items (a) to (z) of Sec.31. The main object of this Section is to vest in the

Commissioner of Police and the District Magistrate, power which should readily be

exercised for the regulation of the traffic and for the preservation of order in public

places.

16.3 The power of making, altering or rescinding orders under clause (a) (b), (c),

(e), (f), (g), (h), (i), G), (k), (I), (m), (n), (0), (p), (q), (r) (s) (t) & (u) of Sec. 31 (1) and in so

far as it relates to any of the aforesaid matters under the clause (z) of the said Sub-

Section is subject only to the control of the Government and previous sanction of the

Government in this behalf is necessary, However, previous sanction of the Government

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is necessary for making, altering or rescinding orders under clauses (d), (v), (w), and (y)

of Sec. 31 (1).

16.4 The power of making, altering or rescinding orders under Sec 31, shall be

subject to the condition of previous publication prescribed in Sub-sec. (6) of Sec 31.

However the provision publication of the order of alterations therein or rescission thereof

may be dispensed with if the Commissioner of Police or the District Magistrate, as the

case may be is satisfied that circumstances exist which render, it necessary that such

orders or alteration therein or rescission thereof should be brought into force at once.

16.5 Rules pertaining to licensing or controlling places of public amusement or

entertainment under Clause (w), (x) and (z) of Sub-sec. (1) of Sec. 31 of the Karnataka

Police Act 1963 based on the model draft rules communicated in Government letter NO.

HD 7 CMT 65, dated 7-11-1969 to the Commissioner of Police and District Magistrates,

have been finalised and published in the Karnataka Gazette.

POWER TO PROHIBIT CERTAIN ACTS FOR PREVENTION OF DISORDER:

16.6 Sec. 35 of the Karnataka Police Act 1963 empowers the Commissioner of

Police and the District Magistrate in the area coming under their respective charges

whenever and from such time they consider it necessary to issue prohibitory orders for

the preservation of public peace or public safety by a notification publicly promulgated or

addressed to individuals in any city, town village or place or in the vicinity of any such

city, town, village or place. The following acts could be prohibited under Sec. 35 (1).

a) The carrying of arms, cudgels, swords: spears, bludgeons, guns, knives, sticks,

or lathis, or any other article which is capable of being used for causing physical

violence.

b) The carrying of any corrosive substance or of explosives.

c) The carrying collection and preparation of stones or other missiles or instruments

of means of casting or impelling missiles.

d) The exhibition of persons or corpses or figures of effigies thereof.

e) the public utterance of cries, singing of songs, playing of music, delivery of

harangues, the use of gestures or mimetic representations, and the preparation,

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exhibition or dissemination of pictures, symbols, placards or any other object or

thing, which may in the opinion of such authority offend against decency or morality

or affect public order or undermine the security of, or tend to overthrow the State or

incite to the commission of an offence Sec. 35 is intended to prevent acts that may

lead to the breach of peace or local clashes between certain communities, parties or

party factions. The authority making any such order under the Section must be

satisfied before making an order that immediate prevention or speedy remedy is

necessary. Sec. 35(1), like Sec. 144 of Cr.P.C. in its operation is, restricted to cases

where breach of peace is imminent or apprehended or matters which would lead to a

breach of public tranquillity by violence, riots, arson, murders, etc., Orders Under

Sec. 35 (1) are temporary orders passed during times of threatened disorder or

disturbance of public peace.

16.7 Sub-sec. (3) of Sec, 35 empowers the Commissioner of Police and the

District Magistrate in areas under their respective charges to issue orders prohibiting any

assembly or procession whenever and for so long as he considers such prohibition to be

necessary for the preservation of the public order. Under the proviso to Sub-sec. (3) of

Sec. 35, no such prohibition shall remain in force for more than fifteen days without the

sanction of Government.

16.8 Sub-sec. (4) of Sec. 35 provides that the Commissioner of Police and District

Magistrate in areas under their respective charges may, by public notice temporarily

reserve for any public purpose, any street or public place and prohibit persons from

entering the area reserved except under such conditions as may be prescribed by them.

16.9 Acts of disobedience of orders passed under Sec. 35(1) (2) & (3) or

abetting the disobedience thereof are made punishable under Sec. 108 of the Karnataka

Police Act.

Removal of persons about to commit offences: 16.10 Sec. 55 of the Karnataka Police Act provides that whenever it shall appear to the

Commissioner of Police, City of Bangalore and in any other areas to which Government

by notification has extended the provisions of Sec. 55, the District Magistrate or the Sub-

Divisional Magistrate having jurisdiction and specifically empowered by the Government,

in this behalf that:

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(a) the movements or acts of any persons are causing or calculated to cause

alarm, danger or harm to person or property, or

(b) there are reasonable grounds for believing that such person is engaged

or is about to be engaged in the commission of an offence involving force

or violence or an offence punishable under Chapter XII, XVI or XVII of

I.P.C. or in the abetment of any such offence, and when in the opinion of

such officer witnesses are not willing to come forward to give evidence in

public against such person by reason of apprehension on their part as

regards the safety of their person or property, or

(c) an outbreak of epidemic disease is likely to result from the continued

residence of an immigrant, the said Officer may, by an order in writing

duly served on him, or by beat of drum or otherwise as he thinks fit direct

such person or immigrant so to conduct himself as shall seem necessary

in order to prevent violence and alarm or the outbreak or spread of such

disease or to remove himself outside the area of any district or districts or

any part thereof contiguous thereto by such route or within such time as

the said officer may specify and not to enter or return to the said place

from which he was directed to remove himself.

16.11 The only relevant consideration so far as Sec. 55 (a) of the Act is concerned

is whether a particular activity or movement of a person concerned causes or is

calculated to cause an alarm. The question really is of the satisfaction of the externing

authority. If the externing authority 'bonafide' comes to the conclusion that an activity or

movement of the person concerned although not within the immediate past, has in fact

caused alarm or is calculated to cause alarm, he is competent to make the order under

Sec. 55 of the Act. Reference under Clause (a) of Sec. 55 to alarm danger or harm; is a

reference to alarm, danger or harm to the public generally and not to one or two

individuals of the public. An order of externment cannot be passed under Clause (a) of

Sec. 55merely on a finding that the movement or acts of a person are causing or are

calculated to cause alarm, danger, or harm to one or two individuals in a locality.

155

Removal of persons convicted of certain offences

16.12 Section 56 of the Karnataka Police Act empowers the Commissioner of Police or

the District Magistrate or any Sub-divisional Magistrate specially empowered by the

Government in this behalf to direct any person convicted at any time either before or

after the commencement of the Police Act of the following offences to remove himself

outside the area within the local limits of his jurisdiction or such area or any district or

districts or part thereof contiguous thereto by such routes and within such time as the

said officer may prescribe and not to enter or return to the places from which he was

directed to remove himself, if he has reason to believe that such person is likely to

engage himself in the commissions of the offence similar to that for which he was

convicted.

(a) of an offence under Chapter XII, XVI or XVII of the I.P.C.; or

(b) of an offence under Sec. 6 or 13 of the Mysore Mines Act, 1906; or

(c) twice of an offence under Sec. 19 of the Mysore Prohibition of Beggary

Act, 1944; or

(d) twice of an offence under the Suppression of Immoral Traffic in Women

and Girls Act, 1956; or

(e) of an offence under Sec. 86 of the Karnataka Forest Act, 1963; or

(f) twice of an offence under the Untouchability (Offences) Act, 1955; or

(g) thrice of an offence within a period of three years under Sec. 78, 79 or 80

of Karnataka Police Act; or

(h) thrice of an offence within a period of three years under Secs. 32, 34, 37

or 38A of the Karnataka Excise Act, 1965.

Explanation to Sec. 56 provides that for the purpose of this Section "an

offence similar to that for which a person was convicted" shall mean:

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(i) in the case of a person convicted of an offence mentioned in clause (a)

an offence falling under any of the Chapters of I.P .C. mentioned in that

clause; and

(ii) in the case of person convicted of an offence mentioned in clauses (e)

and (f), an offence falling under the provisions of the Acts mentioned

respectively in the said clauses.

Period of operation of the order under Section 55 or 56

16.13 The direction made under Sec. 55 or 56 in asking a person not to enter any

particular area or such area, and any district or districts or any part thereof, contiguous

thereto shall be for such period as may be specified and shall in no case exceed a

period of two years from the date on which it was made (Sec. 57).

16.14 Before an order under Sec. 55 or 56 is passed against any person, the

Officer acting under this Section should inform the person in writing, of the general

nature of the material allegations against him and give him a reasonable opportunity of

tendering an explanation regarding them. If such person makes an application for

examination of any witnesses produced by him, the authority or the officer concerned

shall grant such applications and examine such witness, unless for reasons to be

recorded in writing, the Officer or authority is of the opinion that such application is made

for the purpose of vexation or delay. Any written statement put in by such person shall

be found with the record of the case. Such person shall be entitled to appear before the

officer proceeding under this Section by a Legal Practitioner. The authority or officer

proceeding under this section, for the purpose of securing attendance of the person

proceeded against under Section 55 or 56, may require such person to appear before

him and to furnish a security bond with or without sureties for such attendance during the

inquiry. If the person fails to furnish security bond as required or fails to appear before

the officer or authority during the inquiry, it shall be lawful to the authority or the officer to

proceed with the inquiry and pass order as was originally proposed (Section 58).

16.15 It is sufficient if the notice under Sec. 58 contains general nature of material

allegations and it need not contain particulars. At the same time it should ;not be too

general or too vague so as to render the person proceeded against not able to tender his

explanation in respect of what is lawful, against in such proceedings.

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APPEAL

16.16 Any person aggrieved by an order made under Sec. 55 or 56 may appeal to

Government within 30 days from the date of such order (Sec. 59).

16.17 According to Sec. 60, the order passed under Sec. 55 or 56 by the

Government under Sec. 59 shall not be called in question in any court except on the

ground that the authority making the order or any officer authorised by it had not

followed the procedure laid down in Sub-sec. (1) of Sec. 58 or that there was no material

before the authority concerned upon which it could have based the order or on the

ground that the said authority was not of opinion that witnesses were unwilling to come

forward to give evidence in public against the person in respect of whom an order was

made under Sec. 55.

16.18 If a person to whom the direction has been issued under Sec. 55 or 56 to

remove himself from the area (i) fails to remove himself as directed, (ii) having so

removed himself enters the area within the period specified in the order, without the

permission of the authority making the order, the authority concerned may cause him to

be arrested and remove him, in police custody, to such place outside the area as the

said authority may in each case direct (Sec. 61).

16.19 Failure to conform to any directions issued under Sec. 55 or 56 or abetting

opposition to or disobedience to any direction is punishable under Sec. 113 of the

Karnataka Police Act. Any person who, in contravention of direction issued under Sec.

55 or 56, enters an area from which he was directed to remove himself is punishable

under Sec. 114 of the Police Act.

Powers of Competent Authorities under the Police Act:

16.20 The expression 'Competent Authority' which is defined under Sec. 2 (4) of

the Karnataka Police Act, means the Commissioner of Police in relation to the cases of

Bangalore and in other areas, the District Magistrate or the Superintendent or the

Additional Superintendent or the Assistant Superintendent or the Deputy Superintendent

when specially empowered in that behalf by the Government.

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Powers to make rules prohibiting disposal of the dead except at

places set apart:

16.21 Section 33 of the Karnataka Police Act empowers the Competent Authority

to make rules from time to time in consultation with the Health Officer and subject to

previous publication, prohibiting the disposal of the dead at places other than those set

apart for that purpose. The rules could be made only in respect of places or towns where

the places for the disposal of the dead are set apart by any custom, usage or the like for

the time being in force and shall specify the places set apart for the disposal of the dead

of the different communities or section of communities. The rules shall be made in

consultation with the Health Officer and shall be subject to previous publication. It is

open to the 'Competent Authority' to accord permission to dispose of the dead at any

place other than a place so set apart, on such application made by any person after

consulting the Health Officer of that area, if in his opinion such disposal is not likely to

cause obstruction to traffic or disturbance of public peace or is not objectionable for any

other reason. Contravention of any rules made under Sec. 33 is punishable under Sec.

107 of the Police Act.

Issue of orders for maintenance of order at Ceremonials, etc.

16.22 Section 39 of the Police Act empowers the 'Competent Authority' to issue orders

regarding the conduct of persons towards each other and towards the public as deemed

necessary and reasonable under the circumstances, regard being had to the apparent

legal rights and to any established practice of the parties and of the persons interested in

any case of an actual or intended religious or ceremonial or corporate display or

exhibition or organised assemblage in any street or public place if it appears to the said

authority that a dispute or contention which is likely to lead to grave disturbance of the

peace exists. Every such order shall be published in the town or place wherein it is to

operate and all persons concerned shall be bound to conform to the same. Any order

under Section 39 (1) shall be subject to a decree, injunction or order made by a court

having jurisdiction it shall be recalled and altered on being made to appear to the

authority making the order, that such order is inconsistent with the judgment, decree,

injunction or the order of such court, on the complaint, suit or an application of any

person interested, as to the rights and duties of any Competent Authority to issue orders

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for the maintenance of order for religious ceremonies and processions. Such order is

made for the purpose of temporarily safeguarding the public peace.

16.23 No inquiry is contemplated before making the order. Sec. 39 (2) leaves

unaffected all questions of. civil rights. The appropriate remedy for any person

considering himself aggrieved by such an order is to appeal to Executive Government or

to establish his claim in a civil court. It is open to the Competent Authority acting under

this Section to give any person forming a religious procession, directions in the interest

of the public as to carrying a particular emblem or not and ,as to the time and route of

the procession and as to the presence of the Police. The order passed under this

Section should indicate the persons or parties who are affected by it and also the

occasion to which it is intended to apply.

16.24 Disobedience or abetment of disobedience of an order issued under Sec. 39

is punishable under Sec. 108 of the Act.

Discontinuance of use of premises by disorderly persons:

16.25 Section 41 empowers the Commissioner of Police, District Magistrate or

Sub-Divisional Magistrate to order the owner or tenant of a house which is used as a

common gaming house or place of resort of disorderly persons of any description to the

annoyance of the inhabitants of the vicinity, to discontinue such use of the house. The

exercise of the powers under this Section can be done only after the following conditions

are fulfilled:

(i) Government should have extended the provisions of this Section by issue

of notification in the Official Gazette to the City, Town or Village in the jurisdiction of the

Commissioner, District Magistrate or Sub-Divisional Magistrate.

(ii) A complaint should have been made to such officer.

(iii) The Commissioner of Police or Magistrate on receipt of such complaint

should summon the owner or tenant of the house to answer the complaint.

(iv) The officer should be satisfied that the house is so used.

In the order issued by the Magistrate, the period within which the owner or

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tenant of the house should discontinue use of it should be indicated.

Special measures to prevent outbreak of epidemic disease at Fair,

etc:

16.26 Section 42 provides that whenever it shall appear to the Commissioner or

the District Magistrate that at any place in the area under their respective charges, at

which on account of pilgrimage, fair or other occurrence, large bodies of persons have

assembled or are likely to assemble is visited or will probably be visited with an outbreak

of any epidemic disease, he may take such measures and may by public notice and

after consultation with the Health Officer of the area concerned prescribe such

regulations to be observed by the residents of the said place and by persons present

there at or proceeding thereto or returning therefrom as he shall deem necessary to

prevent outbreak of such disease or the spread thereof. Sub-sec. (2) of Sec. 42 provides

that it shall be lawful for the District Magistrate to assess and levy such reasonable

charges on persons visiting such places to provide for expenses of the arrangements for

sanitation and the preservation of order at or about the place of assemblage. If the said

place of assemblage is within the jurisdiction of a Municipal body such sums as shall be

necessary for the purpose aforesaid be recovered from the Municipal body.

Employment of additional police:

16.27 Section 46 of the Karnataka Police Act, 1963 empowers the Commissioner of

Police or the Superintendent of Police to depute on the application of any persons, any

additional number of police to keep the peace, to preserve order or to enforce any of the

provisions of the Police Act or any other Act in respect of any particular class or classes

of offences or to perform any other police duties at any place in the area under his

charge. According to Sec. 46 (2) such Additional Police shall be employed at the cost of

the person making the application but shall be subject to the orders of the Police

authorities and shall be employed for such period as the appointing authority thinks fit.

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Employment of additional police at large works and when

apprehension regarding behaviour of employee exists:

16.28 According to Sec 47 whenever it appears to the Government or a competent

authority that (a) any large work which is being carried on or any public amusement

which is being conducted is likely to impede the traffic or to attract a large number of

people or;

(b) that a behaviour or a reasonable apprehension of the behaviour of the

persons employed on any railway, canal or other public work, or in upon any

manufactory or other commercial concern under construction or in operation at any

place necessitates the employment of additional police at such place, the Government or

the competent authority may depute such additional police to the said place as it shall

think fit and keep the said police employed at such place for so long as such necessity

shall appear to continue. Such additional police shall be employed at the cost of the

person by whom the work, amusement, manufactory or concern is being constructed,

conducted or carried on and the said person shall pay the costs therefore at such rates

and at such times as the Government or the competent authority as the case may be,

shall from time to time, require.

Recovery of Cost of Additional Police employed:

16.29 In case of any dispute, regarding the cost of additional police employed

under Sec. 46 and Sec. 47, the decision of the District Magistrate shall be conclusive as

to the amount to be paid and the sum so ascertained may, on the requisition of the

District Magistrate be recovered by the Deputy Commissioner of the Revenue District as

if it were an arrear of Land Revenue due from the person bound to be answerable

therefor.

Employment of additional police in cases of special danger to public peace:

16.30 Section 49 lays down the circumstances under which additional police may

be employed in cases of special danger to public peace. In this connection Order No.

1187 of Karnataka Police Act, 1963 Volume II is reproduced below:

162

1. Section 49 of the Karnataka Police Act 1963 empowers Government to sanction

the employment of additional police in any local area which appears to them to

be in, a disturbed or dangerous state, or in which the conduct of the inhabitants

renders it necessary temporarily to increase the strength of the police as a

punitive measure. Such additional police must, therefore, be employed only for

the maintenance of peace of the locality concerned. .

2. In villages rampant with factions, where unreported crimes are on the increase,

additional police may also be quartered as a punitive measures under Sec. 49 (1)

of the Karnataka Police Act, 1963.

3. Sanction to the imposition of such additional police should be obtained from the

Government and formal proposals as to how the cost should be recovered

should be submitted to the Government later.

4. When the Superintendent considers that additional police should be imposed in

any area in the District, the Superintendent will immediately submit proposals to

the Deputy Inspector General through the District Magistrate furnishing

information in Form No. 124. The proposals will be forwarded by the District

Magistrate with his remarks to the Deputy Inspector General of Police.

5. Whenever any proposal for the establishment of an Additional Police Post is

submitted to Government for sanction, it should be accompanied by information

showing the population of the village in which it is proposed to establish the

Police Post, cost involved and the average incidence of the taxation which the

maintenance of the post will necessitate.

6. In all applications for additional police, the Superintendent should report how

many men are intended to be from Civil Police and how many from District

Armed Reserves and also the number and the kind of arms accountrements and

articles of clothing required.

7. On receipt of the proposals, the Deputy Inspector General will, if necessary, visit

the area in question in order to satisfy himself that the conduct of inhabitants of

the area justified the imposition of additional police. If he is satisfied that

additional police are necessary he will endorse the proposals received from the

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District authorities and forward them to the Inspector General of Police.

8. On receipt of the proposals from the Deputy Inspector General, the Inspector

General of Police will move the Government for imposition of additional Police

and, if they agree, request them to issue a notification in the Karnataka Gazette.

9. As soon as the notification is published in the Karnataka Gazette, the

Superintendent will draft a force of the strength mentioned in the notification to

the area. This force will be provided from the District Police strength and

substitute force raised.

10. While officiating promotions may be made in the vacancies caused by the

deputation of Sub-Inspector, Assistant Sub-Inspectors and Head Constables as

part of the additional force, Constables should be enlisted only if it could be

foreseen that the vacancies would last for more than six months.

11. As soon as possible, after the notification imposing additional Police on an area

appears in the Gazette, the District Magistrate will submit proposals to the

Government through the Inspector General of Police as to how the cost of the

force is to be recovered. He will state clearly the financial condition of the

inhabitants of the area from whom the cost is proposed to be recovered and he

will show how the cost is to be distributed amongst them. If it is considered

desirable that any of the residents of the area should be exempted from

contributing to the cost of the force, the reasons therefore should be clearly

stated in the proposals.

12. The cost of Additional Police will, with the sanction of the Government, be

recovered by the District Magistrate or any other authority authorised for this

purpose by the Government from the inhabitants of the area on which the force is

imposed, but any resident, residents or class of residents of the area may be

exempted from contributing to the cost of the force if they can prove to the

satisfaction of the District Magistrate that they were in no way responsible for the

condition that rendered the imposition of the additional police necessary.

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13. Additional police are imposed as a punitive measure and the cost of the force is a

collective fine on the inhabitants of the area on which the force is imposed. It is

essential, therefore, that, when additional police are considered necessary, they

should be imposed as soon as possible after the commencement of the

conditions that render them necessary.

14. Whenever it is considered desirable to extend the period for which additional

Police have been imposed, a report specifying the reasons why the retention of

the force is considered necessary and the further period for which the force

should be retained, will be submitted by the Superintendent of Police to the

Inspector General of Police through the District Magistrate and the range Deputy

Inspector General of Police so as to reach the Inspector General of Police atleast

two months before the term for which it was originally imposed expires.

Additional police may not, without the sanction of the Government, be retained

beyond the term for which it was originally imposed expires.

15. On the expiry of the period for which the imposition of Additional Police has been

sanctioned on any area, the force will be withdrawn and officiating promotions

made in the vacancies will cease.

16. Additional police will be under the control of the Station House Officer within

whose jurisdiction the area on which the force has been imposed is situated. If

there is no police outpost in this area, the Station House Officer will hire a

suitable house for the accommodation of the force, the rent of the house being

recovered from the inhabitants of the area as an item of the cost of the force.

17. The duties to be performed by additional police are to patrol the area on which

they have been imposed and to restrain the inhabitants of the area from

committing excesses. The exact duties of the force shall be laid down by the

Superintendent of Police, and the Station House Officer shall be responsible for

seeing that these duties are carefully carried out.

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16.31 In exercise of the powers conferred by Sec. 163 read with Sec. 49 of the

Karnataka Police Act, 1963, Government of Karnataka have promulgated Karnataka

State Police (Recovery of Public Cost of additional police employed in cases of special

danger to Public Peace) Rules, 1970. These rules lay down the procedure to be followed

by the Deputy Commissioner in recovering the cost of additional police, under Sec. 49

(5) of Karnataka Police Act, .1963. Every amount recoverable by the Deputy

Commissioner of Revenue District has to be recovered as if it were an arrear of Land

Revenue due by the person liable therefor.

16.32 According to the explanation to Sec. 49 the expression "inhabitants" when

used with reference to any area includes persons who themselves or by their agents or

servants occupy or hold land or other immovable property within such area and land

lords who themselves or by their agents or servants collect rent from holders or

occupiers of land in such areas, not withstanding that they do not actually reside therein.

Recovery of compensation for injury caused by unlawful assembly:

16.33 Section 50 of the Karnataka Police Act lays down the procedure for recovery

of compensation for injury caused by unlawful assembly. When any loss or damage is

caused to any person or persons, by anything done in the prosecution of the common

object of an unlawful assembly, the Government is empowered by notification in the

Official Gazette to specify;

a) any area as "the disturbance area" in which in its opinion such an unlawful

assembly was held; and

b) the date on which or the period during which such unlawful assembly was held.

On the issue of notification under Sub-sec. (1) of Sec. 50 by the Government, the

District Magistrate is empowered to determine the amount of the compensation

which, in his opinion, should be paid to any person or persons in respect of the

loss or damage or death or grievous hvrt aforesaid. The amount of compensation

shall be a tax imposed under Sec. 50 and should be recovered in the manner

prescribed under Subsec. (4) to (9) of Sec. 50. The definition of "inhabitants" is

the same as the definition given under Sec. 49.

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District Magistrate to award or to apportion compensation among

persons:

16.34 Under Sec. 51 the District Magistrate is empowered to award or apportion

any moneys recovered as compensation under Sub-sec. (3) to (8) of Sec. 50 to any

person or among all or any persons whom he considers entitled to compensation in

respect of the loss or damage or death or grievous hurt caused by the unlawful

assembly. For the purpose of getting compensation under Sec. 51 (1 ).

(i) a claim should be made within forty five days from the date of

notification issued by the Government under Sub-sec. (1) of Sec.

50; and

(ii) the District Magistrate should be satisfied that the person claiming

compensation or where such claim is made in respect of the death of

any person, that person also is free from blame in connection with

the occurrences which led to the loss, damage, death or grievous

hurt [Sec. 51 (2)].

16.35 According to Sub-sec. (3) of Sec. 51 the compensation to any person under

Sec. 50 in respect of death or grievous hurt shall not in any way be capable of being

assigned or charged or be liable to attachment or to pass to any person other than the

person entitled to it by operation of law nor shall any claim be set off against the same.

Every direction and order made by the District Magistrate under Sec. 51 or 50 is subject

to revision by the Government [Sec. 51 (4)].

District Magistrate to discharge functions under orders of Government:

16.36 The functions of the District Magistrate under Sec. 50 and 51 are subject

to any general or special orders of the Government in this behalf (Sec. 52).

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Recovery of the cost of additional police:

16.37 Sec. 53 lays down the procedure for recovery or proportionate recovery of

the cost of additional police and compensation for loss caused by the unlawful assembly.

53. Proportionate recovery of the cost of additional Police and compensation for

loss caused by unlawful assembly. (l) Notwithstanding anything contained in any law

in force relating to houserent and accommodation control, where under the provisions of

Sec. 49 or 50, the municipal body or the Deputy Commissioner of the Revenue District,

as the case may be, is required to recover the cost of the additional Police, including the

additional sum referred to in sub-section (4) of Sec. 49 (hereinafter called “the additional

cost”) or the compensation amount and the municipal recovery cost (hereinafter called

the “riot tax”) by an addition to the general or property tax, the landlord, from whom any

portion of the additional cost or the riot tax is recovered, in respect of any premises shall

be entitled to recover seventy-five per cent of such portion from the tenant in the

occupation of the premises during the period fixed under sub-section (1) of Sec. 49 or on

the date or during the greater part of the period specified under Cl. (b) of sub-section (1)

of Sec. 50 as the case may be, in the manner specified in sub-section (2).

(2) The amount referred to in sub-section (1) and to be recovered from a tenant

referred to therein shall bear the same proportion as the rent payable by him in respect

of the premises in his occupation bears to the total amount of rent recoverable for the

whole premises if left, and the same shall be recoverable in not less than four equal

installments.

000

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CHAPTER - XVII

CONTEMPT OF COURTS ACT, 1971

17.1 Contempt of Court may be described as "disobedience to the court or an

opposing or despising the authority, justice or dignity thereof" or any conduct that tends

to bring the authority and administration of law into disrespect or disregard. Contempt of

court may take several forms. Generally it is divided into two categories- Civil and

Criminal. While Criminal Procedure Code contains some provisions relating to contempt

of courts (Chapter-XXVI), there is the Contempt of Courts Act, 1971 which specifically

deals with matters relating to contempt.

Definitions:

17.2 The salient features of the Act are as follows:

As per the definition contained in Sec. 2, the contempt of court is divided into

two kinds viz., Civil Contempts and Criminal Contempts. The definitions are as under:

1. 'Civil Contempt" means wilful disobedience to any judgment, decree, direction,

order, writ or other process of a court or wilful breach of an undertaking given to

a court.

2. 'Criminal Contempt' means the publication (whether visible representations or

otherwise) of any matter or the doing of any other act whatsoever which

I. scandalises or tends to scandalise, or lowers or tends to lower the authority

of, any court; or

II. prejudices, or interferes or tends to interfere with, the due course of any

judicial proceedings; or

III. interferes or tends to interferes with, or obstructs or tends to obstruct the

administration of justice in any other manner.

169

Fabrication of Court’s Order

Section 2 (c) (III) & 15 : [A.M. Farooq & Ashok B. Hinchigeri, JJ] Fabrication

and forgery of the interim order to prevent change of Khata in Revenue

Proceedings – Belated tendering of apology for not verifying the interim order properly

and producing it without verification – Accused a graduate and doing law course and

has been a bench clerk in Land Tribunal - Very well versed with all Court Proceedings –

also done the same in many other cases – Apology was not accepted – Sentenced to

undergo S.I., for 3 months and to pay a fine of Rs. 1,000/- and in default to under S.I.,

for 3 months. (Registrar General Vs. Gundu Rao & ors.) ILR 2005 (2) KAR 1990 :

2005

Condone delay in Implementation of Court Order

Karnataka High Court by its order in 1985 directed the respondents to hold an

enquiry. But till 1990 no enquiry was conducted. This was construed as unreasonable

delay in carrying out the order. Even though no time limit was fixed, and hence it was

held as contempt. (In K.V. Venkatesh v. Taluka Executive Magistrate, Magadi Taluk,

Magadi) (AIR 1990 Kant.86).

Violation of Court’s Stay Order

Section 16 : [Shivaraj V. Patil & D.M. Dharmadhikari, JJ] Contempt of Court –

Interim order of High Court staying the operation of order of reference of Industrial

Dispute to Tribunal – Tribunal passing order on employer‟s application under Section 33

(2) (b), Proviso of I.D. Act, 1947 – Held, In View of the Stay of order of Reference itself,

Tribunal cannot enter upon reference and commerce proceedings. The order passed by

the Tribunal is not only one without jurisdiction but also amounts to contempt of order of

High Court. B.P.L. Ltd. & ors Vs. B. Sudhakar & ors. [CA 2999-3011/2004 DD

6.5.2004] 2005 (2) Kar.L.J. 349 (SC).

170

Breach of Court’s Injunction

Section 16 : When the respondent was likely to disconnect the power supply, the

petitioner filed a civil suit and got an injunction. Contempt petition arose because even

after the injunction and direction by the court the respondent disconnected the electricity

supply. In case of breach of injunction, action can be taken under Rule 2a of Order 39 of

Civil Procedure Code. Since alternative remedy was available contempt petition was not

entertained

Since Contempt Jurisdiction is an extraordinary one for maintaining the

dignity of the court, it will not use it whenever an alternative remedy is available or when

there is substantial compliance of its orders. . (Shaik Mohiddin v. Section Officer

Karnataka Electricity Board 1994 Sri. L.J.(Karnataka High Court) 3639.)

17.3 Any statement made in good faith concerning the Presiding Officer of any

subordinate Court to a Court higher than the said court or to the High Court, will not be

contempt (Sec. 6).

17.4 The High Court has the jurisdiction, power and authority to take

cognizance of contempt committed in respect of any subordinate court (Sec. 10).

In cases where such contempt is an offence under the Indian Penal Code, the High

Court will not have jurisdiction but such offences shall have to be tried before the

concerned Judicial Magistrate.

17.5 Punishment for contempt of court extends to imprisonment for 6 months or

with fine which may extend to Rs.2,000 or with both (Sec. 12). In order that the contempt

shall be punished by imposing a sentence under the Act, the court shall have to specify

that the contempt is of such a nature that it substantially interferes or tends substantially

to interfere with the due course of justice.

17.6 As' provided in Sec. 15 (2) of the Act, in case of any criminal contempt of a

subordinate court, the High Court has to take action on a reference made to it by the

Subordinate Court or on a motion made by the Advocate General.

171

17.7 Under Sec. 16 of the Act, subject to the provisions of any law in force, the

Judge, Magistrate or other person acting judicially shall also be liable for contempt of his

own court or of any other court in the same manner as any other individual is liable

under the provisions of this Act. However the observations or remarks made by judge or

magistrate regarding subordinate court in appeal or revision pending before such judge

or magistrate will not amount to contempt of subordinate court.

17.8 Sec. 20 provides for "imitations for actions of contempt. Under the said

section, no court shall initiate any proceedings for contempt either on its own motion or

otherwise after expiry of a period of one year from the date on which contempt is alleged

to have been committed.

17.9 Sec. 345 of the Code of Criminal Procedure deals with contempt committed in

the very presence of the court. When certain offences described in the Indian Penal

Code (referred to in the Section) are committed in the presence of the Court, the court

may detain the offender in custody, and may also take cognizance of the offence and

deal with it as per law.

17.10 The Court has the power to pardon contempt on sincere apology tendered

unconditionally. But it is left to the discretion of the court to accept it or not.

Deliberate disobedience is contempt of court and the concern of the court in such

disobedience is expressed in the following words:

It seems that the trend of today is more to disregard the orders of court than to

comply with the same with the belief that apologies tendered at the time of hearing will

condone all acts of the contemner. The time has come when it must be made clear to

the litigant public and all, that when a direction is given and orders are made, the court‟s

orders are required to be carried out to their fullest extent and any willful disregard to the

same will not be tolerated by a court of law and severe consequences will follow if orders

are found to have been violated.( Lakshmi Narayan Dutta v. Smt.Mira Rani Dey. 1984

Cri.L.J.(Calcutta High Court) 1033)

172

17.11 Magistrates are advised to show restraint in exercising contempt jurisdiction and

use it only sparingly. It should not be invoked unless there is real prejudice which can be

regarded as substantial interference with the due course of justice.

000

173

APPENDIX-I

LISTS OF CENTRAL AND STATE ACTS

CONFERRING POWERS ON EXECUTIVE

MAGISTRATES

NOTE:

In this Appendix, lists of Central Acts and State conferring Powers on Executive

Magistrates are given. These Acts and Sections of Acts mentioned are only

enumerative. Under some of the Sections mentioned the powers are conferred on

specific class of Executive Magistrates like District Magistrate, Sub-Divisional Magistrate

etc. It may also be noted that to exercise powers under certain sections of some of the

Acts, the Executive Magistrates are to be specially empowered.

SI.

No.

Name of the Act

Nature of Power

Authority on whom power is

conferred

Relevant Section of

law

Remarks

1 2 3 4 5 6

(1) LIST OF CENTRAL ACTS

1. Advocates Act

1961

To permit any person not enrolled as an advocate to appear before the court in any particular case

Any court including that of Executive

Magistrate

32

An Executive Magistrate even when not functioning as court may exercise this power to permit appearance in any particular case.

2) To make a complaint to the State Bar Council regarding professional or other misconduct by an advocate

Any court including

that of E.M

35

Should not be indiscriminately or arbitrarily used

2. Arms Act, 1959

1) To be informed of

sale or transfer of fire arm/ ammunition

D.M or Officer in charge of nearest

police Station

5 The intending seller of fire arms or ammunition shall communicate the name of the intending buyer at least 45 days prior to sale.

2) To grant licence

Licensing Authority 13 After due enquiry

174

3) To refuse to grant licence

As above

14 In case of refusal, he shall give a brief Statement of the reasons to the applicant on demand, unless it will not be in public interest to do so

4) To renew licence

As above

15 Reasons to be given for refusal

5) To receive licence fee and impose addi-tional conditions

As above

16

Conditions should be reasonable

6) To suspend or revoke and vary conditions

As above or any authority to whom the licensing authority is subordinate

17 He may give notice to the holder for delivering up licence

7) To arrest and seize arms or ammunition

Any Magistrate any Police officer, Public servant or person employed

in railway, aircraft, vessel,

vehicle, etc

20 For carrying arms under suspicious circumstances

8) To order for forfeiture of arms and ammunition

D.M 21(3)

After deposit of the arms and ammunition under section 21 and after issuance of show cause notice

9) To search and seize arms and ammunition

Any Magistrate 22

If he has reason to believe that such arms will be used for unlawful purpose or cannot be left without danger to the public peace or safety. Reasons to be recorded in the order before searching the house or premises

10) To stop and search any vessel, vehicle or other means of conveyance and to seize any arms and ammunition

Any Magistrate/ any Police

Officer/any other officer specially empowered by Central Govt

23 For ascertaining contravention of the Act or the Rules

175

11 ) To search and seize notified arms in disturbed areas

Any Officer subordinate to Central or

State Govt. as may be specified

24-A

Where the Central Government is satisfied that there is extensive disturbance of public peace and tranquillity or imminent danger

12) To search any person or any animal or vehicle and seize any notified arms and ammunition

-Do- 24-A(1)(d)

13) To be informed of the commission of any offence under the Act

Magistrate having jurisdiction /

officers in charge of police station

36

Failure to give information without reasonable excuse is punishable under section 30 of the Act

14) To allow production of arrested persons and arms not ammunition seized

Officer in charge of Police station

37 If arrest or seizure done by a person not being a Magistrate or police officer

15) To grant sanction for prosecution

D.M 39

Arms Rules, 1962

1) To specifically authorise persons to carry arms within the campus of educational institution

D.M Rule 11

2) To get a copy of

traveller's temporary licence

D.M. Rule 17

3) To inspect

premises, stock, records, where arms, etc are manufactured and kept

Magistrate Rule 27

176

4 ) To inspect police

station, .and District Malkhana

D.M/Other officer empowered by the State Government

Rule 49 Periodic inspection of arms etc Deposited with the dealer in authorised

[Note : a) For ascertaining who are the licensing, renewing authorities, please consult Schedule II to the Act. b) "Authority" or "Officer" means except where otherwise specifically provided in the Rules (Arms Rules,

1962), the D.M, or such officer as may, from time to time, be notified in the Official Gazette by Central

Government. Rule 2(c).

c) "D.M" includes an A.D.M or any other officer specifically empowered by the State Government.

Licensing authorities other than D.M shall send a copy of every licence to the D.M having jurisdiction

over the area. Rule 9.

d) For finding out who are the Appellate Authorities, please refer to Rule 5. ]

3. Boilers Act, 1923 To direct the owner of any boiler to produce the certificate

D.M / C.PI or any person

specially authorised by the D.M IC.P

15

4. Bonded labour System, (Abolition) Act 1976

1) To restore possession of homestead or other premises back to bonded labourer

S.D.M 8 (2)

If a bonded labourer, is evicted from residential premises, after he has been freed or discharged

2) (a) To ensure implementation of the Act

D.M 10 State Government may confer such power

(b) To discharge such powers and to perform such duties of the D.M

Any officer subordinate

to D.M 10

On being delegated by D.M.

3) To promote welfare and to ensure credit

D.M or other authorised

officer 11

For the bonded labourers

4) To enquire into and eradicate the enforcement of forced labour

- Do - 12

Bonded labour system has been abolished under Act vide Section 4

5) To be the chairman or to nominate any person for the office of. chairman

D.M 13 On the Vigilance Committee

177

6) To be chairman or to nominate any person in the sub-divisional Vigilance Committee

SDM 13(3)(a)

7) To nominate SC and ST, Social workers etc

SDM 13(3) On the Vigilance Committee

8) Power to try offences under the Act

EM 21

Powers under Section 21 conferred on executive Magistrate to try offences under the Bonded labour (Abolition) Act, 1976 vide State Government Notification No. SWL 20LBI 76 dated 30/3/1976.

5.

Cantonments Act 1924

1) To call upon the board to nominate a member

DM

263 (2)

For constitution of Committee of Arbitration

2) To issue and enforce processes

DM 264 (3)

As may be required by the Committee of Arbitration

6. Cantonments (House Accommodation) Act, 1923

Enforcing surrender of a house

DM

12

7. Census Act, 1948 1) To direct

specified officers or persons to perform duties of census officers

D M I any other authority appointed by the State Govt.

6

Direction should be given in writing in the form of an order. Refusing or neglecting to perform such duties is punishable under Section 187 IPC

178

2) To call upon

persons, officers and staff of any factory, firm or establishment etc and others specified to give assistance towards taking of a census

As above

7

Persons acting in pursuance of such order be deemed to be public servants within the meaning of Section 21 of IPC

8.

Cinematograph Act, 1952

1) To pass orders for search and seizure

DM 7A

When there is reason to believe that the provisions of the Act are being contravened

2) To grant licence

DM 11

Depends upon his satisfaction as to compliance with the Rules and adoption of safety and precautionary measures vide Section 12

3) To suspend exhibition of films

DM 13 When exhibition of the films may cause breach of peace

4) To revoke licence

Licensing Authority which

includes DM

15

When the holder of the licence has been convicted of an offence under section 7 or 14

9. Code of Civil Procedure 1908

Administration of Oath to the deponent in case of affidavits filed under the provisions of the Code

Any court / Magistrate

139

10. Commission of Sati (Prevention) Act 1987 with Rules 1988

1) To prohibit the doing of any act towards the commission of Sati

DM/ DC 6

If he is of the opinion that 'Sati' or its abetment is about to be committed

The State Government may direct that powers of the Collector or D.M u/s 6 may also be exercised by such other officer, not below the rank of Villages Officers. Vide Rule 3.

2) To prohibit the glorification of 'Sati' by any person in any manner

As above 6

179

3) To order removal of certain temples other than those covered by Section 7(1)

As above 7(2)

If he is satisfied that in any temple or other structure any form of worship is carried out with a view to perpetuate honour of or to preserve the memory of any person who has committed 'Sati'

4) To order removal of such structure etc through police officer

As above 7(3)

In case of non-compliance of orders passed under section 7(1) and 7(2)

5) To seize certain funds and properties

As above 8

When he has reason to believe that any funds or properties have been collected or acquired for the purpose of glorification of the commission of 'Sati' or which may be found under circumstances which create suspicion of the commission of any offence under this Act

6) To be protected against suit prosecution or other legal proceedings for anything done in good faith or intended to be done in pursuance of the Act, Rules or Order made thereunder

Any officer or authority including DM

15

7) To specify village officer and other officers and inhabitants of such area who will be under an obligation to report about commission of offence under the Act to the nearest police station

DM/DC 17(2) Violation punishable under Section 17 (3)

180

8) To prepare inventory of all the material and other property obtained after removal of temple or structures and to forward intimation thereof to the Special Court

DM/ DC Rule 7

11. Contempt of Courts Act 1971 1 ) To refer a

criminal contempt to the High Court

Any subordinate court which includes a court of EM or Revenue

15(2)

May be resorted to only in appropriate cases to meet the ends of justice

2) To specify the contempt of which the person charged is alleged to be guilty.

As above 15(3)

In this context attention is also drawn to Section 345 Cr.P.C

NOTE: 1) A Judge or Magistrate may also commit contempt of his own court. Vide Sec 16.

2) Although there is no express provision as to making of a reference to High Court regarding Civil contempt, a report may be submitted to the High Court by any subordinate court alleging civil contempt

3) “Civil Contempt' means willful disobedience to any judgment, decree, direction or other process of court.

12. Cotton Ginning and Pressing Factories

Act, 1925

1) To give sanction for prosecution for violation of the provision of the Act

D.M

11

Certain amendments have been carried out to this Act in its application to the State & vide Karnataka Cotton Ginning and

2) To institute prosecution for violation of the provisions of the Act

D.M 11

181

13. Criminal Procedure

Code, 1973

1) To Restrict the local limits of each Executive Magistrate within the district

D.M. 2(1)&(2)

The authority of the D.M. is subject to the control of the state Government

2) (a) To distribute business among the Executive Magistrates sub-ordinate to him

D.M. 23(2)

(b) To allocate business to the Additional District Magistrate

D.M. 23(2)

3) To confer upon the A.D.M all or any of the power of D.M

State Govt.

20(2)

3(a)successors in office to exercise powers

E.M. A judge or Magistrate

including his successors

35

Powers of Magistrates are exercisable by their successors in office subject to the Provisions of Cr. P.C

Note: When there is a doubt as to who is the successor in office of any Executive Magistrate, it shall be determined by the D. M. vide sec.35(3)

4(a) To demand the aid of any member of the public for effecting arrest

E.M 37

A member of the public is bound to assist the Magistrate when his aid is reasonably demanded by the magistrate for making arrest Intentional omission to render such assistance is punishable under Section 187 IPC.

182

(b) To demand the assistance of a member of the Public

E.M. 37

In the Prevention or suppression a breach of peace or in the taking or preventing the escape of any person whom the Magistrate is authorised to arrest or in the prevention of any injury attempted to be committed to any railway, telegraph or public property.

Note : Omission to render aid is punishable U/s I.P.C

(c) To be informed of certain offences

Nearest Magistrate or Police

Officer

39 Public to give such information

(d) To be posted with reports in connection with the affairs of a village.

as above 40

Duty cast upon the village officials. Breach of duty punishable under Section 176 I.P.C.

(e) To arrest or to direct arrest within his local jurisdiction in his presence

E.M 44(1) & (2)

When any offence is committed in his presence or he has the authority to issue warrant of arrest for the arrest of the person concerned.

(5) To endorse warrant of arrest issued by an outside court for execution within the local limits of his jurisdiction

E.M O/C of police Station

79

(6) To allow the arrested person to be produced before him

E.M. S.P C.P

80

When the outside court issuing the warrant is beyond 30 k. m. of the place of arrest

(7) (a) To check up whether the person arrested on warrant, appears to be the person intended by the court issuing the warrant.

E.M 81

This procedure is to be followed by the E.M. when any person, arrested on a warrant issued by an outside court, is produced before him.

183

(b) To direct the removal of the arrested person in custody to the court which issued warrant.

E.M 81 Unless the offence involved is bailable.

c) i) To enlarge the arrested person on bail if the offence is bailable and the person arrested furnishes security to his satisfaction.

E.M 81

In such event, the bail-bond should be forwarded to the court which issued the warrant.

(d) To compel production of things for purpose of inquiry

E.M 91

(e) To require search to be made for letters and telegrams in the custody of the postal or telegraph authority pending the order of D.M., C.J.M. etc.

E.M 92 (2)

8(a) To issue search warrant (while acting as a court)

Any Court, including that of E.M.

93 (1)

For Production of a specified thing or document or for general search

b) to issue search warrant

D.M. 93 (3)

For document, parcel or a thing in custody of postal or telegraph authority.

9) To issue search

warrant or to make orders.

D.M. S.D.M.

94

a) For search of place suspected to contain stolen property, forged documents etc.

97

b) For search of persons wrongly confined

98

c) For restoration of abducted females.

10) To authorise Police officer, not below the rank of Sub- Inspector, to search or seize certain publications forfeited.

Any Magistrate (E.M included)

95

184

11) To direct search in his presence

Any Magistrate

(E.M included)

103

If and when he is competent to issue a search warrant, he may instead of issuing search warrant direct search to be made in his presence.

12) To demand

security for good behaviour or keeping peace

E.M. (a) 107 a) For keeping peace in cases otherwise than on conviction

(b) 108

For good behaviour from Persons disseminating seditious matters.

(c) 109

For good behaviour from suspected persons.

(d) 110

For good behaviour from habitual offenders.

Note: Section 111 to 124 lay down the procedure to be followed for the exercise of such Magisterial Jurisdiction. 2 Section 116 provides for Procedure to be followed for inquiry. ]

13)(a) To command an unlawful assembly either actual or potential to disperse

E.M. 129 (1)

An "Unlawful Assembly" is a collection of five or more persons actuated by a common object as specified in Section 141 IPC. An assembly of five or more persons which does not come within the purview of Section 141 IPC may also be commanded to disperse provided that it is in the circumstances likely to cause disturbance of public peace.

185

(b) To disperse such assembly by use of civil force

E.M 129 (2)

When such an assembly on being so commanded does not disperse, Even if such an assembly has not been commanded to disperse but it conducts itself in such a manner as to show a determination not to disperse.

Refusal to disperse is punishable under Section 145 IPC in case of unlawful assembly and under Section 151 IPC in case of an assembly likely to cause disturbance to public peace.

Note : Sources of Civil forces are : a) State Police Force b) Any male number of the public

(bb) To make order

for arrest and confinement with a view to effecting dispersal or being prosecuted and punished according to law

E.M 129 (2)

(c) To cause an unlawful assembly to be dispersed by armed forces.

E.M. of the highest rank present

130

Armed forces include military, naval, air forces operating as land forces and also any other armed forces of the Union of India so operating like BSF, CIFF, Assam Rifles and TTBP ete

cc) To require the

officer commanding the group of armed forces to arrest and confine members of such assembly for effecting dispersal or having them punished

E.M. of the highest rank present

130 (2)

186

14) To pass a conditional order for removal of nuisance

D.M./S.D.M/Executive magistrate specially empowered by the

State Govt.

(a) 133 Vide Chapter-XX, Part-B

(b) 137

He may make an inquiry as to the existence of public right when it Is denied

(c) 138

He may hold an inquiry with a view to determining whether the conditional order should be confirmed or modified or further proceedings be dropped.

15) To issue injunction pending inquiry U/s 133

As above 142

16) To Prohibit repetition or continuance of public nuisance

As above 143

17) To issue order in the urgent cases of nuisance or apprehended danger (The order is ordinarily Prohibitory)

D.M. S.D.M. Any other E.M. Specially

empowered by the State Govt.

144

He may direct any person either to abstain from a certain act or to take certain order with regard to certain property in his possession or under his management. Such direction may be given to prevent :

a) Obstruction or annoyance or injury to any person law fully employed or;

b) Danger to human life, health or safety or;

c) Disturbance of public tranquillity or riot or any affray vide Section 144 Cr.P.C.

187

17 A)T0 issue temporary orders in urgent cases of nuisance or appre-hended danger

D.M., S.D.M., any other E.M. specially

empowered by the State Govt.

144

When immediate prevention of speedy remedy is desirable

Note: The object of an order; U/s 144 Cr..P.C .is to prevent any of the following

(a) Obstruction annoyance or injury to any person lawfully employed.

(b) Danger to human life, health and safety.

(c) Disturbance of public tranquillity

(d) Riot or affray

17 B) To Pass an

order ex-parte under section 144 Cr. P.C

D.M., S.D.M.,

any other E.M specially empowered by the

State Govt.

144

In case of emergency or in cases where circumstances do not permit for service of timely notice upon the person against whom the order is directed.

Note: The nature of order U/s 144 is generally prohibitory. In appropriate cases it may be mandatory e.g. the Magistrate may enjoin the opposite party to direct removal of an obstruction when it Is needed to prevent a breach of peace (Madhu Limaye's case AIR 1971 SC 2486 Supreme Court)

17 C) Examples of the orders that may be passed U/s 144

D.M., S.D.M.,

any other E.M., specially empowered by

the State Govt.

144

A Prohibitory order U/s 144 Cr.P.C must specify: i) the thing which is prohibited; ii) the persons who are prohibited

188

(a) To prohibit an assembly, or a meeting .or Procession for prevention of breach of peace but not for interfering with the lawful exercise of legal rights

iii) the place covered by the order; and iv) the period of time Note: The list given in column No.2 is only illustrative and not exhaustive.

(b) To Prohibit carrying of arms or weapons.

(c) To Prohibit a person from entering into a Particular area.

(d) To Prohibit using of loudspeakers.

(e) To prohibit people from coming out of their houses on the public road/ Street/lane (curfew).

Violation of an order U/s 144 Cr.P.c is a cognizable offence and punishable U/s 188 IPC.

(f) To prohibit raising of Provocative slogans which are likely to cause breach of peace.

18) To intervene

and tackle a dispute concerning land or water which is likely to cause breach of peace

E.M. 145(1)

(a) If the E.M is satisfied about the existence of a dispute of the aforesaid nature, he may pass a preliminary order.

(b) Afterwards ,he may make an inquiry. Note: The inquiry should be limited to the question as to who was in possession in fact on the date of the preliminary order irrespective of the question as to the right of the parties. The object of this Sec.145 is: (i) to prevent the breach of public peace;

189

(ii) To provide summary and speedy recovery; (iii) To ascertain which party was in actual possession; and (iv) To maintain Status-quo until the right of the parties are decided by a competent court.

18 (a)To make an

order declaring the possession

E:M. 145 (6)

19) (a) To attach

the subject of the dispute and appoint a Receiver.

E.M. 146( 1 )

The Proceedings U/s 146 are in continuation of those U/s 145.

(b) To appoint

Receiver

E.M. 146(2)

20) (a) To take preventive measures in respect of disputes concerning the right to a particular use of land or water

E.M. 147

Section 147 has the same object as Section 145 but the nature of dispute U/S 145 is different from those U/S 147 applies to disputes about the possession of land or water itself while Sec 147 relates to disputes regarding rights of

USER of land or water.

Note: Mode of inquiry U/s 147 is same as U/s 145.

There may be attachment in a proceeding U/s 145 but the question of attachment does not arise in a case U/s 147.

190

21) (a) To make an

order prohibiting any interference with the exercise of the right of the actual User claimed, provided that it appears to exist.

E.M. 147(3)

(b)To hold local

inquiry E.M. 148

22) To remand an accused to custody during investigation

E.M. 167(2A)

When a judicial Magistrate is not available, an accused may be forwarded by a police officer not below the rank of S.I. U/S 167 Cr.P.C. to the nearest E.M. on whom powers of the judicial Magistrate or Metropolitan Magistrate have been conferred vide Section 167(2A).

22) a) To issue

commission for examination of witnesses

E.M. 284

23) (a)To make a

Complaint U/s 340 (1) for offences affecting the Administration of justice

Courts including

that of E.M.

340(1) read with

Sec.195

E.M. including D.M. & S.D.M. are Courts inferior to that of Sessions Judge vide Section 397 & 398.

(b) To order costs in

the context if filing complaint

342

(c) To forward the

contempt case to the judicial Magistrate for trial.

E.M. 346(1)

24) To convict &

punish persons under sections 345, 349 & 350 Cr.P.C

Courts including that of E.M

345, 349, 350

Such Orders of the E.M. are appealable to the court of session.

191

25) To make over or Withdraw from any Magistrate subordinate to him cases which have been started before him or which have been made over to any Magistrate subordinate to him respectively.

D.M., S.D.M

411

Any case U/s 411 means any proceeding or inquiry before an E.M. such as cases U/s 107, 108, 109, 110, 133 144, 145, 146 and 176.

26) To exercise all such powers as have been conferred upon the court under provisions of the Cr.P.C provided that those powers are also relatable to and exercisable in furtherance of their functions under the code, as for example:

E.M

a) Issuing process to compel appearance.

Courts including that of E.M.

69, 70, 71 etc

Chapter VIA, B, C. D, & Chapter

VII,1A

b) Taking and recording evidence in inquiries.

do Do

c) Disposal of Property pending inquiry and at the conclusion of the inquiry.

do 451 to 459

d) Forfeiture of bonds do furnished to the Executive Magistrate under the Cr.P.C and imposing penalty.

do 446

e) Holding local inspection

do 310

f) Discharge of sureties U/S 444 Cr.P.C

E.M. J.M.

444

g) Issuing warrant for levy of fine

E.M. J.M..

421

192

h) Punishing for criminal contempt in view or presence of the court

-do- 345

27) To allow Affidavits to be sworn.

E.M. 297

28) To record the demeanour of a witness

Criminal Court including that of

280

It should be recorded while the witness is under examination at any inquiry

Security Proceedings

1) To pass a preliminary order asking any person to showcause.

E.M 111

When the Magistrate acting U/s 107,108,109, or 110 deems it necessary.

Note: The order should be in writing and it should contain the following

a) Substance of the information received;

b) The amount of the bond to be executed; and

c) The term for which it is to be in force; and

d)The number,character and class of sureties required.

2) To read over to the E.M. Opposite party if present in court the preliminary order.

E.M. 112

It may, if desired by the O.P. be explained to him

3) To issue summons requiring such person to appear.

E.M. 113

A copy of the preliminary order should accompany the summons. This is the normal procedure in securing attendance of the O.P.

4) To issue Production Warrant addressed to the Officer in charge of the prison, directing the production of such person.

E.M. 113 When such Person is in prison.

193

5) To issue Warrant of arrest against O.P., when breach of peace is apprehended which cannot be prevented otherwise, than by immediate arrest of O.P.

E.M. Proviso to Sec.

113

A copy of the Preliminary order should be attached to the Warrant of Arrest vide Section 114.

6) To issue warrant of arrest U/s. 87(b when the O.P. does not turn up in response to the summons.

E.M. 87(b)

Vide Gopi V/s State reported in 1974 Cr.L.J.1410

7) To give an opportunity to show cause to the O.P.

E.M. 115

8) To dispense with the personal attendance of any person and permit him to appear by a pleader

E.M. 115

9) To inquire and record evidence in security Proceedings

E.M. 116

Procedure for trial of summon cases to be followed.

10) To ask for a interim bond from such person alter commencement of the inquiry and before completion of the inquiry.

E.M. 116(3)

The inquiry is to be completed within six months. The proce-eding shall stand terminated on the expiry of six months unless the Magistrate, for special reasons, extends the time. Such extension, if any. is to be made within six months. Extension, if any, is liable to be scrutinized by the Sessions Judge.

11) To order for furnishing of Security.

E.M. 117

When it is Proved that it is necessary to take security.

12) To discharge opposite party

E.M. 118

When the case is not proved

13) To refuse or reject a surety.

E.M. 121

If he is found unfit.

194

14) To order imprisonment in default of security.

E.M. 122

15) To report the case to the Sessions Judge for his orders when the bond is for more than one year

E.M. 122

In the meantime the O.P. may be detained pending the decision of the Sessions Judge.

Note: (a) When the O..P. after execution of a bond for good behaviour but during the term of the bond, commits or attempts to commit or abets in the commission of an offence punishable with imprisonment, it may be regarded as breach of the bond.

(b) A bond for keeping the peace is broken when the O.P. .does some acts during the term of the bond, which is likely in its consequence to provoke the breach of peace.

16) To release Person imprisoned for failure to give security

(a) D.M. (b) C.J.M.

as the case may be.

123(1)

a) When the imprisonment has been ordered by Executive Magistrate b) In other cases

17) To reduce the amount of security, number of sureties or the time for which security has been taken when the persons have been imprisoned for failure to give security.

(a) High Court (b )Court of Session

(c)D.M. 123(2)

c) In case of order passed by E M. d) In any other case

Inquests

1) To hold inquest that means to make an inquiry into the cause of unnatural or suspicious death

D.M. S.D.M.,

Any other E.M.

specially empowered

by the State Govt

or the D.M.

174(4)

Inquest when mandatory for the competent E.M. (a) When any person dies in the police custody.

195

b) The case involves suicide of a woman within seven years of her marriage.

c)The case relates to death of woman within 7 years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman.

d) In any other case mentioned in 174(1), any Magistrate so empowered may hold an inquiry into the cause of death either instead of or in addition to the investigation held by the police officer (Here, the inquest by Magistrate is DISCRETIONARY)

2) To direct the police not to hold inquest on receipt of an information from the police or any other source.

State Govt. D.M. 176

D.M. or S.D.M. has power to issue general or special order in this regard. Vide section 174(1) Cr.P.C.

2A) To cause a dead body to be disinterred

D.M. S.D.M any other EM. specially

empowered by the State Govt.

176(3)

3) The Magistrate has the following Powers in regard to inquest

D.M.& S.D.M Any other E.M. read specially with empowered by 174 the

State Govt.

176

a) To proceed to the spot promptly.

Inquest is to be held on the spot

b) To inform the relatives of deceased whose names and addresses are known and allow them to remain present at the inquiry

The expression relatives in this context, means parents, children brothers, sisters and spouse

196

c) To examine carefully the dead body in presence of two or more respectable inhabitants of the neighbourhood.

d) To note down all relevant features, which include, among other things, number, position and direction of wounds, fractures, bruises and other marks of injury on the body.

Signs of inflammatory reaction (smelling etc,) and signs of struggles should be recorded.

e) To take steps (before commencing examination of the dead body) for identification of the deceased by at least two persons who have known him before his death

f) To examine the persons who are supposed to be acquainted with the facts and the circumstance of the case and record their evidence

He has Power to administer oath Vide section 3 of the Oaths Act, 1969. Note : Evidence of each witness should be recorded separately in verbatim

g) To call and

examine eyewitness, if available.

h) To inspect the

general diary, connected case diary, lockup register and all other relevant records and documents in case of inquiry into the cause of death in Police custody.

It is not necessary to examine all the eyewitnesses. If eyewitnesses are not available the Magistrate may examine other persons who may throw light over the cause of death.

i) To issue process and to compel appearance of witness and production of things.

Proceedings conducted by E.M. U/S 176 Cr.P.C are an inquiry within the meaning of section 2(g) Cr.P.C vide A.I.R. 1928 Bombay 390.

197

4) To record confession of any person which is likely to throw light over the cause of death.

E.M. 176

An E.M. though not empowered to record confessional statement U/S 164 Cr.P.C. may record confession of any person throwing light over the cause of

death AIR 1953 Madras 138 (741) AIR 1964 AP 548

D. M cannot interfere in an inquiry U/s 176 Cr.P.C made by the S.D.M or any other competent E.M

Other Powers

1) To postpone or

adjourn Proceedings which include inquiries.

Any court including

E.M. 309

Reasons to be recorded

2) To direct the

payment of cost by the prosecution to the accused

As above Explanation (2) of

Sec.309

The cost may form a Condition or term of adjournment

3) To visit and

inspect any place in which an offence alleged to have been committed or any other place which is necessary to view for the purpose of properly appreciating the evidence given at an inquiry or a trial at any stage of inquiry trial or the proceeding.

Any Judge or Magistrate

including E.M.

310(1) Due notice to be given to the person.

4) To record a

memorandum of any relevant facts observed at such inspection

Any judge or Magistrate

310(1)

Such memorandum would form part of the record of the case.

198

5) To summon, examine, recall and re-examine any material witness or who is present in court

Any court including court of

E.M.

311

If evidence of such person appears to be necessary for the just decision of the case, such person can be examined at any stage of inquiry trial or other proceeding under Cr.P.C.

Note: Section 311 has two parts. One discretionary and the other mandatory.

5A) To order

payment of expenses of witnesses in any inquiry

312

6) To take cognizance of the offence for non- attendance by a witness in avoidance of summons and to try him summarily.

Any Criminal Court including

that of E.M. 350(1)

If any witness, being summoned, does not appear without just excuse, neglects or refuses to attend.

7) To cause an offender to be detained in custody at any time before the rising of the court on the same day.

Civil, Criminal or

Revenue Court 345( 1)

For Criminal Contempt of Court

8) To sentence such a witness to fine not exceeding Rs.100.

As above 35O( 1)

Summary trial/Procedure to be followed for hearing

9) To take cognizance of the offence as described in Sec.175, 178, 179, 180, 228 I.P.C When it is committed in the view of or in the presence of the court.

Civil, Criminal or

Revenue Court 345( 1)

Offender should be given reasonable opportunity to show cause as to why he should not be punished.

199

10) To sentence such offender for criminal contempt to fine not exceeding Rs.200 and in default of payment of fine to simple imprisonment for a term which may extend to one month

As above 345(1)

The court shall record the facts constituting the offence with the statement, if any made by the offender as well as the finding and sentence.

11)To forward the case to a magistrate having jurisdiction to try the offence involved

As above 346(1)

When the forwarding court considers that the case should not be dealt U/s 345 Cr.P.C.

14. Customs Act. 1962

1) To allow a person whom a custom officer is about to search, to be produced before him

Magistrate 102 If such person so requires

2) To direct search to be made

- do - 102 When there is ground for search

3) To discharge him - do - 102

If he sees no ground for search

15. Drugs and Magic Remedies (objectionable Advertisement) Act, 1954

To enter, search place and seize advertisements

Any Gazetted Officer authorised

by the State Government

8

If he has reason to believe that an offence under the Act has been or is being committed.

16. Drugs Control Act, 1950

To Give sanction for prosecution of offence punishable under the Act

DM 15

17. Electricity Act

1910

1) To direct any support stay or strut to be fixed, to be removed or altered.

DM 12 Upon good cause being shown

2) To cause the trees structured or object to be removed or otherwise dealt with

DM 18

Interferes or likely to interfere with the transmission of energy

200

3) Authorise a licensee to enter any premises or land for the purposes mentioned in the section

Executive Magistrate 20

4) To be informed regarding transmission and use of energy in certain causes.

-do- 30

By a person other than a licensee or person to whom sanction has been granted

5) To recover sums recoverable under certain provisions of the Act

Executive Magistrate 54

By distrain and sale of any moveable property belonging to such person

18. Emigration Act

1922 To sanction prosecution of offence punishable under the Act

D.M 28

DM will exercise powers in cases where no protector of emigrants or no person is appointed and empowered under Section 45 of the Act

19. Explosives Act, 1884

To enquire into cause of accident or to direct a subordinate Magistrate to hold such enquiry

D.M 9

a) In accidents other than those in connection with any place, aircraft, carriage or vessel under the control of the Armed Forces.

b) Enquiry by D.M. is mandatory in cases involving loss of human life.

c) In other case he may direct an E.M. to hold enquiry (See also Rules : Rule 63, 85 94, 106, 107, 108, 179 and schedule-IV of the Rules (See Rules 75(3) and 78 framed under the Explosives Act, 1884)

201

Explosives Rules, 1983

To search, seize, enter inspect, examine any place, any carriage etc. and to take samples of explosives possessed or manufactured in contravention of the Explosives Act, 1884)

D.M.,E.M Commissioner of Police

Police Officers not below the

rank of inspector of police in their respective

jurisdictions.

Rule 179

The Chief controller & Controller of Explosives has jurisdiction over the

entire country.

Note : For matter of enquiry into accident U/S 9(1) of the Act, Vide Rule 184

Gas Cylinder Rules 1981 (Framed under the Explosive Act, 1884)

1) To inquire into accidents

D.M./E.M 9(1) Explosives

Act, 1884

Procedure laid down in Rule 75

2) To take evidence to identify dead bodies and order intemment thereof

-do- Rule 75(3)

When the accident is attended with loss of human life

3) (a) To inspect any place, aircraft, carriage or vessel

-do- Rule 78 Sec 7(1)

Explosive Act

The D.M. And E.M. can exercise the power within their respective jurisdiction

(b) To search for explosives

-do- -do-

(c) To take sample

-do- -do-

(d) To seize

-do- -do-

20. Factories Act, 1948

1) To be the Inspector of Factories

D.M. 8(4) For his district

2) To enter and inspect factory to examine documents

D.M. as Inspector 9 He may examine any person for the purpose of the Act

3) To inquire into the accident

-do- 9

4) To require the production of any register

-do- 9

5) To seize or take copies of any register of document

-do- 9

202

6) To direct dismantling of article or substance

-do- 9

When such article or substance is likely to cause danger to health & safety of the worker

7) To file complaint or to sanction prosecution for offences under the Act

D.M. as Inspector 105

Limitation-Three months from the date on which the offence came to his knowledge

21. Foreigners Act, 1946

1)To require the master of any vessel or the pilot of any aircraft to furnish information in respect of passengers or members of the crew on such vessel or air craft as the case may be

D.M./C.P S.P

6(2)

Information in respect of passengers or members of the crew

2) To authorise a person to inspect records of information maintained by Hotel Keepers / Keepers of any premises regarding foreigners accommodated in such premises

D.M./C.P 7(3)

22. Foreign Exchange Regulation Act, 1973

Power to direct search of a person brought before him by an officer of Enforcement

Magistrate 34

23. Gold Control Act, 1968

1) To allow production of a person about to be searched

Nearest Magistrate 60 Of a person detained under Section 60 (2)

2) To direct search or discharge

-do- 60(3)

24. Immoral Traffic (Prevention) Act 1956

1) To notify a public place other than those specifically mentioned in Section 7(1) (b) within 200 metres of

DM 7(1) (b) read with

Schedule

203

which prostitution is prohibited.

2) To Confer upon a retired police or military officer all or any of the powers of special police officer.

D.M 13(2)(A) If he considers necessary and expedient

3) To allow production of persons after his removal from brothel under Sub-Section 4

D.M. SDM

15(5)

4) To get such persons medically examined

As Above 15(5) (A) Medical examination is compulsory

5) To direct police officer to enter brothel and to remove any person living in brothel or is carrying on prostitution

As above 16

Where the Magistrate has reason to believe so from information received from police or any other person authorized by the State Govt. or otherwise.

6) To issue notice to show cause within 7 days to the owner, landlord etc. of the brothel as to why property should not be attached for improper use.

D.M/S.D.M. 18(1)

When the Magistrate receives information from police or otherwise, that any houseroom or place within a distance of 200 metres of any public place is being run or used as a brothel or is being used by prostitutes for carrying their trade

7) a) To direct eviction after hearing the occupier within 7 days of the passing of the order

-do- 18(1)

b) To direct owner / lessor etc. not to let it out without permission of the Magistrate

-do- -do-

204

8) To order eviction with out notice to show cause

Convicting court 18(2) When a person is convicted U/s 3 or 7

9) (a) To order applicant to be kept in a protective home or to be provided care and protection

D.M./S.D.M 19(1)

b) To direct that the applicant be kept in proper custody pending inquiry

-do- 19(2)

c) To order after inquiry that applicant be kept.

-do- 19(3)

Regard may be had to the report of the probation officer and possibility of rehabilitation

i) in a protective institution, or

ii) in a corrective institution. or

iii) under supervision of a person appointed by the Magistrate

10)a) To record substance of the information received that a person who is residing or frequenting any place is a prostitute

D.M./S.D.M., or any E.M. empowered by

the State Govt. 20 (1)

b) To order her to appear and issue notice to show cause as to why she should not be required to remove herself from the place and be prohibited from re-entering.

-do- -do-

205

c) To inquire into the truth of the information after giving opportunity of being heard.

-do- 20(3)

d) To order that she shall remove herself from the place and shall not re-enter

-do- -do-

25.

Indecent Representation of Women (Prohibition) Act, 1986

1) To enter and search any place if he has reason to believe that an offence under this Act has been or is being committed

Any Gazetted Officer authorized by the State

Govt. 5

For entry into private dwelling house, warrant is necessary

2) To seize any

advertisement, documents, book, photograph etc

-do- -do-

For manner of seizing and packing vide Rules 3 and 4 of the Indecent Representation (Prohibition) Rules, 1987

3) To examine any record, register or

other material object and to seize them

-do- -do-

26. Indian Christian Marriage Act, 1872

To act as the Marriage registrar

D.M. 7

During the absence of the Marriage Registrar or his illness or temporary vacancy.

27. Indian Evidence Act, 1872

1) Not to be compelled to answer any question as to his own conduct in a court as Magistrate or as to any thing which comes to his knowledge in the court as such magistrate

Magistrate 121

Except upon the special order of some other court to which he is subordinate

2) Not to be compelled to disclose communication made to him in official confidence

Any public office 124

When he considers that public interest would suffer by such disclosure

206

3) Not to be compelled to disclose the sourse of any offence including offence against public revenue

Magistrate/Police/Revenue officer

125 It is based on public policy

4) To forbid any indecent or scandalous questions unless they relate to facts in issue

Any court including that of E.M.

151

Court includes all judges & Magistrates and all persons, except arbitrators legally authorised to take evidence vide Section 3

5) To forbid any question intended to insult or annoy or which is needlessly offensive in form

As above 152

6) To ask any question in any from, at any time, of any witness or of the parties about any fact relevant or irrelevant

-do- 165

This section does not authorize a judge to compel any witnesses to answer any question which such witness would be entitled to refuse to answer under Section 121 to 131

Note : Judge shall not ask any question which would be improper for any other person to ask under section 148 or 149 of the Act

7) To order production of any document or thing at any time

-do- 165

This section does not authorize a judge to compel any person to produce any document when such person would be entitled to refuse to produce under Sections 121 to 131

207

28. Indian Stamp Act 1899

To examine and impound a chargeable instrument

EM/Revenue court 33

If he thinks fit specially in a proceeding under Chapter XII & XXXVI C.P.C.

29. Indian Telegraph

Act, 1885

1) To permit telegraph authorities to exercise power for placing and maintaining telegraph lines and posts

D.M./C.P. 16(1)

If during placement of Telegraph Lines, Cable Chambers etc. the telegraph authority is resisted or obstructed

2) To order removal of line or post on property other than that of a local authority

D.M 17(3)

On receipt of application and hearing both the applicant and the telegraph authority. he may pass order absolutely or conditionally.

3) To order removal of trees

E.M. 18(1)

On the basis of application of telegraph authority he may do so provided that trees interrupt of likely to interrupt telegraphic communication.

4) To award compensation

Magistrate 18(2)

The compensation awarded to the person interested should be reasonable.

5) To order to abstain from dealing with property.

E.M. 19)A(2) For a period not exceeding one month

6) To assess the apportionment of the costs of Police force among the inhabitants

D.M. 33(2)

Where additional police force is employed by the State Govt.

7) To recover money payable U/s 33(2)

D.M. or Magistrate 33(3)

He may recover money under distrain warrant or sale of movable property of the defaulter within his local jurisdiction or by suit.

208

30. Judges (Protection) Act, 1985

To be protected from civil and criminal proceeding for anything done or word spoken in discharge of official or judicial duty or function.

Any Executive or Judicial Magistrate or Judge acting judicially.

3

A Judge means every person who is empowered by law to give in any legal proceeding definitive judgment (See Sec 2 of the Act).

31. Juvenile Justice Act 1986

1 ) To exercise powers conferred on the board or the Juvenile court by or under this Act where no Board on Juvenile court has been constituted for any area.

D.M./S.D.M. 7(2)

For powers of board vide Sections 14,15,16,17

Note : 1) No legal practitioner shall be entitled to appear before a Board in case or proceeding before it expect with special permission of the Board vide S. 28 (3)

(2) For definition of competent authority please see S. 2(d) which includes Board and the Juvenile court.

2) To function as Competent Authority where no Board or Juvenile Court has been established.

D.M/S.D.M

For powers of Competent authority vide Sec.27 to 35 and 40. Summons procedure to be followed by the competent Authority see See 39(1).

2) To function as Competent Authority where no Board or Juvenile Court has been established.

D.M/S.D.M

For powers of Competent authority vide Sec.27 to 35 and 40. Summons procedure to be followed by the competent Authority see Sec 39(1).

209

32. land Acquisition Act, 1894

To enforce surrender of land acquired

D.M/E.M 47

The provisions of land Acquisition Act, 1894 has been extended to the entire Karnataka State with certain amendments vide land Acquisition Act (Karnataka Extension and Amendment) Act, 1961

33. Lepers Act,

1898

To detain and send a pauper leper to asylum or make him over to the care of a friend or relative

Any Magistrate Authorized by the State

Government

To prevent from begging publicly in any area specified u/s 3 Unless discharged by the order of the Board or D.M u/s 8 (1)

34. Mines Act,

1952 1) To be the inspector of Mines

D.M. 5(3)

Depends upon the order of the Central Government

2) To make inquiry and examine any person

D.M. 7

To see whether legal provisions are observed and to ascertain safety and welfare of the employees.

3) To search, seize and take records

D.M. 7

4) To give Permission to prosecute

D.M. 75 Owner, agent manager etc.

Oil Mines Regulation, 1984 with reference to Mines Act, 1952

1 ) To be informed about opening of new mine

D.M .as an Inspector 3

Vide sec. 5(3), 2(1) of Mines Act

2)To receive quarterly returns.

D.M 4

Agent or manager of mine shall submit it on or before 20th January, April, July and October every year.

3) To receive or require annual return.

D.M. 5

Form No. III shall be followed by the owner. agent or manager of mines

4) To be informed about change of ownership or address of the owner of mines.

D.M. 6

The Mines Act Sec.2 (1) or 5(3) empowers the D.M.

210

5) To be informed about accident of mines

D.M 7

Notice of accident to be given to Regional Inspector also. Form IVA to be followed.

6) To be informed about disease of employees.

D.M 8 Notice to be given to D.M in Form V

35.

Narcotic Drugs and Psychotropic Substances Act. 1985

1) To issue warrant and authorisation

Any officer of Gazetted rank of certain Depts. of Central and State Govt.

empowered

41(2)

If he has reason to believe that any person has committed an offence punishable under Chapter IV of the Act.

2) To enter. search. seize. detain arrest without warrant or authorisation between sunrise and sunset

Any officer of Central Govt or

State Govt specially empowered (not below the rank of

a peon or constable) of Excise. Police, Custom. Revenue. or any other

dept.

42

If he has reason to believe that Narcotic drug or psychotropic substance in respect of which an offence is punishable under Chapter IV has been committed or any document or article relating to offence is kept concealed in any building conveyance or enclosed place. He shall record grounds for the belief and reasons for not obtaining a search warrant or authorisation.

Note: For power to make order detaining certain persons including foreigner vide sec.3 of Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Ordinance. 1988

3) To seize and arrest in public places

As above 43

When he has reason to believe that an offence under Chapter IV has been committed.

4) To stop and search conveyance

As above 49

If there is reason to suspect the provisions of the Act contravened.

211

5) To invest officers of certain Departments with powers of the Officers in charge of Police Station.

Central Govt. 53(1)

State Govt. may be consulted.

6) As above

State Govt.

53(2)

For investigation of offence under the Act.

7) To take charge of article seized

An officer in charge of Police Station

55

8) To assist each other

All officer in change of Police station

56

Upon notice given or request made in carrying out the provisions of the Act

9) To report all parti-culars of search and seizure re to his immediate official superior

All officers of departments mentioned

in section 42. 57

Whether any arrest or seizure is made

36.

National Security Act 1980

To detain any person to prevent him from acting in any manner prejudicial to the defence and security of India or to the maintenance of public order etc.,

Central or State Govt/ D.M/Commissioner of

Police.

3

Provided State Govt. vests them with power U/s 3(3)

37

Oaths Act, 1969

To administer oaths

Any Magistrate / Court or Judge

3

38

Official Secrets Act, 1923

To grant search warrant

S.D.M

11

If he is satisfied that there is reasonable ground that an offence under this Act has been or is about to be committed.

39. Petroleum Act, 1934

1) To be informed about accident

Nearest Magistrate

27

2) To inquire into the case of accident

Any Magistrate 28

Read with Section 176 Cr.P.C

Petroleum Rules, 1976

1) To issue licence to import and to store Petroleum Class A in quantity not exceeding 300 litres.

District Authority

Rule 141 read with

Schedule 1

See Article 3 and 4 of First Schedule appended in the Petroleum Rules. This may be read in conjunction with Sec.29 of the Petroleum Act, 1934.

212

2) To issue licence to import Petroleum. Class B otherwise than in bulk in quantity not exceeding 25,000 Iitres.

District Authority

141 read with Schedule-I

The word "District Authority" also includes Commissioner of Police, or Deputy Commissioner of Police, D.M

D.M. includes A.D.M., S.D.M. vide Rule 2(x)

3) To grant or refuse no-objection certificate.

District Authority

Rules 144,150

Where there is new application for licence

Reasons to be recorded for refusal

1) See also Petroleum Rules, 1976, Rule 2(ix), (x), Schedule) 1 of the Rules.

2) Carbide of Calcium Rules 1937 – Rule 39 and Sch.I of the Rules

a) D.M. empowered under Sec. 13 of the Act vide Govt. of India Notification No. 826 (1) dt. 22.3.1937 amended by notification No .M)826 (a) dated 15.9.37

(b) D.M. empowered under Sec. 14 G.O.I. notification No. 826 (2) dated 22.3.37 amended by notification No. 826(3) dated 22.3.37 amended by Notification No. 826 (5) dated 15.9.37

(c) D.M. empowered under Sec. 26 vide G.O.I. notification No. 826 (7) dated 15.9.37

Note : Prior hearing and recording of reasons are necessary for refusal Vide Rule 150

213

4) To amend licence

Licensing Authority

148

The licensing authority refusing to grant, amend, renew or transfer the licence shall record his reasons for such refusal in writing

5) To renew licence -do- 149

6) To cancel No -objection Certificate granted under Rule 144

District Authority or State

Govt.

151

Prior hearing and recording of reasons are necessary for cancelling a "No Objection Certificate" granted under Rule 151

7) To suspend and to cancel licence

licensing Authority

153

A licence is liable to be suspended or cancelling by an order of the Licensing Authority for any contravention of the Act or of any Rule or of any condition contained in such licence or by order of Central Government

8) To transfer licence for storage - do - 157

Licensee as mentioned in No.1 and 2.

40. Poisons Act, 1919 To issue search warrants.

D.M/S.D.M 7

If the believes or suspects that any poison is possessed or sold or kept concealed in convention of the Act.

41.

Press and Registration of Books Act, 1867

1) To allow keeper of Printing-press to make declaration.

D.M/S.D.M 4

For change of place of the press, anew declaration is necessary.

2) To allow printer or

publisher of newspaper appear in person

As above 5(2)

214

3) (a) To authenticate the declaration and

As above 6

b) To attest it

4) (a) To allow new declaration to be made by a person who ceased to be a printer or publisher

As above 8

(b)To authenticate such declaration.

do 8

a) By persons who have signed a declaration and subsequently ceased to be printers or publishers.

5) (a) To enquire whether the name of the editor has been incorrectly published.

do 8-A

a) Depends on his declaration and satisfaction of Magistrate after inquiry.

(b) To certify b) That the declaration is true

6) To cancel declaration in respect of a newspaper

do 8-B

If Magistrate is of the opinion and is satisfied after giving him hearing and after enquiry that newspaper is published in contravention of the Act or Rules and declaration was made falsely.

7) To send a copy of the declaration in respect of newspaper

do 19-C

To the Press Registrar for certificate of registration in from-V (See also rule 10 of the Registration of Newspaper (Central) Rules, 1956

42.

Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act,1980

1 ) To make orders for detention

D.M/C.P 3

215

2) To make a report in writing of the fact that the person against whom a detention order has been made has absconded, so as to attract the operation of Sec.82 to 85 of Cr. PC.

D.M/C.P 7

Non appearance of person absconding despite due notice before such officer is a cognizable offence.

43.

Prevention of Cruelty to Animals Act,1960

1) To direct immediate

destruction of the animal.

Any Magistrate/C.P/Dist.

S.P. 13(2)

If in his opinion it would be cruel to keep the animal alive

NOTE: The term magistrate occurring in sec. 13 (2) appears to include an E.M also. The expression has been used in the company of Commissioner of Police and Supt. of police, Hence, the function is administrative in nature. Reference should also be made to Sec.3(4)(b) Cr.P.C. 1973

2) To issue search warrants or enter himself for search.

S.D.M. 33

If he has reason to believe that an offence under this

Act is about to be or has been committed.

3) To prescribe rates

of the cost of transporting to, maintenance and treatment of animals in an infirmary or pinjrapole

D.M/C.P 35(4)

216

44.

Prevention of illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988

1) To make orders for detention

The Central Govt. or State Govt. or any

officer of Central Govt. not below the rank of Joint Secretary or any officer of State Govt.

not below the ranks of Secretary specially empowered in that

behalf

3

If satisfied with a view to preventing any person from engaging in illicit traffic in Narcotic Drugs & Psycho-tropic Substance

2) To make report to the Metropolitan Magistrate or Magistrate I Class

The appropriate Govt. 8

If there is reason to believe that the person is absconding or concealing himself so that the order cannot be executed

3) To revoke or modify detention order

The Central Govt.

12

4) To release temporarily

The Central Govt.

13

Note: No suit or other legal proceeding shall lie against the Central Govt. State Govt. or any person for anything done in good faith under this Act (Sec. 14)

45.

Prevention of Seditious Meetings Act,1911

1) To give permission to hold public meeting in any proclaimed area.

D.M/C.P 4(1)

Notice to be given for holding public meeting at least 3 days before to the DM or C.P as the case may be.

2) To cause report of the meetings to be taken.

D.M.or any Magistrate of the 1st class authorized by

the D.M.

4(2) They may depute police Officer

3) To prohibit public meetings.

D.M/C.P.as the case may be.

.5

If in the opinion of the authority, such meeting may promote disaffection, disturbance of the public tranquility. For the meaning of ‘Promotion’ vide AIR 1923 Lohore 342 at p. 343

217

4) To cause arrest without warrant

D.M/ C.P. as the case may be.

7 For violation of the Act

5) To take cognizance of offence under the Act.

S.D.M. 8

46.

Prisoners (Attendance in Courts) Act, 1955

To make order for production of a prisoner in court for giving evidence or answering a change

Civil or Criminal

court 3

Such an order is required to be counter-signed by the District Judge or the District Magistrate as the case may be unless It is made by a judicial Magistrate, First Class vide Section 3(3), read with the First and Second Schedules of the Act.

47. Probation of Offenders Act, 1958

1) To appoint any Probation officer in place of the person named in the Supervision order

D.M/Trying court.

13

2) To exercise control over probation officers.

D.M. 13(3)

Power of inspection and certain other powers have been conferred upon the D.M. under Rules framed

48.

Protection of Civil Right

Act 1955 & Rules 1977

1) To hold an enquiry U/s 10 A in the context of consideration for imposition of collective fine.

An officer not below the rank of

S.D.M.

10-A Read with

Rule 3

He may act on being appointed by the State Govt.

2) To call for information and documents for that purpose of enquiry.

do do

The inquiry officer shall follow summary procedure as per Chapter XXI Cr.P.C

Report to be submitted to the Govt. within six weeks

3) To be protected from suit or prosecution.

do 14-A If acted in good faith

218

Note: (a) Protection of Civil Rights Act, 1955 over rides other laws. Vide S.16

(b) The Executive Magistrates may playa prominent role in the enforcement of this Act.

49. Public Debt Act 1944

1) To record evidence

D.M/ Any Magistrate

empowered. 14(1)

Upon Bank's request D.M may direct his subordinate Magistrate to record evidence

2) To administer oath.

As above 14(3)

50. Railways Act, 1890

To be informed about Railway Accident.

D.M/ S.P 83 Obligation is on the Station Master to inform

51. Registration

Act.1908. To attest the Power of attorney.

Any Magistrate/ Registrar/

Sub- Registrar

33

a) Depends on the satisfaction that power of attorney has been voluntarily executed

52.

Scheduled Castes And Scheduled Tribes (Prevention of Atrocities) Act, 1989

1) To declare an area to be an area prone to atrocities.

Officer not below the rank of

Dy.SP/D.M/SDM/EM. 17

2) To take preventive action for keeping peace and good behavior and maintenance of public order

-do- 17

53.

Terrorist Affected Areas (Special Courts) Act, 1984

To authorize detention of the accused U/s 167 Cr.P.C.

E.M. of J.M 15 30 days & one year (2) (b) as the case may be.

54.

Terrorist and Disruptive Activities (Prevention) Act, 1985

1) To make orders to combat terrorist acts and disruptive activities

D.M / Any officer not below his

rank empowered

5(2)(a)

Depends upon Central Government's notification and authorization.

219

Note: No suit or prosecution shall lie for any act done under the Act bona-fide act done under the Act (Sec.24)

2) To authorize detention of the accused U/s 167 Cr.P.C., 1973

E.M. J.M.

17(2) (a) (6)

60 days and one year as the case may be instead of 15 days or 60 / 90 days as in Cr. P.C. respectively.

Terrorist and Disruptive Activities (Prevention) Rules 1986

55.

Terrorist and Disruptive Activities (Prevention) Act, 1987

1) To record

statements U/S. 164 Cr. P.C relating to offence under the Act.

E.M/ Special E.M.

20(3)

2) To authorise detention of the accused U/S 167 Cr.P.C 1973

do

60 days or One year as the case may be instead of 15 days or 60/90 days as in Cr P.C respectively

Terrorist and Disruptive Activities (Prevention) Rules, 1987

To issue search warrants

D.M/ Any Officer

having the power of

D.M

14

When he has reason to believe that any place is reasonably suspected of being used for committing the offence referred to in Section 3 or 4 of the Act

56.

Unlawful Activities (Prevention) Act 1967

1) To make a list of all movable properties

D.M/Any Authorised

Officer. 8(2)

Depends on the issue of notification of Government

2) To prohibit using articles

D.M.

8(3)

Depends on his opinion that any article may be used for unlawful association.

3) To prohibit any non-resident to enter in to the notified place

D.M 8(4)

To enter into the notified places

4) To regulate conduct of persons

D.M. 8(5)

220

5) To be protected from prosecution Except with the permission of Central Govt.

D.M/Any authorised

officer. 17

Note: No proceeding taken under this Act by D.M. or Govt .can be called in question in Court (See Section 16)

57. Vaccination Act, 1980

1) To summon the parent or guardian of the child and demand his explanation and if such explanation is not satisfactory, make an order in writing directing such parent of guardian to comply with the notice given by the Suptd. before a specified date.

D.M. 18

When Supdt. of vaccination reports before the D.M that his notice requiring the child to be vaccinated is not complied with.

2) To appoint a Magistrate on his behalf for this purpose

D.M. 18

3) To deal with the disobedience as offence punishable U/s 22

D.M. 18

If the order of D.M .is not obeyed by the parent or guardian without just cause or just excuse

58. Wakf Act 1954

To make an order directing the encroacher to remove or to vacate the property and in default, evict the encroacher To search any place where wireless telegraphy apparatus is kept or concealed

S.D.M. 36-E

When the wakf commissioner applies before the S.D.M. for that purpose. The SDM may take police assistance

59.

Wireless Telegraphy Act, 1933

To search any place where wireless telegraphy apparatus is kept or concealed

Any officer empowered by Central Govt.

7 Where offence is Committed which is punishable u/s 6

221

(2) LIST OF STATE ACTS

1.

Karnataka Cattle Trespass Act,1966

1) To establish cattle pounds

D.M 3

He shall determine which village or areas will use the pound

2) To control pounds and fix charges for feeding and watering of cattle

D.M 4 For feeding and providing water to the impounded cattle

3) To appoint pound-keeper

D.M 5

4) Specify pounds to which seized cattle are to be sent

D.M. 7(3)

5) To appoint officers for dealing with unclaimed cattle

D.M. 15

2.

Karnataka Cinemas (Regulation) Act, 1964

1) Licensing authority 2) To issue licence for exhibition of cinematograph films

D.M.

D.M

3 5

3) Matters to be considered by licensing authority

D.M. 6

4) Power of licensing authority to limit number of places that can be licenced

D.M. 7

5) Restriction on power of licensing authority

D.M. 8

6) To grant permission for construction or reconstruction of buildings or places for exhibition of cinematograph films

D.M. 11

222

7) Power to issue directions to show slides in public interest.

D.M. 13

8) Power to suspend exhibition of films in certain cases

D.M. 15

9) Power to suspend licence pending the result of prosecution

D.M. 16

10) Power to revoke or suspend a licence

D.M. 17

NOTE: See also Karnataka Cinema (Regulation) Rules:-Rules 5, 25, 26, 27, 28, 31, 32, 36, 37, 39, 40, 41, 85, 86, 88, 96, 97, 98, and 113.

3.

Criminal Law and Identification of Prisoners Karnataka Extension and Amendment) Act,

1975

1) Directing a person to be photographed under Sec.5 of the Identification of Prisoners Act, 1920 (Central Act 33 of 1920)

D.M/ S.D.M

5

Act extends the provision of Criminal Law Amendment Act, 1932 and Identification of Prisoners Act, 1920 to the State

2) Ordering of destruction of photographs and records of measurements etc on acquittal under Section 7 of the Identification of Prisoners Act, 1920 (Central Act 33 of 1920)

D.M/ S.D.M/

C.P 7

223

4.

Karnataka Debt Relief Act, 1980

1) Power to order for the return of the moveable property pledged by a debtor in case the creditor fails to return under Section 4 of the Act

S.D.M 4(6)

2) Power to put the debtor in possession of Mortgaged property on failure of the creditor to do so.

S.D.M. 5(2)(b)

The power can be exercised either on an application or suo-motto

3) Determination of debtors entitled to relief u/s 4 and issue of directions to creditors for production of pledged articles

S.D.M. or E.M. authorised

5

4) Power to order search and seizure of pledged articles and their deliver to debtors

do 5

5. Karnataka Excise Act, 1965

1) Power to order closure of D.M liquor shops for the preservation of public peace or for the prevention of the spreading of any infectitious diseases

D.M. 21(1)

2) Power to order closure of E.M liquor shops when riot or unlawful assembly is appre-hended or occurs

E.M. 21(2)

224

6.

Karnataka Habitual Offenders Act, 1961

1) Power to issue notice to habitual offenders to appear and furnish/ information and allow finger and palm impression! foot prints and photographs to be taken

D.M. 4

2) Power to after or cancel entries in the Register of Habitual Offenders

D.M. 5

3) Power to order the finger and palm impression, foot prints and photographs of any registered offender to be taken at any time

D.M. 6

4) Power to direct the registered offender to report himself to D.M or such other authorities specified by D.M at or such intervals and also to notify his absence or in tended absence from his ordinary place of residence

D.M. 7

5) Power of the D.Ms concerned in case the registered offender changes his ordinary residence

D.M. 8

6) Power to cancel the entries D.M in the Register of Habitual Offenders before the expiry of prescribed period

D.M. 9

225

7) Power to direct habitual offenders to receive corrective training

D.M. 14

7. Karnataka Police Act, 1963

1) To exercise powers of general control in the matter of administration of police in the district or art of the district through the Superintendent of Police

D.M. 16

In exercising such control, the D.M. shall be governed by such rules and orders as the Govt. may make in this behalf.

NOTE: In areas for which Commissioners of Police have been appointed, they shall exercise the powers of D.M. under the Act (Sec.7)

2) To requite reports from Superintendent of Police in matters connected with crimes, habitual offenders, prevention of disorder etc.

D.M. 17

3) (i) To require SP to replace police officers below the rank of Inspector on observing any marked incompetence or unfitness for the locality or for the particular duties

D.M. 18

(ii) To report to I.G.P concerned on the conduct of any police officer of the rank of Inspector and above.

D.M. 18

4) To appoint special police officers in the circumstances mentioned in Section 19

E.M specially

empowered 19

To exercise powers, the E.M should be specially empowered by the State Government

226

5) To make orders for regulation of traffic and for preservation of orders in public places etc

D.M 31

6) To make rules prohibiting disposal of the dead at places other than set apart

D.M 33 For exceptions sell proviso to Section 33 (1)

7) To prohibit certain acts for prevention of disorder

D.M 35

Such prohibition to remain in force for more than fifteen days, sanction of Government is necessary [Section 35 (3) proviso]

8) To prohibit continuance of music, sound or noise etc

D.M. 36

To exercise the power Government should have extended the provisions of this Section to areas concerned by notification in the Gazette

9) To issue orders regardng maintenance of order at ceremonials, religious functions etc.

D.M. 39

10) To discontinue the use of any premises by dis-orderly persons

D.M./S.D.M. 41

To exercise this power Govt. should extend the provisions of this Section to areas concerned by notification in the Gazette

11) (i) To prescribe regulations to be observed by persons visiting place of piligrimage, fair etc where there is likelihood of outbreak of epidemic

D.M. 42

To be done in consultation with the Health Officer of the area concerned or the prescribed officer of the Department of Public Health

227

(ii) To levy reasonable fees on persons visiting the places mentioned in 11 (i) to meet the expenses regarding sanitation, and preservation of public order

D.M. 42 (2)

iii) To recover such expenses from the municipal body in case the place of assemblage falls within its jurisdiction

D.M. 42 (2)

Note : All rules / regulations / orders made by the D.M. under Sections 31, 35, 36, 39, 41 and 42 are governed by such rules/orders as the Government may issue from time in this behalf.

12) To employ additional police at large works/ place of public amusement / public works like railway/ canal/ manufactory/ commercial concern where large labour force is employed and to recover the cost of such employment from persons concerned who execute the work or organise public amusement etc

D.M. 47

13) To decide the amount to be paid in case of disputes and to recover such amount from the concerned as arrears of land revenue through D.C of the revenue district.

D.M. 48

228

14) To determine the amount of compensation payable to persons in respect of loss, damage, death or grievous hurt caused due to acts of an unlawful assembly in a disturbed area and to have the same recovered as tax

D.M. 50 (3) & (4)

15) To award or apportion the compensation among persons entitled

D.M. 51

NOTE: The functions under Section 50 and 51 shall be discharged by the D.M subject to any general or special orders of Government issued in this behalf - Section 52

16) To disperse gangs or D.M bodies of persons calculated to cause danger or alarm etc

D.M 54

17) To remove persons about to commit offences

D.M/.D.M specially empowered

55

To exercise the powers under this Section, Government should extend the provisions of the Section to the areas concerned as well as to empower S.D.Ms. Mere extension of the provisions of the Section gives power to D.M

Government have extended the provisions of the Section to the entire State of Karnataka vide Notification HD 19 PCR 82 dated 28th May 1982 and S.D.Ms have also been empowered vide notification No. HD 27 PCR 82 dated 2nd March 1982

229

18) To remove persons convicted of certain offences

D.M/S.D.M specially empowered

56

19) (i) To arrest persons contravening the provisions of Notification issued under Section 35 or Orders issued under Secs. 36 or 38 and to seize any object or thing used or about to be used in contravention of such notifications or order

E.M. 72

(ii) To dispose of the thing or object seized under Section 72.

D.M 72

20) To issue warrants to police officer not below the rank of S.l to enter. search and seize instruments of gaming, money, etc

D.M./S.D.M. 81

21) To order redemption of weapon forfeited for being carried without authority by imposing

fine

D.M. 97

22) To authorise police officers to secure compliance with court's directions under Section 105 (2)

D.M. 105(4)

23) To exercise general control over administration of village police

D.M. 130

The power is subject to general control and directions of the Government

24) To delegate powers of D.M to S.Ps or E.Ms

D.M. 131 Subject to sanction of Government

25) To appoint Village Police and place them under Police Patel

D.M. 132

230

26) To get reports from police patel on security arrangements made against robbery. breach of peace and acts injurious to public etc

E.M. 135

27) To punish the village police for neglect of duty by imposing fine or by ordering suspension from office

D.M. 137

8. The Mysore Power Alcohol Act, 1939

To Authorize Prosecution for contravening the provisions of the Act

D.M. 6

The Act is applicable only to certain areas of the State. Please see section 1 of the Act

9.

Karnataka Prevention of Beggary Act, 1975

1) To hold an enquiry to satisfy as to a person produced before him has committed an offence of begging and order his release in case he is satisfied on his personal bond or with surety

E.M. 11

2) To order detention of a person on conviction for having contravened the provisions of Section 3 in the nearest Relief Centre for a period not exceeding twelve months

E.M. 12 & 13

3) To revoke or modify order passed under Section 12 and 13

E.M. 3

231

10.

Karnataka Prevention of Dangerous Activities of Boot leggers, Drug Offenders, gamblers Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985

Power to make orders detaining certain persons with a view a prevent them from acting in a manner prejudicial to the maintenance of public order

D.M/C.P 3

State Government may periodically authorise the D.M/ C.P to exercise the power

11.

Karnataka Prisons Act 1963 and Rules, 1974

To issue orders not inconsistent with the provisions of the Act and Rules to Superintendent of Prisons other than Central Prison in respect of a prison, subject to to the ratification of the order by the Inspector General of Prisons

D.M 10(2)

The orders are subject to general or special directions as may be given by Government Regarding the role of D.M vis) a-vis prisons/prisoners, see Rules 68, 69, 70, 164, 186, 187, 189 190 and 192 of the Karnataka Prisons Rules, 1974

12. Karnataka Sales Tax Act,1957

Power to issue search warrants authorizing officers mentioned in Section 28 to enter residential accommodation and conduct search

E.M 28(2)(ii) proviso

13. Public Health Act 1944

1) To prohibit the use of any house or building for human habitation until it is rendered fit therefore

E.M. 47

2) To order closure of lodging home in the interest of public health in case of occurrence of cases of notified diseases in such lodging home.

E.M. 68

232

3) To order the removal and disposal of body of a person who has died while suffering from notified disease after the expiry of time specified

E.M. 75

4) Power to prohibit an assembly of more than fifty persons in any place in the event of prevalence of a notified disease in any local area

E.M. 76

5) Power to exempt person/ child for. vaccination or innoculation subject to undertaking being given

E.M. 77(3) (a)

The Act is applicable to only certain areas of the State. See Section 1 (a) of the Act

233

APPENDIX –II

GOVERNMENT OF KARNA TAKA

NO. HD 10 PCR 74 Karnataka Government Secretariat,

Vidhana Soudha,

Bangalore, dated 27th March 1974,

NOTIFICATION – I

In exercise of the powers conferred by Sub- section (1) of Section 20 of the

Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Government of Karnataka

hereby appoints with effect from 1st April 1974 the Deputy Commissioner of a

District, the Special Deputy Commissioner of a District, the Assistant Commissioner in

charge of a Revenue Sub-division in a District, the Headquarters Assistant to the Deputy

Commissioner of a District and the Tahsildar in charge of a Revenue Taluk in a District,

to be Executive Magistrates in such District.

By Order and in the name of the

Governor of Karnataka

sd/

(H. Veerabhadraiah)

Additional Secretary to Government,

Home Department

GOVERNMENT OF KARNATAKA

NO. HD 10 PCR 74 Karnataka Government Secretariat,

Vidhana Soudha,

Bangalore, dated 27th March 1974,

NOTIFICATION –II

In exercise of the powers conferred by Sub-Section (1) of Section 20 of the

Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and in supersession of all

previous orders on the subject, the Government of Karnataka hereby appoints with

effect from 1st April, 1974 the persons specified in Column (2) of the Table below, who

are appointed as Executive Magistrates in Notification I. No HD .10 PCR 74, dated

27th March 1974 and Notification IV No HD 10 PCR74 dated 27th March, 1974 to be

District Magistrates for the district or the. Metropolitan Area specified in the

corresponding entries in Column(3) thereof.

234

TABLE

SI.

No.

Persons

District or Metropolitan Area

1. Deputy Commissioner, Bangalore District

Metropolitan Area

of the City of Bangalore

2. Deputy Commissioner, Bangalore District

Revenue District of Bangalore

3. Deputy Commissioner, Mysore District

Revenue District of Mysore

4. Deputy Commissioner, Kolar District

Revenue District of Kolar

5. Deputy Commissioner, Tumkur District

Revenue District of Tumkur

6. Deputy Commissioner, Chitradurga District

Revenue District of Chitradurga

7. Deputy Commissioner, Hassan District

Revenue District of Hassan

8. Deputy Commissioner, Chickmagalur District

Revenue District of Chickmagalur

9. Deputy Commissioner, Shimoga District

Revenue District of Shimoga

10. Deputy Commissioner, Belgaum District

Revenue District of Belgaum

11. Deputy Commissioner, North Kanara District

Revenue District, of North Kanara

District

12. Deputy Commissioner, Bijapur District

Revenue District of Bijapur

13. Deputy Commissioner, Mandya District

Revenue District of Mandya

14. Deputy Commissioner, Bidar District

Revenue District Bidar

235

15. Deputy Commissioner, Dharwad District

Revenue District of Dharwad

16. Deputy Commissioner, Gulbarga District

Revenue District of Gulbarga

17. Deputy Commissioner, Raichur District

Revenue District of Raichur

18. Deputy Commissioner, Mandya District

Revenue District of Mandya

19. Deputy Commissioner, South Kanara District

Revenue District of South Kanara

20. Deputy Commissioner, Kodagu District

Revenue District of Kodagu

21. Deputy Commissioner, Bellary District

Revenue District of Bellary

By Order and in the name of the

Governor of Karnataka

sd/

(H. Veerabhadralah)

Additional Secretary to Government,

Home Department

236

GOVERNMENT OF KARANTAKA

NO. HD 10 PCR 74 Karnataka Government Secretariat,

Bangalore, dated 27th March,1974.

NOTIFICATION III

Bangalore, dated 27th March 1974

S.O. 530 - In exercise of the p0wers conferred by Sub-section (2) of Section 20 of the

Code of Criminal Procedure 1973 (Central Act 2 1974) and in supersession of

Government Notification No. HD 17 PCR 65, dated the 4th May 1966 and Notification

No. HD 33 PCR 73, dated the 6th December 1973, the Government of Karnataka hereby

appoints with effect from 1 st April, 1974, the Special Deputy Commissioner of a

District al)d the Headquarters Assistant to the Deputy Commissioner of a District

who are appointed as Executive Magistrates in Government Notification I No. HD 10

PCR 74, dated 27th March, 1974 to be additional District Magistrates in such District.

By Order and in the name of the

Governor of Karnataka

sdl-

(H. Veerabhadralah)

Additional Secretary to Government,

Home Department.

Published in Karnataka Gazette (Extraordinary) Part IV-2C (ii) dated 27th March 1974

237

GOVERNMENT OF KARANTAKA

NO. HD 10 PCR 74 Karnataka Government Secretariat,

Bangalore, dated 27th March,1974.

HOME SECRETARY

NOTIFICATION IV

Bangalore, dated 27th March 1974

S.O 531- In exercise of the powers conferred by Sub-section (1) of Section

20 the Code of Criminal Procedure 1973 (Central Act 2 of 1974), the Government of

Karnataka hereby appoints with effect from 1st April. 1974 the persons specified below

as Executive Magistrates in the Metropolitan Area declared in Notification No. I. LAW 53

LCE 74, dated 20th March, 1974.

1. The Deputy Commissioner, Bangalore District,

2. The Spl. Deputy Commissioner, Bangalore District.

3. The Headquarters Asst. to the Deputy Commissioner Bangalore District.

4. The Asst. Commissioner, Bangalore Sub-Division, Bangalore.

5. The Tahsildar, Bangalore North Taluk, Bangalore

6. The Tahsildar, Bangalore South Taluk, Bangalore.

By Order and in the name of the

Governor of Karnataka

sdl-

(H. Veerabhadralah)

Additional Secretary to Government,

Home Department.

Published in Karnataka Gazette (Extraordinary) Part IV-2C (ii) dated 27th March 1974

238

GOVERNMENT OF KARANTAKA

NO. HD 10 PCR 74 Karnataka Government Secretariat,

Vidhana Soudha,

Bangalore, dated 3rd August 1974.

NOTIFICATION V

In exercise of the powers conferred by Sub-Section (1) of Section 20 of the

Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Government of Karnataka

hereby appoints the Commissioner of Police, Bangalore City, as Executive Magistrate in

the Metropolitan Area Declared in Notification- I NO.1 LAW 53 LCE 74, dated 20th

March 1974.

By Order and in the name of the

Governor of Karnataka

sdl-

(H. Veerabhadralah)

Additional Secretary to Government,

Home Department.

GOVERNMENT OF KARANTAKA

NO. HD 10 PCR 74 Karnataka Government Secretariat,

Vidhana Soudha,

Bangalore, dated 6th July 1974.

NOTIFICATION VI

In exercise of the powers conferred by Sub-Section (2) of Section 20 of the

Code of Criminal Procedure, 1975, (Central Act 2 of 1974), the Government of

Karnataka hereby appoints the Commissioner of Police, Bangalore City, who has been

appointed as Executive Magistrate in Government Notification No. HD 10 PCR 74, dated

6th July 1974 to be an Additional District Magistrate in the Metropolitan Area declared in

Notification NO.1 LAW 53 LCE 74 dated 20th March 1974.

By Order and in the name of the

Governor of Karnataka

sdl-

(H. Veerabhadralah)

Additional Secretary to Government,

Home Department.

239

GOVERNMENT OF KARNATAKA

NO. HD 10 PCR 75 Karnataka Government Secretariat,

Vidhana Soudha

Bangalore, dated 21st May 1975.

NOTIFICATION VII

In exercise of the powers conferred by Sub-Section (4) of Section 20 of the

Code of Criminal Procedure, 1973 (Central Act 2 or 1974), the Government of Karnataka

hereby places with effect from 1-6-1975, the Executive Magistrates specified in

Column (1) of the Table below, in charge of the Sub-Division specified in the

corresponding entry in Column (2) thereof;

TABLE

SI. No.

Executive Magistrate

Sub-Division

1. Assistant Commissioner,

Bangalore Sub-division

Revenue Sub-division of Bangalore

2. Assistant Commissioner,

Doddaballapur

Revenue Sub-division of

Doddaballapur Sub-Division

3. Assistant Commissioner, Ramanagaram Sub-division

Revenue Sub-division of

Ramanagaram

4. Assistant Commissioner Tumkur

Sub-division

Revenue Sub-division of Tumkur

5. Assistant Commissioner Tiptur

Sub-division

Revenue Sub-division of Tiptur

6. Assistant Commissioner,

Madhugiri Sub-division

Revenue Sub-division of Madhugiri

7. Assistant Commissioner, Kolar

Sub-division

Revenue Sub-division of Kolar

8. Assistant Commissioner,

Chikkaballapur

Revenue Sub-division of

Chickkaballapur Sub-division

9. Assistant Commissioner,

Shimoga Sub-division

Revenue Sub-division of Shimoga

240

SI. No.

Executive Magistrate

Sub-Division

10. Assistant Commissioner, Sagar

Sub-division

Revenue Sub-division of Sagar

11. Assistant Commissioner,

Chitradurga Sub-division

Revenue Sub-division of

Chitradurga

12. Assistant Commissioner,

Davanagere Sub-division

Revenue Sub-division of

Davanagere

13. Assistant Commissioner, Mysore

Sub-division

Revenue Sub-division of Mysore

14. Assistant Commissioner, Hunsur

Sub-division

Revenue Sub-division of Hunsur

15. Assistant Commissioner,

Nanjangud Sub-division

Revenue Sub-division of

Nanjangud

16. Assistant Commissioner, Mandya

Sub-division

Revenue Sub-division of Mandya

17. Assistant Commissioner,

Pandavapura Sub-division

Revenue Sub-division of

Pandavapura

18. Assistant Commissioner, Hassan

Sub-division

Revenue Sub-division of Hassan

19. Assistant Commissioner,

Sakleshapur Sub-division

Revenue Sub-division of Sakleshapur

20. Assistant Commissioner,

Chikmagalur Sub-division

Revenue Sub-division of

Chickamagalur

21. Assistant Commissioner, Tarikere

Sub-division

Revenue Sub-division of Tarikere

22. Assistant Commissioner,

Madakeri Sub-division

Revenue Sub-division of Madakeri

23. Assistant Commissioner, Puttur

Sub-division

Revenue Sub-division of Puttur

241

SI. No.

Executive Magistrate

Sub-Division

24. Assistant Commissioner,

Coondapur Sub-division

Revenue Sub-division of

Coondappur

25. Assistant Commissioner,

Mangalore Sub-division

Revenue Sub-division of

Mangalore

26. Assistant Commissioner,

Belgaum Sub-division

Revenue Sub-division of Belgaum

27. Assistant Commissioner, Chikodi

Sub-division

Revenue Sub-division of Chikodi

28. Assistant Commissioner, Bijapur

Sub-division

Revenue Sub-division of Bijapur

29. Assistant Commissioner,

Bailhongal Sub-division

Revenue Sub-division of

Bailhongal

30. Assistant Commissioner,

Bagalkot Sub-division

Revenue Sub-division of Bagalkot

31. Assistant Commissioner,

Jamkkandi Sub-division

Revenue Sub-division of

Jamkkandi

32. Assistant Commissioner, Indi

Sub-division

Revenue Sub-division of Indi

33.

Assistant Commissioner,

Dharwad Sub-division

Revenue Sub-division of Dharwad

34.

Assistant Commissioner, Gadag

Sub-division

Revenue Sub-division of Gadag

35.

Assistant Commissioner, Haveri

Sub-division

Revenue Sub-division of Haveri

242

SI. No.

Executive Magistrate

Sub-Division

36.

Assistant Commissioner, Savanur

Sub-divjsion

Revenue Sub-division of Savanur

37.

Assistant Commissioner, Karwar

Sub-division

Revenue Sub-division of Karwar

38.

Assistant Commissioner, Kumta

Sub-division

Revenue Sub-division of Kumta

39.

Assistant Commissioner, Sirsi

Sub-division

Revenue Sub-division of Sirsi

40. Assistant Commissioner,

Gulbarga Sub-division

Revenue Sub-division of Gulbarga

41. Assistant Commissioner, Sedam

Sub-division

Revenue Sub-division of Sedam

42. Assistant Commissioner, Yadgiri

Sub-division

Revenue Sub-division of Yadgiri

43. Assistant Commissioner, . Bellary

Sub-division

Revenue Sub-division of Bellary

44. Assistant Commissioner, Hospet

Sub-division

Revenue Sub-division of Hospet

45. Assistant Commissioner, Raichur

Sub-division

Revenue Sub-division of Raichur

46. Assistant Commissioner,

Lingasugur Sub-division

Revenue Sub-division of

Lingasugur

243

SI. No.

Executive Magistrate

Sub-Division

47. Assistant Commissioner, Koppal

Sub-division

Revenue Sub-division of Koppal

48. Assistant Commissioner, Bidar

Sub-division

Revenue Sub-division of Bidar

By Order and in the name of the

Governor of Karnataka

sd/-

(H. VEERABHADRAIAH)

Additional Secretary to Government,

. Home Department

244

GOVERNMENT OF KARNATAKA

No. LAW 53 LCE 74 Karnataka Government Secretariat,

Vidhana Soudha,

Bangalore, dated 20th March 1974

NOTIFICATION - VIII

In exercise of the powers conferred by Sub-Section (1) of section 8 of the

Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Karnataka

hereby declare that the area comprising the City of Bangalore as defined In the city of

Bangalore Municipal Corporation Act, 1949 (Karnataka Act 69 of 1949) shall with effect

from the First day of April 1974 be a Metropolitan Area for the purpose of the said Code.

By Order and in the name of the Governor of Karnataka

sd/-

(N.D. VENKATESH)

Secretary to. Government,

Dept. of Law and Parly. Affairs

GOVERNMENT OF KARNATAKA

No. LAW 53 LCE 74 Karnataka Government Secretariat,

Vidhana Soudha,

Bangalore, dated 6th July, 1974 NOTIFICATION – IX

In exercise of the powers conferred by Sub-Section (1) of Section 144 of the

Code of Criminal Procedure, 1973 (Central A9t 2 of 1974) the Government of Karnataka

hereby specially empowers all Executive Magistrates appointed in Notification I HO 10

PCR 74:0ATEO 27-5-1974 for the purposes of the said section.

By Order and in the name of the Governor of Karnataka

sd/-

(K.S.L. SASTRY)

Under Secretary to Government,

Home Department

245

GOVERNMENT OF KARNATAKA

No. LAW 53 LCE 74 Karnataka Government Secretariat,

Vidhana Soudha,

Bangalore, dated 6th July, 1974 NOTIFICATION – X

In exercise of the powers conferred by Sub-Section(1) 'of Section 144 of the

Code of Criminal Procedure, 1973 (Central) Act 2 of 1974) the Government of Karnataka

hereby specially empowers the Commissioner of Police, Bangalore City, appointed as

Executive Magistrate in Notification I No, HD 10 PCR 74, dated 6-7-74, for the purposes

of the said section.

By Order and in the name of the

Governor of Karnataka

sd/-

(H. Veerabhadraiah)

Additional Secretary to

Government,

Home Department

NOTIFICATIONS ISSUED UNDER KARNATAKA POLICE ACT 1963

Notification No, HD 27 PCR 82 -II

Bangalore, dated the 2nd March 82.

In exercise of the powers conferred by Section 55 of the Karnataka Police

Act, 1963 (Karnataka Act 4 of 1964, the Government of Karnataka hereby specially

empowers the Sub-Divisional Magistrates in the State to exercise powers under the said

section within their respective jurisdictions in 'respect of areas to which the provisions

hereof have been extended.

By Order and in the name of the

Governor of Karnataka

sd/-

(N.V. NAIK)

Under Secretary to Government,

Home Department

246

Notification No. HD 90 PCR 82

Bangalore, dated 28th May 82

In exercise of the Powers conferred by Section 55 of the Karnataka Police Act,

1963 (Karnataka Act 4 of 1964) and in partial modification of all the previous notifications

issued in this behalf, the Government of Karnataka hereby extends the provisions of the

said section to all the areas comprised within the State of Karnataka with immediate

effect.

By Order and in the name of the

Governor of Karnataka

Sd/-

(N.V. NAIK)

Under Secretary to Government,

Home Department (Crimes)

247

APPENDIX - III

SPECIMEN FORMS, ORDERS, ETC.

DYING DECLARATION

(Chapter - XIV)

(Specimen Form)

Dying declaration of Sri/Smt ......................................................... …...........

recorded by (name and address of the person recording the statement) on (date), on the

requisition made by (designation of the Police Officer) of (place) through his letter

no................................ dated..... ............................. Name of the declarant: Name of the father/husband:

Age: Occupation: Caste:

Residence:

Ques. 1 : Are you in a fit state of mind and conscious?

Ans:

Ques. 2: Are you in a position to speak?

Ans

Ques 3: Where are you at present?

Ans.

Ques. 4: Who brought you here when and by what means?

Ans:

Ques. 5: Who were the assailants?

Ans:

Ques. 6: What are their names and addresses?

Ans:

Ques 7: How do you identify them?

Ans:

Ques: 8: How did you sustain injuries'?

Ans:

248

Ques 9: What were the weapons used? point out their nature and size?

Ans:

Ques. 10: Which is the place of assault?

Ans:

Ques. 11: Are you in a position to locate the injuries on your body? if so,

locate them Ans:

Ques. 12: How did you sustain injuries and in what manner?

Ans:

Ques: 13: What is the motive for assault?

Ans :

Signature/Thumb impression of the Declarant

Note: If declarant is not in his senses and not in a position to speak, his

statement need not be recorded. A note to this effect should be made.

Certificates to be entered to during Declaration

(Forms)

(I) Certificate*

I certify that the declaration is read over and explained to the maker in his

language and admitted to be correct.

Signature of the person recording the declaration

* Note: If it Is necessary to remove the injured immediately for operation and

reading over the statement and explaining it cause delay, the reading

over of the statement and explaining it may be dispensed with.

ii) Certificate

I certify that the above declaration was recorded by me in presence of the

Medical Officer who has signed the statement.

Signature of the person recording the declaration

249

(iii) Certificate:*

The above declaration was recorded by ( name and address of the person

recording the statement) in my presence at (place ............................................

on ............................ (date) at ........................ (Time).

Signature of the Medical Officer.

* Note: If the person recording the statement is the Medical Officer himself, this

certificate can be dispensed with.

Signature of the person recording the declaration.

iv) Certificate :*

I certify that the declarant was conscious but as he was not in a position to

speak. he answered the question by gestures and their significance is ascertained and

recorded faithfully.

Signature of the person recording the declaration.

* Note: This certificate should be appended only in case of dumb persons and if

the significance of the gesture is not commonly understandable.

Signature of the person recording the declaration.

(v) Certificate :*

I certify that the answers given to questions by gesture were interpreted by

the person (name and address of the person) who understood them.

.* Note: This certificate should be appended only in case of dumb persons and if

the significance of the gesture is not commonly understandable.

Signature of the person recording the declaration.

250

(vi) Certificate:

I further certify that I have taken the following precautions:

1. I have satisfied myself that the declarant is in a fit state of mind and is conscious;

2. That the declarant is in a position to speak;

3. That unauthorised person al e not allowed to crowd round the declarant;

4. That no outside influence is brought to bear on the declarant;

5. Friends and relatives of the declarant are not allowed to influence the declarant

by prompting or other wise; and

6. That the declaration is recorded faithfully.

Signature of the person recording the declaration

251

MEMORANDUM OF IDENTIFICATION. PARADE OF SUSPECT/ACCUSED

(Chapter XV)

(Specimen Form)

Proceedings of the test identification pertaining to the suspect/accused Sri

………………………………….. ... held at ……………………………….by me in case

No. ........................ .on this ............... …………………day ..........................................at

................................ ............................... at the request of the Police under their letter

No ....... …………….dated......................

The Sub-Inspector of Police ................................................................................................................................. ..

Station House while submitting his letter requesting me to conduct identification

parade of the suspect/ accused... ....................................... ……………. .............. ...has

proposed ................................... number of witnesses. Accordingly, identification

parade is fixed on ...................... and summons were issued to the said proposed

witnesses.

Suspect / Accused produced by ..........................................................

On………………….. ............ at ...................... number of witnesses present and were

made to sit in........................

(a) Name and. full address of the persons mixed.

(b) The serial numbers in the row.

(c) Name and full address of the suspect/accused.

(d) Their serial numbers in the row

(e) The name and addresses of the witnesses asked to identify the

suspects/accused.

Ques. 1 : Why did you come here?

Ans.:

Ques. 2 : Were you present at the time of commission of offence?

Ans:

252

Ques 3: How many persons participated in the commission of offence?

Ans :

Ques. 4: Have you seen them at the time of commission of offence?

Ans :

Ques. 5 : Can you identify them in the row of persons?

Ans :

Ques. 6 : Who they are and point out them?

Ans :

Ques. 7 : Give reasons for having pointed out the identity of the suspect/ accused.

Ans :

CERTIFICATE

Certified that the answers in the Memorandum of Identification were read

over to the witness Sri ………………………………………………By me and admitted by

him to be correct.

Signature of the Signature of the Magistrate.

Identifying Witness (Full Address)

Place: Date: Note: 1. If the witness identifies a wrong person a note should be made in the

Memorandum to that effect also.

2. Memorandum pertaining to each and every suspect / accused should

be drawn separately.

3. The Magistrate should note precisely one by one, all the precautions which are taken by him and which are enumerated

under the heading precautions to be taken by the Magistrate

while recording test identification.

253

ORDER SHEET

(Specimen Form)

In the Court of the ……………………………………………………………………………… Case No.. ....................... ………………….of 19 ……………………….

SL.No. of

order

Date of Order or Pro-

ceeding

Order or Proceeding

with

signature of Presiding

Officer

Signature of

parties or

pleaderwhen

required

1 2 3 4

254

APPENDIX – IV

ETIQUETTE, MANNERS, CEREMONIALS AND VISITS OF DIGNITARIES

The following is integrated as a guide to the officers of Government in the matter

of social official and court etiquette. OFFICE ETIQUETTE

It Is necessary to observe utmost courtesy while dealing with members of the

public calling on officers.

1. As far as practicable an officer should be accessible to the public at all times.

2. From the point of speedy and efficient transaction of business. it is advisable

that they meet the members of the public in their , offices during office hours.

3. :For this purpose officers should earmark certain hours of the day , of certain days

of the week (particularly shandy days) for receiving : visitors.

4. The office may be provided with a Visitors Room wherever possible and the room

furnished with chairs. tables, news papers, ashtrays, etc., and Class IV may be in

attendance.

5. Printed or plain slips of paper may be made available In the visitors room to

enable them to write their name and purpose of visit thereon. These may be

given to the Class IV official by the visitor to be given to the Officer.

6. The visitors should be received by the officer in order of their appearance unless,

there is an MLA, MP or a person who has to be received on a priority basis.

7. The visitor on entering the chambers of the officer may be greeted by.

"NAMASTE" or a smile and offered a seat.

8. For purposes of interview, Members of Parliament should be given preference

over other visitors; and in the very rare cases where an officer !s unable to see a

Member of Parliament at a time about which he had no previous notice, the

position should be politely explained to the Member and another appointment

fixed :in consultation with him. The same courtesy and regard should be shown

to Members of Legislature attending public functions ;where In particular, seats

befitting their position should be reserved for them.

255

9. The officer's table should present a neat appearance at all times and particularly

when receiving visitors. Cups saucers, hats, odd its of papers and cigarette ends

should be removed.

10. The visitors should be patiently heard and suitable reply given.

11. No meeting should be fixed in the time prescribed for visitors and as far as

possible the Officer should be available in the office during visiting hours.

12. Any petition or letter presented by the visitor should be received and an

acknowledgment given from the office.

13. A visitor's register may be maintained by the officer or the personal clerk to

officer indicating therein the name of the visitor, date, purpose of the visit and

brief summary of the nature of the disposal.

14. Due courtesy should be shown and suitable arrangements made for inspecting

officers and their' staff by providing chairs. Tables and invariably the head of the

office should meet the inspecting officers frequently during their inspections.

15. While every assistance should be provided to inspecting officers and official

superiors in making camp arrangements, it would be Improper to incur any

expenditure thereon.

16. An officer should accompany his superior officer on his tour, if the latter so

desires.

17. Officers should not waste time waiting long hours at IB or borders of their

jurisdiction for their superior officers.

18. Only the barest minimum number of officers should accompany an officer on his

tour of inspection.

19. Public functions/reception should not be arranged or encouraged.

20. In respect of visits of Ministers of Government Instructions of Government in this

behalf should be followed. Copy of the Government Circular No. GAD 17 GAM 73 dated 7th March 1973 issued by the Government is appended.

21. Utmost economy is necessary in the use of official vehicles at all times.

256

22. There can be no objection to occasional hospitality being extended to Inspecting

officers at a personal level. Such hospitality should be austere.

23. Due respect should be shown to superior officers/colleagues at all times and

officers should not contradict each other in public.

24. Officers may smoke at meetings where ashtrays are provided or with the

permission of the Chairman of the meeting.

COURT ETIQUETTE

1. Officers should not smoke or chew when hearing cases are at RTA or similar

meetings.

2. On such occasions their dress should also be formal. Tea, Coffee, Snacks can

be served only during recess.

3. At formal hearings everyone present will rise when the presiding officer enters

preceded by court orderly and when he takes the chair he will acknowledge and

indicate to those present to resume their chairs.

4. Witnesses during examination, counsel examining and accused normally remain

standing.

5. When the court / hearing is adjourned the presiding officer rises and everyone

without exception gets up and he leaves the hall preceded by the orderly.

6. No matter how important another person coming into the court hall those present

should not rise.

7. Police officers will attend hearing in full uniform and will salute the presiding

officer. Those need not be returned but acknowledge by a nod.

8. Presiding Officer/Court may address the Counsel as Counsel for ……….

Counsel may address the presiding officer as Sir, your Honour and never by

name.

9. It is the duty of the presiding officer to make sui1able arrangements for court

work/hearings before hand and issue suitable instruction to all concerned for

compliance.

10. Smooth and orderly conduct of judicial/quasi judicial proceedings is the

responsibility of everyone present In case of disorderliness order may be

257

restored by using a bell or by thumping on the table calling „Order Order‟ loudly,

Persons responsible for disorderliness are also liable for contempt of court

proceedings ar;1d action under IPC. Persons responsible for such

misdemeanour may be asked to remove themselves or on failure removed with

the help of the court.

CEREMONIALS:

Rituals and ceremonies form an important part of the life of an Individual as

well as a community. From birth through marriage, till death, a number of ceremonials

are associated with various stages of human life. In Official life also ceremonials and

formalities are quite closely associated in the observance of functions. KAS and other

State Service Officers as Heads of Offices will have to plan for and conduct these

ceremonial functions in their official capacity.

2. Ceremonials In Government and Semi-Government functions achieve the

following:

I. They promote a feeling of regard and respect for certain national institutions,

functions and personages.

II. They Infuse a sense of distinctive pride with respect to the national days, the

National Flag, and raise these functions above the ordinary and the mundane

functions in the minds of the people.

III. They satisfy the basic human need for rituals and ceremonies; and

IV. When uniformed elements take part in the function, certain degree of formality

and ceremony becomes essential.

Therefore, official participation and its various nuances should be understood and

appreciated by the trainee-officers at the earliest stage. It should not be left to be learnt

In remote and far-off districts or offices by the trial and error method.

3. Some of the points which need to be borne in mind while arranging, observing or

participating in functions of a ceremonial natural are:

(i) Conduct and bearing should be correct, poised and sober; on

such occasions no flippancy nor triviality or brash humour should be permitted.

258

(ii) Sobriety in dress and behaviour is important because it sets the

tone for the function. Gentlemen officers should wear sherwanis or closed collar

coats and trousers or national dress; lady officers should wear sarees in plain

white, pastel shades or other sober colours (but not bright yellow, or other

gaudy colours). On no account should printed sarees be worn. On sports

functions, depending on weather blazers and scarf or service ties may be worn.

(iii) On ceremonial functions strictest punctuality must be observed;

late arrival will mean discourtesy to the public gathered for the functions and to

the uniformed units who may be taking part in the function.

(iv) If speeches are made they preferably be in the regional language

concerned and should be short, concise and at national functions avoid

informality of content or tone. . Speeches should be reduced to writing or atleast

points jotted down before going to the function.

Till they get accustomed to take part in such ceremonial functions, officers

will do well to rehearse their part a few times before the final day.

4. Two important ceremonial functions in which the officers of All India and

State Services are likely to take a leading part are the Republic day and the

Independence Day. Independence Day functions comprise of flag hoisting on official and

semi-official building or by public bodies or institutions; sports activities, arrangements

for decorative lighting on public buildings; symposia, debates or poetry recital functions

with some such theme as national integration etc. It may, however be mentioned that

functions arranged on the Independence Day are more in the nature of introspective

occasions rather than public demonstration of national fervour. It is the Republic Day

which is celebrated in a more elaborate manner and public expression to national

aspirations is given in a number of functions arranged on this occasion.

5. The main function organised on the Republic Day is the morning parade where

uniformed elements belonging to the Police NCC, Home Guards, Fire Brigades, etc., are

arranged at the district and divisional headquarters and" also at the state headquarters.

In some places where there are defence forces units they may also- take part in these

parades. These parades consist of flag hoisting ceremonies, march past by the troops

and possibly distribution of prizes for best turn out, etc. Important points; to be borne in

mind regarding flag hoisting and taking salute at the march past are:

259

A Flag Hoisting:

(i) The flag to be unfurled should be carefully tied up by somebody who knows the

proper knot, the rope to be pulled should be distinctively marked, as pulling the wrong

rope or pulling both the ropes is likely to end up in confusion.

(ii) If there is a VIP who has been invited to unfurl the flag he may be briefed regarding

the correct procedure; an assistant may remain present to help in case the flag is not

broken at the first attempt; but unfurling must be done by the VIP.

(iii) National Anthem will be played as soon as the flag is broken and everyone

including the VIP will give a salute to the flag and stand at attention. Uniformed troops

and their officers with arms or swords as the case may be, will pay compliments as laid

down. The National Anthem will generally be played by a police or a services band. In

case it is sung, the VIP and the audience may join. On no account should Gramophone

Records of National Anthem be played at ceremonial functions.

B Taking Salutes:

Civilian officers, both ladies and gentlemen required to take salutes at

parades by uniformed formations or at guards of honour, will return the compliments as

follows:

(i) When wearing Indian head dress or none at all, by raising the right hand

to the forehead with the fingers slightly inclined, the observe of the palm facing right eye,

and the reverse outwards. (This is different from the rigid, military salute, in which the

reverse of the palm faces inward, and the obverse out-wards, and the elbow is raised in

line with the shoulder).

(ii) When wearing European head dress, by raising the hat with right hand.

In both (i) and (ii), the hand or hat should be lowered only after the .

troops have marched past, or after each group has marched past, where there

are more than one.

(iii) While receiving a salute from an officer who is carrying a sword do not

attempt to shake hands with him for obvious reasons, as he will be carrying the sword in

his right hand.

260

(iv) If inspection of the parade has to be done, only the front rank will be

inspected and avoid the use of jeeps or other conveyance unless it is a very large

.parade. Parade is usually inspected by uniformed officers in slow march, while the band

plays appropriate tune. Parade Commander will also walk in slow march. Civilian officers

or VIPs however, need not walk in slow march but they, should take slow and measured

steps so that the parade commander and uniformed officer can keep pace with him.

(v) Do not make long speeches especially when men are facing the sun or

have been standing too long or weather is inclement.

6. Meeting in Uniforms:

Occasionally after the parade civilian officers may be invited to meet the

troops either for encouragement or for introduction. At such informal meetings

remember that the uniformed units have a code of conduct of their own and their

training in discipline and propriety will make it difficult to establish informality in the

same degree as among the civilians. They also have a more rigid hierarchical

structure and any attempt at upsetting that is to be avoided.

7. Attending Rashtrapati Bhavan or Government House at Home:

Do not forget to sign the Visitors Book in the Government House when you

visit or are posted to the State capitals. Invitations from government houses are like

commands which must be honoured unless for extremely unavoidable reasons regrets

have to be sent. In any case do not forget or postpone sending .acceptance regrets as

soon as invitations are received. Dress should always be in conformity with the

occasions. Occasions would also determine the style of speaking mood and even

vocabulary used in speeches.

8. Distribution of Prizes:

Unless it is very embarrassing to refuse, do not agree to give away prizes.

This privilege is generally exercised by ladies. However, if it has to be done, do it

correctly with dignity and poise, making occasional remarks to some of the prize-winners

but do not delay the proceedings by too long conversations with individual prize-winners.

Do not attempt to shake hands with lady prize winners unless they make the first move.

In the case of lady officers giving away the prizes it is advisable not-to shake hands at

all. When giving away "multi-storey" cup see that different parts of such cups do not

tumble down in the process of being hand over to the recipient.

261

9. Visits of Dignitaries and High Personages:

Warrants of precedence issued by the Government of India and by the

State Government should be consulted for according correct precedence to invitees

at the time of introduction at air-ports, railway stations, etc. Same warrants of

precedence will apply in the case of seating arrangements, sending invitations, etc.,

for meals and other functions. For holders of posts mentioned in the same column in

the warrant of precedence, the date from which the office holders entered that

column would be taken into account for fixing his order of precedence.

10. Days of Mourning:

On the demise of a holder of a high office in Government or a very venerable

public figure, state mourning will be declared by the Government concerned. Such

declaration will always specify the number of days for which mourning is to be observed.

During such mourning period flags will fly at half mast at all Government buildings and

official and semi-official functions will be cancelled.

11. Other Occasions:

While visiting quarter guards or unit lines of Army/ Police/ NCC Home Guards Units,

compliments should be properly received and given. Adopt the proper saluting

procedure as already mentioned. Do not just receive the salute. with a flick of the head

or a casual raising of the hand while moving away from. the quarter guard. If

compliments are paid they should be received properly while standing at attention. When

the salute is given by armed guard they will present arms (salami Shastra) to the visiting

VIP. It should be remembered that the "Salalmi Shastra" consists of three district

separate movements. The salute by the VIP in return should be synchronised with the

last movement. Similarly after the salute the guard will do "Order Arm (Bazu Shastra)".

This consists of two distinct separate movements. The hand raised in salute should

come down to synchronise with the last movement of the "Bazu Shastra". After the

guard has been inspected, the VIP should give the order "Visarjan" (Dismiss) when the

guard will give another salute which will be returned in the manner described above.

This procedure, however,' will not apply when the complete guard does not turn out but

only a butt salute is given by the sentry. After compliments are received and returned, a

few words of praise and encouragement to the uniformed personnel are in order.

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Circular No. GAD 17 GAM 73, dated 7th March, 1973 issued by the

Karnataka Secretariat regarding visits of Ministers:

It is observed that instructions issued to the officers in Circular No. GAD 89

OOM 68, dated 17th August, 196.8, regarding the courtesies to be shown to the

Ministers during their tours in the Districts and regarding exercise of economy in the use

of Government vehicles and avoiding of ostentations, etc., are not being followed strictly.

In supersession of all the previous orders on the subject, the following instructions are

issued for strict observance:

1. The Ministers tours are of two distinct categories namely official and non-

official. The classification of a particular tour will be intimated by the Ministers

concerned. In the absence of any indication to the contrary, all tours of the Ministers

should be deemed to be official.

2. Whenever any Minister/ Minister of State visits any place in a district, the

District officers of the Department comprised in the portfolio of the Minister should

receive him on arrival and see him off at the time of the departure.

3. Unless specifically desired by the Minister, indicating the rank and number

of officers, the District Officers need not accompany the Minister during his tour within

their jurisdiction as a matter of course. In the event of accompanying . the Minister as

per his specific instructions, utmost economy should be exercised in the use of

Government vehicles. The District Officers accompanying the Minister should not take

with them Junior Officers. Whenever certain other District Officers comprised in the

portfolio of the Minister are also requested by the Minister to accompany him, all such

officers should manage with the minimum number of vehicles at the rate of five officers

per vehicle.

4. It will be the duty of the Officers of the Department comprised in the portfolio

of the Minister to assist him, and the Officers travelling with him on Government duty to

procure accommodation, supply of food and other reasonable necessities, on payment.

Bill for supplies should be presented for payment immediately and not delayed.

5. The Divisional Commissioner, Deputy Commissioner and the Superintendent of

Police will call on the Minister if they are in Headquarters. Unless specifically desired by

the Minister, they should not accompany him during his tour. It is also not necessary for

them to make a special trip to the place of visit or in case of visit to Headquarters, break

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camp and return specially to headquarters to receive the Minister. However when

intimation is received of a Minister „s visit to headquarters, well in advance, the Divisional

Commissioner, Deputy Commissioner, Superintendent of Police should so arrange his

tour programme as to be available if possible at headquarters at the time of the Ministers

visit. These instructions will apply equally to the subordinate Revenue Officers like the

Assistant Commissioners and the Tahsildars. The Superintendent of Police will however

make the usual security arrangements on such occasions.

6. When Ministers undertake tours on the eve of the Elections. Government Officers,

while they should make the usual arrangements, to enable the Ministers, should not

themselves organise any election meetings, nor be present during such meetings except

when their duties enjoin them to be present in order to maintain law and order or to

make security arrangements.

7. In the case of the non-official tours that may be indicated by the Minister, such of the

District Officers comprised in the Ministers portfolio as are at headquarters should show

the same courtesies as indicated in para 1 above, namely of receiving him on arrival and

seeing off at the time of the departure. There is no need for the officers to accompany

the Ministers during the latter‟s non-official tour.

8. In the case of purely official functions, the Ministers may ask the local officers to verify

before hand whether there is any objection for the Minister to participate in the function.

Detailed report on such queries should be directly sent to the Private Secretary to the

Minister concerned. In the case of private functions, the Minister may likewise desire to

have the details of the functions, etc., in which case the local officers should consult

informally the local President of the party and send a suitable report to the Private

Secretary to the Minister concerned.

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APPENDIX – V

THE PROVISIONS RELATING TO CRIMINAL PROCEDURE CODE – WHICH ARE FOUND

IN CHAPTER II TO XII

2.Definitions.- In this Code, unless the context otherwise requires, -

(a)"bailable offence" means an offence which is shown as bailable in the First Schedule,

or which is made bailable by any other law for the time being in force; and "non-bailable

offence" means any other offence;

(b)"charge" includes any head of charge when the charge contains more heads than

one;

(c)"cognizable offence" means an offence for which, and "cognizable case" means a

case in which, a police officer may, in accordance with the First Schedule or under any

other law for the time being in force, arrest without warrant;

(d)"complaint" means any allegation made orally or in writing to a Magistrate, with a view

to his taking action under this Code, that some person, whether known or unknown, has

committed an offence, but does not include a police report.

Explanation.- A report made by a police officer in a case which discloses, after

investigation, the commission of a non-cognizable offence shall be deemed to be a

complaint; and the police officer by whom such report is made shall be deemed to be the

complainant;

(e)"High Court" means, -

(i) in relation to any State, the High Court for that State;

(ii) in relation to a Union territory to which the jurisdiction of the High Court for a State

has been extended by law, that High Court;

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(iii) in relation to any other Union territory, the highest Court of criminal appeal for that

territory other than the Supreme Court of India;

(f)"Indian" means the territories to which this Code extends;

(g)"inquiry" means every inquiry, other than a trial, conducted under this Code by a

Magistrate or Court;

(h)"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

authorised by a Magistrate in this behalf;

(i)" judicial proceeding" includes any proceeding in the course of which evidence is or

may be legally taken on oath;

(j)"local jurisdiction", in relation to a Court or Magistrate, means the local area within

which the Court or Magistrate may exercise all or any of its or his powers under this

Code;

(k)"metropolitan area" means the area declared, or deemed to be declared, under

section 8, to be a metropolitan area;

(l)"non-cognizable offence" means an offence for which, and "non-cognizable case"

means a case in which, a police officer has no authority to arrest without warrant;

(m)"notification" means a notification published in the Official Gazette;

(n)"offence" means any act or omission made punishable by any law for the time being

in force and includes any act in respect of which a complaint may be made under section

20 of the Cattle-trespass Act, 1871( 1 of 1871);

(o)"officer in charge of a police station" includes, when the officer in charge of the police

station is absent from the station-house or unable from illness or other cause to perform

his duties, the police officer present at the station-house who is next in rank to such

officer and is above the rank of constable or, when the State Government so directs, any

other police officer so present;

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(p)"place" includes a house, building, tent, vehicle and vessel;

(q)"pleader", when used with reference to any proceeding in any Court, means a person

authorised by or under any law for the time being in force, to practise in such Court, and

includes any other person appointed with the permission of the Court to act in such

proceeding;

( r ) " police report" means a report forwarded by a police officer to a Magistrate under

sub-section (2) of section 173;

(s)"police report" means a report forwarded by a police officer or specially by the State

Government, to be a police station, and includes any local area specified by the State

Government in this behalf;

(t)"prescribed" means prescribed by rules made under this Code;

(u)"Public Prosecutor" means any person appointed under section 24, and includes any

person acting under the directions of a Public Prosecutor;

(v)"sub-division" means a sub-division of a district;

(w)"summons-case" means a case relating to an offence, and not being a warrant-case;

(x)"warrant-case" means a case relating to an offence punishable with death,

imprisonment for life or imprisonment for a term exceeding two years;

(y)words and expressions used herein and not defined but defined in the Indian Penal

Code (45 of 1860) have the meanings respectively assigned to them in that Code.

6.Classes of Criminal Courts.- Besides the High Courts and the Courts constituted

under any law, other than this Code, there shall be, in every State, the following classes

of Criminal Courts, namely:-

(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan

Magistrates;

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(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.

8.Metropolitan areas.- (1) The State Government may, by notification, declare that , as

from such date as may be specified in the notification, any area in the State comprising a

city or town whose population exceeds one million shall be a metropolitan area for the

purposes of this Code.

(2) As from the commencement of this Code, each of the Presidency-towns of Bombay,

Calcutta and Madras and the city of Ahmedabad shall be deemed to be declared under

sub-section (1) to be a metropolitan area.

(3) The State Government may, by notification, extend, reduce or alter the limits of a

metropolitan area but the reduction or alteration shall not be so made as to reduce the

population of such area to less than one million.

(4) Where, after an area has been declared, or deemed to have been declared to be, a

metropolitan area, the population of such area falls below one million, such area shall,

on and from such date as the State Government may, by notification, specify in this

behalf, cease to be a metropolitan area; but notwithstanding such cesser, any inquiry,

trial or appeal pending immediately before such cesser before any Court or Magistrate in

such area shall continue to be dealt with under this Code, as if such cesser had not

taken place.

(5) Where the State Government reduces or alters, under sub-section (3), the limits of

any metropolitan area, such reduction or alteration shall not affect any inquiry, trial or

appeal pending immediately before such reduction or alteration before any Court or

Magistrate, and every such inquiry, trial or appeal shall continue to be dealt with under

this Code as if such reduction or alteration had not taken place.

Explanation.- In this section, the expression "population" means the population as

ascertained at the last preceding census of which the relevant figures have been

published.

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9.Court of Session.- (1)The State Government shall establish a Court of Session for

every sessions division.

(2) Every Court of Session shall be presided over by a Judge, to be appointed by the

High Court.

(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions

Judges to exercise jurisdiction in a Court of Session.

(4)The Sessions Judge of one sessions division may be appointed by the High Court to

be also an Additional Sessions Judge of another division, and in such case he may sit

for the disposal of cases at such place or places in the other division as the High Court

may direct.

(5) Where the office of the Sessions Judge is vacant, the High Court may make

arrangements for the disposal of any urgent application which is, or may be, made or

pending before such Court of Session by an Additional or Assistant Sessions Judge, or,

if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in

the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal

with any such application.

(6) The Court of Session shall ordinarily hold its sitting at such place or places as the

High Court may, by notification, specify; but, if, in any particular case, the Court of

Session is of opinion that it will tend to the general convenience of the parties and

witnesses to hold its sittings at any other place in the sessions division, it may, with the

consent of the prosecution and the accused, sit at that place for the disposal of the case

or the examination of any witness or witnesses therein.

Explanation.- For the purposes of this Code, "appointment" does not include the first

appointment, posting or promotion of a person by the Government to any Service, or

post in connection with the affairs of the Union or of a State, where under any law, such

appointment, posting or promotion is required to be made by Government.

10.Subordination of Assistant Sessions Judges.- (1) All Assistant Sessions Judges

shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction

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(2) The Sessions Judge may, from time to time, make rules consistent with this Code, as

to the distribution of business among such Assistant Sessions Judges.

(3) The Sessions Judge may also make provision for the disposal of any urgent

application, in the event of his absence or inability to act, by an Additional or Assistant

Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief

Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have

jurisdiction to deal with any such application.

11.Courts of Judicial Magistrates.- (1) In every district (not being a metropolitan area),

there shall be established as many Courts of Judicial Magistrates of the first class and of

the second class, and at such places, as the State Government may, after consultation

with the High Court, by notification, specify.

(2) The presiding officers of such Courts shall be appointed by the High Court.

(3) The High Court may, whenever it appears to it to be expedient or necessary, confer

the powers of a Judicial Magistrate of the first class or of the second class on any

member of the Judicial Service of the State, functioning as a Judge in a Civil Court.

20.Executive Magistrates.-(1) In every district and in every metropolitan area, the State

Government may appoint as many persons as it thinks fit to be Executive Magistrates

and shall appoint one of them to be the District Magistrate

(2) The State Government may appoint any Executive Magistrate to be an Additional

district Magistrate, and such Magistrate shall have all or any of the powers of a District

Magistrate under this Code or under any other law for the time being in force.

(3) Whenever, in consequence of the office of a District Magistrate becoming vacant,

any officer succeeds temporarily to the executive administration of the district, such

officer shall, pending the orders of the State Government, exercise all the powers and

perform all the duties respectively conferred and imposed by this Code on the District

Magistrate.

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(4) The State Government may place an Executive Magistrate in charge of a sub-

division and may relieve him of the charge as occasion requires; and the Magistrate so

placed in charge of a sub-division shall be called the Sub-divisional Magistrate.

(5) Nothing in this section shall preclude the State Government from conferring, under

any law for the time being in force, on a Commissioner of Police, all or any of the powers

of an Executive Magistrate in relation to a metropolitan area.

22.Local jurisdiction of Executive Magistrates.- (1) Subject to the control of the State

Government, the District Magistrate may, from time to time, define the local limits of the

areas within which the Executive Magistrates may exercise all or any of the powers with

which they may be invested under this Code.

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every

such Magistrate shall extend throughout the district.

23.Subordination of Executive Magistrates.- (1) All Executive Magistrates, other than

the Additional District Magistrate, shall be subordinate to the District Magistrate, and

every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers

in a sub-division shall also be subordinate to the Sub-divisional Magistrate, subject,

however, to the general control of the District Magistrate.

(2) The District Magistrate may, from time to time, make rules or give special orders,

consistent with this Code, as to the distribution of business among the Executive

Magistrates subordinate to him and as to the allocation of business to an Additional

District Magistrate.

24.Public Prosecutors.- (1)For every High Court, the Central Government or the State

Government shall, after consultation with the High Court, appoint a Public Prosecutor for

conducting, in such Court, any prosecution, appeal or other proceeding on behalf of the

Central or State Government, as the case may be.

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(2) For every district the State Government shall appoint a Public Prosecutor and may

also appoint one or more Additional Public Prosecutors for the district.

(3) The District Magistrate shall, in consultation with the Sessions Judge, prepare a

panel of names of persons who are, in his opinion, fit to be appointed as the Public

Prosecutor or Additional Public Prosecutor for the district.

(4) No person shall be appointed by the State Government as the Public Prosecutor or

Additional Public Prosecutor for the district unless his name appears on the panel of

names prepared by the District Magistrate under sub-section (3).

(5) A person shall only be eligible to be appointed as a Public Prosecutor or an

Additional Public Prosecutor under sub-section (1) or sub-section (2), if he has been in

practice as an advocate for not less than seven years.

(6) The Central Government or the State Government may appoint, for the purposes of

any case or class of cases, an advocate who has been in practice for not less than ten

years, as a Special Public Prosecutor.

25.Assistant Public Prosecutors.- (1) The State Government shall appoint in every

district one or more Assistant Public Prosecutors for conducting prosecutions in the

Courts of Magistrates.

(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be

appointed as an Assistant Public Prosecutor.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular

case, the District Magistrate may appoint any other person to be the Assistant Public

Prosecutor in charge of that case:

Provided that a police officer shall not be so appointed-

(a) if he has taken any part in the investigation into the offence with respect to which the

accused is being prosecuted; or

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(b) if he is below the rank of Inspector.

34.Withdrawal of powers.- (1) The High Court or the State Government, as the case

may be, may withdraw all or any of the powers conferred by it under this Code on any

person or by any officer subordinate to it

(2) Any powers conferred by the Chief Judicial Magistrate or by the District Magistrate

may be withdrawn by the respective Magistrate by whom such powers were conferred.

35.Powers of Judges and Magistrates exercisable by their successors-in-office.-

(1) Subject to the other provisions of this Code, the powers and duties of a Judge or

Magistrate may be exercised or performed by his successor-in-office.

(2) When there is any doubt as to who is the successor-in-office of any Additional or

Assistant Sessions Judge, the Sessions Judge shall determine by order in writing the

Judge who shall, for the purposes of this Code or of any proceedings or order

thereunder, be deemed to be the successor-in-office of such Additional or Assistant

Sessions Judge.

(3) When there is any doubt as to who is the successor-in-office of any Magistrate, the

Chief Judicial Magistrate, or the District Magistrate, as the case may be, shall determine

by order in writing the Magistrate who shall, for the purpose of this Code or of any

proceedings or order thereunder, be deemed to be the successor-in-office of such

Magistrate.

37.Public when to assist Magistrates and police.- Every person is bound to assist a

Magistrate or police officer reasonably demanding his aid-

(a) in the taking or preventing the escape of any other person whom such Magistrate or

police officer is authorised to arrest; or

(b) in the prevention or suppression of a breach of the peace; or

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(c) in the prevention of any injury attempted to be committed to any railway, canal,

telegraph or public property.

41.When police may arrest without warrant.- (1) Any police officer may without an

order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable

complaint has been made, or credible information has been received, or a reasonable

suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse

shall lie on such person, any implement of house-breaking; or

(c) who has been proclaimed as an offender either under this Code or by order of the

State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be

stolen property and who may reasonably be suspected of having committed an offence

with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped,

or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the

Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been

made, or credible information has been received, or a reasonable suspicion exists, of his

having been concerned in, any act committed at any place out of India which, if

committed in India, would have been punishable as an offence, and for which he is,

under any law relating to extradition, or otherwise, liable to be apprehended or detained

in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section

(5) of section 356; or

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(I) for whose arrest any requisition, whether written or oral, has been received from

another police officer, provided that the requisition specifies the person to be arrested

and the offence or other cause for which the arrest is to be made and it appears

therefrom that the person might lawfully be arrested without a warrant by the officer who

issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be

arrested any person, belonging to one or more of the categories of persons specified in

section 109 or section 110.

42.Arrest on refusal to give name and residence.- (1) When any person who, in the

presence of a police officer, has committed or has been accused of committing a non-

cognizable offence refuses, on demand of such officer, to give his name and residence

or gives a name or residence which such officer has reason to believe to be false, he

may be arrested by such officer in order that his name or residence may be ascertained.

(2) When the true name and residence 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:

Provided that, if such person is not resident in India, the bond shall be secured by a

surety or sureties resident in India.

(4) (3) Should the true name and residence of such person not be ascertained within

twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so

required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest

Magistrate having jurisdiction.

43.Arrest by Private person and procedure on such arrest.- (1) Any private person

may arrest or cause to be arrested any person who in his presence commits a non-

bailable and cognizable offence, or any proclaimed offender, and, without unnecessary

delay, shall make over or cause to be made over any person so arrested to a police

officer, or, in the absence of a police officer, take such person or cause him to be taken

in custody to the nearest police station.

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(2) If there is reason to believe that such person comes under the provisions of section

41, a police officer shall re-arrest him.

(3) If there is reason to believe that he has committed a non-cognizable offence, and he

refuses on the demand of a police officer to give his name and residence, or gives a

name or residence which such officer has reason to believe to be false, he shall be dealt

with under the provisions of section 42; but if there is no sufficient reason to believe that

he has committed any offence, he shall be at once released.

44.Arrest by Magistrate.- (1) When any offence is committed in the presence of a

Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself

arrest or order any person to arrest the offender, and may thereupon, subject to the

provisions herein contained as to bail, commit the offender to custody.

(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the

arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is

competent at the time and in the circumstances to issue a warrant.

45.Protection of members of the Armed Forces from arrest.- (1) Notwithstanding

anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces

of the Union shall be arrested for anything done or purported to be done by him in the

discharge of his official duties except after obtaining the consent of the Central

Government.

(2) The State Government may, by notification, direct that the provisions of sub-section

(1) shall apply to such class or category of the members of the Force charged with the

maintenance of public order as may be specified therein, wherever they may be serving,

and thereupon the provisions of that sub-section shall apply as if for the expression

"Central Government" occurring therein, the expression "State Government" were

substituted.

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46.Arrest how made.- (1) In making an arrest the police officer or other person making

the same shall actually touch or confine the body of the person to be arrested, unless

there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the

arrest, such police officer or other person may use all means necessary to effect the

arrest.

(3) 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

49.No unnecessary restraint.- The Person arrested shall not be subjected to more

restraint than is necessary to prevent his escape.

50.Person arrested to be informed of grounds of arrest and of right to bail.- (1)

Every police officer or other person arresting any person without warrant shall forthwith

communicate to him full particulars of the offence for which he is arrested or other

grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person

accused of a non-bailable offence, he shall inform the person arrested that he is entitled

to be released on bail and that he may arrange for sureties on his behalf

53.Examination of accused by medical practitioner at the request of police officer.-

(1) When a person is arrested on a charge of committing an offence of such a nature

and alleged to have been committed under such circumstances that there are

reasonable grounds for believing that an examination of his person will afford evidence

as to the commission of an offence, it shall be lawful for a registered medical

practitioner, acting at the request of a police officer not below the rank of sub-inspector,

and for any person acting in good faith in his aid and under his direction, to make such

an examination of the person arrested as is reasonably necessary in order to ascertain

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the facts which may afford such evidence, and to use such force as is reasonably

necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the

examination shall be made only by, or under the supervision of, a female registered

medical practitioner.

Explanation.- In this section and in section 54, "registered medical practitioner" means a

medical practitioner who possesses any recognized medical qualification as defined in

clause (h) of section 2 of the Indian Medical Council Act, 1956,(102 of 1956) and whose

name has been entered in a State Medical Register.

54.Examination of arrested person by medical practitioner at the request of the

arrested person.- When a person who is arrested, whether on a charge or otherwise,

alleges, at the time when he is produced before a Magistrate or at any time during the

period of his detention in custody that the examination of his body will afford evidence

which will disprove the commission by him of any offence or which will establish the

commission by any other person of any offence against his body, the Magistrate shall, if

requested by the arrested person so to do direct the examination of the body of such

person by a registered medical practitioner unless the Magistrate considers that the

request is made for the purpose of vexation or delay or for defeating the ends of justice.

56.Person arrested to be taken before Magistrate or officer in charge of police

station.- A police officer making an arrest without warrant shall, without unnecessary

delay and subject to the provisions herein contained as to bail, take or send the person

arrested before a Magistrate having jurisdiction in the case, or before the officer in

charge of a police station.

60.Power, on escape, to pursue and retake.-(1) If a person in lawful custody escapes

or is rescued, the person from whose custody he escaped or was rescued may

immediately pursue and arrest him in any place in India.

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(2) The provisions of section 47 shall apply to arrests under sub-section (1) although the

person making any such arrest is not acting under a warrant and is not a police officer

having authority to arrest.

107.Security for keeping the peace in other cases.- (1) When an Executive Magistrate

receives information that any person is likely to commit a breach of the peace or disturb

the public tranquillity or to do any wrongful act that may probably occasion a breach of

the peace or disturb the public tranquillity and is of opinion that there is sufficient ground

for proceeding, he may, in the manner hereinafter provided, require such person to show

cause why he should not be ordered to execute a bond, for keeping the peace for such

period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceeding under this section may be taken before any Executive Magistrate when

either the place where the breach of the peace or disturbance is apprehended is within

his local jurisdiction or there is within such jurisdiction a person who is likely to commit a

breach of the peace or disturb the public tranquillity or to do any wrongful act as

aforesaid beyond such jurisdiction.

108.Security for good behaviour from persons disseminating seditious matters.- (1)

When a Judicial Magistrate of the first class receives information that there is within his

local jurisdiction any person who, within or without such jurisdiction, -

(i) either orally or in writing or in any other manner, intentionally disseminates or

attempts to disseminate or abets the dissemination of, -

(a) any matter the publication of which is punishable under section 124A or section 153A

or section 153B or section 295A of the Indian Penal Code, (45 of 1860) or

(b) any matter concerning a Judge acting or purporting to act in the discharge of his

official duties which amounts to criminal intimidation or defamation under the Indian

Penal Code, (45 of 1860).

(ii)makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets to

hire, distributes, publicly exhibits or in any other manner puts into circulation any

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obscene matter such as is referred to in section 292 of the Indian Penal Code, (45 of

1860)

(ii) and the Magistrate is of opinion that there is sufficient ground for proceeding, the

Magistrate may, in the manner hereinafter provided, require such person to show cause

why he should not be ordered to execute a bond, with or without sureties, for his good

behaviour for such period, not exceeding one year, as the Magistrate thinks fit.

(2) No proceedings shall be taken under this section against the editor, proprietor, printer

or publisher of any publication registered under, and edited, printed and published in

conformity with, the rules laid down in the Press and Registration of Books Act, 1867,

(25 of 1867) with reference to any matter contained in such publication except by the

order or under the authority of the State Government or some officer empowered by the

State Government in this behalf.

109.Security for good behaviour from suspected persons.- When a Judicial Magistrate of

the first class receives information that there is within his local jurisdiction a person

taking precautions to conceal his presence and that there is reason to believe that he is

doing so with a view to committing a cognizable offence, the Magistrate may, in the

manner hereinafter provided, require such person to show cause why he should no the

ordered to execute a bond, with or without sureties, for his good behaviour for such

period, not exceeding one year, as the Magistrate thinks fit.

110.Security for good behaviour from habitual offenders.- When a Judicial Magistrate of

the first class receives information that there is within his local jurisdiction a person who -

(a) is by habit a robber, house-breaker, thief, or forger, or

(b) is by habit a receiver of stolen property knowing the same to have been stolen, or

(c) habitually protects or harbours thieves, or aids in the concealment or disposal of

stolen property, or

(d) habitually commits, or attempts to commit, or abets the commission of, the offence of

kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under

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Chapter XII of the Indian Penal Code, (45 of 1860) or under section 489A, section 489B,

section 489C or section 489D of that Code, or

(e) habitually commits, or attempts to commit, or abets the commission of, offences,

involving a breach of the peace, or

(f) habitually commits, or attempts to commit, or abets the commission of –

(i) any offence under one or more of the following Acts, namely:-

(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);

(b) the Foreign Exchange Regulation Act, 1973 (7 of 1973);

(c) the Employees' Provident Funds and Family Pension Fund Act, 1952 (19 of 1952);

(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954);

(e) the Essential Commodities Act, 1955(10 of 1955);

(f) the Untouchability (Offences ) Act, 1955 (22 of 1955);

(g) the Customs Act, 1962 (52 of 1962); or

(ii) any offence punishable under any other law providing for the prevention of hoarding

or profiteering or of adulteration of food or drugs or of corruption, or

(g) is so desperate and dangerous as to render his being at large without security

hazardous to the community,

such Magistrate may, in the manner hereinafter provided, require such person to show

cause why he should not be ordered to execute a bond, with sureties, for his good

behaviour for such period, not exceeding three years, as the Magistrate thinks fit.

111.Order to be made.- When a Magistrate acting under section 107, section 108,

section 109 or section 110, deems it necessary to require any person to show cause

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under such section, he shall make an order in writing, setting forth the substance of the

information received, the amount of the bond to be executed, the term for which it is to

be in force, and the number, character and class of sureties (if any) required.

112.Procedure in respect of person in Court.- If the person in respect of whom such

order is made is present in Court, it shall be read over to him, or, if he so desires, the

substance thereof shall be explained to him.

113.Summons or warrant in case of person not so present.- If such person is not present

in Court, the Magistrate shall issue a summons requiring him to appear, or, when such

person is in custody, a warrant directing the officer in whose custody he is to bring him

before the Court;

Provided that whenever it appears to such Magistrate, upon the report of a police officer

or upon other information (the substance of which report or information shall be recorded

by the Magistrate), that there is reason to fear the commission of a breach of the peace,

and that such breach of the peace cannot be prevented otherwise than by the immediate

arrest of such person, the Magistrate may at any time issue a warrant for his arrest.

114.Copy of order to accompany summons or warrant.- Every summons or warrant

issued under section 113, shall be accompanied by a copy of the order made under

section 111, and such copy shall be delivered by the officer serving or executing such

summons or warrant to the person served with, or arrested under, the same.

115.Power to dispense with personal attendance.- The Magistrate may, if he sees

sufficient cause, dispense with the personal attendance of any person called upon to

show cause why he should not be ordered to execute a bond for keeping the peace or

for good behaviour and may permit him to appear by a pleader.

116.Inquiry as to truth of information.- (1) When an order under section 111 has been

read or explained under section 112 to a person present in Court, or when any person

appears or is brought before a Magistrate in compliance with, or in execution of, a

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summons or warrant, issued under section 113, the Magistrate shall proceed to inquire

into the truth of the information upon which action has been taken, and to take such

further evidence as may appear necessary.

(2) Such inquiry shall be made, as nearly as may be practicable, in the manner

hereinafter prescribed for conducting trial and recording evidence in summons-cases.

(3) After the commencement, and before the completion, of the inquiry under sub-

section (1), the Magistrate, if he considers that immediate measures are necessary for

the prevention of a breach of the peace or disturbance of the public tranquillity or the

commission of any offence or for the public safety, may, for reasons to be recorded in

writing, direct the person in respect of whom the order under section 111 has been made

to execute a bond, with or without sureties, for keeping the peace or maintaining good

behaviour until the conclusion of the inquiry, and may detail him in custody until such

bond is executed or, in default of execution, until the inquiry is concluded:

Provided that-

(a) no person against whom proceedings are not being taken under section 108, section

109, or section 110 shall be directed to execute a bond for maintaining good behaviour;

(b) the conditions of such bond, whether as to the amount thereof or as to the provision

of sureties or the number thereof or the pecuniary extent of their liability, shall not be

more onerous than those specified in the order under section 111.

(4) For the purpose of this section the fact that a person is an habitual offender or is so

desperate and dangerous as to render his being at large without security hazardous to

the community may be proved by evidence of general repute or otherwise.

(5) Where two or more persons have been associated together in the matter under

inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall

think just.

(6) The inquiry under this section shall be completed within a period of six months from

the date of its commencement, and if such inquiry is not so completed, the proceedings

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under this Chapter shall on the expiry of the said period, stand terminated unless, for

special reasons to be recorded in writing, the Magistrate otherwise directs:

Provided that where any person has been kept in detention pending such inquiry, the

proceeding against that person, unless terminated earlier, shall stand terminated on the

expiry of a period of six months of such detention.

(7) Where any direction is made under sub-section (6) permitting the continuance of

proceedings, the Sessions Judge may, on an application made to him by the aggrieved

party, vacate such direction if he is satisfied that it was not based on any special reason

or was perverse.

117.Order to give security.- If, upon such inquiry, it is proved that it is necessary for

keeping the peace or maintaining good behaviour, as the case may be, that the person

in respect of whom the inquiry is made should execute a bond, with or without sureties,

the Magistrate shall make an order accordingly:

Provided that-

(a) no person shall be ordered to give security of a nature different from, or of an amount

large than, or for a period longer than, that specified in the order made under section

111;

(b) the amount of every bond shall be fixed with due regard to the circumstances of the

case and shall not be excessive;

(c) when the person in respect of whom the inquiry is made is a minor, the bond shall be

executed only by his sureties.

118.Discharge of person informed against.- If, on an inquiry under section 116, it is not

proved that it is necessary for keeping the peace or maintaining good behaviour, as the

case may be, that the person in respect of whom the inquiry is made, should execute a

bond, the Magistrate shall make an entry on the record to that effect, and if such person

is in custody only for the purposes of the inquiry, shall release him, or, if such person is

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not in custody, shall discharge him.

119.Commencement of period for which security is required.-(1) If any person, in respect

of whom an order requiring security is made under section 106 or section 117, is, at the

time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the

period for which such security is required shall commence on the expiration of such

sentence.

(2) In other cases such period shall commence on the date of such order unless the

Magistrate, for sufficient reason, fixes a later date.

120.Contents of bond.-The bond to be executed by any such person shall bind him to

keep the peace or to be of good behaviour, as the case may be, and in the latter case

the commission or attempt to commit, or the abetment of, any offence punishable with

imprisonment, wherever it may be committed, is a breach of the bond.

121.Power to reject sureties.- (1) A Magistrate may refuse to accept any surety offered,

or may reject any surety previously accepted by him or his predecessor under this

Chapter on the ground that such surety is an unfit person for the purposes of the bond:

Provided that, before so refusing to accept or rejecting any such surety, he shall either

himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be

held and a report to be made thereon by a Magistrate subordinate to him.

(2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the surety

and to the person by whom the surety was offered and shall, in making the inquiry,

record the substance of the evidence adduced before him.

(3) If the Magistrate is satisfied, after considering the evidence so adduced either before

him or before a Magistrate deputed under sub-section (1), and the report of such

Magistrate (if any), that the surety is an unfit person for the purposes of the bond, he

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shall make an order refusing to accept or rejecting, as the case may be, such surety and

recording his reasons for so doing:

Provided that, before making an order rejecting any surety who has previously been

accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause

the person for whom the surety is bound to appear or to be brought before him.

122.Imprisonment in default of security.-(1) (a) If any person ordered to give security

under section 106 or section 117 does not give such security on or before the date on

which the period for which such security is to be given commences, he shall, except in

the case next hereinafter mentioned, be committed to prison, or, if he is already in

prison, be detained in prison until such period expires or until within such period he gives

the security to the Court or Magistrate who made the order requiring it.

(b) If any person after having executed a bond without sureties for keeping the peace in

pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of

such Magistrate or his successor-in-office, to have committed breach of the bond, such

Magistrate or successor-in-office may, after recording the grounds of such proof, order

that the person be arrested and detained in prison until the expiry of the period of the

bond and such order shall be without prejudice to any other punishment or forfeiture to

which the said person may be liable in accordance with law.

(2) When such person has been ordered by a Magistrate to give security for a period

exceeding one year, such Magistrate shall, if such person does not give such security as

aforesaid, issue a warrant directing him to be detained in prison pending the orders of

the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be,

before such Court.

(3) Such Court, after examining such proceedings and requiring from the Magistrate any

further information or evidence which it thinks necessary, and after giving the concerned

person a reasonable opportunity of being heard, may pass such order on the case as it

thinks fit:

Provided that the period (if any) for which any person is imprisoned for failure to give

security shall not exceed three years.

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(4) If security has been required in the course of the same proceeding from two or more

persons in respect of any one of whom the proceedings are referred to the Sessions

Judge under sub-section (2), such reference shall also include the case of any other of

such persons who has been ordered to give security, and the provisions of sub-sections

(2) and (3) shall, in that event, apply to the case of such other person also, except that

the period (if any) for which he may be imprisoned shall not exceed the period for which

he was ordered to give security.

(5) A Sessions Judge may in his discretion transfer any proceedings laid before him

under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant

Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant

Sessions Judge may exercise the powers of a Sessions Judge under this section in

respect of such proceedings.

(6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the

matter to the Court or Magistrate who made the order, and shall await the orders of such

Court or Magistrate.

(7) Imprisonment for failure to give security for keeping the peace shall be simple.

(8) Imprisonment for failure to give security for good behaviour shall, where the

proceedings have been taken under section 108, be simple, and, where the proceedings

have been taken under section 109 or section 110, be rigorous or simple as the Court or

Magistrate in each case directs.

123.Power to release persons imprisoned for failing to give security.- (1) Whenever the

Chief Judicial Magistrate is of opinion that any person imprisoned for failing to give

security under this Chapter may be released without hazard to the community or to any

other person, he may order such person to be discharged.

(2) Whenever any person has been imprisoned for failing to give security under this

Chapter, the High Court or Court of Session, or, where the order was made by any other

Court, the Chief Judicial Magistrate, may make an order reducing the amount of the

security or the number of sureties or the time for which security has been required.

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(3) An order under sub-section (1) may direct the discharge of such person either

without conditions or upon any conditions which such person accepts:

Provided that any condition imposed shall cease to be operative when the period for

which such person was ordered to give security has expired.

(4) The State Government may prescribe the conditions upon which a conditional

discharge may be made.

(5) If any condition upon which any person has been discharged it, in the opinion of the

Chief Judicial Magistrate by whom the order of discharge was made or of his successor,

not fulfilled, he may cancel the same.

(6) When a conditional order of discharge has been cancelled under sub-section (5),

such person may be arrested by any police officer without warrant, and shall thereupon

be produced before the Chief Judicial Magistrate.

(7) Unless such person gives security in accordance with the terms of the original order

for the unexpired portion of the term for which he was in the first instance committed or

ordered to be detained (such portion being deemed to be a period equal to the period

between the date of the breach of the conditions of discharge and the date on which,

except for such conditional discharge, he would have been entitled to release), the Chief

Judicial Magistrate may remand such person to prison to undergo such unexpired

portion.

(8) A person remanded to prison under sub-section (7) shall, subject to the provisions of

section 122, be released at any time on giving security in accordance with the terms of

the original order for the unexpired portion aforesaid to the Court or Magistrate by whom

such order was made, or to its or his successor.

(9) The High Court or Court of Session may at any time, for sufficient reasons to be

recorded in writing, cancel any bond for keeping the peace or for good behaviour

executed under this Chapter by any order made by it, and the Chief Judicial Magistrate

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may make such cancellation where such bond was executed under his order or under

the order of any other Court in his direct.

(10) Any surety for the peaceable conduct or good behaviour of another person ordered

to execute a bond under this Chapter may at any time apply to the Court making such

order to cancel the bond and on such application being made, the Court shall issue a

summons or warrant, as it thinks fit, requiring the person for whom such surety is bound

to appear or to be brought before it.

124.Security for unexpired period of bond.-(1) When a person for whose appearance a

summons or warrant has been issued under the proviso to sub-section (3) of section 121

or under sub-section (10) of section 123, appears or is brought before the Magistrate or

Court, the Magistrate or Court shall cancel the bond executed by such person and shall

order such person to give, for the unexpired portion of the term of such bond, fresh

security of the same description as the original security.

(2) Every such order shall, for the purposes of sections 120 to 123 (both inclusive), be

deemed to be an order made under section 106 or section 117, as the case may be.

129.Dispersal of assembly by use of civil force.- (1) Any Executive Magistrate or officer

incharge of a police station or, in the absence of such officer incharge, any police officer,

not below the rank of a sub-inspector, may command any unlawful assembly, or any

assembly of five or more persons likely to cause a disturbance of the public peace, to

disperse; and it shall thereupon be the duty of the members of such assembly to

disperse accordingly.

(2) If, upon being so commanded, any such assembly does not disperse, or if, without

being so commanded, it conducts itself in such a manner as to show a determination not

to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may

proceed to disperse such assembly by force, and may require the assistance of any

male person, not being an officer or member of the armed forces and acting as such, for

the purpose of dispersing such assembly, and, if necessary, arresting and confining the

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persons who form part of it, in order to disperse such assembly or that they may be

punished according to law.

130.Use of armed forces to disperse assembly.- (1) If any such assembly cannot be

otherwise dispersed, and if it is necessary for the public security that it should be

dispersed, the Executive Magistrate of the highest rank who is present may cause it to

be dispersed by the armed forces.

(2) Such Magistrate may require any officer in command of any group of persons

belonging to the armed forces to disperse the assembly with the help of the armed

forces under his command, and to arrest and confine such persons forming part of it as

the Magistrate may direct, or as it may be necessary to arrest and confine in order to

disperse the assembly or to have them punished according to law.

(3) Every such officer of the armed forces shall obey such requisition in such manner as

he thinks fit, but in so doing he shall use as little force, and do as little injury to person

and property, as may be consistent with dispersing the assembly and arresting and

detaining such persons.

131.Power of certain armed force officers to disperse assembly.-When the public

security is manifestly endangered by any such assembly and no Executive Magistrate

can be communicated with, any commissioned or gazetted officer of the armed forces

may disperse such assembly with the help of the armed forces under his command, and

may arrest and confine any persons forming part of it, in order to disperse such

assembly or that they may be punished according to law; but if, while he is acting under

this section, it becomes practicable for him to communicate with an Executive

Magistrate, he shall do so, and shall thenceforward obey the instructions of the

Magistrate, as to whether he shall or shall not continue such action.

132.Protection against prosecution for acts done under preceding sections.- (1)No

prosecution against any person for any act purporting to be done under section 129,

section 130 or section 131 shall be instituted in any Criminal Court except –

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(a) with the sanction of the Central Government where such person is an officer or

member of the armed forces;

(b) with the sanction of the State Government in any other case.

(2) (a) No Executive Magistrate or police officer acting under any of the said sections in

good faith;

(b) no person doing any act in good faith in compliance with a requisition under section

129 or section 130;

(c) no officer of the armed forces acting under section 131 in good faith;

(d) no member of the armed forces doing any act in obedience to any order which he

was bound to obey,

shall be deed to have thereby committed an offence.

(3) In this section and in the preceding sections of this Chapter, -

(a) the expression "armed forces" means the military, naval and air forces, operating as

land forces and includes any other Armed Forces of the Union so operating;

(b)"officer", in relation to the armed forces, means a person commissioned, gazetted or

in pay as an officer of the armed forces and includes a junior commissioned officer, a

warrant officer, a petty officer, a non-commissioned officer and a non-gazetted officer;

(c)"member", in relation to the armed forces, means a person in the armed forces other

than an officer.

B.- Public nuisances

133.Conditional order for removal of nuisance.- (1) Whenever a District Magistrate or a

Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this

behalf by the State Government, on receiving the report of a police officer or other

information and on taking such evidence (if any) as he thinks fit, considers -

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(a) that any unlawful obstruction or nuisance should be removed from any public place

or from any way, river or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or

merchandise, is injurious to the health or physical comfort of the community , and that in

consequence such trade or occupation should be prohibited or regulated or such goods

or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or, the disposal of any substance , as is likely to

occasion conflagration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to

fall and thereby cause injury to persons living or carrying on business in the

neighbourhood or passing by, and that in consequence the removal, repair or support of

such building, tent or structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be

fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of,

such Magistrate may make a conditional order requiring the person causing such

obstruction or nuisance, or carrying on such trade or occupation, or keeping any such

goods or merchandise, or owning, possessing or controlling such building, tent,

structure, substance, tank, well or excavation, or owning or possessing such animal or

tree, within a time to be fixed in the order-

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be

directed, such trade or occupation, or to remove such goods or merchandise, or to

regulate the keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such

substance; or

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(iv) to remove, repair or support such building, tent or structure, or to remove or support

such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in

the said order;

or, if he objects so to do, to appear before himself or some other Executive Magistrate

subordinate to him at a time and place to be fixed by the order, and show cause, in the

manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in

any Civil Court.

Explanation.- A "public place" includes also property belonging to the State, camping

grounds and left unoccupied for sanitary or recreative purposes.

134.Service or notification of order.- (1)The order shall, if practicable, be served on the

person against whom it is made, in the manner herein provided for service of a

summons.

(2) If such order cannot be so served, it shall be notified by proclamation, published in

such manner as the State Government may, by rules, direct, and a copy thereof shall be

stuck up at such place or places as may be fittest for conveying the information to such

person.

135.Person to whom order is addressed to obey or show cause.-

The person against whom such order is made shall –

(a) perform, within the time and in the manner specified in the order, the act directed

thereby; or

(b) appear in accordance with such order and show cause against the same.

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136.Consequences of his failing to do so.- If such person does not perform such act or

appear and show cause, he shall be liable to the penalty prescribed in that behalf in

section 188 of the Indian Penal Code, (45 of 1860)and the order shall be made absolute.

137.Procedure where existence of public right is denied.- (1) Where an order is made

under section 133 for the purpose of preventing obstruction, nuisance or danger to the

public in the use of any way, river, channel or place, the Magistrate shall, on the

appearance before him of the person against whom the order was made, question him

as to whether he denies the existence of any public right in respect of the way, river,

channel or place, and if he does so, the Magistrate shall, before proceeding under

section 138, inquire into the matter.

(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of

such denial, he shall stay the proceedings until the matter of the existence of such right

has been decided by a competent Court; and, if he finds that there is no such evidence,

he shall proceed as laid down in section 138.

(3) A person who has, on being questioned by the Magistrate under sub-section (1),

failed to deny the existence of a public right of the nature therein referred to, or who,

having made such denial, has failed to adduce reliable evidence in support thereof, shall

not in the subsequent proceedings be permitted to make any such denial.

138.Procedure where he appears to show cause.- (1) If the person against whom an

order under section 133 is made appears and shows cause against the order, the

Magistrate shall take evidence in the matter as in a summons-case.

(2) If the Magistrate is satisfied that the order, either as originally made or subject to

such modification as he considers necessary, is reasonable and proper, the order shall

be made absolute without modification or, as the case may be, with such modification.

(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

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139.Power of Magistrate to direct local investigation and examination of an expert.- The

Magistrate may, for the purposes of an inquiry under section 137 or section 138-

(a) direct a local investigation to be made by such person as he thinks fit; or

(b) summon and examine an expert.

140.Power of Magistrate to furnish written instructions, etc.- (1) Where the Magistrate

directs a local investigation by any person under section 139, the Magistrate may -

(a) furnish such person with such written instructions as may seem necessary for his

guidance;

(b) declare by whom the whole or any part of the necessary expenses of the local

investigation shall be paid.

(2) The report of such person may be read as evidence in the case.

(3) Where the Magistrate summons and examines an expert under section 139, the

Magistrate may direct by whom the costs of such summoning and examination shall be

paid.

141.Procedure on order being made absolute and consequences of disobedience.- (1)

When an order has been made absolute under section 136 or section 138, the

Magistrate shall give notice of the same to the person against whom the order was

made, and shall further require him to perform the act directed by the order within a time

to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to

the penalty provided by section 188 of the Indian Penal Code(45 of 1860).

(2) If such act is not performed within the time fixed, the Magistrate may cause it to be

performed, and may recover the costs of performing it, either by the sale of any building,

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goods or other property removed by his order, or by the distress and sale of any other

movable property of such person within or without such Magistrate's local jurisdiction

and if such other property is without such jurisdiction, the order shall authorise its

attachment and sale when endorsed by the Magistrate within whose local jurisdiction the

property to be attached is found.

(3) No suit shall lie in respect of anything done in good faith under this section.

142.Injunction pending inquiry.- (1) If a Magistrate making an order under section 133

considers that immediate measures should be taken to prevent imminent danger or

injury of a serious kind to the public, he may issue such an injunction to the person

against whom the order was made, as is required to obviate or prevent such danger or

injury pending the determination of the matter.

(2) In default of such person forthwith obeying such injunction, the Magistrate may

himself use, or cause to be used, such means as he thinks fit to obviate such danger or

to prevent such injury.

(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this

section.

143.Magistrate may prohibit repetition or continuance of public nuisance.- A District

Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate empowered

by the State Government or the District Magistrate in this behalf, may order any person

not to repeat or continue a public nuisance, as defined in the Indian Penal Code, (45 of

1860) or any special or local law.

C.- Urgent cases of nuisance or apprehended danger

144.Power to issue order in urgent cases of nuisance or apprehended danger.- (1) In

cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any

other Executive Magistrate specially empowered by the State Government in this behalf,

there is sufficient ground for proceeding under this section and immediate prevention or

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speedy remedy is desirable, such Magistrate may, by a written order stating the material

facts of the case and served in the manner provided by section 134, direct any person to

abstain from a certain act or to take certain order with respect to certain property in his

possession or under his management, if such Magistrate considers that such direction is

likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person

lawfully employed, or danger to human life, health or safety, or a disturbance of the

public tranquillity, or a riot, or an affray.

(2) An order under this section may, in cases of emergency or in cases where the

circumstances do not admit of the serving in due time of a notice upon the person

against whom the order is directed, be passed ex parte.

(3) An order under this section may be directed to a particular individual, or to persons

residing in a particular place or area, or to the public generally when frequenting or

visiting a particular place or area.

(4) No order under this section shall remain in force for more than two months from the

making thereof:

Provided that, if the State Government considers it necessary so to do for preventing

danger to human life, health or safety or for preventing a riot or any affray, it may, by

notification, direct that an order made by a Magistrate under this section shall remain in

force for such further period not exceeding six months from the date on which the order

made by the Magistrate would have, but for such order, expired, as it may specify in the

said notification.

(5) Any Magistrate may, either on his own motion or on the application of any person

aggrieved, rescind or alter any order made under this section, by himself or any

Magistrate subordinate to him or by his predecessor-in-office.

(6) The State Government may, either on its own motion or on the application of any

person aggrieved, rescind or alter any order made by it under the proviso to sub-section

(4).

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(7) Where an application under sub-section (5) or sub-section (6) is received, the

Magistrate, or the State Government, as the case may be, shall afford to the applicant

an early opportunity of appearing before him or it, either in person or by pleader and

showing cause against the order; and if the Magistrate or the State Government, as the

case may be, rejects the application wholly or in part, he or it shall record in writing the

reasons for so doing.

D.- Disputes as to immovable property

145.Procedure where dispute concerning land or water is likely to cause breach of

peace.- (1) Whenever an Executive Magistrate is satisfied from a report of a police or

upon other information that a dispute likely to cause a breach of the peace exists

concerning any land or water or the boundaries thereof, within his local jurisdiction, he

shall make an order in writing, stating the grounds of his being so satisfied, and requiring

the parties concerned in such dispute to attend his Court in person or by pleader on a

specified date and time, and to put in written statements of their respective claims as

respects the fact of actual possession of the subject of dispute.

(2) For the purposes of this section, the expression "land or water" includes buildings,

markets, fisheries, crops or other produce of land, and the rents or profits of any such

property.

(3) A copy of the order shall be served in the manner provided by this Code for the

service of a summons upon such person or persons as the Magistrate may direct, and at

least one copy shall be published by being affixed to some conspicuous place at or near

the subject of dispute.

(4) The Magistrate shall then, without reference to the merits or the claims of any of the

parties to a right to possess the subject of dispute, peruse the statements so put in, hear

the parties, receive all such evidence as may be produced by them, take such further

evidence, if any, as he thinks necessary, and, if possible, decide whether any and which

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of the parties was, at the date of the order made by him under sub-section (1), in

possession of the subject of dispute:

Provided that if it appears to the Magistrate that any party has been forcibly and

wrongfully dispossessed within two months next before the date on which the report of a

police officer or other information was received by the Magistrate, or after that date and

before the date of his order under sub-section (1), he may treat the party so

dispossessed as if that party had been in possession on the date of his order under sub-

section (1).

(5) Nothing in this section shall preclude any party so required to attend, or any other

person interested, from showing that no such dispute as aforesaid exists or has existed;

and in such case the Magistrate shall cancel his said order, and all further proceedings

thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate

under sub-section (1) shall be final.

(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso

to sub-section (4) be treated as being, in such possession of the said subject, he shall

issue an order declaring such party to be entitled to possession thereof until evicted

therefrom in due course of law, and forbidding all disturbance of such possession until

such eviction; and when he proceeds under the proviso to sub-section (4), may restore

to possession the party forcibly and wrongfully dispossessed.

(b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3).

(7) When any party to any such proceeding dies, the Magistrate may cause the legal

representative of the deceased party to be made a party to the proceeding and shall

thereupon continue the inquiry, and if any question arises as to who the legal

representative of a deceased party for the purposes of such proceeding is, all persons

claiming to be representatives of the deceased party shall be made parties thereto.

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(8) If the Magistrate is of opinion that any crop or other produce of the property, the

subject of dispute in a proceeding under this section pending before him, is subject to

speedy and natural decay, he may make an order for the proper custody or sale of such

property, and, upon the completion of the inquiry, shall make such order for the disposal

of such property, or the sale-proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this

section, on the application of either party, issue a summons to any witness directing him

to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the

Magistrate to proceed under section 107.

146.Power to attach subject of dispute and to appoint receiver.- (1) If the Magistrate at

any time after making the order under sub-section (1) of section 145 considers the case

to be one of emergency, or if he decides that none of the parties was then in such

possession as is referred to in section 145, or if he is unable to satisfy himself as to

which of them was then in such possession of the subject of dispute, he may attach the

subject of dispute until a competent Court has determined the rights of the parties

thereto with regard to the person entitled to the possession thereof:

Provided that such Magistrate may withdraw the attachment at any time if he is satisfied

that there is no longer any likelihood of breach of the peace with regard to the subject of

dispute.

(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation

to such subject of dispute has been appointed by any Civil Court, make such

arrangements as he considers proper for looking after the property or if he thinks fit,

appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the

powers of a receiver appointed under the Code of Civil Procedure, 1908:

Provided that in the event of a receiver being subsequently appointed in relation to the

subject of dispute by any Civil Court, the Magistrate-

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(a) shall order the receiver appointed by him to hand over the possession of the subject

of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the

receiver appointed by him;

(b) may make such other incidental or consequential orders as may be just.

147.Dispute concerning right of use of land or water.- (1) Whenever an Executive

Magistrate is satisfied from the report of a police officer or upon other information, that a

dispute likely to cause a breach of the peace exists regarding any alleged right of user of

any land or water within his local jurisdiction, whether such right be claimed as an

easement or otherwise, he shall make an order in writing, stating the grounds of his

being so satisfied and requiring the parties concerned in such dispute to attend his Court

in person or by pleader on a specified date and time and to put in written statements of

their respective claims.

Explanation.- The expression "land or water" has the meaning given to it in sub-section (2) of section 145.

(2) The Magistrate shall then peruse the statements so put in, hear the parties, receive

all such evidence as may be produced by them respectively, consider the effect of such

evidence, take such further evidence, if any, as he thinks necessary and, if possible,

decide whether such right exists; and the provisions of section 145 shall, so far as may

be, apply in the case of such inquiry.

(3) If it appears to such Magistrate that such rights exist, he may make an order

prohibiting any interference with the exercise of such right, including, in a proper case,

an order for the removal of any obstruction in the exercise of any such right:

Provided that no such order shall be made where the right is exercisable at all times of

the year, unless such right has been exercised within three months next before the

receipt under sub-section (1) of the report of a police officer or other information leading

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to the institution of the inquiry, or where the right is exercisable only at particular

seasons or on particular occasions, unless the right has been exercised during the last

of such seasons or on the last of such occasions before such receipt.

(4) When in any proceedings commenced under sub-section (1) of section 145 the

Magistrate finds that the dispute is as regards an alleged right of user of land or water,

he may, after recording his reasons, continue with the proceedings as if they had been

commenced under sub-section (1);

and when in any proceedings commenced under sub-section (1) the magistrate finds

that the dispute should be dealt with under section 145, he may, after recording his

reasons, continue with the proceedings as if they had been commenced under sub-

section (1) of section 145.

148.Local inquiry.- (1) Whenever a local inquiry is necessary for the purposes of section

145, section 146 or section 147, a District Magistrate or Sub-divisional Magistrate may

depute any Magistrate subordinate to him to make the inquiry, and may furnish him with

such written instructions as may seem necessary for his guidance, and may declare by

whom the whole or any part of the necessary expenses of the inquiry shall be paid.

(2) The report of the person so deputed may be read as evidence in the case.

(3) When any costs have been incurred by any party to a proceeding under section 145,

section 146 or section 147, the Magistrate passing a decision may direct by whom such

costs shall be paid, whether by such party or by any other party to the proceeding, and

whether in whole or in part or proportion and such costs may include any expenses

incurred in respect of witnesses and of pleaders' fees, which the Court may consider

reasonable.

151.Arrest to prevent the commission of cognizable offences.- (1) A police officer

knowing of a design to commit any cognizable offence may arrest, without orders from a

Magistrate and without a warrant, the person so designing, if it appears to such officer

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that the commission of the offence cannot be otherwise prevented.

(2) No person arrested under sub-section (1) shall be detained in custody for a period

exceeding twenty-four hours from the time of his arrest unless his further detention is

required or authorised under any other provisions of this Code or of any other law for the

time being in force.

152.Prevention of injury to public property.- A police officer may of his own authority

interpose to prevent any injury attempted to be committed in his view to any public

property, movable or immovable, or the removal of injury of any public landmark or buoy

or other mark used for navigation.

153.Inspection of weights and measures.- (1) Any officer in charge of a police station

may, without a warrant, enter any place within the limits of such station for the purpose

of inspecting or searching for any weights or measures or instruments for weighing, used

or kept therein, whenever he has reason to believe that there are in such place any

weights, measures or instruments for weighing which are false.

(2) If he finds in such place any weights, measures or instruments for weighing which

are false, he may seize the same, and shall forthwith give information of such seizure to

a Magistrate having jurisdiction.

165.Search by police officer.- (1) Whenever an officer in charge of a police station or a

police officer making an investigation has reasonable grounds for believing that anything

necessary for the purposes of an investigation into any offence which he is authorised to

investigate may be found in any place within the limits of the police station of which he is

in charge, or to which he is attached, and that such thing cannot in his opinion be

otherwise obtained without undue delay, such officer may, after recording in writing the

grounds of his belief and specifying in such writing, so far as possible, the thing for which

search is to be made, search, or cause search to be made, for such thing in any place

within the limits of such station.

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(2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person.

(3) If he is unable to conduct the search in person, and there is no other person

competent to make the search present at the time, he may, after recording in writing his

reasons for so doing, require any officer subordinate to him to make the search, and he

shall deliver to such subordinate officer an order in writing, specifying the place to be

searched, and so far as possible, the thing for which search is to be made; and such

subordinate officer may thereupon search for such thing in such place.

(4) The provisions of this Code as to search-warrants and the general provisions as to

searches contained in section 100 shall, so far as may be, apply to a search made under

this section.

(5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be

sent to the nearest Magistrate empowered to take cognizance of the offence, and the

owner or occupier of the place searched shall, on application, be furnished, free of cost,

with a copy of the same by the Magistrate.

174.Police to enquire and report on suicide, etc.- (1) When the officer in charge of a

police station or some other police officer specially empowered by the State Government

in that behalf receives information that a person has committed suicide, or has been

killed by another or by an animal or by machinery or by an accident, or has died under

circumstances raising a reasonable suspicion that some other person has committed an

offence, he shall immediately give intimation thereof to the nearest Executive Magistrate

empowered to hold inquests, and, unless otherwise directed by any rule prescribed by

the State Government, or by any general or special order of the District or Sub-divisional

Magistrate, shall proceed to the place where the body of such deceased person is, and

there, in the presence of two or more respectable inhabitants of the neighbourhood, shall

make an investigation, and draw up a report of the apparent cause of death, describing

such wounds, fractures, bruises, and other marks of injury as may be found on the body,

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and stating in what manner, or by what weapon or instrument (if any); such marks

appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of

them as concur therein, and shall be forthwith forwarded to the District Magistrate or the

Sub-divisional Magistrate.

(3) When there is any doubt regarding the cause of death, or when for any other reason

the police officer considers it expedient so to do, he shall, subject to such rules as the

State Government may prescribe in this behalf, forward the body, with a view to its being

examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this

behalf by the State Government, if the state of the weather and the distance admit of its

being so forwarded without risk of such putrefaction on the road as would render such

examination useless.

(4) The following Magistrates are empowered to hold inquests, namely, any District

Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially

empowered in this behalf by the State Government or the District Magistrate.

175.Power to summon persons.- (1) A police officer proceeding under section 174 may,

by order in writing, summon two or more persons as aforesaid for the purpose of the

said investigation, and any other person who appears to be acquainted with the facts of

the case and every person so summoned shall be bound to attend and to answer truly

all questions other than questions the answers to which would have a tendency to

expose him to a criminal charge or to a penalty or forfeiture.

(2) If the facts do not disclose a cognizable offence to which section 170 applies, such

persons shall not be required by the police officer to attend a Magistrate's Court.

176.Inquiry by Magistrate into cause of death.- (1) When any person dies while in the

custody of the police, the nearest Magistrate empowered to hold inquests shall, and in

any other case mentioned in sub-section (1) of section 174, any Magistrate so

empowered may hold an inquiry into the cause of death either instead of, or in addition

to, the investigation held by the police officer; and if he does so, he shall have all the

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powers in conducting it which he would have in holding an inquiry into an offence.

(2) The Magistrate holding such an inquiry shall record the evidence taken by him in

connection therewith in any manner hereinafter prescribed according to the

circumstances of the case.

(3) Whenever such Magistrate considers it expedient to make an examination of the

dead body of any person who has been already interred, in order to discover the cause

of his death, the Magistrate may cause the body to be disinterested and examined.

(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever

practicable, inform the relatives of the deceased whose names and addresses are

known, and shall allow them to remain present at the inquiry.

Explanation.- In this section, the expression "relative" means parents, children, brothers,

sisters and spouse.

188.Offence committed outside India.- When an offence is committed outside India -

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India,

he may be dealt with in respect of such offence as if it had been committed at any place

within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter,

no such offence shall be inquired into or tried in India except with the previous sanction

of the Central Government.

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190.Cognizance of offences by Magistrates.- (1) Subject to the provisions of this

Chapter, any Magistrate of the first class, and any Magistrate of the second class

specially empowered in this behalf under sub-section (2), may take cognizance of any

offence –

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his

own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to

take cognizance under sub-section (1) of such offences as are within his competence to

inquire into or try.

192.Making over of cases to Magistrates.- (1) Any Chief Judicial Magistrate may, after

taking cognizance of an offence, make over the case for inquiry or trial to any competent

Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial

Magistrate may, after taking cognizance of an offence, make over the case for inquiry or

trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general

or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

241.Conviction on plea of guilty.- If the accused pleads guilty, the Magistrate shall record

the plea and may, in his discretion, convict him thereon.

242.Evidence for prosecution.- (1) If the accused refuses to plead or does not plead, or

claims to be tried or the Magistrate does not convict the accused under section 241, the

Magistrate shall fix a date for the examination of witnesses.

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(2) The Magistrate may, on the application of the prosecution, issue a summons to any

of its witnesses directing him to attend or to produce any document or other thing.

(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may

be produced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any witness to be

deferred until any other witness or witnesses have been examined or recall any witness

for further cross-examination.

243.Evidence for defence.- (1) The accused shall then be called upon to enter upon his

defence and produce his evidence; and if the accused puts in any written statement, the

Magistrate shall file it with the record.

(2) If the accused, after he has entered upon his defence, applies to the Magistrate to

issue any process for compelling the attendance of any witness for the purpose of

examination or cross-examination, or the production of any document or other thing, the

Magistrate shall issue such process unless he considers that such application should be

refused on the ground that it is made for the purpose of vexation or delay or for defeating

the ends of justice and such ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity of cross-

examining any witness before entering on his defence, the attendance of such witness

shall not be compelled under this section, unless the Magistrate is satisfied that it is

necessary for the ends of justice.

(3) The Magistrate may, before summoning any witness on an application under sub-

section (2), require that the reasonable incurred by the witness in attending for the

purposes of the trial be deposited in Court.

B.- Cases instituted otherwise than on police report

244.Evidence for prosecution.- (1) When, in any warrant-case instituted otherwise than

on a police report, the accused appears or is brought before a Magistrate, the Magistrate

shall proceed to hear the prosecution and take all such evidence as may be produced in

support of the prosecution.

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(2) The Magistrate may, on the application of the prosecution, issue a summons to any

of its witnesses directing him to attend or to produce any document or other thing.

245.When accused shall be discharged.- (1) If, upon taking all the evidence referred to

in section 244, the Magistrate considers, for reasons to be recorded, that no case

against the accused has been made out which, if unrebutted, would warrant his

conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the

accused at any previous stage of the case if, for reasons to be recorded by such

Magistrate, he considers the charge to be groundless.

246.Procedure where accused is not discharged.- (1) If, when such evidence has been

taken, or at any previous stage of the case, the Magistrate is of opinion that there is

ground for presuming that the accused has committed an offence triable under this

Chapter, which such Magistrate is competent to try and which, in his opinion, could be

adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked

whether he pleads guilty or has any defence to make.

(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his

discretion, convict him thereon.

(4) If the accused refuses to plead, or does not plead or claims to be tried or if the

accused is not convicted under sub-section (3), he shall be required to state, at the

commencement of the next hearing of the case, or, if the Magistrate for reasons to be

recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and,

if so, which, of the witnesses for the prosecution whose evidence has been taken.

(5) If he says he does so wish, the witnesses named by him shall be recalled and, after

cross-examination and re-examination (if any), they shall be discharged.

(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and

after cross-examination and re-examination (if any), they shall also be discharged.

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247.Evidence for defence.- The accused shall then be called upon to enter upon his

defence and produce his evidence; and the provisions of section 243 shall apply to the

case.

C.- Conclusion of trial

248.Acquittal or conviction.-(1) If, in any case under this Chapter in which a charge has

been framed, the Magistrate finds the accused not guilty, he shall record an order of

acquittal.

(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but

does not proceed in accordance with the provisions of section 325 or section 360, he

shall, after hearing the accused on the question of sentence, pass sentence upon him

according to law.

(3) Where, in any case under this Chapter, a previous conviction is charged under the

provisions of sub-section (7) of section 211 and the accused does not admit that he has

been previously convicted as alleged in the charge, the Magistrate may, after he has

convicted the said accused, take evidence in respect of the alleged previous conviction,

and shall record a finding thereon:

Provided that no such charge shall be read out by the Magistrate no shall the accused

be asked to plead thereto no shall the previous conviction be referred to by the

prosecution or in any evidence adduced by it, unless and until the accused has been

convicted under sub-section (2).

249.Absence of complainant.- When the proceedings have been instituted upon

complaint, and on any day fixed for the hearing of the case, the complainant is absent,

and the offence may be lawfully compounded or is not a cognizable offence, the

Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at

any time before the charge has been framed, discharge the accused.

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254.Procedure when not convicted.- (1) If the Magistrate does not convict the accused

under section 252 or section 253, the Magistrate shall proceed to hear the prosecution

and take all such evidence as may be produced in support of the prosecution, and also

to hear the accused and take all such evidence as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the

accused, issue a summons to any witness directing him to attend or to produce any

document or other thing.

(3) The Magistrate may, before summoning any witness on such application, require that

the reasonable expenses of the witness incurred in attending for the purposes of the trial

be deposited in Court.

268. Power of State Government to exclude certain persons from operation of

Section 267 -(1) The State Government may, at any time, having regard to the matter

specified in sub-section (2), by general or special order, direct that any person or class

of persons shall not be removed from the prison in which he or they may be confined or

detained, and thereupon, so long as the order remains in force, no order made under

Section 267, whether before or after the order of the State Government, shall have effect

in respect of such person or class of persons.

(2) Before making an order under sub-section (1), the State Government shall

have regard to the following matters, namely :--

(a) the nature of the offence for which, or the grounds on which, the

person or class of persons has been ordered to be confined or detained in

prison;

(b) the likelihood of the disturbance of public order if the person or class

of persons is allowed to be removed from the prison;

(c) the public interest, generally.

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273. Evidence to be taken in presence of accused:- Except as otherwise expressly

provided, all evidence taken in the course of the trial or other proceeding shall be taken

in the presence of the accused, or, when his personal attendance is dispensed with, in

presence of his pleader.

Explanation - In this Section, "accused" includes a person in relation to whom

any proceeding under Chapter VIII has been commenced under this Code.

274. Record in summons-cases and inquiries:-(1) In all summons-cases tried before

a Magistrate, in all inquiries under Sections 145 to 148 (both inclusive), and in all

proceedings under Section 446 otherwise than in the course of a trial, the Magistrate

shall, as the examination of each witness proceeds, make a memorandum of the

substance of his evidence in the language of the Court:

Provided that if the Magistrate is unable to make such memorandum himself, he

shall, after recording the reason of his inability, cause such memorandum to be

made in writing or from his dictation in open Court.

(2) Such memorandum shall be signed by the Magistrate and shall form part of

the record.

279. Interpretation of evidence to accused or his pleader :-(1) Whenever any

evidence is given in a language not understood by the accused, and he is present in

Court in person, it shall be interpreted to him in open Court in a language understood by

him.

(2) If he appears by pleader and the evidence is given in a language other than

the language of the Court, and not understood by the pleader, it shall be

interpreted to such pleader in that language.

(3) When documents are put for the purpose of formal proof, it shall be in the

discretion of the Court to interpret as much thereof as appears necessary.

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280. Remarks respecting demeanour of witness:-When a presiding Judge or

Magistrate has recorded the evidence of a witness, he shall also record such remarks (if

any) as he thinks material respecting the demeanour of such witness whilst under

examination.

281. Record of examination of accused :--(1) Whenever the accused is examined by

a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of

the examination of the accused in the language of the Court and such memorandum

shall be signed by the Magistrate and shall form part of the record.

(2) Whenever the accused is examined by any Magistrate other than a

Metropolitan Magistrate, or by a Court of Session, the whole of such

examination, including every question put to him and every answer given by him,

shall be recorded in full by the presiding Judge or Magistrate himself or where he

is unable to do so owing to a physical or other incapacity, under his direction and

superintendence by an officer of the Court appointed by him in this behalf.

(3) The record shall, if practicable, be in the language in which the accused is

examined, or if that is not practicable, in the language of the Court.

(4) The record shall be shown or read to the accused, or, if he does not

understand the language in which it is written, shall be interpreted to him in a

language which he understands, and he shall be at liberty to explain or add to his

answers.

(5) It shall thereafter be signed by the accused and by the Magistrate or presiding

Judge, who shall certify under his own hand that the examination was taken in

his presence and hearing and that the record contains a full and true account of

the statement made by the accused.

(6) Nothing in this section shall be deemed to apply to the examination of an

accused person in the course of a summary trial.

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282. Interpreter to be bound to interpret truthfully:- When the services of an

interpreter are required by any Criminal Court for the interpretation of any evidence or

statement, he shall be bound to state the true interpretation of such evidence or

statement.

303. Right of person against whom proceedings instituted to be defended :- Any

person accused of offence before a Criminal Court or against whom proceedings are

instituted under this Code, may of right be defended by a pleader of his choice.

309. Power to postpone or adjourn proceedings:- (1) 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 from day to day

until all the witnesses in attendance have been examined, unless the Court finds the

adjournment of the same beyond the following day to be necessary for reasons to be

recorded.

If the Court after taking cognizance of an offence, or commencement of trial,

finds it necessary or advisable to postpone the commencement of, or adjourn, any

inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn

the same on such terms as it thinks fit, for such time as it considers reasonable and may

by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under

this Section for a term exceeding fifteen days at a time :

Provided further that when witnesses are in attendance, no adjournment or

postponement shall be granted, without examining them, except for special reasons to

be recorded in writing.

Explanation 1:- If sufficient evidence has been obtained to raise a suspicion that

the accused may have committed an offence, and it appears likely that further

evidence may be obtained by a remand, this is a reasonable cause for a remand.

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Explanation 2 :- The terms on which an adjournment or postponement may be

granted include, in appropriate cases, the payment of costs by the prosecution or

the accused.

CODE OF CRIMINAL PROCEDURE, 1973

CHAPTER XXIV : GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS

310. Local Inspection:- (1) Any judge or Magistrate may, at any stage of any inquiry,

trial or other proceeding, after due notice to the parties, visit and inspect any place in

which an offence is alleged to have been committed, or any other place which it is in his

opinion necessary to view for the purpose of properly appreciating the evidence given at

such inquiry or trial, and shall without unnecessary delay record a memorandum of any

relevant facts observed at such inspection.

(2) Such memorandum shall form part of the record of the case and if the

prosecutor, complainant or accused or any other party to the case, so desires, a

copy of the memorandum shall be furnished to him free of cost.

311. Power to summon material witness, or examine Person Present:- Any Court

may, at any stage of any inquiry, trial or other proceeding under this Code, summon any

person as a witness, or examine any person in attendance, though not summoned, as a

witness, or recall and re-examine any person already examined ; and the Court shall

summon and examine or recall and re-examine any such person if his evidence appears

to it to be essential to the just decision of the case.

312. Expenses of complainants and witnesses:- Subject to any rules made by the

State Government, any Criminal Court may, if it thinks fit, order payment, on the part of

the Government, of the reasonable expenses of any complainant or witness attending

for the purposes of any inquiry trial or other proceeding before such Court under this

Code.

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314. Oral arguments and memorandum of arguments:- (1) Any party to a proceeding

may, as soon as may be, after the close of his evidence, address concise oral

arguments; and may, before he concludes the oral arguments, if any, submit a

memorandum to the Court setting forth concisely and under distinct headings, the

arguments in support of his case and every such memorandum shall form part of the

record.

(2) A copy of every such memorandum shall be simultaneously furnished to the

opposite party.

(3) No adjournment of the proceedings shall be granted for the purpose of filing

the written arguments unless the Court, for reasons to be recorded in writing,

considers it necessary to grant such adjournment.

(4) The Court may, if it is of opinion that the arguments are not concise or

relevant, regulate arguments.

315. Accused person to be competent witness:- (1) Any person accused of an

offence before a Criminal Court shall be a competent witness for the defence and may,

evidence on oath in disproof of the charges made against him or any person charged

together with him at the same trial :

Provided that-

(a) he shall not be called as a witness except on own request in writing :

(b) his failure to give evidence shall not be made subject of any comment

by any of the parties the Court or give rise to any presumption ago

himself or any person charged together with that the same trial.

(2) Any person against whom proceedings are instituted in any Criminal Court

under Section 98, or Section 107, Section 108, or Section 109, or Section 110, or

under Chapter IX or under Part B, Part C or Part D or Chapter X, may offer

himself as a witness in such proceedings:

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Provided that in proceedings under Section 108, Section 109, or Section 110, the

failure of such person to give evidence shall not be made the subject of any

comment by any of the parties or the Court or give rise to any presumption

against him or any other person proceeded against together with him at the same

inquiry.

321. Withdrawal from prosecution :- The Public Prosecutor or Assistant Public

Prosecutor in charge of a case may, with the consent of the Court, at any time before the

judgement is pronounced, withdraw from the prosecution of any person either generally

or in respect of any one or more of the offences for which he is tried ; and, upon such

withdrawal --

(a) if it is made before a charge has been framed, the accused shall be

discharged in respect of such offence or offences ;

(b) if it is made after a charge has been framed, or when under this Code

no charge is required, he shall be acquitted in respect of such offence or

offences:

Provided that where such offence

(i) was against any law relating to a matter to which the executive power of the Union

extends ; or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special

Police Establishment Act, 1946 (25 of 1946) ; or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging

to the Central Government ; or

(iv) was committed by a person in the service of the Central Government while acting or

purporting to act in the discharge of his official duty,

and the Prosecutor in charge of the case has not been appointed by the Central

Government, he shall not, unless he has been permitted by the Central Government to

do so, move the Court for its consent to withdraw from the prosecution and the Court

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shall, before according consent, direct the Prosecutor to produce before it the

permission granted by the Central Government to withdraw from the prosecution.

STATE AMENDMENT

Uttar Pradesh :- After the words "in charge of a case may" insert the

words "on the written permission of the State Government to that effect

(which shall be filed in Court)" U.P. Act 18 of 1991, w.e.f 16-2-1991.

327. Court to be open :- (1) The place in which any Criminal Court is held for the

purpose of inquiring into, or trying any offence shall be deemed to be an open Court, to

which the public generally may have access, so far as the same can conveniently

contain them :

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any

stage of any inquiry into, or trial of, any particular case, that the public generally,

or any particular person, shall not have access to, or be or remain in, the room or

building used by the Court.

(2) Notwithstanding anything contained in sub- section (1), the inquiry into and

trial of rape or an offence under Section 376, Section 376-A, Section 376-B,

Section 376-C or Section 376-D of the Indian Penal Code (45 of 1860) shall be

conducted in camera :

Provided that the presiding Judge may, if he thinks fit, or on an application made

by either of the parties, allow any particular person to have access to, or be or

remain in the room or building used by Court.

(3) Where any proceedings are held under sub- section (2), it shall not be lawful

for any person to print or publish any matter in relation to any such proceedings

except with the previous permission of the Court.

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336. Power of State Government to empower officer-in-charge to discharge :- The

State Government may empower the officer in charge of the jail in which a person is

confined under the provisions of Section 330 or Section 335 to discharge all or any of

the functions of the Inspector-General of Prisons under Section 337 or Section 338.

345. Procedure in certain cases of contempt:--(1) When any such offence as is

described in Section 175, Section 178, Section 179, Section 180, or Section 228 of the

Indian Penal Code (45 of 1860), is committed in the view or presence of any Civil,

Criminal, or Revenue Court, the Court may cause the offender to be detained in custody,

and may, at any time before the rising of the Court or the same day, take cognizance of

the offence and, after giving the offender a reasonable opportunity of showing cause

why he should not be punished under this section, sentence offender to fine not

exceeding two hundred rupees, and, in default of payment of fine, to simple

imprisonment for a term which may extend to one month, unless such fine be sooner

paid.

(2) In every such case the Court shall record the fact constituting the offence, with the statement (if any) made by the offender, as well as the finding and sentence.

(3) If the offence is under Section 228 of the Indian Penal Code (45 of 1860), the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or insult.

353. Judgement:- (1) The judgement in every trial in any Criminal Court or original

jurisdiction shall be pronounced in open Court by the presiding officer immediately after

the termination of the trial or at some subsequent time of which notice shall be given to

the parties or their pleaders:-

(a) by delivering the whole of the judgement; or

(b) by reading out the whole of the judgement; or

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(c) by reading out the operative part of the judgement and explaining the

substance of the judgement in a language which is understood by the

accused or his pleader.

(2) Where the judgement is delivered under clause (a) of sub-section (1), the

presiding officer shall cause it to be taken down in short-hand, sign the transcript

and every page thereof as soon as it is made ready, and write on it the date of

the delivery of the judgement in open Court.

(3) Where the judgement or the operative part thereof is read out under clause

(b) or clause (c) of sub-section (1) as the case may be, it shall be dated and

signed by the presiding officer in open Court, and if it is not written with his own

hand, every page of the judgement shall be signed by him.

(4) Where the judgement is pronounced in the manner specified in the clause (c)

of sub-section (1), the whole judgement or a copy thereof shall be immediately

made available for the perusal of the parties or their pleaders free of cost.

(5) If the accused is in custody, he shall be brought up to hear the judgement

pronounced.

(6) If the accused is not in custody, he shall be required by the Court to attend to

hear the judgement pronounced, except where his personal attendance during

the trial has been dispensed with and the sentence is one of fine only or he is

acquitted:

Provided that, where there are more accused than one, and one or more of them

do not attend the Court on the date on which judgement is to be pronounced, the

presiding officer may, in order to avoid undue delay in the disposal of the case,

pronounce the judgement notwithstanding their absence.

(7) No judgement delivered by any Criminal Court shall be deemed to be invalid

by reason only of the absence of any party or his pleader on the day or from the

place notified for the delivery thereof, or of any omission to serve, or defect in

serving, on the parties or their pleaders, or any of them, the notice of such day

and place.

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(8) Nothing in this section shall be construed to limit in any way the extent of the

provisions of Section 465.

354. Language and contents of judgement:- (1) Except as otherwise expressly

provided by this Code, every judgement referred to in Section 353,-

(a) shall be written in the language of the Court;

(b) shall contain the point or points for determination, the decision thereon

and the reasons for the decision;

(c) shall specify the offence (if any) of which, and the Section of the Indian

Penal Code (45 of 1860) or other law under which, the accused is

convicted, and the punishment to which he is sentenced.

(d) if it be a judgement of acquittal, shall state the offence of which the

accused is acquitted and direct that he be set at liberty.

(2) When the conviction is under the Indian Penal Code (45 of 1860) and it is

doubtful under which of two sections, or under which of two parts of the same

section, of that Code the offence falls, the Court shall distinctly express the

same, and pass judgement in the alternative.

(3) When the conviction is for an offence punishable with death or, in the

alternative, with imprisonment for life or imprisonment for a term of years, the

judgement shall state the reasons for the sentence awarded, and, in the case of

sentence of death, the special reasons for such sentence.

(4) When the conviction is for an offence punishable with imprisonment for a term

of one year or more, but the Court imposes a sentence of imprisonment for a

term of less than three months, it shall record its reasons for awarding such

sentence, unless the sentence is one of imprisonment till the rising of the Court

or unless the case was tried summarily under the provisions of this Code.

(5) When any person is sentenced to death, the sentence shall direct that he be

hanged by the neck till he is dead.

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(6) Every order under Section 117 or sub-section (2) of Section 138 and every

final order made under Section 125, Section 145 or Section 147 shall contain the

point or points for determination, the decision thereon and the reasons for the

decision.

362. Court not to alter judgement:- Save as otherwise provided by this Code or by any

other law for the time being in force, no Court, when it has signed its judgement or order

disposing of a case, shall alter or review the same except to correct a clerical or

arithmetical error.

363. Copy of judgement to be given to the accused and other persons:- (1) When

the accused is sentenced to imprisonment, a copy of the judgement shall, immediately

after the pronouncement of the judgement be given to him free of cost.

(2) On the application of the accused, a certified copy of the judgement, or when

he so desires, a translation in his own language if practicable or in the language

of the Court, shall be given to him without delay, and such copy shall, in every

case where the judgement is appealable by the accused, be given free of cost:

Provided that where a sentence of death is passed or confirmed by the High

Court, a certified copy of the judgement shall be immediately given to the

accused free of cost whether or not he applies for the same.

(3) The provisions of sub-section (2) shall apply in relation to an order under

Section 117 as they apply in relation to a judgement which is appealable by the

accused.

(4) When the accused is sentenced to death by any Court and an appeal lies

from such judgement as of right, the Court shall inform him of the period within

which, if he wishes to appeal, his appeal should be preferred.

(5) Save as otherwise provided in sub-section (2), any person affected by a

judgement or order passed by a Criminal Court shall, on an application made in

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this behalf and on payment of the prescribed charges, be given a copy of such

judgement or order or of any deposition or other part of the record:

Provided that the Court may, if it thinks fit for some special reasons, give it to him

free of cost.

(6) The High Court may, by rules, provide for the grant of copies of any

judgement or order of a Criminal Court to any person who is not affected by a

judgement or order, on payment, by such person, of such fees, and subject to

such conditions, as the High Court may, by such rules, provide.

STATE AMENDMENT

Karnataka :- Insert the following, after the proviso to sub-section (5),

"Provided further that the State shall, on an application made in this behalf by the

Prosecuting Officer, be given, free of cost, a certified copy of such judgement,

order deposition or record with the prescribed endorsement" - Karnataka Act 19

of 1985, w.e.f. 25-6-1985.

372. No appeal to lie unless otherwise provided:- No appeal shall lie from any

judgement or order of a Criminal Court except as provided for by this Code or by any law

for the time being in force.

382. Petition of appeal:- Every appeal shall be made in the form of a petition in writing

presented by the appellant or his pleader, and every such petition shall (unless the Court

to which it is presented otherwise directs) be accompanied by a copy of the judgement

or order appealed against.

STATE AMENDMENTS

Andaman, Nicobar Island and Lakshadweep Island:- (I) Section 382 renumbered as

sub-section (1), the following proviso shall be added to sub-section (1) so renumbered:-

"Provided that where it is not practicable to file the petition of appeal to the proper

Appellate Court, the petition of appeal may be presented to the Administrator or to an

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Executive Magistrate not below the rank of a sub-divisional Magistrate, who shall

forward the same to the proper Appellate Court; and, when any such appeal is

presented to the Administrator or to an Executive Magistrate, he shall record thereon the

date of its presentation and, if he is satisfied that, by reason of the weather, transport or

other difficulties, it is not possible for the appellant to obtain, from the proper Appellate

Court, orders for the suspension of the sentence or for bail, he may, in respect of such

appeal, or an appeal forwarded to him under Section 383 exercise all or any of the

powers of the proper Appellate Court under sub- section (1) of Section 389 with regard

to suspension of sentence or release of a convicted person on bail:

Provided further that the order so made by the Administrator or the Executive Magistrate

shall have effect until it is reversed or modified by the proper Appellate Court.

Explanation:-- For the purposes of the provisos to this Section and Section 383,

"Administrator" in relation to a Union Territory, means the Administrator appointed by the

President under Article 239 of the Constitution, for the Union Territory.

(i) After sub-section (1) so renumbered, the following sub-section (2) shall be inserted,

namely,--

(2) For the purposes of computation of the period of limitation, and for all other purposes,

an appeal presented to an Administrator or an Executive Magistrate under sub-section

(1) or, as the case may be, under section 383, shall be deemed to be an appeal

presented to the proper Appellate Court". Regulation 1 of 1974, w.e.f. 30-3-1974.

383. Procedure when appellant in jail:-- If the appellant is in jail, he may present his

petition of appeal and the copies accompanying the same to the officer in charge of the

jail, who shall thereupon forward such petition and copies to the proper Appellate Court.

STATE AMENDMENTS

Andaman, Nicobar Islands and Lakshadweep Islands:-

Insert the following words at the end:--

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"Or if, by reason of the weather, transport or other difficulties, it is not possible to forward

them to the proper Appellate Court, they shall be forwarded to the Administrator or an

Executive Magistrate, not below the rank of a Sub-Divisional Magistrate, who shall, on

receipt of such petition of appeal and copies, record thereon the date of receipt thereof

and thereafter forward the same to the proper Appellate Court". Regulation 1 of 1974,

w.e.f. 30-3-1974.

385. Procedure for hearing appeals not dismissed summarily :-(1) If the Appellate

Court does not dismiss the appeal summarily, it shall cause notice of the time and place

at which such appeal will be heard to be given:--

(i) to the appellant or his pleader;

(ii) to such officer as the State Government may appoint in this behalf;

(iii) if the appeal is from a judgement of conviction in a case instituted

upon complaint, to the complainant

(iv) if the appeal is under Section 377 or Section 378, to the accused,

and shall also furnish such officer, complainant and accused with a copy

of the grounds of appeal.

(2) The Appellate Court shall then send for the record of the case, if such record is not

already available in the Court, and hear the parties:

Provided that if the appeal is only as to the extent of the legality of the sentence, the

Court may dispose of the appeal without sending for the record.

(3) Where the only ground for appeal from a conviction is the alleged severity of the

sentence, the appellant shall not, except with the leave of the Court, urge or be heard in

support of any other ground.

386. Powers of the Appellate Court:- After perusing, such record and hearing the

appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and in

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case of an appeal under Section 377 or Section 378, the accused if he appears, the

Appellate Court may, if it considers that there is no sufficient ground for interfering,

dismiss the appeal, or may:--

(a) in an appeal from an order of acquittal, reverse such order and direct that further

inquiry be made, or

that the accused be re-tried or committed for trial, as the case may be, or find him guilty

and pass sentence on

him according to law.

(b) in an appeal from a conviction:--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to

be re-tried by a

Court of competent jurisdiction subordinate to such Appellate Court or committed for

trial, or

(ii) after the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and

extent, of the

sentence, but not so as to enhance the same--

(c) in an appeal for enhancement of sentence:--

(i) reverse the finding and sentence and acquit or discharge the accused or order him to

be re-tried

by a Court competent to try the offence, or

(ii) after the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or, the nature and

extent, of

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the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or

proper:

Provided that the sentence shall not be enhanced unless the accused has had an

opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the

offence which in its opinion the accused has committed, than might have been inflicted

for that offence by the Court passing the order or sentence under appeal.

395. Reference to High Court:--(1) Where any Court is satisfied that a case pending

before it involves a question as to the validity of any Act, Ordinance or Regulation or of

any provision contained in an Act, Ordinance or Regulation, the determination of which

is necessary for the disposal of the case, and is of opinion that such Act, Ordinance,

Regulation or provision is invalid or inoperative but has not been so declared by the High

Court to which that Court is Subordinate or by the Supreme Court, the Court shall state a

case setting out its opinion and the reasons therefor, and refer the same for the decision

of the High Court.

Explanation-- In this section, "Regulation" means any Regulation as defined in the

General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.

(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case

pending before it or him to which the provisions of sub-section (1) do not apply, refer for

the decision of the High Court any question of law arising in the hearing of such case.

(3) Any Court making a reference to the High Court under sub-section (1) or sub-section

(2) may, pending decision of the High Court thereon, either commit the accused to jail or

release him on bail to appear when called upon.

327

397. Calling for records to exercise powers of revision:-(1) The High Court or any

Sessions Judge may call for and examine the record of any proceeding before any

inferior Criminal Court situate within its or his local jurisdiction for the purpose of

satisfying itself or himself; to the correctness, legality or propriety of any finding,

sentence or order, recorded or passed, and as to the regularity of any proceedings of

such inferior Court, and may, when calling, for such record, direct that the execution of

any sentence or order be suspended, and if the accused is in confinement that he be

released on bail or on his own bond pending the examination of the record.

Explanation:- All Magistrates, whether Executive or Judicial and whether exercising

original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for

the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation

to any interlocutor order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High

Court or to the Sessions Judge, no further application by the same person shall be

entertained by the other of them.

398. Power to order inquiry:- On examining any record under Section 397 or

otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate

by himself or by any of the Magistrates subordinate to him to make, and the Chief

Judicial Magistrate may himself make, or direct any subordinate Magistrate to make,

further inquiry into any complaint which has been dismissed under Section 203 or sub-

section (4) of Section 204, or into the case of any person accused of an offence who has

been discharged:

Provided that no Court shall make any direction under this section for inquiry into the

case of any person who has been discharged unless such person has had an

opportunity of showing cause why such direction should not be made.

399. Sessions Judge's powers of revision : (1) In the case of any proceeding the

record of which has been called for by himself, the Sessions Judge may exercise all or

any of the powers which may be exercised by the High Court under sub-section (1) of

Section 401.

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(2) Where any proceeding by way of revision is commenced before a Sessions Judge

under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401

shall, so far as may be, apply to such proceeding and references in the said sub-

sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the

Sessions Judge, the decision of the Sessions Judge thereon in relation to such person

shall be final and no further proceeding by way of revision at the instance of such person

shall be entertained by the High Court or any other Court.

401. High Court's powers of revision:--(1) In the case of any proceeding the record of

which has been called for by itself or which otherwise comes to its knowledge the High

Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal

by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307, and, when

the Judges composing the Court of Revision are equally divided in opinion, the case

shall be disposed of in the manner provided Section 392.

(2) No order under this section shall be made to the prejudice of the accused or other

person unless he has had an opportunity of being heard either personally or by plead in

his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding

of acquittal into one conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by

way of revision shall be entertained at the instance of the party who could have,

appealed.

(5) Where under this Code an appeal lies but an application for revision has been made

to the High Court by any person and the High Court is satisfied that such application was

made under the erroneous belief that no appeal lies thereto and that it is necessary in

the interests of Justice so to do, the High Court may treat the application for revision as

a petition of appeal and deal with the same accordingly.

329

407. Power of High Court to transfer cases and appeals:-(1) Whenever it is made to

appear to the High Court:--

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal

Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that an order under this section is required by any provision of this

Code, or will tend to the general convenience of the parties or witnesses,

or is expedient for the ends of justice,

it may order --

(i) that any offence be inquired into or tried by any Court not qualified under Sections

177 to 185 (both

inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a

Criminal Court

subordinate to its authority to any other such Criminal Court of equal or superior

jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself

(2) The High Court may act either on the report of the lower Court, or on the application

of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one

Criminal Court to another Criminal Court in the same sessions division, unless an

application for such transfer has been made to the Session Judge and rejected by him.

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(3) Every application for an order under sub section (1) shall be made by motion, which

shall, excel when the applicant is the Advocate-General of the State, be supported by

affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him

to execute a bond, with or without sureties, for the payment of any compensation which

the High Court may award under sub-section (7)

(5) Every accused person making such application shall give to the Public Prosecutor

notice in writing of the application, together with a copy of the grounds on which it is

made, and no order shall be made on the merits of the applications unless at least

twenty-four hours have elapsed between the giving of such notice and the hearing of the

application.

(6) Where the application is for the transfer of a case or appeal from any Subordinate

Court, the High Court may if it is satisfied that it is necessary so to do in the interest of

Justice, order that, pending the disposal of the application the proceedings in the

Subordinate Court shall be stayed, on such terms as the High Court may think fit to

impose:

Provided that such stay shall not affect the Subordinate Court's power of remand under

Section 309.

(7) Where an application for an order under sub-section (1) is dismissed, the High Court

may, if it is of opinion that the application was frivolous or vexatious, order the applicant

to pay by way of compensation to any person who has opposed the application such

sum not exceeding one thousand rupees as it may consider proper in the circumstances

of the case.

(8) When the High Court orders under sub-section (1) that a case be transferred from

any Court for trial before itself, it shall observe in such trial the same procedure which

that Court would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of Government under

Section 197.

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411. Making over or withdrawal of cases by Executive Magistrates.- Any District

Magistrate or Sub- Divisional Magistrate may ---

(a) make over, for disposal, any proceeding which has been started before him, to any

Magistrate

subordinate to him;

(b) withdraw any case from, or recall any case which he has made over to, any

Magistrate subordinate to

him and dispose of such proceeding himself, or refer it for disposal to any other

Magistrate.

412. Reasons to be recorded:- A Sessions Judge or Magistrate making an order under

Section 408, Section 409, Section 410 or Section 411 shall record his reasons for

making it.

422. Effect of such warrant:- A warrant issued under Clause (a) of sub-section (1) of

Section 421 by any Court may be executed within the local jurisdiction of such Court,

and it shall authorise the attachment and sale of any such property outside such

jurisdiction, when it is endorsed by the District Magistrate within whose local jurisdiction

such property is found.

423. Warrant for levy of fine issued by a Court in any territory to which this Code

does not extend:- Notwithstanding anything contained in this Code or in any other law

for the time being in force, when an offender has been sentenced to pay a fine by a

Criminal Court in any territory to which this Code does not extend and the Court passing

the sentence issued a warrant to the Collector of a district in the territories to which this

Code extends, authorising him to realise the amount as if it were an arrears of land

revenue, such warrant shall be deemed to be a warrant issued under Clause (b) of sub-

section (1) of Section 421 by a Court in the territories to which this Code extends, and

332

the provisions of sub-section (3) of the said section as to the execution of such warrant

shall apply accordingly.

436. In what cases bail to be taken:---(1) 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, and is prepared at

any time while in the custody of such officer or at any stage of the proceeding before

such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from

such person, discharge him on his executing a bond without sureties for his appearance

as hereinafter provided:-

Provided further that nothing in this section shall be deemed to affect the provisions of

sub-section (3) of Section 116 or Section 446A.

(2) Notwithstanding anything contained in sub-section (1), where a person has failed to

comply with the conditions of the bail bond as regards the time and place of attendance,

the Court may refuse to release him on bail, when on a subsequent occasion in the

same case he appears before the Court or is brought in custody and any such refusal

shall be without prejudice to the powers of the Court to call upon any person bound by

such bond to pay the penalty thereof under Section 446.

STATE AMENDMENTS

Uttar Pradesh:-- In sub-section, in first proviso for the word "discharge" the word

"release" shall be substituted � I.P Act 1 of 1984 w.e.f. 1-5-1984.

440. Amount of bond and reduction thereof: - (1) The amount of every bond executed

under this chapter shall be fixed with due regard to the circumstances of the case, and

shall not be excessive.

(2) The High Court or the Court of Sessions may direct that the bail required by a police

officer or Magistrate be reduced.

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441. Bond of accused and sureties:-(1) Before any person is released on bail or

released on his own bond, a bond for such sum of money as the police officer or Court,

as the case may be, thinks sufficient shall be executed by such person, and, when he is

released on bail, by one or more sufficient sureties conditioned that such person shall

attend at the time and place mentioned in the bond, and shall continue so to attend until

otherwise directed by the police officer or Court, as the case may be.

(2) Where any condition is imposed for the release of any person on bail, the bond shall

also contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail to appear

when called upon at the High Court, Court of Sessions or other Court to answer the

charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the Court

may accept affidavits in proof of the facts contained therein relating to the sufficiency or

fitness of the sureties, or, if it considers necessary, may either hold an enquiry itself or

cause an inquiry to be made by a Magistrate subordinate to the Court, as to such

sufficiency or fitness.

442. Discharge from custody: (1) As soon as the bond has been executed, the person

for whose appearance it has been executed shall be released; and when he is in jail, the

court admitting him to bail shall issue an order of release to the officer in charge of the

jail, and such officer on receipt of the orders shall release him.

(2) Nothing in this section, Section 436 or Section 437, shall be deemed to require the

release of any person liable to be detained for some matter other than that in respect of

which the bond was executed.

444. Discharge of sureties:-(1) All or any sureties for the attendance and appearance

of a person released on bail may at any time apply to a Magistrate to discharge the

bond, either wholly or so far as relates to the applicants.

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(2) On such application being made the Magistrate shall issue his warrant of arrest

directing that the person so released be brought before him.

(3) On the appearance of such person pursuant to the warrant, or on his voluntary

surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as

relates to the applicants, and shall call upon such person to find other sufficient sureties,

and, if he fails to do so, may commit him to jail.

445. Deposit instead of recognisance:- When any person is required by any Court or

officer to execute a bond with or without sureties, such Court or officer may, except in

the case of a bond for good behaviour, permit him to deposit a sum of money or

Government promissory note to such amount as the Court or officer may fix, in lieu of

executing such bond.

446. Procedure when bond has been forfeited:-(1) Where a bond under this Code is

for appearance, or for production of property, before a Court and it is proved to the

satisfaction of that Court, or of any Court to which the case has subsequently been

transferred, that the bond has been forfeited,

or where, in respect of any other bond under this Code, it is proved to the satisfaction of

the Court by which the bond was taken or of any Court to which the case has

subsequently been transferred, or of the Court of any Magistrate of the first class, that

the bond has been forfeited,

the Court shall record the grounds of such proof, and may call upon any person bound

by such bond to pay the penalty thereof, or to show cause why it should not be paid.

Explanation:- A condition in a bond for appearance, or for production of property, before

a Court shall be construed as including a condition for appearance, or as the case may

be, for production of property, before any Court to which the case may subsequently be

transferred.

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(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to

recover the same as if such penalty were a fine imposed by it under this Code:

Provided that where such penalty is not paid and cannot be recovered in the manner

aforesaid, the person so bound as Surety shall be liable, by order of the Court ordering

the recovery of the penalty, to imprisonment in civil jail for a term which may extend to

six months.

(3) The Court may, as its discretion, remit any portion of the penalty mentioned and

enforce payment in part only.

(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be

discharged from all liability in respect of the bond.

(5) Where any person who has furnished security under section 106 or section 117 or

section 360 is convicted of an offence the commission of which constitutes a breach of

the conditions of his bond, or of a bond executed in lieu of his bond under Section 448, a

certified copy of the judgement of the Court by which he was convicted of such offence

may be used as evidence in proceedings under this section against his surety or

sureties, and, if such certified copy is so used, the Court shall presume that such offence

was committed by him unless the contrary is proved.

446A. Cancellation of bond and bail bond: Without prejudice to the provisions of

Section 446, where a bond under this Code is for appearance of a person in a case and

it is forfeited for breach of a condition,-

(a) the bond executed by such person as well as the bond, if any, executed by one or

more of his

sureties in that case shall stand cancelled; and

(b) thereafter no such person shall be released only on his own bond in that case, if the

Police Officer

or the Court, as the case may be, for appearance before whom the bond was executed,

is, satisfied that

336

there was no sufficient cause for the failure of the person bound by the bond to comply

with its

condition:

Provided that subject to any other provisions of this code he may be released in that

case upon the execution of a fresh personal bond for such sum of money and bond by

one or more of such sureties as the Police Officer or the Court, as the case may be,

thinks sufficient.

447. Procedure in case of insolvency of death of surety or when a bond is

forfeited:- When any surety to a bond under this Code becomes insolvent or dies, or

when any bond is forfeited under the provisions of Section 446, the Court by whose

order such bond was taken, or Magistrate of the first class, may order the person from

whom such security was demanded to furnish fresh securities in accordance with the

directions of the original order, and, if such security is not furnished, such Court or

Magistrate may proceed as if there had been a default in complying with such original

Order.

448. Bond required from minor:- When the person required by any Court, or officer to

execute a bond is a minor, such Court or officer may accept, in lieu thereof, bond

executed by a surety or sureties only.

478. Power to alter functions allocated to Executive Magistrate in certain cases:- If

the Legislative Assembly of a State by a resolution so permits, the State Government

may, after consultation with the High Court, by notification, direct that references in

Sections 108, 109, 110, 145 and 147 to an Executive Magistrate shall be construed as

references to a Judicial Magistrate of the first class.

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STATE AMENDMENTS

Andaman and Nicobar Islands ; Dadra and Nagar Haveli, Lakshadweep Islands :-

In Section 478, the words "if the State Legislature by a resolution so requires" shall be

omitted Regn. 1 of 1974, w.e.f. 30-3-1974.

Maharashtra - For the words "to an Executive Magistrate shall be construed", substitute

the words "to an Executive Magistrate in the areas of the State outside Greater Bombay

shall be construed", Maharashtra Act 1 of 1978, w.e.f. 15-4-1978.

479. Case in which Judge or Magistrate is personally interested:- No Judge or

Magistrate shall, except with permission of the Court to which an appeal lies from Court,

try or commit for trial any case to or in which he is a party, or personally interested, and

no Judge or Magistrate shall hear an appeal from any judgement or order passed or

made by himself.

Explanation:- A Judge or Magistrate shall not be deemed to be a party to, or personally

interested in, any case by reason only that he is concerned therein in a public capacity,

or by reason only that he has viewed the place in which an offence is alleged to have

been committed, or other place in which any other transaction material to the case is

alleged to have occurred, and made an inquiry in connection with the case.

000

338

APPENDIX – VI

THE PROVISIONS RELATING TO INDIAN PENAL CODE – WHICH ARE FOUND IN

CHAPTER XIII

INDIAN PENAL CODE

CHAPTER X

CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC SERVANTS

172. Absconding to avoid service of summons or other proceeding –

Whoever absconds in order to avoid being served with a summons, notice or

order proceeding from any public servant legally competent, as such public servant, to

issue such summons, notice or order, shall be punished with simple imprisonment for a

term which may extend to one month, or with fine which may extend to five hundred

rupees, or with both;

or, if the summons or notice or order is to attend in person or by agent, or to 1[produce a

document or an electronic record in a Court of Justisce], with simple imprisonment for a

term which may extend to six month, or with fine which may extend to five hundred

rupees, or with both;

1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for "produce a document in a Court of

Justice"

173. Preventing service of summons or other proceeding, or preventing

publication thereof –

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Whoever in any manner intentionally prevents the serving on himself, or on any

other person, of any summons, notice or order proceeding from any public

servant legally competent, such public servant, to issue such summons, notice

or order,

or intentionally prevents the lawful affixing to any place of any such summons,

notice or order,

or intentionally removes any such summons, notice or order from any place to

which it is lawfully affixed,

or intentionally prevents the lawful making of any proclamation, under the

authority of any public servant legally competent, as such public servant, to

direct such proclamation to be made,

shall be punished with simple imprisonment for a term which may extend to

one month, or with fine which may extend to five hundred rupees, or with both;

or, if the summons, notice, order or proclamation is to attend in person or by

agent, or to produce a document in a Court of Justice, with simple imprisonment

for a term which may extend to six months, or with fine which may extend to one

thousand rupees, or with both.

Non-attendance in obedience to an order from public servant:-

174. Non-attendance in obedience to an order from public servant –

Whoever, being legally bound to attend in person or by an agent at a certain

place and time in obedience to a summons, notice, order, or proclamation

proceeding from any public servant legally competent, as such public servant,

to issue the same, intentionally omits to attend at that place or time, or departs

from the place where he is bound to attend before the time at which it is lawful for

him to depart, shall be punished with simple imprisonment for a term which may

extend to one month, or with fine which may extend to five hundred rupees, or

with both; or, if the summons, notice, order or proclamation is to attend in person

or by agent in a Court of Justice, with simple imprisonment for a term which may

extend to six months, or with fine which may extend to one thousand rupees, or

with both.

Illustrations

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(a) A, being legally bound to appear before the 1*[High Court] at Calcutta, in

obedience to a subpoena issuing from that Court, intentionally omits to

appear. A has committed the offence defined in this section.

(b) A, being legally bound to appear before a 2*[District Judge], as a

witness, in obedience to a summons issued by that 2*[District Judge]

intentionally omits to appear. A has committed the offence defined in this

section.

175. Omission to produce document to public servant by person legally bound

to produce it –

Whoever, being legally bound to produce or deliver up any document to any

public servant, as such, intentionally omits so to produce or deliver up the same,

shall be punished with simple imprisonment for a term which may extend to one

month, or with fine which may extend to five hundred rupees, or with both;

or, if the document is to be produced or delivered up to a Court of Justice,

with simple imprisonment for a term which may extend to six months, or with

fine which may extend to one thousand rupees, or with both.

-------------------------------------------------------------------------------------------------------------

1. Subs. by the A.O. 1950, for "Supreme Court".

2. Subs. ibid., for "Zila Judge

Illustration

A, being legally bound to produce a document before a 1*[District court],

intentionally omits to produce the same. A has committed the offence defined

in this section.

176. Omission to give notice or information to public servant by person legally

bound to give it –

Whoever, being legally bound to give any notice or to furnish information on any

subject to any public servant, as such, intentionally omits to give such notice

341

or to furnish such information in the manner and at the time required by law,

shall be punished with simple imprisonment for a term which may extend to one

month, or with fine which may extend to five hundred rupees, or with both;

or, if the notice or information required to be given respects the commission of

an offence, or is required for the purpose of preventing the commission of an

offence, or in order to the apprehension of an offender, with simple imprisonment

for a term which may extend to six months, or with fine which may extend to

one thousand rupees, or with both;

2*[or, if the notice or information required to be given is required by an order

passed under sub-section (1) of section 565 of the Code of Criminal Procedure,

1898 (5 of 1898), with imprisonment of either description for a term which may

extend to six months, or with fine which may extend to one thousand rupees, or

with both.]

Furnishing false information:-

177. Furnishing false information –

Whoever, being legally bound to furnish information on any subject to any public

servant, as such, furnishes, as true, information on the subject which he knows

or has reason to believe to be false shall be punished with simple imprisonment

for a term which may extend to six months, or with fine which may extend to one

thousand rupees, or with both;

or, if the information which he is legally bound to give respects the commission of

an offence, or is required for the purpose of preventing the commission of an

offence, or in order to the apprehension of an offender, with imprisonment of

either description for a term which may extend to two years, or with fine, or with

both.

Illustrations

(a) A, a landholder, knowing of the commission of a murder within the limits

of his estate, willfully misinforms the Magistrate of the district that the

death has occurred by accident in consequence of the bite of a snake. A

is guilty of the offence defined in this section.

(b) A, a village watchman, knowing that a considerable body of strangers

has passed through his village in order to commit a dacoity in the house

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of Z, a wealthy merchant residing in a neighboring place, and being

bound under clause 5, section VII, 3*Regulation III, 1821, of the Bengal

Code, to give early and punctual information of the above fact to the

officer of the nearest police station, willfully misinforms the police officer

that a body of suspicious characters passed through the village with a

view to commit dacoity in a certain distant place in a different direction.

Here A is guilty of the offence defined in the latter part of this section.

1. Subs. by the A.O. 1950, for "Zila Court".

2. Ins. by Act 22 of 1939, s. 2.

3. Rep. by Act 17 of 1862.

1*[Explanation.-In section 176 and in this section the word "offence" includes any act

committed at any place out of 2*[India], which, if committed in 2*[India],

would be punishable under any of the following sections, namely, 302,

304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449,

450, 457, 458, 459 and 460; and the word "offender" includes any person

who is alleged to have been guilty of any such act.]

178. Refusing oath or affirmation when duly required by public servant to make

it –

Whoever refuses to bind himself by an oath 3*[or affirmation] to state the truth,

when required so to bind himself by a public servant legally competent to require

that he shall so bind himself, shall be punished with simple imprisonment for a

term which may extend to six months, or with fine which may extend to one

thousand rupees, or with both.

179. Refusing to answer public servant authorized to question –

Whoever, being legally bound to state the truth on any subject to any public

servant, refuses to answer any question demanded of him touching that subject

by such public servant in the exercise of the legal powers of such public servant,

shall be punished with simple imprisonment for a term which may extend to six

months, or with fine which may extend to one thousand rupees, or with both.

343

Refusing to sign statement:-

180. Refusing to sign statement –

Whoever refuses to sign any statement made by him, when required to sign that

statement by a public servant legally competent to require that he shall sign that

statement, shall be punished with simple imprisonment for a term which may

extend to three months, or with fine which may extend to five hundred rupees, or

with both.

181. False statement on oath or affirmation to public servant or person

authorized to administer an oath or affirmation –

Whoever, being legally bound by an oath 3*[or affirmation] to state the truth on

any subject to any public servant or other person authorized by law to administer

such oath 3*[or affirmation], makes, to such public servant or other person as

aforesaid, touching that subject, any statement which is false, and which he

either knows or believes to be false or does not believe to be true, shall be

punished with imprisonment of either description for a term which may extend

to three years, and shall also be liable to fine.

182. False information, with intent to cause public servant to use his lawful

power to the injury of another person –

Whoever gives to any public servant any information which he knows or believes

to be false, intending thereby to cause, or knowing it to be likely that he will

thereby cause such public servant –

(a) to do or omit anything which such public servant ought not to do or omit if

the true state of facts respecting which such information is given were

known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance

of any person, shall be punished with imprisonment of either description

for a term which may extend to six months, or with fine which may

extend to one thousand rupees, or with both.

344

Illustrations

(a) A informs a Magistrate that Z, a police-officer, subordinate to such

Magistrate, has been guilty of neglect of duty or misconduct, knowing

such information to be false, and knowing it to be likely that the

information will cause the Magistrate to dismiss Z. A has committed the

offence defined in this section.

(b) A falsely informs a public servant that Z has contraband salt in a secret

place, knowing such information to be false, and knowing that it is likely

that the consequence of the information will be a search of Z's

premises, attended with annoyance to Z. A has committed the offence

defined in this section.

(c) A falsely informs a policeman that he has been assaulted and robbed in

the neighborhood of a particular village. He does not mention the name of any person

as one of his assailants, but knows it to be likely that in consequence of this information

the police will make enquiries and institute searches in the village to the annoyance of

the villagers or some of them. A has committed an offence under this section.]

Resistance to the taking of property by the lawful authority of a

public servant:-

183. Resistance to the taking of property by the lawful authority of a public

servant –

Whoever offers any resistance to the taking of any property by the lawful

authority of any public servant, knowing or having reason to believe that he is

such public servant, shall be punished with imprisonment of either description

for a term which may extend to six months, or with fine which may extend to

one thousand rupees, or with both.

184. Obstructing sale of property offered for sale by authority of public servant

–

Whoever intentionally obstructs any sale of property offered for sale by the

lawful authority of any public servant, as such, shall be punished with

345

imprisonment of either description for a term which may extend to one month, or

with fine which may extend to five hundred rupees, or with both.

185. Illegal purchase or bid for property offered for sale by authority of public

servant –

Whoever, at any sale of property held by the lawful authority of a public servant,

as such, purchases or bids for any property on account of any person, whether himself

or any other, whom he knows to be under a legal incapacity to purchase that property at

that sale, or bids for such property not intending to perform the obligations under

which he lays himself by such bidding, shall be punished with imprisonment of either

description for a term which may extend to one month, or with fine which may extend

to two hundred rupees, or with both.

Disobedience to order duly promulgated by public servant:-

188. Disobedience to order duly promulgated by public servant –

Whoever, knowing that, by an order promulgated by a public servant lawfully

empowered to promulgate such order, he is directed to abstain from a certain

act, or to take certain order with certain property in his possession or under his

management disobeys such direction, shall, if such disobedience causes or

tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance

or injury, to any persons lawfully employed, be punished with simple

imprisonment for a term which may extend to one month or with fine which may

extend to two hundred rupees, or with both:

and if such disobedience causes or tends to cause danger to human life, health

or safety, or causes or tends to cause a riot or affray, shall be punished with

imprisonment of either description for a term which may extend to six months,

or with fine which may extend to one thousand rupees, or with both.

Explanation – It is not necessary that the offender should intend to produce

harm, or contemplate his disobedience as likely to produce harm. It is sufficient

that he knows of the order which he disobeys, and that his disobedience

produces, or is likely to produce, harm.

Illustration

346

An order is promulgated by a public servant lawfully empowered to promulgated

such order, directing that a religious procession shall not pass down a certain

street. A knowingly disobeys the order, and thereby causes danger of riot. A

has committed the offence defined in this section.

Punishment for false evidence –

Whoever intentionally gives false evidence in any of a judicial proceeding, or

fabricates false evidence for the purpose of being used in any stage of a judicial

proceeding, shall be punished with imprisonment of either description for a term

which may extend to seven years, and shall also be liable to fine; and whoever

intentionally gives or fabricates false evidence in any other case, shall be

punished with imprisonment of either description for a term which may extend to

three years, and shall also be liable to fine.

Explanation 1.- A trial before a Court-martial 1****is a judicial proceeding.

Explanation 2.- An investigation directed by law preliminary to a proceeding

before a Court of Justice, is a stage of a judicial proceeding, though that

investigation may not take place before a Court of Justice.

Illustration

A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z

ought to be committed for trial, makes on oath a statement which he knows to be

false. As this enquiry is a stage of a judicial proceeding, A as given false

evidence.

Explanation 3.-An investigation directed by a Court of Justice according to law,

and conducted under the authority of a Court of Justice, is a stage of a judicial

proceeding, though that investigation may not take place before a Court of

Justice.

Illustration

A, in an enquiry before an officer deputed by a Court of Justice to ascertain on

the spot the boundaries of land, makes on oath a statement which he knows

to be false. As this enquiry is a stage of a judicial proceeding, A has given false

evidence.

347

194. Giving or fabricating false evidence with intent to procure conviction of

capital offence –

Whoever gives or fabricates false evidence, intending thereby to cause, or

knowing it to be likely that he will thereby cause, any person to be convicted of

an offence which is capital 2*[by the laws for the time being in force in 3*[India]]

shall be punished with 4*[imprisonment for life], or with rigorous imprisonment

for a term which may extend to ten years, and shall also be liable to fine;

If innocent person be thereby convicted and executed.

If innocent person be thereby conviceted and executed.--and if an innocent

person be convicted and executed in consequence of such false evidence, the

person who gives such false evidence shall be punished either with death or the

punishment hereinbefore described.

195. Giving or fabricating false evidence with intent to procure conviction of

offence punishable with imprisonment for life or imprisonment –

Whoever gives or fabricates false evidence intending thereby to cause, or

knowing it to be likely that he will thereby cause, any person to be convicted of

an offence which 2*[by the law for the time being in force in 3*[India]] is not

capital, but punishable with 4*[imprisonment for life], or imprisonment for a term

of seven years or upwards, shall be punished as a person convicted of that

offence would be liable to be punished.

Illustration

A gives false evidence before a Court of Justice, intending thereby to cause

Z to be convicted of a dacoity. The punishment of dacoity is 4*[imprisonment

for life], or rigorous imprisonment for a term which may extend to ten years,

with or without fine. A, therefore, is liable to 5*[imprisonment for life] or

imprisonment, with or without fine.

Using evidence known to be false:-

196. Using evidence known to be false – Whoever corruptly uses or attempts to use

as true or genuine evidence any evidence which he knows to be false or

348

fabricated, shall be punished in the same manner as if he gave or fabricated

false evidence.

1. The words "or before a Military Court of Request" were omitted by the Cantonments

Act, 1889 (13 of 1889).

2. Subs. by the A.O. 1948, for "by the law of British India or England".

3. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".

4. Subs. by Act 26 of 1955, s. 117 and Sch., for "transportation for life".

5. Subs. by s. 117 and Sch., ibid., for "such transportation".

199. False statement made in declaration which is by law receivable as evidence

–

Whoever, in any declaration made or subscribed by him, which declaration any

Court of Justice, or any public servant or other person, is bound or authorized

by law to receive as evidence of any fact, makes any statement which is false,

and which he either knows or believes to be false or does not believe to be true,

touching any point material to the object for which the declaration is made or

used, shall be punished in the same manner as if he gave false evidence.

200. Using as true such declaration knowing it to be false –

Whoever corruptly uses or attempts to use as true any such declaration,

knowing the same to be false in any material point, shall be punished in the same

manner as if he gave false evidence.

Explanation - A declaration which is inadmissible merely upon the ground of

some informality, is a declaration within the meaning of sections 199 and 200.

349

Section 205.

False personation for purpose of act or proceeding in suit or prosecution

Whoever falsely personates another, and in such assumed character makes any

admission or statement, or confesses judgment, or causes any process to be issued or

becomes bail or security, or does any other act in any suit or criminal prosecution, shall

be punished with imprisonment of either description for a term which may extend to

three years or with fine, or with both.

Section 206. Fraudulent removal or concealment of property to prevent its seizure

as forfeited or in execution

Whoever fraudulently removes, conceals, transfers or delivers to any person any

property or any interest therein, intending thereby to prevent that property or interest

therein from being taken as a forfeiture or in satisfaction of a fine, under a sentence

which has been pronounced, or which he knows to be likely to be pronounced, by a

Court of Justice or other competent authority, or from being taken in execution of a

decree or order which has been made, or which he knows to be likely to be made by a

Court of Justice in a civil suit, shall be punished with imprisonment of either description

for a term which may extend to two years, or with fine, or with both.

Section 207. Fraudulent claim to property to prevent its seizure as forfeited or in

execution

Whoever fraudulently accepts, receives or claims any property or any interest therein,

knowing that he has no right or rightful claim to such property or interest, or practices

any deception touching any right to any property or any interest therein, intending

thereby to prevent that property or interest therein from being taken as a forfeiture or a

satisfaction of a fine, under a sentence which has been pronounced, or which he knows

to be likely to be pronounced by a Court of Justice or other competent authority, or from

being taken in execution of a decree or order which has been made or which knows to

be likely to be made by a Court of Justice in a civil suit, shall be punished with

350

imprisonment of either description for a term which may extend to two years, or with fine,

or with both.

Section 208. Fraudulently suffering decree for sum not due

Whoever fraudulently causes or suffer a decree or order to be passed against him at the

suit of any person for a sum not due or for a larger sum that is due to such person or for

any property or interest or property to which such person is not entitled, or fraudulently

causes or suffers a decree order to be executed against him after it has been satisfied,

or for anything in respect of which it has been satisfied, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine,

or with both.

Illustration

A institutes a suit against Z. Z knowing that A is likely to obtain a decree against him,

fraudulently suffers a judgment to pass against him for a larger amount at the suit of B,

who has no just claim against him, in order that B, either on his own account or for the

benefit of Z, may share in the proceeds of any sale of Z's property which may be made

under A's decree. Z has committed an office under this section

Section 209. Dishonestly making false claim in Court

Whoever fraudulently or dishonestly, or with intent to injure or any person, makes in a

Court of Justice any claim which he knows to be false, shall be punished with

imprisonment of either description for a term which may extend to two years, and shall

also be liable to fine.

Section 210. Fraudulently obtaining decree for sum not due

Whoever fraudulently obtains a decree or order against any person for a sum not due or

for a larger sum than is due, or for any property or interest in property to which he is not

entitled, or fraudulently causes a decree or order to be executed against any person

351

after it has been satisfied or for anything in respect of which it has been satisfied, or

fraudulently suffers or permits any such act to be done in his name, shall be punished

with imprisonment of either description for a term which may extend to two years, or with

fine, or with both.

Section 211. False charge of offence made with intent to injure

whoever, with intent to cause injury to any person, institutes or causes to be instituted

any criminal proceeding against that person, or falsely charges any person with having

committed an offence, knowing that there is no just or lawful ground for such proceeding

or charge against that person, shall be punished with imprisonment of either description

for a term which may extend to two years, or with fine, or with both;

And if such criminal proceeding be instituted on a false charge of an offence punishable

with death 1[imprisonment for life], or imprisonment for seven years or upwards, shall be

punishable with imprisonment of either description for a term which may extend to seven

years, and shall also be liable to fine..

000

352

APPENDIX – VII

THE PROVISIONS RELATING TO INDIAN EVIDENCE ACT – WHICH ARE FOUND IN

CHAPTER XIV AND XV

9. Facts necessary to explain or introduce relevant facts - Facts necessary to

explain or introduce a fact in issue or relevant fact, or which support or rebut an

inference suggested by a fact in issue or relevant fact, or which establish the identity of

any thing or person whose identity is relevant, or fix the time or place at which any fact in

issue or relevant fact happened, or which show the relation of parties by whom any such

fact was transacted, are relevant in so far as they are necessary for that purpose.

Illustrations

1. A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded from his house, is

relevant under section 8, as a conduct subsequent to and affected by facts in issue.

The fact that, at the time when he left home he had sudden and urgent business at the

place to which he went is relevant, as tending to explain the fact that he left home

suddenly.

The details of the business on which he left are not relevant except in so far as they are

necessary to show that the business was sudden and urgent.

2. A is tried for a riot and is proved to have marched at the head of a mob. The cries of

the mob are relevant as explanatory of the nature of the transaction.

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32. Case in which statement of relevant fact by person who is dead or cannot be

found, etc. is relevant - Statements, written or verbal, of relevant facts made by a

person who is dead, or who cannot be found, or who has become incapable of giving

evidence, or whose attendance cannot be procured without an amount of delay or

expense which, under the circumstances of the case, appears to the Court

unreasonable, are themselves relevant facts in the following cases -

(1) When it relates to cause of death - When the statement is made by a person as to

the cause of his death, or as to any of the circumstances of the transaction which

resulted in his death, in cases in which the cause of that person's death comes into

question.

Such statements are relevant whether the person who made them was or was not, at the

time when they were made, under expectation of death, and whatever may be the nature

of the proceeding in which the cause of his death comes into question.

Illustrations (a) The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished.

The question is, whether she was ravished by B; or

The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow.

Statement made by A as to the cause of his or her death referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.

(a) The question is, as to the date of A's birth.

An entry in the dairy of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact.

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APPENDIX – VIII

THE PROVISIONS RELATING TO CONTEMPT OF COURTS ACT, 1971 – WHICH ARE FOUND IN CHAPTER XVII

2. Definitions - In this Act, unless the context otherwise requires -

(a) "Contempt of court" means civil contempt or criminal contempt"

(b) "Civil contempt" means willful disobedience to any judgement, decree, direction,

order, writ or other process of a court or willful breach of an undertaking given to a court.

(c) "Criminal contempt" means the publication (whether by words, spoken or written, or

by signs, or by visible representation, or otherwise) of any matter or the doing of any

other act whatsoever which-

(d) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any

court, or

(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial

proceeding , or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the

administration of justice in any other manner.

(a) "High Court" means the High Court for a State or a Union territory and includes the

court of the Judicial Commissioner in any Union territory.

COMMENTS

(i) There are three different sorts of contempt viz., scandalizing the court, abusing parties

who are concerned in causes here and prejudicing mankind against persons before the

case is bear; In re: St. James Evening Post, (1974) 2 ATK 469

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(ii) Courts seek to punish acts or conduct calculated to interference with the

administration of justice; In re: P.C. Sen, AIR 1970 SC 1821.

(iii) Comment on pending case or abuse of a party may amount to contempt when the

case is tribal by a judge: Subhash Chand v.S.M. Aggarwal, 1984 Crl LJ 481 (De.).

(iv) Judges by reason of their office are precluded from entering into any controversy in

columns of the public press; The State v.Vikar Ahmed, AIR 1954 Hyd 175.

(v) There is no special principle attached to the Press to comment, criticize or investigate

the facts of any case of the prejudice of the trial of thecase; Sukhdev Singh v.Teja Singh,

AIR 1954 SC 186.

(vi) No editor has a right to assume the role of investigator to try to prejudice the court

against any person; The District Magistrate v.M.A. Hamid Ali gardish, AIR 1940 Oudh

137.

(vii) It is time to stem institutionalized procrastination, K.V.Venkatesh v. Taluka Executive

Magistrate, AIR 1990 Kant 86.

(viii) "The law relating to contempt of court is well settled. Any act done or writing

published which is calculated to bring a court or a Judge into contempt, or to lower his

authority, or to interfere with the due course of justice or the lawful process of the court,

is a contempt of court; Q.R. v. Gray, 1900 (2) QBD 36 (40)

(ix) contempt by speech or writing may be by scandalizing the court itself, or by abusing

parties to actions, or by prejudicing mankind in favour of or against a party before the

cause is heard. It is incumbent upon courts of justice to preserve their proceedings from

being misrepresented, for prejudicing the mind of the people against persons concerned

as parties in causes before the cause is finally heard has pernicious consequences.

Speech or writings misrepresenting the proceedings of the court of prejudicing the public

for or against a party or involving reflections on parties to a proceeding amount to

contempt. To make a speech tending to influence the result of a pending trial, whether

civil or criminal is a grave contempt. Comments on pending proceedings, if emanating

from the parties or their lawyers, are generally a more serious contempt than those

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coming from independent sources; State of Haryana v. Ch. Bhajanlal, AIR 1993 SC

1348.

(x) In contempt proceedings there are essentially two parties - The court and

contemporary; Shakuntala Sahadevram Tiwari v. Hemachand M. Singhania, (1990) 3

Bom CR 82 (Bom).

(xi) The law of contempt must be strictly interpreted an complied with before any person

can be committed for contempt; Roshan S. Boyce v.B.R. Cotton Mills Ltd., AIR 1990 SC

1881.

(xii) Any willful disobedience to the orders of the court to do or abstain from doing any

act or breach of any undertaking given to the court is prima-facie Civil Contempt; Vidya

Sagar v.IIIrd Additional District Judge, Dehradun, 1991 All CJ 586 (588); See also State

of Assam v.V.K.Vishnoi, 1993 (23) ATC 581 (587-588); State of Orissa V.Bijaya

Mohanty, (1993) 75 CLT 820 (830).

(xiii) Non caring of the warrant issued by the Criminal Court amounts to Criminal

Contempt; E.Venkaiah v. Government of Andhar Pradesh, 1992 (3) ALT 193 (199).

10. Power of High Court to punish contempt's of subordinate courts - Every High

Court shall have and exercise the same jurisdiction, powers and authority, in accordance

with the same procedure and practice, in respect of contempt's of courts subordinate to it

and it has and exercise in respect of contempt's of itself.

Provided that no High Court shall take cognizance of a contempt alleged to have been

committed in respect of a court subordinate to it where such contempt is an offence

punishable under the Indian Penal Code (45 of 1860).

COMMENTS

(i) The phrase "Courts subordinate to it" used in section 10 is wide enough to include all

courts which are judicially subordinate to the High Court even though administrative

control over them under Article 235 of the Constitution does not vest in the High Court;

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S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v.Vinay Chandra Mishra, 1981

Cr LJ 283 (286).

(ii) The power of committal for contempt must be wielded with the greatest reluctance

and the greatest anxiety and only with the object of seeing that the dignity and authority

of the Court are not imposed; E.Chandra v.Member Secretary, MMDA., (1990) 1 MLJR

537.

(iii) If the act is punishable by the Penal Code as contempt of Court then that act cannot

form the subject o contempt proceedings by the High Court; The Emperor V.J.P.

Swadhin, Air 1938 All 358.

(iv) The High Court cannot take cognizance of "contempt" which is punishable under the

Indian Penal Code; N.K. Gupta V.Umraomal Agarwalla, AIR 1951 Cal 489.

12. Punishment for contempt of court - (1) Save as otherwise expressly provided in

this Act or in any other law, a contempt of court may be punished with simple

imprisonment for a term which may extend to six months, or with fine which may extend

to two thousand rupees, or with both.

Provided that the accused may be discharged or the punishment awarded may be

remitted on apology being made to the satisfaction of the court.

Explanation - An apology shall not be rejected merely on the ground that it is qualified or

conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no court

shall impose a sentence in excess of that specified in sub section for any contempt

either in respect of itself or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty of

a civil contempt, the court, if it considers that a fine will not meet the ends of justice and

that a sentence of imprisonment is necessary shall, instead of sentencing him to simple

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imprisonment, direct that the he be detained in a civil prison for such period not

exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of court in respect of any undertaking

given to a court is a company, every person who, at the time the contempt was

committed, was in charge of, and was responsible to, the company for the conduct of

business of the company, as well as the company, shall be deemed to be guilty of the

contempt and the punishment may be enforced, with the leave of the court, by the

detention in civil prison of each such person.

Provided that nothing contained in this sub section shall render any such person liable to

such punishment if he proves that the contempt was committed without his knowledge or

that he exercised all due diligence to prevent its commission.

(5) Notwithstanding anything contained in sub section (4) where the contempt of court

referred to therein has been committed by a company and it is provided that the

contempt has been committed with the consent or connivance of, or is attributable to any

neglect on the part of, any director, manger, secretary or other officer of the company,

such director, manager , secretary or other officer shall also be deemed to be guilty of

the be contempt and the punishment may be enforced, with the leave of the court, by the

detention in civil prison of such director, manager, secretary or other officer.

Explanation - For the purpose of sub sections (4) and (5)-

(a) "Company " means any body corporate and includes a firm or other association of

individuals, and

(b) "Director" in relation to a firm, means a partner in the firm.

COMMENTS

Breach of an injunction, or breach of an undertaking given to a court by a person in a

civil proceeding amounts to contempt; Noorali Babul Thanewala v.K.M.M. Shetty, AIR

1990 Sc 564.

(i) Committing the contemner to prison is always discretionary with the Court;

Shakuntala Sahadevram Tiwari v.Hemchand M.Singhania, (1990) 3 Bom CR 82 (Bom).

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(ii) The power to fine and imprison for contempt is a necessary incident and attribute of a

Court; Watson v.Williams, (33) 36 Mis 341.

(iii) An unreserved apology, in less serious cases, has the asset of taking the stringent of

contempt; Court on behalf of the State of Punjab v.Raddha Krishan Khanna, AIR 1961

Punj 113.

(iv) The contempt power should be kept sheathed; Union of India v.S.C. Sharma, (1980)

2 SCC 144.

(v) Apology is an act of contrition. Apology must not be shorn of penitence. Tendering of

apology cannot be a panacea in every case of contempt. No apology could undo gross

contempt and serious cases of contempt; State of Orissa v.R.N. Patra, (1975) 41 Cut LT

329.

(vi) The court can, even when accepts the apology, commit an offender to prison or

otherwise punish him; Rupert J.Bamabas v. Mrs. N.Bharani, 1990 LW (Crl) 27 (Mad).

(vii) A haulting, hesitating and vacillating apology deserves to be rejected; State of Uttar

Pradesh v. Krishna Madho, AIR 1952 All 86.

(viii) The court may or may not accept an apology goes to sentence and cannot,

therefore, be accepted without a finding that contempt has been committed. However,

apology, though not a weapon of defence forged always to purge the guilty, should be

tendered out the earliest possible stage, unreservedly and unconditionally and it must be

indicative of remorse and contrition as well as free, full, frank and manly confession of a

wrong done; In re: Hirenn Bose, AIR 1969 Cal 1.

15. Cognizance of criminal contempt in other cases- (1) In the case of a criminal

Contempt, other than a contempt referred to in section 14, the Supreme Court or the

High Court may take action on its own motion or on a motion made by -

(a) The Advocate –General, or

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(b) Any other person, with the consent in writing of the Advocate –General, (Note:- Ins.

by Act 45 of 1976, sec.2)

(c) [(Note:- Ins. by Act 45 of 1976, sec.2)] In relation to the High Court for the Union

territory of Delhi, such Law Officer as the Central Government may, by notification in the

Official Gazette, specify in this behalf, or any other persons, with the consent in writing of

such Law Officer.

(2) In the case of any criminal contempt of a subordinate court, the High Court may take

action on a reference made to it by the subordinate court or on a motion made by the

Advocate General or, in relation to a Union territory, by such Law Officer as the Central

Government may, by notification in the Official Gazette, specify in this behalf.

(3) Every motion or reference made under this section shall specify the contempt of

which the person charge is alleged to be guilty.

Explanation- In this section, the expression "Advocate-General" means-

(a) In relation to the Supreme Court, the Attorney or the Solicitor –General

(b) In relation to the High Court, the Advocate-General of the State or any of the States

for which the High Court has been established.

(c) In relation to the court of a Judicial Commissioner, such Law Officer as the Central

Government may, by notification in the Official Gazette, specify in this behalf.

COMMENTS

(i) The Court can take action -

(a) On motion by the Advocate-General himself; or

(b) On motion by anyone with the consent of the Advocate-General; or

(c) On report by a subordinate court, in cases not covered by section 14 of the Act.

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(ii) Procedure of making a reference cannot apply in a case when the Presiding Officer

of a subordinate court himself is guilty of contempt of court; Berely v.Xavier, 1988 Cr LJ

90.

(iii) It is always open the High Court to take action suo motu in respect of a subordinate

court; State of Orissa v.R.N.Patra, 1976 Cr LJ 440 (Ori); see also A.R. Rao, 1981 Cr LJ

1322.

(iv) Absolute discretion is rested in the Advocate-General in the matter of according

consent; N. Venkataramanappa v.D.K. Naikar, AIR 1975 Kant 57.

(v) Nobody has a right to compel the subordinate court to make a reference to the High

Court; Jomon v. The State of Kerala, (1987) IJ Reports 273 (Kerala).

(vi) A negative fact cannot be proved; V.K. Kanade v.Mandho Godkari, (1990) I Mah LR

544 (Bom).

(vii) Contemner has no right to produce defence to establish the truth of his allegations;

In re: K.L. Gauba, AIR 1942 Lah 105; see also In re: Ram Mohanlal, AIR 1935 All 38.

16. Contempt by judge, magistrate or other person acting judicially - (1) Subject to

the provisions of any law for the time being in force, a judge, magistrate or other persons

act in judicially shall also be liable for contempt of his own court or of any other court in

the same manner as any other individual is liable and the provisions of this Act, so far as

may be, apply accordingly.

(2) Notwithstanding in this section shall apply to any observations or remarks made by a

judge, magistrate or other person act in judicially, regarding a subordinate court in an

appeal or revision pending before such judge, magistrate or other person against the

order or judgement of the subordinate court.

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COMMENTS

(i) Only a Judge of a subordinate court can be said to have committed contempt of his

own court i.e. the court in which such judge is presiding; Harish Chandra v.S. Ali Ahmed,

1987 Cr LJ 320 (Pat).

(ii) A judge can foul judicial administration by misdemeanors while engaged in the

exercise of the functions of a Judge; Baradakanta v. The Registrar, Orissa High Court,

AIR 1974 SC 710.

(iii) The Magistrates should be conscious of their heavy responsibilities and should not

act in a manner prejudicial to the litigants; B.N. Choudhary v.S.M. Singh, 1967 Cr LJ

1141 (Pat).

(iv) When the President Officer of a subordinate Court is guilty of contempt of Court,

procedure of making a reference cannot apply under section 15 of the Act; Berely

v.Xaviery, 1988 Cr LJ 90.

20. Limitation for actions for contempt - No court shall initiate any proceedings if

contempt, either on its own motion or otherwise, after the expiry of a period of one year

from the date on which the contempt is alleged to have been committed.

COMMENTS

(i) Initiation of any proceedings for contempt is barred after the expiry of a period of one

year from the date on which the contempt is alleged to have been committed; V.M.

Kanade v.Madhao Gadkari, (1990) 1 Mah LR 544 (Bom).

(ii) No intervening event or order stops the running of time specified in this section;

Golcha Avertising Agency v. The State of Maharashtra, (1990) 2 Bom CR 262 (Bom).

(iii) The expression "Court" denotes a High Court or the Supreme Court; The State of

Bihar v.Ambika Roy, 1991 Cr LJ 82 (Pat).

(iv) The provisions of the Limitation Act, 1963 do not apply; Krishnalal Chhoteylal, (1987)

13 ALR 44.

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(v) Delay in initiating contempt proceedings cannot be condoned; T.M.A.

Abdul Hamed v.S.Radhakrishnan, 1989 LW (Crl) 237.

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