CrPC Notes – Chapter Preliminary

CrPC Notes – Chapter Preliminary

CrPC Notes an introduction with flow chart

S.No             Topics

• Section 1. Short title, extent and commencement.
• Section 2. Definitions.
• Section 3. Construction of references.
• Section 4. Trial of offences under the Indian Penal Code and other laws.
• Section 5. Saving.

CrPC Notes – Chapter Preliminary

SECTION 1. Short title, extent and commencement.

(1). This Act  is called the Code of Criminal Procedure, 1973.

(2). It extends to the whole of India.

*(The words “except the State of Jammu and Kashmir” has been omitted by the Jammu and Kashmir Reorganisation Act, 2019 ( 34 of 2019), sections 95,96 and Fifth Sch, Table-1 (W( well).e(effective).f(Force).31-10-2019)

Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, s hall not apply

(a). to the State of Nagaland,

(b). to the tribal areas,

but the concerned State Government may apply such provisions by notification, or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be,

with such supplemental(adding), incidental or consequential(Changing in existing law) modifications, as may be specified in the notification.

In this section, “tribal areas” means the territories which immediately before the 21st January, 1972, were included in the tribal areas of Assam, as referred to in  paragraph 20 of the Sixth Schedule to the Constitution, except those area within the local limits  of the municipality of Shillong.

(3). It shall come into force on the 1st day of April, 1974.

• The name of this code is Criminal Procedure Code, 1973 but in short it is known as Cr.P.C
• It extends to the whole India( including J & K by the J & K Reorganisation Act, 2019  w.e.f. 31-10-2019) But Only three chapters apply to Nagaland and the tribal areas:
• VIII (Security for keeping the peace and for good behaviour),
• X (Maintenance of public order and tranquility),
• XI (Preventive action of the police).

Rest provisions of CrPC are not made applicable

But Concerned State Govt. may apply such provisions to whole or part of the State of nagaland or tribal areas by notification with such supplemental, incidental or consequential modifications

Tribal Areas– In this Section, “ tribal areas’ means the territorities which before 21^st Jan.1972,were included in the tribal areas of Assam as mentioned in 6^th schedule para 20 of constitution, excluding shillong municipal area.

• Came in force 1^st April 1974

Case Laws –Mona Puna, (1892) 16 Bom 661 It is mainly an adjective (procedural) law. The object of the Code is to provide a machinery for the punishment of offenders against the substantive criminal law e.g. Indian Penal Code, 1860. Both the Indian Penal Code and the Code of criminal Procedure should be studied together.

Hansraj, (1942)Nag 333- Absence of any provision on a particular matter in the Code does not mean that there is no such power in a criminal court which may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited by law.

CrPC Notes – Chapter Preliminary

SECTION 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

• Examples of bailable offences are:
  • Being a member of an unlawful Assembly; (142)
  • Public servant disobeying a direction of the law with intent of cause injury to any person; (166)
  • Giving or fabricating false evidence in a judicial proceeding;( 191, 192)
  • Refusing oath when duly required to take oath by a pubic servant;
  • Obstructing public Servant in discharge of his public functions; or
  • Selling any food or drink as food and drink, knowing the same to be noxious.

Difference between Bailable offence and Non-bailable offence

CrPC Notes – Chapter Preliminary

(b)                “charge” includes any head of charge when the charge contains more heads than one;

A Document ( Formal statement of court) in which an information is given that all legal  conditions  required by law to constitute an offence is fulfilled by a particular person (accused) and he is being prosecuted for the offence .

It can have one head or more head.

*One head ( one section)

*More head ( more section)

Refer 2b + 211

• In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him. (Birich Bhivan vs. State of Bihar, AIR 1963 SC)

(c)                 “cognizable offence”

means an offence for which, and “cognizable case” means a case in which, a police officer may arrest without warrant in accordance with the First Schedule or under any  other law for the time being in force,

• Essential requisites of a cognizable offence are:

• It is an offence under Indian Penal Code or any other law for the time being in force;
• The police officer is empowered to arrest without warrant in accordance with the first schedule or under any other law which is in force.
• Cognizable offences are generally of serious nature. Cognizable means capable of being taken cognizance of.

                       Difference between cognizable offence and non-cognizable offence

CrPC Notes – Chapter Preliminary

                       Difference between cognizable offence and non-cognizable offence

2(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;

Essentials of a complaint are:

• It should be an oral or written allegation;
• It must be reveling that some person known or unknown has committed an offence;
• It must be made to a Magistrate;
• It must be made with the object that he should take action against the offender.

*It does not include police reports.

*FIR only in cognizable matters but complaint in both

*A report made by a police officer in a case which discloses, after investigation, Non Cog. Offence is found out  then Police report becomes complaint and the police officer complainant.

Bhimappa v. Laxman, Air 1970 SC 1153

A Complaint in a criminal case is what a plaint is in a civil case. It is one of the modes in which a Magistrate can take cognizance of an offence( Section 190).

*Sec. 190. Cognizance of offences by Magistrates.—

• upon receiving a complaint of facts which constitute such offence;

• upon a police report of such facts;

• upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

Bhimappa v. Laxman, Air 1970 SC 1153 No form is prescribed which the complaint may take. The word has a wide meaning.

CrPC Notes – Chapter Preliminary

(e)    “ High Court” means,

•  in relation to any State, the High Court of that State;
•  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;
• in relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India;

The whole of India, i.e. the territories to which the Code extends, is divided into States and Union territories.

• For each state, there is a High Court of that State. For example; for the State of Uttar Pradesh, High Court means the Allahabad High Court.
• For Union territory to which the jurisdiction of the High Court of a State has been extended, that High Court For instance, for Andaman and Nicobar Island the High Court of Calcutta.
• For other union territories the highest court of criminal appeal for that territory (but not the Supreme Court) are High Courts within the meaning of this clause.

(f)    “India”

means the territories to which this Code extends;

• India means the following areas or territories to which the Code extends. Section 1(2) of the Code states that it extends to the whole of India. Its proviso makes it clear that only three Chapters i.e. chapter VIII, X and XI will apply to the State of Nagaland and the tribal areas. Thus, India means and includes the whole of Indian territory .

CrPC Notes – Chapter Preliminary

(g). “ inquiry”

means the territories to which this Code extends;

In a criminal matter, inquiry is something different from a trial. Inquiry stops when trial begins. Inquiry is wider than trial.

The Word” inquiry” is not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on filing of charge- sheet.

 An inquiry must be conducted by a Court or Magistrate.

Lalita Kumari v. Govt. of UP, AIR 2014 SC 187 From the definition of the word “inquiry” given in the Code, It is clear that inquiry under the code is relate to a judicial act and not the steps taken by police which are either investigation after the stag of section 154 of the Code or termed as “ Preliminary Inquiry” and which are prior to the registration of FIR.

CrPC Notes – Chapter Preliminary

(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 authorized by a Magistrate in this behalf;

all the proceedings under this Code

• The first stage when a police officer either by himself or under orders of a Magistrate investigates into a case (Sec. 202).
• The main purpose of an investigation is collection of evidence, and it must be conducted by a police officer or a person enjoying the powers  of a police officer or authorised by a magistrate in his behalf or a person in authority. UP v. Sant Praksash, 1976 CrLJ 274
• An Investigation means search for material and facts in order to find out whether an offence has been committed or not. Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775
• The arrest and detention of a person for the purpose of investigation of a crime forms an integral part of the process of investigation.
• Examining witnesses and arranging raids for the purpose of dealing with a complaint by an Inspector of Anti- Corruption Department was included within the meaning of the word “investigation”.
• Medical examination of the arrested person also forms part of the investigation.
• A direction for conducting investigation requires registration of FIR beforehand. An investigation into the fact whether the death in question was suicidal or homicidal could have been taken up only after registration of FIR. That is why the CBI was justified in registering the FIR. Ashok Kumar Chaudhari v. Kunal Saha, AIR 2017 SC 618
• CrPC Notes – Chapter Preliminary

(i)                “judicial proceeding”

includes any proceeding in the course of which evidence is or may be legally taken on oath;

• It includes “inquiry” and “trial” but not investigation. It is also explained in Sec. 193 and referred to in sec. 192 and 228 of the IPC.
• It is a general term for proceeding in Courts; for the course authorised to be taken in various cases to secure the determination of controversy; to obtain the enforcement of a right or the redress or prevention of a wrong.
• Proceedings to be judicial, should relate in some way to the administration of justice or to the ascertainment of any right or liability.

(j)                 “ local jurisdiction”

in relation to a Court or Magistrate, means the local area within the Court or Magistrate may exercise all or any of its or his powers under this Code and such local area may comprise the whole of the State, or any part of the State, as the State Government may specify by notification.

• Local jurisdiction means territorial jurisdiction, jurisdiction over the locality or local limits of an area.

(k)                “ metropolitan area”

means the area declared, or deemed to be declared, under section 8, to be a metropolitan area;

• Section 8 of the Code empowers the State Governments to declare an area comprising a city or town with a population exceeding one million (10,00,000) 10 lakh to be a metropolitan area by notification.
• Mumbai, Calcutta, Chennai, Delhi and Ahmedabad cities were declared to be metropolitan areas at the time of making this code. But today there is a long list of metropolitan area-

Thus, there are two conditions to form an area as metropolitan –

• It has a population exceeding one million i.e. ten lakhs (10,00,000).
• The State Government must declare it under Section 8 Cr.P.C. as 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.

• Non-cognizable offences are those offences which are shown as non-cognizable in first schedule of the Code. A police officer cannot arrest an accused without the permission of  the Magistrate. Magistrate can  issue warrant to  arrest the offender  of the non-cognizable offence.

(m)     “ notification”

means a notification published in the Official Gazette;

• Notification means an information published for the awareness of general public at large 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);

• Section 3(38) of General Clauses Act, 1897 defines offence as an act or omission made punishable by any law for the time being in force. Section 40 of the Indian Penal Code, 1860  also provides the same definition.
• By the word “offence” in Article 20(1) of the Constitution of India is meant something which is a violation of a law in force and for the violation of which the law prescribes a penalty.
• CrPC Notes – Chapter Preliminary

(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;

• The head police officer is referred to as the “officer in charge” at a police station. The Station House Officer (SHO), a type of inspector, is in charge of a police station. When the officer in command of the station is unavailable or unable to perform his duties, any individual holding a position typically above the rank of a constable in the state’s police force may take over as officer in charge of the station. He is responsible for maintaining peace and order in that area when he assumes control of the station for any reason.

(p)  “place”

includes a house, building, tent, vehicle and vessel;

• For the purpose of this Code, a 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 practice in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding.

• Pleader includes an Advocate, a Vakil, and an Attorney of a High Court. Pleader is defined as any individual who is permitted to attend and argue on behalf of another in any court case. It is a group of professionals who are qualified to argue before a court of law.

(r) “police report”

means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173;

• A report must only include the facts listed in Section 173 (2) of the Code in order to qualify as a police report.
• When a police officer submits a formal charge sheet or challan after conducting an investigation, it is referred to as a police report.
• A challan, which states that there is no evidence against the subject but makes no accusations of a cognizable offence, is not a police report. After conducting the investigation, the police officer must submit the following report to the magistrate empowered to take cognizance.

The final report contains such points:-

• The names of the parties;
• The nature of the information;
• The names of the persons who appears to be acquainted with the circumstances of case;
• Whether any offence appears to have been committed and, if so, by whom;
• Whether the accused has been arrested;
• Whether he has been released on his bond and, if so, whether with or without sureties;
• Whether he has been forwarded in custody under Section 170 of the Code.

(s) “police station”

means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf;

• A police station is a place declared generally or specially by the State Government to be a police station with a specified jurisdiction over an area for the purpose of maintaining law and peace.
• A Police station is under the command of an inspector called the Station House Officer(SHO).

(t) “prescribed”

means prescribed by rules made under this Code;

• For the purpose of this Code, the word 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;

• A public officer known as a public prosecutor (PP) is tasked with looking into and prosecuting criminal offences on behalf of the State.
• Although an executive officer, a public prosecutor also serves as an officer of the court in many ways. He is required to provide the Court with his fairly weighed opinion, and the Court is entitled to profit from the impartial performance of his duties. (Ram Naresh vs. State, AIR 1957 SC)
• An advocate General who is asked by the governor to represent an accused in a Session Court does not become a Public Prosecutor within the meaning of clause (4) of section 2 unless he is appointed as such Public Prosecutor under section 24 of the Code.( Ins. By the code of criminal procedure (Amendment)Act, 2008 (5 of 2009), section 2 ( w.e.f.31-12-2009)

(v) “sub-division”

means a sub-division of a district;

• The terms “district” and “subdivision” refer to the division of land into two or more lots or other divisions of land, respectively. A district is a section of a country or town with definite borders that is utilised for official purposes or that has distinctive features that set it apart from nearby regions.

(w) “summons-case”

means a case relating to an offence, and not being a warrant-case;

• The division of cases into summons and warrant cases is based on the punishment which can be awarded.
• Those cases which are punishable with imprisonment up to two years are summons cases. The procedure for trial of summons cases is provided by Chapter XX.

(wa)”victim”

means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;

• Victim generally means a person harmed, injured or killed as a result of a crime, accident or other event or action.
• He is the one who has suffered any loss or injury by reason of the act or omission for which the accused person has been charged.
• The term victim also includes the guardian and legal heirs of a person for the purpose of this Code.

 (x) “warrant-case”

means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;

• All the offences punishable with imprisonment above two years are warrant-cases.
• The procedure for warrant cases-trial is provided by Chapter XIX of the Code.
• It may be noted that summons will be issued in all summons cases and warrant in all warrant cases, unless the Magistrate thinks fit to issue summons.

(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.

• The definitions of the Indian Penal Code may be used in construction of the words of this Code, if the particular word is not defined in this Code but is defined in the Indian Penal Code.

Section 3. Construction of References

The words used in the Code, Meanings of the words in Metropolitan Areas and Meaning of the words in other areas.

Judicial Magistrates deal with following activities –

• Appreciation or shifting of evidence;
• The formulation of any decision which exposes any person to any punishment or penalty or detention in custody in investigation, inquiry or trial or sending him for trial before any Court;
• All other judicial acts; and
• All the acts of judicial nature;
• Executive Magistrate will do following acts –
•  All acts of executive nature;
•  Administrative acts;
•  The granting of a licence;
•  The suspension or cancellation of a licence; and
•  Sanctioning a prosecution or withdrawal from a prosecution.

Section 4. Trial of offences under the Indian Penal Code and other laws

All offences under Indian Penal Code or under any other criminal law shall be

• Investigated,
  • Inquired into,
  • Tried and otherwise dealt, according to the provisions of the Code.
  • If any special procedural law is enacted for any special group or place, the general provision of the Code will not apply and the special law will apply in that case.

Section 5. Saving.

The Code does not affect

• Any special law (Section 41 of Indian Penal Code, 1860)

• Any local law (Section 42 of Indian Penal Code, 1860)
• Any special jurisdiction or power, and
• Any special form of procedure.

CrPC Notes – Chapter Preliminary

• CrPC
• Jurisprudence Notes
• IPC Notes
• Constitution of India
• Evidence Act