Criminal Procedure Code Juvenile Justice and POCSO Notes | LL.B. (3 years) Semester 5 | Mumbai University | munotes

The chain of Codes, and where each link is proved

Criminal procedure in India has been in a single Code for a very long time, and the present Sanhita is not a fresh start but the newest version of a document that has been rewritten roughly once a lifetime.

The Code of Criminal Procedure, 1898. This is the Code that governed for three quarters of a century. We know it was the immediate predecessor because section 484(1) of the 1973 Code says so in terms: "The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed."

The Law Commission's work, 1961 to 1969. The Government of India asked the Law Commission to make a detailed examination of the Code with a view to its general revision. The work began in 1961 and continued for eight years. Four separate reports came out on particular problems, then the Thirty-seventh Report of February 1968 dealt in detail with the first fourteen chapters, sections 1 to 176. The Forty-first Report, dated New Delhi, 24 September 1969 and signed by the Chairman K.V.K. Sundaram, brought the whole revision together and carried a draft Bill in its second volume, with comparative tables matching the old chapters and sections to the proposed new ones.

The Code of Criminal Procedure, 1973. That draft became Act 2 of 1974. It received assent on 25 January 1974 and, by its own section 1(3), came into force on 1 April 1974. Its long title reads: "An Act to consolidate and amend the law relating to Criminal Procedure."

The Bharatiya Nagarik Suraksha Sanhita, 2023. Act 46 of 2023, assent 25 December 2023. Its long title is word for word the same as the 1973 Code's: "An Act to consolidate and amend the law relating to Criminal Procedure."

That identical long title is worth pausing on, because it tells you what kind of change 2023 was. Parliament did not set out to build a different system of criminal justice. It set out to do again, for this century, what it did in 1973: gather the law of procedure into one Act and amend it while doing so. The architecture is the same. The chapters run in the same order. Most sections carry the same marginal note as before. What changed is the numbering, a set of new provisions, and a large number of timelines.

When the Sanhita came into force, and the one thing that did not

Section 1(3) of the Sanhita says only that it comes into force on such date as the Central Government may appoint by notification. The date itself is in the footnote to that sub-section in the official consolidated print, and it reads:

1st July, 2024, [except the provisions of the entry relating to Section 106(2) in the first Schedule], vide notification No. S.O. 848(E), dated the 23rd day of February, 2024, see Gazette of India, Extraordinary, Part II, sec. 3(ii).

Read that carefully, because there are two facts in it and most published summaries carry only the first.

First, the date is 1 July 2024, appointed by S.O. 848(E) of 23 February 2024. So there were four months between the notification and the commencement.

Second, one entry of the First Schedule never commenced. The First Schedule to the Sanhita is the table that classifies every offence: cognizable or not, bailable or not, and by which court triable. The Schedule prints an entry for section 106(2) of the Bharatiya Nyaya Sanhita, which is causing death by rash and negligent driving and escaping without reporting the incident, punishable with ten years. The notification excepted that entry. So the offence has no classification in force, and a student who writes that "the whole Sanhita came into force on 1 July 2024" has written something the notification itself contradicts.

Section 531: the repeal, and why two Codes are being applied today

This is the most practically important section in the chapter, because it decides which Code a real case is run under.

Section 531(1). The Code of Criminal Procedure, 1973 is repealed.

Section 531(2)(a), the saving that matters. If, immediately before 1 July 2024, there was any appeal, application, trial, inquiry or investigation pending, it is to be disposed of, continued, held or made under the old Code, as if the Sanhita had not come into force.

Section 531(2)(b). Notifications published, proclamations issued, powers conferred, forms provided by rules, local jurisdictions defined, sentences passed, and orders, rules and appointments made under the old Code and in force on 1 July 2024 are deemed to have been made under the corresponding provisions of the Sanhita. The one exception named is appointments as Special Magistrates.

Section 531(2)(c). A sanction or consent given under the old Code, on which no proceeding had yet started, is deemed given under the Sanhita, and proceedings may be started under the Sanhita on it.

Section 531(3). Where a period for an application or proceeding had already expired under the old Code, the Sanhita does not revive it merely because the Sanhita allows longer.

So the answer to "which Code applies?" is not "the Sanhita, it is 2026". It is: look at the date the proceeding began.

A worked example

Ravi is arrested in Kurla on 12 June 2024 and an investigation into a theft is registered against him the same day. The charge sheet is filed on 2 September 2024 and his trial begins in October 2024. Meanwhile his neighbour Sameer is arrested on 20 July 2024 for a separate offence.

Ravi's case runs under the Code of Criminal Procedure, 1973. The investigation was pending immediately before 1 July 2024, so section 531(2)(a) keeps the old Code alive for it, and for the trial that grows out of it, and for any appeal from that trial. That is so even though the charge sheet and the trial are entirely after the commencement.

Sameer's case runs under the Sanhita. Nothing about it was pending on 30 June 2024.

And the Kurla police station's existing local jurisdiction, notified years ago under the old Code, is good for both, because section 531(2)(b) deems it made under the corresponding provision of the Sanhita.

The practical consequence for a student is this. Cases begun before 1 July 2024 will be in the courts for years. So a lawyer in 2026 has to know both Codes, and so does anyone reading a judgment: a judgment delivered next month may be interpreting section 154 of the old Code, and it is authority on section 173 of the new one.

Sections 3 and 5: how the Sanhita fits with everything else

Section 3, construction of references. Old statutes are full of references to "a Magistrate", written when the magistracy was arranged differently. Section 3(1) says that a reference in any law to a Magistrate without qualifying words, or to a Magistrate of the first or second class, is to be read as a reference to a Judicial Magistrate of the first or second class exercising jurisdiction in that area.

Section 3(2) then splits functions given to "a Magistrate" by some other law between the two magistracies, and the test is a good one to remember because it captures the whole difference between them. If the function involves appreciating or sifting evidence, or a decision that exposes a person to punishment, penalty or detention, or that sends him for trial, it goes to a Judicial Magistrate. If it is administrative or executive, such as granting, suspending or cancelling a licence, sanctioning a prosecution or withdrawing from one, it goes to an Executive Magistrate.

Section 5, saving. Nothing in the Sanhita affects any special or local law in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law, in the absence of a specific provision to the contrary.

Section 5 is the reason this subject is not self-contained, and it is worth grasping early. Where a special Act lays down its own procedure, that procedure prevails to the extent of the difference and the Sanhita fills the rest. That is exactly how the two other Acts on this syllabus work: the Juvenile Justice Act 2015 and the POCSO Act 2012 both create their own machinery, and the Sanhita supplies whatever they do not.

Section 1(2): where the Sanhita does not apply

The Sanhita extends to the whole of India, but section 1(2) carves out an exception that has survived unchanged from the old Code. The provisions of the Sanhita, other than those relating to Chapters IX, XI and XII, do not apply to the State of Nagaland or to the tribal areas. The State Government concerned may apply them, wholly or partly, by notification, with modifications.

The three chapters that always apply are worth naming, because they are the preventive ones and the exception tells you Parliament regarded them as indispensable: Chapter IX is security for keeping the peace and for good behaviour, Chapter XI is maintenance of public order and tranquillity, and Chapter XII is preventive action of the police.

The Explanation defines "tribal areas" as the territories which, immediately before 21 January 1972, were included in the tribal areas of Assam under paragraph 20 of the Sixth Schedule to the Constitution, other than those within the municipality of Shillong.

Distinctions worth fixing now

What this does NOT mean

It does not mean the old Code is now irrelevant. It is repealed, but section 531(2)(a) keeps it running for every proceeding pending on 30 June 2024, and those will take years to finish. It is also the language of every reported judgment before 2024, which is most of the case law on this subject.

It does not mean the section numbers moved by a fixed amount. They did not. Section 154 of the old Code is section 173 of the Sanhita, a jump of 19; section 41 is section 35, a jump of the other way. There is no formula. Each section has to be looked up.

It does not mean everything was renumbered and nothing else changed. Several provisions are genuinely new, and they are taught in this book where they belong: trial in absentia of a proclaimed offender, a witness protection scheme, compulsory audio-video recording of a search and seizure, mercy petitions in death sentence cases, and proceedings in electronic mode.

And it does not mean the old offices survive. Two whole ranks of the criminal judiciary are gone. The word "metropolitan" does not appear in the Sanhita at all, so there is no Metropolitan Magistrate; and there is no Assistant Sessions Judge either. Both appear throughout the old Code and throughout older textbooks.

Quick revision

• The Sanhita is Act 46 of 2023. Assent 25 December 2023. In force 1 July 2024 by S.O. 848(E) dated 23 February 2024.
• The exception to that commencement is the First Schedule entry relating to section 106(2) of the Bharatiya Nyaya Sanhita.
• Section 531(1) repeals the Code of Criminal Procedure, 1973 (Act 2 of 1974, assent 25 January 1974, in force 1 April 1974), which had itself repealed the Code of Criminal Procedure, 1898.
• The 1973 Code came out of the Law Commission's Forty-first Report, 24 September 1969.
• Section 531(2)(a): anything pending on 30 June 2024 continues under the old Code.
• Section 4: all offences under the Bharatiya Nyaya Sanhita and under any other law are dealt with under the Sanhita.
• Section 5: special and local laws are saved, which is why the Juvenile Justice Act and POCSO have their own procedures.
• Section 1(2): the Sanhita does not apply to Nagaland and the tribal areas except Chapters IX, XI and XII.

Test yourself

1. An FIR was registered on 15 May 2024 and the charge sheet was filed on 20 August 2024. Which Code governs the trial? The Code of Criminal Procedure, 1973. The investigation was pending immediately before 1 July 2024, so section 531(2)(a) of the Sanhita saves the old Code for that investigation and for the trial that follows from it.

2. What is the long title of the Bharatiya Nagarik Suraksha Sanhita, and why is it interesting? "An Act to consolidate and amend the law relating to Criminal Procedure." It is interesting because it is identical to the long title of the 1973 Code, which shows Parliament was doing the same job over again rather than designing a new system.

3. State one thing that did not come into force on 1 July 2024. The entry in the First Schedule relating to section 106(2) of the Bharatiya Nyaya Sanhita, which was excepted by S.O. 848(E).

4. Distinguish substantive from procedural criminal law with one example of each. Substantive law defines the offence and its punishment, for example the Bharatiya Nyaya Sanhita making theft punishable. Procedural law says how the State proceeds, for example the Sanhita permitting arrest without a warrant in a cognizable case.

5. A licence has to be suspended under a State Act which says "the Magistrate may suspend". Which Magistrate? An Executive Magistrate. Section 3(2)(b) sends administrative and executive functions, expressly including suspension or cancellation of a licence, to the Executive Magistrate.

6. Does the Sanhita apply to a prosecution under the POCSO Act? Yes, but subject to POCSO. Section 4(2) applies the Sanhita to offences under any other law, and section 5 saves the special procedure that other law prescribes, so POCSO's own provisions prevail as far as they go and the Sanhita fills the rest.

"Electronic communication", clause (i). The communication of any written, verbal, pictorial information or video content transmitted or transferred, whether person to person, device to device, person to device or device to person, by an electronic device including a telephone, mobile phone or other wireless telecommunication device, a computer, an audio-video player, a camera, or any other electronic device or electronic form the Central Government may specify by notification.

The four that are gone

"Metropolitan area", and with it the whole metropolitan magistracy. Clause (k) of the old section 2 defined it. The word "metropolitan" does not occur once in the Sanhita, against ninety-two lines of the old Code's print. That is dealt with in [Classes of Criminal Courts].

"Pleader". Clause (q) of the old section 2. The Sanhita uses "advocate" instead, and the counts tell the story: "pleader" occurs seventy-nine times in the old Code and not once in the Sanhita, while "advocate" occurs twenty-three times in the old Code and ninety-three times in the Sanhita.

"India" and "prescribed" are also no longer defined in section 2.

The definitions a student is actually asked about

Cognizable and non-cognizable, clauses (g) and (o). A cognizable offence is one for which, and a cognizable case is one in which, a police officer may arrest without warrant, in accordance with the First Schedule or under any other law. A non-cognizable offence is one for which a police officer has no authority to arrest without warrant.

Read that again, because it is the definition students most often state backwards. The test is not seriousness. The test is not whether the police may investigate. The test is a single power: may a police officer arrest without a warrant? And the answer is not a matter of opinion, because the First Schedule prints it in a column against every offence.

Bailable and non-bailable, clause (c). A bailable offence is one shown as bailable in the First Schedule, or made bailable by any other law. A non-bailable offence is any other offence.

This one is a trap of drafting. "Non-bailable" is defined as a residue: whatever is not shown bailable. So there is no separate list of non-bailable offences to learn, and, more importantly, "non-bailable" does not mean bail cannot be granted. It means bail is not available as of right.

Complaint, clause (h). Any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Sanhita, that some person, whether known or unknown, has committed an offence. It does not include a police report.

The Explanation adds a case that looks like an exception and is really a definition: a report by a police officer which, after investigation, discloses the commission of a non-cognizable offence is deemed to be a complaint, and the officer who made it is deemed to be the complainant.

Police report, clause (t). A report forwarded by a police officer to a Magistrate under section 193(3). That is the charge sheet at the end of an investigation, and nothing else is a police report.

The pair matters more than either alone, because the whole trial procedure forks on it. A warrant case instituted on a police report is tried under one set of sections and a warrant case instituted otherwise than on a police report under another.

Inquiry, clause (k), and investigation, clause (l). An inquiry is every inquiry other than a trial conducted under the Sanhita by a Magistrate or Court. An investigation includes all the proceedings under the Sanhita for the collection of evidence conducted by a police officer, or by any person other than a Magistrate authorised by a Magistrate.

So the difference is who is doing it and what for. Investigation is by the police, to collect evidence. Inquiry is by a Magistrate or a court, and it is not a trial. Trial is the third thing, and the Sanhita nowhere defines it.

The Explanation to clause (l) is new: where any provision of a special Act is inconsistent with the Sanhita, the special Act prevails. That is section 5 restated inside the definition of investigation, and it matters for POCSO and the Juvenile Justice Act.

Summons-case and warrant-case, clauses (x) and (z). A warrant-case is a case relating to an offence punishable with death, imprisonment for life, or imprisonment for a term exceeding two years. A summons-case is a case relating to an offence and not being a warrant-case.

Note the drafting again: warrant-case is defined positively and summons-case as the residue, exactly as with bailable and non-bailable. Note also that the line is drawn by the punishment the offence can attract, not by the sentence actually passed and not by which process the court happens to issue.

Victim, clause (y). A person who has suffered any loss or injury caused by reason of the act or omission of the accused person, and includes the guardian or legal heir of such victim. The words about the guardian and the legal heir are what let a dead victim's family exercise the rights the Sanhita gives a victim.

Offence, clause (q). Any act or omission made punishable by any law for the time being in force, and it includes any act for which a complaint may be made under section 20 of the Cattle Trespass Act, 1871. The odd tail piece is inherited from the old Code and is worth remembering only because examiners like odd tail pieces.

Officer in charge of a police station, clause (r). It includes, when that officer is absent from the station-house or unable through illness or other cause to perform his duties, the police officer present who is next in rank to him and above the rank of constable, or any other police officer present whom the State Government directs.

Judicial proceeding, clause (m). Includes any proceeding in the course of which evidence is or may be legally taken on oath. Place, clause (s), includes a house, building, tent, vehicle and vessel. Local jurisdiction, clause (n), is the local area within which a Court or Magistrate may exercise its powers, which the State Government specifies by notification and which may be the whole State or part of it. High Court, clause (j), is the High Court for the State, or the High Court whose jurisdiction has been extended to a Union territory, or for any other Union territory the highest court of criminal appeal other than the Supreme Court.

Section 2(2), the borrowing clause. Words used in the Sanhita and not defined in it, but defined in the Information Technology Act, 2000 or the Bharatiya Nyaya Sanhita, 2023, carry the meaning given there. So when the Sanhita says "electronic record", the Information Technology Act's definition is imported without repeating it.

A worked example

Meena's motorcycle is taken from outside her building in Ghatkopar. She goes to the police station.

Is it cognizable? Theft under the Bharatiya Nyaya Sanhita is shown in the First Schedule as cognizable, so a police officer may arrest without a warrant. That answer comes from clause (g) read with the First Schedule, not from anybody's sense of how serious the theft was.

Is it a warrant-case? Theft is punishable with imprisonment which may exceed two years, so under clause (z) it is a warrant-case. It follows automatically that it is not a summons-case, because clause (x) defines a summons-case as anything that is not a warrant-case.

Is what Meena gave the police a complaint? No. A complaint under clause (h) is an allegation made to a Magistrate. What Meena gave the police station is information in a cognizable case, which is dealt with in [The First Information Report].

What the police file at the end is a police report, because clause (t) says a police report is a report forwarded to a Magistrate under section 193(3). And because it is a police report, Meena's case will be tried as a warrant case instituted on a police report.

And if the police, after investigating, find only a non-cognizable offence made out? Then the Explanation to clause (h) applies: their report is deemed to be a complaint, and the officer is deemed to be the complainant. The case then travels down the complaint track instead.

Distinctions

What this does NOT mean

"Cognizable" does not mean serious. Some offences that sound minor are cognizable and some that sound grave are not. The First Schedule decides, and nothing else does.

"Non-bailable" does not mean bail is impossible. It means bail is not a matter of right. Whether it is granted is dealt with in the bail chapters of Module III.

A complaint to the police is not a "complaint". A complaint in the Sanhita's sense goes to a Magistrate. What goes to a police station in a cognizable case is information under section 173. Students lose marks on this every year.

A warrant-case is not a case in which a warrant has been issued. The name is historical. The test is the punishment the offence can attract.

And a definition is not absolute. Section 2(1) opens with "unless the context otherwise requires".

Quick revision

• Section 2(1) defines twenty-six expressions, clauses (a) to (z). The old section 2 defined twenty-four.
• New: audio-video electronic, bail, bail bond, bond, electronic communication. "Bail" was undefined in the old Code.
• Gone: metropolitan area, pleader, India, prescribed.
• Cognizable = police may arrest without warrant. Non-cognizable = they may not.
• Bailable = shown bailable in the First Schedule or made bailable by another law. Non-bailable = everything else.
• Warrant-case = death, life, or more than two years. Summons-case = the rest.
• Complaint goes to a Magistrate and excludes a police report; a police report is a report under section 193(3).
• Inquiry is by a Magistrate or Court and is not a trial; investigation is by the police for collecting evidence; trial is nowhere defined.
• Section 2(2) borrows undefined words from the Information Technology Act 2000 and the Bharatiya Nyaya Sanhita 2023.

Test yourself

1. Define bail under the Sanhita, and say why the definition is notable. Section 2(1)(b): release of a person accused of or suspected of an offence from the custody of law upon conditions imposed by an officer or Court, on his executing a bond or bail bond. It is notable because the Code of Criminal Procedure never defined bail; this is the first statutory definition.

2. Ravi is charged with an offence punishable with two years' imprisonment. Warrant-case or summons-case? Summons-case. A warrant-case needs a punishment exceeding two years, so exactly two years falls outside it and clause (x) makes it a summons-case by residue.

3. The police investigate a case and conclude that only a non-cognizable offence is made out. What is the legal character of the report they send the Magistrate? It is deemed to be a complaint, and the officer who made it is deemed to be the complainant, under the Explanation to section 2(1)(h).

4. Distinguish a bond from a bail bond. A bond is a personal undertaking for release without surety, section 2(1)(e). A bail bond is an undertaking for release with surety, section 2(1)(d).

5. Is "trial" defined in the Sanhita? No. Inquiry and investigation are defined; trial is not. It is understood as the proceeding that begins after the inquiry stage and ends in conviction or acquittal.

6. A word used in the Sanhita is not defined in section 2 but is defined in the Information Technology Act, 2000. What meaning does it carry? The meaning assigned to it in that Act, by section 2(2).

7. Why does the definition of "victim" mention a guardian and a legal heir? Because the rights the Sanhita gives a victim, including the right of appeal, would otherwise die with the victim or be unusable by a child or a person under disability. Clause (y) extends the word to the guardian or legal heir.

"In every State". The structure is uniform across India. What differs from State to State is how many courts of each class there are, and that is settled by notification.

What changed in 2023, and it is not small

Section 6 of the old Code listed the same four classes, but with an important addition inside the second: "Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates". The Sanhita has dropped that clause, and with it a whole tier of the criminal judiciary.

The Metropolitan Magistrate is gone. The old Code allowed a State Government to declare any area with a population over one million to be a "metropolitan area", and the presidency towns and Ahmedabad were metropolitan areas from the start. Inside such an area the magistracy was called metropolitan and had its own Chief Metropolitan Magistrate. The word "metropolitan" appears on ninety-two lines of the old Code's official print and not once in the Sanhita. So in Mumbai, which was a metropolitan area, the courts are now Courts of Judicial Magistrates and the presiding officer at the head of the district magistracy is the Chief Judicial Magistrate.

The Assistant Sessions Judge is gone too. The old Code provided for Assistant Sessions Judges, gave them a sentencing power of up to ten years, and made them subordinate to the Sessions Judge by its section 10. The expression appears seventeen times in the old Code and not once in the Sanhita. Its working content survives, but attached to a different office: section 8(7) lets the Sessions Judge make orders distributing business among the Additional Sessions Judges, and section 8(8) provides for urgent applications in his absence being disposed of by an Additional Sessions Judge or, failing one, by the Chief Judicial Magistrate.

For a Mumbai student both changes are practical rather than academic. The court a case goes to has a different name from the one printed in a book bought two years ago.

Section 7: how the territory is divided

Every State is a sessions division or consists of sessions divisions. Every sessions division is a district or consists of districts. The State Government may alter the limits or the number of divisions and districts, and may divide a district into sub-divisions and alter those, but in each case only after consultation with the High Court. Divisions, districts and sub-divisions existing when the Sanhita commenced are deemed to have been formed under section 7, so nothing had to be re-notified on 1 July 2024.

The consultation requirement is the part to remember. Redrawing a sessions division moves cases and judges, so the executive cannot do it alone.

Section 8: the Court of Session

The State Government establishes a Court of Session for every sessions division. The High Court appoints the Judge who presides over it, and may also appoint Additional Sessions Judges to exercise jurisdiction in it. A Sessions Judge of one division may be appointed an Additional Sessions Judge of another, and may then sit at such places in the other division as the High Court directs.

Where the office of Sessions Judge is vacant, the High Court may arrange for urgent applications to be disposed of by an Additional Sessions Judge or, if there is none, by the Chief Judicial Magistrate of the division, and that Judge or Magistrate then has jurisdiction to deal with them.

The Court of Session ordinarily sits where the High Court specifies by notification. But in a particular case, if it thinks the general convenience of the parties and witnesses will be served, it may sit at another place in the sessions division, with the consent of the prosecution and the accused.

Sub-sections (7) and (8) are the ones that absorbed the old section 10. The Sessions Judge may make orders distributing business among the Additional Sessions Judges, and may provide for urgent applications during his absence or inability to act to be dealt with by an Additional Sessions Judge or, failing that, the Chief Judicial Magistrate.

Sections 9 to 11: the Magistrates' courts

Section 9, Courts of Judicial Magistrates. In every district the State Government, after consultation with the High Court, establishes by notification as many Courts of Judicial Magistrates of the first and second class as it specifies, at the places it specifies. The High Court appoints their presiding officers.

The proviso to section 9(1) is worth knowing because it explains a name a student meets in the newspapers. The State Government may, after consultation with the High Court, establish for any local area one or more Special Courts of Judicial Magistrates to try a particular case or class of cases. Where such a Special Court is established, no other Magistrate's court in that local area has jurisdiction over those cases. So the jurisdiction is exclusive, not additional.

Section 9(3) lets the High Court, where it appears expedient or necessary, confer the powers of a Judicial Magistrate of the first or second class on a member of the State Judicial Service who is functioning as a Judge in a civil court. That is how a civil judge comes to try criminal cases in a small station.

Section 10, the Chief Judicial Magistrate. In every district the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate. It may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, with all or any of the Chief Judicial Magistrate's powers as the High Court directs. It may designate a Judicial Magistrate of the first class in a sub-division as the Sub-divisional Judicial Magistrate, who, subject to the general control of the Chief Judicial Magistrate, supervises and controls the work of the Judicial Magistrates in the sub-division other than Additional Chief Judicial Magistrates.

Notice the difference between "shall" in sub-section (1) and "may" in sub-sections (2) and (3). Every district must have a Chief Judicial Magistrate. Additional Chief Judicial Magistrates and Sub-divisional Judicial Magistrates are optional.

Section 11, Special Judicial Magistrates. On the request of the Central or State Government, the High Court may confer on a person who holds or has held a post under the Government all or any of the powers of a Judicial Magistrate of the first or second class, for particular cases or classes of cases in a local area. The proviso adds a real limit: no such power may be conferred unless the person has the qualification or experience in legal affairs that the High Court specifies by rules. The appointment is for a term not exceeding one year at a time.

Sections 12 and 13: where they sit, and who they answer to

Section 12, local jurisdiction. Subject to the High Court's control, the Chief Judicial Magistrate defines the local limits within which Magistrates appointed under section 9 or section 11 may exercise their powers. Unless he defines otherwise, a Magistrate's jurisdiction and powers extend throughout the district. A Court of a Special Judicial Magistrate may sit anywhere within the local area for which it is established.

Sub-section (3) handles the awkward case of a Magistrate whose local jurisdiction crosses a district boundary: within that area, a reference in the Sanhita to the Court of Session or the Chief Judicial Magistrate means the Court of Session or Chief Judicial Magistrate for the district in which he ordinarily holds court.

Section 13, subordination. Every Chief Judicial Magistrate is subordinate to the Sessions Judge. Every other Judicial Magistrate is subordinate to the Chief Judicial Magistrate, subject to the general control of the Sessions Judge. The Chief Judicial Magistrate may make rules or give special orders, consistent with the Sanhita, distributing business among the Magistrates subordinate to him.

Subordination here is administrative. It settles who allots the work and who supervises; it does not entitle a Sessions Judge to tell a Magistrate what to decide in a case before him.

A worked example

Thane district has a Court of Session, and Thane is a sessions division. Anjali is a Judicial Magistrate of the first class posted at Kalyan, inside Thane district.

Who appointed her to that court? The State Government established the court at Kalyan by notification after consulting the High Court, under section 9(1). The High Court appointed her as its presiding officer, under section 9(2). Both steps are needed and they are done by different authorities.

How far does her jurisdiction run? Throughout Thane district, unless the Chief Judicial Magistrate of Thane has defined narrower limits under section 12(1). That is section 12(2).

Who is her administrative superior? The Chief Judicial Magistrate of Thane, under section 13(1), and above him the Sessions Judge, whose general control section 13(1) preserves.

A wave of food adulteration cases arrives. The State Government, after consulting the High Court, establishes a Special Court of a Judicial Magistrate of the first class at Kalyan to try them, under the proviso to section 9(1). From that day Anjali's court cannot try those cases, because the proviso makes the Special Court's jurisdiction exclusive.

A retired Deputy Collector is proposed as a Special Judicial Magistrate for a class of cases. The High Court may confer the powers under section 11, but only if he has the qualification or experience in legal affairs the High Court's rules specify, and only for a term of up to one year at a time.

Distinctions

What this does NOT mean

Section 6 does not create the High Court. It expressly says "besides the High Courts", because the High Court is a creature of the Constitution.

Subordination under section 13 is not judicial control. A Sessions Judge cannot direct a Magistrate on the merits of a pending case. What he has is general administrative control.

A Special Judicial Magistrate under section 11 is not the same as a Special Court under the proviso to section 9(1). The first is a person on whom powers are conferred; the second is a court established for a class of cases. Nor is either the same as a Special Court under a special Act, such as a POCSO Special Court, which is created by that Act and not by the Sanhita.

And a "metropolitan area" is not a thing any more. A student who writes about a Chief Metropolitan Magistrate in an answer on the Sanhita is describing a court that no longer exists.

Quick revision

• Section 6: four classes besides the High Courts and courts under other laws, namely Courts of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class, and Executive Magistrates.
• Section 7: State to sessions division to district to sub-division; alterations only after consultation with the High Court.
• Section 8: Court of Session established by the State Government; Judge and Additional Sessions Judges appointed by the High Court; sub-sections (7) and (8) carry what the old section 10 did.
• Section 9: Magistrates' courts established by the State Government after consulting the High Court; presiding officers appointed by the High Court; the proviso allows an exclusive Special Court of a Judicial Magistrate.
• Section 10: the High Court shall appoint a Chief Judicial Magistrate in every district, and may appoint an Additional Chief Judicial Magistrate and designate a Sub-divisional Judicial Magistrate.
• Section 11: Special Judicial Magistrates, only with the qualification or experience the High Court's rules require, for not more than one year at a time.
• Section 12: jurisdiction runs throughout the district unless the Chief Judicial Magistrate defines narrower limits.
• Section 13: Chief Judicial Magistrate subordinate to the Sessions Judge; other Judicial Magistrates subordinate to the Chief Judicial Magistrate.
• Abolished: Metropolitan Magistrates and the whole metropolitan structure, and the Assistant Sessions Judge.

Test yourself

1. Name the classes of criminal courts under section 6. Courts of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class, and Executive Magistrates, besides the High Courts and courts constituted under any law other than the Sanhita.

2. Who establishes a Court of a Judicial Magistrate, and who appoints its presiding officer? The State Government establishes it by notification after consultation with the High Court, section 9(1). The High Court appoints the presiding officer, section 9(2).

3. A Special Court of a Judicial Magistrate of the first class is established at Kalyan for a class of cases. May the ordinary Magistrate at Kalyan still try one of those cases? No. The proviso to section 9(1) says that where such a Special Court is established, no other Court of Magistrate in the local area has jurisdiction to try that case or class of cases.

4. What has become of the Chief Metropolitan Magistrate? The office is abolished. The Sanhita has no metropolitan magistracy at all, and the Chief Judicial Magistrate appointed under section 10(1) heads the district magistracy everywhere.

5. For how long may a Special Judicial Magistrate be appointed? For a term not exceeding one year at a time, section 11(2), and only if he has the qualification or experience in legal affairs specified by the High Court's rules.

6. Where does the substance of the old section 10, subordination of Assistant Sessions Judges, now sit? In sections 8(7) and 8(8), recast for Additional Sessions Judges, because the office of Assistant Sessions Judge no longer exists.

7. May a Court of Session sit somewhere other than the place the High Court has notified? Yes, in a particular case, if it is of opinion that this will serve the general convenience of the parties and witnesses, and with the consent of the prosecution and the accused, under section 8(6).

To an Executive Magistrate if it is administrative or executive in nature, and the section gives its own examples: granting a licence, suspending or cancelling a licence, sanctioning a prosecution, and withdrawing from a prosecution.

So the question to ask is not "is this serious?" but "does it turn on evidence, and does it end in punishment or trial?"

Section 14: the appointments

Sub-section (1). In every district 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. The "may" and the "shall" in one sentence are deliberate: how many Executive Magistrates there are is discretionary, but every district must have a District Magistrate.

Sub-section (2). The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, with such of the District Magistrate's powers under the Sanhita or any other law as it directs.

Sub-section (3). Where the office of District Magistrate falls vacant and an officer temporarily succeeds to the executive administration of the district, that officer exercises all the powers and performs all the duties of the District Magistrate, pending the State Government's orders. This is the provision that stops a district being left without an executive magistracy between two postings.

Sub-section (4). The State Government may place an Executive Magistrate in charge of a sub-division, and relieve him as occasion requires. A Magistrate so placed is called the Sub-divisional Magistrate.

Sub-section (5). The State Government may delegate its power under sub-section (4) to the District Magistrate, by general or special order and subject to whatever control and directions it imposes.

Sub-section (6). Nothing in section 14 prevents the State Government from conferring on a Commissioner of Police, under any law in force, all or any of the powers of an Executive Magistrate.

Sub-section (6) is the one a Mumbai student should remember, because it explains the orders they actually see. In a commissionerate city, prohibitory orders and security proceedings commonly issue from the Police Commissioner rather than from a Collector, and this is the sub-section that makes that lawful.

Section 15: Special Executive Magistrates

The State Government may appoint, for such term as it thinks fit, either Executive Magistrates or any police officer not below the rank of Superintendent of Police or equivalent, to be Special Executive Magistrates, for particular areas or for particular functions, and may confer on them such of the powers conferrable on Executive Magistrates as it thinks fit.

Two features are worth holding.

A police officer can be one. That is unusual and it is expressly permitted, but the floor is high: not below Superintendent of Police or equivalent.

The appointment is limited by area or by function. A Special Executive Magistrate is not a general purpose Magistrate; he is appointed for a defined patch or a defined job, and the notification appointing him is what fixes the scope.

Sections 16 and 17: where they act, and who they answer to

Section 16, local jurisdiction. Subject to the control of the State Government, the District Magistrate defines from time to time the local limits within which Executive Magistrates may exercise their powers. Except as so defined, the jurisdiction and powers of every such Magistrate extend throughout the district.

Compare that with section 12 for the judicial side. The structure is identical, but the authority that defines the limits is different: for Judicial Magistrates it is the Chief Judicial Magistrate under the High Court's control; for Executive Magistrates it is the District Magistrate under the State Government's control. The two ladders never cross.

Section 17, subordination. All Executive Magistrates are subordinate to the District Magistrate. Every Executive Magistrate other than the Sub-divisional Magistrate who exercises powers in a sub-division is also subordinate to the Sub-divisional Magistrate, subject to the general control of the District Magistrate. The District Magistrate may make rules or give special orders, consistent with the Sanhita, on the distribution or allocation of business among the Executive Magistrates subordinate to him.

What Executive Magistrates actually do in this book

It helps to know now which later chapters belong to them, because the powers are scattered and the pattern is easy to miss.

Security proceedings. The whole of Chapter IX, sections 125 to 143, is worked by Executive Magistrates. That is [Security for Keeping the Peace and for Good Behaviour] and [The Security Inquiry and What Follows It].

Public order. Chapter XI, sections 148 to 167: dispersal of an unlawful assembly, public nuisance, urgent orders under section 163, and disputes about land and water likely to cause a breach of the peace.

Arrest and the police. An Executive Magistrate may arrest under section 41, and Chapter IV requires the public to assist Magistrates.

Inquests. Section 196 gives certain Executive Magistrates the power to inquire into the cause of death in custody and other cases.

Maintenance of wives, children and parents, Chapter X, is not theirs. Section 144 gives it to a Judicial Magistrate of the first class, because ordering a man to pay and committing him to prison if he does not is judicial work in the section 3(2) sense.

A worked example

Two groups in a Palghar village are about to come to blows over a strip of land. Each says it is theirs. The police report that a breach of the peace is likely.

Who acts, and under what? The Sub-divisional Magistrate, an Executive Magistrate placed in charge of the sub-division under section 14(4). He acts under section 164, which deals with a dispute concerning land or water likely to cause a breach of the peace, and he may attach the subject of the dispute and appoint a receiver under section 165.

Is he deciding who owns the land? No, and this is the point of the separation. He is preventing a fight. Ownership is for a civil court, and his order says so expressly.

Now suppose one of the men assaults the other. That is an offence. The Executive Magistrate cannot try it. It goes to a Judicial Magistrate, because trying it means appreciating evidence and may end in punishment, which section 3(2)(a) reserves to the judicial side.

And suppose the same man keeps threatening others. The Executive Magistrate may require him to show cause why he should not give security for keeping the peace, under Chapter IX. That is preventive, not punitive, so it stays on the executive side even though it can end in imprisonment in default of security.

Distinctions

What this does NOT mean

An Executive Magistrate is not a lower grade of Judicial Magistrate. They are different offices on different ladders. Neither is promoted into the other.

"Executive" does not mean the power is trivial. An order under section 163 can shut down movement in a whole district, and an order under Chapter IX can put a person in prison for failing to furnish security. The powers are serious; what makes them executive is that they are preventive and do not decide guilt.

The District Magistrate is not the head of the criminal courts of the district. That is the Sessions Judge on the sessions side and the Chief Judicial Magistrate on the magisterial side. The District Magistrate heads only the executive magistracy.

And a Special Executive Magistrate who is a police officer does not become a judge. He gets specified executive powers for a specified area or function, and nothing more.

Quick revision

• Section 14(1): the State Government may appoint Executive Magistrates and shall appoint one District Magistrate in every district.
• Section 14(2): Additional District Magistrate, with such powers as the State Government directs.
• Section 14(3): an officer temporarily succeeding to the executive administration exercises the District Magistrate's powers pending orders.
• Section 14(4) and (5): Sub-divisional Magistrate; the power to place and relieve may be delegated to the District Magistrate.
• Section 14(6): a Commissioner of Police may be given the powers of an Executive Magistrate.
• Section 15: Special Executive Magistrates, who may be police officers not below Superintendent of Police or equivalent, for particular areas or functions.
• Section 16: local limits defined by the District Magistrate; otherwise jurisdiction runs throughout the district.
• Section 17: all Executive Magistrates subordinate to the District Magistrate; those in a sub-division also to the Sub-divisional Magistrate.
• Section 3(2) is the test: evidence, punishment, detention or trial goes judicial; administrative or executive, including licences and sanctions, goes executive.

Test yourself

1. Who appoints Executive Magistrates, and who appoints Judicial Magistrates? The State Government appoints Executive Magistrates under section 14(1). The High Court appoints Judicial Magistrates as presiding officers under section 9(2), the courts themselves being established by the State Government after consultation with the High Court.

2. May a police officer be a Special Executive Magistrate? Yes. Section 15 allows the State Government to appoint a police officer not below the rank of Superintendent of Police or equivalent, for particular areas or particular functions.

3. The office of District Magistrate falls vacant. Who exercises his powers? Any officer who temporarily succeeds to the executive administration of the district exercises all the District Magistrate's powers and duties pending the orders of the State Government, under section 14(3).

4. A State law says "the Magistrate may cancel the licence". Which Magistrate? An Executive Magistrate. Section 3(2)(b) names suspension or cancellation of a licence as an example of an administrative or executive function.

5. Who defines the local limits within which an Executive Magistrate acts? The District Magistrate, subject to the control of the State Government, under section 16(1). Otherwise the Magistrate's powers extend throughout the district.

6. Why is maintenance under section 144 not an Executive Magistrate's job? Because section 144 gives it to a Judicial Magistrate of the first class. It involves taking evidence and can end in a warrant and imprisonment, which is judicial work under the section 3(2)(a) test.

The panel, sub-sections (4) and (5). The District Magistrate, in consultation with the Sessions Judge, prepares a panel of names of persons fit to be appointed Public Prosecutor or Additional Public Prosecutor for the district. And then the hard rule: no person may be appointed by the State Government unless his name appears on that panel. The panel is a real check, because it puts a serving judge into the process.

Where there is a cadre, sub-section (6). If a State has a regular Cadre of Prosecuting Officers, the State Government must appoint only from that cadre. The proviso allows it to go to the District Magistrate's panel instead where, in its opinion, no suitable person is available in the cadre. So a career prosecution service, where one exists, takes priority over political or ad hoc appointment.

Eligibility, sub-section (7). A person is eligible to be appointed a Public Prosecutor or Additional Public Prosecutor under sub-sections (1), (2), (3) or (6) only if he has been in practice as an advocate for not less than seven years.

Special Public Prosecutor, sub-section (8). For any case or class of cases, the Central or State Government may appoint as a Special Public Prosecutor a person who has been in practice as an advocate for not less than ten years. The proviso is worth marking: the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.

Counting the years, sub-section (9). Time spent as a Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor or other Prosecuting Officer, whether before or after the Sanhita commenced, counts as practice as an advocate for sub-sections (7) and (8).

Section 19: Assistant Public Prosecutors

Sub-section (1). The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

Sub-section (2). The Central Government may appoint one or more Assistant Public Prosecutors for any case or class of cases in the Courts of Magistrates.

Sub-section (3). Where no Assistant Public Prosecutor is available for a particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case, after giving fourteen days' notice to the State Government.

The proviso, and this is the part that carries a principle. No police officer is eligible to be appointed an Assistant Public Prosecutor if he has taken any part in the investigation of the offence being prosecuted, or if he is below the rank of Inspector.

The first limb is the important one, and it is the whole reason the prosecution is separated from the police. A man cannot investigate a case and then stand up in court as the officer of the court who is expected to be fair about the material he himself gathered.

Section 20: the Directorate of Prosecution

This section is where the Sanhita builds a structure the old Code only sketched.

Sub-section (1). The State Government may establish a Directorate of Prosecution in the State, consisting of a Director of Prosecution and as many Deputy Directors as it thinks fit; and a District Directorate of Prosecution in every district, with as many Deputy Directors and Assistant Directors as it thinks fit.

Sub-section (2), eligibility. A Director or Deputy Director of Prosecution must have been in practice as an advocate for not less than fifteen years, or be or have been a Sessions Judge. An Assistant Director must have been in practice for not less than seven years, or have been a Magistrate of the first class.

Sub-sections (3) and (4), the chain. The Directorate is headed by the Director, who functions under the administrative control of the Home Department of the State. Every Deputy Director and Assistant Director is subordinate to the Director, and every Assistant Director is subordinate to the Deputy Director.

Sub-sections (5) and (6), who reports to whom. Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors appointed by the State Government to conduct cases in the High Court are subordinate to the Director. Those appointed to conduct cases in the District Courts, and Assistant Public Prosecutors appointed under section 19(1), are subordinate to the Deputy Director or the Assistant Director.

Sub-sections (7) and (8), what the seniors actually do. This is new and it is unusually concrete for a procedural Code. The Director monitors cases where the offence is punishable with ten years or more, or life, or death, expedites the proceedings and gives an opinion on filing appeals. The Deputy Director examines and scrutinises police reports and monitors cases where the offence is punishable with seven years or more but less than ten, to ensure expeditious disposal.

So the Sanhita divides supervision by sentence bracket, and it makes the scrutiny of the charge sheet somebody's named duty rather than nobody's.

A worked example

A charge sheet is filed in Thane for an offence punishable with twelve years.

Who prosecutes it in the Sessions Court? The Public Prosecutor or an Additional Public Prosecutor for Thane district, appointed by the State Government under section 18(3). His name had to be on the panel the District Magistrate prepared in consultation with the Sessions Judge, unless Maharashtra was appointing from a regular cadre under section 18(6). He must have been in practice for at least seven years.

Who monitors it? The Director of Prosecution, because the punishment is ten years or more: section 20(7).

And if it had been punishable with eight years? The Deputy Director, under section 20(8), who would also have scrutinised the police report.

Now suppose the victim's family wants their own senior counsel. They cannot replace the Public Prosecutor. But if a Special Public Prosecutor is appointed under section 18(8), the proviso allows the Court to permit the victim to engage an advocate of his choice to assist the prosecution. The word is "assist", and the conduct of the case remains with the prosecution.

And suppose the Assistant Public Prosecutor is on leave when a Magistrate's case is called. The District Magistrate may appoint another person for that case under section 19(3), after fourteen days' notice to the State Government. He may not appoint the Sub-Inspector who investigated it: the proviso bars a police officer who took part in the investigation, and bars anyone below Inspector in any event.

Distinctions

What this does NOT mean

The Public Prosecutor is not the police's lawyer. He is an officer of the court appointed by the Government, and the bar in the proviso to section 19(3) on an investigating officer prosecuting the case he investigated is the clearest statement of that in the Sanhita.

The victim does not conduct the prosecution. The most the Sanhita allows is that, where a Special Public Prosecutor has been appointed under section 18(8), the Court may permit the victim's advocate to assist.

The panel under section 18(4) is not advisory. Section 18(5) makes it a condition: no appointment for a district may be made unless the name is on it.

And the Directorate is not a court. It is an administrative structure under the Home Department, and its monitoring duties do not let it direct a prosecutor on what to say in court.

Quick revision

• Section 18(1): Public Prosecutor for the High Court, appointed by the Central or State Government after consultation with the High Court.
• Section 18(3) to (5): one for every district; the District Magistrate, with the Sessions Judge, prepares the panel, and no appointment may be made off it.
• Section 18(6): where a regular cadre exists, appointment must come from the cadre unless no suitable person is available.
• Section 18(7) and (8): seven years' practice for a Public Prosecutor, ten for a Special Public Prosecutor; and the Court may permit the victim's advocate to assist.
• Section 19(1): Assistant Public Prosecutors for the Courts of Magistrates.
• Section 19(3) proviso: no police officer who took part in the investigation, and none below Inspector.
• Section 20(2): Director and Deputy Director need fifteen years' practice or Sessions Judge experience; Assistant Director seven years or first class Magistrate experience.
• Section 20(7) and (8): the Director monitors ten years and above, life and death; the Deputy Director scrutinises police reports and monitors seven years up to ten.

Test yourself

1. A person with six years at the Bar is proposed as Public Prosecutor for a district. Is he eligible? No. Section 18(7) requires not less than seven years in practice as an advocate. Time served as a Prosecuting Officer would count towards it under section 18(9), but six years is short either way.

2. Who prepares the panel for district appointments, and can the State Government go outside it? The District Magistrate prepares it in consultation with the Sessions Judge, section 18(4). Section 18(5) forbids appointment off the panel. The only route around it is section 18(6), which requires appointment from a regular cadre where one exists.

3. May the Sub-Inspector who investigated a case appear as Assistant Public Prosecutor in it? No, on two grounds under the proviso to section 19(3): he took part in the investigation, and he is below the rank of Inspector.

4. Which officer monitors a case where the offence carries life imprisonment? The Director of Prosecution, under section 20(7), which covers offences punishable with ten years or more, life or death.

5. Can a victim's family appoint their own prosecutor? No. But where a Special Public Prosecutor is appointed under section 18(8), the proviso permits the Court to allow the victim to engage an advocate of his choice to assist the prosecution.

6. Under whose administrative control does the Director of Prosecution function? The Home Department of the State, section 20(3).

For an offence under any other law, clause (b). If that law names a court, that court tries it. If it names none, the offence may be tried by the High Court or by the court shown in the First Schedule as competent.

That second limb explains something a student meets constantly. The POCSO Act names a Special Court, so a POCSO offence goes there. The Juvenile Justice Act names the Board and the Children's Court. Section 21(b) is the rule that gives way to them.

Section 22: the higher courts

A High Court may pass any sentence authorised by law. There is no ceiling.

A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law, with one condition: a sentence of death passed by such a Judge is subject to confirmation by the High Court. That confirmation is not an appeal and does not depend on anybody appealing. It is a separate proceeding, worked out in Chapter XXX of the Sanhita, sections 407 to 412, which belongs to Module III.

Note what is not in section 22 any more. The old Code's section 28(3) gave an Assistant Sessions Judge a ceiling of ten years. There are no Assistant Sessions Judges under the Sanhita, so there is no such sub-section.

Section 23: the Magistrates

Three things about this table deserve attention.

The fine ceilings went up. The old section 29 allowed a first class Magistrate a fine up to ten thousand rupees and a second class Magistrate up to five thousand. The Sanhita makes them fifty thousand and ten thousand. And the old figure of ten thousand was itself substituted in 2006 for five thousand, so a book printed before then carries a figure two revisions out of date.

Community service is new. It is now a punishment a Magistrate of either class may award, and the Explanation defines it: work the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration. The last words matter, because they distinguish it from employment.

The Chief Judicial Magistrate's ceiling is stated negatively. He may pass any sentence except three: death, life, and more than seven years. So there is no fine ceiling on him at all.

Section 24: imprisonment in default of a fine

A Magistrate may award imprisonment in default of payment of a fine, as authorised by law, subject to two limits in the proviso.

(a) The term must not exceed the Magistrate's own powers under section 23.

(b) Where imprisonment has been awarded as part of the substantive sentence, the default term must not exceed one fourth of the term of imprisonment the Magistrate is competent to inflict for the offence otherwise than in default.

Sub-section (2) then makes clear that the default imprisonment may be in addition to a substantive sentence of imprisonment for the maximum term the Magistrate could award under section 23. So default imprisonment is not counted within the ceiling; it sits on top of it.

That combination catches students out, so take it slowly. A first class Magistrate can give three years' imprisonment, which is his maximum. He can also fine, and he can add imprisonment in default of the fine. That default term is capped at one fourth of what he could have given as a substantive term, which is one fourth of three years, so nine months. Total exposure: three years and nine months.

Section 25: several offences at one trial

Sub-section (1). Where a person is convicted at one trial of two or more offences, the Court may, subject to section 9 of the Bharatiya Nyaya Sanhita, sentence him for those offences to the several punishments prescribed which the Court is competent to inflict; and the Court shall, considering the gravity of the offences, order such punishments to run concurrently or consecutively.

This is a real change of drafting and it is worth a line in an answer. The old section 31(1) said the sentences ran one after the other unless the Court directed otherwise, so consecutive was the default and concurrent needed an order. The Sanhita makes the Court decide, expressly and by reference to the gravity of the offences, which way they run. Silence is no longer an option.

Sub-section (2). In the case of consecutive sentences, the Court need not send the offender to a higher court merely because the aggregate exceeds what it could inflict for a single offence. But the proviso caps it twice over:

(a) In no case may the person be sentenced to imprisonment for a longer period than twenty years. The old Code said fourteen.

(b) The aggregate must not exceed twice the punishment the Court is competent to inflict for a single offence.

Sub-section (3). For the purpose of an appeal by the convicted person, the aggregate of consecutive sentences is deemed to be a single sentence. That matters because the right of appeal often depends on the length of the sentence, and this stops a long total being broken into short unappealable pieces.

A worked example

Farid is convicted by a Judicial Magistrate of the first class at Bandra of three offences at one trial. For each, the maximum the Magistrate could award is three years.

What is the most he can get? Three years for each offence is within the Magistrate's competence. If the sentences are ordered to run consecutively the aggregate would be nine years, but the proviso to section 25(2)(b) caps the aggregate at twice what the Magistrate could inflict for a single offence, that is six years. The twenty year cap in clause (a) does not bite here because six is well under it.

Must the Magistrate say which way they run? Yes. Section 25(1) requires him to order them to run concurrently or consecutively, considering the gravity of the offences. Under the old Code, saying nothing would have made them consecutive.

He also fines Farid ten thousand rupees on one count. That is within the fifty thousand ceiling in section 23(2). He adds imprisonment in default. The default term cannot exceed one fourth of three years, so nine months, under the proviso to section 24(1)(b), and it can be added on top of the substantive sentences under section 24(2).

Farid appeals. For the purpose of his appeal the six years is treated as a single sentence, under section 25(3), and not as three separate two year sentences.

Now change the facts. The offences were under sections 64 to 71 of the Bharatiya Nyaya Sanhita. Then the proviso to section 21(a) applies, and the trial should as far as practicable have been before a court presided over by a woman.

Distinctions

What this does NOT mean

Section 23 does not say which offences a Magistrate may try. It says how heavily he may sentence. Triability is section 21 with the First Schedule, and the two are different questions. A Magistrate can be competent to try an offence and yet find, after conviction, that the sentence the case deserves is beyond his powers; the Sanhita has a route for that in Chapter XXVI.

"As far as practicable by a Court presided over by a woman" is not a jurisdictional condition. It is a direction in the proviso to section 21(a). A trial otherwise conducted is not without jurisdiction.

Imprisonment in default is not part of the sentence ceiling. Section 24(2) allows it in addition to the maximum substantive term.

And the twenty year cap in section 25 is not a cap on sentencing generally. It applies to the aggregate of consecutive sentences passed at one trial by a court whose single offence power is smaller. A Sessions Judge sentencing for one offence is governed by section 22, not by this cap.

Quick revision

• Section 21(a): High Court, Court of Session, or the court shown in the First Schedule. Proviso: sexual offences under BNS sections 64 to 71 to be tried as far as practicable by a Court presided over by a woman.
• Section 21(b): for an offence under another law, the court that law names; failing that, the High Court or the court shown in the First Schedule.
• Section 22: High Court, any sentence. Sessions Judge and Additional Sessions Judge, any sentence, but death needs High Court confirmation.
• Section 23: Chief Judicial Magistrate, up to seven years, no death or life. First class, three years or fifty thousand rupees or both or community service. Second class, one year or ten thousand rupees or both or community service.
• Section 24: default imprisonment within the Magistrate's own powers, and not more than one fourth of the substantive term he could award; it may be in addition to the maximum.
• Section 25: the Court shall order concurrent or consecutive, considering gravity. Aggregate capped at twenty years and at twice the single offence power. For appeal, the aggregate is a single sentence.

Test yourself

1. What is the maximum fine a Judicial Magistrate of the second class may impose? Ten thousand rupees, under section 23(3). The old Code allowed five thousand.

2. A Sessions Judge passes a sentence of death. Is it executable at once? No. Section 22(2) makes it subject to confirmation by the High Court, and that is so whether or not anybody appeals.

3. A first class Magistrate convicts of four offences at one trial and orders the sentences to run consecutively. What is the longest aggregate he can impose? Six years. The proviso to section 25(2)(b) caps the aggregate at twice the punishment he is competent to inflict for a single offence, and that is twice three years.

4. Define community service under the Sanhita. The Explanation to section 23: work the Court may order a convict to perform as a form of punishment that benefits the community, for which he is not entitled to any remuneration.

5. May imprisonment in default of a fine take the total beyond a Magistrate's sentencing ceiling? Yes. Section 24(2) allows it in addition to a substantive sentence for the maximum term, subject to the one fourth limit in the proviso to section 24(1)(b).

6. An offence is created by a special Act which does not say which court is to try it. Which court tries it? The High Court, or the court shown in the First Schedule as competent to try it, under section 21(b).

7. Which change did section 25 make to the way multiple sentences run? The old section 31 made them consecutive unless the Court directed otherwise. Section 25(1) requires the Court itself to order, considering the gravity of the offences, whether they run concurrently or consecutively.

Unpack the conditions, because all four must be met.

1. He was invested with the powers by the High Court or the State Government.
2. The new office is equal or higher, not lower.
3. It is of the same nature, so a move from the executive to the judicial side is not covered.
4. It is within a like local area under the same State Government.

And the whole thing yields to a contrary direction. That is what "unless the High Court or the State Government, as the case may be, otherwise directs, or has otherwise directed" does.

Section 28: withdrawing powers

Sub-section (1). The High Court or the State Government may withdraw all or any of the powers conferred by it under the Sanhita on any person, or by any officer subordinate to it.

Sub-section (2). Powers conferred by the Chief Judicial Magistrate or by the District Magistrate may be withdrawn by the respective Magistrate who conferred them.

The principle is the ordinary one: the authority that gave the power takes it away, and a superior authority may take away what its subordinate gave.

Section 29: the successor-in-office

This is the section that earns the chapter its place.

Sub-section (1). Subject to the other provisions of the Sanhita, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office.

So a part-heard proceeding does not collapse when the presiding officer is transferred, promoted or retires. His successor picks it up. Whether the evidence already recorded can simply be used, or whether a witness must be recalled, is a separate question governed by the trial chapters and by section 365, which deals with a conviction on evidence partly recorded by one Magistrate and partly by another.

Sub-section (2). Where there is doubt about who the successor-in-office of a Judge is, the Sessions Judge determines it by order in writing.

Sub-section (3). Where there is doubt about who the successor-in-office of a Magistrate is, the Chief Judicial Magistrate or the District Magistrate, as the case may be, determines it by order in writing.

Notice that sub-section (3) names both, and which one decides follows the magistracy in question: the Chief Judicial Magistrate for a Judicial Magistrate, the District Magistrate for an Executive Magistrate. That is the two ladders from [Classes of Criminal Courts] and [Executive Magistrates] appearing again.

A worked example

Shri Deshmukh is a Judicial Magistrate of the first class at Vasai. The High Court, on the State Government's request, has conferred on him the powers of a Special Judicial Magistrate for a class of excise cases, by an order naming him personally.

When did those powers begin? On the day the order was communicated to him, under section 26(2), not on the day it was passed.

He is transferred to Palghar as a Judicial Magistrate of the first class. Does he keep the special powers? The order named him specially by name under section 26(1), and section 27 carries powers to an equal or higher office of the same nature in a like local area under the same State Government. The move satisfies section 27, so unless the High Court directs otherwise he exercises the same powers at Palghar.

The High Court later decides the arrangement is unnecessary. It may withdraw the powers under section 28(1), because it conferred them.

Meanwhile a trial Shri Deshmukh had part heard at Vasai is still going on. His successor at Vasai may continue it under section 29(1). There is no need to start again.

Nobody is sure who the successor is, because two officers have been given charge of different parts of the file. The Chief Judicial Magistrate determines the question by an order in writing under section 29(3).

Distinctions

What this does NOT mean

Section 29 does not mean the successor may act as though he heard the evidence. It means the office continues. What use he may make of evidence recorded by his predecessor is governed elsewhere, and a trial may still have to be reheard in part.

Section 27 does not carry a power sideways into a different kind of office. The new office must be of the same nature, so a Judicial Magistrate appointed as an Executive Magistrate does not carry his judicial powers with him.

And an order under section 26 is not effective when it is signed. Section 26(2) makes communication the moment it takes effect.

Quick revision

• Section 26(1): powers may be conferred on persons specially by name, in virtue of their offices, or on classes of officials by their official titles.
• Section 26(2): the order takes effect from the date it is communicated to the person empowered.
• Section 27: powers continue on appointment to an equal or higher office of the same nature in a like local area under the same State Government, unless otherwise directed.
• Section 28(1): the High Court or the State Government may withdraw what it conferred.
• Section 28(2): the Chief Judicial Magistrate or District Magistrate may withdraw what he conferred.
• Section 29(1): the powers and duties of a Judge or Magistrate may be exercised by his successor-in-office.
• Section 29(2) and (3): doubt about a Judge's successor is settled by the Sessions Judge; about a Magistrate's, by the Chief Judicial Magistrate or the District Magistrate, in each case by order in writing.

Test yourself

1. From what date does an order conferring powers take effect? From the date it is communicated to the person empowered, section 26(2).

2. Name the three ways in which powers may be conferred. Specially by name, in virtue of the office held, and on classes of officials generally by their official titles, section 26(1).

3. A Magistrate invested with powers in one district is appointed to a lower office in another district in the same State. Do his powers travel with him? No. Section 27 applies only to an appointment to an equal or higher office of the same nature within a like local area under the same State Government.

4. A Sessions Judge who has part heard a trial retires. Must the trial start again? Not by reason of the retirement. Section 29(1) allows his successor-in-office to exercise his powers and perform his duties.

5. Who resolves a doubt about who the successor-in-office of an Executive Magistrate is? The District Magistrate, by order in writing, under section 29(3).

6. Who may withdraw powers conferred by a District Magistrate? The District Magistrate himself, under section 28(2), and the State Government under section 28(1) as the authority to which he is subordinate.

The area is his own. A Superintendent of Police appointed for a district may exercise those powers throughout the district, and not outside it.

It works both ways in practice. Because the senior officer has the same powers, he can take over an investigation, and because he has no greater powers, he cannot do by rank what the Sanhita does not permit a station house officer to do at all.

Section 31: when the public must assist

Every person is bound to assist a Magistrate or police officer reasonably demanding his aid:

(a) in the taking, or the preventing of the escape, of any other person whom the Magistrate or officer is authorised to arrest; (b) in the prevention or suppression of a breach of the peace; or (c) in the prevention of any injury attempted to be committed to any public property.

The word "reasonably" is the limit. A demand that is not reasonable does not bind, and it is for the person making the demand to be able to justify it. Notice also that clause (c) is confined to public property; there is no general duty under this section to defend a neighbour's private property.

Section 32: aid to a person other than a police officer executing a warrant

Where a warrant is directed to a person who is not a police officer, any other person may aid in its execution, provided the person to whom the warrant is directed is near at hand and acting in the execution of the warrant.

This is permissive, not compulsory. It answers a practical question: a private person entrusted with a warrant is not on his own, and a bystander who helps him is acting lawfully. The two conditions stop the warrant being executed by a crowd in the absence of the person actually authorised.

Section 33: the public duty to inform

Sub-section (1). Every person who is aware of the commission of, or of the intention of any other person to commit, an offence punishable under any of a listed set of sections of the Bharatiya Nyaya Sanhita, 2023 must forthwith give information to the nearest Magistrate or police officer.

The listed sections are:

• sections 103 to 105;
• sections 111 to 113;
• sections 140 to 144;
• sections 147 to 154, and section 158;
• sections 178 to 182;
• sections 189 and 191;
• sections 274 to 280;
• section 307;
• sections 309 to 312;
• sub-section (5) of section 316;
• sections 326 to 328; and
• sections 331 and 332.

Sub-section (2). For this section "offence" includes any act committed at any place out of India which would constitute an offence if committed in India.

Two points for an answer. First, the duty is general: it falls on every person, not on officials. Second, it is confined to the listed offences, which are the grave ones: offences against the State, counterfeiting, offences affecting public health and safety, and the most serious offences against the person and against property.

Section 34: the duty of village officers and residents

This section does the same work as section 33 but for a village, and it is wider, because it catches things that are not yet offences at all.

Who is bound. Every officer employed in connection with the affairs of a village, and every person residing in a village. Sub-section (2)(iii) defines the officer as a member of the village panchayat, and includes the headman and every officer or other person appointed to perform any function connected with the administration of the village.

To whom. The nearest Magistrate or the officer in charge of the nearest police station, whichever is nearer.

About what. Six categories, in clauses (a) to (f):

(a) the permanent or temporary residence in or near the village of any notorious receiver or vendor of stolen property; (b) the resort to, or passage through, the village of any person known or reasonably suspected to be a robber, escaped convict or proclaimed offender; (c) the commission of, or intention to commit, in or near the village any non-bailable offence or any offence punishable under sections 189 and 191 of the Bharatiya Nyaya Sanhita; (d) any sudden or unnatural death, or death in suspicious circumstances, or the discovery of a corpse or part of a corpse in circumstances raising a reasonable suspicion of such a death, or the disappearance of a person in circumstances raising a reasonable suspicion that a non-bailable offence has been committed in respect of him; (e) the commission of, or intention to commit, at a place out of India near the village, an act which would be an offence in India under a listed set of Bharatiya Nyaya Sanhita sections, namely 103, 105, 111, 112, 113, 178 to 181, 305, 307, 309 to 312, clauses (f) and (g) of section 326, 331 and 332; (f) any matter likely to affect the maintenance of order, the prevention of crime, or the safety of person or property, about which the District Magistrate, by general or special order made with the previous sanction of the State Government, has directed him to give information.

Sub-section (2)(i) adds that "village" includes village lands, and (2)(ii) extends "proclaimed offender" to a person proclaimed by a court or authority in a territory to which the Sanhita does not extend, in respect of an act which in India would be an offence punishable with ten years or more, life, or death.

Clause (d) is the one worth remembering, because it is the beginning of the trail that ends in the inquest chapter. A village officer's report of an unnatural death is often what starts an inquiry under section 194 or section 196.

A worked example

A Superintendent of Police in Raigad district hears that a man wanted in a robbery is hiding in a village.

May he act himself, without going through the station house officer? Yes. Section 30 gives him, throughout Raigad, the same powers a station house officer has within his station. Robbery is cognizable, so the power to arrest without warrant is among them.

He asks two villagers standing nearby to help him stop the man escaping. They are bound to assist, under section 31(a), because the demand is a reasonable one and it relates to preventing the escape of a person the officer is authorised to arrest. A refusal is punishable under the Bharatiya Nyaya Sanhita, and that is the sanction behind the section rather than anything in the Sanhita itself.

The village headman knew the man had been staying there for a fortnight and said nothing. He was bound to communicate that information under section 34(1)(b), because the man is reasonably suspected to be a robber, and the communication had to go to the nearest Magistrate or the officer in charge of the nearest police station, whichever was nearer.

A body is later found in the village well. Every resident who knows of it is bound by section 34(1)(d) to report it: it is the discovery of a corpse in circumstances raising a reasonable suspicion of a sudden, unnatural or suspicious death.

A warrant against a second man is directed to a private person, and a neighbour helps him execute it. That is lawful under section 32, because the person to whom the warrant is directed was near at hand and acting in its execution.

Distinctions

What this does NOT mean

Section 30 does not give a senior officer wider powers than a station house officer. It gives him the same powers over a larger area.

Section 31 does not oblige a citizen to defend private property. Clause (c) is confined to injury attempted to public property.

Section 33 does not require everybody to report every offence. It is confined to the listed sections of the Bharatiya Nyaya Sanhita, and those are the grave ones.

And section 34 is not confined to offences. Clause (a) is about a person's residence, clause (b) about his passage through the village, and clause (f) about anything the District Magistrate has directed with the State Government's previous sanction.

Quick revision

• Section 30: a police officer superior in rank to a station house officer has the same powers throughout the local area to which he is appointed.
• Section 31: every person must assist a Magistrate or police officer reasonably demanding aid in (a) arrest or preventing escape, (b) preventing or suppressing a breach of the peace, (c) preventing injury to public property.
• Section 32: where a warrant is directed to a non police officer, others may aid, if he is near at hand and acting on it.
• Section 33: every person aware of a listed Bharatiya Nyaya Sanhita offence, or of an intention to commit one, must forthwith inform the nearest Magistrate or police officer; "offence" includes an act done outside India that would be an offence in India.
• Section 34: village officers and residents must communicate six categories of information to the nearest Magistrate or station house officer, whichever is nearer; "village" includes village lands.

Test yourself

1. What power does section 30 give a Superintendent of Police? The same powers as an officer in charge of a police station has within his station, exercisable throughout the local area to which the Superintendent is appointed. It is coextensive, not greater.

2. Is a citizen bound to help a police officer protect a private shop from damage? Not under section 31. Clause (c) covers injury attempted to public property. He would be bound if the demand fell under clause (a) or (b), for example if a breach of the peace were being suppressed.

3. To whom must a village resident report the discovery of a corpse? To the nearest Magistrate or the officer in charge of the nearest police station, whichever is nearer, under section 34(1)(d).

4. Does the duty to inform under section 33 extend to acts committed abroad? Yes. Section 33(2) says "offence" includes any act committed at any place out of India which would constitute an offence if committed in India.

5. May a bystander help a private person execute a warrant? Yes, under section 32, if the person to whom the warrant is directed is near at hand and acting in its execution. It is a permission, not a duty.

6. Who is an "officer employed in connection with the affairs of a village"? By section 34(2)(iii), a member of the village panchayat, and it includes the headman and every officer or other person appointed to perform any function connected with the administration of the village.

(c) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years, whether with or without fine, or with death, and the officer has reason to believe on the basis of that information that he has committed it;

(d) who has been proclaimed as an offender, either under the Sanhita or by order of the State Government;

(e) 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 it;

(f) who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;

(g) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union;

(h) who has been concerned in, or against whom a reasonable complaint has been made or credible information received or a reasonable suspicion exists of his having been concerned in, an act committed outside India which would be an offence in India, and for which he is liable under an extradition law or otherwise to be apprehended or detained in custody in India;

(i) who, being a released convict, commits a breach of a rule made under section 394(5);

(j) for whose arrest a requisition has been received from another police officer, written or oral, provided the requisition specifies the person and the offence or other cause, and it appears that the person might lawfully have been arrested without a warrant by the officer who issued it.

The necessity test in section 35(1)(b), which is what the paper asks about

Read clause (b) again slowly. It applies to an offence punishable with imprisonment which may be less than seven years or which may extend to seven years. That is the great bulk of ordinary crime. For that class, a reasonable complaint or credible information or reasonable suspicion is not enough on its own. The officer must also satisfy two conditions:

(i) he has reason to believe, on the basis of that complaint, information or suspicion, that the person has committed the offence; and

(ii) he is satisfied that the arrest is necessary for one of five purposes:

• (a) to prevent the person from committing any further offence; or
• (b) for proper investigation of the offence; or
• (c) to prevent him from causing the evidence to disappear or tampering with it in any manner; or
• (d) to prevent him from making any inducement, threat or promise to a person acquainted with the facts, so as to dissuade him from disclosing them to the Court or the police officer; or
• (e) because unless he is arrested his presence in Court whenever required cannot be ensured.

And then the two recording duties, which are what turn the test into something that can be checked:

The officer shall record, while making the arrest, his reasons in writing.

And the proviso: a police officer shall, in all cases where the arrest of a person is NOT required under this sub-section, record the reasons in writing for not making the arrest.

That second duty is unusual and students often miss it. The officer has to write down his reasons either way. So the file shows a decision was taken, and the Magistrate can see it.

Sub-section (2) completes the picture from the other side: subject to section 39, no person concerned in a non-cognizable offence, or against whom a complaint or credible information or reasonable suspicion exists of his being so concerned, shall be arrested except under a warrant or order of a Magistrate.

Sections 35(3) to (6): the notice of appearance

This is the old section 41A, moved bodily into section 35, and it is the alternative to arrest.

Sub-section (3). In all cases where the arrest of a person is not required under sub-section (1), the police officer shall issue a notice directing the person against whom a reasonable complaint has been made, or credible information received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as the notice specifies.

Sub-section (4). Where such a notice is issued, it is the duty of that person to comply with its terms.

Sub-section (5). Where he complies and continues to comply, he shall not be arrested in respect of the offence referred to in the notice, unless the police officer, for reasons to be recorded, is of the opinion that he ought to be arrested.

Sub-section (6). Where he fails to comply at any time, or is unwilling to identify himself, the officer may, subject to any orders of a competent Court, arrest him for the offence mentioned in the notice.

So the scheme is: no necessity, no arrest; notice instead; comply and you stay free; fail to comply and the protection falls away.

Section 35(7): the new bar, and it is examinable

No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age.

This sub-section has no counterpart in the old Code. Three conditions must coexist: the offence carries less than three years; and the person is infirm or above sixty; and then the arrest needs the prior permission of an officer not below Deputy Superintendent of Police.

Notice that it is a permission requirement and not an absolute bar. An infirm person may be arrested for such an offence, but a rank above the station house officer must have said so first.

Section 37: the control room and the designated officer

The State Government shall:

(a) establish a police control room in every district and at State level; and

(b) designate a police officer in every district and in every police station, not below the rank of Assistant Sub-Inspector of Police, who shall be responsible for maintaining the information about the names and addresses of the persons arrested and the nature of the offence with which they are charged, which shall be prominently displayed in any manner including in digital mode in every police station and at the district headquarters.

Clause (a) is the old section 41C. Clause (b) is new, and it converts a general obligation into a named officer's duty with a published output. Section 48(1), which is dealt with in [The Rights of an Arrested Person], then requires the arresting officer to inform that designated police officer in the district of every arrest.

The cases

Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.

Facts. A young advocate of twenty-eight was called to the Senior Superintendent of Police's office at Ghaziabad for enquiries and was kept there. His family was told he would be released in the evening. He was not produced before a Magistrate. His whereabouts could not be traced; he was then found in a Station House Officer's custody and later moved to an undisclosed place. His brother petitioned the Supreme Court under article 32.

Held. The existence of the power to arrest is one thing and the justification for exercising it is quite another. An officer must be able to justify the arrest and not merely point to the power. No arrest may be made in a routine manner on a mere allegation, and none without a reasonable satisfaction reached after some investigation, both as to the person's complicity and as to the need to arrest at all. A person is not liable to arrest merely on suspicion. Except in heinous offences, an arrest must be avoided where a notice to attend the police station would do. The Court also held that an arrested person has the right, on request, to have a friend or relative informed and to consult a lawyer privately; that the officer must tell him of that right when he is brought to the station; that an entry must be made in the diary of who was informed; and that the Magistrate before whom he is produced must satisfy himself that this was done. These protections flow from articles 21 and 22(1).

Why it matters here. Everything in section 35(1)(b)(ii) began as this judgment. The phrase "except in heinous offences, an arrest must be avoided if a police officer issues notice to a person to attend the Station House" is the notice of appearance in section 35(3) before Parliament wrote it.

Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Facts. A husband facing a complaint under section 498A of the Indian Penal Code and section 4 of the Dowry Prohibition Act apprehended arrest. The maximum punishment was three years and two years respectively, so both offences fell inside the class for which the old section 41(1)(b) required a recorded satisfaction. His application for anticipatory bail had failed and he came to the Supreme Court.

Held. For an offence punishable with imprisonment up to seven years an officer may not arrest automatically. He must first satisfy himself that one of the necessity grounds exists and record his reasons in writing. The Court directed that police officers be given a checklist of the sub-clauses; that the filled checklist and the reasons accompany the accused before the Magistrate; that the Magistrate authorise detention only after recording his own satisfaction on that material; that a decision not to arrest be forwarded to the Magistrate within two weeks; and that the notice of appearance be served within two weeks. Failure exposes the officer to departmental action and to contempt of court, and a Magistrate who authorises detention without recording reasons to departmental action by the High Court.

Why it matters here. This is the case that turned words into a procedure, and Parliament has now written the procedure into the statute. When you answer a question on section 35, Arnesh Kumar is what you cite for the recorded reasons and for the Magistrate's independent duty.

A worked example

Constable Pawar receives information at Vikhroli police station that Sanjay has committed an offence punishable with three years.

Which limb applies? Clause (b), because the punishment may extend to seven years and may be less.

What must Pawar do first? Two things. He must have reason to believe, on the basis of the information, that Sanjay committed the offence, under sub-clause (i). Then he must be satisfied that arrest is necessary for one of the five purposes in sub-clause (ii). Suppose the only witness is Sanjay's tenant, and Pawar has material that Sanjay has been pressing her not to speak. That is sub-clause (ii)(d).

What must he write? His reasons, in writing, while making the arrest.

Suppose instead there is nothing to suggest Sanjay will interfere, and he has a fixed address and a job. Then arrest is not required. Pawar must record in writing his reasons for not arresting, under the proviso to section 35(1)(b), and must issue a notice of appearance under section 35(3). If Sanjay complies and keeps complying, section 35(5) protects him from arrest for that offence unless Pawar records reasons for a change of mind.

Sanjay stops attending after the third date. Section 35(6) allows his arrest for the offence mentioned in the notice.

Now change one fact: Sanjay is sixty-four and the offence carries two years. Section 35(7) applies, because the punishment is less than three years and he is above sixty. Pawar cannot arrest him without the prior permission of an officer not below Deputy Superintendent of Police.

And change it again: the offence carries ten years. Now clause (c) applies instead of clause (b). Credible information plus reason to believe is enough, and the five necessity grounds and the recording duty in clause (b) do not apply to it.

Distinctions

What this does NOT mean

Section 35 does not oblige the police to arrest. It empowers them. In clause (b) cases it positively requires them not to, unless necessity is made out.

The seven year line is about the punishment the offence carries, not the sentence expected. The words are "punishable with imprisonment for a term which may be less than seven years or which may extend to seven years".

Section 35(7) is not a bar on arresting the elderly. It is a requirement of prior permission from a Deputy Superintendent of Police, and it applies only where the offence carries less than three years and the person is infirm or above sixty.

A notice of appearance is not bail. The person was never in custody. Bail is release from custody, section 2(1)(b).

And Arnesh Kumar did not abolish arrest in dowry cases. It required the officer to justify the arrest and the Magistrate to apply his mind before authorising detention.

Quick revision

• Section 35(1) has ten grounds, clauses (a) to (j).
• Clause (b) is the important one: offence punishable up to seven years, plus reason to believe, plus satisfaction of necessity on one of five grounds, plus reasons recorded in writing.
• The five grounds: further offence; proper investigation; disappearance of or tampering with evidence; inducement, threat or promise to a witness; presence in Court cannot otherwise be ensured.
• The proviso: where arrest is not required, the officer must record his reasons for not arresting.
• Section 35(2): no arrest without warrant in a non-cognizable case, subject to section 39.
• Section 35(3) to (6): notice of appearance; duty to comply; protection while complying; arrest on non-compliance or refusal to identify himself.
• Section 35(7), new: offence under three years plus infirm or above sixty equals prior permission of a Deputy Superintendent of Police.
• Section 37: police control room in every district and at State level; a designated officer not below Assistant Sub-Inspector in every district and police station, maintaining and displaying the names, addresses and offences of persons arrested.
• Joginder Kumar: power and justification are different things. Arnesh Kumar: checklist, reasons, and the Magistrate's own recorded satisfaction.

Test yourself

1. State the five grounds of necessity in section 35(1)(b)(ii). To prevent further offences; for proper investigation; to prevent disappearance of or tampering with evidence; to prevent inducement, threat or promise to a person acquainted with the facts; and because his presence in Court cannot otherwise be ensured.

2. An officer decides not to arrest a suspect in a five year offence. Does the Sanhita require anything of him? Yes. The proviso to section 35(1)(b) requires him to record in writing his reasons for not making the arrest, and section 35(3) requires him to issue a notice of appearance.

3. A man of sixty-five is suspected of an offence punishable with two years. What must happen before he is arrested? The prior permission of an officer not below the rank of Deputy Superintendent of Police, under section 35(7).

4. What is the effect of complying with a notice under section 35(3)? Under section 35(5) he shall not be arrested in respect of the offence referred to in the notice while he complies and continues to comply, unless the officer, for reasons recorded, is of opinion that he ought to be arrested.

5. State the holding in Joginder Kumar in one sentence. The existence of the power to arrest is one thing and the justification for its exercise is quite another; no arrest may be made routinely on a mere allegation, and an officer must reach a reasonable satisfaction, after some investigation, both as to complicity and as to the need to arrest.

6. What did Arnesh Kumar require of the Magistrate? To peruse the report and checklist furnished by the police officer and to authorise detention only after recording his own satisfaction, failing which he is liable to departmental action by the High Court.

7. May a police officer arrest for a non-cognizable offence? Not without a warrant or order of a Magistrate, under section 35(2), except in the narrow case of section 39 where the person refuses to give his name and residence.

Sub-section (2). Once the true name and residence have been ascertained, he shall be released on a bond or bail bond, to appear before a Magistrate if so required. The proviso adds that where the person is not resident in India, the bail bond must be secured by a surety or sureties resident in India.

Sub-section (3). If the true name and residence are not ascertained within twenty-four hours of the arrest, or if he fails to execute the bond or bail bond, or, if required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.

So the section has its own clock, and it is twenty-four hours. That is a different twenty-four hours from the one in section 58, which applies to an arrest without warrant generally, and a student should be able to say which is which.

Section 40: arrest by a private person

Sub-section (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. He must then, without unnecessary delay, but within six hours from such arrest, make him over to a police officer, or, in the absence of a police officer, take him or cause him to be taken to the nearest police station.

Take the conditions one at a time.

"In his presence". A private person cannot arrest on suspicion, on information, or on what a neighbour told him. He must have seen it.

"Non-bailable and cognizable". Both, not either. That is a much narrower class than the police have under section 35(1).

"Or any proclaimed offender". This is the second limb and it does not require presence at any offence.

"Within six hours". New. The old Code said only "without unnecessary delay". A private person who holds somebody for longer than six hours is outside the section, and what he is then doing is wrongful confinement.

Sub-section (2). If there is reason to believe that the person comes under section 35(1), a police officer shall take him in custody.

Sub-section (3). If there is reason to believe 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 one the officer has reason to believe is false, he is dealt with under section 39. But if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

Those last words are the safeguard that makes the private power tolerable. The police officer is not obliged to accept the private person's judgment. He forms his own view, and if there is no sufficient reason to believe an offence was committed, the man goes free immediately.

Section 41: arrest by a Magistrate

Sub-section (1). When an 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 then, subject to the provisions as to bail, commit the offender to custody.

Sub-section (2). Any Magistrate, Executive or Judicial, may at any time arrest, or direct the arrest, in his presence and within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

The difference between the two sub-sections is worth an exam sentence. Sub-section (1) is about an offence committed in front of him. Sub-section (2) is about a person he could have issued a warrant against anyway; instead of issuing paper, he arrests. Both require the person to be in his presence and within his local jurisdiction, and both are open to Executive as well as Judicial Magistrates.

Section 42: protection of members of the Armed Forces

Sub-section (1). Notwithstanding sections 35 and 39 to 41, 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.

Read the words carefully, because the protection is narrower than students assume. It covers an act done or purported to be done in the discharge of official duties. It does not protect a soldier from arrest for a private quarrel.

Sub-section (2). The State Government may, by notification, apply sub-section (1) to a class or category of members of a Force charged with the maintenance of public order, wherever serving, and then the consent required is that of the State Government instead of the Central Government.

A worked example

Priya is standing outside a jewellery shop in Dadar when she sees a man snatch a chain and run. Snatching under the Bharatiya Nyaya Sanhita is cognizable and non-bailable.

May she arrest him? Yes. The offence was committed in her presence and it is both non-bailable and cognizable, so section 40(1) applies.

What must she do next? Hand him to a police officer without unnecessary delay and in any event within six hours, or take him to the nearest police station.

What does the police officer do? If he has reason to believe the man falls under section 35(1), he takes him into custody, under section 40(2).

Change the facts. Priya sees a man abusing a shopkeeper, which is a non-cognizable offence, and detains him. She had no power to arrest, because section 40(1) requires a non-bailable and cognizable offence. If she takes him to a police officer and there is no sufficient reason to believe he committed any offence, section 40(3) requires his immediate release.

Change them again. A constable is present when the abuse happens. The offence is non-cognizable, so section 35(2) bars arrest without a Magistrate's order. The man refuses to give his name. Now section 39(1) applies and the constable may arrest him to ascertain his name and residence. Once ascertained, section 39(2) requires his release on a bond or bail bond. If they are not ascertained within twenty-four hours, or he will not execute the bond, section 39(3) requires him to be forwarded forthwith to the nearest Magistrate.

And once more. The abuse happens in the courtroom, in front of the Magistrate, within his local jurisdiction. He may arrest the man himself, or order anyone present to do so, under section 41(1).

Distinctions

What this does NOT mean

Section 39 is not a general power to arrest in non-cognizable cases. The purpose is to ascertain a name and residence, and once they are known the person is released on a bond.

A private person's power is not the police's power. He needs an offence that is both non-bailable and cognizable, committed in his presence.

Detaining somebody for eight hours is not covered by section 40. The section says within six hours, and outside it the private person has no authority at all.

Section 42 does not make a soldier immune from arrest. It requires Government consent only for acts done or purported to be done in the discharge of official duties.

Quick revision

• Section 39: non-cognizable offence in the officer's presence, plus refusal or a false name, permits arrest to ascertain name and residence. Release on a bond or bail bond once ascertained; a non-resident's bail bond needs sureties resident in India; failing ascertainment within twenty-four hours, forward to the nearest Magistrate.
• Section 40: a private person may arrest for a non-bailable and cognizable offence committed in his presence, or a proclaimed offender, and must hand over within six hours. The police officer takes custody if section 35(1) applies, deals with him under section 39 if it is non-cognizable and he will not identify himself, and releases him at once if there is no sufficient reason to believe he committed any offence.
• Section 41: a Magistrate, Executive or Judicial, may arrest for an offence committed in his presence within his local jurisdiction, and may arrest in his presence anyone for whose arrest he could issue a warrant.
• Section 42: no arrest of a member of the Armed Forces of the Union for an act done or purported to be done in the discharge of official duties without the Central Government's consent; extendable by notification to a Force charged with maintenance of public order, with the State Government consenting.

Test yourself

1. A private person sees a bailable but cognizable offence committed. May he arrest? No. Section 40(1) requires the offence to be non-bailable and cognizable.

2. Within what time must a private person hand over the person he has arrested? Without unnecessary delay and in any event within six hours of the arrest, under section 40(1). The old Code prescribed no fixed period.

3. For what purpose may a police officer arrest under section 39? So that the person's name or residence may be ascertained, where he has committed or is accused of a non-cognizable offence in the officer's presence and refuses or gives a false name or residence.

4. What happens if the name and residence cannot be ascertained within twenty-four hours? He shall forthwith be forwarded to the nearest Magistrate having jurisdiction, section 39(3). The same follows if he fails to execute the bond or furnish sureties.

5. May an Executive Magistrate arrest? Yes. Section 41 applies to a Magistrate "whether Executive or Judicial".

6. Is the consent of Government needed to arrest a soldier for a private assault unconnected with duty? No. Section 42(1) protects only acts done or purported to be done in the discharge of official duties.

7. A private person hands over a man; the police officer finds no sufficient reason to believe any offence was committed. What must he do? Release him at once, under section 40(3).

Read clause (c) with clause (b). If the attesting witness is a family member, the family already knows. If the witness is a stranger from the locality, nobody who cares about him knows, and that is precisely when the officer must tell him about the right to have somebody informed.

Section 43: how the arrest is made

Sub-section (1), the physical act. The officer or other person making the arrest 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.

The proviso, and it is new. Where a woman is to be arrested, then unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed; and unless the circumstances otherwise require or the police officer is a female, the officer shall not touch the person of the woman for making her arrest.

So for a woman the ordinary rule is inverted. Touching is the default for everybody else and the exception for her.

Sub-section (2), resistance. If the person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the officer or other person may use all means necessary to effect the arrest.

Sub-section (3), handcuffs, and this is new law. The police officer may, keeping in view the nature and gravity of the offence, use handcuffs while making the arrest or while producing the person before the court, where the person:

• is a habitual or repeat offender;
• escaped from custody;
• has committed an offence of organised crime;
• terrorist act;
• drug related crime;
• illegal possession of arms and ammunition;
• murder;
• rape;
• acid attack;
• counterfeiting of coins and currency-notes;
• human trafficking;
• sexual offence against children; or
• offence against the State.

The old Code said nothing about handcuffs. Courts had held that routine handcuffing violated article 21. Parliament has now put the permitted cases in the statute, and the opening words, "keeping in view the nature and gravity of the offence", make it a judgment and not an automatic entitlement even in a listed case.

Sub-section (4), the limit on force. Nothing in the 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.

That is the answer to a standing exam question. "All means necessary" in sub-section (2) does not include killing, unless the offence is one carrying death or life.

Sub-section (5), the sunset rule. Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise; and where such circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Three requirements, all of them precise: exceptional circumstances, a written report, and prior permission from a first class Magistrate. And it is a woman police officer who must seek it.

Section 44: searching a place the person has entered

Sub-section (1). Where a person acting under a warrant of arrest, or a police officer having authority to arrest, has reason to believe that the person to be arrested has entered or is within any place, the person residing in or in charge of that place shall, on demand, allow him free ingress and afford all reasonable facilities for a search.

Sub-section (2). If ingress cannot be obtained, it is lawful, in any case for a person acting under a warrant, and in any case in which a warrant may issue but cannot be obtained without giving the person an opportunity of escape, for a police officer to enter and search, and to break open any outer or inner door or window of any house or place, whether the person's own or another's, if after notification of his authority and purpose, and a demand of admittance duly made, he cannot otherwise obtain admittance.

Note the three conditions before anything is broken: notification of authority, notification of purpose, and a demand of admittance. Only then, and only if admittance is still refused.

The proviso. Where the place is an apartment in the actual occupancy of a female, not being the person to be arrested, who according to custom does not appear in public, the officer shall before entering give her notice that she is at liberty to withdraw and afford her every reasonable facility for withdrawing, and may then break open the apartment and enter.

Sub-section (3). Any police officer or other person authorised to arrest may break open a door or window to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained inside.

Sections 45 and 46: pursuit, and restraint

Section 45, pursuit. A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India. There is no territorial limit on the pursuit, which is the point of the section.

Section 46, no unnecessary restraint. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. One sentence, and it is the principle the handcuff provision has to be read against.

Section 55: arresting through a subordinate

Where an officer in charge of a police station, or a police officer making an investigation under Chapter XIII, requires a subordinate to arrest without a warrant, otherwise than in his presence, a person who may lawfully be so arrested, he shall deliver to that subordinate an order in writing, specifying the person to be arrested and the offence or other cause for the arrest. The subordinate shall, before making the arrest, notify the person of the substance of the order, and if so required, show him the order.

Sub-section (2) preserves the subordinate's own power to arrest under section 35. So section 55 governs arrest on somebody else's instructions, not arrest on the officer's own judgment.

Sections 61 and 62: escape, and the closing rule

Section 61, pursuit after escape. 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. Section 44, on entering and searching a place, applies to such an arrest even though the person making it is not acting under a warrant and is not a police officer with authority to arrest.

Section 62, and it deserves the last word. No arrest shall be made except in accordance with the provisions of this Sanhita or any other law for the time being in force providing for arrest.

It looks like a truism. It is not. It is the provision that makes every requirement in this chapter a condition of lawfulness rather than a suggestion, and it is why a defect in the manner of arrest is an argument and not a grumble.

The case

D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

Facts. The Executive Chairman of Legal Aid Services, West Bengal wrote to the Chief Justice enclosing newspaper reports of deaths in police lock-ups and custody. The letter was treated as a writ petition. A second letter, from Ashok K. Johri about a death in custody at Aligarh, was heard with it. The Court was not deciding the legality of one arrest; it was asked what safeguards the Constitution requires of every arrest.

Held. The Court laid down eleven requirements to be followed in all cases of arrest or detention until legislation was made. Among them: the arresting and interrogating officers must bear accurate, visible and clear identification and name tags, and their particulars must be recorded in a register; a memo of arrest must be prepared at the time of arrest, attested by at least one witness who is a family member or a respectable person of the locality, countersigned by the arrestee, and carrying the time and date; the arrestee is entitled to have a friend or relative informed as soon as practicable; he must be told of that right; an entry must be made in the diary at the place of detention naming who was informed; on request he must be examined for injuries and given a copy of the inspection memo; he must be medically examined every 48 hours by a doctor from an approved panel; copies of the documents must go to the local Magistrate; and he may meet his lawyer during interrogation, though not throughout.

Why it matters here. Read the eleven directions against sections 36, 38, 47, 48 and 53 of the Sanhita and the resemblance is not a coincidence. What a court had to invent in 1996 because the statute was silent is now the statute. That is the single best thing to say about D.K. Basu in an answer on the Sanhita: it has been legislated.

A worked example

Sub-Inspector Kale is sent to arrest Vikas, wanted for an offence of organised crime, at a chawl in Kurla. The station house officer is not going with him.

What must Kale carry? An order in writing from the officer in charge, under section 55(1), specifying Vikas by name and the offence, because he is being required to make the arrest otherwise than in the presence of the officer requiring it. Before arresting he must notify Vikas of the substance of the order, and show it if asked.

Vikas has gone into a room and the occupant will not open the door. Kale demands free ingress under section 44(1). It is refused. He notifies his authority and his purpose and demands admittance. Still refused. He may then break open the door under section 44(2).

A woman who does not appear in public is inside, and she is not the person to be arrested. Before entering that apartment Kale must give her notice that she is at liberty to withdraw and afford her every reasonable facility to do so, under the proviso to section 44(2).

How is the arrest itself made? By actually touching or confining Vikas, unless he submits by word or action, under section 43(1).

May Kale handcuff him? The offence is organised crime, which is on the section 43(3) list, so he may, keeping in view the nature and gravity of the offence. He may not use more restraint than is necessary to prevent escape, section 46.

Vikas resists violently. Kale may use all means necessary, section 43(2), but he may not cause his death unless the offence is punishable with death or life imprisonment, section 43(4).

What must Kale wear and write? Accurate, visible and clear identification of his name, and a memorandum of arrest attested by one witness who is a family member or a respectable member of the locality and countersigned by Vikas, under section 36.

Vikas escapes from the jeep on the way to the station. Kale may immediately pursue and arrest him anywhere in India, under section 61, and section 44 applies to that arrest as well.

Now suppose it was Vikas's sister who was to be arrested, at nine at night. Section 43(5) forbids it save in exceptional circumstances, and then only if a woman police officer obtains the prior permission of a Magistrate of the first class by a written report. And under the proviso to section 43(1) her submission on an oral intimation of arrest is presumed, and she is not to be touched unless the circumstances require it or the officer is a woman.

Distinctions

What this does NOT mean

An arrest does not require the word "arrest" to be spoken. It requires touching or confinement, or a submission to custody.

"All means necessary" is not unlimited. Section 43(4) stops at death for anyone not accused of an offence punishable with death or life.

Section 43(3) does not make handcuffing automatic in a listed case. The opening words require the officer to keep in view the nature and gravity of the offence, and section 46 forbids more restraint than is necessary.

And section 44 does not permit breaking in first and explaining afterwards. Notification of authority and purpose and a demand of admittance come first.

Quick revision

• Section 36: name identification; memorandum of arrest, attested by a family member or a respectable person of the locality and countersigned by the arrested person; and, unless a family member attested it, tell him of his right to have someone informed.
• Section 43(1): actually touch or confine, unless submission by word or action. For a woman, submission on oral intimation is presumed and she is not to be touched unless circumstances require it or the officer is a female.
• Section 43(2) and (4): all means necessary on resistance, but no right to cause death unless the offence is punishable with death or life.
• Section 43(3), new: handcuffs permitted for a habitual or repeat offender, an escapee, and for organised crime, terrorist act, drug related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, sexual offence against children, and offence against the State.
• Section 43(5): no arrest of a woman between sunset and sunrise save in exceptional circumstances, with the prior permission of a first class Magistrate, obtained by a woman police officer on a written report.
• Section 44: free ingress on demand; break open only after notifying authority and purpose and demanding admittance; notice to a female occupant who does not appear in public before entering her apartment.
• Section 45: pursuit into any place in India. Section 46: no more restraint than necessary.
• Section 55: a written order specifying the person and the offence where a subordinate is required to arrest otherwise than in the presence of the officer requiring it.
• Section 61: immediate pursuit and rearrest anywhere in India after an escape or rescue.
• Section 62: no arrest except in accordance with the Sanhita or another law providing for arrest.

Test yourself

1. What is required to make an arrest, physically? Actually touching or confining the body of the person, unless there is a submission to custody by word or action, section 43(1).

2. When may handcuffs be used? Under section 43(3), keeping in view the nature and gravity of the offence, where the person is a habitual or repeat offender or has escaped from custody, or where the offence is organised crime, a terrorist act, a drug related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, a sexual offence against children, or an offence against the State.

3. A woman is to be arrested at 9 p.m. What is required? Exceptional circumstances; and then a woman police officer must obtain the prior permission of the Magistrate of the first class of the local jurisdiction, by making a written report, section 43(5).

4. Who must attest a memorandum of arrest? At least one witness who is either a member of the family of the person arrested or a respectable member of the locality where the arrest is made, and the arrested person must countersign it, section 36(b).

5. May an officer break open a door to arrest? Yes, under section 44(2), but only after notifying his authority and his purpose and duly demanding admittance, and only where a warrant is being executed or where a warrant could issue but cannot be obtained without giving the person an opportunity to escape.

6. State the eleven-point significance of D.K. Basu for a paper on the Sanhita. The eleven safeguards the Court prescribed in 1996 because the Code was silent, including the name tags, the attested and countersigned memo of arrest, informing a relative, telling the arrestee of that right, the diary entry, examination for injuries, medical examination every 48 hours and access to a lawyer during interrogation, have now largely been enacted as sections 36, 38, 47, 48 and 53 of the Sanhita.

7. What does section 62 add? That no arrest may be made except in accordance with the Sanhita or another law providing for arrest, which makes the requirements of this chapter conditions of a lawful arrest.

Article 21: no person shall be deprived of his life or personal liberty except according to procedure established by law.

So the twenty-four hours is not a concession the Code makes. It is a constitutional guarantee that the Code repeats and works out in detail.

Section 47: the right to be told why

Sub-section (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.

Two words carry the weight. Forthwith means at the time of the arrest, not at the police station and not when the charge sheet is filed. Full particulars means more than the section number: enough for the person to know what he is said to have done.

Sub-section (2). Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform him that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

That second right is easily missed and it is very practical. In a bailable offence, bail is a matter of right. A person who does not know that will sit in a lock-up over a weekend for no reason. Section 47(2) makes telling him somebody's duty.

Section 48: the right to have somebody informed

Sub-section (1). Every police officer or other person making an arrest shall forthwith give the information regarding the arrest and the place where the arrested person is being held to:

• any of his relatives, friends or such other persons as may be disclosed or nominated by the arrested person for the purpose; and
• the designated police officer in the district.

The second limb is new in substance and it matters. Under the old Code the information went to a nominated person. The Sanhita adds a second recipient inside the police force whose whole job under section 37(b) is to maintain and display the names and addresses of persons arrested. So there is now a record outside the arresting officer's own station.

Sub-section (2). The officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station.

Sub-section (3). An entry of the fact of who has been informed shall be made in a book kept in the police station in the form the State Government provides by rules.

Sub-section (4). It is the duty of the Magistrate before whom the arrested person is produced to satisfy himself that sub-sections (2) and (3) have been complied with.

Sub-section (4) is the enforcement. The right would be worthless if nobody checked, so the Sanhita makes checking a judicial duty, and a Magistrate who signs a remand order without asking has not done his job.

Section 38: the right to a lawyer during interrogation

When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

The two halves of that sentence are both deliberate.

"During interrogation" means the right operates while the questioning is going on, not only after it. That is what makes it useful.

"Though not throughout" means the advocate is not entitled to sit through the whole of it. The right is to meet, not to attend as of right from beginning to end.

The section is the statutory form of what the Supreme Court held in D.K. Basu and, before it, in Nandini Satpathy v. P.L. Dani, which is worked in [The Powers of the Investigating Officer].

Sections 56 to 60: custody, production and release

Section 56, health and safety. It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. One line, and it is the provision a custodial death is measured against.

Section 57, production. A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions 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.

Section 58, the twenty-four hours. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 187, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, whether having jurisdiction or not.

Four things in that sentence and all four are examinable.

The primary rule is reasonableness, not twenty-four hours. The period must not be longer than is reasonable in all the circumstances. Twenty-four hours is a ceiling on top of that, not a licence to hold somebody for a day.

The journey time is excluded. So a person arrested at a distance is not released because the road was long.

"Whether having jurisdiction or not". He must be produced before the nearest Magistrate's Court, and the fact that it is not the court that will try the case is no answer.

The only extension is a special order under section 187, which is the remand provision.

Section 59, reporting. Officers in charge of police stations 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 stations, whether or not they have been admitted to bail.

Section 60, discharge. No person who has been arrested by a police officer shall be discharged except on his bond, or bail bond, or under the special order of a Magistrate.

Section 60 stops the informal release. A person taken into custody cannot simply be let go on a nod; there must be a bond, a bail bond, or a Magistrate's order, so that the arrest and the release are both on record.

The cases

Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260. The facts and the holding on the necessity of arrest are worked in [When the Police May Arrest Without a Warrant]. What belongs here is the second half of the judgment. The Court held that an arrested person has the right, on request, to have a friend, relative or other person interested in his welfare told, as far as practicable, that he has been arrested and where he is being detained; that the police officer shall inform him of that right when he is brought to the police station; that an entry shall be made in the diary as to who was informed; and that it is the duty of the Magistrate before whom he is produced to satisfy himself that these requirements have been complied with. The Court said in terms that these protections must be held to flow from articles 21 and 22(1) and be enforced strictly.

Set that against section 48 and the correspondence is exact, sub-section by sub-section. Section 48(1) is the right to have someone informed. Section 48(2) is the duty to tell him of it at the station. Section 48(3) is the entry. Section 48(4) is the Magistrate's duty to check. The only difference is that the Sanhita drops the words "on request": the officer must inform the relative whether or not he is asked.

D.K. Basu v. State of West Bengal, (1997) 1 SCC 416. The facts and the eleven requirements are worked in [How an Arrest Is Actually Made]. Three of them belong to this chapter: the arrestee must be told of his right to have someone informed as soon as he is put under arrest; an entry must be made in the diary at the place of detention naming who was informed and the officers in whose custody he is; and he may meet his lawyer during interrogation, though not throughout. That last phrase is now section 38 word for word.

A worked example

Imran is arrested without a warrant at Sion at 8 p.m. on a Friday for an offence punishable with four years, which is non-bailable.

At the moment of arrest. The officer must forthwith communicate to him full particulars of the offence or the other grounds for the arrest, under section 47(1). He must prepare the memorandum under section 36. Because the offence is non-bailable, section 47(2) does not apply, so there is no duty to tell him he is entitled to bail.

Immediately after. The officer must forthwith inform a relative or friend nominated by Imran, and the designated police officer of the district, of the arrest and the place where he is held, under section 48(1).

At the police station. The officer must tell Imran of that right, under section 48(2), and make an entry in the station book of who was informed, under section 48(3).

During interrogation. Imran is entitled to meet an advocate of his choice, though the advocate is not entitled to be present throughout, under section 38.

By Saturday evening. He must be produced before a Magistrate. The twenty-four hours runs from the arrest at 8 p.m. on Friday and excludes the time necessary for the journey to the court. The Magistrate need not be the one with jurisdiction over the case.

Before the Magistrate. The Magistrate must satisfy himself that sections 48(2) and 48(3) were complied with, under section 48(4). If they were not, he says so on the record.

Change the offence to one that is bailable. Now section 47(2) bites: the officer must tell Imran that he is entitled to be released on bail and may arrange sureties. And under section 60 he can be discharged on his bond or bail bond without troubling a Magistrate.

Distinctions

What this does NOT mean

Twenty-four hours is not an entitlement to hold somebody for twenty-four hours. Section 58 begins with reasonableness; the twenty-four hours is the outer limit.

The journey time is excluded, not added. The clock does not run while the person is being taken to court, and that is the meaning of "exclusive of the time necessary for the journey".

Section 38 does not give a right to have a lawyer present throughout interrogation. The words are "though not throughout interrogation".

Section 48 is not conditional on a request. Unlike Joginder Kumar, which spoke of the right "upon request", section 48(1) makes it the officer's duty to give the information forthwith.

And a person arrested cannot simply be let go. Section 60 requires a bond, a bail bond, or a special order of a Magistrate.

Quick revision

• Section 47(1): forthwith communicate full particulars of the offence or other grounds. Section 47(2): in a bailable case, tell him he is entitled to bail and may arrange sureties.
• Section 48(1): inform a nominated relative or friend and the designated police officer in the district, of the arrest and the place of detention. (2) tell him of the right at the station. (3) make an entry in a book. (4) the Magistrate must satisfy himself that (2) and (3) were done.
• Section 38: right to meet an advocate of his choice during interrogation, not throughout.
• Section 56: duty of the person having custody to take reasonable care of the health and safety of the accused.
• Section 57: take or send him before a Magistrate or the officer in charge of a police station without unnecessary delay.
• Section 58: no longer than is reasonable, and not beyond twenty-four hours excluding journey time, save under a special order under section 187.
• Section 59: report all warrantless arrests to the District Magistrate, or the Sub-divisional Magistrate if he so directs.
• Section 60: discharge only on a bond, a bail bond, or a special order of a Magistrate.
• Constitutional base: articles 21, 22(1) and 22(2).

Test yourself

1. State the twenty-four hour rule accurately. Under section 58, read with article 22(2), a person arrested without warrant may not be detained longer than is reasonable in all the circumstances, and in no case beyond twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, whether that Court has jurisdiction or not, except under a special order of a Magistrate under section 187.

2. Whom must the arresting officer inform of the arrest? Any of the arrested person's relatives, friends or other persons disclosed or nominated by him, and the designated police officer in the district, under section 48(1).

3. What must the Magistrate check when the arrested person is produced? That the person was told of his rights at the police station and that the entry of who was informed was made, under section 48(4).

4. Is an arrested person entitled to have his lawyer present throughout his interrogation? No. Section 38 entitles him to meet an advocate of his choice during interrogation, though not throughout.

5. When must a person be told that he is entitled to bail? Where a police officer arrests without warrant a person other than one accused of a non-bailable offence, under section 47(2).

6. May a police officer release an arrested person without any formality? No. Section 60 requires a bond, a bail bond, or the special order of a Magistrate.

7. Which parts of section 48 come from Joginder Kumar? All four sub-sections correspond to the directions in that case, save that section 48(1) drops the requirement that the arrested person must ask before a relative is informed.

The receipt is the addition worth marking. Under the old section 51 there was no such requirement in terms, and a person released weeks later had no document showing what had been taken from him.

Sub-section (2). Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.

Section 50: offensive weapons

The officer or other person making any arrest may, immediately after the arrest, take from the person arrested any offensive weapons he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom he is required by the Sanhita to produce the person arrested.

Note the two verbs. Taking the weapon is a may. Delivering it up is a shall. The officer has a discretion whether to disarm and no discretion at all about handing over what he takes.

Section 51: examination at the request of a police officer

Sub-section (1). Where a person is arrested on a charge of an offence of such a nature, and alleged to have been committed in 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 is lawful for a registered medical practitioner, acting at the request of any police officer, and for any person acting in good faith in his aid and under his direction, to make such an examination as is reasonably necessary to ascertain the facts which may afford that evidence, and to use such force as is reasonably necessary for that purpose.

Sub-section (2). Where a female is to be examined, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Sub-section (3). The practitioner shall without any delay forward the examination report to the investigating officer.

The Explanation, which governs sections 51, 52 and 53. "Examination" includes 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 as the practitioner thinks necessary in a particular case. And "registered medical practitioner" is defined as set out above.

Section 52: a person accused of rape

Where a person is arrested on a charge of rape or an attempt to commit rape, and there are reasonable grounds for believing that an examination of his person will afford evidence of the offence, the examination may be made by a registered medical practitioner employed in a hospital run by the Government or by a local authority, and, in the absence of such a practitioner within a radius of sixteen kilometres from the place where the offence was committed, by any other registered medical practitioner, in each case acting at the request of a police officer, with reasonable force if necessary.

Sub-section (2) requires the practitioner without any delay to examine him and prepare a report giving: the name and address of the accused and of the person by whom he was brought; his age; marks of injury, if any; the description of material taken from his person for DNA profiling; and other material particulars in reasonable detail.

Sub-section (3): the report shall state precisely the reasons for each conclusion. Sub-section (4): the exact time of commencement and completion of the examination shall be noted. Sub-section (5): the report goes without any delay to the investigating officer, who forwards it to the Magistrate under section 193 as part of the documents in section 193(6)(a).

Section 53: the compulsory examination of every arrested person

This is the section that changed, and the change is easy to state.

Sub-section (1). When any person is arrested, he shall be examined by a medical officer in the service of the Central Government or a State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made.

Under the old Code the corresponding provision gave the arrested person a right to request an examination. The Sanhita makes the examination compulsory in every case, whether or not he asks.

The first proviso allows the practitioner, if he is of opinion that one more examination is necessary, to make it.

The second proviso: where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and if none is available, by a female registered medical practitioner.

Sub-section (2). The practitioner shall prepare the record of such examination, mentioning any injuries or marks of violence on the person arrested, and the approximate time when such injuries or marks may have been inflicted.

Sub-section (3). A copy of the report shall be furnished to the arrested person or the person nominated by him.

Take those three together and their purpose is unmistakable: a document, made by a doctor, at a known time, saying what marks were on the body and roughly when they were made, a copy of which is in the hands of the arrested person or his nominee. That is how a custodial injury is proved.

Section 54: identification of the person arrested

Where a person is arrested on a charge of an offence and his identification by any other person is considered necessary for the purpose of investigation, the Court having jurisdiction may, on the request of the officer in charge of a police station, direct the person arrested to subject himself to identification by any person in such manner as the Court thinks fit.

Two points. The direction comes from a Court, not from the police. And the request comes from the officer in charge of a police station.

The proviso, which is new. If the person identifying the arrested person is mentally or physically disabled, the process shall take place under the supervision of a Magistrate, who shall take appropriate steps to ensure that the person identifies the arrested person using methods that person is comfortable with, and the identification process shall be recorded by any audio-video electronic means.

Section 55: arrest through a subordinate

This section was set out in [How an Arrest Is Actually Made], and it belongs to both chapters. Where an officer in charge of a police station, or an officer making an investigation under Chapter XIII, requires a subordinate to arrest without warrant otherwise than in his presence, he must give him a written order specifying the person to be arrested and the offence or other cause; and the subordinate must, before making the arrest, notify the person of the substance of the order and show it if required. Sub-section (2) preserves the subordinate's independent power under section 35.

A worked example

Rahul is arrested at Kandivali on a charge of assault causing grievous hurt.

He is searched. He is not able to furnish bail, so section 49(1) applies. His wallet, phone and a knife are found. The knife is an offensive weapon and section 50 lets the officer take it and requires him to deliver it to the Court or officer before whom Rahul is to be produced. The wallet and phone go into safe custody, and Rahul must be given a receipt listing them.

He is examined. Section 53(1) requires it, whether or not he asks, and soon after the arrest. The doctor records a bruise on his left cheek and states the approximate time it may have been inflicted, under section 53(2). A copy of that report goes to Rahul or to a person he nominates, under section 53(3). If the bruise appears later and this report says his face was unmarked, the report is the evidence.

The investigating officer wants his fingernail clippings, because the victim's skin may be under them. That is an examination within the Explanation to section 51, and it may be done by a registered medical practitioner at the officer's request, with reasonably necessary force, under section 51(1). The report goes to the investigating officer without delay under section 51(3).

A witness is to identify him. The Court, on the request of the officer in charge of the police station, may direct Rahul to submit to identification, under section 54.

The witness is a woman with a speech disability. The proviso applies. The identification must take place under the supervision of a Magistrate, who must ensure she identifies him by methods she is comfortable with, and the process must be recorded by audio-video electronic means.

Change the accused to a woman. The search under section 49 must be by another female with strict regard to decency. The examination under section 51 must be by or under the supervision of a female registered medical practitioner. The examination under section 53 must be by or under the supervision of a female medical officer, or failing one a female registered medical practitioner.

Distinctions

What this does NOT mean

Section 53 is not a right the arrested person has to ask for. It is a duty owed in every case, which is the change from the old Code.

"Such force as is reasonably necessary" in section 51 is not unlimited force. It is force reasonably necessary to make the examination, and no more.

Section 54 does not let the police order an identification parade. The direction is the Court's, on the request of the officer in charge of a police station.

And the sixteen kilometre radius in section 52 is not a general rule. It applies only to the search for a Government or local authority hospital practitioner in a rape case.

Quick revision

• Section 49: search where bail cannot be furnished; articles other than necessary wearing apparel into safe custody; a receipt for what is seized; a female is searched by another female with strict regard to decency.
• Section 50: offensive weapons may be taken and shall be delivered to the Court or officer.
• Section 51: examination at a police officer's request where there are reasonable grounds to believe it will afford evidence; a female only by or under the supervision of a female registered medical practitioner; report to the investigating officer without delay. The Explanation includes DNA profiling and defines registered medical practitioner.
• Section 52: rape or attempted rape; Government or local authority hospital practitioner, or, failing one within sixteen kilometres, any registered medical practitioner; five listed report items; exact times noted; report to the investigating officer and on to the Magistrate under section 193.
• Section 53: every arrested person examined soon after arrest by a Government medical officer or, failing one, a registered medical practitioner; record of injuries or marks of violence and the approximate time; a female by or under the supervision of a female; a copy of the report to the arrested person or his nominee.
• Section 54: the Court, on the request of the officer in charge, may direct identification; where the identifying person is mentally or physically disabled, it is supervised by a Magistrate, uses methods that person is comfortable with, and is recorded by audio-video electronic means.
• Section 55: a written order specifying the person and the offence where a subordinate arrests otherwise than in the presence of the officer requiring it.

Test yourself

1. Must an arrested person ask to be medically examined? No. Section 53(1) makes the examination compulsory soon after every arrest, which is the change from the old Code.

2. What must the record of that examination mention? Any injuries or marks of violence on the person arrested and the approximate time when they may have been inflicted, section 53(2).

3. Who may examine a woman arrested on suspicion of an offence? Under section 51(2), only a female registered medical practitioner or someone under her supervision. Under section 53's second proviso, a female medical officer or, failing one, a female registered medical practitioner.

4. Does the Sanhita permit DNA profiling of an arrested person? Yes. The Explanation to section 51 includes DNA profiling within "examination", and that Explanation governs sections 51, 52 and 53.

5. Who directs a test identification, and on whose request? The Court having jurisdiction, on the request of the officer in charge of a police station, under section 54.

6. A witness with a physical disability is to identify the accused. What does the proviso to section 54 require? That the identification take place under the supervision of a Magistrate, who ensures the witness identifies the person by methods the witness is comfortable with, and that the process be recorded by audio-video electronic means.

7. What must be given to a person from whom articles are seized on a search under section 49? A receipt showing the articles taken into possession by the police officer.

The proviso, which is new. The police station or the registrar in the Court shall maintain a register to enter the address, email address, phone number and such other details as the State Government provides by rules. That register is what makes electronic service workable, because it is where the address is drawn from.

Sub-section (2). The summons shall, if practicable, be served personally, by delivering or tendering to the person one of the duplicates.

The proviso. A summons bearing the image of the Court's seal may also be served by electronic communication, in the form and manner the State Government provides by rules.

Sub-section (3). Every person served personally shall, if so required by the serving officer, sign a receipt on the back of the other duplicate. That signed duplicate goes back to the Court and is the proof.

Section 65: companies, firms and associations

Sub-section (1), companies and corporations. Service may be effected by serving the Director, Manager, Secretary or other officer, or by letter sent by registered post addressed to one of them in India, in which case service is deemed effected when the letter would arrive in the ordinary course of post.

The Explanation defines the words: "company" means a body corporate, and "corporation" means an incorporated company or other body corporate registered under the Companies Act, 2013, or a society registered under the Societies Registration Act, 1860.

Sub-section (2), firms and other associations of individuals. Service may be effected on any partner of the firm or association, or by registered post addressed to such a partner, with the same deeming rule.

Section 66: when the person 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 with some adult member of his family residing with him, and that person shall, if required, sign a receipt on the back of the other duplicate.

The Explanation is short and it is asked in examinations: a servant is not a member of the family within the meaning of this section.

Three conditions, then. Due diligence first. An adult. And a member of the family who resides with him.

Section 67: affixing

If service cannot, by the exercise of due diligence, be effected under section 64, 65 or 66, the serving officer shall affix one of the duplicates to some conspicuous part of the house or homestead in which the person summoned ordinarily resides. The Court may then, after making such inquiries as it thinks fit, either declare that the summons has been duly served or order fresh service in such manner as it considers proper.

Notice that affixing does not by itself complete service. The Court has to apply its mind afterwards, and it has two choices.

Sections 68 and 69: Government servants, and service outside the district

Section 68. Where the person summoned is in the active service of the Government, the Court shall ordinarily send the summons in duplicate to the head of the office in which he is employed. That head causes it to be served in the manner provided by section 64 and returns it to the Court under his signature with the endorsement section 64 requires. His signature is evidence of due service, sub-section (2).

Section 69. Where a Court wants a summons served outside its local jurisdiction, it shall ordinarily send it in duplicate to a Magistrate within whose local jurisdiction the person resides or is, to be served there.

Sections 70 and 71: proving service, and witnesses

Section 70(1). Where a summons is served outside the Court's local jurisdiction, or where the officer who served it is not present at the hearing, an affidavit purporting to be made before a Magistrate that the summons has been served, together with a duplicate purporting to be endorsed under section 64 or 66 by the person to whom it was delivered or tendered or with whom it was left, is admissible in evidence, and the statements in it are deemed correct unless and until the contrary is proved.

Sub-section (2) allows the affidavit to be attached to the duplicate and returned to the Court.

Sub-section (3), and it is new. All summons served through electronic communication under sections 64 to 71 shall be considered as duly served, and a copy of such summons shall be attested and kept as proof of service.

Section 71, witnesses. Notwithstanding the preceding sections, a Court issuing a summons to a witness may, in addition to and simultaneously with the summons, direct a copy to be served by electronic communication or by registered post addressed to the witness where he ordinarily resides or carries on business or personally works for gain. Where an acknowledgement purporting to be signed by the witness, or an endorsement by a postal employee that the witness refused delivery, is received, the Court may declare the summons duly served.

Section 71 is the belt and braces provision for witnesses: ordinary service and electronic or postal service run at the same time, so a witness cannot delay a trial by avoiding the process server.

A worked example

The Court of a Judicial Magistrate at Borivali issues a summons to Kiran to attend as an accused in a summons case.

Form. It is prepared in duplicate, signed by the presiding officer and sealed, under section 63(i). Alternatively it could have been issued as an encrypted electronic communication bearing the image of the seal, under section 63(ii).

Service. A police officer takes it to Kiran's flat and hands him one duplicate. Kiran signs a receipt on the back of the other, under sections 64(2) and 64(3). Service is complete.

Kiran is not at home and is away for a month. The officer, having exercised due diligence, may leave a duplicate with Kiran's adult brother who lives with him, under section 66. He may not leave it with Kiran's domestic help, because the Explanation says a servant is not a member of the family.

Nobody suitable is there either. The officer affixes a duplicate to a conspicuous part of the house, under section 67. The Court then makes such inquiries as it thinks fit and either declares service good or orders fresh service.

Kiran turns out to live in Nashik. The Borivali Court sends the summons in duplicate to a Magistrate in Nashik for service there, under section 69. When it comes back, an affidavit made before a Magistrate plus the endorsed duplicate is admissible and presumed correct, under section 70(1).

Kiran is a clerk in a Central Government office. The Court ordinarily sends it in duplicate to the head of his office, under section 68(1), whose signature on the return is evidence of due service.

Kiran is a private limited company rather than a person. Service may be on its Director, Manager or Secretary, or by registered post to one of them in India, and service is deemed effected when the letter would arrive in the ordinary course of post, under section 65(1).

A witness has to be summoned. The Court may, simultaneously with the ordinary summons, direct a copy to be sent by electronic communication or registered post to where she ordinarily resides or works, under section 71(1).

Distinctions

What this does NOT mean

Affixing under section 67 is not service by itself. The Court must afterwards declare service good or order fresh service.

A servant is not a member of the family. The Explanation to section 66 says so expressly, and this is a favourite short question.

Section 65's deeming provision is not about actual receipt. Where registered post is used, service is deemed effected when the letter would arrive in the ordinary course of post, whether or not it was in fact collected.

And electronic service is not an optional extra that still needs paper. Section 70(3) provides that summons served through electronic communication shall be considered as duly served, with an attested copy kept as proof.

Quick revision

• Section 63: in writing, in duplicate, signed and sealed; or in encrypted or other electronic communication with the image of the seal or a digital signature.
• Section 64: served by a police officer, an officer of the Court or another public servant; register of address, email and phone to be maintained; personally if practicable; electronic service allowed; receipt signed on the back of the other duplicate.
• Section 65: companies and corporations through a Director, Manager, Secretary or other officer, or by registered post; firms through any partner; deemed served when the letter would arrive in ordinary course of post.
• Section 66: an adult member of the family residing with him, only after due diligence. A servant is not a member of the family.
• Section 67: affix to a conspicuous part of the house; the Court then declares service or orders fresh service.
• Section 68: Government servants through the head of office, whose signature is evidence of due service.
• Section 69: service outside local limits through a Magistrate of that place.
• Section 70: affidavit before a Magistrate plus endorsed duplicate is admissible and presumed correct; electronic service is duly served and an attested copy is kept.
• Section 71: a witness may be served simultaneously by electronic communication or registered post; an acknowledgement or a postal endorsement of refusal lets the Court declare service good.

Test yourself

1. In what two forms may a summons now be issued? In writing in duplicate, signed and bearing the seal of the Court; or in an encrypted or other form of electronic communication bearing the image of the seal of the Court or a digital signature, section 63.

2. May a summons be left with the accused's cook? No. Section 66 permits it to be left with an adult member of the family residing with him, and the Explanation says a servant is not a member of the family.

3. What happens after a summons is affixed under section 67? The Court, after making such inquiries as it thinks fit, either declares the summons duly served or orders fresh service in such manner as it considers proper.

4. When is service on a company by registered post deemed effected? When the letter would arrive in the ordinary course of post, section 65(1).

5. How is service proved where the serving officer is not present at the hearing? By an affidavit purporting to be made before a Magistrate that the summons was served, with the endorsed duplicate; the statements in it are deemed correct until the contrary is proved, section 70(1).

6. Is a summons served by email good service? Yes. Section 64(2)'s proviso permits service by electronic communication where the summons bears the image of the Court's seal, and section 70(3) provides that such service shall be considered duly served, with an attested copy kept as proof.

7. What is special about serving a witness? Section 71 allows the Court, in addition to and simultaneously with the ordinary summons, to direct a copy to be served by electronic communication or registered post at the place where the witness ordinarily resides, carries on business or personally works for gain.

Section 73: the bailable warrant

Sub-section (1). Any Court issuing a warrant may, in its discretion, direct by endorsement on the warrant that if the person executes a bail bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed, the officer to whom the warrant is directed shall take such security and shall release him from custody.

Sub-section (2). The endorsement shall state three things:

(a) the number of sureties; (b) the amount in which they and the person are respectively to be bound; and (c) the time at which he is to attend before the Court.

Sub-section (3). Whenever security is taken, the officer shall forward the bond to the Court.

That is the whole of the bailable warrant. There is no separate species of warrant; there is an ordinary warrant plus an endorsement. Where there is no endorsement, the warrant is what practitioners call non-bailable, meaning the officer has no power to release and must produce the person before the Court.

Sections 74 to 76: to whom a warrant is directed

Section 74(1). A warrant of arrest shall ordinarily be directed to one or more police officers. But where its immediate execution is necessary and no police officer is immediately available, the Court may direct it to any other person or persons, who shall execute it.

Section 74(2). Where a warrant is directed to more than one officer or person, it may be executed by all, or by any one or more of them.

Section 75, warrant to any person. The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of:

• an escaped convict;
• a proclaimed offender; or
• a person accused of a non-bailable offence who is evading arrest.

Such a person shall acknowledge receipt in writing, and shall execute the warrant if the person to be arrested is in, or enters on, any land or other property under his charge, section 75(2). On arrest, the person is made over with the warrant to the nearest police officer, who takes him before a Magistrate having jurisdiction, unless security is taken under section 73, section 75(3).

Section 75 is the provision that lets a landowner or estate manager be given a warrant for a proclaimed offender who is hiding on his land, and it is limited to the three categories named.

Section 76, substitution. A warrant directed to a police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

Sections 77 to 79: executing the warrant

Section 77. The person executing a warrant shall notify the substance of it to the person to be arrested, and, if so required, shall show him the warrant.

Two duties and they are different. Notifying the substance is unconditional. Showing the warrant is on demand.

Section 78. The person executing the warrant shall, subject to section 73 as to security, without unnecessary delay bring the person arrested before the Court before which he is required by law to produce him.

The proviso, which is new. Such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.

So the twenty-four hour rule, which section 58 states for an arrest without warrant, is now stated in section 78 for an arrest under a warrant as well. The old Code left the second case to article 22(2) alone.

Section 79. A warrant of arrest may be executed at any place in India. One sentence, and it means a Mumbai court's warrant is good in Manipur.

Sections 80 to 83: execution outside the local jurisdiction

Section 80, the Court forwards the warrant. Where a warrant is to be executed outside the issuing Court's local jurisdiction, the Court may, instead of directing it to a police officer within its own jurisdiction, forward it by post or otherwise to any Executive Magistrate, District Superintendent of Police or Commissioner of Police within whose local limits it is to be executed. That officer endorses his name on it and, if practicable, causes it to be executed.

Sub-section (2) requires the issuing Court to forward, along with the warrant, the substance of the information against the person, together with such documents as may be sufficient to enable the Court acting under section 83 to decide whether bail should or should not be granted.

That sub-section is the piece that makes the local bail decision possible, and it is worth naming in an answer: without the material, the local court would be deciding bail blind.

Section 81, the officer takes the warrant for endorsement. Where a warrant directed to a police officer is to be executed beyond the issuing Court's local jurisdiction, he shall ordinarily take it for endorsement to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station within the local limits where it is to be executed, sub-section (1). That endorsement is sufficient authority to execute it, and the local police shall assist if required, sub-section (2).

Sub-section (3) is the exception: where there is reason to believe that the delay in obtaining the endorsement will prevent execution, the officer may execute the warrant without the endorsement anywhere beyond the local jurisdiction of the issuing Court.

Section 82, procedure on arrest. Where a warrant is executed outside the district in which it was issued, the person arrested shall be taken before the Executive Magistrate, District Superintendent of Police or Commissioner of Police of the place of arrest, unless:

• the issuing Court is within thirty kilometres of the place of arrest, or is nearer than that Magistrate or officer; or
• security is taken under section 73.

Sub-section (2), new. On such an arrest the police officer shall forthwith give the information regarding the arrest and the place where the arrested person is being held to the designated police officer in the district, and to the corresponding officer of the district where the arrested person normally resides.

Section 83, what that Magistrate or officer does. If the person arrested appears to be the person intended by the issuing Court, he shall direct his removal in custody to that Court.

The first proviso. If the offence is bailable and the person is ready and willing to give bail bond to that authority's satisfaction, or a direction has been endorsed under section 73 and he is ready to give the security required, the Magistrate, District Superintendent or Commissioner shall take the bail bond or security and forward the bond to the issuing Court.

The second proviso. If the offence is non-bailable, it is lawful for the Chief Judicial Magistrate, subject to section 480, or the Sessions Judge, of the district in which the arrest is made, on consideration of the information and documents forwarded under section 80(2), to release the person on bail.

Sub-section (2) preserves a police officer's power to take security under section 73.

A worked example

A Judicial Magistrate at Andheri issues a warrant for Deepak, accused of an offence punishable with four years, which is non-bailable. Deepak is believed to be in Nagpur.

Form. In writing, signed by the presiding officer, under the seal of the Court, section 72(1). It stays in force until executed or cancelled, section 72(2).

Route. The Court may forward it by post to the Commissioner of Police, Nagpur, under section 80(1), together with the substance of the information and the documents needed for a bail decision, under section 80(2). The Commissioner endorses his name and has it executed.

Alternatively, the warrant is directed to a Mumbai police officer, who takes it to Nagpur. He should ordinarily get it endorsed by an Executive Magistrate or an officer in charge of a police station there, section 81(1). If delay in getting the endorsement would prevent execution, he may execute it without one, section 81(3).

At the arrest. The officer must notify Deepak of the substance of the warrant, and show it if Deepak asks, section 77.

After the arrest. Because the warrant was executed outside the district of issue, Deepak is taken before the Executive Magistrate or the Commissioner of Police at Nagpur, under section 82(1), unless the Andheri Court happens to be within thirty kilometres or nearer, which it is not. The officer must forthwith inform the designated police officer of Nagpur district and of the district where Deepak normally resides, section 82(2).

Before that authority. If Deepak appears to be the person intended, he is to be removed in custody to Andheri, section 83(1). But because the offence is non-bailable, the Chief Judicial Magistrate or the Sessions Judge of Nagpur may, on the material forwarded under section 80(2), release him on bail under the second proviso.

Change the offence to a bailable one. Then the first proviso applies: the Executive Magistrate or Commissioner shall take a bail bond and forward it to the Andheri Court.

Change it again: the Andheri Court had endorsed a direction under section 73. Then the arresting officer himself takes the security stated in the endorsement, releases Deepak, and forwards the bond to the Court, section 73(3).

And Deepak must reach the Andheri Court without unnecessary delay and in no case beyond twenty-four hours excluding journey time, section 78 and its proviso.

Distinctions

What this does NOT mean

A warrant does not expire. Section 72(2) gives only two ways it ends: cancellation by the issuing Court, or execution.

"Bailable warrant" is not a separate species of process. It is an ordinary warrant carrying a section 73 endorsement.

Section 75 does not let a Magistrate direct a warrant to any person in any case. It is confined to an escaped convict, a proclaimed offender, or a person accused of a non-bailable offence who is evading arrest, and to a person within his local jurisdiction.

And section 82 does not always require production before the local Magistrate. Where the issuing Court is within thirty kilometres or is nearer than that authority, or where security has been taken under section 73, the person goes to the issuing Court directly.

Quick revision

• Section 72: in writing, signed, sealed; in force until cancelled or executed.
• Section 73: the Court may endorse a direction to take a bail bond with sufficient sureties; the endorsement states the number of sureties, the amount, and the time of attendance; the bond is forwarded to the Court.
• Section 74: ordinarily to one or more police officers; to any other person where immediate execution is necessary and no police officer is available; where directed to several, any one or more may execute it.
• Section 75: the Chief Judicial Magistrate or a first class Magistrate may direct a warrant to any person within his local jurisdiction for an escaped convict, a proclaimed offender, or a person accused of a non-bailable offence evading arrest.
• Section 76: another police officer may execute it if his name is endorsed on the warrant.
• Section 77: notify the substance; show the warrant if required.
• Section 78: bring him before the Court without unnecessary delay, and not beyond twenty-four hours excluding journey time.
• Section 79: executable at any place in India.
• Sections 80 and 81: execution outside local jurisdiction, by the Court forwarding it or by the officer getting it endorsed; section 81(3) allows execution without endorsement where delay would prevent it.
• Section 82: production before the local Executive Magistrate, District Superintendent or Commissioner, unless the issuing Court is within thirty kilometres or nearer, or security is taken; and information of the arrest to the designated officers of both districts.
• Section 83: removal in custody if he is the person intended; bail by that authority if the offence is bailable; bail by the Chief Judicial Magistrate or Sessions Judge of the district of arrest if it is non-bailable, on the material sent under section 80(2).

Test yourself

1. How long does a warrant of arrest remain in force? Until it is cancelled by the Court which issued it or until it is executed, section 72(2). It does not lapse with time.

2. What makes a warrant "bailable"? An endorsement by the issuing Court under section 73(1) directing that the officer take a bail bond with sufficient sureties and release the person; the endorsement must state the number of sureties, the amount, and the time of attendance.

3. To whom may a warrant be directed apart from a police officer? To any other person where immediate execution is necessary and no police officer is available, section 74(1); and, under section 75, to any person within the local jurisdiction of the Chief Judicial Magistrate or a first class Magistrate, for an escaped convict, a proclaimed offender, or a person accused of a non-bailable offence who is evading arrest.

4. Where may a warrant of arrest be executed? At any place in India, section 79.

5. A warrant issued at Pune is executed at Kolkata. Before whom is the person taken? Before the Executive Magistrate, District Superintendent of Police or Commissioner of Police of Kolkata, under section 82(1), unless the Pune Court is within thirty kilometres of the place of arrest or nearer than that authority, or security has been taken under section 73.

6. May a court in the district of arrest grant bail in a non-bailable case? Yes. Under the second proviso to section 83(1), the Chief Judicial Magistrate, subject to section 480, or the Sessions Judge of the district of arrest may release the person on bail on consideration of the information and documents forwarded under section 80(2).

7. What is new in section 78? The proviso, which caps the delay in producing the arrested person before the Court at twenty-four hours exclusive of journey time. The old Code required only that it be without unnecessary delay.

Three conditions before a proclamation can issue: a warrant must already have been issued by that Court; the Court must have reason to believe he has absconded or is concealing himself; and the belief must be that the warrant therefore cannot be executed. The thirty days is a minimum, not a maximum.

Sub-section (2), how it is published. Clause (i) is mandatory and has three limbs, all of which must be done:

(a) it shall be publicly read in some conspicuous place of the town or village where he ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which he ordinarily resides, or to some conspicuous place of that town or village; (c) a copy shall be affixed to some conspicuous part of the Court-house.

Clause (ii) is discretionary: the Court may also, if it thinks fit, direct a copy to be published in a daily newspaper circulating in the place where he ordinarily resides.

Sub-section (3), proof. A statement in writing by the Court that the proclamation was duly published on a specified day in the manner specified in clause (i) is conclusive evidence that the requirements have been complied with and that it was published on that day.

Sub-section (4), the declaration, and this is new law. Where a proclamation is in respect of a person accused of an offence punishable with imprisonment of ten years or more, or imprisonment for life, or with death, under the Bharatiya Nyaya Sanhita or any other law, and he fails to appear at the specified place and time, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

Sub-section (5) applies the publication and proof rules in sub-sections (2) and (3) to that declaration as they apply to the proclamation.

Why does sub-section (4) matter so much? Because two other provisions of the Sanhita hang off the status it creates. Section 35(1)(d) allows arrest without warrant of a person proclaimed as an offender. And section 356 allows an inquiry, trial and judgment in his absence. Neither works without a declaration, and before 2023 there was no statutory way to make one.

Section 85: attachment of property

Sub-section (1). The Court issuing a proclamation may, for reasons to be recorded in writing, 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.

The proviso allows the attachment to be ordered simultaneously with the proclamation where the Court is satisfied, by affidavit or otherwise, that the person (a) is about to dispose of the whole or part of his property, or (b) is about to remove it from the Court's local jurisdiction.

Sub-section (2), reach. The order authorises attachment of property within the district in which it is made, and property outside that district when endorsed by the District Magistrate within whose district the property is situated.

Sub-section (3), how movables are attached. By seizure; or by the appointment of a receiver; or by an order in writing prohibiting delivery of the property to the proclaimed person or anyone on his behalf; or by an order prohibiting payment of rent or delivery to him or on his behalf; or by all or any two of those methods as the Court thinks fit.

Sub-section (5), perishables. Where the property is live-stock or of a perishable nature, the Court may, if expedient, order immediate sale, and the proceeds abide the Court's order.

Sub-section (6). A receiver appointed under this section has the same powers, duties and liabilities as a receiver appointed under the Code of Civil Procedure, 1908.

Section 86: property outside India

The Court may, on the written request of a police officer not below the rank of Superintendent of Police or Commissioner of Police, initiate the process of requesting assistance from a Court or an authority in the contracting State for identification, attachment and forfeiture of property belonging to a proclaimed person, in accordance with the procedure provided in Chapter VIII.

This section has no counterpart in the old Code. It plugs the absconder chapter into the mutual legal assistance machinery in [Reciprocal Arrangements for Assistance], and it is the answer to an obvious weakness: a man who leaves the country and takes his money with him.

Note the two conditions. The request must be written, and it must come from an officer not below Superintendent of Police or Commissioner of Police.

Sections 87 to 89: claims, release, sale and restoration

Section 87, claims and objections. Where a claim or objection to the attachment is made within six months of the attachment by any person other than the proclaimed person, on the ground that the claimant has an interest in the property not liable to attachment, it shall be inquired into and may be allowed or disallowed wholly or in part. The proviso lets a legal representative continue the claim if the claimant dies.

The claim is preferred in the Court that ordered the attachment, or, where the property was attached under an endorsement under section 85(2), in the Court of the Chief Judicial Magistrate of the district where the attachment was made, sub-section (2). It is inquired into by the Court in which it is made, though a Chief Judicial Magistrate may make it over to a subordinate Magistrate, sub-section (3).

Sub-section (4) gives a disallowed claimant one year from the order to institute a suit to establish his right; subject to the result of that suit the order is conclusive.

Section 88, what happens to the property.

Sub-section (1). If the proclaimed person appears within the time specified, the Court shall release the property from attachment.

Sub-section (2). If he does not, the property is at the disposal of the State Government. But it shall not be sold until six months from the attachment and until any claim under section 87 has been disposed of, unless it is subject to speedy and natural decay or the Court considers a sale would be for the benefit of the owner, in which case it may be sold whenever the Court thinks fit.

Sub-section (3), restoration. If within two years of the attachment a person whose property is or has been at the State Government's disposal appears voluntarily or is apprehended and brought before the Court, and proves that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant and that he had not such notice of the proclamation as to enable him to attend within the time specified, then the property, or the net proceeds of sale, or both where part was sold, shall be delivered to him after satisfying the costs incurred in consequence of the attachment.

Two things must both be proved and students routinely give only one: no intention to avoid the warrant, and no adequate notice.

Section 89, appeal. A person under section 88(3) who is aggrieved by a refusal to deliver the property or the proceeds may appeal to the Court to which appeals ordinarily lie from the sentences of the first Court.

A worked example

A Sessions Court at Kalyan issues a warrant against Nilesh, accused of an offence punishable with twelve years. The warrant comes back unexecuted; the police report that he has left his house and cannot be traced.

Proclamation. The Court, having reason to believe he is absconding so that the warrant cannot be executed, publishes a written proclamation requiring him to appear on a date not less than thirty days away, section 84(1). It is publicly read in his locality, affixed to his house and to the court house, section 84(2)(i), and the Court also directs publication in a local daily, section 84(2)(ii).

Attachment. The police file an affidavit that Nilesh is selling his flat. The Court may therefore order attachment simultaneously with the proclamation, under the proviso to section 85(1), recording its reasons in writing. The flat is in Thane district, so the order needs the endorsement of the District Magistrate of Thane, section 85(2).

His brother objects, saying half the flat is his. He may prefer a claim within six months of the attachment, in the Court of the Chief Judicial Magistrate of Thane because the attachment was under an endorsed order, section 87(2). If it is disallowed he has one year to file a suit, section 87(4).

Nilesh does not appear. Because the offence carries twelve years, the Court may, after such inquiry as it thinks fit, pronounce him a proclaimed offender under section 84(4), and publish that declaration in the same way. From then on any police officer may arrest him without warrant under section 35(1)(d), and the Court may proceed under section 356.

His money is in a bank abroad. A Commissioner of Police may make a written request, and the Court may then initiate a request for assistance from the foreign court or authority under section 86, following Chapter VIII.

Fourteen months later Nilesh is arrested and produced. He proves that he had gone to look after his mother in another State, did not know of the proclamation, and was not avoiding the warrant. Because it is within two years and he proves both limbs, section 88(3) requires the property, or the net sale proceeds, to be delivered to him after deducting the costs of the attachment.

The Court refuses. He may appeal under section 89 to the Court to which appeals ordinarily lie from that Court's sentences.

Distinctions

What this does NOT mean

A proclamation is not a substitute for a warrant. Section 84(1) requires a warrant to have been issued already.

Not every proclaimed person is a proclaimed offender. The declaration under section 84(4) is confined to offences punishable with ten years or more, life or death.

Attachment is not forfeiture. Section 88(1) releases the property if he appears, and section 88(3) restores it in the circumstances it states.

Thirty days is a floor, not a fixed period. Section 84(1) says "not less than thirty days".

And section 84(3) makes the Court's written statement conclusive only as to publication, not as to whether the person absconded.

Quick revision

• Section 84(1): proclamation after a warrant has issued, on reason to believe he has absconded or is concealing himself; appearance not less than thirty days later.
• Section 84(2): publicly read in his town or village; affixed to his house or a conspicuous place; affixed at the Court-house; may also be published in a daily newspaper.
• Section 84(3): the Court's written statement is conclusive evidence of due publication.
• Section 84(4), new: for offences punishable with ten years or more, life or death, non-appearance permits a declaration that he is a proclaimed offender.
• Section 85: attachment for reasons recorded, after the proclamation, or simultaneously if he is about to dispose of or remove property; within the district, or outside on the District Magistrate's endorsement; movables by seizure, receiver, or prohibitory orders; live-stock and perishables may be sold at once; the receiver has Code of Civil Procedure powers.
• Section 86, new: identification, attachment and forfeiture of property abroad, on the written request of an officer not below Superintendent of Police or Commissioner of Police, through Chapter VIII.
• Section 87: claims within six months by a person other than the proclaimed person; suit within one year of disallowance.
• Section 88: release on appearance within time; otherwise at the State Government's disposal, no sale for six months except for decay or the owner's benefit; restoration within two years on proof of no abscondence and no notice, less costs.
• Section 89: appeal against refusal to restore, to the Court to which appeals ordinarily lie from that Court's sentences.

Test yourself

1. What must exist before a Court can publish a proclamation? A warrant issued by that Court, and reason to believe that the person has absconded or is concealing himself so that the warrant cannot be executed, section 84(1).

2. What is the minimum time a proclamation must allow? Not less than thirty days from the date of publishing it, section 84(1).

3. When may a Court declare a person a proclaimed offender? Where the proclamation is in respect of an offence punishable with imprisonment of ten years or more, life imprisonment or death, and he fails to appear as required; the Court may then, after such inquiry as it thinks fit, pronounce him a proclaimed offender, section 84(4).

4. May property be attached before the proclamation is published? No. It may be attached at any time after the proclamation is issued, or simultaneously with it under the proviso to section 85(1) where the Court is satisfied he is about to dispose of or remove his property.

5. Within what time may a stranger object to the attachment, and what must he show? Within six months of the attachment, that he has an interest in the property which is not liable to attachment under section 85, section 87(1).

6. What must an absconder prove to get his attached property back? Both that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified, and he must appear or be brought before the Court within two years of the attachment, section 88(3).

7. How can a Court reach a proclaimed person's property outside India? Under section 86, on the written request of a police officer not below the rank of Superintendent of Police or Commissioner of Police, by initiating a request for assistance from a Court or authority in the contracting State, following Chapter VIII.

The words "after recording its reasons in writing" are the change from the old Code. A warrant is now a reasoned order, not a routine consequence of an absence, and that record is what an application to recall the warrant is argued on.

Section 91: taking a bond from a person present in Court

Where a person for whose appearance or arrest the officer presiding in a Court is empowered to issue a summons or warrant is present in that Court, the officer may require him to execute a bond or bail bond for his appearance in that Court, or in any other Court to which the case may be transferred for trial.

The section is a convenience with a purpose. The Court has the person in front of it, so process is unnecessary; what it wants is security for his return. And the bond covers not only that Court but any Court to which the case is later transferred, so a transfer does not require a fresh bond.

Section 92: breach of the bond

Where a person bound by any bond or bail bond taken under the Sanhita to appear before a Court does not appear, the officer presiding in that Court may issue a warrant directing that he be arrested and produced before him.

Notice the width of the opening words: any bond or bail bond taken under the Sanhita, not only one taken under section 91. So a bond taken by a police officer under section 39(2), or a bail bond taken on a section 73 endorsement, is covered.

Section 93: the chapter applies generally

The provisions of this Chapter relating to summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Sanhita.

This is a sweeping-up provision and it is worth a sentence in an answer because it prevents an argument. A summons to a witness under section 254, or a warrant issued under section 92, does not have its own service rules. Chapter VI supplies them, so far as may be.

A worked example

A Judicial Magistrate at Vasai issues a summons to Ganesh, an accused in a summons case, for 10 March.

Ganesh does not appear on 10 March. Can the Court issue a warrant at once? Only if three things are established under section 90(b): that he failed to appear; that the summons is proved to have been duly served, and served in time for him to attend; and that no reasonable excuse is offered. And the Court must record its reasons in writing.

Before 10 March the police report that Ganesh has left for Nepal. The Court may issue a warrant under section 90(a) even though the date fixed has not arrived, because it sees reason to believe he has absconded. Again, reasons in writing.

Ganesh is later arrested and produced. He is now present in Court. The Magistrate may require him to execute a bond or bail bond for his appearance, under section 91, and that bond covers any Court to which the case may be transferred for trial.

He fails to appear on the next date. Section 92 lets the presiding officer issue a warrant for his arrest and production.

The case is transferred to Palghar. The bond he executed under section 91 still binds him, because the section covers the Court "to which the case may be transferred for trial".

Distinctions

What this does NOT mean

Section 90 is not automatic. Absence alone is not enough under clause (b): service must be proved, it must have been in time, and the excuse offered must have been considered.

Section 91 is not bail. The person is not in custody; the Court is taking security for future attendance from somebody who is present.

And section 93 does not make Chapter VI override a special provision. The words are "so far as may be", so where another provision of the Sanhita or another law lays down its own mode, that prevails.

Quick revision

• Section 90: a warrant in lieu of or in addition to a summons, after recording reasons in writing, on either of two grounds: reason to believe he has absconded or will not obey; or failure to appear where the summons was proved duly served in time and no reasonable excuse is offered.
• Section 91: where the person is present in Court, the presiding officer may require a bond or bail bond for appearance in that Court or any Court to which the case may be transferred.
• Section 92: on failure to appear in breach of any bond or bail bond taken under the Sanhita, the presiding officer may issue a warrant for arrest and production.
• Section 93: Chapter VI applies, so far as may be, to every summons and every warrant of arrest issued under the Sanhita.

Test yourself

1. On what grounds may a Court issue a warrant instead of a summons? Under section 90(a), where before or after the issue of the summons but before the appearance date it sees reason to believe the person has absconded or will not obey; and under section 90(b), where he fails to appear, the summons is proved to have been duly served in time to admit of his appearance, and no reasonable excuse is offered.

2. What did the Sanhita add to that power? The requirement that the Court record its reasons in writing before issuing the warrant.

3. A person is in Court. Can the Court take security for his future attendance without issuing any process? Yes, under section 91, by requiring him to execute a bond or bail bond for his appearance in that Court or any Court to which the case may be transferred for trial.

4. Does section 92 apply only to bonds taken under section 91? No. It applies to any bond or bail bond taken under the Sanhita to appear before a Court.

5. Where does a summons issued to a witness at trial get its rules of service from? From Chapter VI, which section 93 applies, so far as may be, to every summons and warrant of arrest issued under the Sanhita.

Sub-section (2). A person required merely to produce a document or thing is deemed to have complied if he causes it to be produced instead of attending personally. So an order to produce a register does not compel the manager to come himself.

Sub-section (3), the two carve-outs. Nothing in section 94 affects:

(a) sections 129 and 130 of the Bharatiya Sakshya Adhiniyam, 2023, or the Bankers' Books Evidence Act, 1891; or

(b) any letter, postcard, other document, parcel or thing in the custody of the postal authority.

Clause (b) is the reason section 95 exists, and clause (a) preserves the privileges the evidence law gives to certain communications and the special mode of proving bankers' books.

Section 95: things in the post

Sub-section (1), who may order delivery. If a document, parcel or thing in the custody of a postal authority is, in the opinion of the District Magistrate, the Chief Judicial Magistrate, a Court of Session or a High Court, wanted for an investigation, inquiry, trial or other proceeding, that Magistrate or Court may require the postal authority to deliver it to such person as it directs.

Sub-section (2), who may only order detention. If it is, in the opinion of any other Magistrate, Executive or Judicial, or of any Commissioner of Police or District Superintendent of Police, wanted for such a purpose, he may require the postal authority to cause a search to be made for it and to detain it pending the order of a District Magistrate, Chief Judicial Magistrate or Court under sub-section (1).

The scheme is a hierarchy, and it is easy marks. Four authorities can order delivery. A wider set can only order search and detention, and must then go to one of the four.

Section 96: when a search warrant may be issued

Sub-section (1), the three grounds. A Court may issue a search-warrant where:

(a) it has reason to believe that a person to whom a summons or order under section 94, or a requisition under section 95(1), has been or might be addressed will not or would not produce the thing; or

(b) the thing is not known to the Court to be in the possession of any person; or

(c) the Court considers that the purposes of any inquiry, trial or other proceeding will be served by a general search or inspection.

Ground (a) covers the person who will not comply, and note the words "or might be addressed": the Court need not go through the futile step of issuing an order first. Ground (b) covers the thing nobody can be shown to hold. Ground (c) is the general search.

Sub-section (2), the limited warrant. The Court may specify in the warrant the particular place or part to which the search or inspection is to extend, and then the executing officer shall search only that place or part.

Sub-section (3), the postal exception again. Nothing in section 96 authorises any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or thing in the custody of the postal authority.

Section 97: stolen property and objectionable articles

Sub-section (1). A District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, who has reason to believe that a place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which the section applies, or that such an article is deposited in any place, may by warrant authorise any police officer above the rank of a constable:

(a) to enter the place, with such assistance as may be required; (b) to search it in the manner specified in the warrant; (c) to take possession of any property or article found which he reasonably suspects to be stolen property or an objectionable article; (d) to convey it before a Magistrate, or to guard it on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in a place of safety; (e) to take into custody and carry before a Magistrate every person found in the place who appears to have been privy to the deposit, sale or production, knowing or having reasonable cause to suspect the thing to be stolen property or an objectionable article.

Sub-section (2) defines "objectionable article", and it is a closed list which includes counterfeit coin, pieces of metal made in contravention of the Coinage Act, 2011 or brought into India in contravention of a notification, counterfeit currency notes and stamps, forged documents, false seals, obscene objects, and instruments or materials for making any of them.

Note the rank floor: the warrant may be given only to a police officer above the rank of a constable.

Sections 98 and 99: forfeited publications

Section 98(1). Where a newspaper, book or document, wherever printed, appears to the State Government to contain matter the publication of which is punishable under section 152, 196, 197, 294, 295 or 299 of the Bharatiya Nyaya Sanhita, 2023, the State Government may, by notification stating the grounds of its opinion, declare every copy forfeited to Government. Any police officer may then seize it wherever found in India, and any Magistrate may by warrant authorise a police officer not below the rank of sub-inspector to enter and search any premises where a copy may be, or may reasonably be suspected to be.

Sub-section (2) borrows "newspaper" and "book" from the Press and Registration of Books Act, 1867, and defines "document" to include any painting, drawing or photograph, or other visible representation. Sub-section (3) bars any challenge to an order or action under the section otherwise than under section 99.

Section 99 is that one route. Any person having an interest in the newspaper, book or document may, within two months from the date of publication of the declaration in the Official Gazette, apply to the High Court to set the declaration aside, on the ground that the publication did not contain any such matter. The application is heard by a Special Bench of three Judges, or, where the High Court has fewer than three, by all its Judges. A copy of the newspaper may be given in evidence in aid of proving the nature or tendency of what it contained. The High Court shall set the declaration aside if it is not satisfied that the publication contained such matter, and where the Judges differ the majority prevails.

Section 99 is worth remembering because it is a rare instance of the Code giving a direct route to a Bench of the High Court, because it is the only route, and because the two month limit is the kind of number examiners like.

Sections 100 and 101: persons rather than things

Section 100, wrongful confinement. Where a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that a person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom it is directed may search for the person confined. If found, that person shall be immediately taken before a Magistrate, who shall make such order as seems proper.

Section 101, abducted women and female children. Upon complaint made on oath of the abduction or unlawful detention of a woman, or of a female child for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of the woman to her liberty, or of the female child to her parent, guardian or other person having lawful charge, and may compel compliance, using such force as may be necessary.

These two sections are the Code's summary remedies for a person held against the law, and they sit alongside the constitutional writ of habeas corpus rather than replacing it.

A worked example

A Court at Thane is trying a case of cheating. The prosecution says the crucial admission is in a WhatsApp exchange on the accused's phone, and that the accounts are in a ledger held by his former partner.

The ledger. The Court may issue a summons under section 94(1) to the partner to attend and produce it. If the order is merely to produce, he complies by sending it, under section 94(2).

The phone. A phone is a communication device likely to contain digital evidence, so it is within section 94(1) in terms.

The accused says he has lost it, and the Court does not believe him. Ground (a) of section 96(1) is made out: reason to believe that a person to whom an order has been or might be addressed will not produce the thing. A search warrant may issue. The Court may confine the warrant to his flat under section 96(2), and then the officer may search nowhere else.

A letter to him is in the post office. Section 94(3)(b) puts it outside section 94 altogether. Only the District Magistrate, the Chief Judicial Magistrate, a Court of Session or the High Court may require the postal authority to deliver it, under section 95(1). A Sub-divisional Magistrate could only require it to be searched for and detained, under section 95(2).

Now a different case. A Sub-divisional Magistrate has information that a shop is being used to store counterfeit coin. Under section 97(1) he may, after such inquiry as he thinks necessary, warrant a police officer above the rank of constable to enter, search, take possession of the coin, convey it before a Magistrate, and take into custody every person found there who appears to have been privy to the deposit knowing it to be counterfeit.

And another. A woman's family complains on oath that she is being unlawfully detained. Under section 101 the Magistrate may order her immediate restoration to her liberty and compel compliance with such force as is necessary. If instead the question is whether a person is confined in circumstances amounting to an offence, section 100 lets him issue a search warrant, and the person found must be taken immediately before a Magistrate.

Distinctions

What this does NOT mean

Section 94 does not reach a letter in the post. Sub-section (3)(b) excludes it, and section 95 governs instead.

A search warrant is not a substitute for asking. Section 96 requires one of three grounds, and the first of them is about a person who will not or would not produce.

"Objectionable article" is not a general expression. It is defined by the closed list in section 97(2).

And section 96(2) is not a formality. Where the warrant specifies a place or part, the officer may search only that place or part.

Quick revision

• Section 94: a Court by summons, or an officer in charge of a police station by written order in physical or electronic form, may require production of a document, electronic communication including communication devices likely to contain digital evidence, or other thing; producing it is enough, attendance is not required; the section does not affect sections 129 and 130 of the Bharatiya Sakshya Adhiniyam or the Bankers' Books Evidence Act, 1891, and does not apply to things in the custody of the postal authority.
• Section 95: delivery may be required only by a District Magistrate, Chief Judicial Magistrate, Court of Session or High Court; search and detention may be required by any other Magistrate, a Commissioner of Police or a District Superintendent of Police.
• Section 96: three grounds for a search-warrant; the warrant may be confined to a specified place or part; only a District Magistrate or Chief Judicial Magistrate may warrant a search of postal custody.
• Section 97: stolen property and objectionable articles; warrant by a District, Sub-divisional or first class Magistrate to a police officer above the rank of constable; five powers, including taking into custody persons privy to the deposit.
• Sections 98 and 99: forfeited publications, on grounds stated in the notification, for matter punishable under BNS sections 152, 196, 197, 294, 295 or 299; search warrant to an officer not below sub-inspector; the only challenge is an application to the High Court within two months of publication in the Official Gazette, heard by a Special Bench of three Judges.
• Section 100: search-warrant for a person wrongfully confined; if found, taken immediately before a Magistrate.
• Section 101: on a complaint on oath, immediate restoration of an abducted or unlawfully detained woman to her liberty, or of a female child to her parent or guardian, with such force as is necessary.

Test yourself

1. Can a police officer order production of a mobile phone? Yes. An officer in charge of a police station may, by written order in physical or electronic form, require production of any electronic communication including communication devices likely to contain digital evidence, under section 94(1).

2. Which authorities may order a postal authority to deliver a parcel? The District Magistrate, the Chief Judicial Magistrate, a Court of Session or a High Court, under section 95(1). Others may only require search and detention under section 95(2).

3. State the three grounds on which a search-warrant may issue under section 96. Reason to believe the person to whom an order has been or might be addressed will not produce the thing; the thing is not known to the Court to be in anybody's possession; or the Court considers that the purposes of the proceeding will be served by a general search or inspection.

4. To whom may a warrant under section 97 be directed? Any police officer above the rank of a constable.

5. Within what time, and to which court, may a forfeiture of a publication be challenged? Within two months of the publication of the declaration in the Official Gazette, to the High Court, where it is heard by a Special Bench of three Judges, or by all the Judges where there are fewer than three, section 99. Section 98(3) makes that the only way to question the order.

6. What does a Magistrate do with a person found under a warrant issued under section 100? The person shall be immediately taken before a Magistrate, who shall make such order as in the circumstances seems proper.

7. What must precede an order under section 101? A complaint made on oath of the abduction or unlawful detention of a woman, or of a female child for an unlawful purpose.

Sub-section (1), free ingress. Where a place liable to search is closed, any person residing in or in charge of it shall, on demand of the officer executing the warrant and on production of the warrant, allow free ingress and afford all reasonable facilities for a search.

Sub-section (2), if refused. The officer may proceed in the manner provided by section 44(2), which is the break-open provision met in [How an Arrest Is Actually Made], with its own requirement of notifying authority and purpose and demanding admittance first.

Sub-section (3), searching a person present. Where any person in or about the place is reasonably suspected of concealing about his person any article for which search should be made, he may be searched; and if that person is a woman, the search shall be made by another woman with strict regard to decency.

Sub-section (4), the witnesses. Before making a search the officer shall call upon two or more independent and respectable inhabitants of the locality in which the place is situated, or of any other locality if no such inhabitant of that locality is available or willing, to attend and witness the search, and may issue an order in writing to them to do so.

Sub-section (5), the list. The search shall be made in their presence, and a list of all things seized and of the places in which they were respectively found shall be prepared by the officer and signed by the witnesses. But no witness is required to attend Court as a witness of the search unless specially summoned.

Sub-section (6), the occupant. The occupant of the place searched, or somebody on his behalf, shall in every instance be permitted to attend during the search, and a copy of the list, signed by the witnesses, shall be delivered to him.

Sub-section (7). Where a person is searched under sub-section (3), a list of all things taken possession of shall be prepared and a copy delivered to him.

Sub-section (8), the sanction. A person who without reasonable cause refuses or neglects to attend and witness a search when called upon by an order in writing delivered or tendered to him is deemed to have committed an offence under section 222 of the Bharatiya Nyaya Sanhita, 2023.

Section 104: things found outside the jurisdiction

Where a search-warrant is executed beyond the local jurisdiction of the issuing Court and the things searched for are found, they, together with the list, shall be immediately taken before the issuing Court, unless the place is nearer to the Magistrate having jurisdiction there than to that Court, in which case they go before that Magistrate, who shall, unless there is good cause to the contrary, order them to be taken to the issuing Court.

Section 105: the recording, and it is new

The process of conducting a search of a place or taking possession of any property, article or thing under this Chapter or under section 185, including preparation of the list of all things seized and the signing of that list by witnesses, shall be recorded through any audio-video electronic means, preferably mobile phone, and the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.

Four points, and each is worth a line.

It is mandatory. The word is "shall".

It covers the list. Not only the search but the preparation of the list and the witnesses signing it.

It extends to section 185, which is a search by a police officer during an investigation without a warrant. So the requirement is not confined to warrant searches.

The recording goes to a Magistrate without delay. It does not stay in the police station.

Section 106: the police power to seize

Sub-section (1). Any police officer may seize any property which may be alleged or suspected to have been stolen, or which is found under circumstances which create suspicion of the commission of any offence.

Sub-section (2). An officer subordinate to the officer in charge of a police station shall forthwith report the seizure to that officer.

Sub-section (3). Every officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction. Where the property cannot be conveniently transported to the Court, or there is difficulty in securing accommodation for its custody, or continued retention in police custody is not considered necessary for the investigation, he may give custody of it to any person on a bond to produce it before the Court when required and to give effect to further orders about its disposal.

The proviso. Where the property is subject to speedy and natural decay, and the person entitled to possession is unknown or absent, and its value is less than five hundred rupees, it may be sold by auction at once under the orders of the Superintendent of Police, and sections 503 and 504 apply as nearly as may be to the net proceeds.

Section 107: attachment and forfeiture of the proceeds of crime

This section is new, it is not named by MU's syllabus, and it is in the book because rule 1.3 of the house rules requires the whole Act to be covered. It is also, in practice, one of the most significant additions the Sanhita makes.

Sub-section (1). Where a police officer making an investigation has reason to believe that any property is derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of any offence, he may, with the approval of the Superintendent of Police or Commissioner of Police, apply to the Court or Magistrate exercising jurisdiction to take cognizance, commit for trial, or try the case, for attachment.

Sub-section (2). If the Court has reason to believe, whether before or after taking evidence, that the properties are proceeds of crime, it may issue a notice to show cause within fourteen days why an order of attachment should not be made.

Sub-section (3). Where the notice specifies property held by another person on his behalf, a copy goes to that other person too.

Sub-section (4). After considering the explanation and the material, and after a reasonable opportunity of being heard, the Court may pass an order of attachment over the properties found to be proceeds of crime. The proviso allows an ex parte order where the person does not appear or represent his case within the fourteen days.

Sub-section (5). Notwithstanding sub-section (2), if the Court is of opinion that issuing the notice would defeat the object of the attachment or seizure, it may pass an interim ex parte order of attachment or seizure, which stands until an order under sub-section (6).

Sub-section (6), and this is the striking part. If the Court finds the attached or seized properties to be proceeds of crime, it shall by order direct the District Magistrate to distribute them rateably to the persons who are affected by the crime.

Sub-section (7). The District Magistrate shall distribute them within sixty days, himself or through a subordinate he authorises.

Sub-section (8). If there are no claimants, or none is ascertainable, or there is a surplus, the proceeds stand forfeited to the Government.

So the ordinary destination of the proceeds of crime under this section is the victims, and the Government takes only what is left. That is a different starting point from most forfeiture law and it is the point to make about section 107 in an answer.

Sections 108 to 110: three short provisions

Section 108. Any Magistrate may direct a search to be made in his presence of any place for which he is competent to issue a search-warrant.

Section 109. Any Court may, if it thinks fit, impound any document or thing produced before it under the Sanhita.

Section 110, reciprocal arrangements regarding processes. Where a Court in the territories to which the Sanhita extends wants a summons to an accused, a warrant of arrest, a summons to produce, or a search-warrant served or executed:

(i) within the local jurisdiction of a Court in a State or area in India outside those territories, it may send it in duplicate by post or otherwise to the presiding officer of that Court, and where a summons has been so served, section 70 applies as if that presiding officer were a Magistrate in these territories; and

(ii) in a country or place outside India with which the Central Government has made arrangements, that is a contracting State, it may send it in duplicate in the form, to the Court, Judge or Magistrate, and through the authority, that the Central Government specifies by notification.

Sub-section (2) works in the other direction: where a Court here receives such a process from a Court outside these territories or from a contracting State, it causes it to be served or executed as if it were from another Court here. A warrant executed is followed by the section 82 and 83 procedure; things found on a search-warrant are dealt with under section 104; and where the process came from a contracting State, the documents or things go back through the authority the Central Government notifies.

A worked example

A Magistrate at Panvel issues a search-warrant for a godown said to hold stolen electronics.

Getting in. The officer produces the warrant and demands free ingress, section 103(1). The watchman refuses. The officer may proceed under section 44(2) by way of section 103(2), which means notifying his authority and purpose and demanding admittance before breaking anything open.

Before searching. He must call upon two or more independent and respectable inhabitants of the locality to attend and witness, and may issue a written order to them, section 103(4). If nobody in that locality is available or willing, he may call inhabitants of another locality.

During the search. It is made in their presence. The occupant or somebody on his behalf must be permitted to attend, section 103(6). The whole process, including the making of the list and the witnesses signing it, must be recorded by audio-video electronic means, preferably a mobile phone, section 105.

A man in the godown is suspected of hiding a memory card on him. He may be searched, section 103(3). A list of what is taken from him is prepared and a copy given to him, section 103(7). If it had been a woman, the search must be by another woman with strict regard to decency.

Afterwards. A list of all things seized and where each was found is prepared and signed by the witnesses, and a signed copy is delivered to the occupant, sections 103(5) and 103(6). The recording is forwarded without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class, section 105.

One of the two witnesses had refused to come. He is deemed to have committed an offence under section 222 of the Bharatiya Nyaya Sanhita, section 103(8), provided the order in writing was delivered or tendered to him and he had no reasonable cause.

The godown is outside Panvel's local jurisdiction. The things found and the list are taken immediately before the issuing Court, unless the place is nearer to the local Magistrate, in which case they go to him and he orders them on, section 104.

A car in the godown is suspected to be bought with the proceeds of the thefts. The investigating officer may, with the approval of the Superintendent of Police, apply under section 107(1) for its attachment. The Court issues a fourteen day show cause notice, hears the person, and if it finds the car to be proceeds of crime, orders it attached and directs the District Magistrate to distribute the proceeds rateably among those affected by the crime within sixty days. Anything left, or property with no claimant, is forfeited to the Government.

Distinctions

What this does NOT mean

Section 103(5) does not make the search witnesses witnesses at the trial. They are not required to attend Court unless specially summoned.

Section 105 is not confined to searches under a warrant. It applies to this Chapter and to section 185, which is a search during investigation.

Section 106's proviso is not a general power to sell seized property. All three conditions must be met: speedy and natural decay, an unknown or absent owner, and a value less than five hundred rupees.

And section 107 does not forfeit the proceeds of crime to the State as a first step. Sub-section (6) sends them to the persons affected by the crime, and only the residue is forfeited.

Quick revision

• Section 102: sections 32, 72, 74, 76, 79, 80 and 81 apply to search-warrants, so a search-warrant is executable anywhere in India.
• Section 103: free ingress on demand and production of the warrant; break open under section 44(2) if refused; a person may be searched, and a woman only by a woman with strict regard to decency; two or more independent and respectable inhabitants of the locality as witnesses; search in their presence; list of things seized and where found, signed by them; the occupant may attend and gets a signed copy; a list to any person searched; refusal to witness is an offence under BNS section 222.
• Section 104: things found outside the issuing Court's jurisdiction go to that Court, or to the nearer local Magistrate, who sends them on.
• Section 105, new: the search, the seizure, the list and the signing must be recorded by audio-video electronic means, preferably mobile phone, and forwarded without delay to a District, Sub-divisional or first class Judicial Magistrate; it covers section 185 as well.
• Section 106: any police officer may seize property suspected stolen or found in suspicious circumstances; report to the officer in charge and to the Magistrate; custody may be given on a bond; perishables worth less than five hundred rupees with an unknown or absent owner may be auctioned under the Superintendent of Police's orders.
• Section 107, new: attachment of proceeds of crime on the application of the investigating officer with the approval of the Superintendent or Commissioner; fourteen day show cause; ex parte order if he does not appear, or an interim ex parte order if notice would defeat the object; on a finding, rateable distribution by the District Magistrate within sixty days to those affected; residue forfeited to Government.
• Sections 108, 109 and 110: search in the Magistrate's presence; power to impound; and reciprocal service and execution of processes within India and with contracting States.

Test yourself

1. How many witnesses must a search have, and who may they be? Two or more independent and respectable inhabitants of the locality where the place is situated, or of another locality if none there is available or willing, section 103(4).

2. What happens if a person called upon in writing refuses to witness a search? Without reasonable cause, he is deemed to have committed an offence under section 222 of the Bharatiya Nyaya Sanhita, section 103(8).

3. Must a search be video recorded? Yes. Section 105 requires the process of search and seizure, including preparation of the list and its signing by witnesses, to be recorded by audio-video electronic means, preferably a mobile phone, and the recording to be forwarded without delay to a District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.

4. Who is entitled to a copy of the search list? The occupant of the place searched, or a person on his behalf, section 103(6); and a person searched under section 103(3) gets a list of what was taken from him, section 103(7).

5. When may seized perishable property be sold at once? Where it is subject to speedy and natural decay, the person entitled to possession is unknown or absent, and its value is less than five hundred rupees, under the orders of the Superintendent of Police, proviso to section 106(3).

6. Where do the proceeds of crime go under section 107? The Court directs the District Magistrate to distribute them rateably, within sixty days, to the persons affected by the crime; only where there are no claimants, none ascertainable, or a surplus, do they stand forfeited to the Government.

7. Whose approval does an application under section 107 need? That of the Superintendent of Police or the Commissioner of Police.

• to examine orally any person supposed to be acquainted with the facts and circumstances and to record his statement; and
• to require that person or any other person to produce any document or thing in his possession pertaining to the case; and
• to forward all the evidence so taken or collected, or authenticated copies, or the thing collected, to the issuing Court.

Sub-section (2): the letter is transmitted as the Central Government specifies.

Sub-section (3), and this is the operative line for a trial. Every statement recorded, or document or thing received, is deemed to be evidence collected during the course of investigation under the Sanhita. Without that deeming provision the material would be in an awkward category of its own.

Section 113, coming in. On receiving a letter of request from a competent foreign Court or authority for the examination of a person or production of a document or thing in relation to an offence under investigation there, the Central Government may, if it thinks fit:

(i) forward it to the Chief Judicial Magistrate or a Judicial Magistrate he appoints, who shall summon the person and record his statement, or cause the document or thing to be produced; or

(ii) send the letter to any police officer for investigation, who shall investigate the offence in the same manner as if the offence had been committed within India.

Sub-section (2): the evidence, or authenticated copies, or the thing, is forwarded by the Magistrate or officer to the Central Government, for transmission to the requesting Court or authority.

Note the shape. Going out, the Court issues and the Central Government transmits. Coming in, the Central Government receives and decides, and the Court or the police act.

Section 114: moving people

Sub-section (1). Where a Court in India wants a warrant it has issued, for the arrest of a person to attend or produce a document or thing, executed in a contracting State, it sends it in duplicate, in the form and through the authority the Central Government notifies, to the foreign Court, Judge or Magistrate, who causes it to be executed.

Sub-section (2). Where, during an investigation or inquiry, the investigating officer or a superior officer applies for the attendance of a person in a contracting State, and the Court is satisfied the attendance is required, it issues a summons or warrant in duplicate to that foreign Court in the notified form.

Sub-section (3). Where a Court in India receives such a warrant from a contracting State, it executes it as if it were a warrant received from another Court in India.

Sub-sections (4) and (5), prisoners. Where a person transferred to a contracting State under sub-section (3) is a prisoner in India, the Court or the Central Government may impose such conditions as it thinks fit. Where a person transferred to India under sub-sections (1) or (2) is a prisoner in a contracting State, the Court in India shall ensure that the conditions of his transfer are complied with, and he is kept in such custody and on such conditions as the Central Government directs in writing.

Sections 115 to 122: property

Section 115, the gateway. Where a Court in India has reasonable grounds to believe that property obtained by any person is derived or obtained, directly or indirectly, from the commission of an offence, it may make an order of attachment or forfeiture under sections 116 to 122. Where the property is suspected to be in a contracting State, the Court may issue a letter of request to a Court or authority there for execution. And where the Central Government receives such a letter from a contracting State asking for attachment or forfeiture of property in India derived from an offence committed there, it may forward it to such Court as it thinks fit for execution under sections 116 to 122 or any other law.

Section 116, tracing. The Court shall direct a police officer not below the rank of Sub-Inspector to take all steps necessary for tracing and identifying the property. Those steps may include inquiry, investigation or survey in respect of any person, place, property, assets, documents or books of account in any bank or public financial institution. They are carried out in accordance with the Court's directions.

Section 117, seizure or attachment. Where the officer conducting that inquiry has reason to believe that the property is likely to be concealed, transferred or otherwise dealt with in a way that will result in its disposal, he may order its seizure, and where seizure is not practicable, order its attachment, directing that the property shall not be transferred or otherwise dealt with except with his prior permission.

Section 118, management. The Court may appoint the District Magistrate of the area where the property is situated, or an officer he nominates, as Administrator. The Administrator receives and manages the property as the Central Government specifies, and takes such measures as the Central Government directs to dispose of property forfeited to the Central Government.

Section 119, the notice. If, as a result of the inquiry, the Court has reason to believe that the properties are proceeds of crime, it may serve a notice on the person affected calling on him within thirty days to indicate the source of the income, earnings or assets out of which he acquired the property, the evidence he relies on and other particulars, and to show cause why the property should not be declared proceeds of crime and forfeited to the Central Government. Where the notice specifies property held on his behalf by another person, a copy goes to that person too.

Section 120, forfeiture. After considering the explanation and the material, and after giving the person affected, and any person through whom he holds property, a reasonable opportunity of being heard, the Court records a finding whether the properties are proceeds of crime. The proviso allows an ex parte finding where he does not appear or represent his case within the thirty days.

Sub-section (2) meets a practical difficulty: where the Court is satisfied that some of the properties are proceeds of crime but cannot identify which, it may specify the properties which to the best of its judgment are proceeds of crime and record its finding accordingly.

Sub-section (3). On such a finding, the property stands forfeited to the Central Government free from all encumbrances.

Sub-section (4). Where shares in a company are forfeited, the company shall, notwithstanding the Companies Act, 2013 or its Articles of Association, forthwith register the Central Government as the transferee.

Section 121, fine in lieu of forfeiture, and it is new. Where the Court declares property forfeited under section 120 and it is a case where the source of only a part of the property has not been proved to the Court's satisfaction, it shall make an order giving the person affected the option to pay, in lieu of forfeiture, a fine equal to the market value of that part. He must first be given a reasonable opportunity of being heard. If he pays within the time allowed, the Court may revoke the declaration of forfeiture and the property stands released.

Section 122, transfers ignored. Where, after an order under section 117(1) or the issue of a notice under section 119, the property is transferred by any mode whatsoever, the transfer is ignored for the purposes of the proceedings, and if the property is subsequently forfeited under section 120, the transfer is deemed null and void.

Sections 123 and 124

Section 123, procedure. Every letter of request, summons or warrant received by the Central Government from a contracting State, and every one to be transmitted to a contracting State under the Chapter, shall be transmitted or sent to the concerned Court in India in such form and manner as the Central Government may specify by notification. So the form of the paperwork is not for the Court to settle.

Section 124, application. The Central Government may, by notification in the Official Gazette, direct that the application of the Chapter in relation to a contracting State with which reciprocal arrangements have been made shall be subject to such conditions, exceptions or qualifications as are specified in the notification. The Chapter therefore does not apply uniformly to every contracting State; the notification for each may cut it down.

Section 124 is the last section of MU's printed range: old section 105L carried the same marginal note, "Application of this Chapter".

A worked example

A Mumbai company is defrauded of eight crore rupees. The investigation shows the money went through a bank in a contracting State and was used to buy a flat there, and that the main witness now lives there.

The witness. The investigating officer applies to the Court. Any Criminal Court may issue a letter of request under section 112(1) to the competent foreign Court, asking it to examine him orally, record his statement and require production of documents, and to forward the material. What comes back is deemed to be evidence collected during the investigation, section 112(3).

The flat. The Court, having reasonable grounds to believe the flat was obtained from the offence, may act under section 115(1) and, because the property is in a contracting State, issue a letter of request for execution of its order there, section 115(2).

Property here. A second flat is in Pune. The Court directs a police officer not below Sub-Inspector to trace and identify it, section 116(1). He finds the accused is arranging a sale, and, having reason to believe it will be disposed of, orders seizure or, if that is impracticable, attachment, section 117(1).

The notice. The Court serves a thirty day notice under section 119 calling on the accused to show the source of the money and to show cause against forfeiture. He does not appear, so the Court may record its finding ex parte under the proviso to section 120(1).

He then sells the Pune flat to his cousin. The transfer is ignored, and once forfeiture is recorded it is deemed null and void, section 122.

He can prove the source of two thirds of the price but not the rest. Section 121 requires the Court to give him the option of paying a fine equal to the market value of that unproved part in lieu of forfeiture, after hearing him; if he pays in time the declaration may be revoked and the flat released.

A foreign court asks India for help. The Central Government receives the letter of request and may forward it to a Chief Judicial Magistrate to record a statement, or to a police officer to investigate as if the offence had been committed in India, section 113(1). The material goes back through the Central Government, section 113(2).

Distinctions

What this does NOT mean

A Court in India does not correspond directly with a foreign court. Everything goes through the authority the Central Government notifies, and under section 113 the Central Government decides whether to act at all.

"Contracting State" is not every country. It is one with which the Central Government has made arrangements, by treaty or otherwise, section 111(a).

Forfeiture under section 120 is not automatic on non-appearance. The Court must still record a finding, though it may do so ex parte.

And section 121 is not a general option to buy off a forfeiture. It arises only where the source of part of the property has not been proved, and the fine equals the market value of that part.

Quick revision

• Section 111 defines contracting State, identifying, proceeds of crime, property and tracing.
• Section 112: any Criminal Court may issue a letter of request abroad on the application of the investigating officer or a superior; what comes back is deemed evidence collected during investigation.
• Section 113: an incoming letter of request goes to the Central Government, which may send it to a Chief Judicial Magistrate or Judicial Magistrate, or to a police officer who investigates as if the offence had been committed in India.
• Section 114: warrants and summonses to and from a contracting State; conditions for transferred prisoners both ways.
• Section 115: the Court's power to attach or forfeit, letters of request out, and incoming requests forwarded by the Central Government.
• Section 116: tracing and identifying by a police officer not below Sub-Inspector, by inquiry, investigation or survey.
• Section 117: seizure, or attachment where seizure is impracticable, on reason to believe the property will be disposed of.
• Section 118: the District Magistrate or his nominee as Administrator.
• Section 119: thirty day show cause notice to the person affected, and to anyone holding on his behalf.
• Section 120: finding after a reasonable opportunity of being heard, ex parte if he does not appear; property forfeited to the Central Government free from all encumbrances; shares to be registered in the Central Government's name notwithstanding the Companies Act, 2013.
• Section 121, new: option of a fine equal to the market value of the part whose source is unproved, in lieu of forfeiture; payment may lead to revocation and release.
• Section 122: transfers after a section 117(1) order or a section 119 notice are ignored, and null and void on forfeiture.
• Section 123: the form and manner of transmitting every letter of request, summons or warrant, in either direction, is what the Central Government notifies.
• Section 124: the Chapter's application to a particular contracting State may be made subject to conditions, exceptions or qualifications by notification in the Official Gazette. It is old section 105L, the end of MU's printed range.

Test yourself

1. What is a contracting State? Any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of that country, through a treaty or otherwise, section 111(a).

2. Who may ask a Court to issue a letter of request under section 112? The investigating officer or any officer superior in rank to him.

3. What is the evidentiary status of a statement recorded abroad on such a letter? It is deemed to be evidence collected during the course of investigation under the Sanhita, section 112(3).

4. On receiving a letter of request from abroad, what are the Central Government's two options? To forward it to the Chief Judicial Magistrate or a Judicial Magistrate he appoints, who summons the person and records his statement or has the document produced; or to send it to a police officer, who investigates as if the offence had been committed in India, section 113(1).

5. How long is the show cause notice under section 119, and what must the person affected state? Thirty days, and he must indicate the source of the income, earnings or assets out of which he acquired the property, the evidence he relies on and other relevant particulars, and show cause against forfeiture.

6. When is a fine payable in lieu of forfeiture? Where the source of only a part of the forfeited property has not been proved to the Court's satisfaction; the Court shall then give the person affected the option to pay a fine equal to the market value of that part, section 121.

7. What happens to a sale of the property made after the section 119 notice? It is ignored for the purposes of the proceedings under the Chapter, and if the property is later forfeited it is deemed null and void, section 122.

The offences, sub-section (2).

(a) any offence punishable under Chapter XI of the Bharatiya Nyaya Sanhita, 2023, other than one punishable under section 193(1), 196 or 197 of that Sanhita; (b) any offence which consists of or includes assault, using criminal force, or committing mischief; (c) any offence of criminal intimidation; (d) any other offence which caused, or was intended or known to be likely to cause, a breach of the peace.

Sub-section (3). If the conviction is set aside on appeal or otherwise, the bond becomes void. That is the logical consequence of the order resting on the conviction.

Sub-section (4). The order may also be made by an Appellate Court or by a Court exercising powers of revision.

Section 126: security for keeping the peace in other cases

Who. An Executive Magistrate.

On what. Information that a 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 either, and an opinion that there is sufficient ground for proceeding.

What. He may require the person to show cause why he should not execute a bond or bail bond for keeping the peace for a period not exceeding one year.

Sub-section (2), where. Proceedings may be taken before any Executive Magistrate where either the place where the breach is apprehended is within his local jurisdiction, or there is within his jurisdiction a person likely to commit the breach or do the wrongful act beyond that jurisdiction.

So the Magistrate may act either where the trouble is expected or where the troublemaker is.

Section 127: security for good behaviour from persons disseminating certain matters

Who. An Executive Magistrate, on information that there is within his local jurisdiction a person who, within or without that jurisdiction:

(i) orally, in writing or in any other manner, intentionally disseminates, attempts to disseminate, or abets the dissemination of:

• (a) any matter the publication of which is punishable under section 152, 196, 197 or 299 of the Bharatiya Nyaya Sanhita, 2023; 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 that Sanhita; or

(ii) makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets to hire, distributes, publicly exhibits or otherwise puts into circulation any obscene matter such as is referred to in section 294 of the Bharatiya Nyaya Sanhita.

What. Show cause why he should not execute a bond or bail bond for good behaviour for a period not exceeding one year.

Sub-section (2), the press protection. No proceedings may be taken under this section against the editor, proprietor, printer or publisher of a publication registered under, and edited, printed and published in conformity with, the Press and Registration of Books Act, 1867, in respect of matter contained in that publication, except by the order or under the authority of the State Government or an officer it empowers.

That protection is worth a sentence in an answer. It does not make the press immune; it moves the decision to a level above the local Executive Magistrate.

Section 128: security for good behaviour from suspected persons

Who. An Executive Magistrate, on 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.

What. Show cause why he should not execute a bond for good behaviour for a period not exceeding one year.

Both limbs are needed: concealment, and reason to believe it is with a view to a cognizable offence. Concealment alone is not enough, and this is the section most open to abuse if the second limb is treated casually.

Section 129: security for good behaviour from habitual offenders

Who. An Executive Magistrate, on information that there is within his local jurisdiction a person who falls into one of seven categories:

(a) is by habit a robber, house-breaker, thief or forger; (b) is by habit a receiver of stolen property knowing it to be stolen; (c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property; (d) habitually commits, attempts or abets kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter X of the Bharatiya Nyaya Sanhita, or under sections 178 to 181 of that Sanhita; (e) habitually commits, attempts or abets offences involving a breach of the peace; (f) habitually commits, attempts or abets an offence under the Drugs and Cosmetics Act, 1940, the Foreigners Act, 1946, the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, the Essential Commodities Act, 1955, the Protection of Civil Rights Act, 1955, the Customs Act, 1962, the Food Safety and Standards Act, 2006, or any other law for the prevention of hoarding or profiteering, or adulteration of food or drugs, or corruption; (g) is so desperate and dangerous as to render his being at large without security hazardous to the community.

What. Show cause why he should not execute a bail bond for good behaviour for a period not exceeding three years.

Two details separate section 129 from sections 126 to 128. The period is three years, not one. And the section speaks of a bail bond, that is a bond with sureties, whereas the others allow a bond or a bail bond.

Section 130: the order that starts it

When a Magistrate acting under section 126, 127, 128 or 129 deems it necessary to require a person to show cause, 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 of sureties, after considering the sufficiency and fitness of sureties.

This order is the foundation of the whole proceeding, and two later sections measure themselves against it. Section 135(3)(b) says an interim bond's conditions must not be more onerous than those in the section 130 order. And the proviso to section 136 says the final order may not require security of a different nature, of a larger amount, or for a longer period than the section 130 order specified. So a defective section 130 order is not a technicality; it caps everything that follows.

A worked example

An Executive Magistrate in Palghar receives a police report that Suresh has twice been convicted of housebreaking, is known in three villages as a receiver of stolen goods, and has returned to the area.

Which section? Section 129, because the information is that he is by habit a house-breaker and a receiver of stolen property, clauses (a) and (b).

What must the Magistrate do first? Form the opinion that there is sufficient ground for proceeding, and then make an order in writing under section 130 setting out the substance of the information, the amount of the bond, its term and the number of sureties, having considered their sufficiency and fitness.

How long? Up to three years, and the security is a bail bond, so sureties are required.

Change the facts. Two groups are about to fight over a temple procession route. The Magistrate proceeds under section 126 against the leaders of both, and the period may not exceed one year.

Change them again. A man is found to be circulating obscene material of the kind described in section 294 of the Bharatiya Nyaya Sanhita. Section 127(1)(ii) applies, again for one year.

And again. The material appeared in a newspaper registered and published in conformity with the Press and Registration of Books Act, 1867. Then the Magistrate cannot proceed against its editor, proprietor, printer or publisher except by the order or under the authority of the State Government or an officer it empowers, section 127(2).

Now a court rather than a Magistrate. A Judicial Magistrate of the first class convicts Anil of criminal intimidation. At the time of passing sentence, being of opinion that security is necessary, the Court may order a bond for keeping the peace for up to three years, under section 125. If the conviction is later set aside, the bond becomes void under section 125(3).

Distinctions

What this does NOT mean

A security proceeding is not a trial and a bond is not a sentence. Nobody is convicted of anything under sections 126 to 129.

Section 128 is not about a person who is merely hiding. Concealment must be coupled with reason to believe it is with a view to committing a cognizable offence.

Section 129 is not about a person with one conviction. Every one of clauses (a) to (f) turns on habit, and clause (g) on being so desperate and dangerous that liberty without security is hazardous to the community.

And section 127(2) does not put the press beyond the section. It requires the order or authority of the State Government or an empowered officer.

Quick revision

• Section 125: on conviction by a Court of Session or a first class Magistrate of an offence in sub-section (2), a bond for keeping the peace up to three years; void if the conviction is set aside; available also to an Appellate or revisional Court.
• Section 126: an Executive Magistrate, on information of a likely breach of the peace or disturbance of public tranquillity, may require a bond for keeping the peace up to one year; jurisdiction where the breach is apprehended or where the person is.
• Section 127: dissemination of matter punishable under BNS sections 152, 196, 197 or 299, matter about a Judge amounting to criminal intimidation or defamation, or obscene matter under BNS section 294; one year; registered press only by order or authority of the State Government.
• Section 128: concealing his presence with a view to committing a cognizable offence; one year.
• Section 129: seven categories of habitual offender, or a person so desperate and dangerous that his being at large without security is hazardous; bail bond; three years.
• Section 130: the order in writing must set out the substance of the information, the amount, the term and the number of sureties, after considering their sufficiency and fitness. It caps what sections 135(3) and 136 may later require.

Test yourself

1. Which section of Chapter IX is worked by a criminal court rather than an Executive Magistrate, and why? Section 125, because it operates on a conviction: a Court of Session or a first class Magistrate that convicts a person of a listed offence may, at the time of sentence, order security for keeping the peace.

2. What is the maximum period of security under section 126 and under section 129? One year under section 126; three years under section 129.

3. State the two limbs that must both be satisfied under section 128. That the person is taking precautions to conceal his presence, and that there is reason to believe he is doing so with a view to committing a cognizable offence.

4. Can an Executive Magistrate proceed under section 127 against the editor of a registered newspaper? Only by the order or under the authority of the State Government or an officer empowered by it, section 127(2).

5. What must an order under section 130 contain? The substance of the information received, the amount of the bond, the term for which it is to be in force, and the number of sureties, after considering the sufficiency and fitness of sureties.

6. What is the effect on a section 125 bond if the conviction is set aside on appeal? The bond or bail bond becomes void, section 125(3).

7. Which security proceeding requires sureties in terms? Section 129, which speaks of a bail bond, that is an undertaking for release with surety.

Section 133. Every summons or warrant under section 132 shall be accompanied by a copy of the section 130 order, and the officer serving or executing it shall deliver that copy to the person.

Section 134. The Magistrate may, for sufficient cause, dispense with the personal attendance of the person, and permit him to appear by an advocate.

Section 135: the inquiry

Sub-section (1). Once the order has been read or explained, or the person appears or is brought before the Magistrate, the Magistrate shall proceed to inquire into the truth of the information on which action was taken, and to take such further evidence as appears necessary.

Sub-section (2), the manner. The inquiry is made, as nearly as may be practicable, in the manner prescribed for conducting a trial and recording evidence in summons-cases. So the person gets the protections of a summons case trial even though he is not accused of anything.

Sub-section (3), interim security. After the inquiry begins and before it ends, the Magistrate, if he considers immediate measures necessary for preventing a breach of the peace, a disturbance of public tranquillity, the commission of an offence, or for public safety, may, for reasons recorded in writing, direct the person to execute a bond or bail bond for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until it is executed or, in default, until the inquiry concludes.

The proviso limits that in two ways. (a) A person not proceeded against under section 127, 128 or 129 may not be directed to give an interim bond for good behaviour. (b) The conditions of the interim bond, as to amount, sureties, their number or the extent of their liability, shall not be more onerous than those in the section 130 order.

Sub-section (4), how habit is proved. The fact that a person is a habitual offender, or is so desperate and dangerous that his being at large without security is hazardous, may be proved by evidence of general repute or otherwise.

That is a striking rule of evidence and it should be named in an answer: reputation is admissible here, where in an ordinary trial it would not be.

Sub-section (5). Where two or more persons are associated in the matter, they may be dealt with in the same or separate inquiries, as the Magistrate thinks just.

Sub-section (6), the clock. The inquiry shall be completed within six months of its commencement. If it is not, the proceedings under the Chapter stand terminated on the expiry of that period, unless the Magistrate, for special reasons recorded in writing, otherwise directs.

The proviso to sub-section (6). Where the person has been kept in detention pending the inquiry, the proceeding against him, unless terminated earlier, stands terminated on the expiry of six months of such detention. Note the difference: this limb has no exception for special reasons.

Sections 136 and 137: the two possible endings

Section 136, order to give security. If on the inquiry it is proved that it is necessary for keeping the peace or maintaining good behaviour that the person should execute a bond, the Magistrate shall make an order accordingly.

The proviso, three limits.

(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 section 130 order. (b) The amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive. (c) Where the person is a child, the bond shall be executed only by his sureties.

Limit (c) changed with the Sanhita: the old section 117 said "minor", and the Sanhita says "child", which is the expression the Juvenile Justice Act uses.

Section 137, discharge. If it is not proved that security is necessary, the Magistrate shall make an entry on the record to that effect, and shall release the person if he is in custody only for the purposes of the inquiry, or discharge him if he is not.

Sections 138 to 140: the bond itself

Section 138, when the period starts. If the person is, when the order is made, sentenced to or undergoing a sentence of imprisonment, the security period commences on the expiration of that sentence. Otherwise it commences on the date of the order, unless the Magistrate for sufficient reason fixes a later date.

Section 139, what the bond binds him to. To keep the peace or to be of good behaviour, as the case may be. And in the case of good behaviour, 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.

Those last words are the reason a good behaviour bond is a heavier obligation than a peace bond: the offence need have nothing to do with the peace, and need not be committed anywhere near the place.

Section 140, rejecting a surety. A Magistrate may refuse to accept a surety offered, or reject one previously accepted by him or his predecessor, on the ground that the surety is an unfit person.

The proviso requires him first to hold an inquiry on oath into the fitness of the surety, or cause one to be held and reported on by a subordinate Magistrate. He must give reasonable notice to the surety and to the person who offered him, and record the substance of the evidence. If satisfied, he makes an order refusing or rejecting the surety and records his reasons. And before rejecting a surety previously accepted, he must issue a summons or warrant and have the person for whom the surety is bound brought before him.

Sections 141 to 143: default, release, and the unexpired period

Section 141(1)(a), default. A person ordered to give security under section 125 or section 136 who does not give it on or before the date the period commences shall be committed to prison, or if already in prison detained, until the period expires or he gives the security to the Court or Magistrate who made the order.

Section 141(1)(b), breach of a peace bond. Where a person who has executed a bond for keeping the peace under a section 136 order is proved to have committed a breach of it, the Magistrate or his successor may, after recording the grounds of such proof, order him arrested and detained in prison until the expiry of the period of the bond, without prejudice to any other punishment or forfeiture.

Section 141(2), the Sessions Judge. Where the security ordered was for a period exceeding one year and it is not given, the Magistrate shall issue a warrant detaining him pending the orders of the Sessions Judge, and the proceedings shall be laid before that Court as soon as conveniently may be.

Section 141(3). The Sessions Court, after examining the proceedings, requiring any further information or evidence, and giving the person a reasonable opportunity of being heard, may pass such order as it thinks fit. The proviso: the period of imprisonment for failure to give security shall not exceed three years.

Section 141(4). Where security was required in the same proceeding from two or more persons and one case is referred to the Sessions Judge, the reference includes the others, except that the imprisonment of any of them shall not exceed the period for which he was ordered to give security.

Section 141(5). A Sessions Judge may transfer such proceedings to an Additional Sessions Judge, who then exercises the same powers.

Section 141(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 await its orders.

Section 141(7) and (8), the kind of imprisonment. For failure to give security for keeping the peace, imprisonment is simple. For failure to give security for good behaviour, it is simple where the proceedings were under section 127, and rigorous or simple as the Court or Magistrate directs where they were under section 128 or 129.

Section 142, release, and it has eight sub-sections.

(1) The District Magistrate, where the order was passed by an Executive Magistrate under section 136, or the Chief Judicial Magistrate in any other case, may order the discharge of a person imprisoned for failing to give security, if of opinion that he may be released without hazard to the community or to any other person.

(2) The High Court or Court of Session, or, where the order was made by any other Court, the District Magistrate or the Chief Judicial Magistrate as the case may be, may make an order reducing the amount of the security, the number of sureties, or the time for which security was required.

(3) A discharge under sub-section (1) may be unconditional or upon conditions the person accepts, and the proviso says any condition ceases to be operative when the security period expires.

(4) The State Government may prescribe by rules the conditions on which a conditional discharge may be made.

(5) to (8), if he breaks a condition. The District Magistrate or Chief Judicial Magistrate who made the order, or his successor, may cancel the conditional discharge. Once cancelled, the person may be arrested by any police officer without warrant and must be produced before that Magistrate. Unless he then gives security for the unexpired portion, which is deemed to be the period between the date of the breach and the date he would otherwise have been released, he may be remanded to prison for that portion. And he is to be released at any time on giving that security.

(9) and (10), cancelling a bond. The High Court or Court of Session may at any time, for sufficient reasons recorded in writing, cancel any bond for keeping the peace or good behaviour executed under an order it made; and the District Magistrate or Chief Judicial Magistrate may cancel one executed under his own order or that of another Court in his district. And a surety may at any time apply to the Court that made the order to cancel the bond, whereupon the Court shall issue a summons or warrant requiring the person for whom he is bound to appear or be brought before it.

Sub-section (10) is the escape route for a surety who has changed his mind about the man he guaranteed, and it leads straight into the next section.

Section 143, security for the unexpired period of the bond. Where a person for whose appearance a summons or warrant has been issued under the proviso to section 140(3), that is where a previously accepted surety is being rejected, or under section 142(10), that is where a surety has applied to cancel the bond, appears or is brought before the Magistrate or Court, that Magistrate or Court shall cancel the bond he executed and shall order him to give fresh security of the same description for the unexpired portion of the term.

Sub-section (2) then makes every such order deemed to be an order under section 125 or section 136, as the case may be, for the purposes of sections 139 to 142. So the fresh security carries the same consequences on default, including imprisonment under section 141.

A worked example

An Executive Magistrate at Bhiwandi makes an order under section 130 against Farooq, proceeding under section 129, requiring him to show cause why he should not give a bail bond for good behaviour for three years, with two sureties of a stated amount.

Getting him in. Farooq is not present, so a summons issues under section 132, accompanied by a copy of the section 130 order, which the serving officer delivers to him, section 133.

During the inquiry. The Magistrate conducts it as nearly as practicable in the manner of a summons case, section 135(2). Because Farooq is being proceeded against under section 129, the Magistrate may, for reasons recorded, direct an interim bond for good behaviour under section 135(3), but on conditions no more onerous than the section 130 order.

Proving habit. The prosecution may prove that Farooq is a habitual offender by evidence of general repute, section 135(4).

The clock. The inquiry must finish within six months of commencement or the proceedings stand terminated, unless the Magistrate records special reasons, section 135(6). If Farooq is detained during it, the proceeding terminates at six months of detention with no exception.

The ending. If the necessity is proved, the Magistrate orders security under section 136, and may not require a different nature, a larger amount, or a longer period than the section 130 order named. If it is not proved, he makes an entry and discharges Farooq under section 137.

Farooq does not furnish the bail bond. He is committed to prison under section 141(1)(a). Because the period ordered exceeds one year, the Magistrate must issue a warrant detaining him pending the orders of the Sessions Judge and lay the proceedings before that Court, section 141(2). The Sessions Judge hears him and may pass such order as he thinks fit, but the imprisonment cannot exceed three years, proviso to section 141(3). Because the proceedings were under section 129, the imprisonment may be rigorous or simple as directed, section 141(8).

A year later. The District Magistrate, being of opinion that Farooq may be released without hazard to the community, may order his discharge under section 142(1). If he is released before the period expires, the Court may require security for the unexpired portion under section 143.

A surety turns out to be a man of straw. The Magistrate may reject him under section 140, but only after an inquiry on oath into his fitness, reasonable notice to the surety and to the person who offered him, a record of the substance of the evidence, and recorded reasons; and, the surety having already been accepted, only after having Farooq brought before him.

Distinctions

What this does NOT mean

The six month rule is not absolute for the inquiry, because section 135(6) allows the Magistrate to direct otherwise for special reasons recorded in writing. But it is absolute where the person is in detention, because the proviso has no such exception.

Imprisonment in default is not a sentence for an offence. It is detention for refusing to furnish security, which is why section 141(6) requires the jailer to refer a tender of security at once and section 142 allows release without hazard.

Section 140 does not let a Magistrate reject a surety on a view formed in his own mind. It requires an inquiry on oath, notice, a record of the evidence, and reasons.

And a good behaviour bond is not confined to the locality or to breaches of the peace. Section 139 makes any offence punishable with imprisonment, wherever committed, a breach.

Quick revision

• Sections 131 to 134: order read or explained if present; summons, or warrant if in custody, if not; emergency warrant of arrest where a breach of the peace cannot otherwise be prevented, on recorded material; a copy of the section 130 order must accompany the process; personal attendance may be dispensed with and an advocate allowed.
• Section 135: inquiry into the truth of the information, in the manner of a summons case; interim bond for reasons recorded, not more onerous than the section 130 order, and not for good behaviour unless the proceeding is under section 127, 128 or 129; habit or dangerousness provable by general repute; six months to complete, or the proceedings stand terminated unless special reasons are recorded; six months of detention terminates it with no exception.
• Section 136: order to give security, capped by the section 130 order as to nature, amount and period; the amount must not be excessive; a child's bond is executed only by his sureties.
• Section 137: entry on the record and release or discharge where necessity is not proved.
• Section 138: the period runs from the end of any sentence being served, otherwise from the date of the order.
• Section 139: for a good behaviour bond, any offence punishable with imprisonment, wherever committed, is a breach.
• Section 140: a surety may be refused or rejected only after an inquiry on oath, notice, a record of the evidence and reasons.
• Section 141: prison on default; breach of a peace bond leads to detention for the balance of the period on recorded grounds; over one year goes to the Sessions Judge; imprisonment capped at three years; jailer must refer a tender of security; simple imprisonment for peace and for section 127, rigorous or simple for sections 128 and 129.
• Section 142: discharge where release is without hazard, by the District Magistrate or Chief Judicial Magistrate; the High Court or Court of Session may reduce the amount, the number of sureties or the time; discharge may be conditional, on conditions the State Government prescribes by rules; breach permits cancellation, arrest without warrant, and remand for the unexpired portion, measured from the date of the breach.
• Section 143: where a surety is rejected under the proviso to section 140(3), or a surety applies under section 142(10) to cancel the bond, the Court cancels the bond and orders fresh security of the same description for the unexpired portion; that order is deemed an order under section 125 or 136 for sections 139 to 142.

Test yourself

1. In what manner is the inquiry under section 135 conducted? As nearly as may be practicable in the manner prescribed for conducting a trial and recording evidence in summons-cases, section 135(2).

2. What happens if the inquiry is not completed within six months? The proceedings under the Chapter stand terminated on the expiry of that period, unless the Magistrate, for special reasons recorded in writing, otherwise directs. Where the person has been in detention, the proceeding stands terminated at six months of detention with no such exception.

3. How may it be proved that a person is a habitual offender? By evidence of general repute or otherwise, section 135(4).

4. Can the final order require more than the show cause order specified? No. The proviso (a) to section 136 forbids security of a different nature, a larger amount, or a longer period than that specified in the section 130 order.

5. Who takes over when security exceeding one year is not furnished? The Sessions Judge. The Magistrate issues a warrant of detention pending his orders and lays the proceedings before him, section 141(2); the imprisonment cannot exceed three years.

6. What kind of imprisonment follows a default under section 129 proceedings? Rigorous or simple, as the Court or Magistrate in each case directs, section 141(8).

7. A child is ordered to give security. Who executes the bond? Only his sureties, proviso (c) to section 136.

Four things to notice at once.

Illegitimacy is irrelevant in clauses (b) and (c). The Code is concerned with the child, not with the marriage.

A minor child is covered whether married or not, but an adult child only if unable to maintain itself through physical or mental abnormality or injury, and a married daughter is excluded from clause (c).

A father as well as a mother may claim under clause (d).

Only a wife, not a husband, may claim under clause (a). A destitute husband has no remedy under this section, and that is a standing criticism of it.

The first proviso. The Magistrate may order the father of a female child referred to in clause (b) to make the allowance until she attains majority, if satisfied that her husband, if she is married, is not possessed of sufficient means.

The second proviso, interim maintenance. During the pendency of the proceeding the Magistrate may order a monthly allowance for interim maintenance and the expenses of the proceeding as he considers reasonable.

The third proviso, the sixty day rule. An application for interim maintenance and expenses shall, as far as possible, be disposed of within sixty days from the date of service of notice of the application.

The Explanation, and it is the one to memorise. For the purposes of this Chapter, "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

Section 144(2): from what date

Any allowance for maintenance or interim maintenance and expenses is payable from the date of the order, or, if so ordered, from the date of the application.

On its face that is a discretion. Rajnesh v. Neha has made it a rule: maintenance in all cases is to be awarded from the date of filing the application. So the correct answer to "from what date does maintenance run?" is: the statute permits either, and the Supreme Court has directed the date of the application.

Section 144(3): enforcement

If a person ordered to pay fails without sufficient cause to comply, the Magistrate may, for every breach, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence him, for the whole or any part of each month's allowance remaining unpaid after execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

The first proviso, the one year bar. No warrant shall be issued for the recovery of any amount due unless application is made to the Court to levy it within one year from the date on which it became due.

The second proviso, the offer to maintain. If the person offers to maintain his wife on condition of her living with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal she states, and may make an order notwithstanding the offer, if satisfied there is just ground for doing so.

The Explanation to sub-section (3). If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.

Note the shape of the enforcement power. The imprisonment is for each month's default, up to one month at a time, and it ends the moment the money is paid. It is coercive, not punitive.

Section 144(4) and (5): when a wife loses the right

Sub-section (4). No wife is entitled to an allowance if she is living in adultery, or if without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.

Sub-section (5). On proof of any of those three things in respect of a wife in whose favour an order has been made, the Magistrate shall cancel the order.

Sub-sections (3) and (4) have to be read together, and the reading is not obvious. Refusal to live with the husband disentitles a wife only if it is without sufficient reason; and the Explanation to sub-section (3) makes a second marriage or a kept mistress a just ground, which means such a refusal is with sufficient reason.

Section 145: procedure

Sub-section (1), where. Proceedings may be taken against a person in any district:

(a) where he is; or (b) where he or his wife resides; or (c) where he last resided with his wife, or with the mother of the illegitimate child; or (d) where his father or mother resides.

Clause (d) is new in effect: it lets a parent sue where the parent lives, rather than having to follow the son.

Sub-section (2), how. All evidence is taken in the presence of the person against whom the order is proposed, or, where personal attendance is dispensed with, in the presence of his advocate, and is recorded in the manner prescribed for summons-cases.

The proviso, ex parte. If satisfied that the person is wilfully avoiding service or wilfully neglecting to attend, the Magistrate may hear and determine the case ex parte. Such an order may be set aside for good cause shown on an application made within three months, subject to terms including costs.

Sub-section (3). The Court has power to make such order as to costs as may be just.

Sections 146 and 147

Section 146, alteration and cancellation.

(1) On proof of a change in the circumstances of the person receiving or the person ordered to pay, the Magistrate may make such alteration in the allowance as he thinks fit.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, an order under section 144 should be cancelled or varied, he shall cancel or vary it accordingly.

(3), the divorced woman. Where an order has been made in favour of a woman divorced by or who has obtained a divorce from her husband, the Magistrate shall cancel it if satisfied that:

• (a) she has remarried after the divorce, and the cancellation runs from the date of her remarriage;
• (b) she was divorced by her husband and has received, before or after the order, the whole of the sum which under any customary or personal law was payable on such divorce, and the cancellation runs from the date of the order where the sum was paid before it, and otherwise from the expiry of the period for which maintenance was actually paid;
• (c) she obtained the divorce and had voluntarily surrendered her rights to maintenance after it, and the cancellation runs from the date of the surrender.

(4) A Civil Court making a decree for the recovery of maintenance or dowry shall take into account what has already been paid or recovered as monthly allowance under section 144.

Sub-section (3)(b) is the provision Parliament wrote in after Shah Bano, and it is the one to name if a question asks how the Code deals with a payment made under personal law: the order is cancelled if the whole of the sum payable on divorce has been received.

Section 147, enforcement of the order. A copy of the order of maintenance or interim maintenance and expenses shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid. The order may be enforced by any Magistrate in any place where the person against whom it is made may be, on that Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or expenses.

Section 147 is what makes the order portable. A man who moves to another State does not escape it.

The cases

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.

Facts. A Muslim woman was divorced by her husband, an advocate, after more than forty years of marriage. She applied for maintenance under section 125 of the old Code. He argued that under Muslim personal law his liability was confined to the period of iddat, and that having paid mahr he owed her nothing further.

Held. The Court rejected the argument. Personal law does not contemplate or countenance the situation section 125 is directed at. The section is not concerned with whether a husband is liable to maintain his wife in all circumstances; it deals with a person of sufficient means who neglects or refuses to maintain a wife unable to maintain herself. Mahr is a mark of respect to the wife and is generally expected to take care of her ordinary requirements, but personal law does not meet the case of a divorced wife unable to maintain herself. The appeal was dismissed and the maintenance order confirmed.

Why it matters. It is the authority that the maintenance provision of the Code is a secular remedy against destitution which operates whatever the personal law of the parties, and the Explanation to section 144(1) carries the same idea by defining "wife" to include a divorced woman who has not remarried.

Rajnesh v. Neha, AIR 2021 SC 569.

Facts. An appeal from an order of interim maintenance under section 125. The Court used it to deal with problems that recur in every maintenance case: claims under several statutes at once, no reliable material about either side's means, no settled criteria for quantum, uncertainty about the starting date, and difficulty in enforcement.

Held. Five directions, made under article 142.

1. Overlapping jurisdiction. Where successive claims are made under different statutes, the Court is to consider an adjustment or set-off of what was awarded earlier; the applicant must disclose the earlier proceeding and the orders in it; and any modification of an earlier order must be sought in that same proceeding.
2. Affidavit of Disclosure of Assets and Liabilities in the annexed form is to be filed by both parties in all maintenance proceedings throughout the country, including pending ones.
3. Quantum is to be determined on the criteria set out in the judgment, which are not exhaustive.
4. Maintenance in all cases is to be awarded from the date of filing the application.
5. Enforcement. An order may be enforced under section 28A of the Hindu Marriage Act, section 20(6) of the Protection of Women from Domestic Violence Act, and section 128 of the Code, and may be enforced as a money decree of a civil court under the Code of Civil Procedure.

Why it matters. It answers the two questions students are asked directly: from what date, and how enforced.

A worked example

Sunita is turned out of her husband Mahesh's house in Ulhasnagar. She has no income. Mahesh runs a shop and lives now in Surat.

Where does she apply? In Ulhasnagar, under section 145(1)(b), because she resides there, or under clause (c), because that is where they last resided together. She need not follow him to Surat.

Before whom? A Judicial Magistrate of the first class, section 144(1).

What does she have to prove? That Mahesh has sufficient means, that he has neglected or refused to maintain her, and that she is unable to maintain herself.

Can she get anything before the case is decided? Yes. Under the second proviso to section 144(1) the Magistrate may order interim maintenance and the expenses of the proceeding, and the third proviso says the application should as far as possible be disposed of within sixty days of service of notice.

What must both sides file? The Affidavit of Disclosure of Assets and Liabilities, under Rajnesh v. Neha, direction (b).

From what date will the allowance run? From the date of the application, following Rajnesh direction (d), which section 144(2) permits.

Mahesh offers to take her back. She refuses. He says that ends her claim under section 144(4). It does not, if the refusal is with sufficient reason. She proves that he has married another woman. The Explanation to section 144(3) makes that just ground for refusing to live with him, so the Magistrate may make the order notwithstanding his offer.

Mahesh pays nothing for four months. Sunita applies to levy. The Magistrate may issue a warrant for each breach in the manner provided for levying fines, and may sentence him to imprisonment up to one month for each month's unpaid allowance, or until payment. But she must apply within one year of each amount falling due, first proviso to section 144(3).

Mahesh moves to Nagpur. The order may be enforced by any Magistrate in the place where he is, under section 147, on that Magistrate being satisfied as to identity and non-payment.

Mahesh's shop fails. He may apply under section 146 to alter the allowance on proof of a change in circumstances.

Distinctions

What this does NOT mean

Section 144 does not decide matrimonial rights. It is a summary remedy against destitution, and a civil court's decision may later require the order to be varied or cancelled under section 146.

A divorced wife is not outside it. The Explanation to section 144(1) puts her inside, and Shah Bano is the authority.

Imprisonment under section 144(3) does not wipe out the arrears. It is a mode of enforcement, and the liability survives.

And a husband cannot claim. Clause (a) speaks only of a wife, which is one of the standing criticisms of the section.

Quick revision

• Section 144(1): sufficient means, plus neglect or refusal, plus a claimant in clauses (a) to (d), before a Judicial Magistrate of the first class.
• Explanation to 144(1): "wife" includes a divorced woman who has not remarried.
• Provisos: father of a married female child until majority where her husband lacks means; interim maintenance and expenses; interim application to be disposed of as far as possible within sixty days of service.
• Section 144(2): payable from the date of the order or, if so ordered, from the date of the application. Rajnesh directs the date of the application in all cases.
• Section 144(3): warrant as for fines; imprisonment up to one month for each month unpaid, or until payment; application to levy within one year; an offer to maintain does not defeat the claim where refusal is on just ground, and a second marriage or a mistress is just ground.
• Section 144(4) and (5): adultery, refusal without sufficient reason, or separation by mutual consent disentitle, and an existing order shall be cancelled on proof.
• Section 145: four places of proceeding, including where the father or mother resides; evidence in the presence of the person or his advocate, in summons-case manner; ex parte on wilful avoidance, set aside for good cause within three months.
• Section 146: alteration on proof of a change in circumstances; cancellation or variation where a competent Civil Court's decision requires it; mandatory cancellation for a divorced woman who remarries, who has received the whole sum payable on divorce under customary or personal law, or who voluntarily surrendered her rights; and a Civil Court decreeing maintenance or dowry must give credit for what has been paid.
• Section 147: a free copy to the person in whose favour it is made, or to his guardian; enforceable by any Magistrate wherever the person is, on satisfaction as to identity and non-payment.
• Shah Bano: personal law does not oust the section. Rajnesh v. Neha: disclosure affidavits, criteria for quantum, maintenance from the date of application, and the routes for enforcement.

Test yourself

1. Before which Magistrate does an application under section 144 lie? A Magistrate of the first class, and it is a Judicial Magistrate, because the function involves taking evidence and can end in imprisonment.

2. Is a divorced woman a "wife" for this Chapter? Yes. The Explanation to section 144(1) includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

3. From what date is maintenance awarded? Section 144(2) allows the date of the order or, if so ordered, the date of the application. Rajnesh v. Neha directs that in all cases it be awarded from the date of filing the application.

4. A husband offers to maintain his wife if she returns. She refuses because he has taken a second wife. Can she still get maintenance? Yes. The second proviso to section 144(3) lets the Magistrate consider her grounds of refusal, and the Explanation to that sub-section makes a second marriage or a kept mistress just ground for refusing to live with him.

5. Within what time must an application to levy arrears be made? Within one year from the date on which the amount became due, first proviso to section 144(3).

6. What is the maximum imprisonment for failing to pay? Up to one month for each month's allowance remaining unpaid after execution of the warrant, or until payment if sooner made.

7. State any two of the five directions in Rajnesh v. Neha. Both parties must file an Affidavit of Disclosure of Assets and Liabilities in all maintenance proceedings, including pending ones; and maintenance in all cases is to be awarded from the date of filing the application. The others concern set-off and disclosure where claims are made under several statutes, the criteria for quantum, and the routes for enforcement.

Two details are worth marking. First, the second limb means a command is not always necessary: an assembly that plainly means not to go can be dispersed at once. Second, the persons whose help may be required are civilians, and the sub-section expressly excludes members of the armed forces acting as such, because their use is the subject of the next section.

Section 149: the armed forces, on a Magistrate's requisition

Sub-section (1). If such an assembly cannot otherwise be dispersed, and it is necessary for the public security that it should be, the District Magistrate, or any other Executive Magistrate authorised by him, who is present, may cause it to be dispersed by the armed forces.

Three conditions, all of which must be satisfied: dispersal by other means is impossible; public security requires dispersal; and the Magistrate is present.

Sub-section (2). Such a Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the forces under his command, and to arrest and confine such persons as the Magistrate directs or as is necessary.

Sub-section (3), the restraint. Every such officer shall obey the requisition in such manner as he thinks fit, but in doing so 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.

Sub-section (3) is the balance the whole section turns on: the decision to use the armed forces is the Magistrate's, but the manner is the officer's, and the officer is bound to minimum force.

Section 150: when no Magistrate can be reached

Where the public security is manifestly endangered by such an assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse the assembly with the forces under his command, and may arrest and confine persons forming part of it.

But: if, while he is acting, it becomes practicable to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the Magistrate's instructions as to whether to continue.

So section 150 is not an independent military power. It is a temporary substitute for the Magistrate, and it lapses the moment the Magistrate can be reached.

Section 151: protection

Sub-section (1), sanction for prosecution. No prosecution for any act purporting to be done under section 148, 149 or 150 may be instituted in any Criminal Court except:

(a) with the sanction of the Central Government, where the person is an officer or member of the armed forces; (b) with the sanction of the State Government, in any other case.

Sub-section (2), good faith. None of the following is deemed to have committed an offence:

(a) an Executive Magistrate or police officer acting under those sections in good faith; (b) a person doing an act in good faith in compliance with a requisition under section 148 or 149; (c) an officer of the armed forces acting under section 150 in good faith; (d) a member of the armed forces doing an act in obedience to an order which he was bound to obey.

Note that limb (d) does not require good faith in terms. What it requires is that the order was one he was bound to obey.

Sub-section (3), the definitions. "Armed forces" means the army, naval and air forces operating as land forces, and includes any other armed forces of the Union so operating. "Officer", in relation to the armed forces, means a person commissioned, gazetted or in pay as an officer, and includes a junior commissioned officer, a warrant officer, a petty officer, a non-commissioned officer and a non-gazetted officer. "Member" means a person in the armed forces other than an officer.

The definition of "officer" is wider than it looks and is worth reading twice, because it decides which Government's sanction is needed under sub-section (1)(a).

A worked example

Two hundred people gather outside a mill at Bhiwandi after a dismissal. Stones are thrown.

Who may act first? The officer in charge of the police station may command them to disperse, section 148(1). So may any Executive Magistrate. In the absence of the station house officer, any police officer not below sub-inspector may.

They stay. He may disperse them by force, and may require the assistance of civilians, and may arrest and confine members of the assembly, section 148(2). He may not requisition soldiers under this section: the sub-section excludes officers and members of the armed forces acting as such.

Force is not enough and the crowd is now a danger to the town. The District Magistrate, or an Executive Magistrate he has authorised, being present, may cause the assembly to be dispersed by the armed forces, section 149(1), and may require the officer in command to do it and to arrest such persons as he directs, section 149(2). The officer must use as little force and do as little injury as is consistent with the task, section 149(3).

Change the facts. The riot begins at night in a remote place. Public security is manifestly endangered and no Executive Magistrate can be communicated with. A gazetted officer of the armed forces stationed nearby may act on his own under section 150. As soon as he can reach a Magistrate he must do so and must then follow the Magistrate's instructions.

Afterwards a man injured in the dispersal wants to prosecute the sub-inspector. He cannot institute it without the sanction of the State Government, section 151(1)(b). If the proposed accused were a soldier, the sanction would be the Central Government's, section 151(1)(a). And if the sub-inspector acted in good faith under section 148, he is not deemed to have committed an offence at all, section 151(2)(a).

Distinctions

What this does NOT mean

Section 148 is not confined to an unlawful assembly. It also covers any assembly of five or more persons likely to cause a disturbance of the public peace.

A command to disperse is not always a precondition to force. Where the assembly conducts itself so as to show a determination not to disperse, force may be used without one.

Section 150 is not a standing power of the armed forces. It operates only where no Executive Magistrate can be communicated with, and it yields the moment one can be.

And section 151(2) is not an immunity for anything done during a dispersal. It protects acts done in good faith under the sections, and, for a member of the armed forces, acts done in obedience to an order he was bound to obey.

Quick revision

• Section 148(1): an Executive Magistrate, an officer in charge of a police station, or, in his absence, a police officer not below sub-inspector, may command an unlawful assembly or an assembly of five or more likely to disturb the public peace to disperse; the members are then bound to disperse.
• Section 148(2): force on non-dispersal or on a shown determination not to disperse; civilians may be required to assist; the armed forces acting as such may not.
• Section 149: the District Magistrate or an authorised Executive Magistrate who is present may use the armed forces where the assembly cannot otherwise be dispersed and public security requires it; the officer obeys in such manner as he thinks fit but with as little force and injury as is consistent with the task.
• Section 150: a commissioned or gazetted officer may act where security is manifestly endangered and no Executive Magistrate can be communicated with, and must revert to the Magistrate's instructions as soon as it is practicable.
• Section 151(1): prosecution only with the Central Government's sanction for an officer or member of the armed forces, and the State Government's in any other case.
• Section 151(2): good faith protects the Magistrate, the police officer, the civilian complying with a requisition and the armed forces officer; a member of the armed forces is protected for obeying an order he was bound to obey.
• Section 151(3) defines armed forces, officer and member, and "officer" includes junior commissioned, warrant, petty, non-commissioned and non-gazetted officers.

Test yourself

1. Which assemblies may be commanded to disperse under section 148? Any unlawful assembly, and any assembly of five or more persons likely to cause a disturbance of the public peace.

2. Who may command dispersal where the officer in charge of the police station is absent? Any police officer not below the rank of sub-inspector, section 148(1). An Executive Magistrate may in any event.

3. Must a command always precede the use of force? No. Section 148(2) also allows force where the assembly, without being commanded, conducts itself in a manner showing a determination not to disperse.

4. Who may call in the armed forces, and on what conditions? The District Magistrate, or any other Executive Magistrate authorised by him who is present, where the assembly cannot otherwise be dispersed and it is necessary for public security, section 149(1).

5. What must an armed forces officer acting under section 150 do if he can reach a Magistrate? He shall communicate with him and shall thenceforward obey his instructions as to whether to continue.

6. Whose sanction is needed to prosecute a police officer for an act purporting to be done under section 148? The State Government's, section 151(1)(b).

7. Is a soldier who obeys an order during a dispersal protected? Yes. Under section 151(2)(d) a member of the armed forces doing an act in obedience to an order he was bound to obey is not deemed to have committed an offence.

The order requires the person responsible, within a time fixed in it, to do the corresponding thing, listed in clauses (i) to (vi), or, if he objects, to appear before the Magistrate or a subordinate Executive Magistrate at a time and place fixed and show cause why the order should not be made absolute.

Sub-section (2), the ouster. No order duly made under this section shall be called in question in any Civil Court.

The Explanation. A "public place" includes property belonging to the State, camping grounds, and grounds left unoccupied for sanitary or recreative purposes.

Sections 153 to 155: service, the choice, and the penalty

Section 153, service. The order shall, if practicable, be served on the person in the manner provided for service of summons. If it cannot be so served, it is notified by proclamation published as the State Government's rules direct, and a copy stuck up at the places fittest for conveying the information to him.

Section 154, the choice. The person against whom the order is made shall either:

(a) perform the act within the time and in the manner specified; or (b) appear in accordance with the order and show cause against it.

And the section adds, in words the old Code did not have, that such appearance or hearing may be permitted through audio-video conferencing.

Section 155, the penalty. If he neither performs the act nor appears and shows cause, he is liable to the penalty specified in section 223 of the Bharatiya Nyaya Sanhita, 2023, and the order shall be made absolute.

Section 155 is the old section 136 under a new name. Its marginal note now points at section 154 instead of describing the consequence, but the substance is the same.

Sections 156 and 157: the two inquiries

Section 156, where a public right is denied. Where the order was made to prevent obstruction, nuisance or danger to the public in the use of a way, river, channel or place, the Magistrate shall, on the person's appearance, question him whether he denies the existence of any public right in it. If he does, the Magistrate shall inquire into that matter before proceeding under section 157.

Sub-section (2). If the Magistrate finds any reliable evidence in support of the denial, he shall stay the proceedings until the existence of the right has been decided by a competent Court. If he finds no such evidence, he proceeds under section 157.

Sub-section (3), the estoppel. A person who, on being questioned, failed to deny the public right, or who denied it but failed to adduce reliable evidence, shall not in the subsequent proceedings be permitted to make such a denial.

Section 156 is the point at which the executive magistracy stops and the civil court begins. The Magistrate does not decide whether the public has a right of way; he decides whether there is reliable evidence that it does not, and if there is, he steps aside.

Section 157, where cause is shown. If the person appears and shows cause, the Magistrate shall take evidence in the matter as in a summons-case.

Sub-section (2). If satisfied that the order, as originally made or with such modification as he considers necessary, is reasonable and proper, the order shall be made absolute with or without modification.

Sub-section (3). If he is not so satisfied, no further proceedings shall be taken.

The proviso, and it is new. Proceedings under section 157 shall be completed as soon as possible within ninety days, extendable for reasons to be recorded in writing to one hundred and twenty days.

Sections 158 and 159: help for the inquiry

Section 158. For an inquiry under section 156 or 157 the Magistrate may direct a local investigation by such person as he thinks fit, or summon and examine an expert.

Section 159. Where he directs a local investigation, he may furnish written instructions for the guidance of the person appointed, and may declare by whom the expenses are to be paid. The report of that person is admissible in evidence.

Sections 160 to 162: enforcement and prohibition

Section 160(1), notice after the order is absolute. When an order has been made absolute under section 155 or section 157, the Magistrate shall give notice to the person, require him to perform the act within a time fixed in the notice, and inform him that on disobedience he will be liable to the penalty provided by section 223 of the Bharatiya Nyaya Sanhita.

Sub-section (2), doing it for him. If the act is not performed in time, the Magistrate may cause it to be performed, and recover the costs 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 that person, within or outside his local jurisdiction. Property outside is attached and sold on the order being endorsed by the Magistrate of the place where it is found.

Sub-section (3). No suit shall lie in respect of anything done in good faith under the section.

Section 161, injunction pending inquiry. If a Magistrate making a section 152 order considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue an injunction to obviate or prevent it pending the determination. On default in forthwith obeying, he may himself use, or cause to be used, such means as he thinks fit. No suit lies for anything done in good faith under this section.

Section 162, prohibiting repetition. A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate or Deputy Commissioner of Police empowered by the State Government or the District Magistrate, may order any person not to repeat or continue a public nuisance as defined in the Bharatiya Nyaya Sanhita or any special or local law.

Section 162 is short and is the one most often used, because it forbids a repetition rather than requiring a positive act.

A worked example

A Sub-divisional Magistrate at Vasai receives a police report that a three storey structure on a busy lane is leaning and its balcony is cracked.

The order. Clause (d) of section 152(1) applies: a building likely to fall and cause injury to persons passing by. He makes a conditional order requiring the owner, within a fixed time, to remove, repair or support it, or to appear on a fixed date and show cause why the order should not be made absolute.

Service. Served like a summons under section 153(1). If he cannot be found, the order is notified by proclamation and a copy stuck up at the fittest places, section 153(2).

He does nothing and does not appear. Section 155: he is liable to the penalty under section 223 of the Bharatiya Nyaya Sanhita, and the order is made absolute.

Instead he appears and says the lane is his private property, not a public way. Because the order was to prevent danger to the public in the use of a way, section 156 applies. The Magistrate questions him, and if there is reliable evidence for the denial, he stays the proceedings until a competent Court decides the right. If there is none, he goes on under section 157. If the owner never raised the denial, section 156(3) stops him raising it later.

He appears and says the building is sound. Section 157(1): evidence is taken as in a summons case. The Magistrate may direct a local investigation or summon an engineer as an expert, section 158, furnish written instructions and decide who pays the expenses, section 159. The proceedings must finish within ninety days, extendable to one hundred and twenty for recorded reasons.

Meanwhile the balcony may come down this week. The Magistrate may issue an injunction under section 161 to prevent imminent danger, and if it is not obeyed forthwith he may himself use such means as he thinks fit. No suit lies for what he does in good faith.

The order is made absolute and the owner still does nothing. The Magistrate gives notice under section 160(1), then may have the repair done and recover the cost by selling material removed or by distress and sale of the owner's movable property, section 160(2).

Distinctions

What this does NOT mean

A conditional order is not a finding that the person has done wrong. It is an order to act or to answer.

Section 152(2) does not oust the High Court. It says no order duly made shall be called in question in any Civil Court, which leaves the constitutional jurisdiction untouched.

Section 156 does not let the Magistrate decide a public right. It lets him decide whether there is reliable evidence denying it, and if there is, he must stay his hand until a competent Court decides.

And section 160(2) is not a punishment. It is recovery of the cost of doing what the person was ordered to do.

Quick revision

• Section 152: conditional order by a District, Sub-divisional or specially empowered Executive Magistrate, in six situations: obstruction or nuisance in a public place or way; a trade, occupation or goods injurious to health or physical comfort; construction or disposal likely to cause conflagration or explosion; a building, tent, structure or tree likely to fall; an unfenced tank, well or excavation; a dangerous animal. No Civil Court may question a duly made order. "Public place" includes State property, camping grounds and grounds left unoccupied for sanitary or recreative purposes.
• Section 153: served as a summons; failing that, by proclamation and by sticking up a copy.
• Section 154: perform the act, or appear and show cause, and appearance or hearing may be by audio-video conferencing.
• Section 155: neither performing nor appearing means the penalty under BNS section 223 and the order is made absolute.
• Section 156: on a denial of a public right, inquire; stay if there is reliable evidence for the denial; a person who did not deny, or denied without reliable evidence, is estopped later.
• Section 157: evidence as in a summons case; absolute if reasonable and proper, with or without modification; otherwise no further proceedings; ninety days, extendable to one hundred and twenty for recorded reasons.
• Sections 158 and 159: local investigation and expert evidence; written instructions, expenses, and the report is admissible.
• Section 160: notice, then the Magistrate may do the act and recover the cost by sale of removed property or by distress and sale of other movables, inside or outside his jurisdiction; no suit for good faith acts.
• Section 161: injunction against imminent danger pending determination; the Magistrate may act himself on default; no suit for good faith acts.
• Section 162: an order not to repeat or continue a public nuisance, by a District or Sub-divisional Magistrate, or an empowered Executive Magistrate or Deputy Commissioner of Police.

Test yourself

1. Name any four of the six situations in section 152(1). Unlawful obstruction or nuisance in a public place or in a way, river or channel used by the public; a trade, occupation or the keeping of goods injurious to the health or physical comfort of the community; construction of a building or disposal of a substance likely to occasion conflagration or explosion; a building, tent, structure or tree likely to fall and injure; an unfenced tank, well or excavation adjacent to a way or public place; and a dangerous animal.

2. What are the two things a person served with a conditional order may do? Perform the act within the time and manner specified, or appear and show cause against the order, section 154; and the appearance or hearing may be through audio-video conferencing.

3. What happens if he does neither? He is liable to the penalty specified in section 223 of the Bharatiya Nyaya Sanhita and the order is made absolute, section 155.

4. A person denies that the public has any right of way over the land. What must the Magistrate do? Inquire into the denial before proceeding under section 157. If there is reliable evidence supporting it, he must stay the proceedings until a competent Court decides the existence of the right; if there is none, he proceeds, section 156.

5. Within what time must proceedings under section 157 be completed? As soon as possible within ninety days, extendable for reasons recorded in writing to one hundred and twenty days.

6. How does a Magistrate recover the cost of doing the act himself? By the sale of any building, goods or other property removed by his order, or by distress and sale of any other movable property of that person, within or outside his local jurisdiction, section 160(2).

7. Who may order a person not to repeat a public nuisance? A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate or Deputy Commissioner of Police empowered by the State Government or the District Magistrate, section 162.

• to abstain from a certain act; or
• to take certain order with respect to certain property in his possession or under his management,