BLS LLB 5 Years Sem 9 CRPC 2018-19 Question Paper with Solutions

Section 2(n) of the Code defines "offence" as any act or omission made punishable by any law for the time being in force, and includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871.

Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 defines adoption as the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.

Two may be given, and the two with the clearest statutory and constitutional footing are these.

The right to be informed of the grounds of arrest. Article 22(1) of the Constitution and section 50(1) of the Code: every person arrested without warrant shall be forthwith communicated full particulars of the offence for which he is arrested or the grounds of arrest; and under section 50(2), where the offence is bailable, he shall be informed that he is entitled to be released on bail and may arrange for sureties.

The right to be produced before a Magistrate within twenty-four hours. Article 22(2) and sections 56 and 57: a person arrested without warrant shall not be detained for more than twenty-four hours exclusive of the time necessary for the journey, without a special order of a Magistrate under section 167.

Section 46(1) of the Code provides that in making an arrest the police officer or other person making it shall actually touch or confine the body of the person to be arrested, unless there is a submission to the custody by word or action.

Section 46(2): 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.

Compounding is the settlement of a criminal case between the aggrieved person and the accused in the cases the Code permits, and by section 320(8) the composition of an offence shall have the effect of an acquittal of the accused with whom it has been compounded.

Section 320(1) lists the offences compoundable without the permission of the court, and section 320(2) those compoundable only with the permission of the court before which the prosecution is pending. Section 320(9) makes the lists exhaustive: no offence shall be compounded except as provided by this section.

Section 6 of the Code provides that, besides the High Courts and the courts constituted under any law other than the Code, there shall be in every State the following classes of Criminal Courts:

1. Courts of Session;
2. Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
3. Judicial Magistrates of the second class; and
4. Executive Magistrates.

The territorial units. Section 7: every State is a sessions division or consists of sessions divisions, and every sessions division is a district or consists of districts, which the State Government may alter after consultation with the High Court, and may divide into sub-divisions. Section 8: an area comprising a city or town whose population exceeds one million may be declared a metropolitan area, which is then a separate sessions division and district.

Constitution of each.

Sentencing powers. Section 28: a High Court, any sentence authorised by law; a Sessions Judge or Additional Sessions Judge, any sentence authorised by law, a death sentence being subject to confirmation by the High Court; an Assistant Sessions Judge, any sentence except death, life or imprisonment exceeding ten years. Section 29: a Chief Judicial Magistrate, any sentence except death, life or imprisonment exceeding seven years; a Magistrate of the first class, imprisonment up to three years or fine up to ten thousand rupees or both; a Magistrate of the second class, imprisonment up to one year or fine up to five thousand rupees or both; a Chief Metropolitan Magistrate has a Chief Judicial Magistrate's powers and a Metropolitan Magistrate those of a first class Magistrate.

Conclusion. The classification in section 6 is not merely a list of names: it is the map of the whole Code, because the class of court decides who may try an offence under section 26 and the First Schedule, how much it may inflict under sections 28 and 29, and where an appeal from it lies under section 374. The one division that is not about seniority is the last: Executive Magistrates try nothing at all and exist for the preventive work in Chapters VIII, X and XI, which is how the 1973 Code gave effect to the separation of the judiciary from the executive required by Article 50.

Constitution, section 27. The State Government shall by notification constitute for every district one or more Child Welfare Committees. Section 27(2): the Committee shall consist of a Chairperson and four other members, of whom at least one shall be a woman and another an expert on matters concerning children. Section 27(4): no person shall be appointed unless he has been actively involved in health, education or welfare activities pertaining to children for at least seven years, or is a practising professional with a degree in child psychology, psychiatry, law or social work. Section 27(5) disqualifies a person with a record of violation of human or child rights, a conviction for an offence involving moral turpitude, removal or dismissal from government service, or involvement in child abuse, child labour or immoral acts. Section 27(9): the Committee shall function as a Bench and shall have the powers conferred by the Code on a Metropolitan Magistrate or a Judicial Magistrate of the first class.

Section 28: the Committee shall meet at least twenty days in a month, and a visit to an existing child care institution by the Committee shall be counted as a sitting.

Functions, section 30. Taking cognizance of and receiving children produced before it; conducting inquiry on all issues relating to and affecting the safety and well-being of the child; directing the Child Welfare Officers or probation officers or social workers to conduct a social investigation and submit a report; conducting inquiry for declaring fit persons for the care of children; directing placement of a child in foster care; ensuring care, protection, appropriate rehabilitation or restoration, including passing necessary directions to parents or guardians or fit persons; selecting a registered institution for placement; conducting at least two inspection visits per month of residential facilities; certifying the execution of a surrender deed; declaring a child legally free for adoption; taking action for the restoration of abandoned or lost children to their families; and coordinating with the police, labour department and other agencies involved in the care and protection of children.

Section 18(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 sets out the orders. Where the Board is satisfied on inquiry that a child irrespective of age has committed a petty or a serious offence, or a child below sixteen has committed a heinous offence, or a child above sixteen has committed a heinous offence and the Board has, after the preliminary assessment under section 15, disposed of the matter itself, then, based on the nature of the offence, the specific need for supervision or intervention, the circumstances brought out in the social investigation report and the past conduct of the child, the Board may:

1. allow the child to go home after advice or admonition, following appropriate inquiry and counselling of the child and of his parents or guardian;
2. direct the child to participate in group counselling and similar activities;
3. order the child to perform community service under the supervision of an organisation, institution or specified person or group of persons identified by the Board;

Section 18(3): where the Board, after the preliminary assessment under section 15, passes an order that there is a need for trial of the child as an adult, it may order the transfer of the trial to the Children's Court.

Section 17: where the Board is satisfied on inquiry that the child has not committed the offence, it shall pass an order to that effect and release the child if he is in an observation home.

Cite Shilpa Mittal v. State (NCT of Delhi), (2020) 2 SCC 787. A heinous offence under section 2(33) is one for which the minimum punishment under the Penal Code or any other law is imprisonment for seven years or more. An offence whose maximum is seven years or more but which prescribes no minimum is therefore not heinous, and the Supreme Court held that such an offence falls to be dealt with as a serious offence under section 2(54). The distinction matters, because only a heinous offence opens the section 15 preliminary assessment and with it the possibility of a trial as an adult.

Section 4 of the Probation of Offenders Act, 1958 is headed "Power of court to release certain offenders on probation of good conduct", and it is the provision the question names.

Section 4(1): when any person is found guilty of having committed an offence not punishable with death or imprisonment for life, and the court by which he is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour.

The related powers. Section 3 allows release after due admonition where the offence is under sections 379, 380, 381, 404 or 420 of the Penal Code, or is punishable with imprisonment for not more than two years or with fine or both, and no previous conviction is proved. Section 6 provides that a person under twenty-one shall not be sentenced to imprisonment unless the court is satisfied that it would not be desirable to deal with him under section 3 or section 4, and requires it to record its reasons and to call for a probation officer's report. Section 5 allows an order for compensation and costs. Section 8 allows the conditions of a bond to be varied and its duration extended or diminished within the three-year limit. Section 9 governs the consequences of a breach, on which the court may sentence the offender for the original offence. Section 11 allows the order to be made by any court competent to try and sentence the offender, and by the High Court or any other court in appeal or revision. Section 12 provides that a person dealt with under section 3 or section 4 shall not suffer the disqualification attaching to a conviction.

A summary trial is one in which the ordinary procedure is abridged and only the substance of the evidence is recorded, so that petty cases are disposed of quickly. Chapter XXI, sections 260 to 265, contains the law.

Who may try summarily, section 260(1). A Chief Judicial Magistrate, a Metropolitan Magistrate, and any Magistrate of the first class specially empowered by the High Court may, if he thinks fit, try summarily.

Which offences, section 260(1). Offences not punishable with death, imprisonment for life, or imprisonment exceeding two years; theft under sections 379, 380 or 381 of the Penal Code where the value of the property does not exceed two thousand rupees; receiving or retaining stolen property under section 411 and assisting in its concealment or disposal under section 414, within the same limit; offences under sections 454 and 456; insult with intent to provoke a breach of the peace under section 504 and criminal intimidation punishable with up to two years or fine under section 506; abetment and attempt of any of these; and an offence under section 20 of the Cattle Trespass Act, 1871.

Judgment, section 264. In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.

Section 265: the record and the judgment shall be in the language of the court, and the High Court may authorise the record or judgment to be prepared by an officer, to be signed by the Magistrate.

Conclusion. The Chapter buys speed with two currencies, the record and the sentence: only the substance of the evidence is written, and whatever the offence carries, the trial can end in no more than three months. The guards against that bargain going too far are equally clear: the power is confined to senior Magistrates and to a closed list of offences, section 260(2) obliges the Magistrate to abandon the summary course the moment the case looks unsuitable, and section 264 restores a reasoned judgment as soon as the accused pleads not guilty.

1. inquire, in accordance with any directions of a court, into the circumstances or home surroundings of any person accused of an offence, with a view to assisting the court in determining the most suitable method of dealing with him, and submit reports to the court;
2. supervise probationers and other persons placed under his supervision and, where necessary, endeavour to find them suitable employment;
3. advise and assist offenders in the payment of compensation or costs ordered by the court;
4. advise and assist, in such cases and in such manner as may be prescribed, persons released under section 4; and
5. perform such other duties as may be prescribed.

His status, section 15. Probation officers appointed under the Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code. Section 16 protects action taken in good faith: no suit or other legal proceeding shall lie against the State Government or against a probation officer or other person in respect of anything done or intended to be done in good faith under the Act.

Conclusion. The probation officer is what turns the Act from a sentencing discount into a system. Section 14 gives him three distinct roles: the court's investigator before the order, reporting on the offender's home surroundings and character; the offender's supervisor after it, including the practical work of finding him employment; and the victim's collector in between, assisting with the payment of compensation. Section 15 makes him a public servant and section 13(3) subjects him to the district magistrate; and in the one case where the stakes are highest, an offender under twenty-one, section 6(2) makes his report compulsory rather than optional.

(i) Yes. His appeal lies to the High Court under section 374(2).

Murder under section 302 of the Indian Penal Code is triable exclusively by the Court of Session, so Bhagat has been convicted by a Sessions Judge or an Additional Sessions Judge.

Section 374(2) provides that any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge, or on a trial held by any other court in which a sentence of imprisonment for more than seven years has been passed, may appeal to the High Court.

The reference is automatic and the sentence is inoperative until confirmed. Section 366(1): when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. Section 366(2): the court passing the sentence shall commit the convicted person to jail custody under a warrant.

Section 28(2) is the source of the rule: a Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law, but any sentence of death passed by him shall be subject to confirmation by the High Court.

Section 367, further inquiry and additional evidence. If the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make the inquiry or take the evidence itself, or direct the Court of Session to do so. Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with.

Section 368, the High Court's powers. In any case submitted under section 366, the High Court:

1. may confirm the sentence, or pass any other sentence warranted by law; or

Section 371: the proper officer of the High Court shall without delay send a copy of the order to the Court of Session. Section 413: on receiving it, the Court of Session shall cause the sentence to be carried into effect by issuing a warrant. Section 415 allows postponement of execution where an appeal to the Supreme Court is preferred or leave is applied for.

Conclusion. Bhagat may appeal to the High Court, but he does not have to: the same High Court will have his whole case before it in any event on the mandatory reference under section 366, and until it confirms, the sentence has no force at all. On the reference the High Court is not sitting as an ordinary appellate court reviewing another court's conclusions; it must satisfy itself of his guilt or innocence on the evidence, and it may confirm, substitute another sentence, alter the conviction, order a retrial or acquit. If an appeal is filed as well, the two are heard together, and the proviso to section 368 forbids confirmation before the appeal is disposed of.

Section 227 is the provision: if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

Four things follow and each is worth a mark.

The material is fixed. The judge considers the record of the case and the documents submitted with it, that is the police report and the material forwarded under section 173(5). He does not consider defence evidence at this stage.

Both sides are heard. Section 227 requires the submissions of the accused and the prosecution.

Reasons must be recorded, which makes the order reviewable.

The stage is before the charge. Once a charge is framed under section 228, the remedy is no longer discharge but acquittal at the end of the trial, or the inherent jurisdiction of the High Court under section 482.

Section 306(1): with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence, a Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and a Magistrate of the first class inquiring into or trying the offence at any stage of the inquiry or trial, may tender a pardon to that person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor.

Section 306(2) confines it to three classes of offence: an offence triable exclusively by the Court of Session or by a Special Judge under any other law; an offence punishable with imprisonment which may extend to seven years or with a more severe sentence. Dacoity, punishable with imprisonment for life or rigorous imprisonment up to ten years and triable exclusively by the Court of Session, is squarely within it.

Section 306(3): every Magistrate who tenders a pardon shall record his reasons, whether or not the tender is accepted, and, on the accused's application, furnish him a copy of the record free of cost.

Conclusion. Dev may apply for a discharge, but only before the charge is framed and only if the material forwarded with the police report falls short of grave suspicion against him; the judge must hear both sides and record his reasons under section 227. Raju cannot demand a pardon, because the tender is made by the court and not applied for as of right; but he may offer to make a full and true disclosure, and since the case has been committed, the Court of Session may tender him a pardon under section 307 at any time before judgment. If he takes it he becomes an approver, must be examined as a witness at every stage under section 306(4), and forfeits the pardon under section 308 if he conceals anything essential.

Section 436 has no application, because the offence is non-bailable.

Section 437(1) governs an application to a Magistrate, and it contains a prohibition: a court other than the High Court or Court of Session may release the accused, but shall not do so if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Section 376(1) is punishable with imprisonment for life, so where the material discloses reasonable grounds, the Magistrate cannot grant bail.

The first and second provisos allow release even within the bar where the accused is under sixteen years of age, is a woman, or is sick or infirm; and the third proviso where the court is satisfied that it is just and proper for any other special reason. Under section 437(2), if at any stage it appears that there are not reasonable grounds for believing him guilty but there are sufficient grounds for further inquiry, he shall be released on bail.

When bail becomes his as of right. Under the proviso to section 167(2)(a)(i), if the investigation is not completed and the chargesheet is not filed within ninety days, the accused shall be released on bail if he is prepared to and does furnish bail. Ninety days applies because the offence is punishable with imprisonment for life, which is one of the three limbs of section 167(2)(a)(i). Take care with the other limb. Section 376(1) has carried a minimum of ten years only since the Criminal Law (Amendment) Act, 2018; before that the minimum was seven years, so on a pre-2018 fact pattern the ten year limb does not apply and it is the life imprisonment limb that gives the ninety days. This is default bail, and it is an indefeasible right flowing from Article 21: Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616. Note also section 173(1A), which requires the investigation in a rape case to be completed within two months.

Anticipatory bail under section 438 is available from the High Court or Court of Session for section 376(1), but section 438(4) excludes it altogether for sections 376(3), 376AB, 376DA and 376DB.

Compounding must also be distinguished from quashing. Under section 482 the High Court may quash proceedings in a non-compoundable offence where the parties have settled, but Gian Singh v. State of Punjab, (2012) 10 SCC 303, holds that this power is not to be exercised in heinous and serious offences such as rape and murder, however genuine the settlement.

Conclusion. Rana's offence is cognizable, non-bailable, non-compoundable and exclusively triable by the Court of Session. He may be released on bail, but the discretion in practice belongs to the Court of Session or the High Court under section 439, because section 437(1) shuts out the Magistrate wherever reasonable grounds appear that he is guilty of an offence punishable with life imprisonment; and his clearest entitlement arises on the ninety-first day if no chargesheet has been filed. He cannot compound the offence at all, and no settlement with the prosecutrix will help him, either as a composition under section 320 or as a ground for a lesser sentence.

A. What bail is.

The Code does not define bail. It is judicially understood as the release of a person from the custody of the law upon an undertaking, secured by a bond with or without sureties, that he will appear and answer the charge when required. The Bharatiya Nagarik Suraksha Sanhita, 2023 has since defined it for the first time in Indian law, in section 2(1)(b), as the release of a person accused of or suspected of the commission of an offence on the execution by such person of a bond or bail bond.

The principle behind it, restated in State of Rajasthan v. Balchand, (1977) 4 SCC 308, is that "the basic rule may perhaps be tersely put as bail, not jail", because a person is presumed innocent until convicted and the object of custody before trial is only to secure his presence.

B. Bail in a bailable offence: a matter of right, section 436.

Section 2(a) defines a bailable offence as one shown as bailable in the First Schedule or made bailable by any other law.

C. Bail in a non-bailable offence: a discretion, section 437.

Section 437(1): a person accused of a non-bailable offence may be released on bail by a court other than the High Court or Court of Session, but shall not be so released:

1. if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; or
2. if the offence is a cognizable one and he has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or has been previously convicted on two or more occasions of a cognizable offence punishable with three to seven years.

The provisos permit release notwithstanding those bars where the accused is under sixteen years of age, is a woman, or is sick or infirm; where the court is satisfied that it is just and proper for any other special reason; and the fourth proviso permits release where the accused's presence has been secured and he undertakes to comply.

Section 437(6): in a case triable by a Magistrate, if the trial is not concluded within sixty days from the first date fixed for taking evidence, and the accused has been in custody for the whole of that period, he shall be released on bail unless the Magistrate, for reasons recorded, otherwise directs.

Section 437(7): if, after the conclusion of the trial and before judgment, the court is of opinion that there are reasonable grounds for believing that the accused is not guilty, it shall release him on bond pending the judgment.

D. The special powers, section 439.

The High Court or Court of Session may direct that any person accused of an offence and in custody be released on bail, and may impose any condition it considers necessary; it may set aside or modify a condition imposed by a Magistrate; and under section 439(2) it may direct that a person released on bail be arrested and committed to custody. The first proviso requires notice to the Public Prosecutor where the offence is triable exclusively by the Court of Session or is punishable with imprisonment for life. Section 439(1A) requires the informant's presence in the sexual offence cases listed.

E. Anticipatory bail, section 438.

F. Default bail, the proviso to section 167(2).

The Magistrate may authorise detention pending investigation for no more than ninety days where the offence is punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years, and sixty days for any other offence; on the expiry of that period the accused shall be released on bail if he is prepared to and does furnish bail, and shall be deemed to be released under Chapter XXXIII.

G. General provisions, sections 440 to 450.

Section 440: the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive. Section 441: bond of the accused and sureties, and their declaration. Section 441A: a surety shall declare the number of persons for whom he has stood surety. Section 445: deposit instead of recognizance, except in the case of a bond for good behaviour. Section 446: procedure when a bond is forfeited. Section 446A: cancellation of bond and bail bond where a bond is forfeited, and the person shall not be released on his own bond in that case unless the court is satisfied he had no sufficient cause. Section 449: appeal from an order under section 446. Section 450: power to direct levy of the amount due on a bond.

A. What a complaint is.

Section 2(d) of the Code defines "complaint" as any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

The Explanation provides that a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer making it the complainant.

Three features of the definition are examinable. It may be made orally or in writing. It must be made to a Magistrate, so an allegation to the police is not a complaint. And it excludes a police report, which is defined separately in section 2(r) as the report forwarded under section 173(2).

B. Taking cognizance: section 190.

The proviso dispenses with that examination in two cases: where the complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duties, or by a court; and where the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192, in which case the second Magistrate need not re-examine them.

Section 201, procedure by a Magistrate not competent to take cognizance. If the complaint is made to a Magistrate who is not competent to take cognizance, he shall, if the complaint is in writing, return it for presentation to the proper court with an endorsement to that effect, and if it is not in writing, direct the complainant to the proper court.

Section 202, postponement of issue of process. A Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

Section 204, issue of process. If in the opinion of a Magistrate taking cognizance there is sufficient ground for proceeding, he shall issue:

1. in a summons case, a summons for the attendance of the accused; and
2. in a warrant case, a warrant, or if he thinks fit, a summons, for causing the accused to be brought or to appear.

Section 204(2): no summons or warrant shall be issued until a list of the prosecution witnesses has been filed. Section 204(3): where the proceeding is instituted upon a complaint made in writing, every summons or warrant shall be accompanied by a copy of the complaint. Section 204(4): if the process fee or other fees payable is not paid within a reasonable time, the Magistrate may dismiss the complaint.

Section 205, magistrate may dispense with personal attendance of the accused, permitting him to appear by his pleader, with a power to direct his personal attendance at any stage.

Section 206, special summons in cases of petty offences, allowing the accused to plead guilty by post and remit the fine.

Section 210, procedure where there is a complaint case and a police investigation in respect of the same offence. The Magistrate shall stay the proceedings on the complaint and call for a report from the police officer; and if a report is made under section 173 and cognizance is taken on it, he shall inquire into or try together the complaint case and the case arising out of the police report as if both were instituted on a police report.

Conclusion. A private complaint travels through three judicial filters before the accused is ever summoned, and that is the point of the chapters. The Magistrate must examine the complainant and his witnesses on oath under section 200; he may, and where the accused lives outside his jurisdiction must, inquire or direct an investigation under section 202; and he must be satisfied that there is sufficient ground for proceeding before issuing process under section 204, dismissing the complaint with recorded reasons under section 203 if he is not. Only then does the case commence in the ordinary sense, with a summons or a warrant, a list of witnesses, a copy of the complaint, and, if the offence is exclusively triable by the Court of Session, a commitment under section 209.

The 2013 provisos: where the information relates to an offence under sections 326A, 326B, 354, 354A to 354D, 376, 376A to 376E or 509 of the Penal Code, it shall be recorded by a woman police officer; and where the person against whom such an offence is alleged is temporarily or permanently mentally or physically disabled, the information shall be recorded at her residence or a place of her choice in the presence of an interpreter or special educator, and shall be videographed, and the officer shall get her statement recorded by a Judicial Magistrate under section 164(5A) as soon as possible.

Section 154(2): a copy of the information as recorded shall be given forthwith, free of cost, to the informant.

Section 154(3): where the officer in charge refuses to record the information, the aggrieved person may send its substance in writing and by post to the Superintendent of Police, who shall, if satisfied that it discloses a cognizable offence, either investigate the case himself or direct an investigation by a subordinate.

Step 1, the power. Section 156(1): an officer in charge of a police station may investigate any cognizable case without the order of a Magistrate. Section 156(2): no proceeding shall be questioned on the ground that the case was one which he was not empowered to investigate. Section 156(3): a Magistrate empowered under section 190 may order an investigation. For a non-cognizable offence, section 155(2) forbids investigation without a Magistrate's order.

Step 2, report to the Magistrate and proceeding to the spot: section 157. On reason to suspect the commission of a cognizable offence, the officer shall forthwith send a report to the Magistrate empowered to take cognizance on a police report, and shall proceed in person, or depute a subordinate, to the spot to investigate the facts and circumstances and, if necessary, to take measures for the discovery and arrest of the offender. Proviso (a) allows him not to go in person where the information is against a person by name and the case is not serious; proviso (b) allows him not to investigate at all if it appears there is no sufficient ground, but he must then record his reasons and notify the informant.

Step 5, search and seizure: sections 165, 100 and 102. Section 165, search by a police officer on recorded grounds of belief that a thing necessary for the investigation may be found within his station limits and cannot otherwise be obtained without undue delay, with copies of the record sent forthwith to the nearest Magistrate; section 100, the search to be witnessed by two or more independent and respectable inhabitants who sign the list of things seized; section 102, seizure of property suspected to be stolen or found in circumstances creating suspicion of an offence, with a report to the Magistrate.

Step 6, arrest and custody: sections 41, 41A, 57 and 167. Arrest without warrant under section 41, only on recorded satisfaction of necessity where the offence carries up to seven years, with a notice of appearance under section 41A instead; production before a Magistrate within twenty-four hours under section 57; and remand under section 167, with detention pending investigation capped at ninety days where the offence is punishable with death, life or not less than ten years, and sixty days otherwise, whereupon the accused shall be released on default bail.

Step 9, the final report: section 173. Every investigation shall be completed without unnecessary delay, and, by section 173(1A), within two months in the sexual offence cases listed. On completion the officer forwards to the Magistrate a report in the prescribed form, section 173(2), stating the names of the parties, the nature of the information, the names of the persons acquainted with the circumstances, whether an offence appears to have been committed and by whom, whether the accused has been arrested, whether he has been released on bond, and whether he has been forwarded in custody; and he shall communicate the action taken to the informant. Sections 173(5) and (6) require the statements and documents relied on to be forwarded, with a request where appropriate that a part be excluded from the copies given to the accused. Section 173(8) preserves the power of further investigation after the report.

A. How a case reaches the Court of Session.

A Court of Session cannot take cognizance of an offence as a court of original jurisdiction. Section 193 says so expressly, save as otherwise provided by the Code or any other law, and section 199(2) is one such exception, for defamation of the President, Vice President, a Governor or a Minister.

The case therefore comes by commitment. Section 209: when in a case instituted on a police report or otherwise the accused appears before a Magistrate and it appears that the offence is triable exclusively by the Court of Session, the Magistrate shall, after complying with sections 207 or 208, commit the case to the Court of Session, remand the accused to custody subject to bail, send the record and documents, and notify the Public Prosecutor.

The trial is governed by Chapter XVIII, sections 225 to 237.

B. The trial, step by step.

2. is exclusively triable by the court, he shall frame in writing a charge against the accused.

Section 228(2): where the Judge frames a charge, it shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty or claims to be tried.

Section 229, conviction on plea of guilty. If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him.

Section 230, date for prosecution evidence. If the accused refuses to plead, does not plead, claims to be tried, or is not convicted on his plea, the Judge shall fix a date for the examination of witnesses and may, on the application of the prosecution, issue process for compelling attendance of any witness or the production of any document.

Section 231, evidence for the prosecution. On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution; and he may in his discretion permit the cross-examination of any witness to be deferred until any other witness has been examined, or recall any witness for further cross-examination.

Section 235, judgment of acquittal or conviction. After hearing arguments and points of law, the Judge shall give a judgment in the case. Section 235(2): if the accused is convicted, the Judge shall, unless he proceeds in accordance with section 360, hear the accused on the question of sentence and then pass sentence on him according to law.

Section 236, previous conviction. In a case where a previous conviction is charged under section 211(7) and the accused does not admit it, the Judge may, after convicting him under section 229 or section 235, take evidence in respect of the alleged previous conviction and record a finding thereon; but he shall not read out the charge of previous conviction nor ask the accused to plead to it, nor refer to it in the earlier part of the trial.

Section 237, procedure in cases instituted under section 199(2), the special procedure for defamation of high public functionaries, tried by the Court of Session without commitment, and in camera if the court so directs, with a power to award compensation up to one thousand rupees to the accused if the court discharges or acquits him and finds that the accusation was made without reasonable cause.

C. The safeguards that run through the trial.

Conclusion. A sessions trial is the Code's most complete procedure, and its shape is governed by the seriousness of what is at stake. It cannot begin at all without a commitment under section 209; it is conducted by a Public Prosecutor and by no one else; it passes through a judicial filter at section 227 before the accused is put on trial, and a second one at section 232 before he is put to his defence; the accused is heard separately on sentence under section 235(2); and if a death sentence is passed, it has no force until the High Court confirms it under section 366. Every one of those features exists because the offences tried here are those the First Schedule marks as exclusively triable by the Court of Session.

1. sub-section (1): a person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court;
2. sub-section (2): a person convicted on a trial held by a Sessions Judge or Additional Sessions Judge, or on a trial held by any other court in which a sentence of imprisonment for more than seven years has been passed against him or any other person convicted at the same trial, may appeal to the High Court;
3. sub-section (3): a person convicted by a Metropolitan Magistrate, Assistant Sessions Judge, or Magistrate of the first or second class, or sentenced under section 325, or in respect of whom an order has been made or a sentence passed under section 360 by a Magistrate not empowered to do so, may appeal to the Court of Session.

Section 378, appeal in case of acquittal: the District Magistrate may direct the Public Prosecutor to appeal to the Court of Session from a Magistrate's order of acquittal in a cognizable and non-bailable offence; the State Government may direct an appeal to the High Court in any other case, with the leave of the High Court under section 378(3); and in a case instituted upon complaint, the complainant may appeal to the High Court only with special leave under section 378(4), applied for within sixty days, or six months where the complainant is a public servant.

Section 379, appeal against conviction by a High Court in certain cases: where the High Court has, on appeal, reversed an order of acquittal and sentenced the accused to death, imprisonment for life, or imprisonment for ten years or more, he may appeal to the Supreme Court.

Section 380, special right of appeal: where more persons than one are convicted in one trial and an appealable judgment has been passed in respect of any of them, all of them may appeal.

C. When an appeal cannot be filed.

Section 375, no appeal on a plea of guilty, except as to the extent or legality of the sentence.

Section 385: procedure for hearing an appeal not dismissed summarily, with notice and the calling for of the record.

Section 386, powers of the appellate court. In an appeal from an order of acquittal, it may reverse the order and direct further inquiry or a retrial, or find the accused guilty and pass sentence. In an appeal from a conviction, it may reverse the finding and sentence and acquit or discharge the accused or order a retrial; alter the finding, maintaining the sentence; or with or without altering the finding, alter the nature or the extent of the sentence, but not so as to enhance it. In an appeal for enhancement of sentence, it may enhance, but not without giving the accused an opportunity of showing cause, and the sentence shall not exceed what the trial court might have inflicted.

Section 389: suspension of sentence and release of the appellant on bail pending appeal, with reasons in writing and notice to the Public Prosecutor where the conviction is for death, life or ten years or more. Section 391: power of the appellate court to take further evidence or direct it to be taken.

Chapter XXV of the Code, sections 328 to 339, is headed "Provisions as to accused persons of unsound mind". It answers a problem that is procedural and not substantive: section 84 of the Indian Penal Code decides whether a person was of unsound mind at the time of the offence and is therefore not guilty; Chapter XXV decides what happens when he is of unsound mind at the time of the inquiry or trial and cannot defend himself.

The case to cite is Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563, which draws the line this Chapter depends on. The Supreme Court held that what section 84 of the Penal Code requires is legal insanity and not medical insanity; that the burden of establishing it lies on the accused and is discharged on a preponderance of probabilities under section 105 of the Indian Evidence Act; that the crucial time is the moment of the act; and that even where the accused fails to discharge that burden, evidence of his mental condition may still raise a reasonable doubt about the mens rea the prosecution has to prove. Chapter XXV asks a wholly different question, about his capacity now, at the inquiry or trial.

A. Unsoundness during the inquiry: section 328.

Section 328(3), where the accused is of unsound mind: the Magistrate shall further determine whether it renders him incapable of entering defence; if it does, he shall record a finding, examine the record of the evidence produced by the prosecution and hear the accused's advocate but without questioning the accused; and if he finds that no prima facie case is made out, he shall, instead of postponing the inquiry, discharge the accused and deal with him under section 330. The proviso: where a prima facie case is made out, he shall postpone the proceeding for such period as, in the opinion of the psychiatrist or clinical psychologist, is required for treatment, and deal with the accused under section 330.

Section 328(4), where the accused is a person with mental retardation: on determining that it renders him incapable of entering defence, the Magistrate shall order closure of the inquiry and deal with him under section 330. The contrast is deliberate. Unsoundness of mind is postponed, because it may lift and the trial can then revive; mental retardation is closed, because it will not.

B. Unsoundness during the trial: section 329.

Section 330(2): if in the opinion of the Magistrate or Court bail cannot be granted, or if an appropriate undertaking is not given, the accused shall be ordered to be kept in such a place where regular psychiatric treatment can be provided, and the action reported to the State Government; but no order for detention in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Health Act, 1987.

Section 330(3): the Magistrate or Court shall, keeping in view the nature of the act committed and the extent of the unsoundness of mind or mental retardation, further determine whether the accused can be released. Under proviso (a), where on medical or specialist opinion it decides to discharge him under section 328 or section 329, release may be ordered on sufficient security that he will be prevented from doing injury to himself or to any other person. Under proviso (b), where discharge cannot be ordered, it may direct his transfer to a residential facility for persons of unsound mind or mental retardation, where he is to be given care and appropriate education and training.

D. Resumption: sections 331 and 332.

Section 335, person acquitted on such ground to be detained in safe custody. Whenever the finding states that the accused did commit the act alleged, the Magistrate or Court shall, if the act would but for the incapacity have constituted an offence, order the person to be detained in safe custody in such place and manner as the Court thinks fit, or deliver him to any relative or friend of such person. No such order for delivery shall be made except on the application of a relative or friend who gives security that the person delivered shall be properly taken care of and prevented from doing injury to himself or to any other person, and shall be produced for the inspection of such officer as the State Government directs.

F. Release: sections 337 to 339.

Section 337: where a person is confined under section 330 or section 335, and the Inspector General of Prisons, or the visitors of the asylum, or any two of them, certify that in their judgment he may be released without danger of his doing injury to himself or to any other person, the State Government may order him to be released or detained, or transferred to a public lunatic asylum.

Three provisions of the 2009 amendment complete it, and they carry the marks. Sections 328(3) and 329(2) require a discharge rather than an indefinite postponement where no prima facie case is made out. Sections 328(4) and 329(3) treat mental retardation as a different thing from unsoundness of mind and close the proceeding instead of postponing it. And section 330 now begins at bail on an undertaking of out-patient psychiatric treatment, reaching a place of treatment only where bail is impossible. Sections 334 and 335 deal with the different question of a person who was insane at the time of the act, requiring the finding to state whether he committed the act and providing for his detention in safe custody rather than his simple release.