Trial of Warrant Cases by Magistrates Under Code of Criminal Procedure, 1973 (238-250)

Introduction
Criminal cases can be divided into two types: Summons Case and Warrant Case. A summons
case relates to an offence not being in a warrant case. Warrant cases are those that include
offences punishable with death penalty, imprisonment for life or imprisonment exceeding more
than two years. The criteria that differ a summons case from a warrant case is determined by the
duration of punishment in any offence. The case of Public Prosecutor V. Hindustan Motors,
Andhra Pradesh,1970, is a summons case as the convicted is sentenced to pay a fine of Rs. 50.
The issue of summons or warrant, in any case, does not change the nature of the case, for
instance, a warrant issued in a summons case does not make it a warrant case as observed in the
case of Padam Nath V. Ahmad Dobi, 1969. A trial in a warrant case begins by either filing a First
Information Report or FIR in a Police Station or filing it directly before the Magistrate.
Section 238 to 250 of the Criminal Procedure Code, 1973 (CrPC) deals with the trial of warrant
cases by magistrates. Trial of warrant cases are of two types:

1. By a police report- Section 173 of CrPC mentions a police report as a report forwarded
by a police officer to the Magistrate. In this case, the accused appears or is brought before
a magistrate at the commencement of trial. Section 173(2)(i) mentions that as soon as the
police investigation is completed, the police station must forward it to the Magistrate
empowered to take cognizance of the offence.
2. By other than a police report- The complaint is filed directly with the Magistrate in this
case.
The procedure of trial in warrant cases by magistrates in the following way:
1. Compliance with Section 207;
2. When accused shall be discharged;
3. Framing of charge;
4. Conviction on a plea of guilty;
5. Evidence for Prosecution;
6. Evidence for Defence Side;
7. Evidence for Prosecution;
8. When accused shall be discharged;
9. Again Evidence for Defence;
10. Acquittal or conviction;
 11. Absence of Complaint;
12. Compensation for accusation without a reasonable cause.
Scope
The Magistrates’ Court forms the bedrock of the legal system in India and the process of trial of
warrant cases conducted by magistrates. This is explained in the Criminal Procedure Code, 1973,
which classifies warrant cases as those that involve offences punishable with death penalty,
imprisonment for life and imprisonment exceeding more than two years. Warrant case
proceedings can begin by filing an FIR in the police station. In this case, the police conduct an
investigation and forward the report to the Magistrate. The Magistrate then furthers the
proceedings under the procedure established by law and the offender is brought before the
Magistrate or appears voluntarily. Or the complaint can be filed directly with the Magistrate to
initiate the proceedings against an offender.
Cases instituted on a police report
This type of case is filed as an FIR in the police station and is the first step in the process of
warrant cases instituted on a police report. The case is then forwarded to the Magistrate. When
any case is instituted on a police report, and the accused is brought or appears voluntarily before
the Magistrate, the Magistrate shall satisfy himself for complying with the provisions of Section
207. And Section 238 to 243 of CrPC lays down the procedure of trial of warrant cases instituted
on a police report and the steps are mentioned below.
Initial steps in the trial
The initial steps involve the filing of an FIR. Once the FIR is filed in the police station, an
investigation is conducted to discover the facts and relevant details of the case. Once the
investigation is completed, a charge-sheet is filed and the documents are forwarded by the police
station to the Magistrate. The steps in warrant cases instituted on police report are:
1. Supply of copy of police report to accused in compliance with Section 207. (Section 238)
2. Discharge of accused on baseless charges. (Section 239)
3. Framing of charges. (Section 240)
4. Conviction on a guilty plea. (Section 241)
5. Evidence for the prosecution. (Section 242)
6. Evidence for defence. (Section 243)
Supply of copies to the accused
A copy of the police report and other documents relevant to the case should be supplied to any
person or persons who appears or is brought before a magistrate at the commencement of the
trial. And the Magistrate shall satisfy himself in complying with the provisions of Section 207.
This is to ensure that the accused are aware of the charges against him and can prepare for
defence under fair trial by law.
Discharge of accused if allegations against him are baseless
Once the Magistrate receives the police report and other relevant documents and provides them
to the accused, the Magistrate shall consider each report. A hearing shall be convened and a
reasonable opportunity shall be provided for both the accused prosecution to present their case.
The Magistrate examines the accused if necessary. If the charge against the accused is discovered
to be baseless and lacking in substance, the accused shall be discharged under Section 239. The
prima facie of the case is also considered.
In the case of State vs Sitaram Dayaram Kachhi, 1957, the accused, Sitaram was acquitted under
Section 239.
In the case of State of Himachal Pradesh V. Krishan Lal Pradhan, 1987, the Supreme Court held
that there was sufficient relevant material on record and the prima facie of the case was
established by one judge. But the succeeding judge came to the decision on the same materials
that no charge could be established and therefore, an order of discharge was passed. But it was
held by the Supreme Court that no succeeding judge can pass an order of discharge.
Framing of charge
Section 240 of CrPC authorises the Magistrate to consider the police report and even to examine
the accused if he feels the need to. If the Magistrate feels the presence of valid grounds to
presume that the accused has committed the offence and is capable of committing such an
offence, and he is competent to try the offence to adequately punish the accused in his opinion.
Then the written charge is framed against the accused and the trial is conducted after the charge
is read and explained to the accused. Framing of the charge is a duty of the court and the matter
must be considered judiciously.
In the case of Lt. Col. S.K. Kashyap V. The State Of Rajasthan, 1971, the accused files an appeal
challenging the authority of the special judge appointed to hear the case. The appeal is failed and
dismissed and the case proceedings are continued.
Explaining the charge to the accused
Clause 2 of Section 240 describes that the charge against the accused shall be read and explained
to the accused. Once the accused understands the charges against him, he shall be asked whether
he pleads guilty of the offence or wishes to challenge the charge by a fair trial under the law.
Conviction on a guilty plea
The accused can plead guilty to cut short the procedure of law and reduce the punishment for his
offence. The Magistrate records the guilty plea and convicts the accused on his discretion.
(Section 241)
Evidence for prosecution
Section 242 of CrPC defines the procedure with regards to the gathering of evidence against the
offender and recording the evidence after examination and cross-examination to acquit or convict
an accused individual. In a criminal trial, the case of the state is presented first. The burden of
proving the accused guilty is on the prosecution and the evidence must be beyond a reasonable
doubt. The prosecution can summon witnesses and present other evidence in order to prove the
offence and link it to the offender. This process of proving an accused individual guilty by
examining witnesses is called examination in chief. The Magistrate has the power to summon
any person as a witness and order him to produce any document. State vs Suwa, 1961 is a case
where the orders of the Magistrate to acquit the accused were set aside and a retrial was ordered
by sending the case to a District-Magistrate who sent them for a trial to a Magistrate other than
the one that tried the case originally.
Steps in evidence presentation of prosecution
Fixing date for the examination of witnesses
Section 242(1) declares that once the charge is framed and read to the accused and he does not
plead guilty and wishes to proceed with the trial, the Magistrate shall fix a date for the
examination of witnesses.
Examination of witnesses
According to Section 242(2), the Magistrate, on the application of the prosecution, has the
authority to issue summons to any witnesses and direct them to attend or produce any document
or thing relevant to the case. The cross-examination by the defence is allowed by the Magistrate
before some other witness has been examined. This is done to ensure that no perjury is
committed and the prosecuting witness does not vilify the accused and gets him convicted on
false information. And that the relevant information can be refuted by the defence or further
explained in a defensive manner.
Presentation of evidence
The testimonies of witnesses once they are cross-examined by the defence are considered
evidence. And other documents or relevant things are brought to the Magistrate to link the
accused to the offence. The defence is informed of the evidence presented and may challenge the
evidence as may be deemed necessary.
Record of the evidence
Section 242(3) declares that on the date fixed, the Magistrate shall proceed to take all pieces of
evidence produced in support of the prosecution and record them based on their relevance to the
case. The testimonies of witnesses and any evidence provided to prove the accused had
committed the offence by the prosecution is recorded by the Magistrate. The Magistrate may
permit the cross-examination of any witness to be deferred until any other witness or witnesses
have been examined or recall any witness for further cross-examination by the defence.
Evidence for the defence
Section 243 of CrPC describes the procedure with regards to collecting and presenting evidence
in the defence of the accused. After the prosecution is finished with the examination of the
witness, the accused may enter his defence in a written statement and the Magistrate shall file it
with the record. Or defence can be produced orally. After the accused has entered his defence, an
application may be put to the Magistrate to perform cross-examination of any witness presented
by the prosecution. The Magistrate may then summon any witness under Sub-section 2 to be
cross-examined by the defence. The prosecution must establish the case beyond a reasonable
doubt and if the defence can prove a reasonable doubt then the evidence submitted by the
prosecution is not valid and cannot be recorded in court against the accused.
Written statement of accused
Section 243(1) declares that the accused shall be called upon to enter his defence and produce
relevant evidence. Any written statement presented by the defence shall be recorded by the
Magistrate and filed. Under Section 313(1), the accused shall have the opportunity to be heard
and explain any circumstances appearing against him or other facts and circumstances of the case
that are relevant. This may be done by a written statement or orally.
Examination of witnesses for the defence
Section 243(2) describes the process of examination of witnesses for defence of the accused. An
application can be made by the defence to the Magistrate to compel the attendance of a witness
for the purpose of examination or cross-examination, or for the production of any relevant
documents or other things. The Magistrate shall issue such directions unless he feels the
application has been put for the purpose of delay or vexation or defeats the ends of justice and
refuse the application on those grounds. The grounds of refusal of the application by defence
shall be recorded by the Magistrate in writing. However, if the accused has had an opportunity to
cross-examine a witness presented by the prosecution, or has already cross-examined a witness,
then the attendance of such witness shall not be compelled under this section; unless the
Magistrate feels such attendance is necessary for justice. Sub-section 3 mentions that the
reasonable expenses incurred by the witness in attending the Court for the purpose of the trial
must be deposited in Court.
Record of the evidence
CrPC declares that any evidence or witness testimonies shall be filed by the Magistrate with the
record. The evidence submitted can be in the form of a written statement or orally submission
which the Court shall record. The evidence submitted is recorded to prevent tampering by an
interested party to further their agenda and prevent justice from being served to the accused. Any
written statement submitted by the accused is also filed with the record by the Magistrate.
Steps in evidence presentation of defence
Court witness
The defence shall have an opportunity to present witnesses to defend the accused. This may
include an alibi or individuals that can point out that the accused was present elsewhere from
where the offence was committed. The witnesses presented by the defence can be cross-
examined by the prosecution and their testimonies challenged. The purpose of defence witness is
to create a reasonable doubt to point out that the accused may not have been the exact individual
that committed the offence. However, the prosecution can challenge the testimony of said
witnesses and isolate the accused to prove beyond a reasonable doubt that the offence was
committed by him.
Arguments submitted on behalf of defence
After the closing of evidence, the defence may produce an oral argument and submit a
memorandum to the Court. A copy of this memorandum should be supplied to the prosecution.
The court possesses the power to interfere if the oral arguments are not to the point and irrelevant
to the case and made to waste the time of the court and delay the delivery of justice. The
memorandum of argument must be submitted before the closing of oral delivery. Section
313(3) is a rule against self-incrimination and declares that the accused shall not render himself
liable to punishment if he refuses to answer any question when examined by the prosecution, or
gives false answers.
Judgement
The Magistrate holds the authority to judge the evidence provided by the defence and its
relevance. If any evidence or testimony is in his opinion irrelevant or lacks substance, it may be
thrown out and not filed with the record and shall no longer be considered in the case. The
relevance of the evidence and testimony can be challenged by the opposing party but only the
Magistrate has the authority to decide whether it shall be filed with the record or thrown out of
the case.
Cases instituted otherwise than on a police report
A warrant case instituted otherwise than on a police report begins when a complaint is filed
directly with a magistrate. The accused is brought or appears before a magistrate. The Magistrate
begins the proceedings of the case by initiating the hearing process and files all the evidence
received with the record. Sections 244, 245, 246 and 247 of CrPC sets the procedure of a warrant
case instituted otherwise than on a police report and brought directly to a magistrate by filing a
complaint.

Initial steps in the trial

The initial steps involve filing a complaint with a magistrate. Once the complaint is filed in the
Magistrate, the accused is brought before the Magistrate or appears voluntarily. A hearing is
conducted to determine the facts of the case. The prosecution begins the steps to prove that the
accused has committed the offence beyond a reasonable doubt. And the defence can take the
necessary steps to challenge the accusations and prove that the accused did not commit the
offence. The steps in warrant cases instituted otherwise than on a police report are:
1. The preliminary hearing of the prosecution’s case.
 2. Discharge of accused if the accusation is baseless. (Section 245)
3. Framing of charge. (Section 246)
4. Explaining charge to the accused. (Section 246(2))
5. Conviction on a guilty plea. (Section 246(3))
6. Choice of the accused to recall prosecution’s witness. (Section 246(5))
7. Evidence for Prosecution. (Section 244)
8. Evidence for Defence. (Section 247)
The preliminary hearing of the prosecution case
This is the first step in the proceedings of the case after the accused is brought or appears before
a magistrate. The Magistrate considers the accusations and determines if the accusations have
any base and a case can be made out against the accused. If the Magistrate determines that no
case has been made out as the accusations lack substance and are groundless than the case will
be dismissed and the accused shall be discharged.
Discharge of accused
Section 245 of CrPC states that the accused shall be discharged by the Magistrate if no case has
been made out against him by the prosecution, which if unchallenged would warrant his
conviction. And nothing can prevent the Magistrate from discharging the accused at any previous
stage if the accusations presented by the prosecution is considered baseless by the Magistrate.
Framing of charge
Once all the evidence is presented to the Magistrate by the prosecution and after the examination
of said evidence is conducted by him, the Magistrate is of the opinion that there is a reasonable
ground for the accusations mentioned in the complaint and the accused is capable of committing
the offence; a charge is framed and a fair trial is conducted. The accused is given an opportunity
to defend himself. In the case of Ratilal Bhanji Mithani vs The State Of Maharashtra, 1978, it
was determined that there were reasonable grounds to believe the accused had committed the
offence, and the Magistrate began the trial proceedings by rejecting the dismissal of the case
under Section 246(1).
Explaining the charge to the accused
Section 246(2) states that the charge against the accused should be read and explained to him,
and he shall be asked whether he wishes to plead guilty to the charges or contest the said charges
by proceeding with a trial.
Conviction on a guilty plea
Section 246(3) gives the accused an opportunity to plead guilty and present himself in mercy of
the court. The Magistrate has the authority to record the guilty plea, convict and punish the
accused as he sees fit. If the accused does not plead guilty, a subsequent hearing shall be held and
the accused will be granted a fair trial. The Magistrate may state in writing, the reasons he thinks
fit for recalling any witnesses for a cross-examination and if so, which witnesses of the
prosecution, whose evidence has been recorded. The same reasons are recorded and
prosecution’s witnesses are recalled for cross-examination by the Magistrate.
Choice of the accused to recall prosecution witnesses
Sub-section (5) and (6) under Section 246 empowers the accused to recall any witness named by
the accused and perform a cross-examination or re-examination, after which they are discharged.
The evidence of remaining witnesses provided by the prosecution is taken and they shall be
discharged after cross-examination and re-examination as seen necessary. The application of this
can be observed in the case of Varisai Rowther And Anr. V. Unknown, 1922.
Evidence for prosecution
Section 244 states that in warrant cases instituted otherwise than a police report and filed directly
with the Magistrate, the accused is presented before the Magistrate who begins the hearing
process by summoning the witnesses named by the prosecution and taking all the pieces of
evidence produced as such. All evidence must be taken into consideration as under Section
138 of the Indian Evidence Act and filed with the record by the Magistrate.
Steps in evidence presentation of prosecution.
The accused cannot be charged by the Magistrate until the prosecution names witnesses or
presents evidence in relation to the case. All the important evidence is collected after the
witnesses are examined and the Magistrate determines if there is enough substance to frame a
charge against the accused. The case cannot proceed further until the prosecution names
witnesses and evidence is collected, examined and recorded as can be seen in Gopala Krishnan
V. State Of Kerala. The magistrate is not obligated to file summons for the presence of a witness,
but it is the responsibility of the prosecuting party to file an application with the Magistrate to
request the summons of witnesses who shall present themselves before the court on a specified
date and time as seen in Parveen Dalpatrai Desai V. Gangavishindas Rijharam Bajaj.
Summoning witnesses
The application is made to the Magistrate by the prosecution to summon any witnesses and the
Magistrate issues the order to summon any witnesses or produce any document or thing in
relation to the case as seen in Jethalal V. Khimji.
In the case of P.N. Bhattacharjee V. Shri Kamal Bhattacharjee, 1994, the Gauhati High Court
observed that the complainant was making extra efforts to order a summons to the witnesses and
it was the duty of the Magistrate to order a summon to all witnesses before giving the order of
dismissal just because the witnesses do not turn up.
The Magistrate can also deny to examine witnesses whose names were not mentioned under the
list provided by the prosecution initially by rejecting the application. However, a second
application can be made to summon more witnesses other than the ones mentioned in the list and
the Court is bound to issue summons to them as seen in Jamuna Rani vs S. Krishna Kumar, 1992.
Absence of complainant
Section 249 states that when the proceedings have been instituted upon complaint directly with
the Magistrate, and the complainant is absent on the date and time of the proceedings set by the
Magistrate; and the offence may be compoundable and non-cognizable, the Magistrate may at
any time before the charges are framed against the accused, discharge him. It is the discretion of
the Magistrate to discharge the accused or proceed with the case. But such a discharge is not
considered judgement as observed in the case of Banta Singh V. Gurbux Singh, 1966. The
accused cannot be discharged after the charges against him are framed despite the default of
appearance by the complainant.
In course of trial, if the complainant dies, the Magistrate need not discharge the accused but
rather continue the trial.
Examination of witnesses
The Magistrates examines the witnesses after summoning them to the Court. The law provides
the accused to re-examine or cross-examine any witnesses produced by the prosecution after the
charges against him are framed. However, this is not the same as an opportunity given for
examination before the charges are framed. The witnesses are examined and the Magistrate
collects testimonies and pieces of evidence and files them with the record based on their
relevance to the case. The Magistrate may throw aside any baseless or irrelevant testimonies and
pieces of evidence as he sees fit and orders the re-examination of any witness as seen necessary
for the service of justice.
Record of evidence
All evidence brought before the court that holds relevance to the case and can link the accused to
the offence committed beyond a reasonable doubt or any evidence which can get him acquitted is
filed with the record by the Magistrate. Recorded evidence is secured away from parties that may
be interested in tampering with them to gain the upper hand and prevent the application of
justice.
Evidence for defence
The defence has the opportunity to present his side of the case and defend himself against the
accusations of the prosecution, as mentioned under Section 247. A written statement may be put
forwarded and the Magistrate shall record it. The accused can issue an application requesting the
Magistrate to summon witnesses or the production of any document or thing with relevance to
the case. And the Magistrate must issue such summons unless he feels they are baseless,
irrelevant and done for the purpose of vexation and delay of the delivery of justice. The reasons
for rejection of application must be recorded in writing by the Magistrate. Any witness that has
already been cross-examined by the accused or had the opportunity to be cross-examined by the
accused cannot be summoned again unless the Magistrate deems it necessary for the delivery of
justice.
Conclusion of the trial
The trial can only end in either a conviction or acquittal of the accused. The decision of the Court
with regards to the conviction or acquittal of an accused is known as judgement. If the accused is
acquitted of the offence, the prosecution is given time and an opportunity to appeal the Court
against the order of acquittal. If the accused is convicted after observing the evidence and judged
to be guilty of committing the offence, both sides are given an opportunity to give arguments on
punishment to be served. This can be often observed in conviction cases of life imprisonment or
death penalty.
Judgement and connected matters
Judgement of acquittal or conviction
Section 248 states that once the decision is made after the Magistrate examines the evidence, the
judgement is delivered. If the accused is not found guilty, an order of acquittal shall be recorded
by the Magistrate under as stated under Section 248(1). If the accused is found guilty, the
Magistrate after hearing the accused shall pass the sentence if he does not proceed in accordance
with the provisions of Section 325 or Section 360. And this order of conviction shall be recorded
as under Section 248(2).
Procedure in case of previous conviction
In a case where there is a previous conviction under the provisions of Section 211(7), and the
accused does not admit that he has been convicted previously as alleged in the charge; the
Magistrate may, after the conviction of accused shall collect evidence with respect to the alleged
previous conviction and record that finding. However, no charge shall be read by the Magistrate,
the accused shall not be asked to plead and the previous conviction shall not be referred to by the
prosecution or adduced by it unless the accused has been convicted under Section 248(2).
Compensation for accusation without a reasonable cause
Section 250 discusses the procedure related to cases where a case is instituted on complaint to a
magistrate or police officer and the Magistrate finds that there is no ground against the accused
person. The accused shall be discharged immediately. The complainant shall be summoned to
justify his complaint and explain why he should not pay compensation to the person against
whom the complaint was made. The Magistrate shall then order to pay a particular amount of
compensation not exceeding the amount of fine to the accused if he is satisfied that the reasons
for filing the complaint are baseless and lacks ground.
If there is more than one accused person, the Magistrate shall order the complainant to pay
compensation to all the accused. This can be observed in the case of Valli Mitha V. Unknown,
1919.
In the case of Abdur Rahim V. Syed Abu Mahomed Barkat Ali Shah, 1927, it was declared by the
Court that the amount of compensation will only be paid to the accused and not his relatives or
any other person.
Failure in payment of compensation amount by the complainant will result in simple
imprisonment not exceeding 30 days. If the person is already in imprisonment then Section
68 and 69 of the Indian Penal Code will be applied. And a person who has been directed to pay
compensation amount will be exempted from any criminal or civil liability in respect of the
complaint.
Section 250(6) states that a complainant or informant ordered by a Magistrate of second class to
pay compensation exceeding one hundred rupees under Sub-section (2) can be appealed as seen
in the case of A.M. Pereira vs D.P. Demello, 1924.
The compensation amount shall not be paid before the period of appeal lapses or after the
decision of the appeal is given by the Court. And in cases where there is no relation to appeal, the
amount will be paid after one month from the date the order was passed.
Conclusion
The Court decides if there is ground against the accusations of the complainant and the
proceedings are initiated under the Magistrate’s discretion. Furthermore, we discussed that the
evidence and witnesses presented by both the prosecution and defence are essential in
determining the facts of the case and declare judgement. The judgement is taken by the
Magistrate after both sides have presented their arguments. And if the accused is acquitted of the
charges, the case is dismissed but the prosecution can file an appeal to challenge the decision of
the court. But if the accused is convicted, both sides are allowed to present their arguments as to
the extent of punishment which shall be inflicted on the convict. But the final decision as to the
punishment lies with the Magistrate.
Summon Cases(251-259)
The Code of Criminal Procedure classifies criminal cases into two main categories: Summon
cases and Warrant cases. Summons cases are described in Section 2(w) of the Code of Criminal
Procedure. Any case that doesn’t fall under warrant cases is considered a summons case.
Summons cases include non-serious, bail-eligible, and compoundable offences. These cases are
exclusively heard by a Magistrate.
In simple terms, a summons is a court order that commands someone to appear in court and
respond to a complaint made against them. Summons cases typically involve less complicated
and faster trials because the offences are not of an urgent nature. According to Section 204(1) (a)
of the CrPC, a Magistrate issues a summons to the accused person.
Meaning of Summons Case
A “summon” is a legal document that orders a person to appear in court and respond to a
complaint against them. This order is issued by a Magistrate to the accused individual as per
Section 204(1) (a) of the Cr.P.C, 1973.
A “summon case” refers to a legal case related to an offence that is not considered a warrant
case. Warrant cases typically involve severe punishments like the death penalty, life
imprisonment, or imprisonment exceeding two years. In contrast, summon cases involve
offences where the punishment does not exceed two years of imprisonment. These cases are
generally less serious in nature and need to be resolved quickly, without compromising the
principles of a fair trial.
The procedure for handling summons cases is outlined in Sections 251 to 259 of the Cr.P.C,
1973. This procedure is less formal compared to other types of trials, such as session trials or
warrant cases initiated based on a police report or other means.
What is Summon in CrPC?
A “summon” refers to a legal document issued by a court, typically a Magistrate, ordering a
person to appear before the court. This document is used in summon cases, which generally
involve less serious offenses.
When a summon is issued, it serves as a command for the individual named in it to appear in
court on a specified date and time to respond to a complaint or charges filed against them. The
individual may be required to answer questions, enter a plea (such as guilty or not guilty), or
provide their defence during the court proceedings.
Summons are employed to ensure that individuals involved in legal matters, whether as accused
persons or witnesses, participate in the legal process and contribute to the resolution of the case.
Failure to comply with a summons can lead to legal consequences, such as arrest warrants or
contempt of court charges.
Trial of Summon Cases
The trial of summon cases in CrPC has been dealt with as:
Accusation Explanation (Section 251)
In summon cases, there’s no need to formally charge the accused. Instead, they are told about the
accusation and asked if they admit guilt.
Guilty Plea (Section 252)
If the accused admits their guilt, the Magistrate records their plea and convicts them.
Guilty Plea in Absence (Section 253)
If someone, on behalf of the accused, admits guilt, the Magistrate can, at their discretion, order
the accused’s conviction.
Trial Procedure (Section 254)
If Sections 252 and 253 don’t result in conviction, the Magistrate proceeds with a full trial,
recording evidence from both prosecution and defence.
Verdict (Section 255)
After examining all the evidence and witnesses, the Magistrate decides whether to convict or
acquit the accused based on valid reasons.
Complainant Absence or Death (Section 256)
If a summon case is based on a complaint, and the complainant is absent, the Magistrate can
acquit the accused or adjourn the case. In some cases, the trial may proceed without the
complainant.
Withdrawal of Complaint (Section 257)
If the complainant withdraws their complaint with the Magistrate’s permission before the final
decision, the accused is acquitted.
Stopping Proceedings (Section 258)
In summon cases not based on a complaint, with permission from higher judicial authorities, the
Magistrate can halt the trial, but they must provide a good reason. If stopped after the main
witness’s evidence, it’s like acquitting the accused; before the main witness, it’s like discharging
them.
Conversion to Warrant Case (Section 259)
If a summon case carries a punishment of more than six months’ imprisonment and it’s in the
interest of justice, it can be converted into a warrant case.
Compensation for Accused (Section 250)
If there’s insufficient evidence for the accusation, the accused can be acquitted or discharged.
The Magistrate can order compensation for the accused but must issue a notice first. If the
complainant doesn’t pay, they can be imprisoned for up to 30 days.
Landmark Cases on Summon Cases
Manbodh Biswal vs. Samaru Pradhan (1980 Cri LJ 1023): This case emphasized the
mandatory nature of Section 251 of CrPC. It argued that when an accused is brought before a
Magistrate, they must be informed about the charges against them and asked if they want to
plead guilty or continue with the trial. In this particular case, because the accused wasn’t
informed about the charges, the trial couldn’t proceed.
S. Rama Krishna vs. S. Rami Reddy [(2008) 5 SCC 535]: This judgment clarified Section 256
of CrPC. It stated that when the complainant is absent from the trial for a significant period and
doesn’t respond to repeated summons, the Magistrate has the authority to acquit the accused of
all charges.
Driver Mohmed Valli & Ors. Vs. State (1960): This case highlighted the distinction between
issuing a summons and ordering the issuance of a summons. It pointed out that a summons is
served by police officers directly to the intended recipient.
Hemedranath Chowdhury vs. Smt. Archana Chowdhury (AIR 1971 Cal 244, 1971 CriLJ
817): This judgment focused on Section 64 of CrPC. It stressed that to locate the person being
summoned, adequate efforts must be made and proven in accordance with the law.
Analysis of Summon Trails
The summon trials is intentionally less formal to ensure a quick resolution. However, Section
258 poses a challenge as it doesn’t explicitly grant Magistrates the authority to dismiss cases in
the absence of substantial grounds, which can be disadvantageous to the accused. In the K.M.
Matthew case, the court suggested that Magistrates have an implied power to dismiss cases
when the allegations don’t establish a crime. This viewpoint has been contested in several legal
decisions.
In the Arvind Kejriwal case, the Supreme Court noted that the law doesn’t specifically
empower Magistrates to dismiss cases under Section 258. Instead, it directed such cases to the
high court to be handled under Section 482. However, it’s important to note that even the high
court would need to assess whether there are sufficient grounds to proceed against the accused,
potentially delaying the primary goal of summon cases: speedy trials.
Although this issue has been addressed in various cases before the apex court, it warrants further
examination to ensure a fair trial and protect the rights of the accused, especially in situations
where their rights may be jeopardized.
Conclusion
Summon cases are legal proceedings that pertain to less serious offences. In these cases, an
individual accused of committing a crime is issued a summons by a court, ordering them to
appear before a Magistrate. Unlike more complex trials, summon cases involve offences where
the punishment typically does not exceed two years of imprisonment.
The accused is informed about the charges and given the option to plead guilty or proceed with
the trial. Summon cases aim for a speedy resolution, emphasizing efficiency. These cases are
distinct from warrant cases, which deal with more severe offences and require the issuance of an
arrest warrant. Summon cases play a crucial role in the legal system by handling less serious
criminal matters in a straightforward and expedited manner.

Procedure for getting Legal Aid in Criminal Matters (304)

Background of Legal Aid in India
In ancient times, serving the poor and needy people was considered as service to God. In fact, the
concept of Dharma calls for the protection of the poor and weaker section of society and to help
them in every possible manner.
One can find the traces of Legal Aid in India from the Vedic Period itself. The 36th and 42nd
slokas under Chapter I discusses the need to save innocent people from violent people. Also,
sloka 103 of Chapter III talks about a King who gives money to such needy people becomes the
winner of the opponent’s wealth and the Devtas always protect him.

After the Vedic period, the traces of free legal aid can be found in the Muslim period where Chief
Qazi appointed full-time lawyers who were known as Vakil-e-sarkar or Vakil-e-sharai who were
responsible to provide free legal advice to the poor masses.
During the British reign in India, the Bombay Legal Aid Society was formed in the year 1924
with the main objective to make justice accessible to the poor section of the society and to reduce
the cost of litigation and legal processes. Further, even before the said Society, the Code of Civil
Procedure was enacted in the year 1908 which provides for assistance and free legal aid to
indigent persons which shall be discussed later in this article. Inspired by the Rushcliffe’s
Committee which was set up in England with an aim to examine the facilities which then existed
in England and Wales with regard to legal assistance and aid to the poor people, the Bombay
Legal Aid Society brought the report of the said Committee in Government’s notice and this
effort was also appreciated in the fourteenth report of the Law Commission of India. The society
advised the Government to bring up a similar committee which would examine the status of legal
aid in India and problems attached thereof. Responding to the said suggestion, the Government
of India asked the then provincial governments if they would be able to provide more facilities to
the poor people in both civil and criminal cases. But due to financial restraint, the provincial
governments were not willing to provide legal aid beyond what was provided under the statute.
After India got Independence from the British rule, the Government framed a new Code of
Criminal Procedure, in the year 1973 which provided for legal aid in respect of criminal matters.
Section 303 provides that any person who is accused under any offense before a criminal court or
against whom any criminal proceeding is instituted under Cr.P.C may of right be defended by a
pleader of his choice. This section empowers the accused to be defended by a pleader of his own
choice. Further, Section 304 of the said Code provides that if the Court thinks that the accused
does not have sufficient means to engage a pleader, then the Court shall appoint a pleader for his
defense and that the expense of the pleader shall be borne by the State. This provision ensures
that notwithstanding the number of means a person has, he/she shall be defended by a pleader.
Legal Aid: A Constitutional Mandate
Legal aid per se means to provide legal assistance or any kind of legal help to the people who are
in need of it. There have been several instances where we could witness that due to poverty and
lack of other amenities, many people are unable to approach the court and are deprived of justice.
In the modern India, where the fee of lawyers is sky-rocketing, the need for free legal aid has
become very essential to establish the authority of justice and maintain the faith of the people
towards law and legal machinery of the nation.
The Government of India appointed a committee which was headed by the former Minister, Shri
Swaran Singh to examine and give suggestions as to make legal aid a Constitutional force or not.
The committee recommended to expressly insert legal aid provision in the Constitution of India.
The Parliament by 42nd Constitutional Amendment Act inserted the “Free Legal Aid” in Part IV
of the Constitution. Entry number 11A was also incorporated in the Concurrent List by which
both State and Central Government got the power to frame rules with respect to legal aid.
Amendments were also done in the Code of Civil Procedure in the year 1976 which amended
Order XXXIII and Order XLIV. Rule 17 of Order XXXIII CPC provides that any defendant, who
desires to plead a set-off or counterclaim may be allowed to set up such claim as an indigent
person. Also, Rule 18 of Order XXXIII which has been inserted vide said amendment act
provides for the power of Central Government as well as the State Governments to make such
supplementary provisions as it thinks fit for providing free legal services to those who have been
permitted to sue as indigent persons. Further, Article 22 of the Constitution of India states that no
person shall be denied the right to counsel, and to be defended by a legal practitioner of his
choice.
Therefore, free legal aid in civil as well as criminal matters is not only a legal right but also a
Constitutional mandate. Article 39A of the Constitution of India which provides for Equal justice
and free legal aid which states, “The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid,
by suitable legislation or schemes or in any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities.”
With reference to the above-mentioned article, it becomes pertinent to note the Preamble of the
Constitution of India. The Preamble, as held in the case of Keshavananda Bharati v. State of
Kerala, is one of the basic features of the Constitution. The Preamble itself provides for Justice in
social, economic and political aspects. It also provides for Equality of status and of opportunity.
Further Article 14 of the Constitution provides that the “State shall not deny to any person
equality before law or the equal protection of the laws within the territory of India.” In light of
the above-mentioned provisions, it becomes a duty of the State to provide for such measures and
take such necessary steps that ensure that no citizen is deprived of justice and free legal aid is
available to all irrespective of the background to which they belong.
Procedure for getting Legal Aid in Criminal Cases
As we all witness, crimes occur on a daily basis. It would not be an exaggeration if it is said that
not a single day goes by without an occurrence of crime. The Law and the Judiciary are vested
with the responsibility to punish the guilty and deliver justice so that the faith of the people is
maintained in the justice delivery system of the nation. Article 21 of the Constitution provides
that “no person shall be deprived of his life or personal liberty except according to procedure
established by law.” The procedure established by the law should be just, fair and reasonable
which implies that the rules of Natural Justice should be followed.
One of the rules of Natural justice postulates Audi Alteram Partem which means no one shall be
condemned unheard or everyone has the right to be heard. Therefore, the person against whom
any criminal offence has been instituted in the court of law has the right to be heard by the judge
before the court pronounces its judgment and it is in the best interest of the person to represent
himself in the best possible manner which requires legal expertise. But the problem these days is
the expensive nature of the justice delivery system which any ordinary man will find difficult to
afford. Here comes the need to provide free legal aid and assistance to the people who really
need it.
The organizations
Before jumping on to the procedure, one should know about all the organizations/institutions
which have been established in order to provide free legal aid to the needy people.
1. National Legal Services Authority (NALSA): The NALSA is established by the Central
Government and is the supreme body to provide free legal aid. It has been established under
Section 3 of the Legal Services Authorities Act, 1987 which provides that the Central
Government shall constitute a body to be called the National Legal Services Authority to
exercise the powers and perform the functions conferred on, or assigned to the Central Authority
under the said Act.
2. State Legal Services Authority: Section 6 of the LSA Act provides for the power to State
Government to constitute a body to be called the State Legal Services Authority to carry out
functions assigned to the body by this Act.
3. District Legal Services Authority: The District Authority is established by the State
Government in consultation with the Chief Justice of the concerned High Court of the State and
that the Authority shall carry out such functions as conferred by the Act. It is established under
Section 9 of the LSA Act.
4. Supreme Court Legal Services Committee: It is established under Section 3A of the LSA
Act and is responsible to carry out such functions as given by the Central Authority.
5. High Court Legal Services Committee: This Committee is established under Section 8A of the
LSA Act and is responsible to carry out functions as given by the State Authority.
6. Taluk Legal Services Committee: It is established under Section 11A of the LSA Act and its
jurisdiction cover a Taluk/Mandal or a group of Taluks/Mandals.
The Procedure
Article 22 of the Constitution of India provides that any person who has been arrested shall not
be denied the right to consult and to be defended by, a legal practitioner of his choice. This
provision empowers the arrested person to get legal assistance as a matter of Fundamental Right
as soon as he has been arrested. However, clause 3 of the said Article provides that this right
cannot be enjoyed by a person who is an alien enemy or who has been arrested under preventive
detention law.
The Legal Services Authorities Act, 1987 provides for the group of people who are eligible for
the free legal aid:
(a) A member of a Scheduled Caste or Scheduled Tribe.
(b) A victim of trafficking in human beings or beggar as referred to in Article 23 of the
Constitution.
(c) A woman or a child.
(d) A mentally ill or otherwise disabled person.
(e) A person under circumstances of undeserved want such as being a victim of a mass disaster,
ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster or
(f) An industrial workman or
(g) In custody, including custody in a protective home within the meaning of clause (g) of
Section 2 of the Immoral Traffic (Prevention) Act, 1956(104 of 1956); or in a juvenile home
within the meaning of clause(j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986); or in
a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2
of the Mental Health Act, 1987(14 of 1987) or
(h) In receipt of annual income less than rupees nine thousand or such other higher amount as
may be prescribed by the State Government, if the case is before a court other than the Supreme
Court, and less than rupees twelve thousand or such other higher amount as may be prescribed
by the Central Government, if the case is before the Supreme Court.(g) in custody, including
custody in a protective home within the meaning of clause(g) of Section 2 of the Immoral Traffic
(Prevention) Act, 1956(104 of 1956); or in a juvenile home within the meaning of clause(j) of
Section 2 of the Juvenile Justice Act, 1986 (53 of 1986); or in a psychiatric hospital or
psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act,
1987(14 of 1987);or (h) in receipt of annual income less than rupees nine thousand or such other
higher amount as may be prescribed by the State Government, if the case is before a court other
than the Supreme Court, and less than rupees twelve thousand or such other higher amount as
may be prescribed by the Central Government, if the case is before the Supreme Court.
A person can get legal aid from the following Authorities/ Institutions:
1. Authorities as provided under the LSA Act: The concerned must file an application in the
concerned authority. The application should contain all the grievance suffered by the applicant
and the relief sought by him. An affidavit should also be attached to the application which should
state that the applicant qualifies for the said legal aid under Section 12 of the LSA Act and is not
barred by the Law. The form for such application is available free of cost in all the above-
mentioned institutions.
2. Legal Aid Clinics: These clinics are set up by the District Legal Services Authority in order to
provide Legal aid. These clinics are established in villages and such areas where people are not
capable enough to get legal help on their own.
3. Non- Government Organizations: There are several NGOs working in different areas and
arenas including Jails to provide legal assistance to the people who are incapable of affording a
counsel and need legal aid.
4. Lawyers doing Pro-Bono work: Several lawyers are apart from doing conventional litigation
work, are coming up and taking an initiative to provide free legal assistance and aid to the needy
people or low-cost legal counseling. For this, the concerned person must have knowledge of
these kinds of lawyers.
Conclusion
Almost more than half of the population in India is not capable enough to afford the high-end fee
charged by the lawyers in the country. However, many of these lawyers are also involved in pro
bono work. But it makes the free legal aid as guaranteed by the statutes a must for the needy
people in order to keep the faith of law among these people. But no matter how many statutes
and laws are enacted, these things won’t bring any substantial change until and unless legal
awareness is done among these people. Legal awareness is only possible through the process of
legal education which involves education the deprived people about the procedures and system
of the Law and Judiciary. Then only, one can expect to see the concept of welfare state get
implemented in its true sense and the term Justice as mentioned in the Preamble of the
Constitution of India show its power in the territory through the people of India.

Criminal procedure in case of person of unsound mind (328-339)

Introduction
The Code of Criminal Procedure, 1973 intends to give a mechanism for smoother delivery of
justice. Since CrPC deals with the arrest and trial of the person, it is very necessary that fairness
should be there to establish the lawful detainment of a person from his liberty.
When a person is unable to understand things, he is said to be of unsound mind. Idiocy, madness,
alcoholism, and mental degeneration are all examples of unsoundness. According to Section
84 of the Indian Penal Code, 1860, “Nothing constitutes an offence done by a person who, at the
time of committing it, by reason of unsoundness of mind, is incapable of comprehending the
nature of the conduct, or that he is doing what is either improper or contrary to law”.
In other words, an act committed by a person of unsound mind is not considered an offence and
falls under the category of ‘General Exceptions’. Here, the caring attitude towards people who
are mentally ill is maintained.
CrPC Chapter XXV Sections 328 to 339 makes provisions for accused persons of unsound mind.
These provisions are in the best interests of the mentally ill.
Criminal proceedings related to unsound mind
The following are the criminal procedures related to a lunatic or an individual of unsound mind
under CrPC –
Section 328– procedure in case of the accused being a lunatic
According to Section 328 of the Act, if the magistrate believes that the person being investigated
is unable to defend himself or is mentally ill, the magistrate must guarantee that the subject is
evaluated by a medical professional during the investigation.
If the defendant is unable to defend himself, the magistrate will hear the prosecution and
examine the records.
The magistrate shall postpone the proceeding for a limited term until the person’s unsoundness is
remedied, based on medical proof.
In the case of Mohan Lal @ Ranjan Mohan Bhatnagar vs The State (Nct Of Delhi) (2011), it was
contended that the evidence on record shows that the appellant was examined by various doctors
prior to the start of the trial by the learned Metropolitan Magistrate in proceedings under Section
328 CrPC and was found to be a man of unsound mind, and the learned M.M. also passed an
order in this regard and the trial began only after he was declared mentally fit.
Section 329– procedure where a person of unsound mind is tried before the court
According to Section 329 of the Act, if the magistrate believes the person being tried is of sound
mind and incapable of self-defence, the magistrate ensures this by having the subject evaluated
by a medical professional. If the defendant is unable to defend himself, the magistrate will hear
the prosecution and examine the records. The magistrate shall record such a determination and
postpone the hearing based on medical evidence.
The fact of insanity throughout the trial will be considered part of the proceedings.
In the case of Kulwinder Singh v. State of Haryana (2011), it was stated that since Section 329 of
CrPC relates to the trial of a person of unsound mind and that the application has been filed
during the trial Section 329 of the Cr.P.C. would be applicable.
Section 330- release of a person of unsound mind pending investigation or trial
According to Section 330 of the Act, If the person is found unsound or incapable of making his
defence during the inquiry and trial (Sections 328 and 329), regardless of whether the offence is
bailable or not, the Court may release him. In other words, if the offence is non bailable, the
magistrate must grant bail as well. If, on the other hand, bail cannot be granted, the accused must
be kept in a location where he can receive treatment.
In the case of Kanhaiya v. State of U.P. (2018), the learned Additional Sessions Judge noted that
a doctor at the mental hospital in Varanasi had opined that he was an accused of unsound mind,
and ordered that the accused be sent under a detention warrant to the mental hospital in Varanasi,
where the accused-applicant was being treated, as noted in his decision. He opined that there was
no good reason to release the applicant on bail, and he denied the applicant’s bail application
under Section 330 of the CrPC.
Section 331- resumption of inquiry or trial
According to Section 331 of the Act, when the inquiry and trial are postponed or suspended, the
magistrate shall summon the person after he or she regains mental soundness or ceases to be
insane and resume the inquiry and trial.
In the case of Subhash Bhardwaj v. State (2016), the Court concluded that the trial will be
scheduled after the trial court receives the IHBAS report and completes its investigation pursuant
to Section 331 CrPC.
Section 332- procedure of accused appearing before the magistrate or the court
According to Section 332 of the Act, If the accused appears before the magistrate and the court
believes he is capable of presenting his defence, the investigation and trial will continue.
If the person is still unable to recover from his condition, the provisions of Section 330 will
apply once more.
In the case of Geeg Singh v. State of Rajasthan (2008), the Court said that the trial will continue
as the accused is capable of presenting his defence.
Section 333- when accused appears to have been of sound mind
According to Section 333 of the Act, when the magistrate has reason to believe the individual is
of sound mind and there is also evidence that acts were committed by the accused, when the act
was committed by the accused, and when the act was committed while the accused was of sound
mind. The magistrate will then proceed with the case.
In the case of Dimple @ Dimpu @ Gurcharan v. State of Punjab (2008), the court stated that the
petitioner is opined to be suffering from that form of insanity at the time of the commission of
the offence which may render him incapable of knowing the nature and quality of his act when
he committed the same, so Section 333 comes into play.
Section 334- judgement of acquittal of the accused on the ground of unsoundness of mind
According to Section 334 of the Act, if a person is acquitted on the grounds of insanity and is
unable to identify the nature of the act, the findings must state whether the act was committed by
the accused or not.
In the case of Abdul Latif v. The State of Assam (1981), the Court came to the conclusion that the
accused was incompetent to know the nature of the act or that he was doing something that was
either illegal or against the law at the critical moment. As a result, they overturned the
convictions and punishments, accepted the plea of insanity, granted the appeal, and found the
appellant not guilty.
Section 335- person acquitted on such ground to be detained in safe custody
According to Section 335 (1) of the Act, if a person is acquitted by a magistrate on the grounds
of insanity, he or she should be detained in safe custody or should be delivered to a family
member or friend.
When it comes to delivering an accused person to a relative or friend, the court can only do so if
the relative or friend makes an application to the magistrate and the friend or relative assures the
court of security.
Responsibilities of a relative or friend
 He must take proper care of that individual.
 When necessary, the relative or friend should present that person for inspection as
directed by the state government.
In the case of Niman Sha v. State of M.P. (1995), the Court decided, based on the heinous crime
the accused had committed and his mental state, as well as the risks to society, that the accused
be imprisoned at the mentioned Institute of Mental Health in Gwalior until he regains normalcy
after receiving medical treatment.
Section 336- the power of state government to empower officer in charge to discharge
According to Section 336 of the Act, the State Government may delegate all or all of the
functions of the Inspector-General of Prisons under Section 337 or Section 338 to the official in
charge of the jail in which a person is imprisoned under the provisions of section 330 or section
335.
In the case of Motiram Maroti Dhule v. State of Maharashtra (2002), the Court ordered that a
copy of the judgment shall also be sent to the Inspector General of Prisons who is empowered in
terms of Section 336 to perform and discharge the functions under Sections 337 and 338 of
Criminal Procedure Code for further necessary action in the matter.
Section 337- procedure where the lunatic prisoner is reported capable of making his defence
According to Section 337 of the Act, the magistrate must proceed with Section 332 if it is
determined that the lunatic is now capable of defending himself.
In the case of Emperor v. Motilal Hiralal (1921), the Court continued the trial as the accused is
capable of defending himself.
Section 338- procedure where a lunatic detained is declared fit to be released
According to Section 338 of the Act, if a person is detained under Section 330 on the grounds of
insanity and the authorised person or inspector general certifies that the person is fit to be
released, detained by the authorities, transferred to a public mental institution then there should
be no damage in doing so and the government may then release the individual.
If a person is committed to a public mental institution, a commission must be formed to conduct
an official investigation into their mental health and issue a report, which must be sent to the
state government.
In the case of Motiram Maroti Dhule v. State of Maharashtra (2002), the Court has directed that
the petitioner be kept in safe custody for the present in Amravati Jail till the State Government
takes action in the matter. The State Government may decide where the appellant is to be kept
pending action under Sections 338 or 339 of Criminal Procedure Code as the case may require.
Section 339- delivery of lunatic to the care of relative or friend
According to Section 339 of the Act, if a person’s relative or friend wishes for the person to be
released to him, the relative or friend must apply to the State Government for such a release.
The State Government will only accept such an application or grant the request if the person
delivers :-
 Properly cared for without causing harm to himself or others
 Produced for inspection when necessary
 Produced before a magistrate when necessary
When the accused is able to defend himself, the accused’s relative or friend is summoned, and a
certificate of inspection is kept as evidence.
In the case of Geeg Singh v. State of Rajasthan (2008), the Court has said that as per
Sections 338(1) and 339(1), CrPC, the State Government may make suitable directions to deliver
the appellant to any of his relatives or friends when he is fit.
Notable case laws related to person of unsound mind
State of Maharashtra v. Sindhi (1975)
In this case, the Court held that the accused could not be declared to be incapable of defending
himself because he was fully aware of the nature of the crime he had committed and the
proceedings against him. The specialist has been called to ensure mental insanity. The High
Court carefully considered their testimony before recording its own conclusions on the key
issues.
I.V. Shivaswamy v. State of Mysore (1971)
In this case, the Court ruled that the investigation will be conducted only if the magistrate is
satisfied that the accused is insane or of unsound mind. However, if there is no possibility of
unsoundness, such an investigation will not take place. In the event of a doubt, an investigation is
required.
Conclusion
It can be concluded that such provisions are in the best interests of those who are mentally ill and
incapable of self-defence. During the period of his insanity, the magistrate has the authority to
postpone the trial or procedures.After he has recovered his health or is capable of defending
himself, the court will proceed as if he is of sound mind. Such a person must be maintained in a
secure environment or in safe custody. A relative or acquaintance of that person may file a
petition to the magistrate for release if that person is mentally ill. We can see the court’s concern
for the mentally ill in this case. Such provisions are required to achieve proper justice.
VII. SECION: 306 TENDER OF PARDON TO ACCOMPLICE
(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 to which this section applies, the Chief Judicial
Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the
trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at
any stage of the inquiry or trial, may tender a pardon to such 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, in the commission
thereof.
(2) This section applies to —
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge
appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).
(b) any offence punishable with imprisonment which may extend to seven years or with a more
severe sentence.
(3) EveryMagistratewhotendersapardonundersub-section(7)shallrecord—
(a) hisreasonsforsodoing;
(b) whether the tender was or was not accepted by the person to whom it was made,

and shall, on application made by the accused, furnish him with a copy of such record free of
cost.
(4) Everypersonacceptingatenderofpardonmadeundersub-section(7)—
(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence
and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.
(5) Where a person has accepted a tender of pardon made under sub-section (7) and has been
examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without
making any further inquiry in the case—
(a) commititfortrial—
(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate
taking cognizance is the Chief Judicial Magistrate;
(b) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of
1952), if the offence is triable exclusively by that Court;
(c) inanyothercase,makeoverthecasetotheChiefJudicialMagistratewhoshalltrythe case himself.
 Thissectiondealswiththesubjectoftenderofpardontoanaccomplice.Thepardonistendered to an
accused person who has been an accomplice in a grave offence committed by several persons so
that with the aid of the evidence of the person pardoned, the offence could be brought home to
the rest. The tendering of conditional pardon to the accomplices enables the Court to know the
fullest details about the case where it is otherwise impossible to establish the guilt of the accused
from other evidences. Such an accomplice is also called an approver. The Court must seek the
corroboration of the evidence provided by an approver before convicting a person on such
evidence(s). The Court must satisfy itself that the statement of the approver is credible in itself so
that the conviction can be based upon the same. The appreciation of the approver’s evidence
must satisfy a double test, i.e. :
1. his evidence must show that he is a reliable witness; and
2. his evidence must receive sufficient corroboration.
 ArequestforpardonandtenderofpardonisamatterbetweentheCourtandthepersonwhois granted
pardon and cannot be challenged by the other co-accused persons. An order granting pardon is
open to revision, but whether the Court whose powers are invoked for that purpose will interfere
or not is a matter depending upon the circumstances of each case. The Magistrate tendering
pardon must maintain a record stating:
1. the reason for his tendering pardon; and
2. whether or not the same was accepted.
 AnApprover
 An approver is a person who is an accomplice in crime and who turns out a witness for the
prosecution. Thus, he is no longer treated as an accused and is examined as a witness. An
evidence of an accomplice is admissible under section 123 of the Indian Evidence Act against a
co-accused, being a participator in crime. The testimony of an approver is regarded with greatest
distrust and fullest corroboration in material particulars is required for a conviction. An
accomplice is undoubtedly a competent witness but the Courts are reluctant to act on such

evidence unless it is corroborated in material particulars by other independent evidence. The

conviction based merely on accomplice evidence is not illegal, but there must be its
corroboration in material particulars.
VIII. SECION: 307 POWER TO DIRECT TENDER OF PARDON
At any time after commitment of a case but before judgment is passed, the Court to which the
commitment is made may, with a view to obtaining at the trial the evidence of any person
supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a
pardon on the same condition to such person.
 This section applies to tender pardon by the Court of Session, the Special Judge or the Chief
Judicial Magistrate. Pardon under this section can be tendered not only during the trial but also
before trial. The Court to which commitment is made may tender pardon to the accused-
1. at any time before judgement is passed, or
2. with the view of obtaining the evidence of any person supposed to have been directly or
indirectly concerned in any office.
 An approver is supposed to make a full and true disclosure of the circumstances relating to
the offence. He is also required to disclose the name of every person concerned as principal or
abettor.
IX. SECION: 308 TRIAL OF PERSON NOT COMPLYING WITH CONDITIONS OF
PARDON
(1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or
section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully
concealing anything essential or by giving false evidence, not complied with the condition on
which the tender was made, such person may be tried for the offence in respect of which the
pardon was so tendered or for any other offence of which he appears to have been guilty in
connection with the same matter, and also for the offence of giving false evidence:
Provided that such person shall not be tried jointly with any of the other accused:
Provided further that such person shall not be tried for the offence of giving false evidence
except with the sanction of the High Court, and nothing contained in section 195 or section 340
shall apply to that offence.
(2) Any statement made by such person accepting the tender of pardon and recorded by a
Magistrate under section 164 or by a Court under sub-section ( 4) of section 306 may be given in
evidence against him at such trial.
(3) At such trial, the accused shall be entitled to plead that he has complied with the condition
upon which such tender was made; in which case it shall be for the prosecution to prove that the
condition has not been complied with.
(4) At such trial, the Court shall—
(a) ifitisaCourtofSession,beforethechargeisreadoutandexplainedtotheaccused;
(b) if it is the Court of a Magistrate, before the evidence of the witnesses for the prosecution is
taken,
ask the accused whether he pleads that he has complied with the conditions on which the tender
of pardon was made.
(5) If the accused does so plead, the Court shall record the plea and proceed with the trial and it
shall, before passing judgment in the case, find whether or not the accused has
complied with the conditions of the pardon, and, if it finds that he has so complied, it shall,
notwithstanding anything contained in this Code, pass judgment of acquittal.
 According to this section, a person who had accepted a tender of pardon and is either
wilfully concealing anything essential or giving false evidence against the co-accused person(s)
and is certified by the Public Prosecutor for the same, then such a person may be tried for the
offence in respect of which the pardon was tendered. Thus, a certificate from the Public
Prosecutor is necessary precondition for prosecuting the approver who has failed to comply with
the conditions of tender of pardon. The onus lies on the prosecution to prove that the approver
has wilfully concealed anything essential or has given false evidence and therefore, rendered
himself liable for forfeiture of his pardon. The statement made by the accused while accepting
the tender of pardon, may be given in evidence against him by the prosecution. The person
accepting pardon may be tried for offences:
1. in respect of which the pardon was tendered, or
2. for any other offence of which he is guilty in respect of the same matter, or
3. for giving false evidence.
 The prosecution for giving false evidence in respect of such statement is not entertained
without the prior sanction of the concerned High Court of the state and the provisions of section
195 in section 340 of the Code providing punishment for giving false evidence in the judicial
proceedings by summary trial do not apply in this case. The Court while trying the accused shall
ask him whether he pleads that he has not complied with the conditions on which the tender of
pardon was made. If the accused so pleads, the Court records the proceeds of the trial and the
Court trying such person shall:
1. in the case of the Court of session, the court shall ask before the charges read out and
explained to the accused, and
2. in the case of a Magistrate before the court shall ask the evidence of the witnesses for the
prosecution is taken.
 The Court is required to give decision whether the person has complied with the conditions
of the pardon or not. If in case, the Court finds that the accused has complied with the conditions
of the tender, the Court shall acquit him.

What happens when death sentences are confirmed under CrPC (366-371)

Introduction
Since 1991, a total of thirty executions have taken place in India. Only limited offences provide
for the death penalty as a punishment that includes-
 rape (Section 376 of the Indian Penal Code, 1860 (IPC)),
 murder (Section 302 of IPC),
 dacoity with murder (Section 396 of IPC),
 waging or attempting to wage war against the Government of India (Section 121 of IPC),
 certain offences after previous conviction (Section 31A of the Narcotic Drugs and
Psychotropic Substances Act, 1985), and
 abetting or aiding the act of sati (Section 4(1) of the Commission of Sati (Prevention)
Act, 1987).
The questions that arise are who can pass a verdict of the death penalty? What is the procedure of
its confirmation? What happens once the death sentence is passed by a judge of the Sessions
Court? Sections 366-371 of the Code of Criminal Procedure, 1973 deals with the ‘Submission of
death sentences for confirmation’.

Submission for conformation to High Court (Section 366)

Section 366 partially answers the question of who can pass a verdict. This section provides that if
a Session Court passes the death sentence against the accused(s) then the High Court needs to
confirm it before it comes into effect. Thereby, it is necessary to submit the proceedings before
the High Court and only after confirmation from the High Court the execution can be brought
into effect, and not before that.
The death penalty is the highest level of punishment and it follows the principle of ‘rarest of rare’
(uncommon crime or that is unusual to a person of ordinary prudence, the one which shocks and
causes tremors throughout the judiciary and the society). This section works as a precautionary
step to minimize the error while meeting the ends of justice.
In the case of State of Punjab vs Kala Ram @ Kala Singh (2018), the Court held that under
Section 366(2) of CrPC the court while passing the conviction shall grant the jail custody of the
convicted person under a warrant i.e. the person shall be kept in custody and not as a
punishment. The ‘safe keeping’ in jail custody is the limited jurisdiction of the jailor. It is a
trusteeship in the hands of the Superintendent, and not an imprisonment in a real sense.
The case of Bantu Son of Vidya Ram Bediya vs State Of U.P. (2006) was submitted to the
Allahabad High Court from Agra’s Sessions Court under Section 366 of CrPC. The accused had
committed the offence of rape, murder and kidnapping. The rape was so gruesome that during
the postmortem a stem of more than a feet was retrieved from her vagina which was inserted by
the accused while committing the offence. Allahabad High Court upheld the death penalty of the
accused stating that it was the rarest of rare case.
Further Sections provide the powers the High Court has in regard to cases submitted under
Section 366 of the CrPC.
Power to direct further inquiry to be made or additional evidence to be taken (Section 367)
Sub-section (1) of Section 367 of the CrPC provides that when the proceeding for confirmation
of the death penalty is submitted to the High Court and it notices any point of innocence or guilt
of the accused, it may either direct the Sessions Court or itself to make further inquiry into it or
take additional evidence into consideration. It is usually done when the High Court feels that the
Sessions Court has missed some points or factors.
Sub-section (2) of Section 367 provides that the convict can be directed to dispense his/her
presence during such inquiry or taking of the evidence unless the High Court otherwise directs.
Sub-section (3) of Section 367 provides that if the Sessions Court (authority other than the High
Court) makes the enquiry or takes into consideration such evidence then it shall be certified by
the Sessions Court.
In the case of Balak Ram Etc vs The State of U.P. (1974) the Supreme Court in the final
judgment stated that High Court had failed in properly considering the pieces of evidence of the
prosecutor’s witnesses and held that while inquiring against a death penalty case or taking into
consideration different pieces of evidence, the High Court shall take into consideration all the
pieces of evidence itself as it is its duty.
Power to the High Court to confirm sentence or annul conviction (Section 368)
Section 368 provides that when a case is submitted to the High Court under Section 366 of the
Code of Criminal Code, the High Court may;
 confirm the sentence passed by the Sessions Court, or pass a sentence other than the one
provided it is warranted by the law, or
 annul the conviction passed by the Sessions Court, and instead either convict the accused
under any other offence for which the Session’s Court had convicted him/her or order for
a trial on an amended charge or on the same charge, or
 acquit the accused of the charges made against him.
The proviso to the section states that till the time the limitation period to file an appeal against
the verdict is not expired, or the appeal is still pending or is not disposed of, the Court cannot
pass an order of confirmation.
In the case of Kartarey and Ors. vs The State of Uttar Pradesh (1975), the Sessions Court had
passed the verdict announcing the death sentence which was later altered by the High Court.
When the case reached the Supreme Court it was observed that the High Court has committed a
grave error in examining the evidence or additional evidence.
It states that it is the duty of the High Court to ‘reap-praise’ the evidence in totality and it shall
come to a conclusion on the merits of the case only after considering the proceedings in all their
aspects. It is important and crucial to consider the defence evidence equally and not to neglect it
as this is contradictory to the settled rule of practice and law.
Confirmation or new sentence to be signed by two judges (Section 369)
Section 369 provides that whenever a case is submitted to the High Court under Section 366 of
CrPC it shall be heard by a divisional bench i.e. at least by two or more judges. For confirmation
of:
 the sentence, or
 any new sentence, or
 any order.
Passed by the High Court shall be ‘made, passed and signed’ by either two or more judges. It is
an essential condition that cannot be ignored.
Procedure in case of difference of opinion (Section 370)
A question that arises now is what happens when the judges in equal proportion have conflicting
opinions? Section 370 of CrPC provides the answer to it and states that the manner provided
in Section 392 of CrPC shall be followed in the case when sitting judges that heard the case are
equally divided in opinion about the case. The parties do not have to specify it to the court, the
court takes the suo-moto and follows the procedure as per Section 392 of CrPC.
The Section 392 of states that when a High Court bench hears a case and ends up having divided
opinions, in such case the appeal along with the diverging opinions shall be laid before a judge of
the same Court. That judge shall deliver his/her opinion only after hearing the judges, and that
opinion shall be followed by the judgment or order in question.
The proviso to the section states that if any of the sitting judge, or the judge before whom the
judgment or order in question is laid under this section, requires the appeal to be heard again or
be heard by a larger bench of judges then it shall be done accordingly.
In various cases, this section has been applied including the case of Sri D N Srinivash Reddy vs
State of Karnataka (2018). In this case, the judges while deciding the case were not able to pass
a majority decision due to difference in opinion therefore, the procedure described under Section
392 was followed. The judge who heard the matter under Section 370 of CrPC quashed the
proceedings against the accused who were arrested during a raid.
Procedure in a case submitted to the High Court for confirmation (Section 371)
Section 371 of the Code of Criminal Procedure provides that cases of the death penalty which are
submitted to the High Court by the Sessions Court after being decided upon shall be sent to the
Sessions Court. The order passed by the High Court shall be one of the options provided in
Section 368 i.e. confirmation, annulment of the conviction, the acquittal of the accused among
others. It is the duty of the concerned officer of the High Court to send a copy of the order passed
by the High Court to the Sessions Court without any delay, under the seal of the High Court and
attested with his/her official signature.
Conclusion
Taking an individual’s life is one of the epoch-making decisions. It has been a debatable topic
since the beginning as it is always feared that an innocent individual shall not be hanged for the
offences he/she did not even commit. All the sections provided in chapter 23 of the Code of
Criminal Procedure work as a tool to minimize the chances of an error. The party can appeal to
the Supreme Court if it is not satisfied with the High Court’s judgment and feels that injustice
has been served or the court has been erred.
Firstly, after Sessions Court’s judgment regarding the death sentence shall be submitted to the
High Court for confirmation under Section 366. Then, the court may make inquiries or take into
consideration evidence, both existing and additional as provided in Section 367. The High Court
then passes the order as per Section 368 which needs to be signed by at least two High Court
judges as mentioned in Section 369. In case of conflict in opinion, the case shall be referred to a
third judge and his/her opinion shall decide the final decision as per Section 370 read with
Section 392 of the Code of Criminal Procedure. Finally, after the confirmation, or any other
decision, it is sent to the Sessions Court by the concerned officer as provided in Section 371 of
the Code of Criminal Procedure.
Transfer of cases under CrPC, 1973

Introduction
The procedure to be mandatorily followed while pursuing a case is briefly dealt with under the
Code of Criminal Procedure, 1973. Chapter XXXI of the Code contains the provisions related to
the transfer of the criminal cases from Section 406 to 411. The main reason behind the
incorporation of transfer of cases is that of delivering justice to people and to achieve the same,
the provisions regarding the right to appeal is also provided. The overburden of pending cases
and appeals results in delayed justice thus, it creates unrest in judicial processes. So to address
this problem, certain provisions have been brought to transfer the criminal cases from one court
to another. The right of appeal in the Supreme Court is available only in exceptional cases. As
per the Code of Criminal Procedure, the original court of criminal appeal in the High Court.
Transfer of cases and appeals by SC
Section 406 of the Code of Criminal Procedure confers the power upon the Supreme Court to
transfer cases and appeals. The Code grants the widest discretionary powers to the Supreme
Court to transfer any case or appeal lying before the High Court to any other High Court of any
state in the country in order to meet the ends of justice and fulfil the principle of natural justice.
The application requesting the transfer of any case or appeal pending before the High Court can
be moved to the Supreme Court by any of the following persons:
  Who is under the apprehension of unfair trial by the court; or
 Who is unable to find any proper justice being served to himself; or
 Attorney General or Advocate General of India.
The power granted by the Code under Section 406 to the Supreme Court is purely discretionary
in nature and the applicant is under no obligation to conclusively establish that in case the
transfer does not take place then fair justice will not take place and the applicant is only expected
to reasonably substantiate the contentions made by him under the application he has submitted to
the Supreme Court. The application under Section 406 of the Code is made by the interested
party should always be in the form of motion supported by an affidavit or affirmation, except in
the cases where the applicant is the advocate general or attorney general of the country.
The power of the Supreme Court to transfer the cases and appeals also extends to the transfer the
cases from any subordinate court in the country where any matter is pending. However, the court
where the case is pending can ensure that the Supreme Court, while transferring the case is
taking all the measures to uphold fairness and principles of natural justice. The parties in any suit
are always guaranteed the opportunity to bring to the notice of any court with appropriate
jurisdiction that there are reasonable grounds which uphold the apprehension in the mind of the
person that certain factors inhibit his right to a fair trial.
In Vishwanath Gupta v. State of Uttar Pradesh, the applicant filed an application for the transfer
of a case on the contention that he was under the apprehension that he wouldn’t be able to
engage a counsel in the court where a case against him was already pending in the case.
However, the District Bar Association submitted an application assuring the court that a defence
counsel from among the members of the Bar Association would be made available to the
applicant. The Supreme Court held the application to be invalid dismissing the prayer for the
transfer.
In Sukhdev Singh Sodhi vs The Chief Justice And Judges of The PEPSU High Court, the court
held that the power of transferring of cases with the Supreme Court does not extend to transfer of
any contempt proceeding which is pending before the High Court.
The power of transfer of cases and appeals is not only discretionary but is also limited as Section
406 does not clothe the Supreme Court with the power to transfer investigation pending before
one police station to another for the only reason being the forwarding of FIR to the court. In
cases where the Supreme Court is of the opinion that the application made is frivolous in nature
and is devoid of any substantial claim then it may order the party which came up with the
application to pay compensation of not more than one thousand rupees to the party which
opposed such application.
In Kaushalya Devi v. Mool Raj, the Supreme Court held that in cases where the application of
transfer of the case is made but the Magistrate dealing with the case opposes the application by
himself filing an affidavit then the transfer of the case, without any doubt in the complete interest
of justice because in all such cases the essentials of fair and impartial trial are already put to peril
which is signified by the personal involvement of the judge himself.
Grounds for transfer of appeal and cases
 To uphold the spirit of justice: The ultimate goal of any judicial system on the earth is
the deliverance of justice and protection of the rights of every person. The courts are
highly revered institutions of justice with people having high expectations of justice
which is sought after by the aggrieved party. Therefore, the court is under high moral
obligations for keeping the machinery of justice, equity and good conscience alive.
 Recommendations made by the superior judicial officers: The courts while deciding
whether to transfer the cases and appeals from one court to another takes into
consideration the inquiries and findings as revealed by the reports carried on by the senior
judicial officers such as Chief judicial magistrate or any sessions judge.
 Upon request by the trial court: Where the court before which the matter is pending
deems the case to be outside its scope of jurisdiction due to involvement of a substantial
question of law which is outside its purview. It may request the higher judiciary to
transfer the case.
 Lack of complete jurisdiction: In certain cases, the court has limited jurisdiction over
the subject matter of the case before it. In such cases of shared or limited juridical issues,
the court trying the case has the liberty of transferring the case to the court which
possesses the conclusive jurisdiction of trying the matter. This process ensures that
complete justice has been done to the parties before the court.
 Differences between the party and the judicial officer: In circumstances where there is
already a presence of differences between the judicial officer and any of the party the
chances of an unfair and partial trial being carried out are relatively higher. Therefore, the
party apprehending such consequences of carrying on of the trial is granted the
opportunity by the judicial system to apply for transfer of the case.
 Infringement of principles of natural justice: Where the proof of continued
contravention of the principles of natural justice by any court or judicial officer is
rendered by a party to the Supreme Court, then in order to uphold the principles of
natural justice, the court may order the transfer of the case.
The very purpose of Criminal law is the free and fair dispersal of justice which is not influenced
by any extraneous considerations. Section 407 of the Code of Criminal Procedures enables the
party to seek for transfer of case anywhere within the state while Section 406 of the Code
enables the party to seek transfer of the case anywhere in the country.
Transfer of cases and appeals by HC
Section 407 of the Code of Criminal Procedure empowers the High Courts to transfer cases and
appeals.
Circumstances in which HC may order the transfer of a case or appeal
The High Court has the authority to transfer the cases when it is satisfied that:
 The right to a fair and impartial trial which is guaranteed under Article 21 of the Indian
Constitution can not be exercised by any of the party to the suit if the case is tried by any
of the courts which is subordinate to it;
 Certain questions pertaining to the present matter in the court are of unusual difficulty;
 The transfer of the appeal or the case is made inevitable by any of the provisions under
the Code;
 The order of transfer will be in the interest of the general convenience of the parties or
witnesses involved in the suit.
Orders that the High Court can pass
The High Court on being satisfied with the presence of the above-mentioned grounds can order
any of the following:
 The offence which is inquired into or tried by any Court subordinate to it be inquired by
any other court which is inclusively under both Section 177 and Section 185 of the Code
is not qualified but is otherwise competent to inquire into or try offences like the ones
which are in question;
 Where a particular case or appeal is pending before any criminal court which is
subordinate to it to any other criminal court which is having equal or superior jurisdiction
in comparison to the High Court;
 The particular case be laid down before the court of Sessions for hearing;
 The particular case or appeal be laid down before the High Court itself.
At whose instance the powers of transfer are exercised
The High Court exercises its power of transfer of cases at the following instances:
 When the lower court submits the report for transfer of an appeal or case to the High
Court;
 Where the interested party lays before the High Court, an application requesting the
transfer of a case or appeal;
 The High Court in its own discretion can transfer a case or appeal if it is satisfied with the
fact that it would be in the best interest of the parties to the suit.
However, the High Court while transferring a case must be mindful of the fact that no application
of transfer of the case from one criminal court to another is made in the same sessions division
unless an application for the transfer of the case has been made to the sessions court and the
same has been rejected by him.
Procedure to be followed
Subsection 3 to Subsection 5 of Section 407 of the Code of Criminal Procedure lays down the
procedure which has to be followed by the person who is making the application for the transfer
of appeals and cases by him.
 Subsection 3 of Section 407 of the Code provides that the application for the transfer of
cases to the High Court by the applicant shall be made by motion which shall be
supported by an affidavit or affirmation, except in the case where the applicant is the
Advocate General of the State;
 Subsection 4 of Section 407 of the Code provides that where the application for the
transfer of a case or an appeal is made by an accused person, the High Court has the
authority to direct him to execute a bond with or without surety for the payment of any
compensation which may be ordered to him by the court;
 Subsection 5 of Section 407 of the Code provides that every person who makes an
application for the transfer shall give to the public prosecutor in writing, a notice to notify
his intention for making such an application. The notice should be accompanied by the
grounds on which the application is made. This Section also instructs the Courts not to
make any order on the merits of the application so submitted by the person, unless at least
a time period of twenty-four hours has elapsed between the making of such a notice and
hearing of the application.
Stay of proceeding to the subordinate court
Subsection 6 of Section 407 of the Code contains provisions relating to the stay of proceedings
which are going on in any subordinate court. The provision states that where the application for
the transfer of cases from any subordinate court is lying before the High Court. The High Court,
may if it deems fit in the interest of justice, stay the proceedings in the subordinate court on such
terms which it finds appropriate. However, if such an order is made by the High Court, it should
not have any impact on the sessions court’s power to remand which is guaranteed to it by Section
309 of the Code.
Where the application is dismissed by the High Court
Subsection 7 of Section 407 of the Code contains provisions regarding the cases where the High
Court dismisses the application made to it under subsection 2 of Section 407 of the Code. If the
High Court finds that the application for the transfer of appeal or case was vexatious and
frivolous, it may order the applicant to pay a compensation of an amount not exceeding one
thousand rupees to any person who had opposed the application made by the applicant. The court
in such cases decided the compensation keeping in view, the facts and circumstances of the case.
Saving
Subsection 9 of Section 407 of the Code is the saving clause and it provides that nothing
contained under Section 407 of the Code shall have any effect on the orders which are passed by
the Government of India under Section 197 of the Code which prevents the courts from taking
cognizance of any case which involves the criminal charges against any public servant unless a
previous sanction has been obtained by the court from the competent authorities.
Transfer of cases and appeals by the sessions judge
The Sessions judges are also conferred with the power to transfer cases and appeals by the Code
under Section 408.
 Subsection 1 of Section 408 provides that whenever a Sessions Judge finds it expedient to
transfer a case to meet the ends of justice. He has the authority of transferring such cases
from one criminal court to another criminal court within his sessions division;
 Subsection 2 of Section 408 provides the instances on which the Sessions court can
transfer the cases. The Section provides that the authority to transfer the cases with the
Sessions Court can be exercised by it at the instance of the report in this regard submitted
to it by the lower court, application in this regard submitted by the interested party or the
court may exercise the power at its own discretion;
 The provisions under subsections (3), (4), (5), (6), (7) and (9) of section 407 shall be
made applicable to the Sessions Judge while making any order in regards to the power
vested on it by Subsection 1 of Section 408 in the same way as they are made applicable
to the High Court while it exercises the provisions mentioned under subsection 1 of
Section 407 of the Code.
Withdrawal of cases and appeals by Sessions Judges
Section 409 of the Code of Criminal Procedure contains provisions regarding the power of the
Sessions Court to withdraw the cases and appeals.
 Subsection 1 of Section 409 provides that the Sessions Judge, not only has the power to
withdraw any case or appeal but also has the power to recall any case or appeal which he
had earlier transferred to any Additional Sessions Judge or Chief Judicial Magistrate who
is subordinate to him;
 Subsection 2 of Section 409 provides that the power of recalling the cases by the Sessions
Judge from any Additional Sessions Judge can be exercised by him at any time before the
commencement of the trial of the case or hearing of the appeal before the court of
Additional Sessions Judge;
 Subsection 3 of Section 409 provides the course of action which can be followed by the
Sessions Court if it exercises the power vested on it by Subsection 1 and 2 of Section
409. Accordingly, after the recall of an appeal is made by the Sessions Judge, he may
either try the case or hear the appeal on his own, or again transfer the case or the appeal
to some other court in accordance with the provisions of the Code.
In Surendra Kumar vs Vijayan, the court held that the authority of transferring such cases from
one criminal court to another criminal court within his sessions division conferred on the
Sessions Judge by Section 408(1) of the Code is an independent judicial power and is not subject
to any bar provided under Subsection 2 of Section 409.
Withdrawal of cases by Judicial Magistrates
Section 410 of the Code of Criminal Procedure contains provisions regarding the withdrawal of
cases by Judicial Magistrate. According to the Section:
 Subsection 1 of Section 410 of the Code grants the powers to the Chief Judicial
Magistrate to transfer any case from any Magistrate subordinate to him as well as the
power to recall any case which he had earlier transferred to any Magistrate subordinate to
him. When the Chief Judicial Magistrate recalls a case, he has the authority to himself
hear and try such case or he may refer the case to any other Magistrate who is competent
to hear and try the case;
 Any Judicial Magistrate has the authority to recall any case which he had transferred to
any other Magistrate under Section 192 of the Code and may inquire into the case on his
own.
Making over or withdrawal of cases by Executive Magistrates
Section 411 of the Code contains provisions about the withdrawal of cases by the Executive
Magistrate. The Section provides that any District Magistrate or Sub-divisional Magistrate has
the authority to:
 Withdraw any proceedings which started before the court to any Magistrate who is
subordinate to it for the disposal of the case;
 Withdraw or recall any case which he had earlier transferred to any Magistrate
subordinate to it and dispose of the proceedings of the case himself or refer the same for
disposal to any other competent magistrate.
Conclusion
Transfer of cases does not alter the nature of the trial or relief which is provided to the parties to
the suit. It is a mechanism ensuring the parties are rendered justice. The authority of transferring
of criminal cases from one court to another is conferred upon Supreme Court, the High Court
and the Sessions Court. However, the powers with each of the institute differ. If the party to the
suit enforces their rights guaranteed to them under the Sections and it is found that the intention
of the party is vexatious then the courts have the discretion of ordering compensation to be paid
by such person to the person who has opposed it. The sum of compensation that the court may
order differs from courts to courts. Cases can be recalled or withdrawn by the Sessions Judge,
Judicial Magistrate and Executive Magistrate. The order made under these sections has to be
recorded with the reasons for making these orders. There should be reasonable apprehension that
justice would not be met by the court under jurisdiction then only the case can be transferred.
Bail provisions under the Code of Criminal Procedure (436-450)
Introduction
Article 21 of the Constitution of India guarantees the protection of life and personal liberty to all
persons. It guarantees the fundamental right to live with human dignity and personal liberty,
which in turn gives us the right to ask for bail when arrested by any law enforcement authority.
The provision of anticipatory bail under Section 438 was introduced in the Code of Criminal
Procedure in 1973 (hereinafter referred to as CrPC or Criminal Procedure Code). It is based on
the recommendation of the Law Commission of India, which in its 41st report, recommended the
incorporation of a provision of anticipatory bail. The report stated that “The necessity for
granting anticipatory bail arises mainly because sometimes influential persons try to implicate
their rivals in false cases for the purpose of disgracing them or for other purposes by getting
them detained in jail. Apart from false cases, where there are reasonable grounds for holding that
a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on
bail, there seems no justification to require him to first to submit to custody, remain in prison for
some days and then apply for bail.”

The ‘Bail’ provision, especially anticipatory bail, is based on the legal principle of “presumption
of innocence” i.e. every person accused of any crime is considered innocent until proven guilty.
This is a fundamental principle mentioned in the Universal Declaration of Human
Rights under Article 11.
Meaning of bail
‘Bail’ connotes the process of procuring the release of an accused charged with certain offences
by ensuring his future attendance in the court for trial and compelling him to remain within the
jurisdiction of the court.
Definition of bail, as per the Black’s Law Dictionary is that bail is – “the security required by a
court for the release of a prisoner who must appear at a future time.” The objective of arrest is to
deliver justice by presenting the accused before the Court. However, if the same objective can be
achieved without making any arrest then there is no need to violate his liberty. That’s why bail
can be granted to the accused person for conditional release.
Legal position of bail
The term ‘Bail’ has not been defined under the Criminal Procedure Code, 1973. Only the term
‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a) of Cr. PC.
The provisions relating to bail and bail bonds are mentioned under Section 436-450 of the
Criminal Procedure Code.
Categories of bail
For the purpose of bail, offences are classified into bailable and non-bailable offences which are
discussed below :
Bailable offences
According to Section 2(a) of CrPC bailable offence means an offence that is classified as bailable
in the First Schedule of the Code, or which is classified as bailable under any other law. An
accused can claim bail as a matter of right if he is accused of committing a bailable offence. The
police officer or any other authority has no right to reject the bail if the accused is ready to
furnish bail. Under Section 436 of CrPC 1973, a person accused of a bailable offence at any time
while under arrest without a warrant and at any stage of the proceedings has the right to be
released on bail.

Non-bailable offences
A non-bailable offence is defined as any offence which is not a bailable offence. A person
accused of a non-bailable offence cannot claim bail as a right. A person accused of non-bailable
offences can be granted bail provided the accused does not qualify the following conditions:
 There are reasonable grounds to believe that he has committed an offence punishable
with death penalty or life imprisonment.
 That the accused has committed a cognizable offence and he had been previously
convicted of an offence punishable with death, imprisonment for life or imprisonment of
seven years or more or if the accused been convicted on two or more instances of a
cognizable and non-bailable offence.
There are exceptional cases in which law gives special consideration in favour of cases where the
accused is a minor, a woman, a sick person etc. [Section 437(1) CrPC].
Different types of bail
Regular bail
Via this, the court orders the release of a person who is under arrest, from police custody after
paying the amount as bail money. An accused can apply for regular bail under Section
437 and 439 of CrPC.
Interim bail
This is a direct order by the court to provide temporary and short term bail to the accused until
his regular or anticipatory bail application is pending before the court. The Supreme Court
noticed the misuse of interim bail by the accused in Rukmani Mahato vs. the State of Jharkhand.
Anticipatory bail
This is a direct order of Sessions or High Court to provide pre-arrest bail to an accused of a
crime. When the person has an apprehension of being arrested, the person can apply for
anticipatory bail. Sometimes, an application for anticipatory bail may go against the person, as it
might alert an investigation agency regarding the involvement of that person in a crime.
Important factors to be considered while granting anticipatory bail in India
Based on Section 438(1) of CrPC, the Supreme Court has enumerated a detailed and exhaustive
list of considerations while deciding anticipatory bail. They are as follows:-
 Gravity of crime and role of accused must be understood before the arrest.
 Previous record of accused, any imprisonment on conviction in respect of non bailable
offence, should be checked.
 Possibility that applicant will flee from justice.
 Chances of repetition of similar or other offences.
 Intention behind accusation is whether to injure or humiliate the applicant by arresting
him or her.
 Consider the exact role of the accused.
 Reasonable apprehension of tampering with evidence, witnesses and threatening the
complainant.
Standard conditions while granting anticipatory bail
 Accused should present himself / herself for interrogation by the investigation office as
and when asked to appear.
 Accused should not directly or indirectly try to induce, threaten, or promise to any person
related to the case who knows the facts of the case, so that he can be dissuaded from
disclosing the fact to the court or investigation officer.
 Accused should not leave the country with prior permission of the court.
 Any other condition which the honourable court deems fit.
Cancellation of bail
Under Section 437(5) of CrPC, the court which has granted bail can cancel it, if found necessary
under certain conditions. Per Section 439(2), the Sessions Court, High Court, or Supreme Court
can, suo moto, cancel the bail granted to the accused and transfer the accused to custody.
Per Section 389(2), an appellate court can also cancel the bail of the accused and order the
accused to be arrested and sent to custody.
Latest case laws
1. Re: Digendra Sarkar – Under Section 438 of the CrPC, the application for anticipatory bail
applied even before the First Information Report is registered. So, First Information Report
cannot be a condition precedent to applying for anticipatory bail.
2. Suresh Vasudeva vs. State – Section 438(1) applies only to non-bailable offences.
3. Sushila Agarwal vs. State – Supreme Court held that anticipatory bail should not be for a fixed
period, but it is open to the court to limit the tenure of anticipatory bail if any special condition
necessitates the same.
4. Gurbaksha Singh Sibbia and others vs.the State of Punjab – the Supreme Court opined :
 There are no provisions in the CrPC regarding time boundness of granting pre – arrest
anticipatory bail.
 The concerned court has the discretion to impose conditions for grant of anticipatory bail
including a limited period of protection etc., subject to considering any special
circumstances required.
Anticipatory bail as a fundamental right
Under the Constitution of India, every person has a fundamental right to life and personal liberty.
Article 21 is enshrined in our Constitution. The objective of this article is not to deprive any
person of his life or personal liberty except as per the procedure established by law. As a person
can not prepare their case for trial from behind the bars, so the provision of bail in law is
provided, to give a fair chance to fight their case with all possible measures. Apart from that
since an accused is considered innocent until proven guilty, incarceration in any form brings
disrepute to the person and restricts him from going about his daily affairs. Hence to avoid such
hardships, a person is provided with the remedy to apply for anticipatory bail.
Clause 4 was added to Section 438, through the Criminal Amendment Bill, 2018. The legislature
inserted four clauses under Section 438. According to the amendment, anticipatory bail cannot be
granted to a person accused of the offence of committing rape on a woman aged under 16years,
under 12 years, gang rape on a woman aged under 16 years of age and gang rape of a woman
under 12 years of age, punishable under Section 376(3), 376 AB, 376 DA and 376
DB respectively under the Indian Penal Code (Punishment of rape) 1860.
Rape is a heinous crime and there should be strict provisions under law to punish the convict.
However, there is a difference between an accused and being proclaimed a convict. There are
high chances of an accused being acquitted after a trial and hence denying the right of bail
entirely goes against the spirit of justice. Rape is a serious crime but nowadays people go to any
level to defame a person to take revenge on them, therefore the instances of filing false cases of
rape are also increasing. Hence, this amendment unjustly restricts the right to get anticipatory
bail.
Conclusion
The objective behind enacting Section 438 is to safeguard the liberty of a person. The need for
anticipatory bail arises mainly when any person has reason to believe that he may be arrested on
an accusation of having committed a non-bailable offence. Anticipatory bail is concerned with
the liberty of a person and presumes their innocence. It was held in the case of Gurbaksh Singh
Sibbia vs. the State of Punjab by a five-judge Supreme Court bench led by then Chief Justice Y
V Chandrachud that Section 438 (1) is to be interpreted in the light of Article 21 of the
Constitution. While Courts have time and again emphasised the need to uphold the liberty of
individuals and protect them from arbitrary arrests, one needs to remember that anticipatory bails
are not a matter of right like other types of bail.
Section 482 CrPC
Introduction
The High Courts and the Supreme Court of India are Constitutional Courts, and an individual
could approach them if any of his rights are violated. The inherent powers under Section 482 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as “The Code” or “CrPC”) are
vested only with the High Courts, this is because in criminal matters there are so many chances
of miscarriage of justice and to prevent this and give remedies to the aggrieved parties the
inherent powers are given to a more superior and experienced Court like the High Court. Section
482 of the Code is one of those remedies that the High Court provides to the aggrieved parties
that come before it. There are various types of powers like statutory power and inherent power.
The difference between the inherent powers and the statutory power is that the inherent powers
are not granted by any statute or legislation but exist by virtue of mere existence. The inherent
powers are the powers which are existing from the beginning, and they are essential and
permanent.
If an agency or a thing is said to possess inherent powers, then it means that such inherent
powers are deeply rooted in the existence of such an agency or such a thing. Inherent powers are
neither given nor granted; they just exist from the beginning. When the Court deals with any
non-liquet situations of the Code during the proceeding, the inherent powers are useful at that
time. The Code is exhaustive due to these inherent powers because if the Code fails to provide
for any specific circumstance then the High Court can fill that gap through inherent powers. For
Example: If the High Court has the inherent powers as mentioned in Section 482 of the Code of
Criminal Procedure, 1973, it means that the High Court has its inherent powers due to its mere
existence and not that such inherent powers are granted by the parliament through legislations or
by any other means.

Section 482 of the Code is very similar to Article 142 of the Indian Constitution which are the
inherent powers of the Supreme Court, this is because of its broad nature. Both the provisions,
though they are short in the text, have a wide ambit by preventing even the slightest miscarriage
of justice.
History of inherent powers of the High Court
The inherent powers of the High Court under the Code were not originally recognized during its
enactment in the year 1973. The inherent powers of the High Court were first recognized in the
Preceding Code, that is, Code of Criminal Procedure of 1898. Even the preceding Code did not
have the provision of inherent powers of the High Court from the beginning. It was added by the
Amendment Act of 1923.
Section 156 of the Code of Criminal Procedure (Amendment), Act, 1923 added a new
provision 561A in the Code, 1898, that gave the High Courts the inherent powers. Section 482 of
the Code, 1973 is the exact reiteration of Section 561A of the Code.
Section 561A was added to the Code of 1898 to enable the High Courts to render complete
justice where the illegality was overwhelming, by exercising their inherent powers. Therefore,
the inherent powers are used to secure the ends of justice. So, if the High Court exists, then the
inherent powers of that High Court will also automatically exist.
Inherent powers of the High Court under Section 482 CrPC
Section 482 of the Code is a saving clause, and it does not give any new power to the High
Court, but just declares its inherent powers. Section 482 of the Code states that nothing in the
Code can affect or limit the inherent powers of the High Court to make any order as may be
necessary-
 To give effect to any order under the Code;
 To prevent abuse by any court while processing this Code;
 To secure the ends of justice
Nothing instead of Notwithstanding
Section 482 is a saving clause which means the inherent powers in this Section were not granted
but saved, if the High Court exists, then the inherent powers also exist; nothing in the entire
Code can affect those inherent powers.
Even though Section 482 disables any provisions of the Code to affect or limit the inherent
powers of the High Court, it does not mean that Section 482 is superior to all other provisions of
the Code. This is because the Section has the word ‘nothing’ instead of ‘notwithstanding’. The
word ‘nothing’ in a provision states that the provision is a saving clause, and the word
‘notwithstanding’ in a provision states that the provision is an overriding power. So when the
word ‘notwithstanding’ is used in a Section, then that Section would have an overriding impact
on all the other provisions.
The word ‘nothing’ when used in a Section of the Code, then that Section won’t have an
overriding impact, but instead, the Section will not face any conflict from any other provision of
the Code. The application of the inherent powers under Section 482 of the Code takes place only
when all the explicit provisions of the Code do not provide express power to give an order to
give effect to any order under the Code, to prevent abuse by any court while processing this
Code, and to secure the ends of justice.
When can the inherent powers be exercised
Though the Code is said to be exhaustive, it cannot be, because as time changes the crime and
the procedure that deals with it also changes. The Code is a manifestation of Article 21 of
the Indian Constitution, 1949 which states “Right to life and personal liberty”. Thus, the life or
personal liberty of a person can be lawfully curtailed by following the procedure given in the
code, however, the concept of liberty and life is dynamic as it changes with time and thus the
Code also needs to be dynamic, this is done through the inherent powers. In cases when there are
inadequate or no provisions available in the Code regarding any order and such order is
necessary to secure the ends of justice, the High Court can then exercise its inherent powers.
Normally the High Court would adjudicate criminal cases through the help of express provisions
available in the Code, but the High Court would exercise its inherent powers in the following
cases
 If there is no provision present in the Code for any specific order;
 When there is a provision, but it is ineffective;
 When the Court has passed an order through the express provisions of the Code, but such
order is ineffective or insufficient;
 When the parties concerned are misusing the provisions of the Code
The inherent powers of the High Court are for securing the ends of justice and the exercising of
the inherent powers is the discretion of the High Court, and hence the High Court can refuse to
exercise its inherent powers if the parties approach the court with malicious intent. The whole
purpose of the Code and Section 482 which declares the inherent powers of the High Court is to
ensure the meeting of the ends of justice. The Code ensures the balance of rights between the
State and the accused, and the same is ensured by Section 482.
Section 482 and all the other provisions of the Code are complementary to each other. The
provisions of the Code won’t affect the inherent powers, and the inherent powers will not be
applied if there are any explicit provisions available to pass any order.
When the entire Code is referred to, but it could be seen that there is no power conferred by the
Parliament, and the power is now required to meet the ends of justice, then the inherent powers
would be exercised by the High Court. If the High Court by using its inherent power passes an
order that conflicts with the other provisions, then such order is not valid as Section 482 goes
hand in hand with the other provisions of the Code. Non-liquet situations are those matters that
are not clear, and hence when it is not clear to the High Court while interpreting the Code during
deciding a case, the High Court can always use the inherent powers to remove the ambiguity.
Reasons for vesting inherent powers to the High Court only
The first and foremost essential part of the inherent powers mentioned in Section 482 of the
Code is that the inherent powers are vested only in the hands of the High Court. This means that
the inherent powers can be exercised only by the Honourable High Courts of the country.
The reason behind the inherent powers available only to the High Court is that the Code deals
with criminal proceedings, therefore there is a high societal impact of any order passed for
criminal matters. Since the individual’s fundamental rights are affected, the inherent powers are
vested only with the superior and experienced court, the High Court.
When inherent powers are to be exercised
Section 482 has some objectives according to which the High Court has to use its inherent
powers to decide the cases before it. Section 482 of the Code gives the following objectives
which would guide the High Court to use its inherent powers:
 To prevent the abuse of the process of any Court;
 To secure the ends of justice; and
 To give effect to an order under the Code.
So, it is in the above three scenarios where the High Court can use its inherent powers, which
means that the High Court is not empowered to exercise its inherent powers apart from these
inherent powers.
To prevent the abuse of the process of any Court
This objective is used by the High Court while using its inherent powers when there is an abuse
by any of the subordinate courts during any of its processes. It may be possible for any Court to
abuse its power during any of its processes while adjudicating a criminal case, at that particular
point in time it is the duty of the High Court to use its inherent powers to prevent that abuse by
the Court. For example: If multiple FIRs of the same offence have been lodged against the
accused, the High Court can quash the FIRs by using its inherent powers to prevent the abuse of
the process of the Court.
In the case of Balbir Singh v. State of Orissa (1994), a person was accused of smuggling ganja in
his van, and he was prosecuted under the Narcotic Drugs and Psychotropic Substance Act,
1985 (N.D.P.S Act), and the only ground against him was a weak extra-judicial confession of a
co-accused. The High Court quashed the proceedings as it would amount to an abuse of the
process of the Court to continue such a case.
To secure the ends of justice
This objective has a very wider nature than the other two objectives, as there is no clear
definition that defines the words “ends of justice”. So whenever the High Court thinks that it has
to secure the ends of justice then it can use its inherent powers under Section 482 to secure the
ends of justice, and it is completely the High Court’s discretion to choose when it is applicable to
secure the ends of justice. While exercising its inherent powers to secure the ends of justice, the
High Court should consider Article 21 which gives the fundamental right to life and personal
liberty to the citizen, so that the fundamental right of the citizen is not violated. The Court must
be reasonable, fair, just, and equitable to secure the ends of justice.
In the case of Sulochana Devi Agarwala v. District Magistrate (1992), the Orissa High Court
held that “Ends of justice” is a wide expression. The Court further stated that securing the ends
of justice is more important than securing the ends of mere law, even though justice is
administered by laws. The considerations of securing the ends of justice differ from case to case,
and a solid formula cannot be enacted for the same purpose.
To give effect to an order under the Code.
There may be some situations where, even if there are explicit provisions available in the Code
to pass an order, the High Court could not give effect to such an order. An additional or an
ancillary order has to be passed by the High Court to give effect to the respective order. The High
Court can use its inherent powers under Section 482 to give effect to such an order. For
example: The High Court can use its inherent powers to give effect to an order under the Code
by ordering re-investigation.
The case of Sakiri Vasu v. State of Uttar Pradesh (2007), raised the issue of whether the judicial
magistrate can exercise the inherent powers declared in Section 482 of the Code. The Division
bench held that the judicial magistrate does not have inherent powers and only the High Court
can accept the application of the inherent powers, but the judicial magistrate has implied
incidental or ancillary powers. This means that the magistrate to make the previous order
effective can make an incidental order.
What are inherent powers of the High Court under Section 482 CrPC
The High Court under Section 482 of the Code possesses wide inherent power. The High Court
has used these various inherent powers in many decisions while deciding cases under Section
482 of the Code.
The inherent power to expunge remarks
The inherent power of expunging remarks is exercised by the High Court to fulfill the objective
of preventing the abuse of the process of any Court. The objectionable remarks of a subordinate
Court in its judgment can be expunged by the High Court by using its inherent powers under
Section 482 of the Code if they are not justified. Even if the matter has yet to be brought before
the High Court in a regular appeal or a regular revision, the High Court can expunge the remarks
in appropriate cases to secure the ends of justice.
The High Court will interfere and expunge remarks in the judgment of a subordinate court if
such remarks are libellous and irrelevant. As the High Court is the apex Court of the State in
exercising its criminal jurisdiction, it can exercise its inherent power to secure the ends of justice
and that power extends to expunction or ordering an expunction of irrelevant remarks.
The High Court can always exercise its inherent power to expunge remarks made against a
person who is neither a witness nor a party to the criminal proceeding. It is important to consider
that remarks which are to be expunged must be irrelevant and unjustifiable.
In the case of Raghubir Saran v. State of Bihar (1963), Justice Mudholkar and Justice Subbarao
of the Supreme Court held that when a party who has been aggrieved by the irrelevant remarks
and who wants it to be expunged must fully satisfy the Court that the respective passage is
wholly irrelevant and unjustifiable. The aggrieved person should further satisfy the Court that
such a remark would cause serious harm to him and that it won’t affect the reasons for the
judgment.
In the case of Javvadhi Sesha Rao v. State of Andhra Pradesh (1994), the Andhra Pradesh High
Court exercised its inherent powers to expunge adverse and harsh remarks made by the sessions
judge against the investigating officer by holding that such remarks were not warranted.
In the case of Sualal Yadav v. State of Rajasthan (1963), the Rajasthan High Court held that
while expressing opinions on the conduct of witnesses and parties, the judges should observe and
focus on not violating the following principles to be just, fair, and relevant. The following
principles are listed below:
 The concept of audi-alteram partem – no person should be condemned unheard;
 While passing remarks on the conduct of the parties and witnesses, the magistrate or the
Judge should not go beyond the record, meaning if some remarks are not acceptable to be
put in a record, they should be avoided;
 The criticism or the remarks passed should be made with clear-headedness or sobriety
and with a due sense of responsibility.
Thus, it is important for a judge who is making harsh remarks to comply with the above-listed
principles. In the case of Sanjay Rana v. State of Madhya Pradesh (1992), the High Court of
Madhya Pradesh by using its inherent powers expunged the remarks of a Magistrate who
condemned the conduct of a person, who was not even a witness but whose name was merely
referred by a witness and the person was not even given a chance to be heard.
Expunging remarks and independence of the Judiciary
It is important to give judges and magistrates full liberty towards their expression to safeguard
the interests of the independence of the judiciary. If a Judge or a Magistrate is expressing his
opinions on the conduct of parties or witnesses, the High Court should be very careful in
guarding the independence of the Magistrates and Judges subordinate to it, to pass such opinions.
The limitations on the remarks expressed by a Judge are as important as giving independence to
the Judge. A High Court Judge needs to express his opinions as the Sessions Judge to safeguard
the prestige of the Judiciary.
In the case of K.P. Tiwari v. State of Madhya Pradesh (1993), the Madhya Pradesh High Court
passed scathing and harsh remarks against the learned Sessions Judge while condemning his
integrity. The Supreme Court of India expunged such remarks made by the Madhya Pradesh
High Court against the Sessions Judge, as such remarks would amount to destroying the
Judiciary from within.
Limitations of the expunging powers
The inherent powers of the High Court to expunge remarks are broad, but not unlimited. The
High Court has the inherent power to expunge relevant remarks, but it cannot alter the judgment
altogether. If there is an application before the High Court to expunge remarks that are made in
any of the subordinate courts, the High Court will not matter the judgment if the remarks that are
to be expunged form an integral part of the judgment.
In the case of Raghubir Saran v. State of Bihar (1964), the Patna High Court stated a proper way
to expunge remarks of a judgment of a Subordinate Court. The High Court held that even though
the judgment of a lower Court may be wrong, or it may be even perverse, the proper way to
consider this problem is through appeal before a superior Court like the High Court and through
judicially correcting such judgment.
This can be done by the High Court exercising its inherent power under Section 482 of the Code.
But that power should be used only in the rarest of rare cases where the interest of the party
concerned would be irrevocably affected.
The inherent power of quashing criminal proceedings

The inherent powers of the High Court to safeguard the interest of justice would require the High
Court to use such inherent powers and quash a criminal proceeding. The inherent power can be
used by the High Court even at the stage where the police have just lodged an FIR.
In the case of Balwant Singh, B.K.O. Hamidpura v. Dy. Food and Supplies Controller, Amritsar
(1974), Punjab and Haryana High Court held that if there is an FIR filed but that FIR does not
prima facie constitute an offence, cognizable or non-cognizable, the continuance of the criminal
proceeding would not be in the interest of justice. So the High Court should interfere and quash
the criminal proceedings to secure the ends of justice.
Continuance of the criminal proceeding, even if the FIR does not constitute an offence either
cognizable or non-cognizable, amounts to harassment of a citizen and such harassment is not in
the interest of justice. So the High Court should exercise its inherent powers when such powers
are needed to assist a citizen to protect his rights.
The inherent power of quashing the criminal proceeding by the High Court is of wide amplitude,
but it has to be used capriciously where there is no explicit provision in the Code to quash such
criminal proceedings. The High Courts and the Supreme Court through various decisions have
given several circumstances where the High Court can exercise its inherent powers to quash the
Criminal Proceedings.
In the case of RP Kapur v. State of Punjab (1960), the High Court of Punjab and Haryana held
that the inherent powers can be exercised by the High Court to quash criminal proceedings in
appropriate cases either to prevent the abuse of the process of any Court or otherwise to secure
the ends of justice. In RP Kapur’s Case, the High Court summarized three categories of cases
where the inherent jurisdiction of the High Court under Section 482 of the Code can be exercised
to quash the criminal proceedings pending in subordinate Courts. The Court held that if the
institution or continuation of the criminal proceeding against an accused person is not in the
interest of justice or would amount to the abuse of the process of any Court, the High Court can
quash the criminal proceedings in the following cases:
 If there is a legal bar against the institution or continuance of criminal proceeding against
an accused person who is alleged to have committed the offence, the inherent powers
 exercised by the High Court in quashing such criminal proceeding is justified on the
ground that there is an explicit legal bar.
 If the First Information Report (FIR) against the accused person does not constitute the
offence that was alleged even if they were accepted in entirety and are accepted at face
value. In such cases, the High Court by using its inherent power to quash a criminal
proceeding can quash such criminal proceedings. The High Court is expected to use its
inherent jurisdiction to quash a criminal proceeding, as it would be unjust to the accused
person to continue such proceedings even if the allegations in the FIR do not constitute
an offence that was alleged.
 If the FIR against the accused person does constitute an offence that was alleged to have
been committed by the accused, but there is no evidence to prove such charge as
mentioned in the FIR or the evidence given fails to prove the charge, then the High Court
can use its inherent powers and quash such criminal proceedings.
In the case of K.S. Narayana v. Gopinathan (1981), the Madras High Court held that the High
Court must quash criminal proceedings to prevent the accused from the agony of an unnecessary
trial.
Despite the criterion mentioned in R.P. Kapur’s Case, some pre-requisite to consider while
quashing the criminal proceeding in a subordinate Court were given by the Punjab and Haryana
High Court in the case of Vinod Kumar Seth v. State of Punjab (1982). These conditions are
summarized below:
 If there is no reasonable suspicion that could disclose that there is a commission of a
cognizable offence, even if the FIR is accepted to be true;
 If the evidence or materials collected in an investigation, subsequently after the filing of
the First Information Report, further could not disclose the commission of a cognizable
offence;
 When securing the ends of justice, the proceedings are quashed as the institution of
continuation of such investigation may amount to an abuse of power by the Police.
 Even if the allegations in the FIR and the evidence or materials collected in an
investigation give rise to a suspicion of a cognizable offence, the High Court can still
quash the criminal proceedings if the investigation took place with a mala fide intention.
State of Haryana v. Bhajan Lal (1992)
The case of State of Haryana v. Bhajan Lal (1992), is a landmark case where the Supreme Court
of India laid down seven conditions where the High Court can use its inherent powers to quash
an FIR, a complaint, or criminal proceedings against an accused.
The Supreme Court, in the case of State of Haryana v. Bhajan Lal (1992), gave special
consideration to the limit in which the inherent powers are to be exercised by the High Court.
The Apex Court held that the inherent powers to quash a criminal proceeding should be used
very sparingly and in the rarest of rare cases. The main reason for laying down the conditions by
the Supreme Court on the High Courts in exercising their inherent jurisdiction is to prevent the
High Courts from arbitrarily exercising such inherent powers.
The conditions laid down in this case do not apply just to cases decided under Section 482 of the
Code, but also to cases decided under the High Court’s writ jurisdiction under Article 226 of the
Indian Constitution. The 7 conditions where the FIR, complaint, or chargesheet can be quashed
are summarized as follows:
1. When the allegations in the FIR or the complaint do not prima facie constitute any
offence or make out any case against the accused, even if the allegations made under the
FIR or the complaint are taken at their face value and are also accepted in their entirety.
2. If the allegations in the FIR along with other material or evidence associated with the FIR
do not constitute or disclose a cognizable offence that would justify an investigation
under Section 156(1) of the Code. But an order from the magistrate under Section
155(2) of the Code is an exception to this. The inherent power is applicable when the
police officer without any order from the magistrate starts investigating a cognizable
offence under Section 156(1), but the inherent powers will not affect the investigation of
a non-cognizable offence ordered by a magistrate under Section 155(2)
3. When the evidence collected in support of the undisputed allegations given in the FIR or
the complaint does not constitute or disclose any offence against the accused.
4. When the allegations in the FIR constitute or disclose only the commission of a non-
cognizable offence instead of a cognizable offence.
5. If the allegations that are made in the FIR or the complaint are so absurd and
unreasonable, it would be improbable for a prudent man to ever conclude that there could
be a ground for a criminal proceeding to take place against the accused.
6. When there is an explicit legal bar or when there is an efficacious redress available in the
provisions of the Code or any concerned act to institute or continue a criminal proceeding
against an accused person.
7. When the criminal proceeding is instituted with a mala-fide intention and when such
criminal proceeding is made with an ulterior motive to wreak vengeance on the accused
and cause him harm due to private and personal grudge.
So, the main criteria here while the High Court is using its inherent powers to quash a criminal
proceeding is that there should not be a prima facie offence constituted or disclosed against the
accused person. If the FIR or the complaint could constitute an offence against the accused, the
High Court shall not exercise its inherent powers to quash a criminal proceeding.
In the case of the State of Uttar Pradesh v. O.P. Sharma (1996), the Supreme Court stated that
the High Court committed a grave error by quashing the FIR and the criminal proceeding even
though there was a prima facie offence made out. The Supreme Court by going further set aside
the order passed by the High Court.
The inherent power of quashing of FIR
The High Court does not have the jurisdiction to invoke its inherent powers to quash an FIR if
the guidelines are not followed as prescribed by the Supreme Court of India in the case of State
of Haryana v. Bhajan Lal. The Supreme Court of India also has supervisory jurisdiction similar
to Section 482 of the Code to quash an FIR where the matters relating to a special leave petition
are defined under Articles 136 and 142 of the Indian Constitution.
It is not uncommon to see a false or an additional FIR filed against the accused. There may be
some instances where an innocent person is harassed by a false FIR due to a personal grudge
even though there has been an FIR lodged at the Police Station. The High can quash FIRs if a
subsequent FIR is lodged for the same offence. However, In the case of Tarak Dash Mukharjee
& Ors. v. State of Uttar Pradesh & Ors, a bench of Supreme Court consisting of Justice Ajay
Rastogi and Justice Abhay S Oka has held that registering multiple FIRs by the same informant
for the same set of facts and allegations, Articles 21 and 22 cannot be invoked. In the case of
Tarak Dash Mukharjee & Ors. vs. State of Uttar Pradesh & Ors (2022), there were two different
FIRs lodged against the accused. The second FIR was filed 4 years after the first one, and facts
and allegations in the second FIR were the same and against the same accused. The Supreme
Court of India quashed and set aside the second FIR, the charge sheet based on the second FIR,
and the summoning order passed by the court of Additional Chief Judicial Magistrate.
The inherent power of allowing compromise of non-compoundable offences
There are two types of offences: (i) Compoundable offences; and (ii) Non-compoundable
offences. This division is based on the possibility of compromising the offence between the
parties. Compoundable offences are those offences that could be compromised between the
parties, and non-compoundable offences are those offences that could not be compromised by
the parties. In compoundable offences, the complainant compromises with the opposite party and
agrees to take back all the charges levied upon the accused.
Compoundable offences are offences that lack moral turpitude, they do not cause a huge impact
on society and hence compromising such offences is allowed in the Indian criminal system. If an
offence is compromised between the parties, it would amount to the acquittal of the
accused. Section 320 of the Code deals with compoundable offences. The Section gives an
elaborate list of offences under Indian Penal Code, 1860, that can be compounded or
compromised. Section 320 of the Code alone deals with the compounding of offences, which
means there is no other provision that deals with the compounding or compromising of offences.
Section 320(9) prohibits compounding of any offences except as provided in Section 320 of the
Code.
As Section 320 of the Code prohibits the compounding of offences except as provided in the
Section itself, the inherent powers can be used to compromise non-compoundable offences. The
inherent powers under Section 482 of the Code could not be exercised by overriding any
provisions of the Code, and hence the inherent powers could not be exercised to compromise
non-compoundable offences.
In the case of Mohan Singh v. State of Rajasthan (1993), the accused was charged and convicted
under Section 326 of the Indian Penal Code, 1860 (Voluntarily causing grievous hurt by
dangerous weapons or means), which is a non-compoundable offence. An application under
Section 482 of the Code to invoke the High Court’s inherent jurisdiction was filed before the
Rajasthan High Court seeking permission to compromise the offence. The Rajasthan High Court
held that it could not permit the compromise of the offence, which is a non-compoundable
offence, as there is an explicit bar under Section 320(9) of the Code. But there are exceptions to
this. The High Court could exercise its inherent power to compromise non-compoundable
offences if such offences are more of a private nature, like offences arising out of matrimonial
disputes.
In the case of Daggubati Jayalakshmi v. State of Andhra Pradesh (1993), where the wife sought
permission from the Andhra High Court to compromise with her husband and draw the case
against her husband by compromising the offences under Section 498A, 323, 494, 109 of the
Indian Penal Code, 1860. The Andhra Pradesh High Court allowed permission to compromise
the offences between the parties. The High Court in the case of Daggubati Jayalakshmi, further
stated that in exceptional cases, especially in the matrimonial cases, the High Court may grant
permission to the parties to compromise a non-compoundable offence along with other
compoundable offences. As the matrimonial cases are private and have less impact on society,
the High Court allows the parties to compromise non-compoundable offences in such matters.
In Inspector of Police, CBI v. B. Raja Gopal (2002), the High Court held that if the case was in
the penultimate stage and when there was a trial in progress, the High Court could not quash the
criminal proceedings against the accused. The proceedings could not be quashed even if the
parties compromised and the accused paid back the money which was defrauded from a bank.
The case of State of Madhya Pradesh v. Laxmi Narayan (2019), is a landmark judgment from the
Supreme Court of India which laid down a few guidelines on the High Court while invoking its
inherent jurisdiction in permitting the parties to compromise non-compoundable offences. The
guidelines are summarized as follows:
 The High Court has to consider whether the crime committed is against society or an
individual. The High Court should not use its inherent power to allow the parties to
compromise offences that have a great impact on society. Offences like Rape, Murder,
Dacoity, etc., should never be allowed to compromise.
 The High Court should consider whether the offence is civil in nature or criminal in
nature. If the offences primarily arise out of marital disputes, commercial disputes, or
family disputes where the parties have compromised between themselves, the High Court
should quash such proceedings by using its inherent powers.
 The High Court should not quash criminal proceedings if the parties are trying to
compromise more serious or heinous crimes. For example: If the offence is an attempt to
murder under Section 307 of the Indian Penal Code, the High Court has to consider the
seriousness of the injury or the type of weapon used during the attack. While granting
 permission to the parties to compromise non-compoundable offences, the High Court
should refrain from quashing criminal proceedings of severe and heinous crimes.
 Even if the offence committed is of a private nature without impacting the society at
large, the High Court should consider the conduct and antecedent of the accused; whether
the accused tried to abscond or how the accused managed to get into a compromise with
the complainant, etc.
 If the offences that are sought to be compounded is an offence that falls under a special
statute like the Prevention of Corruption Act, (1988), the Arms Act, (1959), the Schedule
Caste and the Scheduled Tribes (Prevention of Atrocities Act), 1989, etc, the High should
refrain from quashing criminal proceedings of such offences.
There is an exception to the last guideline. In the case of Ram Avtar v. State of Madhya Pradesh
(2021), the accused was charged and convicted under the Schedule Caste and the Scheduled
Tribes (Prevention of Atrocities Act), 1989 read with Section 34 of the Indian Penal Code for
making slur remarks on the accused caste. The appellant challenged before the High Court, but
the High Court dismissed the plea.
The appellant submitted the matter before the Supreme Court, stating that the parties had settled
the matter. The question arose as to whether permission could be given to the parties to
compromise an offence that is an offence under a special statute like the Schedule Caste and the
Scheduled Tribes (Prevention of Atrocities Act), 1989.
The Supreme Court of India held that the mere fact that the offence falls under a special statute
does not refrain the High Court from using its inherent power under Section 482 of the Code to
grant permission to the parties to compromise a non-compoundable offence.
The inherent power of directing investigation
Under appropriate circumstances, the High Court can use its inherent powers under Section 482
of the Code to direct further investigation or even reinvestigation. Section 173(8) of the Code,
which deals with a further investigation that should be forwarded to the magistrate, does not
affect the High Court’s inherent powers under Section 482 of the Code.
In the case of Devendra Nath Singh v. State of Bihar & Ors (2022), the Supreme Court held that
though the basic power to direct further investigation is provided in Section 173(8), the High
Court can direct further investigation or even reinvestigation if the High Court feels that the
investigation is not going in the proper direction or to secure the ends of justice.
The inherent power of quashing complaints.
The High Court has the inherent power to quash complaints under Section 482 of the Code. The
guidelines prescribed for the quashing of FIR in the case of the State of Haryana v. Bhajan
Lal also apply to the quashing of complaints. The High Court should follow the guidelines
mentioned in the case while quashing complaints.
In the case of G. Sagar Suri v. State of Uttar Pradesh (2000), the Supreme Court held that when
there is already a complaint against the accused, then there can be no second complaint to
prosecute the accused and the same can be quashed. There was a complaint under Section 138 of
the Negotiable Instruments Act, 1881 against the accused, and a complaint under
Sections 406 and 420 of the IPC was placed against the accused. The Supreme Court held that
the second complaint is liable to be quashed under Section 482 of the Code.
The inherent power to grant cost to meet litigation
The High Court can grant cost to meet litigation by exercising its inherent powers under Section
482 of the Code in appropriate cases. The High Court’s inherent power to grant cost to meet
litigation is extraordinary, and this extraordinary power should be used in extraordinary
circumstances and in a judicious manner. This inherent power is used by the High Court to
secure the ends of justice.
In the case of Mary Angle v. State of Tamil Nadu (1999), six persons were accused under the
Prohibition of Dowry Act as they demanded dowry from the complainant, the accused
approached the High Court to quash their criminal proceedings under Section 482 of the Code,
the High Court dismissed the petition and ordered to grant Rs.10000 from each of the accused to
the complainant as the accused have dragged the case for more than eight years. The Supreme
Court of India confirmed that the High Court has the power to grant cost to meet litigation under
Section 482 to secure the ends of justice.
Other inherent powers of the High Court under Section 482 CrPC
Other inherent powers of the High Court under Section 482 of the Code of Criminal Procedure
include quashing the chargesheet, passing directions to register the case, and quashing any order
passed by the subordinate Courts. The inherent powers of the High Court cannot be used to
interfere with the investigation by the police and to prevent the arrest of an accused during the
time of investigation. This rule was introduced in the case of Ram Lal Yadav v. State of Uttar
Pradesh (1989).
General principles governing inherent power of High Courts
Certain general principles govern the inherent powers of the High Court under Section 482 of the
Code and in the landmark case of Parbat Bhai Ahir v. State of Gujarat (2017), the Supreme
Court set ten principles regarding the inherent powers of the High Court:
1. The Section 482 of the Code does not provide any new powers to the High Court, the
provision just recognizes and preserves the High Court’s inherent powers. The inherent
powers can be used, to give effect to any order under the Code, to secure the ends of
justice, and to prevent an abuse of the process of any subordinate court.
2. In matters of compounding a compoundable offence, Section 320 of the Code governs the
Court to do so, but Section 482 is exercised to compound non-compoundable offences.
The quashing of the FIR or a criminal proceeding on the ground that there is a settlement
between the parties is different for compoundable and non-compoundable offences.
 3. The High Court while exercising its inherent powers to quash a criminal proceeding or
complaint should exercise by evaluating whether the ends of justice would justify such a
quash.
4. Though the inherent powers have a wide ambit, they are to be exercised; (i) to secure the
ends of justice or (ii) to prevent an abuse of the process of any Court.
5. The quashing of a complaint or an FIR on the ground that the parties have settled the
dispute should be solely based on facts and circumstances of the case, and no elaboration
of principles can be formulated.
6. The inherent powers while quashing a criminal proceeding because the parties settled the
dispute, the High Court should give due regard to the nature and gravity of the offence.
More heinous offenses like murder, rape, and dacoity should not be quashed as they are
not private but have a huge impact on the society.
7. The inherent power, to quash criminal cases which has a predominant element of a civil
dispute, stands in a distinct way as compared to the quashing of criminal cases with
serious offences.
8. The inherent powers while quashing a criminal proceeding because the parties settled the
dispute include all the offences which have essential civil nature, like commercial,
financial, mercantile, and partnership-related offences.
9. In the above case, the High Court may quash the criminal proceeding on the ground of
settlement between the parties, as the continuation of a criminal proceeding would cause
oppression.
10. The High Court can decline to quash the criminal proceedings based on the principles
under (8) and (9) by a mere compromise between the parties if the accused is involved in
any financial or economic fraud.
Sections 482 and 397 CrPC
As discussed above the inherent powers under Section 482 of the Code should be sparingly used
when there are no explicit provisions in the Code, and also the powers under Section 482 shall
not be used when there is an explicit bar as the Section is not an overriding provision but a
saving clause.
Section 397 of the Code calls for the High Court and the Sessions Judge to exercise their
revisionary jurisdiction. The power of revision can be used by the High Court or the Court of
Session for proceedings in any inferior court within their jurisdiction.
During such examination, the High Court or the Sessions Judge may direct an execution or
suspension of any sentence or an order, or if the accused is in confinement he can be released on
bail. The Section further states that the revision power is not exercisable for interlocutory order
in any appeal, trial, or other proceeding.
If the revision application is filed in the High Court or a Sessions Court, no further application
shall be accepted by the other Court. Ex: If the High Court receives an application from a person
under Section 397, no further application shall be entertained by the Sessions Court from the
same person.
Normally, if there is an explicit remedy available through a revision under Section 397, then the
inherent powers could not be used. In the case of Gajendra Singh v. State of Rajasthan (1994),
the Rajasthan High Court held that proceedings initiated under Section 482 are not maintainable
if there is an alternate remedy available under which a revision can be filed under Section 397 of
the Code.
The bar on inherent jurisdiction is available when there is an alternative remedy available under
Section 397(1) of the Code, however, there is no bar on the inherent powers is not applicable as
there is a bar under Section 397(2). The bar under Section 397(2) is only against the revisionary
jurisdiction of the High Court, and not to the inherent powers of the High Court.
In the case of Devendra Dutt v. State, 1989 CrLJ 177 (Del), the inherent power is not repelled by
Section 397 of the Code through overlapping and revisional powers. The inherent powers of the
High Court under Section 482 of the Code are not affected by the revisional power.
Even though Section 397(2) provided an explicit bar that no revision would lie in the matters of
an interlocutory order, Section 397 does not bar the inherent jurisdiction of the High Court. In
the case of Ram Prakash v. State of Himachal Pradesh (1978), the Himachal Pradesh High Court
held that interlocutory order can be revised by the High Court by exercising the inherent powers
in cases where there is a miscarriage of justice or illegal exercise of jurisdiction. In the case
where a Sessions Judge passed an order on an application made by a person under Section 397 of
the Code, the High Court even suo moto was prohibited from revising that order in favor of the
person who made the application. The inherent powers of the High Court shall not be exercised
to override the provisions under Section 397(3) of the Code. As there is an express bar for further
proceedings by the same person in the High Court.
Section 482 CrPC and speedy trial
Section 482 of the Code along with Article 21 of the Indian Constitution insists on speedy trial in
matters of criminal proceedings. As delays in criminal proceedings are an injustice to the
accused, and the inherent powers are to be used to meet ends of justice, the inherent powers
under Section 482 should be exercised for a speedy trial.
In the case of A.R. Antulay v. R.S. Nayak (1992), the Supreme Court of India held that every
delay in the proceedings does not amount to harm to the accused’s rights. Inordinate long delay
results in a presumption that the accused’s fundamental right is infringed. If the right to speedy
trial of an accused is infringed, then the proceedings pending against him should be quashed. The
Apex Court held in the case that Section 482 of the Code is an adequate remedy for the speedy
trial.
In the case of Madan Mohan Saxena v. State of UP (2022), where there was an unexplained
delay of 18 years of criminal proceedings for the offence of theft of electricity under
the Electricity Act, 2004, and the fundamental right to speedy trial of the accused is also
infringed. The Allahabad High Court quashed the criminal proceedings against the accused to
secure the ends of justice, as the continuance of the proceedings against the accused is
unwarranted.
In the case of Akhtar Ali v. State of Uttar Pradesh (1994), the Allahabad High Court quashed the
criminal proceedings against the accused, who was facing trial for Criminal Breach of Trust for
more than 21 years. The High Court stated that it was a clear violation of Article 21 of the Indian
Constitution and that further delay in proceedings would be unjust to the accused, and hence the
criminal proceedings were quashed.
Comparison between Section 482 CrPC and Article 226 of the Indian Constitution
Article 226 of the Indian Constitution and Section 482 of the Code both are used by the High
Courts to ensure justice for individuals. Section 482 of the Code recognizes the inherent powers
of the High Court, whereas Article 226 gives the High Court the power to exercise writ
jurisdiction or to pass any order to ensure justice. Article 226 of the Indian Constitution has a
wider scope than that of Section 482 of the Code
Article 226 of the Indian Constitution is used by the High Court to enforce any fundamental
rights or to give remedy to the individual for the violation of his fundamental rights and legal
rights. Section 482 of the Code is used to pass an order to meet the ends of justice, to give effect
to any order under the code, and to prevent the abuse of the process of any court.
The power to issue writs for the enforcement of fundamental rights by the High Court under
Article 226 of the Indian Constitution is not limited to any particular law, Article 226 can be used
against any type of law, whereas the High Court can invoke the inherent jurisdiction under
Section 482 only related to the provisions of the Code of Criminal Procedure.
The inherent powers of the High Court under Section 482 of the Code can be exercised only
when there are no other remedies available in the Code. The power to issue writs under Article
226 should be invoked by the High Court only when there is no alternative remedy available. If
the petitioner has any other remedy available, including the inherent powers, the writ petition
under Article 226 will not be imposed. Hence, when a litigant has the option of both Section 482
of the Code and Article 226 of the Indian Constitution, the litigant should choose to seek remedy
from the inherent powers of the High Court under Section 482 CrPC.
Inherent powers in the Code of Civil Procedure
Code of Civil Procedure, 1908 (CPC) also have a saving clause that declares the inherent powers
of the Court. Section 151 of the CPC defines and saves the inherent powers of the High Court.
The objectives as to when the Court can exercise its inherent powers under Section 151 of the
CPC are the same as given in Section 482 of the Code:
 To prevent the abuse of the process of any Court;
 To secure the ends of justice; and
  To give effect to an order under the Code.
The difference between the inherent powers under Section 151 of the Code of Civil Procedure
and the inherent powers under Section 482 of the Code is the Court which exercises such
inherent powers. Unlike in the Code where the High Court alone possesses the inherent powers,
the inherent powers in the CPC are available to any Court. So any Court irrespective of its
hierarchy can use its inherent powers under Section 151 of the CPC to uphold the above-listed
objectives.
The reason behind inherent powers under Section 482 of the Code are available only to the High
Court is because cases with a criminal background have more impact on society than cases with
a civil background. Thus, a more superior and experienced Court like the High Court needs to
interfere in criminal matters where its inherent powers are used.
Limitations of the inherent powers
The inherent powers of the High Court under Section 482 of the Code are very broad but are not
unlimited. There are certain limitations to the inherent powers of the High Court, which are listed
below:
 Inherent powers under Section 482 can only be exercised in cases when no other legal
remedy is available in the whole Code. If the Court could grant remedy from any other
provisions of the Code, the inherent powers under Section 482 could not be invoked.
 The Court will never act as an investigating authority in any situation while exercising its
inherent powers under Section 482 of the Code.
 The Court could not conduct a mini-trial while exercising the inherent jurisdiction under
Section 482 of the Code. As preventing the abuse of the process of any court is an
objective of Section 482, the High Court would not act arbitrarily and would never cut
down the normal procedures of trial from a trial Court.
 The Parliament cannot add any new or specific powers to the inherent powers. As the
inherent powers are not granted, and they are vested in the High Court, it is not possible
to add any new inherent powers.
Landmark cases on Section 482 CrPC
Mohd Umair vs. The State (N.C.T.) Delhi & Ors (2021)
Facts of the Case:
The facts of the case are as follows, the complaint was asked by his neighbour to deliver some
items to his house. On the way to the house of his neighbour, the complainant saw that the
accused was arguing with the complainant’s mother, and the complainant urged the accused to
stop arguing with his mother, but there arose a conflict between the accused and the complainant,
and it is stated that the complainant slapped the accused and when the crowd gathered the
accused left the place. After some time, the accused stabbed the complainant as he was
embarrassed about getting slapped by the complainant. An FIR was registered against the
accused, and he was charged with an attempt to murder under Section 307 of the Indian Penal
Code. The accused was released on bail. A petition was filed before the High Court to invoke the
inherent jurisdiction of the High Court under Section 482 of the Code to quash the criminal
proceeding against the accused.
Issues raised in this case:
The main issue was whether the High Court has the inherent power to quash the criminal
proceeding of a more serious offence like an attempt to murder (Section 307 I.P.C) if the parties
have compromised the offence.
Judgment of the case
The High Court of Delhi held that the criminal proceedings against the accused could be quashed
if the parties had entered into a compromise, even if the offence was a more serious offence like
an attempt to murder. The High Court considered the fact that the accused was just 21 years old,
and he had his whole life before him. Since both the accused and the complainant live in the
same area, a compromise would be better. The High Court further stated that though the High
Court should refrain from allowing the parties to compromise a more serious offence like an
attempt to murder, the Court should act in a just way so that the accused could prevent
unnecessary proceedings. The High Court quashed the criminal proceedings against the accused
by levying a fine of Rs. 1 Lakh and one month of community service at Gurudwara Bangla
Sahib.
Central Bureau of Investigation vs. Aryan Singh (2023)
Facts of the Case:
The facts of the case are as follows: Aryan Singh and another filed a discharge petition before the
trial court, but the petition was dismissed based on merits. Hence, aggrieved by the order, the
accused applied to the Punjab and Haryana High Court and the High Court quashed the criminal
proceedings along with all the subsequent proceedings. The case was transferred to CBI, and the
CBI submitted that initially the name of Aryan Singh was not named in the fresh FIR, but after
the investigation a charge sheet was filed against Aryan Singh, and he is one of the accused
involved in the offence, so they filed an appeal before the Supreme Court of India against the
order passed by the High Court.
The High Court, while quashing the criminal proceedings and all the other subsequent
proceedings arising out of the same, observed that the investigation against the accused is
malicious and that the charges are not proved against the accused. The petitioner’s (C.B.I) main
contention was that the High Court had quashed the criminal proceedings as if they were
conducting a mini-trial. Further, they claimed that the Court’s observation of the charges not
being proved is absurd as the charges are to be proved during trial procedure in the Trial Court.
The petitioner urged in the Supreme Court that the High Court has exceeded its inherent powers
under Section 482 of the Code by conducting a mini-trial.
Issues raised in this case:
In this case, the issue was whether the High Court used its inherent powers to quash a criminal
proceeding under Section 482 of the Code by conducting a mini-trial.
Judgment of the case
The Supreme Court of India held that the High Court erred in observing that the investigation is
malicious against the accused because the investigation has been passed to the CBI and the
accused has been charge-sheeted. The trial is supposed to be conducted before a trial Court and
the High Court has exceeded its inherent powers by conducting a mini-trial. The Supreme Court
set aside the order of the High Court to quash the criminal proceedings against the accused and
directed the trial Court to conduct the trial within the prescribed time limit given to it. The
appeals were accepted and the High Court’s order was set aside.
Conclusion
The inherent powers under Section 482 of the Code are a unique provision in the Indian criminal
law system. It differentiates the power of the High Court from the power of the other subordinate
courts in respect of superiority. The inherent powers of the High Court have safeguarded the
rights of so many accused persons who were longing for justice. The objectives of Section 482
are to be used, to aid the High Court in exercising the inherent powers in a more just and
reasonable way. The High Courts and the Supreme Court of India through various decisions have
crafted a series of guidelines and principles as to when the inherent powers are to be exercised.
The inherent powers of the High Court are a unique remedy available to the aggrieved party
wherein even after referring to the whole Code if the High Court could not give a specific
remedy, it can however use its inherent powers to get such remedy.