Q. 1. H strikes L on the head with a stick causing fracture of the skull. H is tried on a charge under section 325 of Indian Penal Code (voluntarily causing grievous hurt) before a Magistrate of the first class. The court allows compounding of the offence by L, and H is accordingly acquitted under section 320, Code of Criminal Procedure. L subsequently died of an injury caused by H and therefore H is placed on trial before the court of session for an offence under section 304, Indian Penal Code (culpable homicide not amounting to murder). H contends that the trial cannot proceed in view of the previous acquittal. Will H succeed?
Ans.: No, H cannot succeed.
Reasons:H has caused grievous hurt to L. He was acquitted by Magistrate of first class. At that time, the fact of L's death had not occurred. The fact of L's death brings section 300(3) into operation. According to which a person convicted of any offence constituted by an act causing consequences which together with such act, constituted a different offence from that of which, he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted. An entirely separate criminal charge is now framed and it is triable by Court of Session. Therefore, H's plea cannot succeed.
Q. 2. A, a top government functionary, accused of murder, whose underlings (subordinate officials) are the witnesses in the case, is granted bail by the Session Court on the ground that he is holding responsible position. Is it a bad judgment or not?
Ans.: Yes, prima-facie it appears to be a bad judgment.
Reasons: According to ratio of Gurbaksh Singh v. State of Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632, anticipatory bail is granted on only such grounds as the applicant shows the court that he has " reason to believe". Such belief must be founded on something tangible, which the court can examine objectively. In present case, nothing tangible is found by the Court.
Q. 3. Information is given to an officer-in-charge of a police station about the commission of a non-cognizable offence. Can the police officer after recording the information start the investigations?
Ans.: No, according to section 155 of Cr PC.
Reasons: No, in case of non-cognizable offence, police cannot take cognizance and start investigation of its own. Police will have to get direction of this effect from area Judicial Magistrate or Metropolitan Magistrate.
Q. 4. A, an indigent accused has been convicted in a trial in which he was not provided legal aid. He prays for the conviction to be set aside because he could not defend himself properly without the help of any advocate?
Ans.: Yes, the conviction of accused is liable to be set aside.
Reasons:Free and fair trial is the right of every accused section 304 Cr PC provides for making available the services of advocate to indigent accused at state's cost. It is the rule of Natural Justice that "no one should be condemned unheard". In present case, the accused did not get reasonable opportunity to defend himself the whole trial gets vitiated and his conviction is liable to be set aside.
Q. 5. A is arrested without warrant. He claims to be informed about his crime and the grounds of his arrest. Whether he should be produced before a magistrate within 24 hours of his arrest?
Ans.: Yes, according to sections 50 and 57 of Cr PC.
Reasons:Though police has power to arrest a person without warrant if he is an accused in a cognizable offence or to prevent the commission of a cognizable offence but police cannot keep anybody in its custody without producing him before the magistrate within 24 hrs. The relevant laws have been laid down in Sections 50 and 57 of Cr PC.
Q. 6. Can a woman be given bail, when there is reasonable grounds for believing that she has been guilty of an offence punishable with death or life imprisonment?
Ans.: No.
Reasons: No, gender alone is not the consideration for grant or refusal of bail.
Q. 7. Divakar lodges a complaint that his wife Devi had been defamed by the imputation of unchastity to her. Can Devi lawfully compound the offence without the consent or against the wishes of Divakar?
Ans.: Yes, only Devi can compound offence although the complaint has been filed by her husband.
Reasons: Section 320 Cr PC exhaustively deals with compounding of offences. An offence under section 500, Indian Penal Code can be compounded by the person defamed. In this case, Devi has been alleged to have been defamed. Thus only Devi, can compound offence although the complaint has been filed by her husband. The consent of husband is not necessary according to law. Therefore, she can compound the offence even against the wishes of her husband.
Q. 8. Nirmal, an accused was arrested for offence under section 302 IPC on 1st January, 2002, and remanded to judicial/police custody on 2nd January, 2002. Will the day of arrest and day of remand both have to be excluded for computing the period of 90 days of section 167 (2) Cr PC?
Ans.:Yes
Reasons:For the purpose of section 167 (2) Cr PC, the day of arrest i.e. 1st January, 2002 and the day of remand i.e. 2nd January, 2002, both have to be excluded and the 90th day shall fall on 2nd April, 2002.
Q. 9. A, files a petition in the court of Chief Judicial Magistrate regarding commission of an offence but makes no prayer for taking action against accused persons . Can this petition be treated as complaint petition?
Ans.: No, this petition cannot be treated as complaint petition-Section 2 (d) and Ahmed's case, 17 CWN 980 and Haiders case, 36 A 222.
Reasons: The relevant part of the section 2 (d) which gives the definition of a complaint, states that in a complaint petition it must be mentioned that the Magistrate should take action under this code. Thus, if the petitioner does not make a prayer in a petition filed before the Magistrate for taking action under Cr PC, 1973, the petition cannot be treated as complaint petition. The same view was taken by courts in Ahmed's case 17 CWN 980 and Haider's case 36A 222.
In the present case, A has not made a prayer in the petition, thus it is not a complaint petition.
Q. 10. A and B were performing a journey from Mumbai to Kolkata. Somewhere between Mumbai and Allahabad, an altercation took place between A and B regarding reservation of berth and A caused grievous hurt to B. Both A and b broke their journey at Allahabad and reached Kolkata court try the offence of causing grievous hurt by A to B? Give reasons in support of your answer.
Ans.: No, Kolkata Court cannot try the offence - Piram's case, 21 WR 66 Cr.
Reasons: According to section 183 Cr PC, on which this problem is based, when as offence is committed by or against a person in the course of a journey then the offence may be tried by a court through whose local jurisdiction that person passed. The facts of the present problem are based on Piram's case. In this case the court held that journey should be continuous form one terminus to another without interruption by either party and as both complainant and accused separated as Allahabad and reached Calcutta by different trains the Calcutta Court has no jurisdiction to try the offence.
Thus, it can be said that in the present problem the Kolkata Court cannot try the offence of grievous hurt caused by A to B, neither A nor B completed the journey by the same train upto Kolkata.
Q. 11. Can a court of Additional Sessions Judge take direct cognizance of an offence? If so, under what provision of law.
Ans.: An additional Session Judge may take cognizance in certain circumstances mentioned in section 193 of Cr PC.
Reasons: Section 193 of Cr PC deals with the provision of "cognizance of offences by courts of session". This section reads as follows: "Except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."
Thus, according to section 193, an Additional Sessions Judge may take cognizance directly when there is a specific provision in Cr PC in this regard or there is a specific provision in any other law that is in force.
Q. 12. After the charge is framed and the trial is in progress, can the court alter the charge?
Ans.: Yes, the court can alter the charge-Section 216(1)
Reasons: Section 216(1) of the Cr PC lays down that any court may alter or add to any charge at any time before judgment is pronounced.
In the present case, the trial is in progress, that is to say that judgment has not been pronounced. Thus, the court can alter the charge even after the charge has been framed.
Q. 13. A, is tried by a Court of Session and he is convicted. The court passes a sentence of imprisonment for two months and Rs. 200 as fine. A, wants to file an appeal in the High Court against the conviction. Advise?
Ans.: Section 376 Cr PC deals with the provision of appeal in petty cases. According to section 376 (b), an appeal is not maintainable if the Court of Session passes only or sentence of imprisonment for a term not exceeding 3 months or fine not exceeding Rs. 200 or of both.
Reasons: In the present case, the Session Judge passes the sentence of imprisonment for 2 months only and fine of only Rs. 200 against the accused A. Hence appeal will not lie against the judgment of the Session Judge. Thus, A is advised not to file appeal in the High Court as the appeal is not maintainable.
Q. 14.Can an 'anticipatory bail' be granted to a person against whom no FIR/complaint has been lodged/filed?
Ans.: Yes, it can be granted - Suresh's Case, 1978 Cr LJ 677D.
Reasons: Section 438 which deals with the provision of "anticipatory bail" in a non-bailable offence, states that "anticipatory bail" can be granted to a person which he has reasonable apprehension of arrest regarding the commission of a non-bailable offence.
This section does not use the term 'accused' but uses the term 'person'. Thus, a person can be granted 'anticipatory bail' if he has reasonable apprehension of arrest regarding a non-bailable offence even if no FIR/complaint has been lodged against him and he has not been made accused. The same view was taken by the High Court in Suresh's case 1978 Cr LJ 677 (D).
Q. 15. A is prosecuted for the offence of murder. Before the pronouncement of judgment, the public prosecutor seeks permission from the Sessions Judge for withdrawal from prosecution. Is the Session's judge bound to give consent to the Public Prosecutor for withdrawal from prosecution under section 321? Give reasons for your answer?
Ans.: No, the Sessions Judge is not bound to give consent for withdrawal from prosecution under section 21 - Sher Singh's Case, 36 CWN 16 and Supreme Court in Balwant v. State MANU/SC/0075/1977 : AIR 1977 SC 2265.
Reasons: Under section 321, the Public Prosecutor can withdraw from prosecution with the consent of the Court at any time before judgment is pronounced. It is notable that the court is not bound to give consent in all circumstances.
In Sher Singh's Case, it was held that consent by the Court is not given as a matter of course. In Balwant v. State, the Supreme Court held that the Court should be vigilant at the time of giving consent to withdrawal from prosecution.
On the basis of aforesaid discussion, it can said that in the present case the Sessions Judge is not bound to give consent to withdraw from prosecution against the accused.
Q. 16. A and B are tried by a Court for some offence. The trial Court convicted the accused A and passes a sentence which is appealable, while the Court convicting the accused B passes a sentence which is not appealable. B wants to prefer the appeal. Advise B.
Ans.: B is advised to go in appeal as the appeal is maintainable -Section 380.
Reasons: Section 380 of Cr PC deals with law relating to special right to appeal in certain cases. This section provides that when more persons than one are convicted in one trial, and an appealable order/judgment is passed in respect of any of such persons, all or any such persons convicted in such trial shall have a right to appeal. The section also states that provision of section 380 would be applicable even if there is any other provision in the Chapter of appeal inconsistent with this provision.
In the present case, the judgment of conviction of B is not appealable yet his appeal is maintainable in view of the law laid down in section 380 of Cr PC.
Q. 17. Trial of an offence is held in a wrong district, state with reasons. Whether trial is vitiated in this case or not?
Ans.: No, trial will not be vitiated unless it appears that such error has infact occasioned and a failure of justice-Section 462.
Reasons: Section 462, on which the present question is based, states that no finding of any criminal court shall be set aside merely on the ground that a trial has taken place in a wrong sessions/division/district (unless it appears that error regarding trial in wrong place has infact occasioned a failure of justice).
Thus, in the present case, the trial of an offence held in a wrong district is not vitiated (unless it is shown that error regarding trial in wrong district has in fact caused injustice to the accused.
Q. 18. In a 'summons' trial, an accused pleads guilt under section 252 Cr PC. After such pleading of guilt, the magistrate convicts the accused and does not follow the procedure under section 281 (record of examination of accused) of Cr PC. Is the conviction illegal? Give reasons and refer to the case law, if any, on this point.
Ans.: No, the conviction is not illegal-Supreme Court in Kaushalya v. State, MANU/SC/0082/1965 : AIR 1966 SC 22.
Reasons: The Supreme Court, in Kaushalya v. State, observed that section 252 of Cr PC being a special provision, overrides the general provision prescribed by section 281 and a conviction without following the provisions of section 281 is valid and legal.
In present case, the Magistrate does not follow the provision of section 281 of Cr PC and convicts the accused on his 'plea of guilt'. Thus, the conviction made by the Magistrate is not illegal.
Q. 19. A, an accused has given answers to the question put to him while recording his statement under section 313 of Cr PC. Whether the answers can be taken into consideration?
Ans.: Yes, the answer given by the accused may be taken into the consideration under section 313 Cr PC.
Reasons: Under section 313 (4), the answers given by the accused may be taken into consideration in the inquiry or trial. The answers may be put in evidence for or against him in other inquiries or trials for other offence, which such answers may tend to show he has committed.
Q. 20. In the course of investigation, N told the police officer that he saw C shooting D dead. Subsequently, at the trial of C for D's murder, N deposed that C first slapped D and then shot him dead. In cross-examination, he had said that the defence counsel wants to ask N whether in the course of investigation slapped D before shooting him. Can the question be allowed?
Ans.: No, in the case in hand, it is evident that the omission does not amount to a contradiction, therefore the question cannot be allowed.
Reasons: The explanation of section 162 states that an omission to state a fact or circumstance in the recorded statement may amount to contradiction. However, every omission is not contradiction.
An omission can amount to contradiction if it appears to be significant and otherwise relevant having regard to the context in which such omission occurs. In other words, such omission must vitally touch the very factum, which is required to be proved by the prosecution.
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