Tag Archives: magistrate

Cognizance of an offence – Can be taken only once

Cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceeding to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the CRPC very clearly indicates that once the case is committed to the court of Session by the Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 of the CRPC will, therefore, have to be understood as the Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the Sessions Judge. Balveer Singh v. State of Rajasthan, (2016) 6 SCC 680.

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Filed under Cognizance of an offence, Criminal Law

Applications under Section 156(3) Crpc – To be supported by Affidavit

Section 156(3) applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the Learned Magistrate can verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. Such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. It becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
There has to be prior applications under section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart the veracity of the same can also be verified by the Learned Magistrate, regard being had to the nature of allegations in the case. As a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal cases, as are illustrated in Lalita Kumari v. State of U.P., (2014) 2 SCC 1 are being filed. That apart, the Learned Magistrate would also be aware of the delay in lodging of the FIR. Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287.

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Filed under Complaint Cases, Criminal Law

Trial and Inquiry

‘Trial’ means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the ‘trial’ commences only on charges being framed.
Section 2(g) of the Cr.P.C. therefore clearly envisages inquiry before the actual commencement of the trial, and is an act conducted under Cr.P.C. by the Magistrate or the Court. The word ‘inquiry’ is, therefore, not any inquiry relating to investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The Court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial.
Even the word “course” occurring in Section 319 Cr.P.C., clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on. It covers the entire wide range of the process of the pre-trial and the trial stage. The word “course” therefore, allows the Court to invoke this power to proceed against any person from the initial stage of the inquiry upto the stage of the conclusion of the trial. The Court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. The word “course” ordinarily conveys a meaning of a continuous progress from one point to the next in time and conveys the idea of a period of time, duration and not a fixed point of time. Hardeep Singh v. State of Punjab, 2014 (85) ACC 313.

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Filed under Criminal Law, Trial and Inquiry

Object of Section 145 compared with powers under Section 146 CrPC

The object of Section 145 CrPC is merely to maintain law and order and to prevent breach of peace by maintaining one or the other of the parties in possession and not for evicting any person from possession. The scope of enquiry under Section 145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute.
Under Section 146(1), a Magistrate can pass an order of attachment of the subject of dispute if it be a case of emergency, or if he decides that none of the parties was in such possession, or he cannot decide as to which of them was in possession. Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace and Section 146 cannot be separated from Section 145 CrPC. It can only be read in the context of Section 145 CrPC. If after the enquiry under Section 145 of the Code, the Magistrate is of the opinion that none of the parties was in actual possession of the subject of dispute at the time of the order passed under Section 145(1) or is unable to decide which of the parties was in such possession, he may attach the subject of dispute, until a competent court has determined the right of the parties thereto with regard to the person entitled to possession thereof.
The ingredient necessary for passing an order under Section 145(1) of the Code would not automatically attract for the attachment of property. Under Section 146, a Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A case of emergency, as contemplated under Section 146 of the Code, has to be distinguished from a mere case of apprehension of a breach of peace. The Magistrate, before passing an order under Section 146 of the Code, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be material on record before the Magistrate when the submission of the parties is filed, documents produced or evidence adduced. Ashok Kumar v. State of Uttarakhand and others, (2013) 3 SCC (Cri) 177.

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Filed under breach of peace, Criminal Law, Uncategorized

Investigation under CrPC – Meaning of

Section 2 (h) of the CRPC reads as under:
2.(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;
Section 2(h) CrPC defines “investigation” and it includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It ends with the formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing of a charge-sheet under Section 173. Union of India v. Prakash P. Hinduja .
A three Judge Bench in H.N. Rishbud v. State of Delhi , while dealing with investigation, has stated that under the Code, investigation consists generally of the following steps:
(a) Proceeding to the spot,
(b) Ascertainment of the facts and circumstances of the case,
(c) Discovery and arrest of the suspected offender,
(d) Collection of evidence relating to the commission of the offence which may consist of:
(i) The examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,
(ii) The search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and
(e) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a chargesheet under Section 173.
In Adri Dharan Das v. State of W.B. , it has been opined that:
“arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and connection of other persons, if any, in the crime.”
In Niranjan Singh v. State of U.P. , it has been laid down that investigation is not an inquiry or trial before the Court and that is why the Legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial. In S.N.Sharma v. Bipen Kumar Tiwari , it has been observed that the power of police to investigate is independent of any control by the Magistrate. In State of Bihar v. J.A.C. Saldanha , it has been observed that there is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment and further investigation of an offence is the field exclusively reserved for the executive in the Police Department. Manubhai Ratilal Patel v. State of Gujarat and Others,(2013) 1 SCC 314.

Further Investigation
The mere undertaking of a further investigation either by the investigating officer on his own or upon the directions of the superior police officer or pursuant to a direction by the Magistrate concerned to whom the report is forwarded does not mean that the report submitted under Section 173 (2) is abandoned or rejected. It is only that either the investigating agency or the court concerned is not completely satisfied with the material collected by the investigating agency and is of the opinion that possibly some more material is required to be collected in order to sustain the allegations of the commission of the offence indicated in the report. Vipul Shital Prasad Agarwal v. State of Gujarat and another, (2013) 1 SCC 197.

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Filed under Criminal Law, Investigation