Compilation I - Important notes on Cr.P.C | Judicial Service NotesDetailed Notes on Sec.53.CRPC
Section 53 deals with examination of accused by a medical practitioner at the request of the police office.[ Pragya Singh Thakur v State of Maharashtra, 2010 Cr LJ 3267 (3280) (Bom)].] (1) a request is made by a police officer not below the rank of sub-inspector, (2) upon reasonable grounds which such officer bona fide entertains, (3) that an examination of the arrested person by a medical practitioner will afford evidence as to the commission of the offence.
SCOPE OF SECTION 53
1.Medical examination of the accused is done,
a)a police officer not below the rank of sub-inspector has made a request
b)This is made on reasonable grounds in a bona fide manner
c) if from the nature of the alleged offence or from the circumstances under which it was alleged to have been committed, there is reasonable ground for believing that such an examination will afford evidence.
2.A medical examination of an arrested person can be directed during the course of an investigation, either at the instance of the investigating officer or the arrested person. It is also within the powers of a Court to direct such a medical examination on its own. Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has been granted anticipatory bail.
3.The expression “examination of his person” cannot be confined only to external examination of the body. Many times it becomes necessary to make examination of some organs inside the body. [ Anil Anantrao Lokhande v State of Maharashtra, 1981 Cr LJ 125 Bom]
4.Furthermore, section 53 of the Code contemplates the use of “force as is reasonably necessary” for conducting a medical examination.
Therefore, whatever discomfort that may be caused when samples of blood and semen are taken from an arrested person, it is justified by the provisions of Sections 53 and 54, CrPC.( Ananth Kumar Naik v. State of Andhra Pradesh, 1977 Cri L J 1797 (A.P.)]
5.Selvi & Ors vs State Of Karnataka AIR 2010 SC 1974
Once a Court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort to a reasonable degree of physical force for conducting the same. DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to sections 53, 53A and 54 of the Code of Criminal Procedure, 1973.
Why can an arrested person not resist against his medical examination under Section
53 of the Code of Criminal Procedure, 1973?
If any person offers resistance to his production before a registered medical practitioner or on his production before such practitioner, offers resistance to the examination of his body or to the collection of his blood, the section also empowers the use of all means reasonably necessary to secure the production of such person or the examination of his body or the collection, of blood necessary for the test. Resistance to production before a registered medical practitioner or to the examination of the body or to the collection of blood is deemed to be an offence under Section 186 of the Indian Penal Code.Detailed Notes on Sec.173.CRPC
SECTION 173 | REPORT OF POLICE OFFICER ON COMPLETION OF INVESTIGATION
Section 173 deals with the report of police officer on completion of investigation. This would be “final” or “last report” or “Completion Report” which should be submitted “as soon as” the police investigation is completed.
SCOPE OF SECTION 173
This section is applicable to both investigation of cognizable case as well as to non-cognizable case. Until filing of report, the investigation is said to be pending. This section commands investigating authority to complete the investigation expeditiously without unnecessary delay and after completion, police report (in the form prescribed by state government) shall be forwarded to magistrate, who is empowered to take cognizance of offence. [ Sidhartha Vashisht v State (NCT of Delhi), AIR 2010 SC 2352 ] Magistrate cannot compel the police officer to submit the charge-sheet. [ Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117]Once the investigating agency completes their function of investigating into the offences it is the Court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of section 173(8) of the Code.[ Narmada Bai v State of Gujarat, 2011 Cr LJ 2651 (2666)] Police report under Section 173 contains facts and conclusions drawn by investigating officer. Magistrate is not bound by the conclusions drawn by investigating officer. In case final report is filed the court should scrutinize the final report and take a decision either to accept or reject it.[ Sampat Singh v. State of Haryana, (1993) 1 SCC 561]Once a charge-sheet is filed under section 173(2), Code of Criminal Procedure, 1973 and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the Investigating Authorities permit further investigation under section 173(8). The Magistrate cannot suo motu direct a further investigation under section 173(8), Code of Criminal Procedure, 1973 or direct a re-investigation into a case on account of the bar of section 167(2) of the Code.[ Reeta Nag v State of WB, 2010 Cr LJ 2245 (2249) (SC)]The Magistrate may decide to take cognizance and issue process even if police has recommended that there is no sufficient ground to proceed. If the Magistrate decides to drop the proceedings on filing of final report then he sends a notice to the informant. A protest petition can be filed by informant.[ Bhagwant Singh v.Commissioner of Police,(1985) 2 SCC 537]The taking of cognizance by the court on basis of a police report is a judicial discretion, and when the complainant raises objection to the acceptance of police report, and if the court the overrules such objections, then it has to record the reason for the same. Else it would be aside[ Rupan Deol Bajaj v KPS Gill, AIR 1996 SC 309 ]. Once a Report under section 173(2) of the Code has been filed, it can only be cancelled, proceeded further or the case may be closed by the Court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialised investigating agency has any right to cancel the said Report.
Section 173 (1) provides that every investigation must be completed without unnecessary delay. Inordinate delay in submitting final report may lead to the grievance that investigation is carried on unfairly or with any ulterior motive.[ Kapur RP v State of Punjab, AIR 1960 SC 866]
Section 173 (1-A) (inserted by Cr. P.C. (Amendment) Act, 2008) provides that investigation in relation to rape of child may be completed within 2 months from the date on which First Information Report was recorded.
Section 173(2) provides that police report is forwarded to the Magistrate who is empowered to take cognizance of the offence, by the officer-in-charge of a police station.
A police report must state the following particulars: (1) Name of the parties (1) Nature of information (11) Names of the persons acquainted with the circumstances of the case. (iv) Whether any offence appears to have been committed and if so, by whom. (v) Whether the accused has been arrested. (vi) Whether the accused has been released on his bond & if so whether with or without sureties. (vii) Whether he has been forwarded in custody under Section 170 (viii) In case of offence under Section 376, 376-A-D of Indian Penal Code, whether medical report of the woman has been attached. The officer-in-charge of police station should also communicate the action taken by him to the person by whom the information was first given.
The Magistrate is competent to direct further investigation even after taking cognizance of offence on the basis of police report under section 173(2).[ Shaji Raghavan Pillai v State of Kerala, 2004 Cr LJ 187 (Ker)]
Where a superior police officer is appointed under Section 158 the report shall be submitted through that officer (if the State Government so directs) and pending the order of the Magistrate, such superior officer may direct the officer-in-charge of police station to make further investigation.The magistrate should in all cases scrutinize the facts given in the final report carefully and read the police diary etc, and if it appears to him that there is scope for further investigation he may decline to accept the final report and direct the police to make further investigation under section 156(3) but he cannot impinge upon the jurisdiction of the police by compelling them to change their opinion and to submit a charge-sheet so as to accord with his opinion.[ Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 117]
Section 173 (5) the police officer is under a duty to forward to Magistrate along with his report: (1) all documents and relevant extracts. (2) the statements recorded under Section 161. If police officer investigating the case finds in convenient to do so he may furnish to the accused copies of all any of the documents.
FURTHER INVESTIGATION
Section 173(8) permits further investigation by the investigation officer. Even without the order of Magistrate investigating officer is free to conduct further investigation. Such investigation can be con ducted even if police report is submitted under Section 173(2). Neither the prosecution nor the informant can claim as a matter of right a direction for further investigation.
Satish Kumar Nyalchand Shah v. State of Gujarat, AIR 2020 SC : The Supreme Court has reiterated that, court is not obliged to hear the accused before any direction for further investigation is made under Section 173(8) of the Code.
The submission of report under Section 173 (2) does not preclude further investigation under Section 173(8).[ Dinesh Dalmia v. CBI, (2007) 8 SCC 413]
Can a magistrate order investigation by any different agency like CBI?
In Chandra Babu v. State (2015) 8 SCC 774, it was held that superior courts have been empowered to order investigation by any other agency or can transfer investigation from one agency to another, but magistrate has no such powers.Detailed Notes on Sec.100.CRPC
SEARCH BY A PUBLIC OFFICER
MEANING OF SEARCH AND SEIZURE
The term search could be defined as a conduct in a situation involving a reasonable expectation of privacy as in case of search, state authorities come in direct contact with privacy of individual.The term ‘seizure’ refers to taking a thing from a person in whose possession it is, by public authority without that person’s consent and includes compelling person to give such things to the authority conducting that search and seizure.
Basic principles relating to search and seizure
Search is always conducted by warrant. Search warrant is issued by Magistrate under Section 100 of CrPC to conduct search. Search includes power of seizure also and without seizure, search is meaningless.Section 100 of CrPC provides general principles of search along with procedural safeguards protecting the right of privacy of occupant of closed place. These principles are applicable to both- search with and without warrant.
Objectives of Section 100 of CrPC-
a)Provision of a reasonable facility to be provided to police officer over occupant of any place.
b)Enough power to police is conferred to conduct the search.
c)Procedural safeguards are also provided with main objective of obtaining reliable evidence.
Section 100(1) & (2) Whenever any place liable to search or inspection is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of S. 47.
S. 100(3) lays down that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman, with strict regard to decency.
S.100(4) A search must always be made in the presence of two or more independent and respectable inhabitants of the locality in which the place to be searched is situate. It is the duty of the officer or the person about to make the search to call upon such witnesses before making the search. He may issue an order in writing to them or any of them, if so necessary. The search shall be made in their presence and a list of things seized in the Court of such search and of the places in which they are found shall be prepared by such officer or other person and signed by such witnesses.
The object of section 100 is to ensure confidence in neighbours and in the public generally that anything incriminating, which may be found in the premises searched, was really found and was not planted. When the provisions of S. 100(4) were breached, burden lay on the prosecution to explain reasons for non-compliance thereof. The salutary provisions of S. 100(4), Cr.P.C. require "two or more independent and respectable inhabitants of the locality" to be called to witness the seizure made under the Code. This view taken in the case of State of Assam v. Gopi Kishan Taperia[ (1985) I Gauhati L.R. 193.], was based on the decisions of the Apex Court in Radha Kishan's case.[ A.I.R. 1963 S.C. 822]
S.100(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
S.100(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.
S.100(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.
S.100(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence of omission to assist a public servant when bound by law to give assistance under S. 187 of the Indian Penal Code.
The rigour of the requirement contemplated under sub-section (4) of S. 100, Cr.P.C., is buttressed by that of sub-section (8). While sub-section (4) casts a duty on the officer to make search in the manner provided therein, under sub-section (8), any person who refuses when he is called to witness when a search is made is liable to conviction under S. 187, I.P.C. [ State of Madhya Pradesh v. Ram Prakash and Others, 1989 Cri. L.J. 1585]
Effect of contravention of search procedure
Section 100 provides general provisions to be followed for conduct of search. Under Section 165, 166 of CrPC, the police officer is provided with some additional powers and property which he is required to follow when search is to be conducted without warrant by such police officer. The contravention of these provisions [section 165, 166] makes the search illegal or irregular.In case of Radha Kishan v. State of UP, AIR 1963 SC, the court observed whether such a search in contravention to these two sections would vitiate the trial or not, will depend upon the effect of such search. If it prejudice the accused only then it will vitiate the trial.In addition to the provisions relating to effect of search conducted in violation to provisions contained in Section 100, 465 of CrPC also deals with such illegalities.
a)Non- compliance of provisions of Section 100 and 165 will not vitiate the trial or make evidence of such search inadmissible.
b)In case of Shyam Lal Sharma v. State of MP AIR 1972 SC, the court observed as under-
Court has to finally decide whether contravention of Section 100 or 165 will make the search illegal or void, thus the question was left open by the court. However, in such cases, the weight of evidence may be effected and court will closely look at such evidence which is in contravention to these two provisions.
c)However, in such cases occupant of place where search in violation to Section 100 or 165 of CrPC is being made can obstruct such search with impunity and person shall also be entitled to file a civil case for compensation for trespass of the place.
d)In State of Maharashtra v. Natwar Lal Damodar Das Soni AIR 1980 SC, the court held as under-
Even if search is illegal still the seizure of article or document is not vitiated. However in such cases, person has the power to resist the search and court will examine such evidence of document or article recovered carefully.
Where the search or seizure is with the consent of person, even if its in violation to Section 100 or 165, then search and recovery of any article will not be effected inspite of its being in violation to Section 100 or 165.Detailed Notes on Sec.82.CRPC
PROCLAMATION FOR PERSON ABSCONDING
Section 82 of the Code of Criminal Procedure, 1973 was enacted to secure the presence of the accused.[ Vimalben Ajitbhai Patel v Vatslaben Ashokbhai Patel, (2008) 4 SCC 649]
S.82(1) If a Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and time not less than thirty days from the date of publishing such proclamation.
Meaning of word 'abscond' is to hide and when a person is hiding from his place of residence, he is said to 'abscond’ The word 'abscond' has been defined as to hide or to quit the country in order to escape a legal process. Section 82 have been enacted to protect an unaware person and to give notice to him that he is wanted in the crime to enable him to surrender to custody.[ Devendra Singh Negi v. State of U.P. 1994 Cri. L.J. 1783.]Every person who is not immediately available cannot be characterized as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant.[ Devender Singh v. State of U.P., 1993 (2) Crimes 728.] Section 82, Cr.P.C. requires that the date of appearance of the accused should not be less than 30 days from the date of the publication.[ Sunil Kumar v. State 2002 Cri. L.J. 1284.]
3 PARTS OF SECTION 82 AS PER Mahendra Kumar Ruiya v State of Jharkhand
1)It is well settled that issuance of warrant is condition precedent for issuance of process of proclamation
2)how proclamation has to be given effect to or published to make the accused acquaint that his appearance is required in connection with particular case before a particular Court
3)Sec.82(4) gives more discretion to make inquiry against an accused who has committed offence. After recording reasons the Court can declare an accused of such offence as proclaimed offender.
Write brief note on Proclaimed offender.
The expression “proclaimed offender” includes any person proclaimed as an offender by any Court or authority in any territory in India to which this Code does not extend, in respect of any act which if committed in the territories to which this Code extends, would be an offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450 and 457 to 460 (both inclusive).
Refer section 40(2)(ii) of CRPC.
S.82(2) The proclamation shall be published : (i) by publicly reading in some conspicuous place of the town or village in which such person ordinarily resides; (ii) by affixing it to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; and (iii) by affixing a copy thereof to some conspicuous part of the Court-house. The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in a place in which such person ordinarily resides.
S.82(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence for the compliance of this section and publication of proclamation on such day.
S.82(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 43, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
S.82(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).
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