BNSS

MODULE ONE - GENERAL INTRODUCTION

ADMINISTRATION OF JUSTICE

What is Administration of Justice?

Administration means management and justice means doing what is fair and
right. When we talk about the administration of justice, we are talking about
how a government keeps things fair and right within its borders by using its
power to enforce the rules. To make sure justice is done, a government
needs to have the power to use force when necessary. There are two
important things every government must do:

 Protect the country from enemies and

 Keep things fair and right within its borders.

According to Salmond, a government is a group of people living in a specific

area who are organised to keep order and fairness by using force when
needed. Governments make and enforce laws to maintain -peace and keep
society safe. If a government can’t do this, it can’t really be called a
government. The main job of the administration of justice is to protect
people’s rights, make sure laws are followed and punish those who break the
law.

Administration of justice refers to the system and processes through which

laws are enforced and disputes are resolved within a society. It encompasses
the application of legal principles, the investigation of alleged violations and
the imposition of sanctions or remedies when individuals or entities breach
established rules and rights.

The administration of justice can be defined in three key points:

A Politically Organised Society: This means that there is a structured

government or society in place to oversee and manage how things are done.
It’s not a free-for-all; there are rules and order.
The Use of Government Force: The government has the authority and power
to use physical force when necessary to maintain order and ensure that
people follow the rules and laws.

The Goal of Upholding Rights: The primary aim is to ensure that everyone’s
rights are protected and respected. It’s about making sure that people are
treated fairly and justly within the society.

Objectives of Administration of Justice

The primary objectives of the administration of justice are to maintain order,

protect individual rights, ensure fairness and uphold the rule of law.

This multifaceted concept includes both criminal and civil justice systems,
with the former focusing on the punishment of offenders and the latter on
providing remedies and compensation to those who have suffered harm. A
well-functioning administration of justice is essential for promoting social
harmony and resolving conflicts within a community.

Origin and Growth of the Administration of Justice

It is human nature to want to live together in a community. We are social

beings and this social nature compels us to be part of a society. However,
when people live together, their different interests can sometimes lead to
conflicts, which is why we need a system for administering justice. In the
early days, people would turn to their elders to settle disputes among them.

This marked the beginning of the development of human societies,

progressing from simple, natural communities to more complex and civilized
ones. This progression is considered the historical foundation for the
evolution of systems to administer justice.

As the need for a formal system of justice became evident, the concept of
the State was born. In the beginning, these early forms of the State didn’t
have the strength to effectively control crime and punish wrongdoers.
However, today, we have Magistrates and Judges who are responsible for
carrying out this essential function.

According to Hobbes, he believed that a common power, in the form of a

government or authority, is necessary to keep people in check within a
community. He argued that without this common power, individuals would
be unrestrained and chaos could prevail. In his words, unless people are
under “a common power to keep them all in awe,” society will struggle to
maintain order.

Advantages of Administration of Justice

Uniformity and Consistency in Law

The administration of justice ensures that laws are applied consistently and
uniformly. This helps in the systematic development of the legal system,
making it fair and predictable.

Collective Wisdom

The rules of law are a reflection of the collective wisdom of the community.
Following these rules reduces the chances of making wrong decisions. As Sir
Edward Coke noted, the wisdom of the law surpasses any individual’s
wisdom and justice represents the wisdom of the entire community.

Consistent Application

With fixed rules in place, judges can apply the law consistently, ensuring that
similar cases are treated similarly.

Regulation of Conduct

When citizens know the law, they can regulate their behaviour accordingly.
This promotes a law-abiding society where people understand the
boundaries and consequences of their actions.
Disadvantages of Administration of Justice

Rigidity

Legal justice can be inflexible. Societal changes often occur more rapidly
than changes in legal systems, leading to situations where the law may not
adequately address new challenges.

Technicalities and Formalities

Legal justice can be filled with technical jargon and formal procedures,
making it complex and difficult for ordinary citizens to navigate without legal
assistance.

Complexity

Society is intricate and dynamic, requiring complex laws to address its

evolving needs. This complexity can sometimes lead to confusion and
difficulties in interpretation and enforcement.

Unintended Consequences

While the law serves as a remedy for many problems, it can also have
unintended negative consequences, as noted by Salmond. Sometimes, the
legal system itself can create new issues or injustices.

Types of Administration of Justice

Criminal Administration of Justice

The administration of criminal justice deals with public wrongs, which are
offences outlined in the Indian Penal Code (IPC). Its primary aim is to punish
offenders. Punishment, in this context, refers to the imposition of
consequences, typically considered undesirable (e.g., imprisonment or death
penalty), by the state authority upon individuals found legally guilty of
committing a crime.

The primary objectives of criminal justice are to punish wrongdoers

(offenders) and maintain law and order in society. The state is responsible
for punishing criminals. Punishment serves various purposes, including
deterring individuals from repeating crimes, expressing society’s disapproval
of antisocial behaviour and seeking to reform and rehabilitate offenders
while protecting society from criminal activity.

Civil Administration of Justice

Civil justice administration aims to provide relief, often in the form of

compensation or other remedies, to the injured party. It deals with the
enforcement of two types of rights: primary rights and sanctioning rights.

Primary rights are those inherent rights that exist independently and do not
stem from any wrongdoing.

Sanctioning rights emerge as a result of the violation of primary rights. When

a primary right is infringed upon, a sanctioning right comes into play. For
instance, if a valid contract (a primary right) is breached, the right to claim
damages for the losses suffered due to the breach becomes a sanctioning
right.

Primary rights can be enforced through specific performance while

sanctioning rights are enforced through sanctioning enforcement
proceedings.

Conclusion

A just society is one where the administration of justice is not only robust but
also reflective of the core values of its people. It stands as a testament to a
society’s commitment to upholding the principles of fairness and equality,
ensuring that the rights and dignity of every individual are safeguarded.

Constitution of Criminal Courts in India

The Sessions Judge– Section 8 of the CrPc talks about the establishment
of the Sessions Court. The State Government establishes the Sessions Court
which has to be presided by a Judge appointed by the High Court. The High
Court appoints Additional as well as Assistant Sessions Judges. The Court of
Sessions ordinarily sits at such place or places as ordered by the High Court.
But in any particular case, if the Court of Session is of the opinion that it will
have to cater to the convenience of the parties and witnesses, it shall
preside its sittings at any other place, after the consent of the prosecution
and the accused. According to section 10 of the CrPC, the assistant sessions
judges are answerable to the sessions judge.

The Additional/ Assistant Sessions Judge- These are appointed by the

High Court of a particular state. They are responsible for cases relating to
murders, theft, dacoity, pick-pocketing and other such cases in case of
absence of the Sessions Judge.

The Judicial Magistrate– In every district, which is not a metropolitan area,

there shall be as many as Judicial Magistrates of first class and of second
class. The presiding officers shall be appointed by the High Courts. Every
Judicial Magistrate shall be subordinate to the Sessions Judge.

Chief Judicial Magistrate- Except for the Metropolitan area, the Judicial
Magistrate of the first class shall be appointed as the Chief Judicial
Magistrate. Only the Judicial Magistrate of First Class may be designated as
Additional Chief Judicial Magistrate.

Metropolitan Magistrate- They are established in Metropolitan areas. The

High Courts have the power to appoint the presiding officers. The
Metropolitan Magistrate shall be appointed as the Chief Metropolitan
Magistrate. The Metropolitan Magistrate shall work under the instructions of
the Sessions Judge.

Executive Magistrate- According to section 20 in every district and in

every metropolitan area, an Executive Magistrate shall be appointed by the
State Government and one of them becomes District Magistrate.
Classes of criminal courts
Section 6 of the Cr.P.C provides for the classes of criminal courts in every
State apart from the High Courts and the Supreme Court, namely –

 Court of Session

 Judicial Magistrates of the first class and, Metropolitan Magistrates in

any metropolitan areas

 Judicial Magistrates of the second class; and

 Executive Magistrates

Hierarchy of Criminal Courts

The hierarchy of the Criminal Courts in India can be understood through the
following chart:
The Supreme Court of India – The Supreme Court Of India being the apex
court of India was established under Article 124 of the Constitution of India.

The High Courts – Article 141 of the Constitution Of India governs the High
Courts and the High Courts are bound by the judgment of the Apex Court.

Court of Session

Section 9 of the Cr.PC empowers the State Government to establish the

Sessions Court and such court would be presided over by a Judge appointed
by the High Court. The Additional and Assistant Sessions Judges are also
appointed by the High Court to exercise jurisdiction in the Court of Session.
Court of Judicial Magistrate

Section 11 of the Cr.P.C states that in every district (not being a metropolitan
area;+), the State Government after consultation with the High Court has the
power to establish courts of Judicial Magistrates of the first and second
classes.

Chief Judicial Magistrate and Additional Chief Judicial Magistrate

As per Section 12 of the Code in every district other than metropolitan areas,
Judicial Magistrate of the first class shall be appointed as the Chief Judicial
Magistrate. The High Court is also empowered to designate Judicial
Magistrate of First Class as Additional CJM and by such designation, the
Magistrate shall be empowered to exercise all or any of the powers of a Chief
Judicial Magistrate.

Chief Judicial Magistrate and Additional Chief Judicial Magistrate

As per Section 12 of the Code in every district other than metropolitan areas,
Judicial Magistrate of the first class shall be appointed as the Chief Judicial
Magistrate. The High Court is also empowered to designate Judicial
Magistrate of First Class as Additional CJM and by such designation, the
Magistrate shall be empowered to exercise all or any of the powers of a Chief
Judicial Magistrate.

Special Judicial Magistrates

By Section 13 the High Court is empowered to confer upon any person who
holds or has held any post under the Government, the powers conferred or
conferrable by or under this Code on a Judicial Magistrate of first or second
class. Such Magistrates shall be called Special Judicial Magistrate and shall
be appointed for a term not exceeding one year at a time.

Local Jurisdiction of Judicial Magistrate

According to Section 14, the Chief Judicial Magistrate shall define the local
limits of the areas within which the Magistrates appointed under Section 11
or under Section 13 may exercise all or any of the powers with which they
may be vested under this Code. The Special Judicial Magistrate may hold its
sitting at any place within the local area for which it is established.

Subordination of judicial magistrate

Section 15(1) provides that a Sessions Judge shall be superior to the Chief
Judicial Magistrate and the Chief Judicial Magistrate shall be superior to the
other Judicial Magistrate. This can be clearly understood by the above-
mentioned diagram explaining the hierarchy of courts.

Courts of Metropolitan Magistrate

They are established in every metropolitan area. The presiding officers shall
be appointed by the High Court. The jurisdiction and powers of such
Metropolitan Magistrates shall extend throughout the metropolitan area. The
High Court shall appoint Metropolitan Magistrate as the Chief Metropolitan
Magistrate.

Special metropolitan magistrates

The High Court may confer upon Special Metropolitan Magistrates the powers
which a Metropolitan Magistrate can exercise in respect to particular cases or
particular classes of cases. Such Special Metropolitan Magistrates shall be
appointed for such term, not exceeding one year at a time.

Constitution And Powers Of Criminal Courts Under CRPC

Because the Supreme Court, High Court, and even the High Court are
constitutional courts, their powers are unbounded; in fact, the High Court’s
jurisdiction is mentioned in section 28(1) of the Code of Criminal Procedure.
According to section 28(1), the High Court may impose any sentence that is
allowed by law.

A session judge or additional session judge can impose any sentence allowed
by law, subject to confirmation by the high court, save for the death penalty,
which is subject to Section 28(2) of the Code of Criminal Procedure.

Section 29 (1) confers authority upon the Chief Judicial Magistrate. As per
section 29(1), the Chief Judicial Magistrate has the authority to administer
any sentence that is permissible by law, save for the death penalty, life in
prison, and penalties exceeding seven years.

A Judicial Magistrate of the First Class may impose any sentence allowed by
law, except the death penalty, life in prison, and sentences longer than three
years, in accordance with Section 29(2) of the Code of Criminal Procedure.
Furthermore, the magistrate has the authority to impose fines of up to Rs.
10,000 and up to Rs. 50,000 in the states of Maharashtra and Rajasthan.

A Judicial Magistrate of Second class may impose any sentence allowed by

law, subject to Section 29(3) exceptions for the death penalty, life in prison,
and terms longer than a year. In addition, he has the authority to fine up to
Rs. 5,000, and in Maharashtra, up to Rs. 10,000.

Section 20 of the Code of Criminal Procedure applies to the Executive

Magistrate. Each district and metropolitan area’s executive magistrate may
be chosen by the State Government, which will also choose one of them to
act as the district magistrate. The Executive Magistrate’s authority is
delineated in Sections 129, 130, 131, and 144 of the Code of Criminal
Procedure

Important Definitions
(a) "audio-video electronic means" shall include use of any
communication device for the purposes of video conferencing, recording of
processes of identification, search and seizure or evidence, transmission of
electronic communication and for such other purposes and by such other
means as the State Government may, by rules provide;

(b) "bail" means release of a person accused of or suspected of commission

of an offence from the custody of law upon certain conditions imposed by an
officer or Court on execution by such person of a bond or a bail bond;

(c) "bailable offence" means an offence which is shown as bailable in the

First Schedule, or which is made bailable by any other law for the time being
in force; and "non-bailable offence" means any other offence;

(d)"bail bond" means an undertaking for release with surety;

(e) "bond" means a personal bond or an undertaking for release without

surety;

(f) "charge" includes any head of charge when the charge contains more
heads

than one;

(g) "cognizable offence" means an offence for which, and "cognizable

case" means a case in which, a police officer may, in accordance with the
First Schedule or under any other law for the time being in force, arrest
without warrant;

(h) "complaint" means any allegation made orally or in writing to a

Magistrate, with a view to his taking action under this Sanhita, that some
person, whether known or unknown, has committed an offence, but does not
include a police report. Explanation.—A report made by a police officer in a
case which discloses, after investigation, the commission of a non-cognizable
offence shall be deemed to be a complaint; and the police officer by whom
such report is made shall be deemed to be the complainant;

(i) "electronic communication" means the communication of any written,

verbal, pictorial information or video content transmitted or transferred
(whether from one person to another or from one device to another or from a
person to a device or from a device to a person) by means of an electronic
device including a telephone, mobile phone, or other wireless
telecommunication device, or a computer, or audio-video player or camera
or any other electronic device or electronic form as may be specified by
notification, by the Central Government;

(j) "High Court" means,—

(i) in relation to any State, the High Court for that State;

(ii) in relation to a Union territory to which the jurisdiction of the High Court
for a State has been extended by law, that High Court;

(iii) in relation to any other Union territory, the highest Court of criminal
appeal for that territory other than the Supreme Court of India;

(k) "inquiry" means every inquiry, other than a trial, conducted under this
Sanhita by a Magistrate or Court;

(l) "investigation" includes all the proceedings under this Sanhita 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.
Explanation.—Where any of the provisions of a special Act are inconsistent
with the provisions of this Sanhita, the provisions of the special Act shall
prevail;

(m) "judicial proceeding" includes any proceeding in the course of which

evidence is or may be legally taken on oath;

(n) "local jurisdiction", in relation to a Court or Magistrate, means the local

area within which the Court or Magistrate may exercise all or any of its or his
powers under this Sanhita and such local area may comprise the whole of
the State, or any part of the State, as the State Government may, by
notification, specify;

(o) "non-cognizable offence" means an offence for which, and "non-

cognizable case" means a case in which, a police officer has no authority to
arrest without warrant;

(p) "notification" means a notification published in the Official Gazette;

(q) "offence" means any act or omission made punishable by any law for
the time being in force and includes any act in respect of which a complaint
may be made under section 20 of the Cattle Trespass Act, 1871;

(r) "officer in charge of a police station" includes, when the officer in charge
of the police station is absent from the station-house or unable from illness
or other cause to perform his duties, the police officer present at the station-
house who is next in rank to such officer and is above the rank of constable
or, when the State Government so directs, any other police officer so
present;

(s) "place" includes a house, building, tent, vehicle and vessel;

(t) "police report" means a report forwarded by a police officer to a

Magistrate under sub-section (3) of section 193;

(u) "police station" means any post or place declared generally or

specially by the State Government, to be a police station, and includes any
local area specified by the State Government in this behalf;

(v) "Public Prosecutor" means any person appointed under section 18,
and includes any person acting under the directions of a Public Prosecutor;

(w) "sub-division" means a sub-division of a district;

(x) "summons-case" means a case relating to an offence, and not being a

warrant-case;

(y) "victim" means a person who has suffered any loss or injury caused by
reason of the act or omission of the accused person and includes the
guardian or legal heir of such victim;

(z) "warrant-case" means a case relating to an offence punishable with

death, imprisonment for life or imprisonment for a term exceeding two years.

Objective And Reasons of BNSS 2023

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was introduced on
August 11, 2023 to replace the CrPC. It amends provisions on bail, expands
the scope of property seizure, and alters powers of police and Magistrates.
The Bill has been examined by the Standing Committee on Home Affairs.

Key Features

The CrPC governs the procedural aspects of criminal justice in India. The
key features of the Act include:

Separation of offences: The CrPC classifies offences into two categories:

cognisable and non-cognisable. Cognisable offences are those in which the
police can arrest and initiate an investigation without a warrant. Non-
cognisable offences require a warrant, and in some cases, a complaint by the
victim or a third party.

Nature of offences: The CrPC deals with various types of criminal

offences, ranging from traffic violations to murder. It distinguishes between
bailable and non-bailable offences, specifying the offences for which an
accused has the right to bail from police custody.

The BNSS retains most of the provisions of the CrPC. Key changes
proposed include:

Detention of undertrials: As per the CrPC, if an accused has spent half of

the maximum period of imprisonment in detention, he must be released on
personal bond. This does not apply to offences punishable by death. The
Bill adds that this provision will also not apply to: (i) offences punishable by
life imprisonment, and (ii) persons against whom proceedings are pending in
more than one offence.

Medical examination: The CrPC allows medical examination of the

accused in certain cases, including rape cases. Such examination is done by
a registered medical practitioner on the request of at least a sub-inspector
level police officer. The Bill provides that any police officer can request such
an examination.

Forensic investigation: The Bill mandates forensic investigation for

offences punishable with at least seven years of imprisonment. In such
cases, forensic experts will visit crime scenes to collect forensic evidence
and record the process on mobile phone or any other electronic device. If a
state does not have forensics facility, it shall utilise such facility in another
state.

Signatures and finger impressions: The CrPC empowers a Magistrate to

order any person to provide specimen signatures or handwriting. The Bill
expands this to include finger impressions and voice samples. It allows
these samples to be collected from a person who has not been arrested.

Timelines for procedures: The Bill prescribes timelines for various

procedures. For instance, it requires medical practitioners who examine
rape victims to submit their reports to the investigating officer within seven
days. Other specified timelines include: (i) giving judgement within 30 days
of completion of arguments (extendable up to 60 days), (ii) informing the
victim of progress of investigation within 90 days, and (iii) framing of charges
by a sessions court within 60 days from the first hearing on such charges.

Hierarchy of Courts: The CrPC establishes a hierarchy of courts for the

adjudication of criminal matters in India. These courts include: (i)
Magistrate’s Courts: subordinate courts responsible for the trial of most
criminal cases, (ii) Sessions Courts: presided over by a Sessions Judge and
hear appeals from Magistrate’s Courts, (iii) High Courts: have inherent
jurisdiction to hear and decide criminal cases and appeals, and (iv) Supreme
Court: hear appeals from High Courts and also exercise its original
jurisdiction in certain matters. The CrPC empowers the state governments
to notify any city or town with a population of more than one million as a
metropolitan area. Such areas have Metropolitan Magistrates. The Bill
omits this provision.

Functionaries
POLICE

There is no provision in the code that creates the police or police officers. It
assumes the existence of police and arms them with various responsibilities
and powers.

Organisation
The Police Act, 1861 establishes the police force. The Act says that “the
police force is an instrument for the detection of crime and its prevention.”
The Director-General of Police is vested with the overall administration of
police in an entire state, however, in a district, under the general control and
directions of District Magistrate, administration of police is done by DSP
(District Superintendent of Police).

A certificate is provided to every police officer and by virtue of such

certificate, he is vested with the functions, privileges and powers, of a police
officer. Such certificate will cease to be in effect once he/she is no longer a
police officer.

Powers and functions under CrPC

The Code confers upon the police officers certain powers such as the power
to investigate, search and seizure, make an arrest and investigate the
members enrolled as police officers. Extensive powers are conferred to the
officer in charge of a police station.

PROSECUTOR

A crime is a wrong that affects the whole society and because of this reason
the state represents the society as a whole and is represented by lawyers
called Public Prosecutors. In a criminal court, prosecution of all the offences
is conducted by Public Prosecutors.

constitutes

As per Section 24 of Cr.PC Central and State, the government is empowered

to appoint Public Prosecutors at state and district levels to conduct appeal
and prosecution under High Courts and Subordinate Courts. The Section
further provides that Additional or Assistant Public Prosecutor shall be
appointed and they shall work under the directions given by Public
Prosecutor.

Further, it specifies the rules for appointment of Public Prosecutor as “if a

person has been practising as an advocate for 7 years or more then such
person shall be eligible to be appointed as Public Prosecutor of District Court
or High Court. The Court in Phool Singh v. State of Rajasthan held that “ if
the victim requests the State to appoint a Special Public Prosecutor in a case,
then the State shall appoint the same and such Special Public Prosecutor
shall be paid by the victim.

Powers and Functions

The Code provides that every trial before a Session’s Court shall be
conducted by the Public Prosecutor. His goal is not merely to produce a
conviction but to help the court in arriving at a just decision. Section 301
empowers a Public Prosecutor or Assistant Public Prosecutor to appear
before any criminal court and conduct prosecution without any written
authority. Thus, he has the right to conduct the prosecution. As per Section
321, if the court allows, a Public Prosecutor can withdraw from conducting
prosecution against any person.

In Md. Mumtaz v. Nandini Satpathy, the Apex Court explained the role of
Prosecutors under CrPC and observed that it is the duty of a Public
Prosecutor to aid the court by placing all the evidence in his possession in
front of the court even if it is in favour of the accused. In the machinery of
justice, a very responsible role is assigned to the public prosecutor, thus he
shall be personally indifferent towards the result of the case.

criminal courts

MODULE 2

First Information Report (FIR) and Investigation

what is fir ?

First Information Report (FIR) is awritten document prepared by the

police when they receive information about the commission of a

cognizable offence. It is a report of information that reaches the police

first in point of time and that is why it is called the First Information

Report.

It is generally a complaint lodged with the police by the victim of a

cognizable offence or by someone on his/her behalf.

Anyone can report the commission of a cognizable offence either orally

or in writing to the police. Even a telephonic message can be treated

as an FIR.(MUST BE SIGNED WITHIN 3 DAYS )

Why is FIR important?

An FIR is a very important document as it sets the process of

criminal justice in motion. It is only after the FIR is registered in the

police station that the police takes up investigation of the case.

Cognizable Offence

A cognizable offence is one in

which the police may arrest a

person without warrant. They are

authorised to start investigation

into a cognizable case on their

own and do not require any

orders from the court to do so.

Non-cognizable Offence

A non-cognizable offence is an

offence in which a police officer

has no authority to arrest without

warrant. The police cannot

investigate such an offence

without the court's permission.

in case of ravi kumar vs state of punjab (2005) judge arijit pasayat

said " the fir is the first informmation report giving information of
commission of cognizable crimes which mwy be made b y thr
complainant or any other person knownig about the commission of
the crime . FIR is intended to set the criminal law in motion .

in case of ravi kumar vs state of punjab (2005) judge arijit pasayat

said " the fir is the first informmation report giving information of
commission of cognizable crimes which mwy be made b y thr
complainant or any other person knownig about the commission of
the crime . FIR is intended to set the criminal law in motion .

Essential ingreadents of FIR -

 The information must relate to the commission of a cognizable offence,

 It should be given in writing or orally to the head of the police station,

 It must be written down and signed by the informant, and its key
points should be recorded in a daily diary.

 the FIR should be entered in the general diary .

 FIR by a woman is filed in the presence of officer incharge of police

station and woman pollice officer or any woman officer .

 every FIR has three copies the original copy is always with the
magistrate other two copies are ith the in formantg and the polikce
statgion .

kinds of FIR -

1. FIR BY VICTIM - section 173 (2)( mentions victim )A copy of the

information as recorded under sub-section (1) shall be given forthwith,
free of cost, to the informant or the victim.

2. FIR BY THIRD PERSON - section 173 (2)( mentions third person )A

copy of the information as recorded under sub-section (1) shall be
given forthwith, free of cost, to the informant or the victim.

3. FIR BY ACCUSED -

4. FIR BY POLICE AUTHORITY -

5. FIR BY COURT -175(3)11

contents of FIR -

in case of Gorle S Naidu Vs State of Andhra Pradesh 2003 court said

Fir should not be an encyclopedia of factors concerning the crime , yet there
must be some definite info viz a viz crime .

Registration of FIR and its procedure

how to file an FIR - section 173

1. * When information about the commission of a cognizable

offence is given orally, the police must write it down.

2. * It is your right as a person giving information or making a

complaint to demand that theinformation recorded by the
police is read over to you.

3. * Once the information has been recorded by the police, it must

be signed by the person giving the information.

4. copy of FIR is to be given to the informer or the victim.

5. electronic communication shall be recorded only after getting signed

within three days by the person giving it .

6. its not the right of the accused person to get the copy of FIR . earlier
position of law youth bar associati9on Vs UOI 2012 SC held that if
offence is not of sensitive nature than the accused may get the copy of
FIR from the police or the court .

when police officer refuses to register the FIR - Section 173 (4)

if the police officer refuses to register the FIR of an aggrieved person that
person according to section 173 (4) can in writing or by post send the
substance of FIR to the superintendent of police who if satisfied that
information discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be made by any
police officer subordinate to him . failing which such aggrieved person may
make an application to the Magistrate.

bhajan lal vs state of haryana SC held that it is mandatory for every

police officer to register an FIR before investigation .

Key Points from the Case:

1. FIR as a Complaint: The court clarified that an FIR is essentially a

complaint made to the police about a cognizable offense. It is not a
formal charge or accusation.

2. Duty of Police to Register FIR: The police have a mandatory duty to

register an FIR when a cognizable offense is reported to them. This
duty cannot be delegated or evaded.

lalitha kumari vs state of UP is a significant Supreme Court case

that has had a profound impact on the manner in which First
Information Reports (FIRs) are registered in India.The case
addressed the issue of police officers refusing to register FIRs, even
when a cognizable offense was clearly disclosed in the complaint.

Zero FIR- section 173(1)

Zero FIR can b e registerd by an officer incharge of a police station even if he

has no jurisdiction of the investigation of the offence . serial number of
zero FIR is mentioned 0. after registration such FIR is forwarded to the
competent police station .

Preliminary inquiry - section 178

A preliminary inquiry is an inquiry prior to the trial and which is done for the
purpose of indicating the criminal nature of the offence or for the reason that
whether the trials should start or not. 33

the objective of this type of enquiry is to find out the prima facie in case of
offence of 3 years or more but less than 7 years .

preliminary inquiry is to be completed in 14 days for registraton of FIR.

history of preliminary inquiry -

sate of gujarat vs mahanlal shayam lal chowksi SC said that conducting

the preliminary inquiry within the exclusive domain of the magistrate and not
of the police .

p.sirajhudin vs state of madras 1971 in this case the supreme court of

india for the first time recognised the concept of priliminary inquiry and said
that before the registration of FIR in cases of corruption when it is registred
against a public serevent it is necessary to conduct a preliminary inquiry .

preliminary inquiry iks only possible in situations or even before

registration of FIR -

 Matrimonial dispute

 corruption

 medical negligence

 delay in FIR

 commercial offences

Information of cognizable and non-cognizable offences (FIR or NCR)

-

In the context of Indian law, cognizable and non-cognizable offenses are

classifications that determine the manner in which law enforcement agencies
handle different types of crimes. These distinctions are crucial for
understanding the procedures followed by the police and the judiciary.
Here’s a detailed explanation of the differences between cognizable and non-
cognizable offenses:

Cognizable Offenses

Definition:

Cognizable offenses are those where a police officer has the authority to
arrest without a warrant and start an investigation without the permission of
a magistrate.

Severity:

These offenses are generally more serious and include crimes like murder,
rape, theft, robbery, assault, and other severe crimes that pose a significant
threat to society.
First Information Report (FIR):

For cognizable offenses, the police are required to register a First information
Report (FIR) under Section 173 of the BNSS 2023

Police Powers:

The police can investigate the case immediately after the registration of the
FIR, conduct searches, and seize evidence without needing a magistrate’s
order.

Examples:

Murder (Section 302 of IPC)

Rape (Section 376 of IPC)

Theft (Section 379 of IPC)

Robbery (Section 392 of IPC)

Kidnapping (Section 363 of IPC)

Non - cognizable offences

Definition:

Non-cognizable offenses are those where a police officer does not have the
authority to arrest without a warrant and cannot start an investigation
without the permission of a magistrate.

Severity:

These offenses are generally less serious and include crimes like defamation,
minor assault, cheating, public nuisance, and other less severe crimes.

First Information Report (FIR):

For non-cognizable offenses, the police cannot register an FIR. Instead, they
register a Non-Cognizable Report (NCR) and seek the permission of a
magistrate to start an investigation.

Police Powers:

The police do not have the power to investigate or arrest without a

magistrate’s order. The investigation can only proceed with the magistrate’s
direction.

Examples:

Defamation (Section 499 of IPC)

Public nuisance (Section 268 of IPC)

Assault (Section 352 of IPC)

Cheating (Section 417 of IPC)

Forgery (Section 465 of IPC)

Procedure of Investigation

 An investigation is an important segment of criminal procedure. The

first step after a crime is committed or information received by a police
officer about the commission of an offence is “investigation.” The
purpose is to identify the offender and proceed him for trial so as to
serve him with punishment as per the provisions of the Code.

 section 175 confers power on police officers power to

investigate cognizable case .

 In Non Cognizable cases, the police officer has no authority to

investigate without warrant and has to obtain a warrant under Section
174 of the Code.

 The term “investigation” has been defined in section 2(l) of the Code.

 Chapter XII (Sections 173 to 196) of the Code deals with information to
police and their powers to investigate.

meaning and definition

The term ‘investigation’ has been defined in Section 2(l) of the Code,
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.
The investigation of an offence consists of:

 Proceeding to the spot.

 Ascertainment of facts and circumstances of the case.

 Discovery and arrest of the suspect.

 Collection of evidence which may include:

Examination of persons concerned and reducing their statement to writing.

Search and seizure of places and things respectively considered necessary.

 Formation of opinion as to whether there is a case for trial, and taking

necessary steps accordingly.

Overview of procedure of investigation

 information to police officer - section 173 Information in

cognizable

cases.

afert an FIR has been filed and the information has been received by the
police officer, he shall start his investigation, provided he has reasons to
suspect that a cognizable offence has been committed.

 power of police to investigate - section 175 police officer's

power to investigate cognizable case

Section 175 of the code empowers the officer in charge of a police station
to investigate a case in his territorial jurisdiction without the order of the
Magistrate if the offence is cognizable in nature. The officer may also initiate
an investigation on the orders of the Magistrate empowered under Section
210 cognizance of offences by magistrate.

note- during investigation no magistrate/court can intefere and

there is no need of any order of magistrate .police is free from any
kind of intereference during the investigation .

khawaja nasir ahmed vs king emperor 1946

m/s niharika info pvt. ltd. vs state of maharashtra 2022

kedar nath parida vs state of orrisa

Cases consisting of both Cognizable and Non-Cognizable Offences

According to Section 174 , when two or more offences are there in a case,
of which at least one is of cognizable nature, and other of non-cognizable
nature, then the entire case has to be dealt as a cognizable case, and the
investigating officer will have all the powers and authority as he has in
investigating a cognizable case.

Procedure of Investigation

 Section 176 of the Code lays down the procedure of investigation to

be followed by the police, for collection of evidence.

 The investigation of a cognizable case begins when a police officer in

charge of a police station has reason to suspect the commission of a
cognizable offence on the basis of FIR or any other information so
received. It requires that prompt intimation of the FIR be sent to the
Magistrate.

 The officer shall then proceed in person to the spot for investigation of
facts and circumstances, or shall depute one of his subordinate officers
for the same, and if required, measures for the discovery and arrest of
the person shall be taken.

 When the information received by the police officer is not of serious

nature, the officer need not proceed in person or depute some
subordinate officer to investigate on the spot. And if no sufficient
ground exists for entering on an investigation, he shall not investigate
the case. And shall state in its report for not complying with the
requirements of this section, and notify the informant that he will not
investigate the case or cause it to be investigated.

 He shall then send this report to the Magistrate empowered to take

cognizance of such offence.

Sending a Report to the Magistrate (Section 177)

  A report is sent to the Magistrate which is called the police report. It is
sent by the superior police officer, so as to make the Magistrate aware
that a particular case is being investigated by a police officer. The
main objective of sending a report is to enable the Magistrate to
control the investigation and give directions if required under Section
178 of the Code.

 The report should be sent to the Magistrate without any delay. In

Swati Ram v. State of Rajasthan, it was held that mere delay in
sending the report does not throw away the prosecution case in its
entirety.

 At different stages of an investigation, different reports are to be

submitted by the+ police to the Magistrate. These reports are:

 Section 176(2) of the CrPC requires the officer in charge of the police
station to submit a report to the Magistrate, called a preliminary
report.

 Section 188 of the CrPC requires a subordinate officer to submit a

report to the officer in charge of the police station.

 Section 193 of the CrPC requires that a final report is to be submitted

to the Magistrate as after the investigation gets over.

Order of Investigation by the Magistrate

The Magistrate, under Section 178, has been empowered, if he feels

necessary, after receiving the report to direct investigation, or to conduct
himself or direct a subordinate Magistrate to hold a preliminary inquiry. And
as held by the Supreme Court, the Magistrate has no power to stop the
investigation after it has started.

Attendance of Witnesses

The police officer making the investigation is empowered under Section 179
to require the attendance of any person as a witness who is acquainted with
the facts and circumstances of the case. The above-mentioned section also
provides that no male person or woman who is under the age of fifteen years
shall be required to attend any place other than the one in which the male
person or women resides. The State Government shall make rules for the
payment of reasonable expenses incurred by persons for attending any place
other than their residence.

Examination of Witnesses

 Any police officer who is in charge of the investigation or any other

officer who is acting on the request of an officer in charge shall and is
empowered to examine a witness or person who is acquainted or
aware of the facts and circumstances of the case put before him.

 Section 180 of the Code confers powers on police to examine

witnesses. The statements of witnesses are important as they can
make a person guilty or innocent.

 The persons who are being investigated are expected and bound to
answer truly all the questions relating to such cases put before them.

 They are not bound to truly answer the questions which would expose
them to a criminal charge or any other charge.

 After the examination, the police officer making the investigation shall
reduce the number of statements given by the person in the course of
the examination. And if done so, he shall keep a separate record of the
same. He is not bound to reduce the statements into writing but it is
preferred that he does so.

Statements to the Police not to be Signed

The statements made by the witnesses during examination need not be

signed by him. Neither should be used at any inquiry or trial. The statements
made by the witness can be used in the court only to contradict him, and not
corroborate him. If the witness is brought from the prosecution side, any part
of his statement if proved may be used by the accused and can be used by
the prosecution only with the Court’s permission, to contradict him. That is,
statements made under Section 180 can be used to contradict him.

However, an exception to the above section is: If any statement falls within
the provision of Section 32(1) of the Indian Evidence Act, or if any statement
affects the provisions of Section 27 of the Evidence Act.
Recording of Confessions and Statements

 Any magistrate whether metropolitan or judicial, if he has jurisdiction

or not in the case, is empowered under Section 183 to record any
statement or confession made to him in the course of the
investigation.

 But a police officer on whom powers of a magistrate have been

conferred for the time being is not empowered to record the same.

 The magistrate, before recording the statement is required to explain

it to the person giving the statement that he is not bound to give it and
the statements can be used as evidence against him.

 The magistrate has to make sure that the person making the
confession is doing it voluntarily. The Magistrate cannot authorize the
detention of that person in police custody if the person refuses to give
a statement at any time before the confession is recorded.

Admissibility of Evidence

 The confession recorded under section 183 can be used as

substantive evidence, without being formally proved. Record of such
confession is admissible as evidence. Entire confession must be
brought on record. The Court must carefully weigh it with other
evidence. The Court may reject part of it.. Where the confession was
found rejected, the convictions based on them could not be sustained.

 Non-confessional statements recorded under section 164 is not

substantive evidence. But if the maker of the statement is called as a
witness in the trial, his earlier statement can be used for contradicting
his testimony in the Court under section 145 and 157 of the Evidence
Act.

 In Balak Ram v. The State of U.P., it was held that evidence of

witness cannot be discarded merely because their statement was
recorded under section 164. Their evidence must be approached with
caution.
Procedure to be followed on completion of Investigation (s.189-
s.193)

On completion of the investigation, the following procedure is to be

followed:

 Release of accused when evidence is deficient

When there is not sufficient evidence and reasonable grounds to justify the
forwarding of the accused to the Magistrate, the police officer shall release
him on him executing a bond, with or without sureties, and may direct him to
appear before the magistrate when required.

 Cases to be sent to Magistrate when evidence sufficient

When the police officer has sufficient evidence and reasonable grounds, he
shall forward the accused to the Magistrate, so that the Magistrate can take
cognizance of the offence and try the accused or commit him for trial. If the
offence is bailable, the accused shall be given security and be released on
bail, only to appear before the Magistrate when required, and for his day to
day attendance before the Magistrate.

 Diary of proceedings in an investigation (section 192 Diary of

proceedings in investigation)

This section relates to the contents of a case diary, which every police officer
making an investigation has to maintain. The object of this section is to
enable the Magistrate to know what was the day to day information by a
police officer who was investigating the case. Oral statements of witnesses
should not be recorded in this case diary. This diary may be used at trial or
inquiry, not as evidence, but to assist the court in proceeding with the case.

 Report of police on completion of the investigation

Final report of a police officer after the completion of the investigation is to

be sent to the Magistrate under Section 193. This report is generally called
a “Chargesheet” or “Challan”.

Where a superior officer has been appointed by the State government, the
report shall be sent by him to the Magistrate. And while the orders of the
Magistrate are pending, he shall direct further investigation to the officer in
charge of the police station.
If according to the police officer, a part of the statement in the report
submitted by him is not relevant, he shall request the Magistrate to exclude
that part and not consider it. Also, further investigation can be made even
after the submission of the report to the Magistrate.

EXAMINATION OF AN ACCUSED PERSON

SECTION 51,52,53

For the victim - Sec 184

For the collection of evidence - sec 51,52

Examination after request made by police officer done even after applying
reasonable force against the accused

Medical eaxminatiuon done by registered medical practitioner - sec 51

If a female is to examined it is to be done by or under supervision of female

registered medical practitioner

The examination report shall be forwarded to the investigation officer

Sec 52 - Examination of person accused of rape

It will be done by registered medical practiotioner in a gov hospital

In the absence of the same any RMP within 16km radius from where offence
is committed.

Purpose of section 53 - To find injuries and marks of violence under police

custody

Section 53 - Examination by medical officer in the absence of same by any

RMP

Section 184 - Medical examination of rape victim

Medical examination of any women who is a victim of sexual violence is done

only when the women gives consent.

2 finger test is prohibited

Consent can be given by the victim or the person who is competent to give
consent on behalf of the minor
If the victim is not in the condition to give consent then the parents can give
consent

If the victim is child below 12 years and there is no one on his/her behalf to
give consent, the senior doctor of the hospital authority can give consent.
And the decision will be taken on the best intrest of the child.

THe survivor can give consent for the examination if his age is more than 12
years - Section 89 and 90.

As per section 92 of IPC a doctor can conduct life saving operation on the
patient without his/her consent.

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COGNIZABLE AND NON COGNIZABLE OFFENCES CASE LAWS

State of Odisha v/s Sakal Chand Sahu - Section 494 (bigamy), 498
A(Cruelty) are non cognizable offences.

Reported the case to NCW.

Registered on the order of SDJM

An FIR was filed

Husband filed an appeal before HIGH COURT, they qaushed the appeal. It
being a matrimonial dispute

It must be filed by complainent and her relative only

Section 198 Clause 1 A - NCW does not fall under the criteria thus the case
does not stand

Supreme COurt took a diffrent view

Cognizable offence - So police officer does not have a option but to register
FIR

Madhubala v/s Suresh Kumar 1997

Section 175 - Magistrate can order gfor investigation

Issue - whether magistrate has power v/s Section 156 clause 3 to give
direction for registration for FIR case filed under 406 and 498 A

2 FIRs were filed as under 498 A, it took place in karanal in different

jurisdictions.

Chandigarh HIGH CIURT - no court can order registration of FIR by police

Without FIR investigation is not possible therefore it is implied that, is court

orders for investigation the police officer must register FIR before.

QUESTION - When does complaint covert into FIR?

Section 2H - Complaint other than police report i.e. FIR

When court take notice of the complaint and direct the police to file FIR

Section 210 - 4 ways of taking (suo moto) Judicial notice

Section 175 - If court exercises power complaint will be turned into FIR

STAGES

FIR --> Investigation --> Police report --> Charge sheet --> Section 210 (1)
(B)

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Manoj SHarma MAnu V/s State of NCP Delhi - Delhi high court
quashed the order of Metrop[olitan magistrate and held that Section 173 (1)
of crpc is different from section 175(3)

Section 154 unlike sec 156 does not prescribe for restriction on registration
of FIR in respect of offence committed within the teritorial jurisdiction of the
FIR.

Thus even if the offence is committed beyond the teritorial jurisdiction of the
police station the of 1ficer in charge of the police station will still register the
FIR, however the magistrate under sec 156(3) cannot direct to a police
officer for registration the FIR beyond its teritorial jurisdiction, hence he
cannot order for registration of FIR

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How far the court may interfere in the investigation?

Sec 156(3) crpc

sec 175(3) DNSS alternative power of judicial power in an investigation

Sakiri Vasu v/s State of UP 2007 Supereme Court

Justice Katzoo -

Facts -

Dead body of Major S Ravi Shankar was found in mathura junction.

Govt Railway police started investigation.

Report - Sucide or Accident

Father of deceased SAKIRI VASU was not convinced with the report. HEnce
he filed a petition in Allahbad High Court.

Article 226 - Investigation by CBI

Certian issues were raised -

*Judicial magistrate has limited inherent power

1. wheteher a person is entitled to reach high court without exhausting

alternative remedies in CRPC?

ANS - He is entitled but such things must not be promoted. If there is an

alternative remedy the high court should not ordinarilhy interfere.

2. Whether a victim can demand investihgation by special agency?

ANS - A victim can demand for proper and speed investigation but not for a
special investigation by special agencies like CBI

3. Whether magistrate in power under sec 156(3) to pass an order for

investigation by special agencies?

ANS - No, magistrate is not in power to pass such an order.

4. Whether magistrate empower under sec 175(3) to pass an order for

registration of FIR?

ANS - Mere doctrine of implied construction is implied

Implied construction - It is well settled principle of law that when power is
given to an authority to do something it includes such incidental or implied
power whic ensures proper doing of things.

5. Whether magistrate is empowered under sec 156(3) to pass an order for

reopening of investigation after submission of final report?

AND - Sec 156(3) --> Investigation --> Police - 176 procedure of investigation
--> No evidence if --> Police officer will file final report or closure report to
the magistrate.

*What magistrate will do in such case - Magistrate has 2 options

Yes magistrate is empowered by section 175(3) for reopening of

investigation even after final report.

Magistrate gives privilage to file protest petiton by the victim

Further magistrate will execise 175(3) an order for investigation or consider

the protest petition as complaint.

There is no section of protest petition.

---------------------------------------------------------

Evidentiary value of FIR

*FIR does not have substantive value

Agnu Nagesia v/s State of Bihar 1965 - Alegation of murder of aunt and
relatives, case registered under section 302

Reached police station and recorded FIR himself

He pointed out location from where bodies adn weapons were recoverd by
police

This statement is of confessional nature, barred by sec 25 BSS sec 23

Discovery made will be considered relevant under sec 27 evidence act

(exception to sec 23)

Section 27(discovery) proviso will be exception to section 24,25,26 of BSA

Section 24 (confession), section 27 is exception to section 24

QUE - Whether the whole confessional statement in the FIR was barred by
section 23 of BSA of only those portions of it were barred which related to
the actual confession of the crime?

ANS -

1. whole confession is irrelevant except those part which come under section
27(proviso sec 23)

2. FIR is not a substantive peice of evidence

3. IT may be used for purpose of coroboration and contradiction if an

informant is called as witness

4. if the 1st information is given by accused the fact os him giving

information is admissable against him Sec 6 BSA

5. if the information is non confessional it is admissable as admission section

15

6. if it is confessional police cannot use it against accused under section 27

*admission is self levitating and the confession is self harming

Evidentiary value of FIR

FIR by Victim

1. Dying declaration sec 26 BSA substantive peice of evidence

2. res jesta section 4

3. section 6 used as conduct

4. section 148 used as contradiction

5. section 160 used as coroboration

FIR by 3rd person (relevancy os statement)

1. sec 4 conduct

2. sec 148 contradiction

3. sec 160 coroboration

FIR by accused

1. sec 353 (accused called as witness) only at time of defence evidence, you
can use the statement for the purpose of coroboration not for contradiction

2. relevant under sec 6 conduct

3. relevant under sec 53 admission

4. barred under section 23, this statement can only be used for purpose of
coroboration not contradiction

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