(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the
Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to
such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or
otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.
Author: ShadesOfKnife
CrPC 46 – Arrest how made
(1) In making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:
Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
CrPC 197 – Prosecution of Judges and public servants
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)—
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.
Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code (45 of 1860).
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.
(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the Contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
IPC 166A – Public servant disobeying direction under law
Whoever, being a public servant,—
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other
matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509,
shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.
Meanings:
(a) knowingly disobeys any direction of the law means, knowingly disobeys any Judgment (of any High Court or Supreme Court) which established a law/principle
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation means, knowingly disobeys any Judgment (of any High Court or Supreme Court) which established a law/principle
E.g.: No automatic arrests in a any case which has a maximum imprisonment of 7 years (includes 498A IPC, Sec 3 of DP Act etc)
- Cognizable
- Bailable
- Magistrate of the first class
Criminal prosecution of Public Servant (includes a Judge or Magistrate or a Police office)
Read the 2013 Amendment made to General Penal and Procedural laws of India. All amendments made to CrPC are here.
In this amendment, apart from inserting new sections (around women-protection) into prevailing laws, the following helpful sections were brought in.
- Judge or Magistrate or a public servant may be prosecuted as per procedure laid out u/s sec 197 CrPC
- New Cognizable and Bailable offence u/s 166A was inserted into IPC which can be invoke against police if they violate laws.
- Per the new Explanation given to sec 197(1) CrPC, no sanction is required to prosecute the police. Karnataka High Court clearly explains this here.
Explanation follows…
PART-A
Section 197 CrPC provides the procedure for, When any person who is or was a Judge or Magistrate or a public servant, (who is) not removable from his office save (meaning except) by or with the sanction (meaning permission) of the Government (meaning Central or State Governments) is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.
So, this mandates that Government permission is must for a Court to take cognizance of such offence by such public servant. Important aspect to note is that, there is no restriction of registering an FIR, only Cognizance needs Government permission to proceed.
PART-B
Now, the same 2013 Amendment to Criminal laws of India also inserted a new section criminalizing three acts/omissions of public servants. It is as follows.
Whoever, being a public servant,—
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) *****
shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.
The entire procedure of how to make arrest in a cognizable case by police is in CHAPTER V – ARREST OF PERSONS. The various sections under this chapter are few other sections are as follows:
Let’s focus on clauses (a) and (b) alone. I have given meanings for the words used in these two clauses here.
Clause (a) talks about the police disobeys any direction of the law (they are flouting CrPC so let’s consider only judicial decisions) which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter.
So, if a Police office disobeys any of these above CrPC provisions such as
- a male police office arresting female accused,
- a female arrested after sunset and before sunrise-meaning night time) or
- no notice issued u/s 41A CrPC to the accused (even WhatsApp, email is also valid service of notice)
- no notice or communication as mandated u/s 50 CrPC, not given to person being arrested
- violates judgments which prohibit police in doing something in relation to forcing any person to attend before police for investigation, then such police office is liable for punishment under 166A IPC and a competent Court can take cognizance of his case, without permission from State Government.
Some Judgment (of any High Court or Supreme Court) which established a law/principle regd attendance of a person before police
Clause (b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation means,
Some Judgments (of any High Court or Supreme Court) which established a law/principle regd investigation
- What is Investigation and what is not? [Rajesh Gutta Judgment]
- No automatic arrests in a any case which has a maximum imprisonment of 7 years (includes 498A IPC, Sec 3 of DP Act etc) [Arnesh Kumar judgment]
Until the 2013 Amendment to Criminal laws of India, the cases involving public servants were taken cognizance, only after/with Government permission.
PART-C
Now, the 2013 Amendment to Criminal laws of India inserted an Explanation under/after Section 197(1) and before 197(2) [this means that the explanation applies to sec 197(1) only]:
Explanation.—For the removal of doubts, it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code (45 of 1860).
Out of the many IPC offences listed in this explanation, Legislature, in it’s endless wisdom, also included Sec 166A also, so that means now, the cases involving public servants can be taken cognizance by Competent Court, without Government permission.
Conclusion
So, get FIRs registered (by making good use of Zero FIR, where appropriate) and prosecute the out-of-line public servant (includes a Judge or Magistrate or a Police office)
Check out the relevant case laws here.
Aloka Bose Vs Parmatma Devi and Ors on 17 December 2008
Supreme Court laid the law down with respect to Contracts signed by Vendor alone are valid or not.
From Para 7,
7) We find that neither of the two decisions have addressed the real issue and cannot be said to be laying down the correct law. The observation in Md. Mohar Ali (supra) stating that an agreement of sale is an unilateral contract is not correct. An unilateral contract refers to a gratuitous promise where only party makes a promise without a return promise. Unilateral contract is explained thus by John D. Calamari & Joseph M. Perillo in The Law of Contracts (4th Edition Para 2-10(a) at pages 64-65):
“If A says to B, ‘If you walk across the Brooklyn Bridge I will pay you $ 100,’ A has made a promise but has not asked B for a return promise. A has asked B to perform, not a commitment to perform. A has thus made an offer looking to a unilateral contract. B cannot accept this offer by promising to walk the bridge. B must accept, if at all, by performing the act. Because no return promise is requested, at no point is B bound to perform. If B does perform, a contract involving two parties is created, but the contract is classified as unilateral because only one party is ever under an obligation.”
All agreements of sale are bilateral contracts as promises are made by both – the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.
An earlier order whereby Aloka Bose (LR of Kanika Bose) was brought on record of case:
Centre for Public Interest Litigation Vs Union of India on 18 August 2020
Vested interests tried to grab the money donated into PM CARES Fund but fell flat on them.. ahem…
CrPC 231 – Evidence for prosecution
(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.
State of Kerala Vs Rasheed on 30 October 2018
Supreme Court laid down the following practice guidelines to be followed by all Trial Courts, while conducting a criminal trial.
From Para 12,
12. The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:
i. a detailed case-calendar must be prepared at the commencement of the trial after framing of charges;
ii. the case-calendar must specify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted;
iii. the case-calendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible;
iv. testimony of witnesses deposing on the same subject-matter must be proximately scheduled;
v. the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the case-calendar;
vi. the grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-examination of each witness, or set of witnesses;
vii. while granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination-in-chief of such witness(es) as has been prayed for;
viii. the case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary;
ix. in cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation.
Citations: [2018 SCC ONLINE SC 2251], [2019 SCC 13 297], [2019 SCC CRI 4 552], [2019 AIR SC 721], [2018 KLT 4 783], [2018 CRIMES 4 288], [2018 AIC 192 212], [2019 CRI LJ 1516], [2019 KLJ 2 398], [2019 ECRN 1 46], [2018 INSC 1021]
Other sources:
https://indiankanoon.org/doc/187514485/
https://www.casemine.com/judgement/in/5bdfde204a93267eadff9b10
Supreme Court initiate a Suomoto WP here to assess the effectiveness of the Guidelines issue above.
Exemption from Personal Appearance (u/s 205 CrPC) in Court Judgments
The following are list of judgments that you can cite while seeking Exemption from Personal Appearance in Court proceedings.
- In Sukla Mukherjee Vs State on 13 Dec 1994, Calcutta High Court said 205 CrPC applies to warrants cases also like 498A IPC.
- In R.Annapurna Vs Ramadugu Anantha Krishna Sastry and Ors on 09 Aug 2000, SC passed 3 conditions before granting exemption from personal appearance.
- In MS. Bhaskar Industries Ltd Vs MS. Bhiwani Denim and Apparels Ltd and Ors on 27 August 2001, Supreme Court says,
- 17. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses.
- In Sri Pritam Sen Vs The State Of West Bengal on 18 October, 2001, Calcutta High Court says, “the learned Magistrate, in the fitness of the things, should not have Issued warrant against the petitioner at the first Instance without assigning any reason in compliance with provisions laid down in Clauses (a) and (b) of Section 87 of the Code of Criminal Procedure.”
- In Md. Naim @ Md. Naimuddin Vs. State of Bihar and Ors on 08 Dec 2006, Patna High Court said 205 CrPC applies to warrants cases also like 498A IPC.
- In the landmark Rajesh Sharma & ors. Vs State of UP and Anr on 27 July 2017 judgment, Supreme Court held that personal exemption to be granted to accused who are residing in outstation locations. (FWC directions struck down, rest modified – Social Action Forum for Manav Adhikar, SC 3J, 2018, paras 35-42; exemption still needs s.205/317 application)
- In Sri Rameshwar Yadav Vs The State Of Bihar on 16 March, 2018, Supreme Court granted Exemption from Personal Appearance to parents of Arnesh kumar.
- In Ajay Kumar Bisnoi and Anr Vs MS KEI Industries Limited on 25 September 2015, Madras High Court says, “a Magistrate can dispense with appearance of accused in a criminal case on first appearance itself, if accused is represented by an Advocate and supported by reasonable excuse.”
- In Ajay Kumar Saboo Vs State of Bihar on 30 Jun 2017
- Puneet Dalmia Vs CBI Hyderabad on 16 December 2019 [SC: Give an undertaking and get 205 allowed]
- Dr.P.Pathmanathan and Ors Vs V.Monica and Anr on 18 Jan 2021 [MadHC: Multilple Guidelines passed]
- Overruled by Apex Court in Kamatchi Vs Lakshmi Narayanan on 13 Apr 2022
- P Parvathi Vs Pathloth Mangamma on 7 Jul 2022 [TelHC: Guidelines passed in disposing Domestic Violence cases]
- YS Jagan Mohan Reddy Vs Central Bureau of Investigation on 26 Aug 2022 [APHC: If the accused has no issues for an advocate to represent him during the criminal case proceedings, the magistrate may grant exemption from personal appearance]
- Sharif Ahmed and Anr Vs State of UP and Anr on 01 May 2024 [SC: The observation that there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct]
