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How police custody is different from judicial cust...

    How police custody is different from judicial custody    ©Two type of custody:-                               1) police custody                               2) judicial custody1) police custody: police custody means that police have a physical custody of the accused while judicial custody means an accused is in the custody of the court .in the former ,the accused is lodged in lock-up of a police station Earlier accused were afraid of police custody as they were subjected to harassment and physical torture but such incident have become fewer after the SC judgements enumerated the rights of accused and brought many police officers to task for custodial torture . resourceful   accused , politicians as well as others, certainly enjoy immunity from third degree “ or, to use  americanese, enhanced interrogation methods ”  After lodging of an FIR for a cognizable offence (which provides for punishment of more than 3 years ) police arrest the accused to prevent him from tampering with evidence or influencing witnesses .within 24 hours of arrest , police produce the accused before a court ( mandatory under law ) and seek his remand to police custody to enable it to complete investigations expeditiously it is for police to decide how long it is warranted to keep the accused in its custody , which expires in 15 days . 2) What is judicial custody ? In serious offences , the court may accede to police request to remand the accused in judicial custody after the expiry of police custody so that evidence or witnesses are not tempered with law mandates filling of charge sheet in criminal cases within 90 days , if the charge sheet is not filed within 90 days the court normally grants bail to the accused . but in heinous crime / offences , like murder and rape . the accused is normally kept in judicial custody (kept in jail under the court’s custody ) for a longer time despite filing of the charge sheet so that the process of trial is not influenced .  The judicial custody may be of 60 days for all other crimes if the court is convinced that sufficient reasons exist, following which the accused or suspect must be released on bail by adv rameshwar y dadhe

Posted By

Rameshwar Dadhe

2 days ago

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SECTION 156(3) CRPC or 200 CRPC, WHERE TO GO?

In my recent blog, I shall be discussing about the two provisions which confuse people as they cannot decide how to proceed further and under what provision should one head so that he gets justice and his case does not lag. Most of the common man having no idea about the provisions have the concept that Section 156(3) can be skipped for speedy trial and a complaint u/s 200 CrPc, as the provision says ‘Examination of a complaint by magistrate’ is a better option because under that, the magistrate shall have authority and sanction. Reference of Sections in the blog shall be of CrPc until and unless specifically mentioned to be of some other Act or Code. In this blog I shall briefly discuss the following points as under – mentioned. 1.    What is section 156(3) and section 200.2.    Can investigation be made u/s 156(3) even though complaint is made u/s 200.3.    How important is section 190?4.    Why is there a confusion with section 190 and section 200?5.    Conclusion.What is section 156(3) and section 200 CrPcBefore going into further discussion, it is very important that one understands what is the section. Hence, the start of my blog shall contain the meaning of these two sections as has been produced in the Code of Criminal Procedure. Section 156(3) – Power of Magistrate empowered u/s 190 to order for investigation u/s 156.Section 200 – Examination of Complainant. If a case is registered u/s 156(3) which shall thereafter have two reasons for such, which are the following: 1.    The Police Station and the Superintendent of Police have not lodged your FIR. 2.    The Police Station and the Superintendent of Police have lodged your FIR, but proper investigation is not being done. Under the above circumstances an aggrieved person can knock the doors of the court vide provision 156(3) and the Magistrates empowered u/s 190 shall thereafter order for proper investigation as in Point 2 or order for registration of FIR and to investigate the matter properly as in Point 1. If a case is registered u/s 200 then, a magistrate needs to follow a full throttle process as has been laid down by the code which starts from Section 200 [Examination of Complainant] and ends at Section 203 [Dismissal of Complaint]. However, it must be stated here that in the recent times there have been a huge number of Private Complaints against parties and the usage of Section 200 has resulted to a lot of false complaints between private parties, many of which have been found to be of frivolous nature. This makes it necessary to verify the details of such complaint by examining the Complainant on Oath and thereafter direct for an inquiry by the magistrate himself or to direct for an investigation by the Police Officers. Can investigation be made u/s 156(3) even though complaint is made u/s 200.As I have already mentioned above, the answer to this is a big YES.The Magistrate has complete powers to give direction for investigation by the Police u/s 156(3) even though the Complaint was filed u/s 200 as a ‘Private Complaint’. Relevant Citation – Madhao vs State of Maharashtra, 2013, 5 SCC 615.In light of the above – 1.    It is not the primary duty of the Magistrate to take immediate cognizance of a complaint filed u/s 200 only because of the fact that it is a ‘Private Complaint’. The Magistrates do have discretionary powers as to whether they will or will not take cognizance. Section 200 in itself is a pre – cognizance stage, therefore the Magistrate is at full liberty to direct for inquiry by the magistrate himself or direct for investigation by police. It is after such inquiry or investigation that the Magistrate shall take cognizance based on merits and facts. 2.    The Magistrate in this case is justified in taking an alternative remedy or an alternative course of action before taking cognizance. Investigation u/s 156(3) shall be conducive to justice and shall also save the time of the court from wasting time to enquiring into a matter which primarily should’ve been investigated by the Police Officers. However, once the Magistrate has taken cognizance of the matter and decides to proceed as per the procedure established in chapter XV of the Code, he shall not be allowed to proceed under the pre – cognizance stage to avail the liberty of invoking Section 156(3). How important is section 190?If we read the bare provision of Section 156(3) it clearly states “Any Magistrate empowered u/s 190 may order such an investigation” This in itself means that 156(3) is not self-reliable but needs to be r/w Section 190 which therefore empowers a Magistrate to duly order for investigation u/s 156(3). Both these provisions are interlinked and cannot be left alone. It is only when we read both of them together, that we can come to a conclusion. Now, when we read chapter XIV of the Code it starts with Section 190. Let us start by understanding this Section in itself. Section 190 – Cognizance of offences by Magistrates. The clear mention of the word ‘Cognizance’ means that the magistrate is bound to take cognizance of this complaint and thereafter proceed as per process of Section 200 and dismiss the complaint u/s 203, the same which we have read under the chapter named ‘Complaints to Magistrate’. In the above view, the Magistrate shall take cognizance u/s 190 and then proceed. Section 190 has wider scope and perspective than Section 200. Why is there a confusion with section 190 and section 200?Both these sections would basically mean the same thing. They are interlinked to each other and are interwoven. A complaint u/s 200 is also a Complaint u/s 190. However, both these sections serve different purpose. Wherein Section 190 lays down the process as to how cognizance of offences can be taken by a Magistrate. It is also a well settled rule of law that only when cognizance is taken up, is the legal machinery set in motion and not before that. Now, cognizance can be taken in one of the following ways as mentioned u/s 190 reproduced below, 1.    By way of a Complaint. 2.    Police report u/s 173 [Charge Sheet, Closure Report, etc]3.    Own knowledge of the Magistrate or on the basis of information received from any person who is not a police officer. Stressing on Point 1, if the Magistrate is taking cognizance by way of a Complaint, [Which may or may not be a Private Complaint]Then, such Magistrate has to proceed as per provisions of Section 200 to 203 and if needed, also Section 204. Thus, we can say that power to take cognizance of a Complaint is u/s 190 whereas u/s 200 the power of examining the complainant and other witness [if any] for the purpose of verification is laid down. Both these sections refer complaint to the same thing as has been defined u/s 2(d) of the Code which defines the term ‘Complaint’.The relevancy of Section 200 is only for a Complaint, the cognizance of which is being taken u/s 190(1)(a) and the same shall not be relevant when cognizance is taken u/s 190(1)(b), i.e., Police Report filed u/s 173 after the completion of investigation. ConclusionAfter all that we have read, we can conclude, 1.    That the Magistrate is not expected to act in a mechanical way on the mere submission of a 156(3) Petition and direct the registration of FIR only because a party is asking for it. 2.    That the court needs to be satisfied as to the substance of the application filed and must decide whether there has been the commission of a cognizable offence [Non-Bailable] and that such offence requires proper investigation and inquiry. 3.    Also, if the Magistrate so feel, he can treat an application u/s 156(3) to be a complaint case and thereafter adopt the procedure laid down u/s 200 to 202 by recording evidences and thereafter a)    Dismiss such complaint u/s 203. b)    Summon the accused u/s 204 if evidences laid down u/s 200 to 202 bring in enough light to the same. To end with, in my opinion: 1.    One should proceed u/s 190 r/w section 156(3) only in case of cognizable offences. 2.    One should proceed u/s 200 when offence committed is of non - cognizable in nature.

Posted By

Shreyash Mohta

3 days ago

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  • What is criminal law?
  • What is law of criminal procedure in India?
  • What are the objectives of criminal law?
  • Is there any specific jurisdiction for criminal cases in India?

What is criminal law?


Procedural laws prescribe procedure for the enforcement of rights and liabilities. Effect of substantive laws to a large extent depends on the quality of procedural laws. The governing law for Criminal Procedural Laws is the ‘Code of Criminal Procedure, 1973’.

“A procedural law is always sought in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural law is always subservient to the substantive law. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away by the procedural law what is given by the substantive law.” – SC in Saiyad Mohd Bakar v. Abdulhabib Hasan (1998) 4 SCC 343 at p. 349.

Some features of the Code of Criminal Procedure, 1973:


  • This act is applicable to whole of India except the state of Jammu & Kashmir
  • As per Section 6 of Code of Criminal Procedure 1973, Besides the Supreme Court, High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely-
    • Courts of Session
    • Judicial Magistrate of the first class and, in any Metropolitan area, Metropolitan Magistrate
    • Judicial Magistrate of the second class
    • Executive Magistrates
  • Functionaries under the Code of Criminal Procedure 1973 are the Police, Prosecutors, Defence Counsels, and Prison Authorities and Correctional Services Personnel
  • Code of Criminal Procedure 1973 distinguishes recognises Cognizable & Non-Cognizable Offences-
    • Cognizable offences means offences for 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.
    • Non-cognizable offences means offences for which, and ‘non-cognizable case’ means a case in which, a police officer has no authority to arrest without warrant.
  • As per the case of Lalita Kumari v. Govt. of UP, 2014, a police officer is bound to register an FIR relating to a cognizable offence.
  • Code of Criminal Procedure 1973 classifies all criminal cases into summons cases and warrant cases-
    • Warrants Case refers to a case relating to an offence punishable with death, imprisonment for life, or imprisonment for term exceeding two years
    • Summons Case refers to a case relating to an offence, and not being a warrant case
  • As per Section 304 of Code of Criminal Procedure 1973, there is a right to legal aid at the expense of the State.
  • The principle of Double Jeopardy is recognised in Section 300 of Code of Criminal Procedure 1973

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