State of Madhya Pradesh - Act
Criminal Courts - Rules and Orders
MADHYA PRADESH
India
India
Criminal Courts - Rules and Orders
Rule MP190 of 1966
- Published on 17 June 1966
- Not commenced
- [This is the version of this document from 17 June 1966.]
- [Note: The original publication document is not available and this content could not be verified.]
Part I
Instructions to Criminal CourtsChapter 1
Court Hours, Cause Lists and AffidavitsA. General1. In this part "the Code" means the Code of Criminal Procedure (Act V of 1898).
2. All Criminal Courts should be opened by 11 a.m. and the presiding officers should be present in their place by that hour, unless for seasonal or other temporary causes another hour is substituted with the sanction of the District Magistrate.
3. Every effort should be made to push through the work fixed for the day. If court work is commenced punctually at 11 a.m. it will seldom be necessary to continue the hearing of cases after 5 p.m. When the examination of a witness is proceeding at 5 p.m. the Court should decide whether his examination should continue or be postponed till the next working day. Ordinarily the examination of a fresh witness should not be begun after 5 p.m., but this may be done when it tends to the greater convenience of the parties and the witnesses in attendance and when the Court considers that the ends of justice will be served thereby. Addresses of legal practitioners should not be heard after 5 p.m. unless they desire it.
4. The attention of the Courts is invited to the provisions of Section 352, of the Code. The general rule is that public business should be conducted in open Court at the recognized Court house during recognised Court hours. Except when a Magistrate is on tour or when exceptional circumstances exist the conduct of public business elsewhere that at the Court house is not desirable. In the trial of young persons use should, however, be made of the proviso to the Section and ordinarily only persons related to the accused or otherwise concerned in the case should be admitted to the Court.
5. Ordinarily no case should be taken up on a holiday without the consent of both the parties when parties are concerned and without the consent of the witnesses in attendance whom the parties want to examine on such a holiday. Summonses for first hearing should never be for a holiday.
Note. - Although the Courts do not normally sit for hearing of cases on Sundays and holidays, it is desirable, except in the case of a single holiday, that at least one Court should be open for the cognizance of state cases so that there be no delay in dealing with accused produced in police custody.6. Magistrates should receive State cases upto 5 p.m. If any case comes in so late that it is impossible to take it up on the same day, it must stand over for trial till the following day and will be considered as pending before the Court. The challan must on no account be returned to the police.
7. It is of the utmost importance that cases in which juvenile delinquents are accused should be disposed of with expedition and to achieve this they should be given priority over other work. The presiding officer should not only arrange to hear the case as soon as possible after the offender is brought before him but also should exercise the utmost care in avoiding remands.
8. Criminal cases in which Government servants are involved should be dealt with as expeditiously as possible and District Magistrates should give their personal attention to ensuring that the above direction is followed.
9. The presiding officer should also give preference to cases under the Indian Railways Act (IX of 1890) and dispose of such cases as early as possible during the sitting of the Court or any day on which they have been fixed for hearing. Cases under the Indian Railways Act should normally be taken at a district headquarters.
10.
11.
12. It is the duty of presiding officers to conduct their work in a business like way so as to avoid waste of public money. One cause of such waste is an unbusinesslike arrangement of the cause list. Presiding officers must accordingly personally fix the dates of hearing and not leave this duty to their Readers. The duty must moreover be performed intelligently and not mechanically. The summoning of a number of witnesses largely in excess of that which can reasonably be expected to be dealt with harasses such witnesses by unnecessary detention at Court and results in a considerable waste of public money.
13. The languages declared to be the Court languages in the Criminal Courts in the Central Provinces and Berar are as follows:-
14. Processes warrants, bail-bonds and all documents of a similar nature must ordinarily be written in the language of the Court.
15. Petitions should ordinarily be written in the language of the Court. The Court may, however, exercise its discretion in the matter, having regard specially to the language spoken and written by the petitioner.
B. Affidavits16.
17. Every affidavit shall be drawn up clearly and legibly and, as far as possible, in a language which the person making it understands. It shall be drawn up in the first person and divided into paragraphs numbered consecutively, and each paragraph, as nearly as may be, shall be confined to a distinct portion of the subject.
18. Every person making any affidavit shall be described in such manner as shall serve to identify him clearly; and where necessary the affidavit shall contain his full name, age, father's name, profession or trade and true place of residence, and shall be submitted either with his signature in his own hand or his finger impression.
19. Unless it is otherwise provided, and affidavit may be made by any person having cognizance of the facts deposed to. Two or more persons may join in any affidavit, but each shall depose separately to those facts which are within his knowledge, and such facts shall be stated in separately paragraphs.
20. When the declarant in any affidavit speaks to any fact within his own knowledge, he must do so directly and positively, using the words "I affirm (or make oath) and say."
21. Every affidavit should clearly express how much in a statement made on the declarant's knowledge and how much is a statement made on his information or belief, and shall also state the source or ground of the information or belief with sufficient particularly.
22.
23. All erasures, errors, interlineations, etc., in the affidavit shall be legibly initialled and dated by the deponent.
24.
25. If the deponent is not personally known to the officer administering the oath he shall be identified by some person whom that officer does know and otherwise by at least two respectable witnesses which person or witnesses shall sign the endorsement prescribed in Rule 29 below.
26. Where the deponent is a pardanashin woman, she shall be identified by a person to whom she is known and before whom she is accustomed to appear unveiled, and such person shall sign the endorsement prescribed in Rule 29 below.
27.
28. The Court may order any scandalous and irrelevant matter in an affidavit to be struck out or amended.
29. The officer administering the oath shall make the following endorsement on every affidavit sworn before him and shall date, sign and seal the same:
Sworn before me on the....... day of...... 20...... by............ son of..... who is personally known to me (or who has been identified by........) whose signature is/signatures are thereto appended.30. In administering oaths and affirmations to the deponent the following forms shall be used:-
OathI swear that this my declaration is true that it conceals nothing, and that no part of it is false. So help me God.AffirmationI solemnly declare that this my declaration is true, that it conceals nothing, and that no part of it is false.Chapter 2
Distribution of Criminal Business31. The attention of the District Magistrates is drawn to Section 17 of the Code which empowers them to make rules or to give special orders, from time to time, consistent with the Code as to the distribution of criminal business among Magistrates and benches subordinate to them. Every District Magistrate should, therefore, draw up a memorandum of distribution of work. The memorandum may be revised when necessary.
Note. - All Magistrates and all Benches of Magistrates are sub-ordinate to the District Magistrate. All Magistrates and all Benches of Magistrates exercising power in a sub division are also subordinate to the Sub-Divisional Magistrate, subject, however, to the control of the District Magistrate.32. District Magistrates should themselves enquire into cases in which any imputation is made regarding the conduct of Subordinate Magistrates and should not refer such cases to a Subordinate Court.
33. Case which as a rule call for exemplary punishment, e.g., case of cattle-poisoning, theft of any portion of a permanent way of a railway and offence relating to coins, should not ordinarily be tried by any Magistrate other than a Magistrate of the first class.
34. Ordinarily a Magistrate of the third class should not try a case in which a person who has been convicted of an offence punishable under Chapters XII, XVI, XVII or XVIII of the Indian Penal Code is again accused of any such offence. Similarly a Magistrate of the second class should not try any such case when the aggregate imprisonment already undergone exceeds six months, and no Magistrate of the first class should ordinarily try any such case when the aggregate imprisonment already undergone exceeds two years, unless he is specially empowered under Section 30 of the Code.
35. If a Subordinate Magistrate finds in the course of a trial before him that the case is one which should, in his opinion, be tried by a Magistrate invested with powers under Section 30 of the Code, he should, even if he is empowered to commit the case for trial, stay proceedings and either submit the case under Section 346 of the Code to the Magistrate to whom he is subordinate or to such other Magistrate having jurisdiction as the District Magistrate directs, or if any Magistrate in the district is invested with powers under Section 30 of the Code, transfer the case to him under Section 348 of the Code.
36. The District Magistrate of the revenue districts of Nagpur, Wardha, Jabalpur, Hoshangabad, Nimar, Amraoti, Akola, Buldana and Yeotmal, should so distribute criminal work that trials of offences under Sections 304, 307 and 306 of the Indian Penal Code, except those within the Narsinghpur sub-division, shall be by jury before the Court of Session, and not by Magistrates invested with powers under Section 30 of the Code of Criminal Procedure.
Note 1. - The Instructions in this rule do not apply to attempts to commit or abetment of the offences under the specified Sections.Note 2. - The notification reproduced in Chapter 8, Rule 224, merely directs that certain offences, when committed to the Court of Session, shall be tried by jury. It does not direct that such offences shall be committed to the Court of Session. It follows that Magistrates empowered under Section 30 of the Code and the Court of Session have concurrent jurisdiction in certain cases. The normal rule is that magistrates empowered under Section 30 of the Code should try all cases within their competence, the directions in the body of Rule 36 forming an exception to this general rule.37. Care should be taken that the memorandum of distribution of work provides that cases triable summarily under Section 260 of the Code should as far as possible be tried by Magistrates empowered under that Section. The use of regular procedure in cases which can be suitably tried summarily prolongs proceedings and wastes public time.
38. Where Juvenile Courts have not been established under Section 49 of the Central Provinces Children Act (C.P. X of 1928) it is desirable that cases involving juvenile delinquents should as far as possible be dealt with by a single experienced stipendiary Magistrate having powers not below those of a Magistrate of the first class and preferably one specially empowered under Section 30 of the Code in order to avoid unnecessary references under Section 5 (2) of the Central Provinces Borstal Act (C.P. IX of 1928). "In the case of children under 15 years of age Section 29-B of the Code permits trial for certain offences by Magistrates of a certain standing though this Section does not debar other Magistrates from trying such cases provided they have jurisdiction to try them under Section 28 and column 8 of Schedule II of the Code." The memorandum of distribution of work should provide for this. Attention is invited to the provision of clause 2 of Section 49 of the Central Provinces Children Act (C.P. X of 1928) as to the place and manner of sitting of Magistrates dealing with cases involving young persons.
39. The attention of presiding officer is drawn to the provisions of Section 556 of the Code. The expression "personally interested" used therein should be liberally construed so as to include cases in which a presiding officer may be in any way personally interested in the parties or in the result of the case.
40. A presiding officer should not entertain or try a case in which persons indebted to him are concerned either as complainant or as accused. However impartially he may proceed in such cases, the mere fact that such a relationship exists gives a handle to unfriendly suspicious which it is essential in the interest of the administration of justice to avoid.
41. When subordinate officials are prosecuted as such they should not be tried by an officer who is immediately concerned or the credit of the administration of the district. Similarly a Magistrate should not himself try a case arising out of matters in which he has an intimate concern, nor should he try a case in which he has been personally concerned in bringing an offender to justice.
Chapter 3
Processes42. Processes should ordinarily be written in the language of the Court, but when they are sent for service to another Court where the language is different, they should be accompanied by a translation into English, certified by the transmitting Court to be Court.
Note 1. - Processes issued to Europeans and Anglo-Indians should be in English.Note 2. - Further the postage charges on all processes is required to be transmitted by post together with the registration fee, if registration is required, shall be paid in service postage stamps without an additional charge being levied from the party at whose instance the process is issued. The process-fee is intended to cover all the cost of serving the process.43. Persons on whom processes are to be served or executed shall be described so as to ensure their identification clearly. In the case of small villages it may be sufficient to mention the name of the village, police station house, tahsil and district in which the person resides and his, and his father's name, caste and occupation. But in the case of large villages and towns the name of the locality, municipal ward, street, lane and number of the house (if any) in which he resides should be given.
44. Unless the Court otherwise directs the hour of attendance to be entered in every summons or process shall be 11 a.m.
45. The printed form of processes must be filled in with every care, particular attention should be given to seeing that the processes comply with the requirements of the law. Failure to do so may lead to grave results, e.g., a person cannot be convicted for disobeying a summons which does not comply with the mandatory provisions of law or for the use of such force as is necessary in the exercise of the right of self-defence in making resistance to an officer executing an illegal warrant. In this respect attention is invited to the provision of Sections 68, 75 and 555 of the Code.
46. Every process must be signed legibly and in full by the officer by whom it is issued. The name of his office or the capacity is which he acts should be clearly written under his signature. The practice of signing initials only or of using a stamp is forbidden. Summonses issued by Courts of Session, District Magistrates and Magistrates of the first class may however be signed by the clerk of Court or the superintendent of the office or the reader as the case may be. A warrant of arrest must invariably be signed personally by the Judge or Magistrate by whom it is issued. The signature of a ministerial officer is not sufficient.
47. Whenever it is necessary to summon an officer or a soldier or other person in military employ the summons should always be sent for service to the head of the office or department or to the officer commanding the regiment or unit in which such officer, soldier or other person is serving.
48.
49. When processes to be served on patwaris who are on duty are issued to the police for service a copy of the process should be sent to the tahsildar of the tahsil or taluq in which the patwari is working of if the district is under settlement to the Settlement Officer.
50. The attention of the Courts is drawn to the provisions of Section 4 of the Code which lays down that when a summons issued by a Court is served outside the local limits of its jurisdiction and in every case where the officer who has served a summons is not present at the hearing of the case, an affidavit purporting to be made before a Magistrate that such summons has been duly served and a duplicate of the summons purporting to be endorsed in the manner provided by Section 69 or Section 70 of the Code by the person to whom it was tendered or delivered or with whom it was left shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.
51. Court should note that the Code applies to India. The provisions in the Code for the sending of process to another Court for service and for the service of processes received from another Court apply only to Courts established in India including Berar.
Note. - For the execution of processes issued by a Magistrate having jurisdiction in an Indian State in railway lands laying within such State. See Government of India Notification No. 34-I-B, dated the 14th January, 1937 which is printed as Appendix III to this Chapter.52. The normal method of securing attendance before Courts in India of persons outside India accused of an offence in India is by extradition.
53. Indian States do not form part of India. General instructions on extradition from such States are contained in the Book Circulars of the Government of the Central Provinces and Berar, No. VI-4.
54. Arrangements have been made with certain Indian States mentioned in subsequent rules for the reciprocal execution of criminal processes. On no account should processes be issued to States not so mentioned. Any case in which a Court is in doubt about the applicability of these instructions should be referred to the Registrar of the High Court at Nagpur.
55. Process intended for service in His Exalted Highness the Nizam's dominions should be addressed to the District Magistrate concerned. The time to be fixed for the return of the processes should, in the case of process to be served in the city of Hyderabad, be not less than five weeks and, in the case of processes to be served in districts, not less than two months. The name of the district, village and locality in which the person to be served resides should be stated in full in the process.
| Aurangabad. | Bidar. | Birh. |
| Warrangal. | Parbhani. | Karimnagar. |
| Nander. | Adilabad. | Gulbarga. |
| Medak. | Raichur. | Nizamabad. |
| Osmanabad. | Mahbubnagar. | Nalgonda. |
56. Before fixing a date for the return of a process sent for service to an Indian State other than the dominions of His Exalted Highness the Nizam, the presiding officer shall ascertain so far as possible all necessary particulars such as the distance of the place where the process is to be served, the agency by which service is to be effected, etc., and shall take them into account in fixing the date. The date should be fixed so as to make it reasonably probable that the process will be returned in time.
57. Processes intended for service in Indore State except warrants should be addressed to the Political Officer within whose charge the person to be served is residing.
Note. - (i) Rampura-Bhanpura, Mehdipur and Nimawar districts and the Indore district exclusive of the Mhow pargana are in charge of the Political Agent, Malwa.58. Processes intended for service in Udaipur (Mewar) State should be sent through the Registrar, High Court, Udaipur, and not directly to the Court concerned.
59. By reciprocal arrangement certain States in Central India have agreed to execute all processes excluding warrants issued by 'the Courts in the Central Provinces and Berar. Summonses and notices intended for service in their territories should therefore be sent as directed in Appendix I to this Chapter.
60.
61.
62. On no account should processes be issued to authorities in countries outside India for service.
63. When an application is made to the High Court for the issues of orders for the production of a prisoner before a Court to give evidence under Part IX of the Prisoners Act (III of 1900), the Court making the application shall state precisely the nature of the evidence which the prisoner is expected to give and how it is material to the trial concerned.
64. All Criminal Courts should note carefully the distinction between Sections 37 and 39 of the Prisoners Act (III of 1900). When the attendance of a prisoner is required to answer a charge and not to give evidence under Section 39 of the Act has no application.
65. When an application is made to the High Court to take action under Section 40 of the Prisoners Act (III of 1900), the Court making the application shall state the nature of the case against the prisoner as concisely as possible but with sufficient fullness to allow the High Court to decide whether action under Section 40 of the Act is desirable. Omission to send such information means waste of public time and money in sending for the record.
Appendix IApplications for extradition and processes intended for subjects of the States and Thakurates mentioned below should be addressed to the Political Officers shown against them:-| 1. | Karandia, Arnia, and Kheri-Rajpur | The Resident of Gwalior, Post Office Gwalior Agency. |
| 2. | Kaitha | The Resident at Indore, Indore. |
| 3. | Dewas (senior and junior branches), Bagli, Pathari and uni. | The Political Agent in Malwa, Neemuch. |
1. The following instructions deal with the proceedings to be taken under the Fugitive Offenders Act, 1881 (44 and 45 Vict., C. 69), when the return of an accused person appears requisite.
Government of India, Home Department, Notification No. 1048, dated the 30th June 1886, and No. 17-1087, dated the 30th November 1898.2. First as regards those provisions of the Act which relate to the issue and endorsement of warrants for the arrest of fugitive offender, it should be noticed that, when a warrant has been issued in one part of his Majesty s dominions for the apprehension of a fugitive offender from that part, Judge of a Supreme Court in another part of his Majesty's dominions in, or on the way to which the fugitive is or is suspected to be, is, for the purposes of Part I of the Statute, empowered by Section 3 to endorse the warrant, and it is necessary that the proper endorsement should be effected before an arrest can legally be made thereunder. By Section 4 of the Statute a Magistrate of any part of His Majesty's dominions is empowered, in circumstances therein described, to issue a provisional warrant for the apprehension of a fugitive. The corresponding provisions of Part II of the Statute are contained in Sections 13 and 16 respectively, under which the necessary power in both classes of cases is vested in Magistrates. A summons requiring the attendance of a witness issued by a Judge or Magistrate having lawful authority in this behalf in a British possession of a group to which Part II of the Statute applies, may under Section 15, be endorsed by Magistrate in any other British possession concerned of the same group, and when so endorsed may be legally enforced. Section 26 of the Act further empowers the authority endorsing a warrant to name in the endorsement certain persons who shall, in addition to the persons to whom the warrant was originally addressed, be authorized to execute the same.
Government of India, Home Department No. 30-1-1896-1907, dated the 30th November, 1887.3. In order to secure the return of a fugitive offender evidence should be taken that the person against whom the warrant is applied for has absconded; then evidence that an offence has been committed by such person should be faithfully and minutely recorded under Section 512 of the Code of Criminal Procedure. If the Court upon such evidence issues a warrant, the warrant should be in the form prescribed by Section 75 and directed as required by Section 77. Evidence should be taken showing clearly that the offence charged is one to which Part I of the Fugitive Offenders Act applies, or at least a certificate from the Magistrate should be appended to the warrant, clearly showing that the offence charged therein is one punishable with rigorous imprisonment for a term of 12 months or more (See Section 9 of 44 and 45 Vict., C. 69). All the evidence should be taken, if possible, in the presence of the police officer to whom the warrant is addressed, and to whom it is desired that the fugitive offender should be delivered.
A copy should be made of every deposition and every documentary exhibit and each copy should contain a declaration signed by the Magistrate as such, that it is a true copy of the deposition taken by himself, or an exhibit produced to him, as the case may be. The whole of the copy of the record thus made should then be entrusted to the police officer to whom the warrant is addressed, who will then be in a position to authenticate every portion of it when produced by him in the British possession in which the fugitive offender is.When the presence of the police officer who is to execute the warrant cannot be obtained at the proceedings referred to, then each copy must, before being entrusted to the police officer, be sealed with the seal of the Governor or Lieutenant-Governor of the Province in which the proceeding was held. Although when the documents can be authenticated by the oath of a witness, in the British possession from which it is desired to procure the delivery of the offender, the seal of the Governor or Lieutenant Governor is not essential, it is expedient that the seal should be affixed whenever it can conveniently be done. If the police officer entrusted with the execution of the warrant is unable to identify the accused, he should be accompanied by some person able to identify the accused, to the British possession from which the return of the accused is desired.4. In all applications for the removal of an offender from the United Kingdom under the Fugitive Offenders Act, 1881 (44 and 45 Vict., C. 69), it must be proved by evidence that the acts with which the accused is charged amount, under the law in force in the British possession from which the application for his rendition has been received, to an offence punishable by 12 months imprisonment with hard labour or some greater punishment.
The most convenient method of complying with this requirement will be to arrange that all applications of the nature in question shall be accompanied by the deposition of a judge, advocate, barrister, solicitor or any official in a position from which a knowledge of the law may be presumed, duly authenticated in the manner provided for by Section 29 of the Fugitive Offenders Act and containing the necessary evidence. Such deposition should be taken in particular, with reference to the following points:-5. The approval of the District Magistrate should invariably be obtained in cases where subordinate and honorary magistrates, oi their own authority, take action for the return of an accused person.
Appendix IIIAll criminal processes issued in a manner similar to that prescribed by the Code of Criminal Procedure, 1898, by a Magistrate having jurisdiction in any State in India shall be acted upon and executed in railway lands lying within such State by all Magistrates and police officers having jurisdiction in such railway lands under the same conditions and in the same manner as if such processes had been issued by a Magistrate having jurisdiction in such railway lands:Provided that any modification of the manner of executing such processes may be made by rules to be framed by the Governor-General in Council in this behalf and notified in the Gazette of India:Provided further that nothing hereinbefore contained shall require a Magistrate or police officer having jurisdiction in such railway lands to execute any processes so issued against any person who is not a subject of the state by the Court of which the process has been issued or be construed as authorizing him to execute any such process against any subject or servant of His Majesty.Government of India, Foreign and Political Department, Notification No. 34-I-B, dated the 14th January 1937. [Gazette of India, January 16, 1937, Part I, at page 75].Chapter 4
Investigation of Crime1. Information of Crime
66. Reports submitted under Section 157 of the Code should be carefully and promptly scrutinized by the Magistrate to whom they are submitted. Scrutiny will not only permit him to decide whether action under Section 159 of the Code is desirable but will also, if he is a Sub-Divisional Magistrate, keep him in touch with the police administration and the state of crime generally in his sub-division and thus facilitate the exercise of his general responsibilities as an assistant to the District Magistrate.
67. Sections 154 and 155 of the Code require the recording of reports of crimes. These reports, usually referred to as first information reports, are of considerable value, particularly at the trial, and magistrates should bear in mind the importance of examining them. The information is the basis of the case, and whether true or false it usually represents what the informant intended to be his case at the time. In view of the tendency to improve upon original statements of fact, to strengthen the case as it proceeds and sometimes to add others to the person originally named as the offender it is of great importance to know what was said in the first instance.
2. Case diary
68. In all cognizable offences investigated the proceedings subsequent to the recording of the information and the despatch of the intimation report are recorded in a special diary called the case-diary. A police officer investigating a non-cognizable offence under the orders of a Magistrate will not ordinarily write a case-diary unless specially ordered to do so by the District Magistrate or District Superintendent of Police.
69. Under Section 172 (2) of the Code any Criminal Court may send for the police diary of a case under enquiry or trial before it and may use it for the purpose laid down in that Section. Entries in the diary are not evidence in the case but they may be of considerable value in indicating the names of persons whose evidence may be material, and the nature of questions which should be put to witnesses for the purpose of eliciting their full knowledge and for doing real justice in the case. Bearing in mind the observation in Chapter 5, Rule 118 the Courts will realize the great importance of examining those diaries. It is often of great importance to trace the steps leading to a confession or to the recovery and identification of stolen property or of the implement with which a particular offence has been committed and to be able to elucidate such matter by suitable questions to the witnesses.
70. It must be remembered that the case-diary is a privileged document and is protected by the provisions of Section 172 of the Code. When not in actual use the case-diary should be returned to the police officer in charge of the case. Handing over the complete police diary to the counsel for the defence is contrary to law and must not occur.
71. The privilege referred to in the preceding rules does not apply to statements recorded under Section 161 of the Code. Normally these do not form part of the case-diary but are separate documents attached to the case diary. If for any reason they are included in the case-diary their mere inclusion will not deprive the accused of any rights he has under Section 162 of the Code. The Courts must carefully judge whether an entry in the case-diary is or is not in fact a statement recorded under Section 161 of the Code.
72.
3. Confessions
73.
| Q. | Do you understand that I am a Magistrate and that what you saymay be used against you? | A |
| Q. | Do you understand that you need say nothing unless you arefreely wish to? | A |
| Q. | Do you wish to say anything? | A |
| Q. | Where did the police first question you? What day was it andwhat time? | A |
| Q. | Where did the police arrest you? What day was it and whattime? | A |
| from a police officer or other person in authority which wouldrender it irrelevant under Section 24 of the Indian Evidence Act.The questions and replies thereto shall be recorded below:- | Printed in red ink in the Form |
| Dated the...... 20.... | Magistrate ..... Class. |
| .................. | ............versus.............. | ................. |
| Note - If the confession extends beyond this sheet theabove certificate and the matter required by paragraph (4) of itmust be recorded at the end. | Printed in red ink in the Form |
| Note - See Certificate overleaf. |
| 1. | The Magistrate shall read over the confession as recorded tothe accused. | |
| 2. | The Magistrate shall obtain the signature of the accused atthe foot of the confession. | |
| 3. | The Magistrate shall also put his own signature at the foot ofthe confession. | |
| 4. | The Magistrate shall refer to sub-section (3) of Section 164,Criminal Procedure Code, and if satisfied, make a memorandum inthe terms stated in sub-section (3) at the foot of theconfession. | Printed in red ink in the Form |
| 5. | Any other facts which go to show that the confession was madevoluntarily may be recorded by the Magistrate at foot of theconfession. | |
| 6. | The Magistrate shall give below a brief description of thecustody in which the accused was kept while recording theconfession. |
74. Under Section 164 of the Code a Magistrate of the first class and a Magistrate of the second class who is empowered by the Provincial Government in this behalf has power to record a statement or confession made to him in the course of an investigation or at any time afterwards before the commencement of the enquiry or trial. Therefore when an accused person alleged to be desirous of making a confession is produced before a Magistrate who is not a Magistrate of the first class or a Magistrate of the second class specially empowered by the Provincial Government in this behalf the Magistrate shall forward the accused to the nearest Magistrate who is competent to record such statement or confession. The escort required for the journey shall not include any of the police who have already taken part in the investigation.
75. An accused person should not be examined immediately he is produced for the recording of his confession. He should be given a reasonable time, extending when possible to a few hours, for reflection in circumstances in which he will not be influenced by the police before his statement is recorded. If during this period he is detained in jail, the superintendent of the jail should be requested to keep him apart from other persons but not in solitary confinement.
76.
77. If any allegation of ill-treatment is made the Magistrate shall then and there examine the body of the accused, if the accused consents to such examination, to see whether there are any marks of injuries as alleged and shall record the result of his examination. If the accused refuses to permit such examination the refusal and the reason therefor shall be recorded. If the Magistrate finds that there is reason to suspect that the allegation is well founded he shall at once record the complaint, cause the accused to be examined by a medical officer, if possible, and if he has no power to take up the necessary enquiry himself, forward him to the Magistrate having jurisdiction.
78. Before recording a confession the Magistrate shall explain to the person making it that he is not bound to make a confession, and that if he does so it will be taken down and may thereafter be used as evidence against him.
79. Before recording the confession the Magistrate must determine upon the answers to the preliminary questions and upon the result of any examination of the person of the accused, whether there is a reason to believe that the confession, if recorded, will be irrelevant on any of the grounds set forth in Section 24 of the Indian Evidence Act. If he decides that the confession will be inadmissible on any of the said grounds, he should state his reasons for such decision and should refuse to record any statement offered by the accused.
80. Confessions should ordinarily be recorded in open Court and during Court hours; provided that if the Magistrate is satisfied, for reasons to be recorded by him in writing, that the recording of a confession in open Court would be detrimental to the public interest or be liable to defeat the ends of justice, the confession may be recorded elsewhere.
81. It is not desirable that any police officer should be present when a confession is being recorded except such as may be necessary to secure the safe custody of the accused person when, in the Magistrate's opinion, the duty cannot safely be left to other attendants. In any case none of the police officers who have been concerned in his arrest or in the investigation of the case should be allowed to be present or to be within sight or hearing of the accused.
82. The Magistrate shall endeavour to record the confession in as much details as possible in order to afford material from which its genuineness can be judged, and to test whether it is freely made or is the outcome of suggestion. Anything in the nature of a cross-examination of the accused must be avoided, but it is important that without any attempt to heckle or to entrap the accused the Magistrate should record the statement with as much detail as possible. The more detailed a confession is, the greater are the chances of correctly estimating its value. Every question and every answer shall be recorded in full.
83. When a confession is recorded it shall be read over to the accused who made it and shall be signed by him and also by the recording Magistrate. The Magistrate shall then make, at the foot of the record of the confession, the memorandum required by sub-section (3) of Section 164 of the Code. The memorandum shall, whenever practicable, be in the language in which the accused is examined. To this memorandum shall be added a statement, by the Magistrate in his own hand, of the grounds on which he believes that the confession is voluntarily made. Form No. 189 of Schedule V provides a printed certificate at the end that all these necessary formalities have been observed, and the Magistrate in signing the certificate has his attention called to all that he is bound to do to make the confession effective in law.
Note. - It should be borne in mind that a confession recorded by a Magistrate under Section 164 of the Code is ineffective in law if the certificate required by the section is not given and the signature of the accused making the confession is not taken as required by Section 364 of the Code. The evidence of the Magistrate who recorded the confession is admissible to cure these defects (See rule 87 infra).84. After a prisoner has made a confession before a Magistrate he should ordinarily be committed to jail and the Magistrate should note on the warrant for the information of the superintendent of the jail that the prisoner has made a confession.
85. A prisoner who has been produced for the purpose of making a confession but has declined to do so, or has made a statement which from the point of view of the prosecution is unsatisfactory, should in no circumstances be detained in police custody. He should be detained in jail custody.
86. In every case in which a record of confession made under Section 164 of the Code is received by the presiding officer enquiring into or trying the case, the confession shall be shown or read over to the accused, and the fact that this has been done shall be noted down by the presiding officer. The presiding officer shall enquire from the accused whether he made the confession before the Magistrate from whom the record of it was received and shall record the answer of the accused in full.
87. The attention of Courts enquiring into or trying a case in which the record of a confession made under Section 164 of the Code is defective is invited to the provisions of Section 533 of the Code.
4. Custody of Accused Pending Completion of Investigation
88. When an accused is brought before a Magistrate under Section 167 of the Code because the police investigation has not been completed the Magistrate should note down when the accused was first sent for by the Police and when he was produced in Court. If on making due allowance for the time spent in travelling he finds that the period twenty-four hours fixed by Section 61 of the Code has been exceeded he should report the matter to the District Magistrate through the Sub-Divisional Magistrate, and the District Magistrate should call the police to account.
89. A juvenile delinquent should not be remanded to the custody of the police or to jail unless no other action is practicable. The attention of the Courts is invited to the provisions of Section 24 of the Central Provinces Children Act, 1928 (C.P. X of 1928), and to the proviso to sub-section (1) of Section 497 of the Code. This rule covers remands under Section 344 of the Code as well as under Section 167 of the Code.
90.
91. When a Magistrate passes an order, authorizing the detention of the accused in the custody of the police he should record in writing the ground on which he considers such detention necessary. The reasons put forward by the police why the accused should be returned to their custody are not always good and sufficient and require careful scrutiny. For example, detention for the purpose of enabling the accused to point out where the stolen property is concealed would be reasonable if the accused has voluntarily before the Magistrate offered to conduct the police to the spot; but it would be unreasonable if no such offer has been made and the object of the police is really to induce the accused to reveal the place of concealment. A general statement that the accused may be able to give further information should no circumstances be accepted as sufficient ground for such detention.
Note. - Detention in the custody of the police should be regarded as the exception and not as the rule and such detention should be made only when the Magistrate believes that certain points in the case cannot be properly investigated unless the police are allowed to have the custody of the accused.92. When an order for detention in the custody of the police is passed by a Magistrate other than the District or Sub-Divisional Magistrate he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate. The Magistrate to whom the copy of the order is sent shall satisfy himself that the order has been made on good and sufficient grounds and that the period of detention allowed is not more than is reasonably sufficient for securing the object in view.
93. A prisoner may not, under Section 167 of the Code, be detained in the custody of the police for a longer period than fifteen days in the whole, i.e., the whole period of his detention by the police should not exceed twenty-four hours plus fifteen days; exclusive of the time occupied in the journey to the Magistrate's Court after his arrest. When this period has expired an order of further remand should be passed under Section 344 of the Code after the case has been put up for trial before the Magistrate having jurisdiction.
Note 1. Order of remand under Section 344 of the Code have nothing to do with Police Investigation and the accused need not be remanded to police custody.Note 2. The decision to remand an accused under Section 344 of the Code is not a mere formality which can be left to a clerk, but is one which must be taken by the Magistrate himself in the exercise of the judicial discretion. The accused can be remanded for fifteen days at a time. Repeated remands should not be made except for strong reasons which should be recorded.94. An order of detention in police custody shall be written on the application for detention which shall be made in the form prescribed therefor. The Magistrate shall give the original order to the police and have a copy of it made in duplicate on the application to be filed with the magisterial record of the case. The copy shall first be sent to the Magistrate to whom the Magistrate making the order is immediately subordinate. The superior Magistrate shall after perusal return the copy to the Magistrate who is to enquire into or try the case to be filed with the record.
95. Whenever after a confession has been recorded a Magistrate is specially deputed to verify the confession locally with the aid of the accused, the accused shall remain in the charge of such Magistrate. The Magistrate shall make suitable arrangements for guarding the accused by peons, and the police shall not be allowed to take any part in guarding him.
5. Closing of the investigation and the Completed Investigation Report
96. An investigation is completed when-
97. If the Magistrate having jurisdiction is at the headquarters of a district the charge sheet should in the first instance be taken to the office of the District Superintendent of Police so that immediate action may be taken to obtain copies for proving such previous convictions as may have been noted in the charge sheet or for tracing out such convictions if none have been so noted. The prosecuting inspector should inspect the charge sheet and see that it is properly drawn up and is presented in the proper Court with as little delay as possible. In no case should a charge sheet be delayed in the office either for the purpose of procuring fresh evidence or for any other object without an express order from the Court.
Note. - A charge sheet consists of two parts and has a counterfoil. In the first part are entered the particulars of the case the names of witnesses for the prosecution and the property found. In the second part the result of the trial is entered. The counterfoil is filled in at the police station before the original is torn off and remains in the book as a memorandum of the facts. The charge sheet is sent to the Court with the original of the first information report.98. Except in extraordinary cases no alteration, correction or comment should be made on the original charge sheet. When any alteration, correction or comment is made, or when it is found necessary to substitute a fresh sheet for the original, the reason for any such alteration or change should be given to the Magistrate at the time of bringing the case before him.
99. When the trial is completed, and the result slip is filled in, the slip shall be signed by the Magistrate, or in cases committed to the Court of Session by the Sessions Judge, and despatched to the office of the District Superintendent of Police.
100. When the Magistrate or Judge considers that the property produced as stolen is not in fact all stolen, he shall enter in column 7 of the result slip of value of the part he thinks to be stolen.
101. When the final report, under Sections 169 and 173 of the Code, discloses facts which afford good prima facie grounds for believing a case to be false, or to have been instituted through mistake on the part of the complainant as to the criminal liability of the accused, the District Magistrate may order the case to be expunged from the Crime Register. Similar of the accused is sent up for trial under Section 170 and is acquitted or discharged on the ground that no offence was committed, the Court (subject in the case of a Court of a Magistrate to the orders of the District Magistrate) may direct the expunging of the offence.
Note. - Application to have cases expunged should ordinarily be made by the District Superintendent of Police in English and such applications should be confined to important cases.102. In doubtful cases an offence should not be expunged. Mere failure to elicit confirmatory evidence will not justify the expunging of a complaint once registered. Some positive evidence inducing a reasonable certainty that the offence was not committed is needed. On the other hand a Court should not refuse to make such an order merely on the ground that there is no strictly legal evidence before it on which it can declare the charge to be false or erroneous.
6. Inquests
103. When there is any doubt as to the cause of death, or when death is said to have been suicidal, or it appears that homicide or any other offence has been committed or when for any other reason a police officer considers it expedient to do so, he should forward the dead body to the medical officer appointed to hold post mortem examinations in the particular area in which the police station concerned is situated. For very special reasons which must always be stated, the police may send a dead body to the Civil Surgeon from any area.
Note. - All officers in charge of police stations should be kept informed of the medical officer to whom dead bodies should be sent for postmortem examination.104. In cases in which the remains discovered consist mainly of bones or are so scanty as to require a highly skilled opinion to decide the cause of death, the identity of the remains and other similar matters, they should always be sent to the Civil Surgeon of the district for examination.
105. When a dead body is sent to headquarters from a place where a medical officer is stationed, the police may call on him to inspect the body and to describe in writing any wound or other unusual external condition that may be present.
106. When intimation is received by the officer in charge of a police station that a death has occurred by suicide, by homicide, by an accident by the attack of an animal or in suspicious circumstances, he shall give immediate information to the nearest Magistrate empowered to hold inquests and proceed to the spot where the body of the deceased person is.
Note. - District Magistrates shall inform District Superintendents of Police which of the Subordinate Magistrates have been empowered under Section 37 read with Section 174 of the Code to hold inquests.107. When any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall hold an enquiry into the cause of death as required by Section 176 of the Code either instead of or in addition to the investigation held by a police officer. If the Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of death, he may cause the body to be disinterred and examined.
Chapter 5
General Procedure in Enquiries and TrialsComplaints109. Complains of offences, whether oral or in writing should be received on all working days at a fixed hour either at the commencement or at the close of the days sitting by the Magistrate having jurisdiction to receive them.
For Court-fees payable on complaints see Part III Chapter 22110. Section 200 of the Code requires, except in cases covered by the proviso to sub-section (1) of that Section, that the complaint shall be examined on oath "at once." Keeping complainants waiting about the Court for days before examining them or of fixing more or less distant dates for them to appear for examination is not only a direct violation of the law but may amount to a complete denial of justice in the case of poor persons residing at a distance from the Court house. Any tendency towards such a practice should be severely checked.
111. The examination of a complaint should not be a mere formality. He should be examined intelligently and in such a manner as to enable the Magistrate to determine whether there is prima facie sufficient ground for proceeding. Magistrates should also bear in mind the provisions of Section 95 of the Indian Penal Code and apply them reasonably to the complaints before them with reference to the position in life of the parties concerned and the habits of the class to which they belong. They should also bear in mind the provisions of Section 203 of the Code which lays down that the Magistrate before whom a complaint is made or to whom it has been transferred may dismiss the complaint if, after considering the statement on oath (if any) of the complainant and the result of the investigation or enquiry (if any) under Section 202, there is in his judgement no sufficient ground for proceeding.
112. Many Magistrates, whether from laziness, timidity or misplaced conscientiousness, make insufficient use of the provisions of Section 203 of the Code, and issue process indiscriminately after the most cursory examination of the complainant and without applying their minds judicially to the facts brought out. Such procedure cannot be too strongly condemned. On the proper use of the provisions of Section 203 of the Code depends the protection of the general public from the harassment and expense of appearing in the Court to answer false or trivial complaints, and Magistrates who fail in this respect fail in an important part of their duties. The proper use of the provisions of Section 203 is a matter to which inspecting officers should invariably devote attention.
113. It should be borne in mind that in a non-congnizable case an enquiry or investigation by the police can only be ordered by a Magistrate of the first or second class who is not satisfied as to the truth of a complaint of an offence of which he is authorised to take cognizance. In petty cases of assault, hurt, insult, simple trespass and the like the complainant should be left to make out his own case, and if the Magistrate is not satisfied as to the truth of the complaint it is better that before issuing a process he should enquire into the case himself by requiring the complainant to produce some evidence in support of the charge, rather than that he should waste the time of a police officer by directing him to investigate the case.
114. In non-cognizable cases a Magistrate should not order the police to make an enquiry or investigation regarding matter which are of private rather than of public interest, or which, though they may be of public interest are of such a nature that it is not expedient to employ the agency of the police in investigating them.
Note. - As a rule the police should not be directed to make an enquiry or investigation in cases which would involve mainly an enquiry into a dispute concerning land, or an examination of a banker's books of accounts. In such cases if a local investigation is required, it should be made through a tahsildar or one of his subordinates.115. The question of jurisdiction requires careful attention at the outset. Schedule II of the Code shows the classes of Courts by which offences are triable. In determining the nature of the offence, the facts ascertained by the examination of the complainant and the preliminary enquiry, if any are the chief matters to be taken into consideration, and importance should not be attached to the particular section specified or the offence alleged it to the complaint. It should also be remembered that certain offences cannot be taken cognizance of at all except upon the complaints of certain persons or Courts with the previous sanction of the Government (Sections 195 to 199-A of the Code).
116. If a Magistrate finds that the offence disclosed is not triable by him he should report the case to the Sub-Divisional Magistrate for its transfer to a competent Court. He should take similar action when he finds that although he has jurisdiction to try the offence, he will not be able to impose an adequate sentence in the event of a conviction.
117. When a Magistrate taking cognizance of an offence is of opinion that there is sufficient ground for proceeding, he must, having regard to the provisions of Section 204 of the Code, decide whether a summons or a warrant should issue in the first instance for the attendance of the accused.
Note 1. - Sections 202 and 203 of the Code do not contemplate a magistrate's calling upon an accused person to show cause why process should not be issued against him. Such procedure is inconsistent with the scheme of the Code and is improper and irregular. The Magistrate should not make an accused person a party to the proceedings before he has decided to issue and does issue process against him.Note 2. - Great care should be taken not to issue a warrant when a summons would be sufficient for the ends of justice. Magistrate should remember that the issue of a warrant involves interference with the personal liberty of a person and they should take care to see that no greater hardship is caused than is necessary.Note 3. - Under Section 76 of the Code a Court has the discretion to make the warrant bailable and the discretion should be exercised with due regard to the nature of the offence, the position of the accused and the circumstances of the case.Procedure in Trials118. In dealing with trials and enquiries presiding officers should remember that their position is not that of Judges of Civil Courts who decide cases on the evidence put before them and leave it to the parties concerned to see that the evidence they produced is complete. Their primary duty is the ascertainment of the facts and the punishment of the guilty. For this purpose they have, under the Evidence Act and the Code, ample power. The fact that the prosecution is conducted by a public prosecutor or by a prosecuting inspector of police does not absolve the presiding officer from this duty.
119. If a case commences as a warrant case it must be tried throughout according to the procedure for warrant cases. The fact that no offence triable as a warrant case is made out is no justification for completing the case as a summons case. Such a procedure is illegal.
120. When several accused are tried together and some are charged with offences triable as warrant cases and others with offences triable as summons cases the procedure throughout should be that of a warrant case.
121. Similarly in the investigation of a complaint which forms the subject of two distinct charges arising out of the same transaction, one of which is a warrant and the other a summons case, the procedure should be that prescribed for warrant cases.
122. The attention of the Courts is invited to the provisions of Section 25 of the Central Provinces Children Act (C.P. X of 1928) regarding the attendance of the guardians of youthful offenders when dealing with cases in which persons under the age of sixteen are charged with any offence.
123.
124.
125. Special care should be taken for the safe custody during the pendency of the enquiry or trial of documents that are forged or suspected to be forged. Ordinarily they should not be retained with the record but should be deposited with the nazir in a sealed cover after such hearing. See also Part II Chapter 18, Rule 466.
126. Oaths and affirmations made under Section 5 of the Indian Oaths Act (X of 1873) shall be administered according to the following forms:-
I. Affirmation127.
128. The following instructions of the summoning of post office officials and records should be carefully followed:-
129. The following instructions issued for the guidance of postal officials are reproduced for the information of Criminal Courts:-
A summons from a Court of civil or criminal jurisdiction to produce any of the records of a post office or a certified extract from or copy of any of such records must be complied with; the receipt of such a summons and such particulars as are known to the postmaster regarding the case should be at once reported to the Postmaster-General, in case he should see fit to raise any objection in Court under Section 123 or Section 124 of the Indian Evidence Act (I or 1872) to the production of any of the records. When any journal or other record of a post office is produced in Court and admitted in evidence, the officer producing it should ask the Court to direct that only such portions of the records as may be required by the Court shall be disclosed.130. When any journal or record of a post office is produced in Court, the Court shall not permit any portion of such journal or record to be disclosed other than the portion which seems to the Court necessary for the determination of the case then before it.
131. The following instructions for the dress of officers and soldiers appearing before a Criminal Court (other than a Court established under military law) have been approved by Governor-General in Council:-
132. The Code gives ample power to Magistrates to prevent the summoning of unnecessary witnesses and this powers should not be ignored. As the expenses of witnesses are paid by Government there is no inducement for the defence to curtail the number of witnesses and many are summoned only to be given up. A discreet use of the power referred to above will prevent the abuse. The defence of the accused, if properly recorded, should disclose to the Magistrate whether the evidence of the witnesses named for the defence is or is not necessary.
133. Every application for the issue of process for the attendance of witnesses in criminal cases shall, if the party presenting the application is represented in the case by a legal practitioner, contain a certificate signed by such practitioner, that he has satisfied himself that the evidence of each of the witnesses is material in the case.
134. Deleted.
135.
136. Offences specified in Section 260 of the Code may be tried summarily by a District Magistrate or a Magistrate of the first class empowered in that behalf of by a bench of Magistrates invested with the powers of a Magistrate of the first class and specially empowered in this behalf by the Provincial Government. Certain offences specified in Section 261 of the Code may be tried summarily by any bench of Magistrates invested with the powers of a Magistrate of the second or third class specially empowered in this behalf; subject to the exceptions specified in Rule 137 below, it is desirable to try by summary procedure as far as possible all Petty cases that can be so tried.
Note 1. - A summary trial is summary only in respect of the record of the proceedings and not in respect of the proceedings themselves which should be as complete and carefully conducted as if they were recorded at length.Note 2. - It is illegal to make use of the summary procedure in cases of bad livelihood or other proceedings not being trials of any of the offences mentioned in Section 260 or 261 of the Code.137. The following cases should not be tried summarily:-
138. In summary trial the procedure prescribed for summons cases should be followed in summons cases and that prescribed for warrant cases should be followed in warrant cases subject to the modifications made by Sections 263 and 264 of the Code as to the record required.
139. It is desirable that all witnesses on both sides should be examined on the same day in summons cases tried by summary procedure. There is not need to summon the prosecution witnesses for the first hearing on which the particulars of the offence of which he is accused have to be stated to the accused under Section 242 of the Code. If at this hearing the accused does not admit the offence of which he is accused the case should be adjourned for the production of the witnesses of both sides under Section 244. If on the adjourned date of hearing the accused does not produce his witnesses but ask for a future adjournment to secure their attendance, the Magistrate can, in the exercise of his discretion under Section 244 (2), refuse to adjourn the case and proceed to judgement.
140.
141. Where Civil or Criminal Court makes a written complaint under Section 476 of the Code the Court shall forward along with the written complaint a copy of the order directing the filing of the complaint and any documents in respect of which the offence complained of has been committed, precaution being taken to ensure the safe custody of the documents while in transit. It will then be for the prosecuting authority or the Court dealing with the complaint to secure from the file of the complaining Court such other documents as are necessary. Original documents should be sent for only where this course is unavoidable, i.e., where certified copies cannot be used, and they should be detained only as long as they are essentially required. If any original documents from the record of the complaining Court is brought on the record of the Court trying the complaint it should be returned immediately the case has been disposed of.
Where an original document is requisitioned the complaining Court should send along with it a certified true copy so that the original may. be returned as early as possible.Cases to be committed to Courts of Session142. The Magistrate holding a commitment enquiry should invariably refer to the list of dates for holding sessions which is published annually in the Madhya Pradesh Gazette, and endeavour to complete his proceedings in time for the case to be tried at the session next following the date of their commencement. In particular there should be no avoidable delay in making the order of commitment required by Section 213 (1) of the Code.
143. The Magistrate holding an enquiry shall report the commencement of each commitment proceeding to the Sessions Judge as soon as the accused is produced, and immediately after the commitment he shall send an intimation to the Court of Session through the District Magistrate if he himself is not the District Magistrate. If articles in the case have been sent to the Chemical Examiner the information required by Rule 156 below must also be given. The Court of Session will then fix a date for the trial and inform the District Magistrate of the date fixed.
144. The Magistrate on charging the accused and recording in an order his reasons for commitment shall send the record of the enquiry with the charge and the order directly to the Sessions Judge, reporting at the same time the section under which the offence charged is punishable and the number of witnesses cited for the prosecution and for the defence and estimating the probable duration of the trial. Any weapon or article to be produced before the Court of Session, if not sent to the Chemical Examiner, shall be forwarded to the nazir of the District Magistrate's office to be produced at the trial. If for any special reason e.g., where the committing Magistrate thinks fit to examine supplementary witnesses under Section 219 of the Code, it is necessary to detain the record the report should make known the detention and the reasons for it.
145. When two or more persons are accused of the same offence or of offences arising out of the same transaction, the Magistrate should not convict some and commit others to the Court of Sessions. If any one of the accused is charged with an offence beyond the jurisdiction of the Magistrate, or one which in the opinion of the Magistrate ought to be tried by the Court of Session, all the accused persons implicated, against whom there is prima facie sufficient evidence, should be committed for trial.
146. A translation of the police case-diary is prepared by the translator attached to the Session Judge's office. The committing magistrate should, therefore, obtain the case-dairy from the District Superintendent of Police as soon as the case is committed, and send it to the Sessions Judge.
Note. - The translation is intended solely for the use of the Court of Session and the High Court and neither the accused nor any person on his behalf should be permitted to see it at any stage of the proceedings.147. Immediately after the commitment order the committing Magistrate shall make a note showing whether the accused or each of the accused where there are more than one, is or is not able to engage a counsel for his defence in the Court of Session. If any accused is committed on a capital charge to the Court of Session and the committing Magistrate considers that such accused is unable to engage a counsel for his defence in that Court, the Magistrate shall ask the District Magistrate to take action as required by Rule 132 of the Law Department Manual.
The Order Sheet148. An order sheet in form Nos. 144 and 203 on Schedule II shall be used in all trials and shall form part of the record of each trial.
149. In cases before the Court of Session the sheet shall open with an entry recording receipt of intimation that commitment has been ordered, and the receipt of the committing Magistrate's proceedings shall also be recorded. The preliminary proceedings such as the appointing of a date for the trial and the selection of assessors shall then be entered.
Note. - With a view to have the facts of case brought out in their logical sequence, the Public Prosecutor should be asked to report as to the witness he wishes to examine and the sequence in which he intends to examine them on the opening and the following days of the trial.150. The order sheet shall clearly show the course of a trial or enquiry from first to last in chronological order. It shall contain a note of very order made and shall show the date of every hearing and the proceeding at the hearing. It should be a faithful, complete and concise history of the trial or enquiry and of all proceedings taken in it so that a Court of appeal or revision may be able to trace at once from the sheet the whole course of the proceedings.
151. Interlocutory orders should normally be entered in the order sheet but lengthy interlocutory orders should be separately recorded, the order sheet merely containing a note that such orders have been delivered. Final orders, except final orders of a purely formal nature such as the dismissal of a complaint in the absence of the complainant, must not be written on the order sheet.
152. An order for payment of process-fees should invariably fix a time for such payment. In the right hand margin of the order sheet against such an order the Court reader shall note the date on which the process-fee so directed to be paid was actually paid and the date on which the process was issued. Omission to pay the process-fee should like wise be noted.
153. Routine entries and the order sheet, especially preliminary orders of the kind referred to in Rule 149, may be made by the Court reader but shall be signed at the close of the proceedings each day, as well as at the conclusion of the trial, by the presiding officer after he has satisfied himself of their correctness. The responsibility for all orders in the order sheet is entirely on the presiding officer and the permission contained in this rule for routine entries to be made by Court readers must not be construed as detracting from that responsibility.
Dismissal of Cases in Default154. Before a case is dismissed by reason of the absence of the complainant the presiding officer should consider not only whether such an order is legal but whether it is justified by the circumstances.
155. Applications for revision of orders of dismissal in default frequently urge (i) that the case was not called, (ii) that the case was dismissed very early in the day, (iii) that the presiding officer being on tour the complainant has no notice or insufficient notice, of the place of sitting, and the record often furnishes no definite information of these points. The following instructions shall accordingly be followed:-
156. The procedure to be followed in sending articles to the Chemical Examiner will be found in Government Book Circular V-3 and the proof of such sending is dealt with in Chapter 7, Rule 207. It is necessary, in view of the delays involved in the examination, that a Magistrate should decide as early as possible whether he is going to make a reference to the Chemical Examiner or not, and if he decides to make a reference to make it at once. The careful following of the prescribed procedure is the personal responsibility of the Magistrate.
157. When, a Magistrate forwards articles to the medical authorities for despatch to the Chemical Examiner he should mark each with a letter or number, in writing or by a label. The medical authorities will then be able to quote this mark in their forwarding list against the number by which they describe the article themselves. As far as possible every' article should be given a separate mark. For instance, a lock and key, a pestle and mortar, and other articles which go in pairs though each part is separable, should be separated and marked separately.
158. The Magistrate should also state in his forwarding letter whether he requires the origin of the blood-stains on any article to be determined, and where the blood-stains are suspected to be human it should be stated explicitly that they are suspected to be human. If the origin of the blood-stains is required, the Magistrate should add in his forwarding letter-
159. When a case in which articles have been sent to the Chemical Examiner is committed to the Court of Session the intimation required by Rule 143 above shall mention the fact that articles have been sent to the Chemical Examiner and the date on which they were sent. In fixing the date for trial the Sessions Judge should take this information into account.
160. Committing Magistrates should take particular care to see that articles on which the Chemical Examiner's report is required by the police after the accused has once been produced in Court are not delayed in the police office.
Chapter 6
Examination of the Accused and ChargeExamination of the Accused161. The provisions of Section 343 of the Code should be carefully followed. That Section empowers the Court to put questions to the accused at any stage of the enquiry or trial to enable him to explain any circumstances appearing in evidence against him. The questions put should be confined to the points brought out in the evidence and should not be in the nature of cross-examination of the accused, nor should the power given by the section be used to elicit information from the accused to fill up gaps in that prosecution evidence.
Note 1. - Section 342 is intended for the benefit of the accused and he should be given every chance of explaining any circumstances appearing in the evidence which has been given against him.Note 2. - In addition to the statement of his age as given by the accused the Court should give its own estimate of his apparent age "and if it considers necessary, order a medical examination of the accused about his age and also ask the prosecution to produce documentary evidence on the point of his age, if it is readily available" in order to assist the Appellate Court and the authorities before whom the case may afterwards come for the exercise of the prerogative of mercy.162. It is generally desirable to remind the accused of the chief points in the testimony of each witness and to question him upon each. The accused seldom takes any written notes of the prosecution evidence and it may be unfair and unjust to expect him to remember all these points.
163. A general and vague question such as "You have heard what the witnesses have said. What have you to say?" is to be deprecated. It is usually best to refer to each witness separately, for, among other reasons, the partiality or otherwise of each witness is a subject upon which the accused should ordinarily be given a hearing.
164. The first examination of the accused may often be made with advantage at an early stage in the proceedings. For instance, in a case of theft if the accused admits possession of the alleged stolen property, it may be possible to dispense with the examination of some witnesses who can then be discharged without further delay.
165. Section 342 of the Code makes it obligatory for a Court to examine the accused generally on the case after the witnesses for the prosecution have been examined and before the accused is called on for his defence. Even when the accused has been examined at an earlier stage, the Court must examine him generally after the close of the prosecution case, i.e. after the examination and cross examination of the prosecution witnesses and their further cross-examination if any, after the charge is framed and before he is called upon to produce his defence, so as to give him an opportunity to explain any points which are not included in the questions put to him at earlier stages. After the Court has asked all the questions it considers necessary, it is still desirable to ask the accused whether he has anything else to say.
166. If the accused or his pleader puts in a written statement it should be filed with the record; but the filing of a written statement does not relieve the Court of the duty imposed by Section 342 of the Code of examining the accused after the close of the prosecution evidence.
167. Section 364 of the Code prescribes the mode in which the examination of an accused should be recorded. The questions put to the accused and the answers given by him should be distinctly and accurately recorded in full in the language in which he is examined, and if that is not practicable in the language of the Court or in English. In cases in which the examination is not recorded by the Magistrate himself he must record a memorandum thereof in the language of the Court or in English if he is sufficiently acquainted with the latter language.
168. The examination of an accused shall be shown or read or interpreted to him and made conformable to what he declares to be the truth. It shall then be signed by the accused and also by the Magistrate. The Magistrate shall then certify under his own hand that the examination was taken down in his presence and hearing and that the record contains a full and true account of the statement made by the accused. These formalities must be strictly complied with.
The Charge1. General
169. The provisions of Chapter XIX of the Code as to the framing of the charge should be carefully followed. Sections 221 to 223 show the form in which a charge should be drawn up and the particulars which should be entered therein; and Sections 233 to 239 show how charges may be joined, when they should be in the alternative form, and what persons may be charged jointly. Special care is needed in the joinder of charges.
170.
171. If the law relating to the offence gives it any specific name, the offence shall be described in the charge by that name. If the law does not give any specific name, so much of the definition of the offence shall be law and section of the law against which the offence is said to have been committed shall always be mentioned in the charge.
172. Nothing which is not essential to the offence should be included in the charge, except such particulars as to the time and place of the alleged offence and the person (if any) against whom, or the thing (if any) in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. It is unnecessary, for instance to specify in a charge of murder the weapon with which murder was committed.
173. In prosecutions for giving false evidence under Sections 193, 194 and 195 of the Indian Penal Code the particular statements alleged to be false should invariably be set out in the charge to enable the accused to understand fully the offence with which he stands charged.
174. In the case of theft if the property, which it was the thief's intention (as shown by the circumstances or by his admission) to take, consisted of a number of contiguous articles, which were reached by one and the same act of trespass or which were the subject of a single enterprise, the moving of each article in the course of removal of the whole bulk of property cannot ordinarily be considered to be a distinct theft. The transaction in such a case was single, although it may have been achieved in detail; and the fact that the spoil taken consisted of several things, whether belonging to the same or the different owners, does not necessarily break up the unity of the transaction. If, on the other hand, the property taken consisted of a number of articles so distantly or diversely situated as to require a distinct act of trespass or a distinct enterprise for the removal of each, the transaction should ordinarily be held to have been not single but complex, and its achievement to have involved the commission of more than one separate theft; e.g.-
2. Previous Convictions
175. Sub-section (7) of Section 221 of the Code directs that, if the accused having been previously convicted of any offence is liable, by reason of such previous conviction, to enhanced punishment or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge, An admission by an accused person of a previous conviction, or the mere recording of the fact that previous convictions have been proved against the accused will not suffice. To render the accused liable to a sentence which cannot be passed except on proof of a previous conviction, the fact, date and place of previous conviction must be set forth in the charge before sentence is passed.
Note 1. - A previous conviction for the purpose of affecting the punishment which a Court is competent to award is a conviction the penalty following which had been undergone by the accused (in whole or in part) at the time when he committed the offence for which he is being tried. Not all convictions on record at the date of the charge are, however, always to be reckoned as previous convictions for the purposes of Section 75 of the India-Penal Code.Note 2. - When a person has been convicted at or about the same time of more offence than one and after undergoing the accumulated penalties for those offences commits another offence and is again convicted, each of the previous convictions is a separate conviction in relation to the present conviction.176. It is not necessary to state previous convictions in the charge unless-
177. A previous conviction may be proved, in addition to any other mode provided by any law for the time being in force-
178. If the name, father's name and caste of the person sentenced which are given in the copy, certificate or warrant, tally with those claimed by the accused under trial, the agreement may be treated as a circumstance appearing in the evidence against him which he should be called upon under Section 342 of the Code to explain. If on examination he denies his identity with the person described in the document, it will be necessary to call a witness or witnesses having personal knowledge that the accused has been previously convicted.
179. In cases of the kind referred to in the last sentence of Rule 176 the previous convictions must be formally proved if they are not admitted. In using them for his limited purpose the Magistrate should be guided by the analogy of Section 30 of the Code. The judgement should be temporarily closed as soon as the conclusion that the accused is guilty has been arrived at therein. The order sheet should then show that the accused has been questioned as to certain previous convictions alleged but not up to that stage admissible in evidence, the actual questions and answers being recorded as an addition to the examination made under Section 342 of the Code. Whether these convictions are admitted or denied the documents constituting legal proof of them shall be filed with the record. Finally the judgement should be completed and finding and sentence recorded.
Chapter 7
Recording of Evidence180. The evidence of each witness should, in the cases referred to in Section 256 of the Code, be taken down by the Sessions Judge or Magistrate with his own hand and in his mother tongue, unless he is prevented by any sufficient reason from taking down the evidence, of any witness, in which case he should record the reasons of his inability to do so and should cause the evidence to be taken down in writing from dictation in open Court:
Provided that-181. Whenever an interpreter is employed to interpret evidence given in a language not understood by the accused or the court, Session Judges and District Magistrates are authorized to pay to such an interpreter any reasonable remuneration not exceedings Rs. 10 a day. District Magistrates are also authorized to sanction, within the limits mentioned above, similar charges incurred by Magistrates subordinate to them. The charges on this account shall be debited to the head indicated below:-
182. Depositions should be recorded on the printed forms supplied. It is a convenience to Appellate Courts if lengthy depositions are divided into numbered paragraphs. When a deposition cannot be completed in one sheet, the printed forms for the continuation of depositions should be used for all sheets after the first, each such sheet being marked in the right hand top corner with a number denoting its order in the deposition : thus the first continuation sheet will be marked "2", the second "3". and so on. The deposition of each witness should be recorded on a separate sheet and in the manner prescribed in Chapter XXV of the Code. It is illegal to record the deposition of one witness at length and to enter against the names of other witnesses that they "state as above". Depositions should be recorded in the first person.
183. The headings, both of deposition sheets and of continuation sheets, are invariably to be filled up by the presiding officer himself. In the former, the word "oath" will be substituted, when required, for 'affirmation'. The age of the witness slated in the heading will be estimated by the presiding officer, if the witness does not appear to be able to state his own age correctly. If, for any special reason, it is necessary to record the witness own statement as to his age, it will be recorded in the body of the deposition. The particulars as to the name, parentage, residence and occupation of the witness are a part of the deposition itself and are not to be recorded till the oath or affirmation has been administered. The occupation of the witness must be slated with precision. For instances, "servant" is not a sufficient description : it must be stated what kind of servant the witness is. Similarly, "private service", which means nothing more than private employment as opposed to public employment, must be resolved into a particular kind of employment. A witness should not be recorded as by occupation a Government servant, for it is generally useful to know of what standing he is and it is particularly important sometimes to know whether he is a police officer or not. It should be borne in mind that a witness well known locally may not be well known in the Court to which the record may ultimately have to be submitted. If the witness is a married woman her husband's name should replace that of her father.
Note 1. - The name of a European witness should be recorded in full. It is not necessary to record his father's name, and in the case of a well known official the age may be omitted from the heading.Note 2. - Except where it is relevant for the purpose of legal proceedings a witness should not be asked to reveal his caste as a matter of course. It will, however, be open to the Court to ask a witness if the circumstances so justify.184. In depositions recorded in English the use of Hindi or Marathi words or phrases (not being technical, revenue or law terms) should be avoided if there is a complete and corresponding English equivalent. If a Hindi or Marathi word, other than a word of very common and unambiguous meaning, is used its nearest English equivalent should be added in brackets. This should be treated as important. It is often necessary to know in what sense a lower Court is using a Hindi or Marathi word. Similarly Indian dates should be followed by their English equivalents in brackets.
185. The presiding officer should not omit to make a note about the demeanour of a witness when such demeanour is noteworthy and affects his estimate of the value of the evidence given by the witness.
186. Each deposition should be signed (not merely initialled) by the presiding officer, who should add to his signature at least the initials indicating his official designation, so that the deposition may be complete in itself.
Note. - Every alteration, interlineation and erasure made in any deposition or part of a record of judicial proceedings shall invariably be attested at the time by initials of the presiding officer. He may type depositions or memoranda of evidence, but he shall sign every page of such typed matter.187.
188. It is important that the whole of the evidence given by each witness should appear in one place, and should not be scattered at intervals through the record. Therefore when a witness is for any reason recalled and further examined after the close of his original deposition such further examination should appear as a continuation of the original deposition being headed as follows for the sake of distinction:-
"Recalled for further examination on this (here enter the date) after the" (here show the stage of the proceedings immediately preceding the recall of the witness, e.g., if the first witness for the prosecution is called after the 10th, the entry would be "10th witness for the prosecution."189. When in the depositions any witnesses or accused persons are referred to they should be described by their name, or by their name and number, but not by their number only. When there are two or more accused this is particularly important if future confusion is to be saved.
190. Care should be taken to make depositions as clear as possible. In particular different words or phrases should not be used in different parts of the deposition to describe the same objects and documents. A person should be referred to in consistent manner e.g., he should not be referred to by his family name at one place and by his personal name at another.
191. The recording of evidence should as far as possible proceed de die en diem. Unnecessary adjournments and detention of witness not only inflict hard-ship but result in the waste of public money in the payment of daily allowance. This is a matter to which inspecting officer should devote special attention.
192. When a witness is being examined whose evidence has to be read with reference to a map, the presiding officer should, as far as possible, record the evidence in such a way that the places mentioned by the witness are identifiable on the map.
193. The imperative language used in Sections 5, 60, 64, 136 and 165 of the Indian Evidence Act indicates that whether objection to evidence is or is not raised by any party the Court should compel observance of the law. It is, therefore, the duty of the presiding officer to ascertain by a few questions put to each witness at the proper time, whether he is speaking of matters within his own knowledge, or merely of those which he has heard from others; and if the former, what are his means of knowledge. Under Section 165 of the Evidence Act the presiding officer may, in order to discover or to obtain proper proof of relevant facts, question a witness at any time about any fact, relevant or irrelevant; but he should not ordinarily interfere after the examination-in-chief has been finished and question the witness upon points to which the cross-examination will properly be directed, as to do so may render the subsequent cross-examination ineffective.
194.
195. When a witness is being cross-examined, the presiding officer should guide himself by the provisions of Sections 146, 148, 151 and 152 of the Evidence Act, and disallow any question which appears to him to be improper. He should see that much is not made of trifling discrepancies, that the examination is not protracted beyond reasonable limits even if the questions put be logically relevant, and that the witness is not subjected to questions which merely invite repetition of the story which he has already given in his examination-in-chief in the hope that he will change it in the repetition. In this connection Section 136 of the Evidence Act should be borne in mind, as it empowers the presiding officer to ask a party proposing to give evidence in what manner the alleged fact, if proved, will be relevant. The cross examiner must not be allowed to bully or take unfair advantage of the witness. Use should be made of disciplinary power conferred by Section 150 when its exercise appears to be called for.
196. While it is necessary for the Judge or Magistrate to check random and pointless questioning he should be careful not to frustrate a skilful cross-examination by interposing when the drift of the questions is not immediately apparent and some questions are repeated. Where long and complicated leading questions are put to ignorant witnesses to which only a plain affirmative or negative is required in answer, it is necessary for the Judge or Magistrate to make sure that the witness understands the full implications of the questions and that his answer represents his independent mind. It is generally desirable to record the actual questions and answers in such a case so as not to give a wrong impression that the whole of the statement is in the words of the witness. He should endeavour to follow the line and purpose of the cross-examination closely and should only ask the examiner to explain the relevancy of a line of enquiry when it obviously processes no point or bearing upon the case.
197. A witness may be questioned in cross-examination not only on the subject of enquiry but upon any other subject, however remote, for the purpose of testing his credibility, his memory, his means of knowledge, or his accuracy. The moment it appears that a question is being asked which does not bear upon the issue or give promise of helping the Court or to estimate the value of the witness testimony, it is the duty of the Court to interfere as well to protect the witness from what then becomes an injustice or insult as to prevent the time of the Court from being wasted. The Court should also prevent any evidence being given to contradict a witness in contravention of Section 153 of the Evidence Act.
Note. - When a witness is confronted with a previous statement reduced to writing, whether made to the police or in a deposition, a copy of the statement should be filed with the record.198.
199. Care should always be taken to record medical evidence so fully and intelligently as to render a second examination of the witness by another Court unnecessary. It is not enough for the witness to repeat mechanically the technicalities of an injury report or a post-mortem report. The presiding officer should see that there is a proper examination of the medical witness on all salient points e.g., if a man dies as a result of blows from an axe the state of his liver or other abdominal organs is immaterial but the nature of his wound is material; if from lathi blows the state of the skull (abnormal thinness for instance) or brittleness of bones is material, and rigor mortis or the contents of the stomach are often of importance as an aid to ascertaining the time of death if this is in dispute. The presiding officer should question him after his evidence is recorded, so as to make sure that he has understood and fully appreciated the evidence.
Note 1. - Post mortem and other medical reports should be formally proved. It is not necessary that the entire contents of the report should be taken down in evidence. It is sufficient for the medical witness to state explicity that the report embodies the observations he made at the time. Such formal proof of the report does not, however, absolve the presiding officer of the duty of directly examining the witness on the more important points.Note 2. - When a presiding officer suspects that an enquiry report in a medico-legal case or a post-mortem examination report is false he shall report it to the District Magistrate, who shall forward it to the Inspector-General of Civil Hospitals with such remarks as he sees fit to make.200. The deposition of a medical officer is to be fully interpreted to the accused, who is to be allowed every opportunity to cross-examine. In order to ensure that the deposition may, in all cases, admissible under Section 509 of the Code, the presiding officer shall sign at the foot of it a certificate in the following form:-
"The foregoing deposition was taken in the presence of the accused who had an opportunity of cross-examining the witness. The deposition was explained to the accused and was attested by me in his presence".201. Presiding officers should take medical evidence in all cases which they have reason to believe to be cases of grievous hurt whenever such evidence can be obtained without disproportionate cost or inconvenience. It is, however, the duty of the Court to determine on the facts established by the evidence whether a charge of grievous hurt can or cannot be sustained. It is not for the medical officer to decide whether the hurl does or does not amount to grievous hurt under the law.
Note. - The law does not allow the compulsory examination of the person either of a man or of a woman. No Court, therefore, should direct the examination, by a medical officer of any part of a living woman's person unless she expressly consents. If she consents and an examination is ordered, her consent should be recorded before the examination is made. Similarly, if she is asked whether she is willing to undergo an examination and she refuses to do so, refusal should be recorded. For a minor the consent of the parent or guardian is sufficient.202. Whenever a medical officer is questioned about the result of his examination of any person, corpse or substance, evidence should always be taken to prove that the person, corpse or substance examined by him and to the examination of which he testifies, is the person, corpse or substance in question in the case. For this purpose the evidence of the person who conveyed the corpse or substance to the medical officer should be taken and, in cases where the examination by the medical officer of a living person is in question, the identity of the person examined by him with the person in question in the case should be placed beyond doubt by actual identification in Court, if the person is able to be present, and if not, by the evidence of the person who conducted him to the medical officer.
203. If in any particular case the evidence of a medical witness is not available, the details, such as the fact of death, the symptoms, appearances, wounds, etc. must be ascertained as correctly as possible from the evidence of non-professional eye-witnesses. The Court cannot assume any such facts from mere reports not admissible as evidence.
204. If a medical officer is about to be transferred to another district the presiding officer should endeavour to avoid the expense of bringing him from that other district as witness by examining him before he goes. If he has already gone the presiding officer should consider whether he cannot be examined on commission. If the presiding officer considers it necessary nevertheless that the medical officer should be summoned he should add to the summons an endorsement in his own hand saying that he considers the personal attendance of the medical officer desirable and that a commission is not being issued. If the officer to be summoned is a Civil Surgeon a subordinate Magistrate should satisfy the District Magistrate to whom he is subordinate, that a commission is not desirable. In cases likely to go to the Court of Session the issue of a commission by the Magistrate is usually undesirable because of the provisions of Section 507 (2) of the Code and Section 33 of the Indian Evidence Act.
205. Whether it is necessary to have the evidence of the Chief Inspector or an Inspector of Explosives taken in a Magistrate's Court which is a long way from their headquarters and the case is such as would normally be committed to the Court of Session the evidence may, in suitable cases, be taken on commission.
206. In cases where chemical examination of explosive substances is considered necessary they should be sent to the Chemical Examiner of Explosives to the Government of the Central Provinces and Berar. A fee of Rs. 30 shall be paid to him for each test.
Note. - As the transport of explosive substances is invariably attended with a certain amount of risks they should not be sent by rail unless it is absolutely necessary. They should be carefully packed and sent by hand in charge of a police officer. A small basket filled with straw makes a convenient holder and the articles may be carried wet or dry as required. Substances containing sulphide of arsenic or sulphide or chlorate of potassium should be immersed in water.207. In cases where the report of the Chemical Examiner is tendered it is absolutely necessary that evidence should be taken to connect the articles reported on by the Chemical Examiner with the case before the Court and every step taken with regard to such article must be proved from their discovery to their despatch to the Chemical Examiner. In the absence of such proof, the report of the Chemical Examiner is valueless as evidence.
Note. - Instructions on the transmission of substances to the Chemical Examiner and Government Analyst, Agra will be found in the Book Circulars of the Government of the Central Provinces and Berar, No. V-3.208. (a) When the evidence of an officer connected with the Mint is required as to the genuineness or otherwise of a coin the Court should in suitable cases send the coin to the Mint under cover of its Court seal and at the same time issue a commission for the examination of such officer as a witness.
"(b) The Court, as far as possible, should issue commissions under Section 503 of the Code for the examination of Officers of the Indian Security Press (Stamp Press), the Currency Note Press and the Central Stamp Store, Nasik Road, as witnesses where their evidence is required in cases arising out of forged currency notes, stamps (Postal, Revenue, Judicial, etc.), petrol coupons, excise banderols and the like which are manufactured in the Indian Security Press and the Currency Note Press."209. It is desirable that discrimination should be exercised in requiring the attendance of a Government Examiner of Questioned Documents. He should not be called on to appear in unimportant cases or in cases where his evidence is not likely to be of real use. If a Magistrate considers that a Government Examiner should be summoned to give evidence the approval of the District Magistrate must be obtained before the issue of summons. As long a notice as possible should be given to the Government Examiner when called to give evidence.
210. The rules regulating application and payment for the services of the Examiner of Questioned Documents appointed by the Government of India are printed as an Appendix to this Chapter.
211. The rules regulating payments for the services of the Examiner of Questioned Documents appointed by the Provincial Government are printed in Part III, Chapter 23, Rule 565.
212. When a railway official is required to attend Court the presiding officer should endeavour to detain him as little as possible.
213. When a Government Inspector of Railways is required to attend Court as an expert witness in connection with railway accidents the summons should be served on him through the Chief Government Inspector of Railways, Department of Posts and Air (Railway Inspectorate), Government of India, New Delhi, who will, make himself responsible that the summons is served on the Government Inspector.
Appendix IRules regulating application and payment for the services of the Examiner of Question Documents appointed by the Government of India.1. Applications should be sent direct to the Government Examiner of Questioned Documents, Intelligence Bureau, Ministry of Home Affairs, New Delhi or Simla, as the case may be, according to the location of the head-quarters of the Government of India at the time. (The Simla season ordinarily begins about the middle of April and ends about the middle of October).
2. Applications received direct from private individuals will not be entertained.
3. Acceptable application fall into two classes:-
4. Applications falling under class B will ordinarily be accepted but may be refused at the discretion of the Government Examiner of Questioned Document if they cannot be undertaken without detriment to his other work.
5. An inclusive fee will be charged in each case in which an opinion is given and will normally cover the opinion, the cost of photographs and the giving of evidence, limited in class B cases to one day. The inclusive fee for class A cases (see Rule 3) will be Rs. 185 and for class B Rs. 200. (This fee does not cover travelling allowance which is governed by Rule 15 below).
6. Subject to the exception stated at the end of this rule, the fee is payable in advance in all cases and each application should be accompanied by a certificate in the following form:-
"Certified that the sum of rupees one hundred and eighty-five (Rs. 185)/two hundred (Rs. 200), has been deposited in the ........ Treasury on.......... 20...., on account of the Government Examiner of Questioned Documents fees in [............] and this amount has been shown under head XLVI-Miscellaneous-Central-Other Fees, Fines and Forfeitures-fees for the services of the Government Examiner of Questioned Documents, in the Cash Account of Central Subjects for the month of...... 20......., and appears at item No. ..... in the relevant Receipt Schedule.Signature of Treasury Officer.Countersigned.(Signature of officer submitting the case.)"In special circumstances, which should be stated in the application class A Cases will be accepted without this certificate, but the certificate should be forwarded as soon as possible.7. In cases where the cost of photographs is exceptionally heavy the fee will the concurrence of the Director, Intelligence Bureau, Ministry of Home Affairs, be Rs. 150 plus the actual cost of the photographs.
In class B cases the authority submitting the case will be informed of the extra cost involved before it is incurred and will be required to certify that it has been deposited before the Government Examiner of Questioned Documents proceeds with the case.8. In case in which an opinion is given but no photographs are taken the fee will be Rs. 150 only.
9. In cases in which no opinion is given but photographs are taken only the actual cost of the photographs will be charged.
10. No reduction in the fee will be allowed if evidence is not required or is taken on commission.
11. In class B cases an additional fee of Rs. 190 will be charged for each day after the first day on which evidence is given, whether in Court or on commission, or on which the officer is detained. The presiding officer or the commission will be requested to certify, before the second and each subsequent day's work is begun, that the fee for that day and also for any intervening day or days of detention has been deposited, and subsequently to furnish a certificate as in Rule 6 above.
12. In cases falling under class B the Government Examiner or his Assistant will be prepared to attend Courts, provided that he can do so without detriment to his other work. When evidence is taken on commission, the commission should be issued to the senior Subordinate Judge, Delhi or Simla, as the case may be, and normally should be so worded that either the Government Examiner or his Assistant can give evidence.
13. Preston officers of Courts are requested to detain the Government Examiner of Questioned Documents or his Assistant for the least possible time compatible with the requirements of the case. They are also requested to accept, so far as possible, the time and dates for attendance offered by these officers, because the latter frequently have to attend several courts in the course of one tour.
14. The Government of India in the Ministry of Home Affairs reserve the right to impose an extra charge in any case in which they consider that the usual fee is incommensurate with the time and labour spent on the case.
15. When the Government Examiner of Questioned Documents or his Assistant is required to travel in order to give evidence or for any other purpose, the authority or party employing his services will be required to pay travelling allowance at the rates laid down for first grade officers in the Supplementary Rules of the Government of India for journeys on lour. Travelling allowance will also be payable for the peon accompanying the officer at the rates fixed for Government of India peons. These payments will be adjusted as directed in the Home Department letter No. F-128-VII-27 Police, dated the 12th January 1928 (See Appendix II).
In class B cases the presiding officer of the Court concerned will be required to certify that the cost of travelling allowance has been deposited before the Government Examiner of Questioned Documents or his Assistant undertakes the journey.Appendix IIProcedure for the payment and audit of travelling allowance drawn by the Government Examiner of Questioned Documents or his Assistant during lour (vide Home Department letter No. F-121-VII-27 Police, dated the 12th January 1921).1.
2. The principles laid down above apply to the payment and audit of the travelling allowance of the peon accompanying the Examiner or his Assistant.
3. If after the Examiner or his Assistant has actually commenced a tour, intimation is received from a Court included in the tour to the effect that his evidence will not be required on the date originally fixed, the Court shall pay the difference between the expenditure actually incurred on the tour and the expenditure that would have been incurred if attendance in that Court had not been included in the tour. This shall be specifically made clear when the bill is sent to the Court for acceptance.
4. The Examiner and his Assistance shall observe the provisions of Supplementary Rule 30 when they frame their programmer for tour.
Chapter 8
Trials by Courts of Sessions1. Arrangements for Holding Sessions.
214.
215. Unless there are good and sufficient reasons, which should be reported at once to the High Court, every case committed to the Court of Session should be tried at the next ensuing sessions held for the district or sub-division from which the case is committed.
216. If the time allowed for a particular sessions proves insufficient and interferes with the dates fixed for another sessions to be held in another district or sub-division, the proper course to adopt is not to leave untried any cases fixed for the first sessions and which are ready for trial, but to transfer as many of these cases as may be necessary to an Additional Sessions Judge where practicable, or to transfer as many cases as may be necessary from the beginning to the end of the. sessions to be held in the other district or sub-division as to cause as little inconvenience as possible. Immediate intimation of the cases so transferred should, however, be given to the District Magistrate concerned and the matter reported to the High Court for information.
217. The course to be pursued with respect to commitments received during a sessions must be left to the discretion of the Court concerned, to be exercised with regard to the convenience of the parties and the state of its file. The rule should be to take up such cases during the sessions if they can be brought before the Court ready for trial, and if they can be taken up without material disarrangement of the file of the Court. They should not as a rule be taken up if that course would necessitate the disarrangement of another sessions, about to be held in another district; but this might be done in cases of special importance.
Note. - Where for some reason unexpected delay intervenes and a case set down for hearing at a particular sessions cannot be heard, the Sessions Judge before postponing it to the next sessions should consider whether he ought not to ask for a special sessions, bearing in mind the principle that no man is to be kept in suspense for his life longer than is justifiable in the circumstances. In such cases an early request for a special sessions should be made to the High Court.2. Assessors and Jurors
218. A list of jurors and assessors shall be maintained for each district or sub-division as the case may be. A knowledge of English is an essential qualification for every juror. The names of persons considered fit to be jurors should be distinguished on the list by prefixing thereto the letter "J" in brackets. The list shall be prepared in the first instance by the Deputy Commissioner of the district and sent by him to the Sessions Judge of the division who return it with such remarks, if any, as he may deem necessary.
219.
220. In addition to the particulars required by Section 321 of the Code the list should show against each person included what language or languages he understands. Sufficient margin should be left for the entries required by Section 331 of the Code.
221. The annual revision of the list prescribed by Section 324 (6) of the Code is compulsory by law. No precise time is fixed by the High Court for the revision, as it can only be made conveniently when the Sessions Judge is at the headquarters of the district of which the list is to be revised. In order, however, that it may appear to the High Court that the duty is duly performed a note shall be appended to the quarterly sessions statements showing in respect of each district in the session division the date on which the last revision was made and the date fixed under Section 323 for hearing objections to the next revision.
222. Sub-section (2) of Section 326 of the Code requires that the names of persons to be summoned to serve as jurors or assessors shall be drawn by lot in open Court. For this purpose there should be serially numbered counters corresponding to the serial numbers of the persons entered in the list prescribed by Section 321 as finally revised. For these counters a bag should be provided and the drawing should be effected by taking at random out of the bag as many counters as there are jurors or assessors required to be summoned. The corresponding names of the jurors or assessors will be found on reference to the list. If there appears against the name of any person an entry of the kind referred to in sub-section (3) of Section 331 of the Code, showing him to have six months, another counter should be drawn in his place.
223. Under Section 284 of the Code it is not necessary that at the time of the trial assessors should be chosen by lot like jurors and the Court has power to select from among the assessors who are in attendance those who may seem most likely to give efficient assistance in any particular case. The law provides for the choosing of at least three assessors, but it is desirable that four assessors should, as far as practicable, be chosen. The names of the assessors chosen should be noted in the order sheet.
Note. - The choice of assessors is entirely with the Sessions Judge and in making his choice he should be guided by such factors as the nature of the case, the person to be tried, and the state of public feeling and should select only those who appear likely to afford efficient assistance in arriving at a correct decision.The selection of members of communities, whose religious views are such as to prevent them from giving a fair opinion, to act as assessors in murder trial would be an unwise exercise of discretion by the Judge. Section 284 of the Code envisages a positive selection by the Judge and not the mere empanelling the required number of assessors.224. Under sub-section (1) of Section 269 of the Code, the State Government have directed that the trial of offences specified below alleged to have been committed within the Nagpur, Wardha, Jabalpur, Hoshangabad (excepting Narsimhapur sub-division). Nimar, Amravati, Yeotmal, Akola and Buldana revenue districts, when held before the Courts of Sessions shall be by jury:-
225. Under sub-section (2) of Section 274 of the Code, the State Government have directed that in the districts of Nagpur, Wardha, Jabalpur, Hoshangabad (except Narsimhapur sub-division), Nimar, Amravati, Yeotmal, Akola and Buldana, a jury shall consist of seven persons.
[See Law Department Notification No. 85/XVH-B, dated the 9th January 1956].[Judicial Department Notifications No. 2781-1537-V and 2783-1537-V, dated the 15th November 1922. No. 1585-1382-V, dated the 21st July, 1928, No. 710-297-V dated the 26th March, 1930, No. 3138-2746-V, dated the 3rd December 1936 and No. 1492-1239-XIX, dated the 2nd August, 1940].226. Under Section 326 of the Code the number of jurors to be summoned shall be not less than double the number required for the trial. A suitable method for the selection of the jurors will be to place fourteen cards bearing the serial numbers appearing against the names of each of the fourteen jurors on the list in a box. The box should then be shaken and cards drawn out one by one. The jurors corresponding to the first seven numbers drawn will constitute the jury. In the event of any juror being successfully challenged, the juror bearing the next number drawn should be empanelled. When the jurors have been finally selected their names should be noted in the order sheet, the foreman being specially designated as such.
227. It is desirable to maintain the position of jurors or assessors in public estimation and to make their duties as little irksome as possible. They should be treated with consideration and respect and a proper place should be provided for them to wait in when their presence in Court is not necessary.
228. Documents exhibited in evidence including those which are transferred from the record of the committal proceedings to the record of the sessions trial shall be endorsed with the endorsement prescribed in Chapter 18, Rule 458, of Part II. This will enable the Judge to find out at a glance by whom a particular document was proved.
Note 1. - Documents should be carefully shifted and irrelevant matter should be excluded. The practice of putting all documents produced in the committal proceedings automatically to witnesses is objectionable.Note 2. - When a witness is confronted with a previous statement reduced to writing whether made to the police or in a deposition, a copy of the statement should be filed with the record.229. Under Section 166 of the Evidence Act assessors and jurors may through or by leave of the Court, put such questions to witnesses as the Judge himself might put and which he considers. It is usually desirable that the Judge should put the question on behalf of the assessors and jurors.
230. The opinion of each assessor should be elicited and recorded in such a manner as to show not only his general opinion, but also as far as possible the ground on which the opinion is based. The grounds should be elicited by putting specific questions to him on the important and salient points on which the decisions of the case really depends and inviting his opinions on them. This will enable the Judge and also the High Court to form some estimate of the value of the opinions given. Where the Judge differs from the assessors he should make a mention of their opinions in his judgement.
231. It is not necessary that the charge to the jury' should be reduced to writing before delivery, although it is usually desirable. It is essential however, that the "heads of charge" [Section 367 (5) of the Code] placed on the record should represent with absolute accuracy the substance of the charge and be such as to enable the High Court to determine whether the case was fairly and properly placed before the jury. The heads of charge should embody the decisions of the Judge under Section 298 of the Code and should contain explicit directions to jurors as to their duties under Section 299 of the Code. The decision of the Judge on questions of law should be fully stated in the record of "heads of charge". It should be borne in mind that jurors have no experience of the value of evidence and that they are unable to understand propositions which come naturally to an experienced Judge. The charge to the jury should, therefore, be in the most simple and intelligible language. If the charge to the jury is not reduced to writing before delivery it must be taken down by a stenographer.
232. If the Judge agrees with the verdict of the jury it is not necessary for him to give reasons in his judgement for so agreeing.
233. If the Judge, disagreeing with verdict, is clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court under Section 307 of the Code, he shall submit it with the records without delay. The records shall be accompanied by a true copy in duplicate of the grounds of his opinion and of the heads of his charge to the jury. The records shall not be detained for preparing any [copy] other than the above, and should any person apply for copies his application shall be returned immediately with a direction to make it to the High Court.
AppendixExemption from service as jurors and assessors has been granted by the Provincial Government to-Chapter 9
Judgement and Finding234. Instructions regarding judgements in this chapter are applicable to all judgements whether original or appellate of all Courts subordinate to the High Court. Most of these instructions are also applicable to orders passed under Section 118 or Section 123, sub-section (3) of the Code.
235. judgements should be typed or written legibly on half sheets of foolscap, with the left-hand third of each page left blank as a margin. If a judgement is not written by the presiding officer with his own hand or if it is typed, every page of it must bear his signature.
236. No Court has power to alter or review a judgement once it is signed except for the purpose of correcting a clerical error or for the purpose of revising a sentence of whipping under Section 395 of the Code.
237. A judgement should be as concise as the nature of the case permits. The use of Hindi or Marathi words or phrases not conveying any technical meaning should as far as possible be avoided, but if it becomes necessary to use them the nearest English equivalents except where the words are common and the meaning unambiguous must be added in brackets. Similarly where reference to Indian dates becomes necessary their corresponding English dates should be mentioned in brackets.
238. Before proceeding to judgement the presiding officer should finally revise the record with a view to seeing that all material on which the judgement is based is on the record and in a condition to be the basis of the judgement, e.g., that all documents requiring to be proved have been proved.
239. judgements should be temperately worded. If a presiding officer finds it necessary to criticise the conduct of an official of another department in a judgement the criticism must be worded with the utmost care having regard to the fact that in many cases the official has had no opportunity to refuse criticism or explain the action criticised. Personal imputation should not be made. A copy of the judgement should be supplied to the official superior of the official criticised.
240.
241. Instance of abuse of authority or misconduct by the police coming to the notice of a presiding officer should be reported to the District Magistrate by supplying him with a copy of the judgement or otherwise as may be convenient. When such a report is made by a Sessions Judge, the District Magistrate should report to the Sessions Judge the action taken. If the Sessions Judge is not satisfied with the action taken he may refer the matter to the Registrar of the High Court.
Note. - Attention is invited in this connection to the instructions contained in the Book Circulars of the Government of the Central Provinces and Berar, No. V-2.242. The making of personal imputations or the passing of strictures couched in intemperate language against committing Magistrates by Sessions Judges or Courts of first instance by Appellate Courts is extremely objectionable and has been the subject of adverse remarks by the Privy Council. If there is real reason for complaint as to the manner in which a trial or commitment proceedings have been conducted the proper course is to communicate the complaint to the District Magistrate.
243. Accused persons or witnesses should invariably be referred to in judgements not merely by their serial numbers on the record but also by their name. When two or more persons bear the same name further details like parentage, caste or residence, sufficient to identify the persons intended should be added. It is not intended that all these details should be given at the time of each reference. This may become cumbersome and tedious, but it should be borne in mind that sufficient particulars must always be given to ensure that no confusion is caused regarding the identity of the person intended by lack of such details.
244. Whenever an enhanced sentenced is passed on conviction of an accused under the provisions of Section 75 of the Indian Penal Code, the Court shall set forth in its judgement each previous conviction proved against the accused or admitted by him, specifying the date of the conviction, the section under which it was made, and the sentence impose.
245. In every case resulting in conviction, in which a sentence of imprisonment is passed, judgement should, as far as possible, be pronounced in the forenoon and at the headquarters of the Court, care being taken to see that the next day is not a holiday. The time and the place of the pronouncement of the judgement, and in case the rule could not be observed the reasons for non-observance, should be specified in the order-sheet. This rule must invariably be observed if the accused is on bail during the trial and on conviction is sentenced to undergo a term of imprisonment.
246. Every presiding officer before handing over charge on transfer or departure on leave must write judgements in all original cases in which evidence is closed and in all appeals in which he has heard the arguments. Where by reason of illness or the sudden handing over of charge a subordinate Magistrate cannot comply with this rule he shall submit a report to the District Magistrate giving the date on which evidence stood closed or when the arguments stood concluded with full reasons for failure to deliver judgement.
247. Every presiding officer hearing, conducting or deciding a criminal proceeding (inclusive of trial or appeal) is responsible for seeing that the final record and the final order or the judgement in such proceedings shall disclose the criminal powers (e.g., Magistrate, 3rd class, Magistrate empowered under Section 30 of the Code, District Magistrate. Sessions Judge, etc.) which such officer exercised in hearing or deciding such proceedings, and shall also disclose the powers specially conferred upon him, for example the power to try cases summarily or the power to pass sentences of whipping, if in those proceedings he had occasion to exercise those powers.
248.
249. The attention of the Courts is invited to the provisions of Section 519 of the Code. A list of articles taken from an accused person at the time of his arrest will ordinarily be found in the challan and will be of value as indicating whether action under the section is possible.
250. When an offence is punishable with death but the Court convicting the accused for the offence inflicts upon him a lesser penalty, the Court should state in its judgement its reasons for doing so.
251. In all cases in which sentences of exceptional severity or unusual leniency are passed or in which varying degrees of punishment are awarded to different persons convicted of the same offence in one trial the judgement shall contain the reasons which guided the Court in the determination of the punishment.
252. In cases of culpable homicide not amounting to murder Section 304 of the Indian Penal Code makes provision for two distinct maximum penalties, transportation for life for the more heinous type of the offence, and imprisonment of either description for a term extending to ten years for the less heinous. Whenever a person is convicted under Section 304 of the Indian Penal Code the judgement must state explicitly whether the act by which death is caused was done with the intention of causing death or such bodily injury as is likely to cause death, or whether the act was done with the knowledge that it was likely to cause death or such bodily injury as is likely to cause death.
253. When an accused is convicted under a provision of a statute containing several sub-sections with different punishments, prescribed for the various offences dealt with e.g., Section 454 of the Indian Penal Code, the judgement shall state under which sub-section the accused was charged as convicted.
254. When a Sessions Judge or a Magistrate of the first class not acting in the exercise of summary powers or a Magistrate of the second class convicts an accused person of an offence punishable under Chapters XII, XVI, XVII, or XVIII of the Indian Penal Code or under Section 109 or 110 of the Code or under the Central Provinces and Berar Prohibition Act, 1938 (C.P. VII of 1938), he shall cause the finger prints of the accused to be taken in the space reserved for that purpose on the revers of the special forms (No. 188 on Schedule V) prescribed for finding and sentence in such cases. In every such case two forms shall be used, a set of finger prints being taken on each. One form shall constitute the finding and sentence by the Judge or Magistrate and shall form part of the record of the case. The other shall be filled up and certified as a true copy of the finding and sentence, and shall be retained with the record of the case until the disposal of the appeal or application for revision, if one is preferred, or until the expiry of the period for appealing if no appeal is preferred. If the conviction is not set aside in appeal or revision, the certified copy of the sentence and finding shall be forwarded to the District Superintendent of Police of the district from which the case was brought. On the copy so forwarded a certificate stating the result of the appeal or revision shall be endorsed and shall be signed by the forwarding Judge or Magistrate himself.
255. As soon as practicable after the judgement is pronounced a copy of it free of charge should be sent-
256. Whenever a Government official or pensioner is convicted of an offence an intimation of such conviction and a copy of the judgement should be sent to the head of the office or department in which he is employed. A subordinate Magistrate should forward the intimation through the District Magistrate.
257.
258.
Chapter 10
SentenceGeneral259. The determination of the sentence to follow conviction is a matter which is difficult, often more difficult than the decision whether there shall be a conviction. The imposition of sentences in a routine manner is to be strongly deprecated. The discretion granted to the Courts both as to the amount of the punishment and the kind of punishment is extremely wide and it is incumbent on the Courts to exercise this discretion wisely. The imposition of an exceptionally severe sentence when a mild sentence or even release after admonition suffices, and the imposition of a mild sentence when the circumstances call for severe or even the maximum sentence are equal weaknesses. Presiding officer should note that this discretion is the awarding of sentences is a matter which weighs heavily in evaluating their capabilities.
260. Section 53 of the Indian Penal Code lays down the punishments to which offenders under that Code are liable. The Courts should however not overlook the fact that punishments of different kinds have been added by other enactments e.g., the Indian Whipping Act (IV of 1909), the Reformatory Schools Act (VIII of 1897), the Central Provinces Borstal Act (C.P. IX of 1928), the Central Provinces Children Act (C.P. X of 1928) and that certain Acts, e.g., the Central Provinces Children Act (C.P. X of 1928) the Central Provinces Probation of Offenders Act (C.P. I of 1936), modify in certain cases the provisions of the Indian Penal Code and other enactments dealing with punishment. The Courts should moreover not overlook their powers under Section 562 of the Code of release in lieu of punishment.
Note. - The punishment of juvenile delinquents is dealt with separately in the next Chapter.261. It may happen that a sentence appropriate for the offence is one which the presiding officer is not empowered to pass. The presiding officer may also lack power to deal with the offenders under Section 562 or 565 of the Code. In such a case he should refrain from passing a sentence which though within his powers is altogether inappropriate in relation to the facts of the Case. Provisions are made in the Code to meet all such contingencies (e.g., Section 349) and the procedure laid down therein should be carefully followed. Similarly, when a Magistrate of the first class is of opinion that an offender, owing to previous convictions or other circumstances, deserves a severer sentence than he can impose, he should report the case to the District Magistrate to have it transferred to a Magistrate empowered under Section 30 of the Code.
262. Where a person is convicted of an offence which is made up of parts each of which constitutes an offence or when a person is convicted of more offences than one, the limitations imposed by Section 71 of the Indian Penal Code and Section 35 of the Code must be adhered to. When a person is convicted of more than one offence, the Court should be careful to pass a separate sentence for each offence, so that if the conviction is set aside on appeal with respect to one of the offences, there will be no room for doubt as to the sentences passed with respect to the rest. The Court has a discretion to make such sentences run concurrently, and this discretion should be exercised so as to make the effective sentence proportionate to the gravity of the offence. Under Section 397 of the Code the Court has power to order, in a case where an accused person is already undergoing imprisonment for another offence, that a subsequent sentence of imprisonment passed on him shall take effect at once and run concurrently which the sentence he is undergoing.
263. It may happen that the least sentence which can be inflicted under law against an offender is unsuitable in view of the particular circumstances of the case; e.g., a distraught mother of an infant jumps in a well with the infant who dies but the mother is saved. In such a case the only course left to the Court is to pass a lawful though unsuitable sentence and recommend the case to the Provincial Government for action under Section 401 or 402 of the Code.
264. All cases in which women are found guilty of murdering their newly born children shall be submitted direct to the Provincial Government for consideration whether commutation or reduction of the sentence should be allowed.
265. The following procedure should be followed when recommending, suspension, remission or commutation of sentences other than death sentences:-
266. Before passing sentence the Court should, as a rule, instead of relying on memory actually refer to the specific provision of law prescribing the sentence. Failure to take this simple precaution sometimes results in the passing of a sentence not warranted by law, e.g., a sentence of fine only on conviction under Section 235 of the Indian Penal Code.
267. It is the Court which must determine in each case the nature and the extent of the sentence suitable to the crime and the criminal, and the latter has absolutely no voice in such determination or choice of the alternative forms of sentences prescribed for the offence. The request of an offender for the award of an appealable sentence should, therefore, have little influence on the Court if the Court is of opinion that the offence is a trivial one and does not deserve an appealable sentence. On the other hand the Courts must not impose a non-appealable sentence with the deliberate object of depriving an offender of the right of appeal.
268. The attention of the Court is drawn to the necessity of passing sentences of special severity in cases where any portion of the permanent way of a railway is removed from its place and stolen. A theft of this kind is specially heinous not on account of the value of the property stolen which is frequently trifling but on account of the terrible risk which it is likely to cause to life and property. If such cases the value of the property stolen is no criterion of the proper measure of punishment. Cases of wrecking or attempting to wreck a train punishable under Section 126 of the Indian Railways Act (IX of 1890) similarly require sentences of special severity.
269. The attention of all Magistrates is drawn to the necessity of exercising care in inflicting punishment on members of aboriginal tribes. Certain sections of the Indian Penal Code dealing with matrimonial and allied offences make criminal certain acts which the custom of aboriginal tribes sanctions. The existence of such customs will not detract from the criminality of the act but can be taken into consideration in awarding sentences as a ground for leniency.
270. It is permissible in awarding sentence to take into consideration any long period of detention which a prisoner has undergone before conviction. This principle is sometimes apt to be overlooked and the Criminal Courts are reminded of their duty to observe it.
Sentence of Death and Transportation271. The attention of Courts of Session and of all Magistrates exercising powers under Section 30 of the Code is directed to the terms of Section 59 of the Indian Penal Code. The correct mode of proceeding is to sentence the offender to transportation under the section under which the offence is punishable, mentioning at the same time that under Section 59 of the Indian Penal Code transportation is awarded instead of imprisonment, simple or rigorous, as the case may be. It is incorrect to sentence the accused to a term of imprisonment and then to direct that the imprisonment so awarded shall be converted to transportation under Section 59 of the Indian Penal Code. Use should be made of the provisions of this section whenever it is legal and suitable. It is illegal unless the punishment awarded for one offence alone is seven years or upwards; nor can a term of seven years or more be made up by adding two sentences together and then commuting the aggregate period of imprisonment to one of transportation.
272. The attention of the Courts of Session is drawn to Section 56 of the Indian Penal Code and to Section 1 of the Penal Servitude Act, 1855 (XXIV of 1855), which provide that whenever any European or American is convicted of an offence punishable under the Indian Penal Code with transportation, he shall be sentenced to penal servitude instead of transportation.
273. When an accused is sentenced to death by a Court of Session, it must-
274. The Indian Penal Code provides for imprisonment of two kinds, simple and rigorous, and unless a particular kind only is prescribed, the Court has to choose one or the other forms as may be suitable to the offence committed. If it is found that in any statute the statute has failed to specify the kind of imprisonment that may be awarded for an offence, then it is open to the Court under Section 3 (2) of the General Clauses Act (X of 1867) to award imprisonment of either description as may be found to be appropriate.
275. It is improper to impose a sentence of simple imprisonment where the offence indicates moral turpitude, on the ground that the accused in the opinion of the Court is unsuited physically for labour. It is for the jail authorities to prescribe the kind of labour suited to a particular person. The Court has merely to consider the length of imprisonment proper to the crime, and the character and status of the offender.
276. Short sentences of imprisonment are seldom, if ever, suitable as punishment for offences against property and, except where the offender is a well to-do person guilty of an offence of any anti-social character e.g., profiteering in commodities in short supply, who is unlikely to be deterred from a repetition of the offence by even a heavy tine, should as far as possible be avoided in other cases. A short period of imprisonment increases the probability that a casual offender may become a habitual offender. If a moderately long sentence of imprisonment is not justified, it should be possible to apply the provisions of Section 562 of the Code or to punish with fine or, in suitable cases with whipping. The imposition of short sentences of imprisonment is a matter to which inspecting officers should pay special attention.
277. The existence of previous convictions is by no means always a proper ground for passing a heavy sentence for a petty offence. If several years have elapsed since the expiry of the last sentence, the question whether the previous convictions, taken with the facts elicited by evidence, show that the accused can at the time of trial be considered a habitual criminal should receive careful consideration. In all cases in which a very severe sentence is inflicted for a petty offence the judgement should show that the Magistrate has, for reason stated, come to the conclusion that the offender is incorrigible.
278. Section 73 of the Indian Penal Code provides for solitary confinement subject to certain limitations. This form of punishment which is appropriate for the more heinous class of offences under the Indian Penal Code in which rigorous imprisonment can be awarded, cannot be awarded for offences under any special or local Acts, unless it is specifically so provided.
Sentence of Fine279. Fines should be regulated so as to accord with the circumstances of the offender and should not under any circumstances be excessive (Section 63 of the Indian Penal Code). Fines are sometimes imposed which are manifestly impossible of realization, while there is reason to fear that many which are imposed in petty cases, though realized, are paid only with difficulty. In dealing with petty cases fines should not be fixed at particular amounts as a matter of course, without much thought as to how they will be felt by the particular individual on whom they are imposed. It is a first principle in inflicting this mode of punishment that it is necessary to have as much regard to the pecuniary circumstances of the offender as to the character and magnitude of the offence. Fines should never in any case be imposed which are not likely to be realized at all, and they should never be imposed in petty cases with such severity as not to be easily realizable. Indiscriminate imposition of fines without due regard to the capacity of the accused to pay only result in the waste of the time of the Court and the police in attempting to realize the amounts, in the harassment of the convict or his dependents, or in the vicarious payment of the fine by persons interested in the convict.
280. to 289. Deleted.
Chapter 11
Punishment of Juvenile Delinquents290. Reference has been made in previous chapters to the treatment of juvenile delinquents. The punishment of juvenile delinquents has been the subject of extensive legislation and all presiding officers should make themselves fully conversant with the law on this point. A number of the more important aspects are referred to in this chapter.
291. The awarding of punishment to juvenile delinquents and adolescents is a matter which requires the utmost care. The awarding of an unnecessarily severe or an unsuitable sentence may result in turning a juvenile delinquent into a hardened malefactor.
292. Under Section 82 of the Indian Penal Code nothing is an offence which is done by a person under seven years of age, and under Section 83 nothing is an offence which is done by a child above seven years of age and under 12 who has not attained sufficient maturity of understanding to Judge the nature and consequences of his conduct. These exceptions are, however, not applicable to offences referred to in Section 130 of the Indian Railways Act (IX of 1890).
293. Deleted.
294. Section 562 (1) of the Code provides in certain circumstances for the release on probation of good conduct of any person under 21 years of age convicted for the first time of an offence not punishable with death or transportation for life.
295. Section 8 of the Reformatory Schools Act (VIII of 1897) provides in certain circumstances for the detention of youthful offenders as defined in the Act in Reformatory Schools instead of their undergoing a sentence of imprisonment or transportation to which they have been sentenced. Criminal Courts should note that the definition of "youthful offender" in Section 4 of this Act has been amended, and that the minimum period of detention prescribed by Section 8 of the Act has been reduced from three to two years under Section 3 of the Central Provinces Children Act (C.P. X of 1928) as amended by Section 2 of the Central Provinces Act (C.P. VI of 1935).
296. Under Section 31 of the Reformatory Schools Act, Criminal Courts empowered under Section 8 of the Act may, if they think fit, order a youthful offender to be discharged after admonition or to be delivered to his parent, guardian or adult relative on the execution of a bond by the latter. For the purpose of this section the definition of "youthful offender" in the Act has been amended to include girls.
297. When a Court not empowered under Section 8 of the Reformatory Schools Act considers a case a proper one to be dealt with under that section or under Section 31 of the Act it should refer the case to the District Magistrate under the provision of Section 9 or 31 (4) of the Act as the case may be.
298. The following rules have been framed by the Provincial Government under Section 8 of the Reformatory Schools Act:-
"I. No boy shall be sent to a Reformatory School if under ten years of age, for a less period than seven years; if over ten years of age, for a less period than five years, unless he shall sooner attain the age of eighteen years.II. In determining whether a juvenile offender is a proper person to be sent to a Reformatory School, the Court should be guided by the following considerations:-299. The Central Provinces Borstal Act (C.P. IX of 1928) applies to male adolescents, i.e., offenders not less than 16 or more than 21 years of age and is intended to provide for the rehabilitation of male adolescents convicted of certain offences and who by reason of criminal habits, tendencies or association with persons of bad character are likely to benefit by detention in a Borstal Institution. The jail at Narsinghpur has been declared such an institution. Presiding officers should note that the Act has not been extended to females under Section 34 and that it is applicable only to a limited class of offences defined in Section 2 (4). In particular the Act is not applicable if the offence committed is punishable with death.
300. Under Section 11 of the Reformatory Schools Act and under Section 12 of the Central Provinces Borstal Act an enquiry into the age of the offender and an express finding upon it are necessary before an order of detention under either Act is passed. If necessary, medical opinion on the point may be obtained.
301. Section 26 of the Central Provinces Children Act (C.P. X of 1928) forbids the imposing of a sentence of death or transportation on any child or youthful offender as defined in the Act and permits the passing of a sentence of imprisonment against a youthful offender as defined in the Act subject to rigorous limitations. Sections 27 to 30 of the Act provide means of dealing with youthful offenders, which are of great importance and should be carefully studied. Section 4 of the Central Provinces Probation of Offenders Act (C.P. I of 1936) also contains provisions modifying the ordinary' rules of punishment of persons under 21 years of age.
Chapter 12
Appeals and RevisionsAppeals from Prisoners in Jail302. Petitions of appeal may be presented either to the superintendent of the jail by the prisoner himself or to the Court of appeal by a pleader [as defined in Section 4, clause (r), of the Code].
303. A power of attorney, if filed, shall be signed by the prisoner whose signature shall be attested by the superintendent of the jail. If this attestation is wanting the document shall be sent to the superintendent for verification.
304. Unauthorized petitions of appeal presented on behalf of prisoners in jail by their relatives or friends shall not be acted upon by any Appellate Court.
305. On receipt from the superintendent of a jail of a petition or appeal, together with a copy of the judgement or order appealed against, the District Magistrate shall forward the papers to the proper appellate authority along with the magisterial records of the case. If the appeal lies to the High Court of judicature from a judgement or order of the Court of Session, the District Magistrate shall forward the papers and records through the Court of Session where the appropriate records of that Courts shall be added and the whole shall then be passed on.
306. If an appeal forwarded from jail is time-barred it shall be dismissed summarily. If it appears from the petition of appeal that the prisoner wishes to be represented by counsel the Court shall not proceed with the appeal until seven days have elapsed since the date of its receipts unless counsel appears earlier. If counsel does not appear within seven days, or if it appears from the petition of appeal that the prisoner does not wish to be represented, the Court shall ordinarily proceed with the appeal at once.
307. When appeal is admitted and the appellant is in jail and not represented by counsel, a notice of the date of hearing under Section 422 of the Code shall be sent to him through the superintendent of the jail in which he is confined. The notice shall be returned to the Court after the prisoner's signature thereon has been taken and attested.
Appeals in General308. Several persons complaining of an order or judgement in a criminal case affecting them all may make a joint appeal and one copy of the judgement or order complained of shall be sufficient :
Provided that the Appellate Court may require separate petitions to be made by petitioners whose cases are, in its opinion, conflicting. Where a joint petition is allowed one Court-fee and one power of attorney shall be sufficient.309. An appeal shall be presented by the appellant or his pleader, under Section 419 of the Code, to the Appellate Court or its ministerial officer duly authorized in this behalf. The clerks of Court of Sessions Judges are authorized to receive appeal (vide Notifications Nos. 2580 and 2581 dated the 12th March, 1930). District Magistrates should authorize suitable ministerial officers to receive appeals in the absence of the Magistrates to whom the appeals would otherwise be presented. If a ministerial officer receive an appeal under this rule he shall immediately fix a date for the appellant or his pleader to appear before the Court. If the appeal is presented to the Court itself and if the appellant or his pleader so desires an adjournment shall be given in order to afford him an opportunity to be heard in support of the appeal.
Note. - The following procedure may be followed in places where are Additional Sessions Judges but no clerks of court. The memorandum of appeal may be presented to the Additional Sessions Judge who shall fix a date, information of which shall be given to the person presenting the appeal. The Additional Sessions Judge shall thereupon transmit the appeal to the Sessions Judge who, if he decides to transfer the appeal for hearing by the Additional Sessions Judge, shall pass the requisite order and return the appeal to the Additional Sessions Judge. If the Sessions Judge decides to hear the appeal himself he shall fix a date after the date fixed by the Additional Sessions Judge and informing the latter of the date so fixed. The Additional Sessions Judge shall thereupon inform of the person presenting the appeal of the date fixed for hearing before the Sessions Judge.310. The following are the officers to whom notices of appeal shall be given under Section 422 of the Code:-
311. When an appeal is filed in a case in which the prosecution was instituted under the order or at the instance of any railway administration or of a railway official as such, the Court of appeal shall invariably give notice to the railway authorities concerned of the time and place of hearing of the appeal.
312. A copy of the judgement and final order of the Appellate Court shall be sent to the Court from whose order the appeal was preferred.
313. The District Magistrate shall communicate to the District Superintendent of Police in cases cognizable by the police and to the District Excise Officer in cases under the Excise and Opium Acts all orders passed, whether on appeal or revision by which an accused person is acquitted or by which a finding or sentence is altered.
A note of this having been done shall be endorsed on the record.314. The result of every appeal from a sentence under which the appellant is in confinement shall for his information be notified by the Appellate Court in the prescribed form (No. 23 of Schedule V) under the signature of the presiding officer, direct to the officer in charge of jail in which the appellant is confined :
Provided that when the Appellate Court is the High Court of Judicature, the result shall be so notified by the Court from whose order the appeal was preferred.315.
316. When the execution of a sentence is suspended pending an appeal, the accused shall be treated as an under-trial prisoner and the period of suspension included in the term of the sentence.
317. When the appellant has been admitted to bail pending the hearing of the appeal, the following special rules shall apply:-
318. No Court shall issue a judicial order or communicate the purport of a warrant or process by telegram.
319. When an Appellate Court annuls a sentence and directs that the prisoner shall be retired, and a warrant for the prisoner's release on bail is not received, the prisoner shall be remanded to the under-trial ward (unless he is under-going some other sentence), and the superintendent shall apply to the Court for a warrant for his custody pending trial if such warrant is not at the same time furnished. Such warrant shall set forth the Court by which the prisoner is to be tried, and the date on which he is to be produced before the Court.
Revisions320. The provisions contained in Rules 308 and 309 of Chapter 12 regarding memoranda of appeal will apply with appropriate changes to petitions for revisions.
321. Any petition presented by a prisoner or prisoners for revision of a sentence from which no appeal lies, or from which an appeal has been made and rejected, shall be forwarded by the superintendent of the jail direct to the High Court of Judicature, the following particulars being noted on it:-
322. When a petition for revision has been rejected by the High Court of Judicature, no second petition in respect of the same sentence shall be forwarded.
323. All reports under Section 438 of the Code shall be drawn up in English in the prescribed tabular form (No. 196 on Schedule V) containing -
324. The reports shall be drawn up by the reporting officer himself, and submitted to the High Court in duplicate, both copies being signed by the reporting officer. If the case has been disposed of the report shall be accompanied by the records of the original and revisional Courts. If the case is pending no records shall be sent until the High Courts call for them. If there is insufficient space in the printed form for setting out the illegality, impropriety or irregularity adequately, a separate statement or order should be attached with the form.
325. More than one case should not be reported upon in one form.
326. The inferior Court should, whenever it may seem desirable to do so, be called on to submit an explanation with regard to the point on which it is proposed to make the reference, and the explanation should be sent with the report.
327. In cases in which an appeal lies from the sentence or order in respect of which it is proposed to make a report, the report should not, except for some special reason, be made until the period of appeal has expired.
328. It is important to observe that the provisions of Section 391 of the Code extending the period during which the execution of a sentence of whipping may not be carried out in the case of an appeal being preferred, do not apply to a report under Section 438 of the Code, so that when a re-commendation is made that a sentence of whipping be reversed, the execution of such sentence should always be suspended by express order under the provisions of the latter section.
329. Under Section 422 of the Code decision or orders of the High Court recorded on revision are to be certified to the Court by which the finding, sentence, or order revised was recorded or passed, and it is for the Court to which the decision or order is so certified to pass such order as may be conformable to that decision or order. It is accordingly for that Court to issue a fresh warrant when necessary, cancelling the warrant originally issued and filing it with the record of the case. But if it is shown that delay in the release of a prisoner would otherwise be caused the warrant may be issued direct by the High Court of Judicature and that fact intimated to the Lower Court.
330. The result of every application for revision of a sentence under which the applicant is in confinement shall be notified direct to the officer in charge of the jail in which the applicant is confined by the Court from order the application for revision was preferred.
331. Applications for revision of orders passed by Magistrates of the second or third class are frequently made to the Sessions Court instead of to the Court which hears appeals from such Magistrates. Courts authorized to act under Section 435 of the Code are considered to act suo motu and they have discretion to refuse to consider an application on its merits if any proper reason for refusal exists. A Sessions Judge would be justified in refusing to consider the merits of an application if no reason was apparent why the application was not made to the office who would have dealt with the appeal had the order been appealable. In view of the provisions of Section 435 (4) the application should in such cases be returned for presentation to the proper Court.
332. It is open to a party to move a Court by application to exercise its revisional powers. There is no period of limitation for such applications, but a Court can refuse to act if it considers that there has not been reasonable diligence, and it is open to a Court to hold that there has not been reasonable diligence when the period between the passing of the order complained of and the making of the application exceeds thirty days, excluding time properly spent in obtaining any copy required to be submitted with the application.
Chapter 13
Trial of Persons Subject to Military, Naval or Air Force LawNote 1. - The relevant provisions of law referred to in this Chapter are printed in the Appendix to the Chapter.Note 2. - The words "Civil Court" occurring in the Chapter mean a Court other than a court-martial.333. Criminal cases against persons subject to military, naval or air force law shall not be tried by any Magistrate who does not exercise the powers of a Magistrate of the first class.
334. In the event of the arrest by the police of any person subject to military, naval or air force law the District Magistrate shall give immediate intimation of the arrest to the Officer Commanding of the unit which the person arrested is serving.
335.
336. Although the Naval Discipline Act and the Indian Navy (Discipline) Act do not supersede the authority of the ordinary Courts where an offence mentioned in those Acts is punishable or cognizable by common or statute law (Section 101 in both Acts), the rules made under Section 549 (1) of the Code and reproduced in Rule 338 below require that where a person subject to naval law is brought before a Magistrate charged with such an offence the procedure laid down in those rules shall be followed.
337. The instructions in Rule 335 above do not apply to deserters from the Indian Army. The procedure governing these persons will be found in Section 123 of the Indian Army Act (VIII of 1911). A similar procedure, given in Section 61 of the Indian Air Force Act (XIV of 1932), applies to deserters from the Indian Air Force.
338. The attention of the Courts is invited to the provisions of Section 549 (1) of the Code. The following rules have been made under that Section :-
339. It should be noted that the rules reproduced in Rule 338 do not govern persons subject to the Indian Army Act (VIII of 1911) or the Indian Air Force Act (XIV of 1932) since in those two Acts (Sections 69 and 70 of the Indian Army Act and Sections 79 and 80 of the Indian Air Force Act) a specific authority has been empowered to decide whether in case of dual jurisdiction proceedings should be instituted before a Criminal Court or a Court-martial.
340.
341. The procedure in case of civil offences committed by persons subject to the Indian Army Act is as given below:-
342. The following rules for the defence of British and Indian soldiers charged with criminal offences and prosecuted by Government in civil (as opposed to military) Courts are reproduced from Rule 388 of the Regulations for the Army in India, Provisional Issue, 1st July 1937:-
343. There is no provision under the Naval Discipline Act or the Indian Navy (Discipline), Act for the free defence of persons subject to those Acts when charged with an offence before a Court other than a Court-martial.
344. Officers and soldiers attending a Civil Court on duty will wear uniform with sword and side-arms.
[Instruction No. 756 of the Instructions by His Excellency the Commander-in-Chief issued under the Regulations for the Army in India. Provisional Issue, 1st July, 1937],345. In the case of a conviction of a British soldier and his being sentenced to imprisonment application should be made to the local military authorities for military escort if no European police are available. British soldiers should not be sent to jail handcuffed under the escort of Indian policemen.
346.
| Officer convicted | Officer to whom the conviction to be reported | |
| (1) | (2) | |
| (1) | A Non-Commissioned Officer | Brigade Commander. |
| (2) | An Indian Warrant Officer | Brigade Commander. |
| (3) | An Indian Commissioned Officer | His Excellency the Governor-General. |
| (4) | A Viceroy's Commissioned Officer | His Excellency the Commander-in-Chief. |
347. Copies of judgements, with a translation of vernacular judgements, shall be supplied free of charge on application by the head of the unit or department concerned.
348. When a military pensioner is convicted and sentenced to imprisonment by a Criminal Court for a criminal offence, a copy of the judgement should be immediately sent by the Criminal Court free of charge to the Deputy Controller of Military Pensions, Lahore, stating the place from where the pensioner last drew his pension. In the case of a Criminal Court subordinate to the District Magistrate, the copy should be sent through the District Magistrate.
349. Conviction in a Criminal Court does not necessarily entail loss of pension. The withholding of a pension after such conviction is at the discretion of the military authorities, who will take into consideration the punishment already inflicted. In awarding sentences, Magistrates should therefore omit from consideration any possible effect the sentence may have on the pension of the accused.
350. In exercise of the power conferred by Section 169 of the Army Act, 1881 (44 and 45 Vict., C. 58), and in supersession of Military Department Notification No. 198-Judicial, dated the 25th March 1880, and the Home Department Notification No. 1698, dated the 8th November 1888, the Governor-General in-Council is pleased to declare that, for the purpose of conversion into Indian currency of all sums of money expressed in British currency in the said Act, a penny shall be held to be equivalent to one anna.
[Army Department Notification No. 231, dated the 1st April 1937, and No. 875, dated the 20th November 1937].351. Whenever a military recruit acquitted by a Criminal Court is found to be without the means of returning to his unit, the Court should arrange for the issue of a railway warrant to his destination.
[Government of India, Home Department Letter No. 178/44-Police, of the 19th January 1945].AppendixNaval Discipline Act, 1896, 29 and 30 Viet., C. 109(as amended by the Naval Discipline Act, 1915, 5 Geo. 5, C. 30)Sections 50, 56 and 101.50. Every officer in command of a fleet or squadron of Her Majesty's ships or of one of Her Majesty's ships, or the senior officer present at a port, or an officer having, by virtue of sub-section (3) of Section 56 of this Act, power to try offences, may, by warrant under his hand, authorise any person to arrest any offender subject to this Act, for any offence against this Act mentioned in such warrant; and any such warrant may include the names of more persons than one in respect of several offences of the same nature; and any person named in any such warrant may forthwith, on his apprehension, if the warrant so directs, be taken on board the ship to which he belongs, or some other of Her Majesty's ships; and any person so authorised may use force, if necessary, for the purpose of effecting such apprehension, towards any person subject to this Act.
56. Any offence triable under this Act may be tried and punished by Court-martial; and any offence triable under this Act, not committed by an officer (except in the cases by this Act, expressly provided for), and not hereby made capital, may, under such regulations as the Admiralty may from time to time issue, be summarily tried and punished by the officer in command of the ship to which such offender belongs, subject to the following restriction; that is to say-
101. Nothing in this Act contained shall be deemed or taken to supersede or affect the authority or power of any Court or Tribunal of ordinary civil or criminal jurisdiction, or any officer thereof, in Her Majesty's dominions in respect of any offence mentioned in this Act which may be punishable or cognizable by the common or statute law, or to prevent any person being proceeded against and punished in respect of any such offence otherwise than under this Act.
Army Act, 1881 (44 and 45 Vict., C. 58) Sections 154, 163 and Schedule 4154. With respect to deserters the following provisions shall have effect:-
163.
| Age. | ||
| Height. | Feet | Inches |
| Complexion. | ||
| Hair. | ||
| Eyes. | ||
| Marks. | ||
| In uniform or plain clothes. | ||
| Probable date and place of attestation. | ||
| Probable date of desertion or beginning of absence, and fromwhat place. | ||
| Name, occupation, and address of the person by whom or throughwhose means the deserter [or absentee without leave]() wasapprehended and [secured](). | ||
| Particulars in the evidence on which the prisoner iscommitted, and showing whether he surrendered or was apprehended,and in what manner and upon what grounds. The fullest possibledetails to be given. |
| I do hereby certify that the prisoner has been duly examinedbefore me as to the circumstances herein stated, and has declaredin my presence that [he]() the before mentioned corps, and I[recommend]() for a reward of ....... s. | - Signature- Residence- Post Town | } | of committing magistrate |
| - Signature of Prisoner.- Signature of informant. | |||
| I hereby certify that the abovenamed prisoner confessed to thecircumstances above stated, but that evidence of the truth orfalsehood of such confession is not forthcoming, and that thecase was adjourned until the ...... day of ...... for the purposeof obtaining such evidence from a Secretary of State. | - Signature.- Residence.-Post Town. |
27. Any person subject to this Act who commits any of the following offences, that is to say,-
35. Any person subject to this Act who commits any of the following offences, that is to say,-
37. Any person having become subject to this Act who is discovered to have made a wilfully false answer to any question set forth in the prescribed form of enrolment which has been put to him by the enrolling officer before he appears for the purpose of being enrolled, shall, on conviction by Court-martial, be punished with imprisonment, or with such less punishment as is in this Act mentioned.
39. Any person subject to this Act who commits any of the following offences that is to say,-
* * * *41.
69. When a Criminal Court and a Court-martial have each jurisdiction is respect of an offence, it shall be in the discretion of the prescribed military authority to decide before which Court the proceedings shall be instituted and, if that authority decides that they shall be instituted before a Court-martial, to direct that the accused person shall be detained in military custody.
70.
123.
61.
79. Any person subject to this Act who commits any offence against it may be tried and punished for such offence in any place whatever.
80. When a Criminal Court and a Court-martial have each jurisdiction is respect of a civil offence, it shall be in the discretion of the prescribed air force authority to decide before which Court the proceedings shall be instituted and, if that authority decides that they shall be instituted before a Court-martial, to direct that the accused person shall be detained in air force custody.
The Indian Navy (Discipline) Act, 1934 (XXXIV of1934) Sections 50 and 10150. Every officer in command of a fleet or squadron of His Majesty's ships, or of one of His Majesty's ships, or the senior officer present at a port, or an officer having by virtue of sub-section (3) of Section fifty-six of this Act power to try offences, may, by warrant under his hand, authorise any person to arrest any offender subject to this Act for any offence against this Act mentioned in such warrant; and any such warrant may include the names of more persons that one in respect of several offences of the same nature; and any person named in any such warrant may forthwith, on his apprehension, if the warrant so directs, be taken on board the ship to which he belongs, or some other of His Majesty's ships; and any person so authorised may use force, if necessary, for the purpose of effecting such apprehension, towards any person subject to this Act.
101. Nothing in this Act contained shall be deemed or taken to supersede or affect the authority or power of any Court or Tribunal of ordinary civil or criminal jurisdiction, or any officer thereof, in His Majesty's dominions, in respect of any offence mentioned in this Act which may be punishable or cognizable by the common or statute law, or to prevent any person being proceeded against and punished in respect of any offence otherwise than under this Act.
Chapter 14
The Recovery of Fines352. If a person at the time of being sentenced to the fine, whether or not in addition to other punishment tenders payment in whole or in part to the presiding officer imposing the fine, the presiding officer shall personally receive the amount tendered and grant under his hand a receipt in the prescribed form (No. XV-99-O.R.). He shall make an entry of the payment in the order sheet of the case and sign it. If the fine is not paid or is paid only in part the presiding officer shall note the fact in the order sheet of the case, thus-
"Fine not paid/paid to the extent of Rs......Recovery proceedings for Rs.......... started".and shall make a similar entry in the Register of Original Cases under the particulars of sentence. He shall at once open recovery proceedings which shall be registered as a miscellaneous judicial case in accordance with Part VI, Chapter 24, Rule 575, item (8). The first order sheet of such proceedings is Form No. 197 on Schedule V. The first entry shall be filled up by the presiding officer in his own hand.353. Presiding officer shall at any stage of the proceedings receive fines imposed by themselves or by their predecessors in office, if tendered in their court.
354. When a fine or portion of a fine in default of payment of which an offender is undergoing imprisonment is realized, the Court which imposed the fine shall send intimation (in Form No. 98 on Schedule V) to the superintendent of the jail in order to ensure the due release of the offender. The receipt attached to the form of intimation when returned with the signature of the superintendent shall be attached to the counterfoil preserved in Court. The presiding officer shall satisfy himself by a weekly examination of the counterfoils that the receipt has been returned by the jail authorities for any intimation issued during the current week.
355. When intimation is issued in respect of a prisoner who has been transferred from the original jail in which he was confined to a new jail the superintendent of the original jail shall forward it by registered post to the superintendent of the new jail along with particular of the prisoner's date of transfer. The superintendent of the new jail shall acknowledge the intimation by return of post and retain it, at the same time forwarding the form of receipt which came attached to it to the issuing Magistrate.
356. When in addition to a substantive sentence of imprisonment a person is sentenced to imprisonment in default of payment of fine and the fine is paid before the prisoner is sent to jail in intimation of realization shall be attached to the warrant in such a way that the receipt may be readily detached for return to Court.
357. The superintendent of a jail (or in his absence the jailor) is authorized to receive fines offered at the jail. He shall certify all such receipts to the Court from which the warrant issued.
358. The superintendent of a jail shall endorse on the warrant all realizations of fine whether made by him or intimated to him in accordance with the procedure referred to in the preceding rules.
359. The following rules have been made under sub-section (2) of Section 386 of the Code.
360. A warrant should generally be issued at once when a fine is not paid in full at the time when it is imposed, unless there is reasonable ground for believing that it will be realized without the issue of a warrant. Where the offender has been sentenced to fine only the expediency of suspending the execution of the sentence of imprisonment in default of payment should be considered (Section 388).
361. When the whole amount of the fine has not been recovered on first warrant, a fresh warrant should ordinarily be issued once a quarter, until either the whole amount is recovered or it is ascertained that the fine or the outstanding balance is irrecoverable.
362. When the Collector receives a warrant under clause (b) of subsection (1) of Section 386 of the Code, he should send it to the nearest Civil Court by which a decree for the amount to be recovered could be executed. Under sub-section (3) of the same section such a warrant is deemed to be a decree passed by that Court. The Collector should then, with due regard to the provisions of Order 27, Rule 2 of the Civil Procedure Code, authorize a suitable person as his agent to apply for the execution of this decree and to conduct these proceedings in execution. Government is liable to pay the necessary Court-fee and process fees for these proceedings.
363. The provisions of Section 70 of the Indian Penal Code do not render it compulsory to retain the fine or such portion of it as may remain unrealized on the register for the full term of six years from the date of the sentence , if all possible means of realizing it have been tried and have failed. Any Sessions Judge, any District Magistrate and, with the written permission of the District Magistrate or District Judge, as the case may be, any Magistrate or Civil Court subordinate to the District Magistrate or District Judge may at any time write-off as irrecoverable amount of which the payment has been ordered in his Court or in the court of his predecessor in office, if it appears to him that the amount cannot be recovered.
364. Fines realized whether by payment into Court, by attachment and sale, or otherwise shall as far as possible be credited by the officer who received them into the treasury or sub-treasury on the day of receipt and in any case not later than the first working day after receipt. Courts at a distance from a treasury or sub-treasury shall remit receipts as often as is convenient but not less frequently than once a month. When only one remittance is made in any month it should reach the treasury on or before the last working day of the month or the sub-treasury on or before the 27th of the month. With the sanction of the District Magistrate remittances may be made by money order, the cost of the order being debited to contingencies.
365.
| Title of the Act | Nature of receipts at present credited to localbodies | Head of account under which the receipts incolumn (2) should be credited to Government account | |
| (1) | (2) | (3) | |
| (1) | The Indian Police Act, 1861. | Fines realized under Section 34 of the Act. | Major head-XXI-Administration of Justice. Minor head-GeneralFees, Fines and Forfeitures. Detailed head-Fines realized underSection 35 of the Indian Police Act, 1861. |
| (2) | The Public Gambling Act, 1867. | Fines realized under the Act | Major and Minor head-As for (1) above. Detailed head-Finesrealized under the Public Gambling Act, 1867. |
| (3) | The Hackney Carriage Act, 1879. | Do | Major and Minor hear-As for (1) above. Detailed head-Finesrealized under the Hackney Carriage Act, 1879. |
| (4) | The Vaccination Act, 1880. | Do | Major and Minor head -As for (1) above. Detailed head-Finesrealized under the Vaccination Act, 1880. |
| (5) | The Prevention of Cruelty to Animals Act, 1890. | Do | Major and Minor Head-As for (1) above. Detailed head-Finesrealized under the Prevention of Cruelty to Animals Act, 1890. |
| (6) | The Central Provinces Village Sanitation and Public ManagementAct, 1920. | Do | Major and Minor head-As for (1) above. Detailed head-Finesrealized under the Central Provinces Village Sanitation andPublic Management Act, 1920. |
| (7) | The Central Provinces Village Panchayat Act, 1920 | Fines realized under Section 22 and fees levied under Sections41 and 38 of the Act. | Major and Minor head-As for (1) above. Detailed head-Fees andfines realized under the Village Panchayat Act, 1920. |
| (8) | The Central Provinces Primary Education Act, 1920. | Fines realized under the Act. | Major and Minor head -As for (1) above. Detailed head-Finesrealized under the Central Provinces Primary Education Act, 1920. |
| (9) | The Central Provinces Local Self-Government Act, 1920. | Do | Major Minor head-As for (1) above. Detailed head-Finesrealized under the Central Provinces Local Self-Government Act,1920. |
| (10) | The Central Provinces Municipalities Act, 1922. | Do | Major and Minor head-As for (1) above. Detailed head-Finesrealized under the Central Provinces Municipalities Act, 1922. |
| (11) | The Central Provinces Cotton Market Act, 1922. | Fines and damages recovered under the Act. | Major and Minor Head-As for (1) above. Detailed head-Fines anddamages recovered under the Central Provinces Cotton Market Act,1922. |
| (12) | The Nagpur Improvement Trust Act, 1936. | Fines realized under the Act. | Major and Minor head-As for (1) above. Detailed head-Finesrealized under the Nagpur Improvement Trust Act, 1936. |
366. Sale-proceeds of confiscated opium if realized by judicial officers should be credited to "XXI-Administration of Justice-General Fees, Fines and Forfeitures-Other items."
367. If the Court directs payment of a reward to an informer out of the fine imposed under Section 16 of the Public Gambling Act (III of 1867), the amount of fine remaining after providing for the reward shall be credited as directed in Rule 365 (3) above. The amount of the reward should be credited under the head "Revenue Deposits".
368. If under Section 545 of the Code, the Court directs a portion of the fine to be applied to any of the purposes stated in that Section the amount of fine excluding that portion should be credited as directed in Rule 365 (3) above. The balance should be credited under the head "Revenue Deposits".
369. Sums realized under Section 546-A of the Code shall be credited to the head "Revenue Deposits".
370. The Courts should note that payments under Section 545 of the Code may in a case subject to appeal be made only after the period allowed for presenting the appeal has elapsed or, if an appeal is presented, after the decision of the appeal. The Courts should adapt this principle in dealing with payments ordered under Section 546-A of the Code and in making payments of rewards to informers under the Public Gambling Act.
Chapter 15
Bail and Recognizance371. The Courts should note that there is a difference between bail and recognizance. Section 496 of the Code and Form XLII of Schedule V of the Code contemplates two kinds of security, namely :
372. When a person other than one accused on a non-bailable offence is sentenced to imprisonment, and an appeal lies from that sentence, the convicting Court may under Section 426 (2-A) of the Code release him on bail for a period sufficient to enable him to present his appeal and obtain the orders of the Appellate Court under sub-section (1) of Section 426. The power of the Appellate Court under sub-section (1) can be exercised only in respect of a person whose appeal is pending before it. The suspension of a sentence of imprisonment referred to in this sub-section is incidental to the granting of bail and is not distinct from it.
373. Forms No. XXV and XLII on Schedule V of the Code indicate what a bail-bond should be. In dealing with such forms Courts should bear in mind the provisions of Section 555 of the Code. The forms are designated to indicate what the form of such bonds should be and are not intended to be rigorous. It is open to the Court to vary them as the circumstances of each case require.
374. The attention of the Courts is invited to the provisions of Section 514-B of the Code in connection with the execution of a bond by a minor.
375. A person accused of a bailable offence claim to be released on bail as a matter of right. In such a case the Court need not give any reasons for granting bail, the fact that it is a bailable offence being in itself a sufficient reason. In lieu of bail it is open to accept a recognizance (i.e. a bond without sureties) of the accused.
376. The power of the Court to release on bail is not restricted to bailable cases. In this respect the attention of the Courts is invited to the provisions of Section 497 of the Code.
377. In demanding bail from an accused person, presiding officers should among other factors bear in mind the social status of the accused in fixing the amount of bail. The object of bail is to secure the attendance of the accused at the required time and place without keeping him under arrest and the amount should be fixed so as to effect this object. Care should be taken that it is not fixed at such a high figure as to amount virtually to a refusal of bail. The amount of bail and the offence charged should always be stated on the face of an order directing an accused to be detained in default of his furnishing bail.
378. It is a hardship to detain parties under trial in prison an hour longer than the law requires.
379. Under Section 513 of the Code a deposit of cash or Government promissory notes may be made in lieu of the execution of a bond except a bond for good behaviour.
380. If at any time and for any reason it appears that the security demanded is or becomes insufficient, it is open to a Court granting the bail to re-arrest the person and demand sufficient security from him.
381. The Courts should exercise freely their power to release on bail-
382. Whenever the solvency of a surety is to be verified a statement of his assets and liabilities declared to be true and complete to the best of his knowledge and belief should be obtained from him and verified before he is accepted. Only realizable assets should be taken into consideration.
383. The responsibility for accepting a surety as solvent for the required amount is primarily that of the presiding officer who has demanded the security either of his own accord or on being directed to do so by a Superior Court, and in ordinary cases he should discharge it himself by making such summary enquiry as in the circumstances of the case he may think fit. When the case is important or the amount of security demanded is large the presiding officer may ask the nazir or the naib-nazir to enquire into the solvency of the surety and submit a report or ask the surety to produce a certificate of solvency from the Tehsildar.
Note. - It is nowhere laid down that the production of a solvency certificate is essential and in most cases a summary enquiry by the presiding officer or nazir or naib-nazir should be sufficient. This should not, however, be considered as in any way limiting the right of a presiding officer to demand a solvency certificate in case of doubt or involving large sums. In every' case it is the duty of the presiding officer to regulate this procedure in the manner that will cause least inconvenience to parties consistent with efficient control.Chapter 16
Warrants of Execution of Sentences, the Classification and Residence of PrisonersWarrants of execution of sentences384. Warrants of execution issued by the Court which has passed a sentence shall invariably be prepared from the original record and never under directions orally given by the presiding officer.
385. Warrants must be legibly written with all the details provided for in the prescribed form. If the prisoner has an alias or aliases, it or they should be inserted after the name under which the present conviction is made. The age of the prisoner should be entered as it appears to the Court and as not stated by the prisoner himself. If the conviction is of abetment of an offence or attempt to commit an offence the section relating to the offence abetted or attempted to be committed should be entered as well as Section 109 or Section 511 of the Indian Penal Code as the case may be.
386. Any number occurring in the warrant (as with regard to term of transportation or imprisonment, strips or amount of fine) is to be entered both in words and figures.
387. As prisoners the often transferred to central jails, the warrants and the endorsements should not be written in a purely local script such as Nimari. Where the presiding officer knows English, the warrants and its endorsements should be prepared in English. In other cases, Hindi is preferable to Marathi as being more generally known by the central jail officials.
388. A short description of the prisoners character history and occupation (so far as known) should be endorsed on warrant. Previous convictions (if any) under Chapters XII, XVI, XVII and XVIII of the Indian Penal Code and Section 110 of the Code are important points in a prisoner's history, and not only, the number of them should be set out, but also the particulars of each sentence and the Section under which it was passed. If it is known that there are no previous convictions, or if no previous convictions are alleged, or if previous convictions are alleged but not proved, or if no information as to previous convictions is forthcoming, the fact should be noted. The last column of the endorsement is intended to show as briefly as possible the distinctive features of the case, as for example in a case under Section 323 of the Indian Penal Code, that the accused committed a brutal and unprovoked assault on an old man, in a case under Section 376 ibid, that he forcibly ravished a little girl about 10 years of age, in a case under Section 457 ibid, that he dug a hole in the wall of a house and stole property to such an amount and so forth.
Note. - In cases of theft the amount or value of the property stolen is a distinctive feature, and information on this point should be included in the last column of the endorsement.389. The warrant and its endorsements must be signed in full by the presiding officer of the Court and never by any other person for him. The presiding officer is responsible for the correctness of the warrant and he is bound to satisfy himself that it is correct before signing it. No pressure of work can be accepted as an excuse for the neglect of this important duty.
390. The date for the execution of a sentence of death confirmed by the High Court shall be fixed by the Court of Sessions and such date shall be the twenty-first day from the date of receipt of the order by the latter Court, or if the twenty-first day is a Sunday or other public holiday, the next succeeding working day. The date shall be specified in the warrant addressed to the superintendent of the jail in which the convict is confined.
391. In all cases in which an under-trial prisoner who has been admitted to the jail is released by the Court instead of being sent back to the jail, whether after discharge or acquittal, or after conviction and infliction of a sentence of whipping or of fine or of imprisonment till the rising of the Court, an intimation shall at once be sent to the superintendent of the jail on the remand warrant (Form No. 153 on Schedule V). Before releasing the prisoner the Court shall examine the warrant under which he was produced, and if there is a memorandum attached to it stating that the prisoner has to be produced under warrant in another Court, the Court shall call upon the officer in charge of the police, escort to produce that warrant, and if it is in order, shall, instead of releasing the prisoner, send him back to jail under the same escort, and shall make a note of the circumstances in the intimation.
392. The instruction concerning the preparation of warrants in these rules apply mutatis mutandis to amended warrants issued in accordance with Chapter 12, Rules 315 and 329.
Classification of PrisonersPart I – . - Under-trial Prisoners
393. Under-trial prisoners shall be divided into two classes; (1) special class, and (2) ordinary class.
394. The trying Court may admit to the special class an under-trial prisoner who, in its opinion, has, by social status, education or habit of life, been accustomed to a superior mode of living. Unless otherwise directed by the State Government or the District Magistrate, the jail authorities shall observe the aforesaid classification.
Part II – . - Convicted Prisoners
Section I-Classification as habitual and non-habitual criminals395. The attention of all Criminal Courts is drawn to the definition of habitual criminals for purposes of jail classification adopted by the Provincial Government in the Jail Manual. Every Judge or Magistrate must note on the warrant committing a prisoner to jail-
396. The following persons shall be liable to be classified as "habitual criminals", namely:-
(a)any person convicted of an offence whose previous conviction or convictions under Chapter XII, XVI, XVII or XVIII of the Indian Penal Code taken by themselves, or with the facts of the present case, show that he habitually commits an offence or offences, punishable under any or all of those Chapters;(b)any person committed to, or detained in prison, under Section 123 (read with Section 109 or Section 110) of the Code;(c)any person convicted of any of the offences specified in (a) above, when it appears from the facts of the case, even though no previous conviction has been proved, that he is, by habit, a member of a gang of dacoits or thieves, or a dealer in slaves or in stolen property;(d)any member of the following criminal tribes :397. The classification of a convicted person as a habitual criminal should ordinarily be made by the convicting Court, but, if the convicting Court omits to do so, such classification may be made by the District Magistrate, or in absence of an order by the convicting Court or District Magistrate, and pending the result of a reference to the District Magistrate, by the officer in charge of the jail, where such convicted person is confined:
Provided that any person classed as a habitual criminal may apply for a revision of the order.398. The convicting Court or the District Magistrate may, for reasons to be recorded in writing, direct that any convicted person, or any person committed to or detained in prison under Section 123, read with Section 109 or Section 110 of the Code, shall not be classed as a habitual criminal, and may revise such direction.
399. The convicting Courts or the District Magistrates, as the case may be, may revise their own classification, and the District Magistrate may after any classification of a prisoner made by a convicting Court or any other authority, provided that the alteration is made on the basis of facts which were not before such Court or authority at the time the previous classification was made.
Note. - The expression "District Magistrate" wherever it occurs in Rules 397,398 and 399 above, means the District Magistrate of the district in which the criminal was convicted, committed or detained.Section II. - Division into A, B and C Classes.400. Convicted prisoners shall be divided into three classes : (1) class "A" (2) class "B" and (3) class "C".
401. A convicted prisoner will be eligible for class "A" if-
402. A convicted prisoner may be recommended for class "B", if by social status, education or habit of life, he has been accustomed to a superior mode of living, irrespective of the offence committed. The classifying authority may recommend for class "B" a habitual offender also, if in its opinion, the character and antecedents of the prisoner justify it.
403. Class "C" will consist of prisoners who are not classified in classes "A" and "B".
404.
405. The recommendation should not form part of the case in which the prisoner is convicted but should constitute a separate report.
406. As it is essential in the interest of jail discipline that persons on admission should, as far as possible, be placed in the class in which they are likely to remain, the recommendation of the trying Magistrate, or Judge, should be entered on the jail warrant also. District Magistrates are authorized to alter the classification made by Magistrates subordinate to them, pending the orders of the Provincial Government.
407. The rules contained in Rules 400, 401, 402 and 403 above do not affect the classification of life-convicts by the convicting Court, as prescribed in Rule 414, for the purposes of the jail remission system, irrespective of the fact that the Court has recommended their admission to class "A" or class "B".
408. Among non-habituals, a clear distinction can usually be made between the prisoner whose crime is due to impulse or to wrong social custom, and the prisoner whose conduct indicates a cruel or depraved mental and moral state. The former should be protected, as far as possible, from such contamination as might result from his conviction and confinement in jail. It is to this end that non-habituals will, in future, be divided into two classes, the "Star" class and "ordinary" class.
409. It is difficult to lay down any hard and fast rules for the selection of prisoners eligible to come under the "Star" class. The following classes of prisoners, however, are definitely excluded from it, viz.-
410. Prisoners for the "Star" class shall be selected on the ground that their previous conduct and character have been good, that their antecedents are not criminal, and that their crime does not indicate grave cruelty or gross moral turpitude or depravity of mind. One or more previous convictions need not automatically exclude a prisoner from the "Star" class, provided they were for petty offences only. Even a conviction for a serious crime might possibly be not regarded as a bar, if the crime was committed several years before, and if during the intervening period the prisoner had led generally an honest life. The age of the offender at the date of any previous conviction and at the date of his present offence should, of course, be taken into account, in fact, the entire body of the circumstances of the case should be considered with a view to determining whether the prisoner is already of so corrupt a mind or disposition that he may contaminate others and cannot be much contaminated himself, and the question should be dealt with in a common sense manner.
411. In amplification of general principles laid down in the preceding rule the following more detailed instructions are given for the guidance of Courts in the matter of making recommendations (references are to the Indian Penal Code):-
Chapter V
Abetment. - Deliberate or habitual abetment of a serious crime or crimes should exclude from the "Star class.
Chapter VIII
Offences against the public tranquility. - Offenders normally should be of the "Star" class but professional lathials and the like should be excluded.
Chapter IX
Offences relating to Public Servants. - Normally offenders should be included in the "Star" class.
Chapter X
Contempts of the Lawful Authority of Public Servants. - Offenders normally should be in the "Star" class.
Chapter XI
False evidence and offences against Public Justice. - In cases triable by Magistrates, offenders, normally should be in the "Star" class; in other cases, offenders should usually be excluded.
Chapter XII
Offences relating to Coin and Government Stamps. - Persons succumbing to a sudden temptation to pass a false coin should be included; persons in any way connected with coining or a gang of coiners, excluded.
Chapter XIII
Offences relating to Weights and Measures. - Offenders should normally be excluded.
Chapter XIV
Offences affecting the Public Health, Safety, Convenience, Decency and Morals. - Offenders should normally be included but offenders against decency excluded.
Chapter XV
Offences relating to religion. - Offenders should normally be excluded.
Chapter XVI
Offences affecting the Human Body. - Homicides whose crime was due to an impulse of passion should be included. Homicides who kill for gain, whether for robbery or for getting rid of rival claimants to property, should be excluded. Similarly in cases of hurt, wrongful restraint and the like, offenders convicted of habitually causing abortion or of an offence relating to sex in any way should be excluded.
Chapter XVII
Offences against property. - Person who, from poverty or sudden temptation, commit theft and kindred offences should be included. Persons who make their living from theft should be excluded.
Chapter XVIII
Offences relating to Documents and to Trade or Property Marks. - Offender should usually be excluded.
Chapter XIX
Criminal Breach of Contracts of Service. - Offenders should normally be excluded.
Chapter XX
Offences relating to Marriage. - Offenders should normally be excluded.
Chapter XXI
Defamation. - Offenders should normally be included.
Chapter XXII
Criminal Intimidation, Insult and Annoyance. - Offenders should normally be included.
Other Laws. - Offenders should normally be included, but habitual offenders against the Opium and Excise Acts, etc., should be excluded.412. While the ultimate responsibility for the selection of prisoners for the "Star" class rests with the superintendents of jails (subject to the control of the Inspector-General of Prisons), it is open to Magistrates to make recommendations in the matter; and it is very desirable that they should do so in order to give superintendents of jails the benefit of the knowledge, seeing that they are in a better position to know the circumstances in which the crime was committed.
413. On the conviction of any non-habitual criminal, a copy of the judgement should be sent to the jail superintendent to enable him to determine whether the prisoner should be classed as "Star" or ordinary.
Life Prisoners414. The following are the instructions on the classification of life prisoners for the purpose of the remission system:-
1. The classification of life convicts for the purposes of the jail remission system should be decided by the Convicting Court and not by the jail authorities. In the event of a prisoner arriving in jail unclassified, the matter should be referred back by the jail superintendent to the Court concerned. In no case shall the jail superintendent decide it for himself.
2. For the purposes of the remission of sentences, prisoners shall be classified as under:-
"(a) 'Class I Prisoner' means a thug, a robber, a dacoit, or a professional or specially dangerous criminal convicted of heinous crime or heinous organized crime, such as dacoity.3. The following classes of crime shall be regarded as heinous for the purposes of the above definitions:-
415. When an order is passed under sub-section (1) or sub-section (4) of Section 565 of the Code, the Court or Magistrate passing the order shall cause a copy of it to be attached to the warrant of commitment to the address of the superintendent of the jail to which the prisoner is committed.
416. Two months before the release of a convict regarding whom such an order has been received, the superintendent of the jail shall enquire from the convict in what district he intends to reside, and shall transfer the convict to that district for release, as in the case of habitual convict.
417. On the day of release of the convict shall be produced before the District Superintendent of Police, or in his absence before the headquarters inspector, and shall notify to such officer the town or village in which he intends to reside. In the case of a town, the convict shall specify the mohalla or street, and shall give such further information regarding the house in which he intends to reside as may be necessary for its identification.
418. The statement of the convict shall be recorded by the officer aforesaid and a copy of it shall be entered in the report-book to be kept by the convict, which book shall be in the form attached to these rules. Such book shall contain a copy of these rules and a translation of them in the language of the province best understood by the convict, together with a notice of the penalty for information of them.
419. The officer recording a notification under Rule 417 shall appoint such period as may be reasonably necessary to enable the convict to take up his residence in the place notified. If the convict does not take up his residence in such place within the period so appointed he shall, not later than the day following the expiry of such period, notify his actual place of residence to the officer-in-charge of the police station within the limits of which he is residing.
420. Every intended change of residence shall be notified by the convict in person to the officer-in-charge of the police station within the limits of which he is residing before whom he shall produce his report-book. But if a convict is so ill or infirm as to be unfit to travel, or if he has been exempted from personal report by the District Magistrate, the book may be produced and the notification be made by some person on his behalf.
421. An officer in charge of a police station to whom a notification is made under Rule 419 or 420 shall attest it in the convict's report book and, if so required, shall himself record the notification.
Notification of..............convict under Section 565, Criminal Procedure Code.| Date | Name of convict or of person reporting on hisbehalf | Substance of report or notification | Signature and rank of Police Officer receivingthe report |