FIR S 173.

The FIR is a pertinent document in the criminal law procedure of our country and the object of
FIR
1. from the point of view of the informant is to set the criminal law in motion and
2. from the point of view of the investigating authorities is to obtain information about the
alleged criminal activity so as to be able to take suitable steps for tracing and
bringing to book the guilty party [Lalita Kumari v Govt of UP, AIR 2014 SC 187 :
(2014) 2 SCC 1 :

Conditions THE CONDITIONS RELATING TO THE RECORD OF THE FIRST INFORMATION

ARE :—
(1) It must be an information (not vague but definite enough to enable the police to start
not vagus investigation) relating to the commission of cognizable offence.
Define cognizable 8 non-cognizable
(2) It must be given to an officer in charge of a police station.
10- (3) It must (if oral), in the first stage, be reduced to writing by the officer in charge (or under his
Oval likho direction by someone else) and be read over to the informant; or the informant may himself give
,

Karao
a written information or bring such a written information. This is the complaint or accusation to
sign the police and technically called the FIR.
Written hai (4) The oral information when reduced to writing must be signed by the informant and if a
toh be sign
written information is given it must also be similarly signed by the informant.
(5) In the final stage the substance of the information must be entered in a prescribed book.

Kara,
(Station or General Diary; see section 44, Act 5 of 1861).
Information
The term “first information” is not mentioned in the Code, but it means information recorded
notedown under section 173
Karo Information means something in the nature of a complaint or accusation, or at least information
of a crime given with the object of setting the police in motion
Meaning of Information
REMEDY FOR NON-REGISTRATION OF FIR Refuse by
10

Statutory Remedy ↓
As provided by Clause (4) of Section 173 of Cr.P.C., if a person is refused by an officer-in- written form to
charge of a police station to register his report, then such person has an option to send the content SI
of the information of crime in written form to the concerned Superintendent of Police via post so ↓
SI also don't Si himself or
that the information could be recorded and investigated upon.
work then
After receiving the information, if the SP is contended with regards to the disclosure of a command
↓ cognizable offence based on such information, then he would either examine the case by himself subordinate
↓
Informant , or command any other subordinate police officer to do the same in accordance with the Code.
10 same power
Put. complain Also, the investigating officer would have the same powers as the officer-in-charge of the police
station with respect to the investigation.
as
Officer in
w) concerned
judicial magistrateJudicial Remedy change Please
of
↓ If the remedy u/s 173(4) Cr.P.C. doesn’t prove to be effective, then the informant is advised to
directly file a private complaint before the concerned Judicial Magistrate under Section 175(3) investigation
Chief Judicial r/w Section 210 of the Criminal Procedure Code. Under this, the said Magistrate is empowered
magistrate to take the cognizance of the case on receiving such a complaint and direct the police to
subordinate investigate the case.
to It class JIM
Sec. 173 (3) and Lalitha Kumari case
S 210 BNSS
.

The most crucial landmark judgement when it comes to matters relating to the registration of FIR
Evidence
Agar
Patahaiki &
.
FIR not substantine Source
of
cognizable offenceis the Latika Kumari v. Govt. of UP & Ors. The Supreme Court in this judgement laid down eight
hua hai guidelines that are to be followed by the police till date. The essential question that arose in the-Question
case of Latika Kumari was, “whether it is binding for the police to lodge an FIR when it is =
Then "o need
informed about the occurrence of an offence which is cognizable in nature?”. The Apex Court
to do affirmatively answered this question and ruled that it is obligatory for the police to lodge an FIR
preliminary on receiving information that discloses the commission of a cognizable offence.
inquiry The Court further held that if it is clear that a cognizable offence has been committed, the police
Prelimin
is not required to do any kind of preliminary inquiry. It means that the preliminary inquiry is
valid merely to the extent of determining whether the offence committed is cognizable or not.
enquiry only
Furthermore, the Apex Court clearly mentioned the kind of cases in which the preliminary
happens when
to check
inquiry could be conducted by the police, which are family disputes, commercial offences,
offence medical negligence cases, corruption cases and cases with abnormal delay. Also, the Court
is
cognizable or ordered that the preliminary inquiry must be started within 7 days of receiving the information of
not
offence.
Pre-limin
In Lalita Kumari v Govt of UP, a constitution bench of the Supreme Court summarized the law
·
Family Disputes and gave the following directions:
Commercial
offences (i) Registration of FIR is mandatory under section 154 (Now Sec. 173) of the Code, if the
·

Medical
·

Negligence information discloses commission of a cognizable offence and no preliminary inquiry

·
corruption Cases
is permissible in such a situation.
Cases
·
w Abnormal delay
within 7
days (ii) If the information received does not disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be
registered. In cases where preliminary inquiry ends in closing the complaint, a copy
of the entry of such closure must be supplied to the first informant forthwith and not
later than one week. It must disclose reasons in brief for closing the complaint and not
proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is
disclosed. Action must be taken against erring officers who do not register the FIR if
information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the
information received but only to ascertain whether the information reveals any
cognizable offence. or not
(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend
on the facts and circumstances of each case. The category of cases in which
preliminary inquiry may be made are: (a) Matrimonial disputes/ family disputes (b)
Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases
where there is abnormal delay/laches in initiating criminal prosecution, for example,
over 3 months delay in reporting the matter without satisfactorily explaining the
reasons for delay. The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a
preliminary inquiry should be made time bound and in any case it should not exceed
7 days. The fact of such delay and the causes of it must be reflected in the General
Diary entry. NCR
(Non-Cognizable Report) Register
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information
received in a police station, all information relating to cognizable offences, whether
If there are
offences and
several S 176 (Procedure
for Investigation
.

among if
them these is
only I

cognizable offence rest are resulting in registration of FIR or leading to an inquiry, must be mandatorily and
meticulously reflected in the said Diary and the decision to conduct a preliminary
then whole
non-cog
,

case will be inquiry must also be reflected [Lalita Kumari v Govt of UP, AIR 2014 SC 187 :
treated as

case
(2014) 2 SCC 1 : 2014 Cr LJ 470 (SC)].
cognizable offenceHowever, Sec. 173 (3) narrows down the scope of Lalita Kumari v Govt of UP and provides
scope for preliminary investigation is certain cases and it states that on receipt of information
relating to the commission of any cognizable offence, which is made punishable for three years
or more but less than seven years, the officer in charge of the police station may with the prior
permission from an officer not below the rank of Deputy Superintendent of Police, considering
the nature and gravity of the offence,
(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case
for proceeding in the matter within a period of fourteen days; or
(ii) proceed with investigation when there exists a prima facie case.

Meaning
of
ArrestI ARREST S 35 .

Arrest means apprehension of a person by legal authority resulting in deprivation of his liberty.
The Code contemplates two types of arrests: 1) arrest made in pursuance of a warrant issued by a
Summon Case :

Magistrate; and a) arrest made without such a warrant but made in accordance with some legal
summon shall
provision permitting such an arrest. & Diff blu warrant case
summon a
be issued to a
ARREST WITH A WARRANT case

accused
person A warrant for arrest may be issued by a Magistrate after taking cognizance of any offence, j
in the
first instancewhether it is “cognizable” or “non-cognizable”. Here the distinction between a summons case
for his
appearanceand a warrant case is relevant. If the case in which the cognizance has been taken is a summons
in the court
case a summons shall be issued to the accused person in the first instance for his attendance in
Warrant case court, and if the case is a warrant case a warrant for the arrest of the accused may normally be
:

warrant
issued for causing the accused to be brought before the court.
a
for ARREST WITHOUT A WARRANT Mainly power to arrest are visted if police but in some cases can
the arrest the >
of Powers to arrest without a warrant are mainly - and widely conferred on the police; but in some be conferred to
accused shall be
,
othersas well.
issued to circumstances where are conferred on others also.
bring
the accused Sec 35
before the court Any police officer may without an order from a Magistrate and without a warrant, arrest any
.

person—
(a) who commits, in the presence of a police officer, a cognizable offence; or
(b) against whom a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a cognizable offence
punishable with imprisonment for a term which may be less than seven years or which may
extend to seven years whether with or without fine, if the following conditions are satisfied,
namely:—
Reasonable Complain
Reasonable Suspecia
Crediable Information (i) the police officer has reason to believe on the basis of such complaint,
information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
Further
offence -

(a) to prevent such person from committing any further offence; or

>

Proper investigation (b) for proper investigation of the offence; or

>
-

Evidence Disappear
,
Tampering
, (c) to prevent such person from causing the evidence of the offence to
-
>

disappear or tampering with such evidence in any manner; or

Inducement Threat Promise
, ,
>
-

(d) to prevent such person from making any inducement, threat or

promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or to the police
Ensure Presence in officer; or
Court - >
(e) as unless such person is arrested, his presence in the Court
whenever required cannot be ensured, and the police officer shall record while
making such arrest, his reasons in writing:
Fyr 4 wh wo(c) against whom credible information has been received that he has committed a cognizable
or

fine or >
-

Death Sentence
offence punishable with imprisonment for a term which may extend to more than seven
years whether with or without fine or with death sentence and the police officer has reason to
Proclaimed believe on the basis of that information that such person has committed the said offence; or
offender > (d) who has been proclaimed as an offender ; or
-

Stolen
Property (e) in whose possession anything is found which may reasonably be suspected to be stolen
property and who may reasonably be suspected of having committed an offence with reference
to such thing; or
obstructs
Police officer
(f) who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or
has or attempts
to (g) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union;
escape
or
- (h) who has been concerned in, or against whom a reasonable complaint has been made, or
or
Extradition credible information has been received, or a reasonable suspicion exists, of his having been
otherwise concerned in, any act committed at any place out of India which, if committed in India, would
have been punishable as an offence, and for which he is, under any law relating to extradition,
or otherwise, liable to be apprehended or detained in custody in India; or
394(5)
> -
(i) who, being a released convict, commits a breach of any rule made under sub-section (5) of
Breach
section 394; or
Police officer
(j) for whose arrest any requisition, whether written or oral, has been received from another
give info
to police officer, provided that the requisition specifies the person to be arrested and the offence or
other Police
other cause for which the arrest is to be made and it appears therefrom that the person might
officer lawfully be arrested without a warrant by the officer who issued the requisition.
RIGHTS OF ARRESTED PERSON
S 47
.
(1) Right to be informed of the grounds for arrest-In every case of arrest with or without a
warrant, the person arresting shall communicate to the arrested person, without delay, the
grounds for his arrest. This is a precious right of the arrested person and has been recognised by
the Constitution as one of the fundamental rights. Timely information of the grounds of arrest
gives the accused an opportunity to remove any mistake, misapprehension or misunderstanding,
if any, in the mind of the arresting authority; it also enables him to apply for bail, or for a writ of
habeas corpus, or to make other expeditious arrangements for his defence. (Sec. 47)
S .
47(2) (2) Right to be informed of right to bail- Every police officer arresting without a warrant any
person other than a person accused of a non-bailable offence, is required to inform the person
arrested that he is entitled to be released on bail and that he may arrange for sureties on his
behalf. [Sec. 47 (2)]
S 57
.

(3) Right to be produced before a Magistrate or officer in charge of police station without
delay-In case of every arrest, whether the arrest, has been made with or without a warrant, the
person arresting is required, without unnecessary delay and subject to the provisions regarding
bail, to produce the arrested person before the Magistrate a Magistrate having jurisdiction in the
case, or before the officer in charge of a police station . [Sec. 57].
S 58 . (4) Right of not being detained for more than 24 hours without Judicial scrutiny-In case of
every arrest, the person making the arrest is required to produce the arrested person without
unnecessary delay before the Magistrate; and it has been provided that such a delay in no case
shall exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to
the Court of Magistrate.(Sec. 58) If it is not complied with, the detention shall be unlawful.
Illegal detention may entail award of compensation by the court. The Bombay HC

The tendency of certain officers, authorised to arrest, to note the time of arrest in such a manner
that the accused's production before the Magistrate was well within 24 hours of the arrest came ruledMatarta
to be criticised by the Bombay High Court. [Ashak Hussain Allak Detha v. Collector of Customs, restrained not when ,

1990 Cri 1J 1101 (Bom),] The court ruled that the arrest commences with the restraint placed on the officers record
the liberty of the accused and not with the time of arrest recorded by the arresting officer. This it. This ensures

right has also been incorporated in the Constitution as one of the fundamental rights. This right
has been created with a view
a) to prevent arrest and detention for the purpose of extracting confessions, of as a means of
Timelydinine
de
it

Abuse
compelling people to give information;
Illegal Detention or

b) to prevent police stations being used as though they were prisons-a purpose for which they are Police Station Misuse
unsuitable; magistrates must
c) to afford an early recourse to a judicial officer independent of the police on all questions of strictly enforce this
bail or discharge. [Mohammed Saleman v. King Emperor, 50 CWN 985] right to safeguard
This healthy provision contained in Section 58 enables Magistrates to keep a check over the fairness in
police investigation, and it is necessary that the Magistrates should try to enforce this investigations
.

requirement and where it is found disobeyed, come down heavily upon the police.
S 38
.
,
340 (5) Right to consult a legal practitioner- Both the Constitution and the provisions of the Code
recognise the right of every arrested person to consult a legal practitioner of his choice. [Sec. 38,
340 and Art. 22(1)] Mond Ajual Kasab us State of Maharashtra
.

(6) Right of an arrested indigent person to free legal aid and to be informed about it- In
Khatri (II) v. State of Bihar, the Supreme Court has held that the State is under a constitutional
mandate (implicit in Article 21) to provide free legal aid to an indigent accused person. (Art 39A
and Sec. 12 Legal Services Authorities Act, 1987)
S 53.
(7) Right to be examined by a medical practitioner-Every person who is arrested has a right to
be examined, soon after the arrest, by a medical officer in the service of the Central or State
Governments. (Sec. 53)
(8) To inform about arrest, etc., to relative or friend- Every police officer or other person
making any arrest shall give the information regarding the arrest and place where the arrested
person is being held to any of his relatives, friends or such other persons as may be disclosed or
nominated by the arrested person for the purpose of giving such information and also to the
designated police officer in the district.

DK Basu Guidelines D K Basu us State of WB

. .

a) The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and identification and name tags with their designations.
b) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at
the time of arrest and such memo shall be attested by at least one witness.
(3) The time, place of arrest and venue of custody of an arrestee must be notified by the police
where the next friend or relative of the arrestee lives outside the district or town within a period
of 8 to 12 hours after the arrest.
(4) The arrestee should, where he so requests, be also examined at the time of his arrest and
major and minor injuries, if any present on his/her body, must be recorded at that time.
(5) The arrestee should be subjected to medical examination by a trained doctor every 48 hours
during his detention in custody by a doctor on the panel of approved.
(6) Copies of all the documents including the memo of arrest, referred to above, should be sent to
the Illaqa Magistrate for his record.
(7) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
interrogation.
(8) A police control room should be provided at all districts and State. headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be communicated
by the officer causing the arrest, within 2 hours of effecting the arrest and at the police control
room it should be displayed on a conspicuous notice board.
Failure to comply with the requirements herein abovementioned shall, apart from rendering the
official concerned liable for departmental action, also render him liable to be punished for
contempt of court and the proceedings for contempt of court may be instituted in any High
Court of the country having territorial jurisdiction over the matter. The right to compensation for
the victims of unlawful arrest and detention has been recognised by the Supreme Court in
Nilabati Behera v. State of Orissa.
STUDY DK BASU GUIDELINES IN COMPARISON WITH BNSS
Arnesh Kumar v State of Bihar Guidelines
• All the State Governments to instruct its police officers not to automatically arrest when a
case under Section 498-A of the IPC (Now Sec. 85 BNS) or any offence punishable with
imprisonment for a term which may be less than seven years or which may extend to
seven years is registered.
• Before carrying out the arrest police officer but to satisfy themselves about the necessity for
arrest under the parameters laid down above flowing from Section 35 BNSS;
• All police officers be provided with a check list containing specified sub- clauses under
Section 35(1)(b)(ii);
• The police officer shall forward the check list duly filed and furnish the reasons and
materials which necessitated the arrest, while forwarding/producing the accused before
the Magistrate for further detention;
• The Magistrate while authorising detention of the accused shall peruse the report furnished
by the police officer in terms aforesaid and only after recording its satisfaction, the
Magistrate will authorise detention;
• The decision not to arrest an accused, be forwarded to the Magistrate within two weeks
from the date of the institution of the case with a copy to the Magistrate which may be
extended by the Superintendent of police of the district for the reasons to be recorded in
writing;
• Notice of appearance in terms of Section 35(3) of be served on the accused within two
weeks from the date of institution of the case, which may be extended by the
Superintendent of Police of the District for the reasons to be recorded in writing;
• Failure to comply with the directions aforesaid shall apart from rendering the police
officers concerned liable for departmental action, they shall also be liable to be punished
for contempt of court to be instituted before High Court having territorial jurisdiction.
• Authorising detention without recording reasons as aforesaid by the judicial Magistrate
concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under
Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, but also such cases
where offence is punishable with imprisonment for a term which may be less than seven
years or which may extend to seven years; whether with or without fine.
MEDICAL EXAMINATION OF ACCUSED
Section 53 authorises an examination of the arrested person by a registered medical practitioner
at the request of a police officer, if from the nature of the alleged offence or from the
circumstances under which it was alleged to have been committed, there is reasonable ground for
believing that such an examination will afford evidence.
Whenever the person of a female is to be examined under this section, the examination be made
only by, or under the supervision of, a female registered medical practitioner.
Constitutionality: Such a provision would not offend Article 20 (3) of the Constitution [State of
Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808].
Narco- Analysis
Narco analysis (truth serum)- In narco analysis, the person is sent in a state of disinhibition, i.e.,
a state where the person is not conscious of his actions. It is done by administering a solution of
sodium pentathol and distilled water into the veins by a qualified anaesthetist. The test is
conducted by recreating scenarios or situations or by asking questions of the testifier and
prodding him to answer. The solution works like a truth serum as the testifier is not in a state to
think consciously about what he is answering. The tests pose a lot of problems, one of them
being the administration of too little narcotics.
Just like a confession made in the police station is not admissible, a statement made during the
narco analysis test is not admissible in the Court, except under certain circumstances when the
Court thinks that the facts and nature of the case permit it. The Courts have, however, provided
differing views on the permissibility of conducting narco-analysis. In the case of Selvi
Murugesan v. State of Karnataka,(2010), the High Court of Karnataka explored the issue of
whether narco-analysis is a compulsion on the invasion of the human body or not. Justice Majage
referred to Section 53 (1) of the Criminal Procedure Code,1973 which provides for the use of
reasonable force by a medical practitioner at the request of a police officer for ascertainment of
facts that could help in finding new evidence. He stated that the narco-analysis test done by a
qualified medical practitioner within a prescribed manner is justified under Section 53(1) of the
CrPC. Further, supporting his view with the help of Section 39 of the Criminal Procedure Code,
he stated that it is the duty of every individual to give information about a crime, and Article
20(3) of the Constitution cannot hinder the process of acquiring the truth. This view has further
contended in the case of Ramchandra Ram Reddy v. State of Maharashtra,(2004) where the
petitioner argued that the narco-analysis test is an invasion of the body and thus violates Article
20(3) of the Constitution. The Court shared similar views as in the case of Selvi Murugesan v.
State of Karnataka and further stated that contrary to the belief sometimes the test could be used
to prove testifiers innocence.
Various Courts have opined that the Constitution framers while formulating the right against self
-incrimination, did not intend to interfere in the process of proper and efficient investigation.
However, the Courts have emphasized two conditions for allowing scientific tests on the
accused:
1. The totality of a case’s circumstances as well as context.
2. The setting of the case is such that reasonable doubt should exist to permit the tests.
INVESTIGATION
(a) Meaning and stages of investigation.—According to Section 2 (l), “investigation” includes
all the proceedings under the Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is authorised by a Magistrate. It
consists of
1. proceeding to the spot;
2. discovery and arrest of the suspected offender;
3. collection of evidence relating to the commission of the offence which may consist of:
(a) the examination of various persons (including the accused) and the reduction of their
statements into writing, if the officers think fit,
(b) the search of places or seizure of things considered necessary for the investigation or to be
produced at the trial; and
4. formation of the opinion as to whether on the materials collected there is a case to place the
accused before a Magistrate for trial, and if so, taking the necessary steps for the same by the
filing of a charge-sheet.
PROCEDURE AFTER THE RECORDING. OF THE FIR
1. The investigation of a cognizable offence begins when a police officer in charge of a police
station has reason to suspect the commission of a cognizable offence. [See, S. 176(1)]
2. Where a reasonable suspicion of the commission of a cognizable offence exists, the SHO must
immediately send a report of the circumstances creating the suspicion, to a Magistrate having
power to take cognizance of such an offence on a police report. [S. 176(1)]
3. The SHO shall then proceed in person, or shall depute his subordinate officer (who is not
below the rank prescribed by the State Government in this behalf) to proceed, to the spot, to
investigate the facts and circumstances of the case, and if necessary, to take measures for the
discovery and arrest of the offender. (S. 176(1)].
There are, however, two circumstances in which it is not necessary for the SHO to proceed in
person or depute a subordinate officer to make an investigation on the spot. These circumstances
are as follows:
(a) When the information as to the commission of the offence is given against any person by
name and the case is not of a serious nature. [Proviso (a) to S. 176(1)]
(b) When it appears to the officer in charge of a police station that there is no sufficient ground
for entering on an investigation. [Proviso (b) to S. 176(1)]
4. The Magistrate, on receiving the report of the SHO, may direct an investigation, or may at
once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary
inquiry into, or otherwise to dispose of the case in the manner provided in the Code. [S. 178)
5. When the police officer reaches the spot, he shall proceed to investigate the facts and
circumstances of the case, and to arrest the offender.
POLICE OFFICER’S POWER TO REQUIRE ATTENDANCE OF WITNESSES
According to Section 179(1), an investigating police officer can by order require the attendance
before himself of any person, if the following conditions are satisfied:
(a) the order requiring the attendance must be in writing;
(b) the person is one who appears to be acquainted with the facts and circumstances of the case;
and
(c) the person is within the limits of the police station of the investigating police officer or is
within the limits of any adjoining police station.
Non-compliance with the summons issued by the police officer could entail initiation of
proceedings under Section 188 IPC.
It may be noted that a person below 15 years of age or above 65 years of age or a woman or
mentally or physically disabled person or a person with acute illness cannot be required to attend
any place other than the place in which such a child or woman resides, [Proviso to S. 179(1) The
recording of the statement of the victim of rape shall be conducted at the residence of the victim
or at the place of her choice. The statement shall be recorded, as far as practicable, by a female
police officer in the presence of her parents/guardian or near relatives or social worker of the
locality.
POWER TO INTERROGATE WITNESSES AND TO RECORD THEIR STATEMENTS
(1) Power to interrogate.-In order to facilitate the collection of evidence, the investigating
police officer has been given power to examine orally any person supposed to be acquainted with
the facts and circum- stances of the case. [Section 180(1)] Such a person is required to answer
truly all questions relating to the case put to him by such an officer, however he is not bound to
answer such questions, the answers to which would have a tendency to expose him to a criminal
charge or to a penalty or forfeiture. [S. 180(2)]
If a person, being legally bound to answer truly all questions relating to much a case, refuses to
answer any such question demanded of him, he is liable to be punished under Section 179 IPC.
Further, if such a person gives an answer which is false and which he either knows or is false or
does not believe it to be true, he is liable to be punished under Section 213 IPC for giving false
evidence.
In the decision of the Supreme Court in Nandini Satpathy v. P.L.. Dani, (1978) 2 SCC 424, it has
been held that "any person supposed to be acquainted with the facts and circumstances of the
case in Section 180(1) includes an accused person. The accused person does fill the role of such
"person" because the police suppose him to have committed the crime and must, therefore, be
familiar with the facts. Moreover, questioning a suspect is desirable for detection of crime and
even for the protection of the accused person. Such a person, however, has been given protection
both by Section 180(2) and Article 20(3) of the Constitution against questions, the answers to
which would have a tendency to expose him to a criminal charge.
(2) Recording of statements. The investigating police officer may reduce into writing any
statement made to him in the course of the examination of a person; and if he does so, he shall
make a separate and true record of the statement of each such person whose statement he
records. [S. 180(3)]
Section 180(3) does not require a person making a statement to a police officer to sign it, as that
might lead to abuse of power by the police. The BNSS now facilitates recording of statements of
witnesses by audio-video electronic means. It is also provided that the statement of woman
against whom a sexual offence punishable under the IPC is alleged to have been committed shall
be recorded either by a woman police officer or by a woman officer.
In order to ensure that the statements made to the police during the investigation are not affected
by fear or favour, it has been provided that no police officer shall offer or make any such
inducement, threat or promise as is mentioned in Section 24, Evidence Act, 1871.
The concept of Self-incrimination as clarified in The State Of Bombay vs Kathi Kalu Oghad And
Others
The correct position with respect to the guarantee under Art. 20(3) is that-
(i) the guarantee includes not only oral testimony given in court
or out of court but also statements in writing which incriminate the maker when figuring
as an accused person;
(ii) the words "to be a witness" in Art.. 20(3) do not include the giving of
thumb impression or impression of palm, foot or fingers or specimen writing or exposing a
part of the body by an accused person for identification;
(iii) "self-incrimination" means conveying information based upon the personal knowledge of
the given and does not include the mere mechanical process of producing documents
in court which do not contain' any statement of the accused based on his personal knowledge;
(iv) in order to come within the prohibition of Art. 20(3) the testimony must be of such a
character that by itself it should have the, tendency to incriminate the accused; and
(V) to avail of the protection of Art. 20(3) the person must have stood in the character of an
accused person at the time he made the statement.
Evidentiary value of the statement recorded by the police in the course of investigation
As regards such statements, the normal rules of evidence in respect of the use of previous
statements of a witness for corroborating or contradicting his testimony, have been substantially
modified by Section 181 of the Code. The object of the section is to protect the accused both
against overzealous police officers and untruthful witnesses. [Khatri (IV) v. State of Bihar,
(1981) 2 SCC 493]
In the context of the present discussion, an analysis of Section 181 will bring out the following
points:
1. The statements recorded by the police u/s.180 BNSS are not evidence for prosecution.
The prosecution cannot use the statement for the purpose of contradicting or
corroborating the statements made by a witness who gave Section 180 statement. The
defence counsels can use the statement to contradict the prosecution witnesses. Such a
statement can be used in a trial, if the person who gave the statement under Section 180 is
examined as a prosecution witness.
In other words, the statement given by the prosecution witness to the Police can be used
by the defense for the purpose of contradicting the prosecution witness, when he is being
examined during trial. But when the prosecution witness turns hostile, with the
permission of court, the Public Prosecutor can cross-examine that witness by using his
180 statements to establish contradiction.
2. It is quite obvious from Section 181(1) that a statement or part of a statement which is not
reduced to writing by a police officer cannot be used for contradiction. In other words, a
statement reduced to writing by a police officer can be used for contradiction.
3. Section 180 statements cannot be used against the accused in criminal cases. In other
words, such a statement cannot be used for any purpose whatsoever if the person making
the same is examined as a defence witness.
4. Section 181 only puts restrictions on the use of statements made to an investigating
officer during the course of investigation. The section does not say that every statement
made during the period of investigation comes within the ambit of its prohibition. Section
181 is aimed or the statements recorded by a police officer while investigating into an
offence. Therefore, every statement made to a person assisting the police during the
course of the investigation cannot be treated as a statement to the police. The previous
statements of the panchas which are to be found in the pre-trap and post-trap
panchanamas in a corruption case do not fall within the phrase “statement made to the
police officer” as contemplated by Section 181.
5. But it appears from the Explanation to Section 181 that an omission to state a fact
or circumstance in the recorded statement may amount to contradiction. However,
every omission is not a contradiction. An omission can amount to contradiction if it
“appears to be significant and otherwise relevant to the context”, The following
examples would illustrate the point:"
(a) In the recorded statement before the police the witness states that he saw only A stabbing B at
a particular point of time, but in the witness box he says that he saw A and C stabbing B at the
same point of time. Omission to state the name of C during investigation, may amount to
contradiction.
6. It has been specifically provided by Section 180(2) that the restrictions imposed by
Section 181(1) on the use of the statements recorded by the police shall not apply in
respect of the statements falling under Section 26 of BNSS, ie, dying declarations;
similarly, it has been also provided that these restrictions shall not apply in respect of the
statements falling under Proviso to Section 23 BNSS. Therefore, such a statement can be
used for corroborating or contradicting purposes.
Recording of Statement under Sec. 183
1. Any Magistrate of the District in which the information about the commission of any
offence has been registered, may, whether or not he has jurisdiction in the case, record
any confession or statement made to him in the course of an investigation.
2. A confession or statement can be recorded in the course of the investigation or any time
before the commencement of inquiry or trial.
3. The Magistrate before recording any confession, shall explain to the person making it that
(a) he is not bound to make a confession and (b) that, if he does so, it may be used as
evidence against him
4. The Magistrate shall not record any statement unless upon questioning the person making
it, he has reason to believe that it is being made voluntarily.
5. The following directions are normally followed by Magistrates in order to ensure that a
confession is made voluntarily:
(a) After warning the person making a confession, the Magistrate should give him
adequate time to think and reflect. No hard and fast rule can be made in this connection,
but it is of utmost importance that the mind of such a person is completely free from any
possible police influence. Normally such a person, if coming from police custody, is sent
to judicial custody at least for a day before his confession is recorded.

(b) Every inquiry must be made from the accused as to the custody from which he was
produced and as to the custody to which he was to be consigned and the treatment he had
been receiving in such custody, in order to ensure that there is no scope of any sort of
extraneous influence proceeding from a source interested in the prosecution still lurking
in the mind of the accused person. If marks of injuries are found on the person of the
accused, he should be asked how he received them.
(c) If the accused is handcuffed, the Magistrate should order to remove the handcuffs, and
the police and other persons who are likely to have any influence over the accused should
be ordered out of court in order to create a free atmosphere
(d) The accused should be assured, in plain terms, of protection from any sort of
apprehended torture or pressure from such extraneous agents as the police or the like in
case he declines to make a confession. Further, if at any time before the confes- sion is
recorded, the person appearing before the Magistrate states that he is not willing to make
the confession, the Magistrate is not to authorise the detention of such a person in police
custody. Even in the case in which the confession is made and recorded, the accused
person, as a matter of rule, should be sent to judicial lock-up and on no account be
returned to police custody.
(e) The accused should particularly be asked the reason why he is going to make a
statement which would surely go against his self-interest in the course of trial and he
should further be told, in order to remove any lurking suspicion in his mind, that even if
he contrives subsequently to retract the confession, it will still be evidence against him.
6. Any statement (other than a confession) shall be recorded in a manner similar to the
recording of evidence and the Magistrate shall have power to administer oath to the
person whose statement is so recorded.
7. In cases punishable under section 64, section 65, section 66, section 67, section 68,
section 69, section 70, section 71, section 74, section 75, section 76, section 77, section
78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023, the Magistrate shall
record the statement of the person against whom such offence has been committed, as
soon as the commission of the offence is brought to the notice of the police:
8. As far as practicable, the statement be recorded by a woman Magistrate and in her
absence by a male Magistrate in the presence of a woman
9. In cases relating to the offences punishable with imprisonment for ten years or more or
with imprisonment for life or with death, the Magistrate shall record the statement of the
witness brought before him by the police officer
10. The Magistrate recording a confession or statement under this section shall forward it to
the Magistrate by whom the case is to be inquired into or tried.
Evidentiary value of statement recorded under Sec. 183 and Scope of retraction
The jurisprudence concerning a statement under Section 183 BNSS is fairly clear. Such a
statement is not considered as a substantive piece of evidence, (a substantive oral evidence is one
which is deposed before the Court and is subjected to cross-examination). However, Section 160
of BSA makes it clear that a statement under Section 183 BNSS could be used for both
corroboration and contradiction. It could be used to corroborate the testimonies of other
witnesses. In R. Shaji v. State of Kerala , this Court discussed the two-fold objective of a
statement under Section 183 . So far as the statement of witnesses recorded under Section 183 is
concerned, the object is to deter the witness from changing his stand by denying the contents of
his previously recorded statement. The Court also recognized that the need for recording the
statement of a witness under Section 183 arises when the witness appears to be connected to the
accused and is prone to changing his version at a later stage due to influence.
A statement recorded under Section 183 serves a special purpose in a criminal investigation as a
greater amount of credibility is attached to it for being recorded by a Judicial Magistrate and not
by the Investigating Officer. A statement under Section 183 is not subjected to the constraints
attached with a statement under Section 180 and the vigour of Section 181 does not apply to a
statement under Section 183.
For, even if a witness has retracted from a statement, such retraction could be a result of
manipulation and the Court has to examine the circumstances in which the statement was
recorded, the reasons stated by the witness for retracting from the statement etc. Ultimately, what
counts is whether the Court believes a statement to be true, and the ultimate test of reliability
happens during the trial upon a calculated balancing of conflicting versions in light of the other
evidence on record.
The law is well settled that a statement recorded under Section 183 of the BNSS is not
substantive evidence and it can be used to corroborate the statement of a witness and it can be
used to contradict a witness. In Ram Kishan Singh vs. Harmit Kaur and another (1972) 3 SCC
280, it has been laid down that a statement recorded under Section 183 of the BNSS is not
substantive evidence and it can be used to corroborate the statement of a witness and it can be
used to contradict a witness. In Baij Nath Sah vs. State of Bihar (2010) 6 SCC 736 also, the Apex
Court has held that mere statement of the prosecutrix recorded under Section 183 BNSS. is not
enough to convict the appellant and it is not substantive evidence and it can be utilised only to
corroborate or contradict the witness vis-a-vis statement made in court.
On receipt of a private complaint alleging the commission of a cognizable offence, if the
Magistrate, instead of taking cognizance of the offence, orders an investigation under
Section 175 (3) , is the SHO bound to register an FIR and start investigation ?
Ans. Yes. Instead of taking cognizance, the Magistrate may forward the private complaint to the
Police for investigation under Section 175 (3) BNSS. and in that case the Police are bound to
register an FIR and conduct investigation and submit the Police Report before the Magistrate
under Section 193.
What are the options available to the Magistrate upon receipt of report either under
Section 176 (1) or under Section 176 (2) BNSS.?
Ans. As per Section 178 the Magistrate can direct an investigation or at once proceed to hold a
preliminary inquiry or depute any subordinate Magistrate to conduct such preliminary inquiry or
otherwise to dispose of the matter in the manner provided by the Code.
READ SEC. 176

SEARCH
SUMMONS – SEC 94
SEARCH WITH WARRANT – SEC. 94-105
SEARCH WITHOUT WARRANT 185
SEARCH OF ELECTRONIC DEVICES
VIRENDRA KHANNA V. STATE OF KARNATAKA, 2021 SCC ONLINE KAR 5032
The brief facts in the instant case were that a case under the Narcotic Drugs and Psychotropic
Substances Act (NDPS), 19855 and the Foreigners Act, 19466 was registered against the
petitioner. The police had seized the petitioner’s mobile, laptop among other objects and asked
him to disclose the password of his mobile and laptop and even his e-mail account. The
petitioner simply refused. Upon refusal, the police filed two applications before the trial court. In
the first application, the police prayed for conducting polygraph test upon the petitioner without
his consent to ascertain the password. In the second application, the police sought an order to
direct the petitioner to disclose the password. Both applications were allowed by the trial court
and thus, the petitioner challenged these two orders before the High Court in the instant case. In
its ruling, the High Court overturned the order governing the administration of the polygraph
test. However, the Court denied the appeal against the passcode disclosure order, noting that
Article 20(3) of the Indian Constitution does not protect passcode disclosure as a matter of right.
The Court first considered the distinction between testimonial and non-testimonial (physical)
evidence for the purpose of providing protection under Article 20(3) of the Constitution in order
to establish its rationale. According to Indian law, an accused is protected from revelations that
could implicate them in a crime under Article 20(3). The Supreme Court had determined the
parameters of the protection against self-incrimination in the landmark case of State of Bombay
v. Kathi Kalu Oghad where the Court was required to determine if giving handwriting, signature,
or thumb impression samples violates Article 20(3). The Court ruled against the accused noting
that a witness can provide both testimonial and non-testimonial (physical) evidence, and that an
accused person can only be deemed a witness against oneself in the former case. It reasoned that,
11. … Self-incrimination must mean conveying information based upon the personal
knowledge … and cannot include merely the mechanical process of producing documents
in court which may throw a light on any of the points in controversy, but which do not
contain any statement of the accused based on his personal knowledge.
Further at para 11 of Kothi Kalu Oghad case the Court observed that:
12. … “To be a witness” means imparting knowledge in respect of relevant facts, by means
of oral statements or statements in writing, by a person who has personal knowledge of
the facts to be communicated to a court or to a person holding an enquiry or
investigation.
Relying on the dictum of Kathi Kalu case, the Court observed that a direction to provide a
password, passcode, biometric would not amount to testimonial compulsion as the petitioner
is not answering any question that would expose the petitioner to guilt. It is only in the nature
of a direction to produce a document. The information accessed on the smartphone is only to
access the data and documents on the phone and it is for the investigation officer to prove and
establish the same in a court of law by following the applicable rules of evidence. Disclosure
of password, biometric is akin to supplying fingerprints, thumb impression, voice sample or
taking samples of garments, chemical samples that are physical evidence and do not amount
to forced testimony from the accused. The Court further held that a search warrant as per
Section 96 can also be issued by the court in order to search a smartphone or computer
system for investigation purposes. In the Court’s reasoning, Section 94 enables a right in
favour of the court or officer in charge of a police station to issue summons or to order from a
person’s possession production of any document for the investigation purpose. The Court
treated a password/passcode/biometric as a document as provided under Section 93. Thus, a
person in possession of an electronic device/gadget must cooperate with the investigation
officer by disclosing the passcode to let them gain access to the device.

PROCESS TO COMPEL THE APPEARANCE OF THE ACCUSED

SUMMONS TO THE ACCUSED AND ITS SERVICE
Meaning and form.—
A summons in case of an accused person is an authoritative call to the accused person to appear
in court to answer to a charge of an offence. The manner in which a summons is to be prepared is
described in Section 63, which provides that
i. every summons issued by a Court under this Code shall be in writing, in duplicate, signed
by the presiding officer of such Court or by such other officer as the High Court may,
from time to time, by rule direct, and shall bear the seal of the Court.
ii. in an encrypted or any other form of electronic communication and shall bear the image of
the seal of the Court or digital signature.
The summons issued to the accused should contain adequate particulars of the offence charged
i.e. the day and time when, and the place where the alleged offence was committed.
MODE OF SERVICE.
Sections 64 to 69 provide for different modes of effecting the service of the summons in diverse
situations and conditions.
1. Every summons shall be served by a police officer, or, by an officer of the Court issuing it
or other public servant.
2. The summons shall, if practicable, be served personally on the person summoned.
3. Every person on whom a summons is so served shall, if so required by the serving officer,
sign a receipt on the back of the other duplicate. (Sec. 64)
4. Service of a summons on a corporation may be effected by serving it on the secretary,
Director, Manager, Secretary or other officer of the company or corporation in India, or
by letter sent by registered post. In case of a firm or other association of individuals may
be effected by serving it on any partner of such firm or association, or by letter sent by
registered post addressed to such partner. (Sec. 65)
5. Where the person summoned cannot, by the exercise of due diligence, be found, the
summons may be served by leaving one of the duplicates for him with some adult
member of his family residing with him. (Sec. 66)
6. If that is also not possible, the serving officer shall affix one of the duplicates of the
summons to some conspicuous part of the house or homestead in which the person
summoned ordinarily resides. (Sec. 67)
7. Where the person summoned is in the active service of the Government, the Court issuing
the summons shall ordinarily send it in duplicate to the head of the office in which such
person is employed; and such head shall thereupon cause the summons to be served. (Sec.
68)
8. When a summons issued has to be served at any place outside its local jurisdiction, it shall
be send to a Magistrate within whose local jurisdiction the person summoned resides, or
is, to be there served. (Sec. 69)
WARRANT
A warrant of arrest is written authority given by a competent Magistrate for the arrest of a
person. The warrant of arrest must be in writing and must have been signed and sealed by a
Magistrate or court. It must clearly mention the name and other particulars of the person to
be arrested and must specify the offence with which he is charged. The warrant must
necessarily show clearly the person to whom the authority to arrest has been given. The
warrant of arrest may also include a direction that if the person arrested under the warrant
executes a bond and gives security for his attendance in court, he shall be released. A warrant
with such direction is commonly called a “bailable warrant of arrest”. Court may specify the
nature bond required to be executed by way of an endorsement.
(i) the number of sureties;
(ii) the amount in which they and the person for whose arrest the warrant is issued, are to
be respectively bound; and
(iii) the time at which he is to attend before the Court. (Sec 73)
TO WHOM A WARRANT IS DIRECTED
A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court
issuing such a warrant want its immediate execution and no police officer is immediately
available, direct it to any other person to execute the same. (Sec. 74)
The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person
within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any
person who is accused of a non-bailable offence and is evading arrest. (Sec. 75)
PROCLAMATION FOR PERSON ABSCONDING (SEC. 84)
In cases where a summons for the appearance of the accused person is to be issued, but if the
court has reason to believe that the accused has absconded or will not obey the summons, or in
case where the accused person on whom the summons is duly served for appearance fails to
appear without offering any excuse for non-appearance, a warrant of arrest can be issued. Now in
cases where a warrant of arrest has been issued against an accused person and there are reasons
to believe that the accused person has absconded or is concealing himself to avoid the execution
of the warrant, the court may publish a written proclamation requiring such person to appear
before it and/or may attach his property. If the accused person fails to appear before the court as
required by the proclamation the property attached would be at the disposal of State Government
and could be sold. This stringent provision would exert considerable pressure on the accused and
would impel him to appear before the court in order to avoid deprivation of his property.
Court may publish a written proclamation requiring him to appear at a specified place and at a
specified time not less than thirty days from the date of publishing such proclamation.
The proclamation shall be published as follows:—
(a) it shall be publicly read in some conspicuous place of the town or village in which such
person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person
ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court;
(d) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily
newspaper circulating in the place in which such person ordinarily resides.
Where a proclamation has been made and the person fails to appear at the specified place and
time required by the proclamation, for an offence which is made punishable with imprisonment
of ten years or more, or imprisonment for life or with death under the Bharatiya Nyaya Sanhita,
2023 or under any other law, the Court may, after making such inquiry pronounce him a
proclaimed offender and make a declaration to that effect.
ATTACHMENT OF PROPERTY OF PERSON ABSCONDING (Sec. 85-89)
1. The court issuing the proclamation, at any time after the issue of the proclamation, order
the attachment of any property, movable or immovable, or both, belonging to the
proclaimed person.
2. However, if the person at the time of the issue of the proclamation, if courts feels that the
person
(a) is about to dispose of the whole or any part of his property; or
(b) is about to remove the whole or any part of his property from the local jurisdiction of the
Court,
it may order the attachment of property along with the issue of the proclamation.
3. If the property ordered to be attached is a debt or other movable property, the attachment
can be made by way of
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed person
4. If the property ordered to be attached is immovable, then attachment can be made
(a) by taking possession; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent on delivery of property to the
proclaimed person or to any one on his behalf. (Sec. 85)
5. If any claim, or objection has made to be made by any person other than the proclaimed
person, regarding the attachment of, it has to be made within six months from the date of
such attachment. (Sec. 87)
6. If the proclaimed person appears within the time specified in the proclamation, the Court
shall make an order releasing the property from the attachment. (Sec. 88)
7. If the proclaimed person does not appear within the time specified in the proclamation, the
property under the attachment shall be at the disposal of the State Government and it can
be disposed by way of sale or otherwise after six months from the date of the attachment.
(Sec. 88)
8. If the property ordered to be attached consists of live-stock or is of a perishable nature,
sale can be conducted immediately. (Sec. 85)
9. If, within two years from the date of the attachment, the person appears voluntarily or is
arrested and brought before the Court and proves that he did not avoid execution of the
warrant, then,
i. if the same has been sold, the net proceeds of the sale (sale amount),
ii. if not sold, then the property, shall have to be delivered to him. (Sec. 88)
BAIL
Section 2(b) of BNSS defines “bail” as release of a person accused of or suspected of
commission of an offence from the custody of law upon certain conditions imposed by an officer
or Court on execution by such person of a bond or a bail bond.
Sec. 2(d) "bail bond" means an undertaking for release with surety;
Sec. 2(e) "bond" means a personal bond or an undertaking for release without surety
Anticipatory Bail
Section 482 makes a provision enabling the superior courts (High Court and Sessions Court) to
grant anticipatory bail, i.e. a direction that in the event of such arrest, the accused shall be
released on bail.
(a) Concurrent jurisdiction of High Court and Sessions Court.—
According to Section 482(1) an application for “anticipatory bail” can be made to the High Court
or Court of Session.
(b) Reasonable apprehension of arrest for a non-bailable offence.—
Section 482(1) confers on the High Court and the Court of Session the power to grant
“anticipatory bail” if the applicant has reason to believe that he may be arrested on the accusation
of having committed a non-bailable offence.
If the offence is non-bailable, it is immaterial for the purpose of Section 482 whether the offence
is cognizable or non-cognizable.
The filing of FIR is not a condition precedent to the exercise of the power under Section 482.
The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an
FIR is not yet filed.
(c)Wide discretion in granting anticipatory bail.—
Section 482(1) has in fact conferred very wide discretion on the High Court and the Court of
Session to grant “anticipatory bail”.
(d) Anticipatory bail with conditions.—The High Court or the Court of Session, while granting
anticipatory bail may impose conditions as mentioned in Section 482(2). The conditions
mentioned in that sub-section are only illustrative and the court may impose other conditions.
(e) No Blanket Order
The Supreme Court has held that a “blanket order” of anticipatory bail should not generally be
passed. The court which grants anticipatory bail must take care to specify the offence or offences
in respect of which alone the order will be effective.
(f) Interim order and notice to Public Prosecutor.—Section 482 does not require that a notice be
given to the Public Prosecutor before the application for anticipatory bail is considered by the
court and legally it is possible to pass an ex parte order of anticipatory bail. But ordinarily an
order of anticipatory bail should not be passed without issuing notice to the prosecution and
giving it an opportunity to oppose the application for anticipatory bail. In such cases court can
pass an Interim Order preventing arrest till the disposal of the bail application. If interim
protection is not granted, police can still arrest the accused, pending the disposal of
anticipatory bail.
(g) No anticipatory bail after arrest.—Section 482 cannot be invoked after the arrest of the
accused. After arrest, the accused must seek his remedy under Section 480 or Section 439 if he
wants to be released on bail in respect of the offence or offences for which he is arrested.
(h) Bail to be effective till the conclusion of the trial - the bail shall be effective till the
conclusion of the trial, unless it is cancelled by the court taking action under Section 480(5) or
under Section 439(2) of the Code.
Discretion in granting bail in cases of non-bailable offences (REGULAR BAIL/
DISCRETIONARY BAIL)
Authorities empowered under Section 480
When any person is arrested for the commission of any non-bailable offence without a warrant
by an officer in charge of a police station or appears or is brought before any Magistrate Court,
has the discretionary power to grant bail. But -
(i) such person shall not be so released if he is accused of an offence punishable with death
or imprisonment for life based on reasonable grounds;
(ii) such person shall not be so released if such offence is a cognisable offence and he had
been previously convicted of an offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been previously convicted on two or
more occasions of a cognisable offence punishable with imprisonment for three years or
more but not less than seven years
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released
on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.
Only one type of police official, i.e., the officer-in-charge of the police station, is authorised
under Section 480(1) to release a person accused of a non-bailable offence on bail.
Is there any category of cases in which mandatory bail conditions are to be imposed and, if
so, which are they?
Ans. Mandatory bail conditions enumerated under Section 480(3) BNSS. are to imposed in the
following category of cases
a) If the offence is punishable with imprisonment for 7 years or more.
b) If the offence falls under offences against the State, offences affecting the human body ,
offences against property or
c) Abetment of or conspiracy or attempt to commit any of the above offences.
The conditions that the court may impose may include the following:
(a) that such person shall attend in accordance with the conditions of the bond executed;
(b) that such person shall not commit an offence similar to the offence of which he is accused, or
suspected, of the commission of which he is suspected; and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to
any person acquainted with the fact of the case so as to dissuade him from disclosing such facts
to the court or to any police officers or tamper with the evidence.
Power of High Court or Sessions Court under Section 483 BNSS
Section 483(1) gives very wide discretion to the High Court and the Court of Session in the
matter of granting bail. Section 480 of the BNSS prohibits the grant of bail in situations of
offences punishable by death or life imprisonment unless it is beyond doubt that the accused is
guilty; however, Section 483 permits the Sessions Court or High Court to grant bail even in such
cases.
The overriding considerations in granting bail which are common both in the case of Section
480(1) and Section 483(1). Although the High Court has concurrent jurisdiction with the
Sessions Court to grant bail under Section 439, it is considered desirable that the lower court
should first be moved in the matter. This is especially important because any expression of
opinion by the superior court is likely to prejudice the trial in the lower court. Therefore, only in
exceptional or special circumstances an application for bail may be directly made to the High
Court.
As the courts granting bail have powers to set forth any condition which they consider necessary
in the interest of justice, as provided under Section 480, the higher courts exercising powers
under Section 483 should have the power to examine the correctness of that order in all its
aspects and to modify or set aside any portion of the same if it is considered necessary.
With a view to make it more difficult for persons accused of grave offences to get released on
bail by an ex parte order, and be in a position to hamper investigation, provision has been made
that in every case where the offence is punishable with imprisonment for life, or is triable
exclusively by a Court of Session, no court shall grant bail except after giving notice in writing
of the application to the Public Prosecutor; if this is not done, reasons for not giving such notice
are to be recorded in writing.
Factors to be considered
(i) Nature and gravity of the accusation;
(ii) the severity of the punishment which the conviction will entail;
(iii) the nature of the evidence in support of the accusation;
(iv) the danger of the accused person’s absconding if he is released on bail;
(v) the danger of evidences being tampered with;
(vi) the protracted nature of the trial;
(vii) opportunity to the applicant for preparation of his defence and access to his
counsel;
(viii) the health, age and sex of the accused;
(ix) the nature and gravity of the circumstances in which the offence is committed;
(x) the position and status of the accused with reference to the victim and the witnesses;
(xi) the probability of accused committing more offences if released on bail, etc.; and
(xii) interests of society
(xiii) Whether there is any prima facie or reasonable ground to believe that the accused
had committed the offence
(xiv) The position and status of the accused with reference to the victim and/ or the
witnesses.
(xv) Character, behavior, means, position and standing of the accused;
(xvi) The possibility of the accused obstructing the course of justice;
(xvii) Reasonable apprehension of the witnesses being influenced
These grounds are, however, not exhaustive.
DEFAULT BAIL
Under Sec. 187
Default Bail, also known as compulsive bail, is provided under Section 187(2) of the Criminal
Procedure Code. Section 187 of the Code affords protection to accused against detention due to
inordinate delay in completion of investigation. It provides that, where the investigation agency
has not filed a charge-sheet within a period of 60 days (or 90 days in the case of offences
punishable with death or imprisonment for not less than 10 years) of the investigation then the
accused becomes entitled to be released on bail. Thus, where no charge-sheet has been filed
within the stipulated period the accused can no longer be detained in custody, on the expiration
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of such period. Hence on 61 or 91 day of remand, the right to seek default bail accrues in
favour of the accused.
Conditions for grant of default bail :-
(i) Application by the accused: Though the accused becomes entitled to be released on bail
where the charge-sheet has not been filed within the prescribed period of 60 or 90 days, however,
in order to avail the benefit of default bail it is mandatory that the accused should file an
application before the Court praying for his release on bail. Mere expiry of the period does not
suffice the requirement of the grant of default bail and the accused will not be automatically
released
(ii) Investigation should be pending: Filing of charge-sheet under Section 193 of the BNSS
brings an end to investigation. Therefore, the accused can avail the benefit of default bail only if
the charge-sheet has not been filed within the prescribed period. Default bail is available only
during the pendency of the investigation. Thus, it is important that the application for default bail
should be filed before the filing of charge-sheet. If the accused fails to do so and charge-sheet is
filed meanwhile, then his right extinguishes. This proposition was clarified by the Hon'ble
Supreme Court in the landmark judgement of Sanjay Dutt vs. State (1994).
Q. The period of 90 days or 60 days as the case may be should be computed from the date
of arrest or from the date of remand ?
Ans. From the date of remand and not from the date of arrest. For the computation of the period
for default bail under the proviso to Section 167 (2) BNSS. time starts from the date of remand
and not from the date of arrest.
Under Sec. 479 and 480 (6)- Maximum period for which an accused can be imprisoned
Where a person, during the period of investigation, inquiry or trial of an offence under any law
(not being an offence for which the punishment of death or life imprisonment has been specified
as one of the punishments under that law) has undergone detention for a period extending up to
one-half of the maximum period of imprisonment specified for that offence , he shall be
released by the Court on bail.
If such person is a first-time offender (who has never been convicted of any offence in the past)
he shall be released on bond, if he has undergone detention for the period extending up to one-
third of the maximum period of imprisonment specified for such offence.
These rules will not apply where an investigation, inquiry or trial in more than one offence or in
multiple cases are pending against a person, and in such cases he shall not be released on bail by
the Court.
But in any case, no such person shall in any case be detained during the period of
investigation, inquiry or trial for more than the maximum period of imprisonment
provided for the offence.
If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is
not concluded within a period of sixty days from the first date fixed for taking evidence in the
case. [Sec. 480].
MANDATORY BAIL
Section 478 BNSS. deals with ‘Bailable offences’ where bail cannot be refused. Rather, even the
arresting officer himself may release such an accused on bail.
Accused may seek bail as a matter of right in bailable offence U/s 478 BNSS.
Under Sec. 480
Before conclusion of the trial and before disposal of the appeal, the Court trying the offence
or the Appellate Court, as the case may be, shall require the accused to execute a bond or bail
bond, to appear before the higher Court as and when such Court issues notice in respect of any
appeal or petition filed against the judgment of the respective Court and such bond shall be in
force for six months.
For circumstances mentioned under Sec. 479 and 480 (6), are fulfilled, then also it becomes
mandatory to release the accused on bond.