CODE OF CRIMINAL PROCEDURE, 1973

CHAPTER XXIV : GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS

321. Withdrawal from prosecution :- The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgement is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried ; and, upon such withdrawal --

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences ;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:

Provided that where such offence

(i) was against any law relating to a matter to which the executive power of the Union extends ; or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946) ; or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government ; or

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty,

and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.

STATE AMENDMENT

Uttar Pradesh :- After the words "in charge of a case may" insert the words "on the written permission of the State Government to that effect (which shall be filed in Court)" U.P. Act 18 of 1991, w.e.f 16-2-1991.

322. Procedure in cases which Magistrate cannot dispose of :-(1)If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumption --

(a) that he has no jurisdiction to try the case or commit it for trial ; or

(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district, or

he shall stay the proceedings and submit the case, with a brief report explaining its nature, to the Chief Judicial Magistrate or to such other Magistrate, having jurisdiction, as the Chief Judicial Magistrate directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial.

323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed :- If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing the judgement that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.

324. Trial of persons previously convicted of offences against coinage, stamp-law or property :-(1) Where a person, having been convicted of an offence punishable under Chapter XII or Chapter XVII of the Indian Penal Code, (45 of 1860) with imprisonment for a term of three years or upwards, is again accused of any offence punishable under either of those chapters with imprisonment for a term of three years or upwards, and the Magistrate before whom the case is pending is satisfied that there is ground for presuming that such person has committed the offence, he shall be sent for trial to the Chief Judicial Magistrate or committed to the Court of Session, unless the Magistrate is competent to try the case and is of opinion that he can himself pass an adequate-sentence if the accused is convicted.

(2) When any person is sent for trial to the Chief Judicial Magistrate or committed to the Court of Session under sub-section (1), any other person accused jointly with him in the same inquiry or trial shall be similarly sent or committed, unless the Magistrate discharges such other person under Section 239 or Section 245, as the case may be.

325. Procedure when Magistrate cannot pass sentence sufficiently severe :-(1) Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under Section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate.

(2) When more accused than one are being tried together, and the Magistrate considers it necessary to proceed under sub-section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate.

(3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case, and may call for and take any further evidence, and shall pass such judgement, sentence or order in the case as he thinks fit, and is according to law.

326. Conviction or commitment on evidence partly recorded by one Magistrate and partly by another :- (1) Whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in any enquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:

Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of Justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

(2) When a case is transferred under the provisions of this Code from one judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).

(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325.

STATE AMENDMENTS

Rajasthan & Uttar Pradesh :-(a) In sub-section (1) for the words "Magistrate" wherever occurring substitute the words "Judge or Magistrate".

(b) In sub-section (2) before the words "from the Magistrate to another Magistrate" insert the words "from one Judge to another Judge" Raj Act 10 of 1977, w.e.f. 3-9-1977 and U.P. Act 16 of 1976 w.e.f. 1-5-1976.

327. Court to be open :- (1) The place in which any Criminal Court is held for the purpose of inquiring into, or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them :

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.

(2) Notwithstanding anything contained in sub- section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376-B, Section 376-C or Section 376-D of the Indian Penal Code (45 of 1860) shall be conducted in camera :

Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in the room or building used by Court.

(3) Where any proceedings are held under sub- section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings exceptwith the previous permission of the Court.

CHAPTER XXV : PROVISIONS AS TO ACCUSED PERSONS OF UNSOUND MIND

328. Procedure in case of accused being lunatic:- (1)When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing.

(2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of Section 330.

(3) If such Magistrate is of opinion that the person referred to in sub-section (1) is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case.

329. Procedure in case of person of unsound mind tried before Court:--(1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.

(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Magistrate or Court.

330. Release of lunatic pending investigation or trial:--(1)Whenever a person is found under Section 328, or Section 329 to be of unsound mind and incapable of making his defence, the Magistrate or Court, as the case may be, whether the case is one in which bail may be taken or not, may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any person, and for his appearance when required before the Magistrate or Court or such office as the Magistrate or Court appoints in this behalf.

(2) If the case is one in which, in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate or Court, as the case may be, shall order the accused to be detained in safe custody in such place and manner as he or it may think fit, and shall report the action taken to the State Government:

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912 (4 of 1912).

331. Resumption of inquiry or trial.--(1) Whenever an inquiry or a trial is postponed under Section 328 or Section 329, the Magistrate or Court, as the case may be, may at any time after the person concerned has ceased to be of unsound mind, resume the inquiry or trial and require the accused to appear or be brought before such Magistrate or Court.

(2) When the accused has been released under Section 330, and the sureties for his appearance produce him to the officer whom the Magistrate or Court appoints in this behalf, the certificate of such officer that the accused is capable of making his defence shall be receivable in evidence.

332. Procedure on accused appearing before Magistrate or Court :--(1) If, when the accused appears or is again brought before the Magistrate or Court, as the case may be, the Magistrate or Court considers him capable of making his defence, the inquiry or trial shall proceed.

(2) If the Magistrate or Court considers the accused to be still incapable of making his defence, the Magistrate or Court shall act according to the provisions of Section or Section 329, as the case may be, and if the accused is found to be of unsound mind and consequently incapable making his defence, shall deal with such accused in accord with the provisions of Section 330.

333. When accused appears to have been of so mind :- When the accused appears to be of sound mind at the time of inquiry or trial and the Magistrate is satisfied, from the evidence given before him that there is reason to believe that the accused committed an act, which, if he had been of sound mind, would have been an offence, and that he was, at the time when the act was committed, by reason of unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or contrary to law, the Magistrate shall proceed with the case, and, if the accused ought to be tried by the court of session, commit him for trial before the Court of Session.

334. Judgement of acquittal on ground of unsoundness of mind:- Whenever any person is acquitted upon the ground that, at the time at which he is alleged to have committed an offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not.

335. Person acquitted on such ground to be detained in safe custody:-

(1) Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence,-

(a) order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit; or

(b) order such person to be delivered to any relative or friend of such person.

(2) No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of sub- section (1) otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912 (4 of 1912).

(3) No order for the delivery of the accused to a relative or friend shall be made under clause (b) of sub-section (1) except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shall

(a) be properly taken care of and prevented from doing injury to himself or to any other person.

(b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct.

(4) The Magistrate or Court shall report to the State Government the action taken under sub-section (1).

336. Power of State Government to empower officer-in-charge to discharge :- The State Government may empower the officer in charge of the jail in which a person is confined under the provisions of Section 330 or Section 335 to discharge all or any of the functions of the Inspector-General of Prisons under Section 337 or Section 338.

337. Procedure where lunatic prisoner is reported capable of making his defence:- If such person is detained under the provisions of sub-section (2) of Section 330, and in the case of a person detained in a jail, the Inspector General of Prisons, or, in the case of a person detained a lunatic asylum, the visitors of such asylum, or any two of them shall certify that, in his or their opinion, such person is capable of making his defence, he shall be taken before the Magistrate or Court, as the case may be, at such time as the Magistrate or Court appoints, and the Magistrate or Court shall deal with such person under the provisions of Section 332 and the certificate of such Inspector-General or visitors as aforesaid shall be receivable as evidence.

338. Procedure where lunatic detained is declared fit to be released:-(1) If such person is detained under the provisions of sub-section (2) of section 330 or Section 335, and such Inspector-General or visitors shall certify that, in his or their judgement, he may be released without danger of his doing injury to himself or to any other person, the State Government may thereupon order him to be released, or to be detained in custody, or to be transferred to a public lunatic asylum if he has not been already sent to such an asylum, and in case it orders him to be transferred to an asylum, may appoint a Commission, consisting of a Judicial and two medical officers.

(2) Such Commission shall make a formal inquiry into the state of mind of such person, take such evidence as is necessary, and shall report to the State Government, which may order his release or detention as it thinks fit.

339. Delivery of lunatic to care of relative or friend:- (1) Whenever any relative or friend of any person detained under the provisions of Section 330 or Section 335 desires that he shall be delivered to his care and custody, the State Government may, upon the application of such relative or friend and on his giving security to the satisfaction of such State Government, that the person delivered shall,--

(a) be properly taken care of, and prevented from doing injury to himself or to any other person;

(b) be produced for the inspection of such officer, and at such time and places, as the State Government may direct,

(c) in the case of a person detained under sub-section (2) of Section 330, be produced when required before such Magistrate or Court, order such person to be delivered to such relative or friend.

(2) If the person so delivered is accused of any offence, the trial of which has been postponed by reason of his being of unsound mind and incapable of making his defence, and the inspecting officer referred to in clause (b) of sub-section (1) certifies at any time to the Magistrate or Court that such person is capable of making his defence, such Magistrate or Court shall call upon the relative or friend to whom such accused was delivered to produce him before the Magistrate or Court and upon such production the Magistrate or Court shall proceed in accordance with the provisions of Section 332, and the certificate of the inspecting office shall be receivable as evidence.

CHAPTER XXVI : PROVISIONS AS TO OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE

340. Procedure in cases mentioned in Section 195:- (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court, or as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,--

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(d) take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate, and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195.

(3) A complaint made under this section shall be signed-

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this section, "Court" has the same meaning as in Section 195.

341. Appeal :--(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (1) or sub-section (2) of Section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195, and the superior Court May thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such-former Court might have made under Section 340, and, if it makes such complaint, the provisions of that section shall apply accordingly.

(2) An order under this section, and subject to any such order, an order under Section 340, shall be final and shall not be subject to revision.

342. Power to order costs:- Any Court dealing with an application made to it for filing a complaint under Section 340 or an appeal under Section 341, shall have power to make such order as to costs as may be just.

343. Procedure of Magistrate taking cognizance:- (1) A Magistrate to whom a complaint is made under Section 340 or Section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report.

(2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.

344. Summary procedure for trial for giving false evidenced:- (1) If, at the time of delivery of any judgement of final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender areasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to fivehundred rupees, or with both.

(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.

(3) Nothing in this section shall affect the power of the Court to make a complaint under Section 340 for the offence, where it does not choose to proceed under this section.

(4) Where, after any action is initiated under sub-section (1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgement or order in which the opinion referred to in that sub-section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision.

345. Procedure in certain cases of contempt:--(1) When any such offence as is described in Section 175, Section 178, Section 179, Section 180, or Section 228 of the Indian Penal Code (45 of 1860), is committed in the view or presence of any Civil, Criminal, or Revenue Court, the Court may cause the offender to be detained in custody, and may, at any time before the rising of the Court or the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity of showing cause why he should not be punished under this section, sentence offender to fine not exceeding two hundred rupees, and, in default of payment of fine, to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid.

(2) In every such case the Court shall record the fact constituting the offence, with the statement (if any) made by the offender, as well as the finding and sentence.

(3) If the offence is under Section 228 of the Indian Penal Code (45 of 1860), the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or insult.

346. Procedure where Court considers that case should not be dealt with under Section 345.- (1) If the Court in any case considers that a person accused of any of the offences referred to in Section 345 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine, or that a fine exceeding two hundred rupees should be imposed upon him, or such Court is for any other reason of opinion that the case should not be disposed of under Section 345, such Court, after recording the facts constituting the offence and the statement of the accused as hereinbefore provided, may forward the case to a Magistrate having jurisdiction to try the same, and may require security to be given for the appearance of such person before such Magistrate, or if sufficient security is not given, shall forward such person in custody to such Magistrate.

(2) The Magistrate to whom any case is forwarded under this section shall proceed to deal with, as far as may be, as if it were instituted on a police report.

347. When Registrar or Sub-Registrar to be deemed a Civil Court.- When the State Government so directs, any Registrar or any Sub-Registrar appointed under the Registration Act, 1908 (16 of 1908), shall be deemed to be a Civil Court within the meaning of Section 345 and 346.

348. Discharge of offender on submission apology:- When any Court has under Section 345 adjudged an offender to punishment, or has under Section forwarded him to a Magistrate for trial, for refusing or omitting to do anything which he was lawfully required to do or for any intentional insult or interruption, the Court may, in its discretion, discharge the offender or remit the punishment on his submission to the order or requisition of such court, or on apology being made to its satisfaction.

349. Imprisonment or committal of person refusing to answer or produce document:- If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal, he may be dealt with according to the provisions of section 345 or section 346.

350. Summary procedure for punishment for non-attendance by a witness in obedience to summons:-. (1) If any witness being summoned to appear before a Criminal Court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or time or departs from the place where he has to attend before the time at which it is lawful for him to depart, and the Court before which the witness is to appear is satisfied that it is expedient in the interest of Justice that such a witness should be tried summarily, the Court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence him to fine not exceeding one hundred rupees.

(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.

351. Appeals from convictions under Sections 344, 345, 349 and 350:- (1) Any person sentenced by any Court other than a High Court under Section 344, Section 345, Section 349, or Section 350 may, notwithstanding anything contained in this Code, appeal to the Court to which decrees or orders made in such Court are ordinarily appealable.

(2) The provisions of Chapter XXIX shall, so far as they are applicable, apply to appeals under this section, and the Appellate Court may alter to reverse the finding or reduce or reverse the sentence appealed against.

(3) An appeal from such conviction by a Court of Small Causes shall lie to the Court of Session for the sessions division within which such Court is situate.

(4) An appeal from such conviction by any Registrar or Sub-Registrar deemed to be a Civil Court by virtue of a direction issued under Section 347 shall lie to the Court of Session for the sessions division within which the office of such Registrar or Sub-Registrar is situate.

352. Certain Judges and Magistrates not to try certain offences when committed before themselves:- Except as provided in Sections 344, 345, 349, and 350, no Judge of a Criminal Court (other than a Judge of a High Court) or Magistrate shall try any person for any offence referred to in Section 195, when such offence is committed before himself orin contempt of his authority, or is brought under his notice as such Judge or Magistrate in the course of a judicial proceeding.

CHAPTER XXVII : THE JUDGEMENT

353. Judgement:- (1) The judgement in every trial in any Criminal Court or original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders:-

(a) by delivering the whole of the judgement; or

(b) by reading out the whole of the judgement; or

(c) by reading out the operative part of the judgement and explaining the substance of the judgement in a language which is understood by the accused or his pleader.

(2) Where the judgement is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in short-hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgement in open Court.

(3) Where the judgement or the operative part thereof is read out under clause (b) or clause (c) of sub-section (1) as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgement shall be signed by him.

(4) Where the judgement is pronounced in the manner specified in the clause (c) of sub-section (1), the whole judgement or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost.

(5) If the accused is in custody, he shall be brought up to hear the judgement pronounced.

(6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgement pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted:

Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which judgement is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgement notwithstanding their absence.

(7) No judgement delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place.

(8) Nothing in this section shall be construed to limit in any way the extent of the provisions of Section 465.

354. Language and contents of judgement:- (1) Except as otherwise expressly provided by this Code, every judgement referred to in Section 353,-

(a) shall be written in the language of the Court;

(b) shall contain the point or points for determination, the decision thereon and the reasons for the decision;

(c) shall specify the offence (if any) of which, and the Section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted, and the punishment to which he is sentenced.

(d) if it be a judgement of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.

(2) When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgement in the alternative.

(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgement shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.

(4) When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of this Code.

(5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.

(6) Every order under Section 117 or sub-section (2) of Section 138 and every final order made under Section 125, Section 145 or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision.

355. Metropolitan Magistrate's judgement:- Instead of recording a judgement in the manner hereinbefore provided, a Metropolitan Magistrate shall record the following particulars, namely:--

(a) the serial number of the case;

(b) the date of the commission of the offence;

(d) the name of the accused person, and his parentage and residence;

(e) the offence complained of or proved,

(f) the plea of the accused and his examination (if any);

(g) the final order;

(h) the date of such order;

(i) in all cases in which an appeal lies from the final order either under Section 373 or under sub-section (3) of Section 374, a brief statement of the reasons for the decision.

356. Order for notifying address of previously convicted offender:- (1) When any person, having been convicted by a Court in India of an offence punishable under Section 215, Section 489A, Section 489B, Section 489C, or Section 489D of the Indian Penal Code (45 of 1860), or of any offence punishable under Chapter XII or Chapter XVII of that code, with imprisonment for a term of three years, or upwards, is again convicted of any offence punishable under any of those sections or chapters with imprisonment for a term of three years or upwards by any Court other than that of a Magistrate of the Second class, such Court may, if it thinks fit, at the time of passing a sentence of imprisonment on such person, also order that his residence and any change of, or absence from, such residence after release be notified as hereinafter provided for a term not exceeding five years from the date of the expiration of such sentence.

(2) The provisions of sub-section (1) with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abatement of such offences and attempts to commit them.

(3) If such conviction is set aside on appeal or otherwise, such order shall become void.

(4) An order under this section may also be made by Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) The State Government may, by notification, make rules to carry out the provisions of this section relating to the notification of residence or change of, or absence from, residence by released convicts.

(6) Such rules may provide for punishment for the breach thereof and any person charged with a breach of any such rule may be tried by a Magistrate of competent jurisdiction in the district in which the place last notified by him as his place of residence is situated.

357. Order to pay compensation:- (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgement, order the whole or any part of the fine recovered to be applied:-

(a) in defraying the expenses of properly incurred in the prosecution;

(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property is restored to the possession of the person entitled thereto.

(2) If the fine is imposed in a case which is subject to appeal no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.

(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgement, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person as been so sentenced.

(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.

STATE AMENDMENTS

Andhra Pradesh: (I) in sub-sec. (1), after the words "the Court may", Insert the expression "and where a person against whom an offence is committed belongs to Scheduled Castes or Scheduled Tribes as defined in Clauses (24) and (25) of Article 366 of the Constitution of India except when both the accused person and the person, against whom an offence is committed belong either to such castes or tribes, the Court shall" ; and

(ii) for sub-sec. (3), substitute the following, namely,--

(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, and where a person against whom an offence is committed belongs to Scheduled Castes or Scheduled Tribes as defined in Clauses (24) of Article 366 of the Constitution of India, the Court shall, when passing judgement order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced:

Provided that the Court may not order the accused person to pay by way of compensation any amount, if both the accused person and the person against whom an offence is committed belong either to the Scheduled Castes or the Scheduled Tribes". A P Act 21 of 1993, w.e.f. 3-9-1993.

Bihar:- insert the following proviso: After sub-section (1).

"Provided that the person against whom an offence is committed belongs to Scheduled Castes and to Scheduled Tribes as defined under clauses (24) and (25) to Article 366 of the constitution, the court shall, at the time of judgement, pass order that the entire amount of fine realised or any part of it will be utilised for the benefit of such person by way of compensation" – Bihar Act 9 of 1985, w.e.f., 13-8-1985.

Karnataka:- (1) In sub-section (1), after the words "the Court may", the brackets, the figures and words " and where the person against whom an offence is committed belongs to a Scheduled Caste or a Scheduled Tribe as defined in clause (24) and (25) of Article 366 of the Constitution and the accused person does not belong to a Scheduled Caste or a Scheduled Tribe, the Court shall" shall be inserted.

(2) Substitute the following for sub-section (3).

"(3) When a Court imposes a sentence, of which the fine does not form a part, the court may, and where a person against whom an offence is committed belongs to Scheduled Caste or Scheduled Tribe as defined in clauses (24) and (25) of Article 366 of the Constitution and the accused person does not belong to a Scheduled Caste or Scheduled Tribe, the Court shall, when passing judgement, order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced". Karnataka Act 27 of 1987, w.e.f. 13-8-1987.

Madhya Pradesh:- (a) In sub-section (1) for the words "(1) when a Court imposes a sentence of fine of a sentence (including a sentence of death) or which fine forms a part, the Court may, when passing judgement, order the whole or any part of the fine recovered to be applied", the words "(1) when a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, and where a person against whom an offence is committed belongs to Scheduled Castes or Scheduled Tribes as defined in clauses (24) and (25) of Article 366 of the Constitution except when both the accused person and the person against whom an offence is committed belongs either to such Caste or Tribes, the Court shall, when passing judgement, order the whole or any part of the fine recovered to be applied", shall be substituted; and

(b) For sub-sec. (3), the following shall be substituted,

"(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, and where a person against whom an offence is committed belongs to Scheduled Caste or Scheduled Tribes as defined in clause (24) and (25) of Article 366 of the Constitution, the Court shall, when passing judgement, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced:

Rajasthan - In Section 357,-

(i) in sub-section (1), between the expression "the Court may", and the expression "When passing judgement" insert the expression "and where the person against whom an offence is committed belongs to a Scheduled Caste or a Scheduled Tribe but the accused person does not so belong, the Court shall", and

(ii) in sub-section (3) between the expression "the Court may", and the expression "when passing judgement" insert the expression "and where the person against whom an offence is committed belongs to a Scheduled Caste or a Scheduled Tribe but the accused person does not so belong, the Court shall" - Rajasthan Act 3 of 1993.

Uttar Pradesh :- (a) in sub-section (1), after clause (d) insert the following proviso, namely:-

"Provided that if a person who may receive compensation under clauses (b), (c) and (d) is a member of the Scheduled Castes or the Scheduled Tribes and the person sentenced is not a member of such Castes or Tribes, the Court shall order the whole or any part of the fine recovered to be applied in payment of such compensation".

(b) for sub-section (3) substitute the following sub-section, namely,

"(3) When the Court imposes a sentence, of which fine does not form a part, the Court may, and where the person who has suffered the loss or injury is a member of the Scheduled Castes or the Scheduled Tribes and the person sentenced is not a member of such Castes or Tribes the Court shall, when passing judgement, order the person sentenced to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the person has been so sentenced".

"Explanation:- For the purposes of, this section expressions "Scheduled Castes" and "Scheduled Tribes" shall have the meanings respectively assigned to them in clauses (24) (25) of Article 366 of the Constitution" - U.P.Act 17 of 1992.

West Bengal :- (a) in sub-section (1), for the words "When a Court imposes a sentence of fine or a sentence (including sentence of death) of which fine forms a part, the Court may, when passing judgement, order the whole or any part of the recovered to be applied", the words "When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, and where the person against whom an offence has been committed belongs to Scheduled Castes or Scheduled Tribes, except when both the accused per and the person against whom an offence has been committed belongs either to Scheduled Castes or to Scheduled Tribes, shall, when passing judgement order the whole or any part of the fine recovered be applied"- shall be substituted.

(b) for sub-section (3), substitute the following sub-section

"(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, and where the person against whom an offence has been committed belongs to Scheduled Caste or Scheduled Tribes shall, when passing judgement, order the accused person to pay, by way of compensation, such amount as may specified in the order to the person who has suffered any loss injury by reason of the act for which the accused person has been so sentenced:

Provided that the Court may not order the accused per to pay by way of compensation, any amount if both the accused person and the person against whom an offence has been committed belong either to Scheduled Castes or to Scheduled Tribes"; and

"Explanation:- For the purposes of this section, expressions "Scheduled Castes" and "Scheduled Tribes" shall have the meanings respectively assigned to them in clauses (24) and (25) of Article 366 of the Constitution of India" - W.B.Act of 1985.

358. Compensation to persons groundlessly arrested:-(1) Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding one hundred rupees, to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.

(2) In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to each of them such compensation not exceeding one hundred rupees, as such Magistrate thinks fit.

(3) All Compensation awarded under this Section may be recovered as if it were a fine, and if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.

359. Order to pay costs in non-cognizable cases:- (1)Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days and such costs may include any expenses incurred in respect of process-fees, witnesses and pleader's fees which the Court may consider reasonable.

(2) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

360. Order to release on probation of good conduct or after admonition :--(1)When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, Character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that, where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu, thereof pass sentence on such offender according to law:

Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of Sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognisance, it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such warrant shall be brought forthwith before the Court issuing warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1951), the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

361. Special reasons to be recorded in certain cases:- Where in any case the Court could have dealt with,-

(a) an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958); or

(b) a youthful offender under the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgement the special reasons for not having done so.

362. Court not to alter judgement:- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgement or order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

363. Copy of judgement to be given to the accused and other persons:- (1) When the accused is sentenced to imprisonment, a copy of the judgement shall, immediately after the pronouncement of the judgement be given to him free of cost.

(2) On the application of the accused, a certified copy of the judgement, or when he so desires, a translation in his own language if practicable or in the language of the Court, shall be given to him without delay, and such copy shall, in every case where the judgement is appealable by the accused, be given free of cost:

Provided that where a sentence of death is passed or confirmed by the High Court, a certified copy of the judgement shall be immediately given to the accused free of cost whether or not he applies for the same.

(3) The provisions of sub-section (2) shall apply in relation to an order under Section 117 as they apply in relation to a judgement which is appealable by the accused.

(4) When the accused is sentenced to death by any Court and an appeal lies from such judgement as of right, the Court shall inform him of the period within which, if he wishes to appeal, his appeal should be preferred.

(5) Save as otherwise provided in sub-section (2), any person affected by a judgement or order passed by a Criminal Court shall, on an application made in this behalf and on payment of the prescribed charges, be given a copy of such judgement or order or of any deposition or other part of the record:

Provided that the Court may, if it thinks fit for some special reasons, give it to him free of cost.

(6) The High Court may, by rules, provide for the grant of copies of any judgement or order of a Criminal Court to any person who is not affected by a judgement or order, on payment, by such person, of such fees, and subject to such conditions, as the High Court may, by such rules, provide.

STATE AMENDMENT

Karnataka :- Insert the following, after the proviso tosub-section (5),

"Provided further that the State shall, on an application made in this behalf by the Prosecuting Officer, be given, free of cost, a certified copy of such judgement, order deposition or record with the prescribed endorsement" - Karnataka Act 19 of 1985, w.e.f. 25-6-1985.

364. Judgement when to be translated:- The originaljudgement shall be filed with the record of proceedings a where the original is recorded in a language different from that of the Court, and the accused so requires, a translation thereof into the language of the Court shall be added to such record.

365. Court of Session to send copy of finding and sentence to District Magistrate:- In cases tried by the Court of Session or a Chief Judicial Magistrate, the Court or such Magistrate, as the case may be, shall forward a copy of its or his finding and sentence (if any) to the District Magistrate within whose local jurisdiction the trial was held.

CHAPTER XXVIII : SUBMISSION OF DEATH SENTENCES FOR CONFIRMATION

366. Sentence of death to be submitted by Court of Session for confirmation :--(1)When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.

(2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant.

367. Power to direct further inquiry to be made or additional evidence to be taken :--(1)If, when such proceedings are submitted, the High Court thinks that further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session.

(2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken.

(3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result of such inquiry or evidence shall be certified to such Court.

368. Power of High Court to confirm sentence or annul conviction :-- In any case submitted under Section 366, the High Court,--

(a) may confirm the sentence, or pass any other sentence warranted by law, or

(b) may annul the conviction and convict the accused of any offence of which the Court of Session might have convicted him, or order a new trial on the same or an amended charge, or

Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of.

369. Confirmation or new sentence to be signed by two Judges.- In every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them.

370. Procedure in case of difference of opinion:- Where any such case is heard before a Bench of Judges and such Judges are equally divided in opinion, the case shall be decided in the manner provided by Section 392.

371. Procedure in cases submitted to High Court for confirmation:- In cases submitted by the Court of Session to the High Court for the confirmation of a sentence of death, the proper officer of the High Court shall, without delay, after the order of confirmation or other order has been made by the High Court, send a copy of the order, the seal of the High Court and attested with his official signature, to the Court of Session.

CHAPTER XXIX : APPEALS

372. No appeal to lie unless otherwise provided:- No appeal shall lie from any judgement or order of a Criminal Court except as provided for by this Code or by any law for the time being in force.

373. Appeal from orders requiring security or refusal to accept or rejecting surety for keeping peace or good behaviour :-- Any person,--

(i) who has been ordered under Section 117 to security for keeping the peace or for good behaviour, or

(ii) who is aggrieved by any order refusing to accept or rejecting a surety under Section 121,

may appeal against such order to the Court of Session:

Provided that nothing in this section shall apply to persons the proceedings against whom are laid before a sessions Judge in accordance with the provisions of sub-section (2) or sub-section (4) of Section 122.

374. Appeals from convictions:--(1) Any personconvicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held any other Court in which a sentence of imprisonment more than seven years has been against him or against any other person convicted at the same trial may appeal to the High Court.

(3) Save as otherwise provided in sub-section (2), any person:---

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate

of the first class, or of the second class, or

(b) sentenced under Section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate may appeal to the Court of Session.

CASE-LAW

Prior statement of awitness cannot be used as substantive evidence, 1997 (1) SCC 145.

STATE AMENDMENTS

Punjab :- In sub-section (3) for the words "Magistrate of First Class" the words "Executive Magistrate" shall be substituted.

Union Territory of Chandigarh :- Same as in Punjab.

375. No appeal in certain cases when accused pleads guilty:- Notwithstanding anything contained in Section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal:--

(a) if the conviction is by a High Court ; or

(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or

second class, except as to the extent or legality of the sentence.

376. No appeal in petty cases:- Notwithstanding anything contained in Section 374, there shall be no appeal by a convicted person in any of the following cases, namely:-

(a) where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of

fine not exceeding one thousand rupees, or of both such imprisonment and fine;

(b) where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisons for a term

not exceeding three months or of not exceeding two hundred rupees, or of both such imprisonment and fine;

(d) where, in a case tried summarily, a Magistrate empowered to act under Section 260 passes onlya

sentence of fine not exceeding two hundred rupees:-

Provided that an appeal may be brought against such sentence if any other punishment is combined with it, but such sentence shall not be appealable merely on the ground:--

(i) that the person convicted is ordered to furnish security to keep the peace; or

(ii) that a direction for imprisonment in default payment of fine is included in the sentence; or

(iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed not exceed the amount hereinbefore specified in respect of the case.

377. Appeal by the State Government against sentence:-(1)Save as otherwise provided in section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.

(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause; the accused may plead of his acquittal or for the reduction of the sentence.

378. Appeal in case of acquittal :--(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court, or an order of acquittal passed by the Court of Session in revision.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the high Court from the order of acquittal.

(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).

379. Appeal against conviction by High Court in certain cases:-- Where the High Court has, on appeal, reversed an order of acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more, he may appeal to the Supreme Court.

380. Special right of appeal in certain cases.- Notwithstanding anything contained in this chapter, when more persons than one are convicted in one trial, and an appealable judgement or order has been passed in respect of any of such persons, all or any of the persons convicted at such trial shall have a right of appeal.

381. Appeal to Court of Session how heard:- (1) Subject to the provisions of sub-section (2), an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge:

Provided that an appeal against a conviction on a trial held by a Magistrate of the second class may be heard and disposed of by an Assistant Sessions Judge or a Chief Judicial Magistrate.

(2) An Additional Sessions Judge, Assistant Sessions Judge or a Chief Judicial Magistrate shall hear only such appeals as the Sessions Judge of the division may, by general or special order, make over to him or as the High Court may, by special order, direct him to hear.

382. Petition of appeal:- Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgement or order appealed against.

STATE AMENDMENTS

Andaman, Nicobar Island and Lakshadweep Island:- (I) Section 382 renumbered as sub-section (1), the following proviso shall be added to sub-section (1) so renumbered:-

"Provided that where it is not practicable to file the petition of appeal to the proper Appellate Court, the petition of appeal may be presented to the Administrator or to an Executive Magistrate not below the rank of a sub-divisional Magistrate, who shall forward the same to the proper Appellate Court; and, when any such appeal is presented to the Administrator or to an Executive Magistrate, he shall record thereon the date of its presentation and, if he is satisfied that, by reason of the weather, transport or other difficulties, it is not possible for the appellant to obtain, from the proper Appellate Court, orders for the suspension of the sentence or for bail, he may, in respect of such appeal, or an appeal forwarded to him under Section 383 exercise all or any of the powers of the proper Appellate Court under sub- section (1) of Section 389 with regard to suspension of sentence or release of a convicted person on bail:

Provided further that the order so made by the Administrator or the Executive Magistrate shall have effect until it is reversed or modified by the proper Appellate Court.

Explanation:-- For the purposes of the provisos to this Section and Section 383, "Administrator" in relation to a Union Territory, means the Administrator appointed by the President under Article 239 of the Constitution, for the Union Territory.

(i) After sub-section (1) so renumbered, the following sub-section (2) shall be inserted,

namely,--

(2) For the purposes of computation of the period of limitation, and for all other purposes, an appeal presented to an Administrator or an Executive Magistrate under sub-section (1) or, as the case may be, under section 383, shall be deemed to be an appeal presented to the proper Appellate Court". Regulation 1 of 1974, w.e.f. 30-3-1974.

383. Procedure when appellant in jail:-- If the appellant is in jail, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the proper Appellate Court.

STATE AMENDMENTS

Andaman, Nicobar Islands and Lakshadweep Islands:-

Insert the following words at the end:--

"Or if, by reason of the weather, transport or other difficulties, it is not possible to forward them to the proper Appellate Court, they shall be forwarded to the Administrator or an Executive Magistrate, not below the rank of a Sub-Divisional Magistrate, who shall, on receipt of such petition of appeal and copies, record thereon the date of receipt thereof and thereafter forward the same to the proper Appellate Court". Regulation 1 of 1974, w.e.f. 30-3-1974.

384. Summary dismissal of appeal:--(1) If upon examining the petition of appeal and copy of the judgement received under Section 382 or Section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:-

Provided that-

(a) no appeal presented under Section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same;

(b) no appeal presented under Section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers, that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case;

(c) no appeal presented under Section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.

(2) Before dismissing an appeal under this Section, the Court may call for the record of the case.

(3) Where the Appellate Court dismissing an appeal under this section is a Court of Session or of the Chief Judicial Magistrate, it shall record its reasons for doing so.

(4) Where an appeal presented under Section 383 has been dismissed summarily under this section and the Appellate Court finds that another petition of appeal duly presented under Section 382 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in Section 393, if satisfied that it is necessary in the interests of Justice so to do, hear and dispose of such appeal in accordance with law.

385. Procedure for hearing appeals not dismissed summarily :-(1)If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given:--

(i) to the appellant or his pleader;

(ii) to such officer as the State Government may appoint in this behalf;

(iii) if the appeal is from a judgement of conviction in a case instituted upon complaint, to the complainant

(iv) if the appeal is under Section 377 or Section 378, to the accused,

and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.

(2) The Appellate Court shall then send for the record of the case, if such record is not already available in the Court, and hear the parties:

Provided that if the appeal is only as to the extent of the legality of the sentence, the Court may dispose of the appeal without sending for the record.

(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.

386. Powers of the Appellate Court:- After perusing, such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and in case of an appeal under Section 377 or Section 378, the accused if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may:--

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or

that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on

him according to law.

(b) in an appeal from a conviction:--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a

Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) after the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the

sentence, but not so as to enhance the same--

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried

by a Court competent to try the offence, or

(ii) after the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or, the nature and extent, of

the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper:

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

387. Judgements of Subordinate Appellate Court : - The rules contained in Chapter XXVII as to the judgement of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgement in appeal of a Court of Session or Chief Judicial Magistrate:

Provided that, unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear the judgement delivered.

388. Order of High Court on appeal to be certified to lower Court:-(1) Whenever a case is decided on appeal by the High Court under this Chapter, it shall certify its judgement or order to the Court by which the finding, sentence or order appealed against was recorded or passed and if such Court is that of a Judicial Magistrate other than the Chief Judicial Magistrate, the High Court's judgement or order shall be sent through the Chief Judicial Magistrate, and if such Court is that of an Executive Magistrate, the High Court judgement or order shall be sent through the District Magistrate.

(2) The Court to which the High Court certifies its judgement or order shall thereupon make such orders as are comfortable to the judgement or order of the High Court, and if necessary, the record shall be amended in accordance therewith.

389. Suspension of sentence pending the appeal; release of appellant on bail:- (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on a Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall.--

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,

order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

390. Arrest of accused in appeal from acquittal.- When an appeal is presented under Section 378, the High Court may issue a warrant directing that the accused be arrested and brought before it or any Subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail.

391. Appellate Court may take further evidence or direct it to be taken:-

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.

392. Procedure where Judges of Court of Appeal are equally divided:- When an appeal under this chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgement or order shall follow that opinion:

Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be re-heard and decided by a larger Bench of Judges.

393. Finality of judgements and orders on appeal:- Judgements and orders passed by an Appellate Court upon an appeal shall be final, except in the cases provided for in Section 377, Section 378, sub-section (4) of Section 384 or Chapter XXX:

Provided that notwithstanding the final disposal of an appeal against conviction in any case, the Appellate Court may hear and dispose of, on the merits..--

(a) an appeal against acquittal under Section 378, arising out of the same case, or

(b) an appeal for the enhancement of sentence under Section 377, arising out of the same case.

394. Abatement of appeals :-(1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused.

(2) Every other appeal under this chapter appeal from a sentence of fine shall finally abate on the death of the appellant:

Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

Explanation.- In this Section "near relative" means aparent, spouse, lineal descendant, brother or sister.

CHAPTER XXX : REFERENCE AND REVISION

395. Reference to High Court:--(1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative but has not been so declared by the High Court to which that Court is Subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.

Explanation-- In this section, "Regulation" means any Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.

(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.

(3) Any Court making a reference to the High Court under sub-section (1) or sub-section (2) may, pending decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon.

396. Disposal of case according to decision of High Court:-(1) When a question has been so referred, the High Court shall pass such order thereon as it thinks fit, and shall cause a copy of such order to be sent to the Court by which the reference was made, which shall dispose of the case conformably to the said order.

(2) The High Court may direct by whom the costs of such reference shall be paid.

397. Calling for records to exercise powers of revision:-(1)The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.

Explanation:- All Magistrates, whether Executive or Judicial and whether exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutor order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

398. Power to order inquiry:- On examining any record under Section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or sub-section (4) of Section 204, or into the case of any person accused of an offence who has been discharged:

Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.

399. Sessions Judge's powers of revision : (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

400. Power of Additional Sessions Judge.—An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge.

401. High Court's powers of revision:--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided Section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by plead in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have, appealed.

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of Justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

402. Power of High Court to withdraw or transfer revision cases:--(1) Whenever one or more persons convicted at the same trial makes or make application to a High Court for revision and any other person convicted at the same trial makes an application to the Sessions Judge for revision, the High Court shall decide, having regard to the general convenience of the parties and the importance of the questions involved, which of the two Courts should finally dispose of the applications for revision and when the High Court decides that all the applications for revision should be disposed of by itself, the High Court shall direct that the applications for revision pending before the Sessions Judge be transferred to itself and where the High Court decides that it is not necessary for it to dispose of the applications for revision, it shall direct that the applications for revision made to it be transferred to the Sessions Judge.

(2) Whenever any application for revision is transferred to the High Court, that Court shall deal with the same as if it were an application duly made before itself.

(3) Whenever any application for revision is transferred to the Sessions Judge, that Judge shall deal with the same as if it were an application duly made before himself.

(4) Where an application for revision is transferred by the High Court to the Sessions Judge, no further application for revision shall lie to the High Court or to any other Court at the instance of the person or persons whose application for revision have been disposed of by the Sessions Judge.

403. Option of Court to hear parties.- Save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader before any Court exercising its powers of revision, but the Court may if it thinks fit, when exercising such powers, hear any party either personally or by pleader.

404. Statement by Metropolitan Magistrate of grounds of his decision to be considered by High Court: When the record of any trial held by a Metropolitan Magistrate is called for by the High Court or Court of Session under Section 397, the Magistrate may submit with the record a statement setting forth the grounds of his decision or order and any facts which he thinks material to the issue, and that Court shall consider such statement before overruling or setting aside the said decision or order.

405. High Court's order to be certified to lower Court:-- When a case is revised under this Chapter by the High Court or a Sessions Judge, it or he shall, in the manner provided by Section 388, certify its decision or order to the Court by which the finding, sentence or order revised was recorded or passed, and the Court to which the decision or order is so certified shall thereupon-make such orders as are conformable to the decision so certified, and, if necessary, the record shall be amended in accordance therewith.

CHAPTER XXXI : TRANSFER OF CRIMINAL CASES

406. Power of Supreme Court to transfer cases and appeals:-(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

(2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.

(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.

407. Power of High Court to transfer cases and appeals:-(1)Whenever it is made to appear to the High Court:--

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,

it may order --

(i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both

inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court

subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Session Judge and rejected by him.

(3) Every application for an order under sub section (1) shall be made by motion, which shall, excel when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7)

(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the applications unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case or appeal from any Subordinate Court, the High Court may if it is satisfied that it is necessary so to do in the interest of Justice, order that, pending the disposal of the application the proceedings in the Subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:

Provided that such stay shall not affect the Subordinate Court's power of remand under Section 309.

(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.

(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of Government under Section 197.

408. Power of Sessions Judge to transfer cases and appeals:-(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his Sessions division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative.

(3) The provisions of sub-sections (3), (4), (5), (6) (7) and (9) of Section 407 shall apply in relation to an application to the Session, Judge for an order under sub-section (1) as they apply in relation to an application to High Court for an order under sub-sec. (1) of Section 407 except that sub-section (7) of that section shall so apply as if for the words, "one thousand rupees" occurring therein the words "two hundred and fifty rupees" were substituted.

409. Withdrawal of cases and appeals by Session Judge: -(1) A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him.

(2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case appeal which he has made over to any Additional Session Judge.

(3) Where a Sessions Judge withdraws or recalls case or appeal under sub-section (1) or sub-section (2), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provision of this Code to another Court for trial or hearing, as the case may be.

410. Withdrawal of cases by Judicial Magistrate:- (1)Any Chief Judicial Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.

(2) Any Judicial Magistrate may recall any case made over by him under sub-section (2) of Section 192 to any other Magistrate and may inquire into or try such case himself.

411. Making over or withdrawal of cases by Executive Magistrates.- Any District Magistrate or Sub- Divisional Magistrate may ---

(a) make over, for disposal, any proceeding which has been started before him, to any Magistrate

subordinate to him;

(b) withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to

him and dispose of such proceeding himself, or refer it for disposal to any other Magistrate.

412. Reasons to be recorded:- A Sessions Judge or Magistrate making an order under Section 408, Section 409, Section 410 or Section 411 shall record his reasons for making it.

CHAPTER XXXII : EXECUTION, SUSPENSION, REMISSION AND COMMUTATION OF SENTENCES

A - Death Sentences

413. Execution of order passed under Section 368.- When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.

414. Execution of sentence of death passed by High Court:- When a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, or receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.

415. Postponement of execution of sentence of death in case of appeal to Supreme Court:- (1) Where a person is sentenced to death by the High Court and an appeal from its judgement lies to the Supreme Court under sub-clause (a) or sub-clause (b) of Clause (1) of Article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal has expired, or if an appeal is preferred within that period, until such appeal is disposed of.

(2) Where a sentence of death is passed or confirmed by the High Court, and the person sentenced makes an application to the High Court for the grant of a certificate under Article 132 or under sub-clause (c) of Clause (1) of Article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until such application is disposed of by the High Court or if a certificate is granted on such application, until the period allowed for preferring an appeal to the Supreme Court on such certificate has expired.

(3) Where a sentence of death is passed or confirmed by the High Court, and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for the grant of special leave to appeal under Article 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such period as it considers sufficient to enable him to present such petition.

416. Postponement of capital sentence on pregnant woman.- If a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it thinks fit, commute the sentence to imprisonment for life.

CODE OF CRIMINAL PROCEDURE, 1973

B - Imprisonment

417. Power to appoint place of imprisonment:- (1)Except when otherwise provided by any law for the time being in force, the State Government may direct in what place any person liable to be imprisoned or committed to custody under this Code shall be confined.

(2) If any person liable to be imprisoned or committed to custody under this Code is in confinement in a civil jail, the Court or Magistrate ordering the imprisonment or committal may direct that the person be removed to a criminal jail:

(3) When a person is removed to a criminal jail under sub-section (2) he shall, on being released therefrom, be sent back to the civil jail, unless either,--

(a) three years have elapsed since he was removed to the criminal jail, in which case he shall be deemed

to have been released from the civil jail under Section 58 of the Code of Civil Procedure, 1908 (5 of 1908),

or Section 23 of the Provincial Insolvency Act, 1920 (5 of 1920), as the case may be, or

(b) the Court which ordered his imprisonment in the civil jail has certified to the officer in charge of the

criminal jail that he is entitled to be released under Section 58 of the Code of Civil Procedure, 1908 (5 of 1908), or

under Section 23 of the Provincial Insolvency Act, 1920 (5 of 1920), as the case may be.

418. Execution of sentence of imprisonment:-(1) Where the accused is sentenced to imprisonment for, life or to imprisonment for a term in cases other than those provided for by Section 413, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant:

Provided that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or forward a warrant to a jail, and the accused may be confined in such place as the Court may direct.

(2) Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in sub-section (1), the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest.

419. Direction of warrant for execution:- Every warrant for the execution of a sentence of imprisonment shall be directed to the officerin charge of the jail or other place in which the prisoner is, or is to be, confined.

420. Warrant with whom to be lodged:- When the prisoner is to be confined in jail, the warrant shall be lodged with the jailor.

C - Levy of fine

421. Warrant for levy of fine-.-(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may,-

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property

belonging to the offender;

(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:

Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless, it has made an order for the payment of expenses or compensation out of the fine under Section 357.

(2) The State Government may make rules regulating the manner in which warrants under Clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under Clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

422. Effect of such warrant:- A warrant issued under Clause (a) of sub-section (1) of Section 421 by any Court may be executed within the local jurisdiction of such Court, and it shall authorise the attachment and sale of any such property outside such jurisdiction, when it is endorsed by the District Magistrate within whose local jurisdiction such property is found.

423. Warrant for levy of fine issued by a Court in any territory to which this Code does not extend:- Notwithstanding anything contained in this Code or in any other law for the time being in force, when an offender has been sentenced to pay a fine by a Criminal Court in any territory to which this Code does not extend and the Court passing the sentence issued a warrant to the Collector of a district in the territories to which this Code extends, authorising him to realise the amount as if it were an arrears of land revenue, such warrant shall be deemed to be a warrant issued under Clause (b) of sub-section (1) of Section 421 by a Court in the territories to which this Code extends, and the provisions of sub-section (3) of the said section as to the execution of such warrant shall apply accordingly.

424. Suspension of execution of sentence of imprisonment: -(1)When an offender has been sentenced to fine only and to imprisonment in default of payment of the fine, and the fine is not paid forthwith, the Court may-

(a) order that the fine shall be payable either in full on or before a date not more than thirty days from the

date of the order, or in two or three instalments, of which the first shall be payable on or before a date not

more than thirty days from the date of the order and the other or others at an interval or at intervals, as the

case may be, of not more than thirty days.

(b) suspend the execution of the sentence of imprisonment and release the offender, on the execution by

the offender of a bond, with or without sureties, as the Court thinks fit, conditioned for his appearance before

the Court on the date or dates on or before which payment of the fine or the instalments thereof, as the case

may be, is to be made, and if the amount of the fine or of any instalment, as the case may be, is not realised

on or before the latest date on which it is payable under the order, the Court may direct the sentence of

imprisonment to be carried into execution at once.

(2) The provisions of sub-section (1) shall be applicable also in any case in which an order for the payment of money has been made on non-recovery of which imprisonment may be awarded and the money is not paid forthwith, and, if the person against whom the order has been made, on being required to enter into a bond such as is referred to in that sub-section, fails to do so, the Court may at once pass sentence of imprisonment.

D – General provisions regarding execution

425. Who may issue warrant:- Every warrant for the execution of a sentence may be issued either by the Judge or Magistrate who passed the sentence, or by his successor-in-charge.

426. Sentence on escaped convict when to take effect:- (1) When a sentence of death, imprisonment for life or fine is passed under this Code on an escaped convict, such sentence shall, subject to the provisions hereinbefore contained, take effect immediately.

(2) When a sentence of imprisonment for a term is passed under this Code on an escaped convict-

(a) if such sentence is severer in kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect immediately;

(b) if such sentence is not severer in kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment for a further period equal to that which, at the time of his escape, remained unexpired of his former sentence.

(3) For the purposes of sub-section (2), a sentence of rigorous imprisonment shall be deemed to be severer in kind than a sentence of simple imprisonment.

427. Sentence on offender already sentenced for another offence:-(1) When a person already undergoing a sentence on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:

Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, subsequent sentence shall run concurrently with such previous sentence.

STATE AMENDMENT

Tamilnadu :-- Insert the following sub-section after sub- section (I):--

"(IA) Notwithstanding anything contained in sub-section (1), when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment under sub-section (2) of Section 380 of the Indian Penal Code (Central Act XLV of 1860), for an offence of theft of any idol or icon in any building used as a place of worship, such imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced" - T.N. Act 28 of 1993.

428. Period of detention undergone by the accuser to be set off against the sentence of imprisonment:- Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.

429. Saving.--- (1) Nothing in Section 426 or Section 427 shall be held to excuse any person from any part of the punishment to which he is liable upon his former or subsequent conviction.

(2) When an award of imprisonment in default of payment of a fine is annexed to a substantive sentence of imprisonment and the person undergoing the sentence is after its execution to undergo a further substantive sentence or further substantive sentences of imprisonment, effect shall not be given to the award of imprisonment in default of payment of the fine until the person has undergone the further sentence or sentences.

430. Return of warrant on execution of sentence:- When a sentence has been fully executed, the officer executing it shall return the warrant to the Court from which it is issued, with an endorsement under his hand certifying the manner in which the sentence has been executed.

431. Money ordered to be paid recoverable as a fine:--Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:

Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of Section 421, after the words and figures "under Section 357", the words and figures "or an order for payment of costs under Section 359" had been inserted.

E - Suspension, remission and commutation of sentences

432. Power to suspend or remit sentences:- (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may, cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

(5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with:

Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and --

(a) where such petition is made by the person sentenced, it is presented through the officer in charge of

the jail; or

(b) where such petition is made by any other person, it contains a declaration that the person sentenced is

in jail.

(6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property.

(7) In this section and in Section 433, the expression "appropriate Government" means,--

(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is

passed under, any law relating to a matter to which the executive power of the Union extends, the Central

Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

E - Suspension, remission and commutation of sentences

433. Power to commute sentence:- The appropriate Government may, without the consent of the person sentenced, commute --

(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, or fine.

433A. Restriction on powers of remission or commutation in certain cases:- Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

434. Concurrent power of Central Government in case of death sentences:-- The powers conferred by Sections 432 and 433 upon the State Government may, in the case of sentences of death, also exercised by the Central Government.

435. State Government to act after consultation with Central Government in certain cases:- (1) The powers conferred by Sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence --

(a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special

Police Establishment Act, 1946, (25 of 1946), or by any other agency empowered to make investigation into

an offence under any Central Act other than this Code, or

(b) which involved the misappropriation or destruction of, or damage to, any property belonging to the

Central Government, or

to act in the discharge of his official duty,

shall not be exercised by the State Government except after consultation with the Central Government.

(2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends.

CHAPTER XXXIII : PROVISIONS AS TO BAIL AND BONDS

436. In what cases bail to be taken:---(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:-

Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of Section 116 or Section 446A.

(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under Section 446.

STATE AMENDMENTS

Uttar Pradesh:-- In sub-section, in first proviso for the word "discharge" the word "release" shall be substituted – I.P Act 1 of 1984 w.e.f. 1-5-1984.

437. When bail may be taken in case of non bailable offence:- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail, but-

(i) such person shall not be so released if there appears reasonable grounds for believing that he has

been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he has 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 non-bailable and

cognizable offence:

Provided that the Court may direct that a person referred to in clause (1) of 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:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary,-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond

executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is

accused or of the commission of which he is suspected, or

(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons, for so doing.

(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) 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, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgement is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgement delivered.

CASE LAW

Guiding factors for granting or refusing bail. MR 1979 SC 1360 = M9 Cr LJ 1036 = i 984 (3) SCC 555 = 1984 Cr. LJ 1211.

STATE AMENDMENT

Punjab -In Sec. 437, after sub-sec. (7), the following sub-sec (8) shall be added, namely --

"(8) Before releasing the accused on bail under sub-section (1) or sub-section (2), the Court shall give the prosecution a reasonable opportunity to show cause against such release." Punj: Act 22 of 1983, w.e.f. 27-6-1983.

Union Territory of Chandigarh - Same as in Punjab.

438. Direction for grant of bail to person apprehending arrest:---(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Sessions makes a direction under sub-section (1), it may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and

when required;

(ii) a condition that the person shall not, directly or indirectly, make 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 any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were

granted under that section.

(2) If such person is thereafter arrested without warrant by an officer in charge of a police station on such

accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to

give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a

warrant should be issued in the first instance against that person, he shall issue a bailable warrant in

confirmity with the direction of the Court under sub-section (1).

STATE AMENDMENTS

Maharashtra:- Substitute the following section for section 438:-

"438 Direction for grant of bail to person apprehending arrest:-- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of sessions for a direction under this section that in the event of such arrest, he shall be released on bail, and that Court may, after taking into consideration, inter alia, the following factors:-

(i) the nature and gravity or seriousness of the accusation as apprehended by the applicant;

(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court,

previously undergone imprisonment for a term in respect of any cognizable offence;

(iii) the likely object of the accusation to humiliate or malign the reputation of the of the applicant by

having him so arrested, and

(iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice;

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or as the case may be, the Court of Sessions, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(2) Where the High Court or, as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1) the Court shall indicate therein the date, on which the application for grant of, anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit and if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:-

(i) that the applicant shall make himself available for interrogation by a police officer as and when required;

(ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person

acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to

the Court or to any police officer;

(iii) that the applicant shall not leave India without the previous permission of the Court; and

(iv) such other condition as may be imposed under sub- section (3) of Section 437 as if the bail was

granted under that section.

(3) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice, being not less than seven days' notice, together with a copy of such order to be served on the Public Prosecutor and the Commissioner of Police, or as the case may be, the concerned Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(4) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of Justice.

(5) On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order made under sub-section (1)" Maharashtra Act XXIV of 1993.

Orissa the following proviso after sub-section (I):-

"Provided that where the apprehended accusation relates to an offence punishable with death imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State notice to present its case". Orissa Act 11 of 1988, w.e.f 22-7-1988.

Uttar Pradesh :- Section 438 shall be omitted. - U.P. Act 16 of 1976, w.e.f. 1-5-1976.

West Bengal :- Substitute the following, for sub-section. (I):-

"(1) (a) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section that in the event of such arrest, he shall be released on bail:

Provided that the mere fact that a person has applied to the High Court or the Court of sessions for a direction under this section shall not, in the absence of any order by that Court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer in charge of a police station.

(b) The High Court or the Court of Sessions, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of such application:

Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days' notice to present its case.

(c) If any person is arrested and detained in custody by an officer in charge of a police station before the disposal of the application of such person for a direction under " sub-section, the release of such person on bail by a Court having jurisdiction pending such be subject to the provision of section 437.

(IA) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgement, decree or any Court, Tribunal or other Authority." W.B. Act 25 of 1990.

439. Special powers of High Court or Court of Sessions regarding bail: (1) A High Court or Court of Sessions may direct,-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the

nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for

the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Sessions may direct that any person who has been released on bail under this chapter be arrested and commit him to custody.

STATE AMENDMENTS

Punjab:- After sec. 439 the following shall be inserted, namely,-

"439 A. Notwithstanding anything contained in this Code, no person-

(a) who, being accused or suspected of committing an offence under any of the following sections namely – Sections 120-B, 121, 121-A, 122, 123, 134-A, 153-A, 302, 307, 326, 333, 363, 364, 365, 367, 368, 392, 394, 395, 396, 412, 431, 436, 449 and 450 of the Indian Penal Code, 1860, Sections 3,4,5 and 6 of the Explosive Substances Act, 1908, and Sections 25,26,27,28,29,30 and 31 of the Arms Act, 1959, is arrested or appears or is brought before a Court;

(b) who, having any reason to believe that he may be arrested on accusation of committing an offence as specified in Clause (a), has applied to the High Court or the Court of Session for a direction for his release on bail in the event of his arrest, shall be released on bail or, as the case may be, directed to be released on bail, except on one or more of the following grounds, namely:-

(i) that the Court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in Clause (a);

(ii) that such person is under the age of sixteen years or a woman or a sick or an infirm person;

(iii) that the Court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail". Punjab Act, 22 of 1983, w.e.f 27-6-1993.

Union Territory of Chandigarh .- Same as in Punjab.

Tripura :-- Insert Section 439A, after Section 439.

"439A. Power to grant bail :- Notwithstanding anything contained in this Code, no person-

(a) who being accused of or suspected of committing an offence under Sections 120B, 121, 121A, 122, 123, l24A, 153A, 302, 303, 304, 307, 326, 333, 364, 365, 366, 366A, 366B, 367, 368, 376, 386, 387, 392, 394, 395, 396, 397, 399, 412, 436, 449 and 450 of the Indian Penal Code 1860 (45 of 1860) or Sections 25, 26, 27, and 28 of the Arms Act, 1959 (54 of 1959) or Sections 3, 4, 5 and 6 of the Explosives Substances Act, 1908 (VI of 1908), is arrested or appears or is brought before a Court;

(b) who having any reason to believe that he may be arrested on an accusation of committing an offence as specified in clause (a) has applied to the High Court or Court of Sessions for a direction for his release on bail in the event of his arrest,

shall be released on bail or, as the case may be, directed to be released on bait except on one or more of the following grounds namely-

(i) that the Court including the High Court or the Court of Sessions, for reasons to be recorded in writing, is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in clause (a);

(ii) that such person is under the age of sixteen years or any woman or any sick or infirm person;

(iii) that the Court including the High Court or the Court of Session, for reasons to be recorded in writing, is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail." Punjab Act 22 of 1983, w.e.f 27-6-1983.

Union Territory of Chandigarh:- Same as in Punjab.

Tripura: Insert Section 439A, after Section 439.

"439A. Power to grant bail:- Notwithstanding anything contained in this Code, no person-

(a) who, being accused of or suspended of committing an officer under sections 120B, 121, 121A, 123, 124A, 153A, 302, 303, 304, 307, 326, 333, 364, 365, 366, 366A, 366B, 367, 368, 376, 386, 392, 394, 395, 396, 397, 399, 412, 436, 449 and 450 of the Indian Penal Code 1860 (45 of 1860) or sections 25,26,27 and 28 of the Arms Act, 1959 (54 of 1959) or sections 3,4,5 and 6 of the Explosives Substances Act, 1908 (VI of 1908), is arrested or appears or is brought before a Court;

(b) who, having any reason to believe that he may be arrested on an accusation of committing an offence as specified in clause (a) has applied to the High Court or Court of Sessions for a direction for his release on bail in the event of his arrest,

shall be released on bail or, as the case may be, directed to be released on bail, except on one or more of the following grounds namely-

(i) that the Court including the High Court or the Court of Sessions, for reasons to be recorded in

writing, is satisfied that there are reasonable grounds for believing that such person is not guilty of any

offence specified in clause (a);

(ii) that such person is under the age of sixteen years or any woman or any sick or infirm person;

(iii) that the Court including the High Court or the Court of Session, for reasons to be recorded in

writing, is satisfied that there are exceptional and sufficient grounds to release or direct the release of the

accused on bail." Tripura Act 6 of 1992, w.e.f. 29-7-1992.

440. Amount of bond and reduction thereof: - (1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive.

(2) The High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.

441. Bond of accused and sureties:-(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.

(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Sessions or other Court to answer the charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an enquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness.

442. Discharge from custody: (1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and when he is in jail, the court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the orders shall release him.

(2) Nothing in this section, Section 436 or Section 437, shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.

443. Power to order sufficient bail when that first taken is insufficient :- If, through mistake, fraud or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and, on his failing so to do, may commit him to jail.

444. Discharge of sureties:-(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.

(2) On such application being made the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.

(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail.

445. Deposit instead of recognisance:- When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory note to such amount as the Court or officer may fix, in lieu of executing such bond.

446. Procedure when bond has been forfeited:-(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited,

or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited,

the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.

Explanation:- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code:

Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as Surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.

(3) The Court may, as its discretion, remit any portion of the penalty mentioned and enforce payment in part only.

(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.

(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under Section 448, a certified copy of the judgement of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.

446A. Cancellation of bond and bail bond: Without prejudice to the provisions of Section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition,-

(a) the bond executed by such person as well as the bond, if any, executed by one or more of his

sureties in that case shall stand cancelled; and

(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer

or the Court, as the case may be, for appearance before whom the bond was executed, is, satisfied that

there was no sufficient cause for the failure of the person bound by the bond to comply with its

condition:

Provided that subject to any other provisions of this code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient.

447. Procedure in case of insolvency of death of surety or when a bond is forfeited:- When any surety to a bond under this Code becomes insolvent or dies, or when any bond is forfeited under the provisions of Section 446, the Court by whose order such bond was taken, or Magistrate of the first class, may order the person from whom such security was demanded to furnish fresh securities in accordance with the directions of the original order, and, if such security is not furnished, such Court or Magistrate may proceed as if there had been a default in complying with such original Order.

448. Bond required from minor:- When the personrequired by any Court, or officer to execute a bond is a minor, such Court or officer may accept, in lieu thereof, bond executed by a surety or sureties only.

449. Appeal from orders under Section 446:- All orders passed under Section 446 shall be appealable-

(i) in the case of an order made by a Magistrate, to the Sessions-Judge;

(ii) in the case of an order made by a Court of Sessions, to the Court to which an appeal lies from an order made by such Court.

450. Power to direct levy of amount due on certain recognizances:- The High Court or Court of Sessions may direct any Magistrate to levy the amount due on a bond for appearance or attendance at such High Court or Court of Sessions.

CHAPTER XXXIV : DISPOSAL OF PROPERTY

451. Order for custody and disposal of property pending trial in certain cases:- When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation:- For the purposes of this section, "property" includes:-

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have

been used for the commission of any offence.

452. Order for disposal of property at conclusion of trial:- (1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.

(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without securities, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in section 457, 458 and 459.

(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-sec. (2), an order made under sub-sec. (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.

(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have, been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

453. Payment to innocent purchaser of money found on accused :- When any person is convicted of any offence which includes, or amounts to, theft or receiving stolen property, and it is proved that any other person bought the stolen property from him without knowing, or having reason to believe, that the same was stolen, and that any money has on his arrest been taken out of the possession of the convicted person, the Court may, on the application of such purchase and on the restitution of the stolen property to the person entitled to the possession thereof, order that out of such money a sum not exceeding the price paid by such purchase be delivered to him.

454. Appeal against orders under Section 452 or Section 453:--(1) Any person aggrieved by an order made by a Court under Section 452 or Section 453, may appeal against it to the Court to which appeals ordinarily lie from convictions by the former Court.

(2) On such appeal, the Appellate Court may direct the order to be stayed pending disposal of the appeal, or may modify, alter or annul the order and make any further orders that may be just.

(3) The powers referred to in sub-section (2) may also be exercised by a Court of appeal confirmation or revision while dealing with the case in which the order referred to in sub-section (1) was made.

455. Destruction of libellous and other matter:- (1) On a conviction under Section 292, Section 293, Section 501 or Section 502 of the Indian Penal Code (45 of 1860), the Court may order the destruction of all the copies of the thing in respect of which the conviction was had, and which arein the custody of the Court or remain in the possession or power of the person convicted.

(2) The Court may, in like manner, on a conviction under Section 272, Section 273, Section 274 or Section 275 of the Indian Penal Code (45 of 1860), order the food, drink, drug or medical preparation in respect of which the conviction was had, to be destroyed.

456. Power to restore possession of immovable property:-(1)When a person is convicted of an offence Attended by criminal force or show of force or by criminal intimidation, and it appears to the Court that, by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property:

Provided that no such order shall be made by the Court more than one month after the date of the conviction.

(2) Where the Court trying the offence has not made an order under sub-section (1), the Court of appeal, confirmation or revision may, if it thinks fit, make such order while disposing of the appeal, reference or revision, as the case may be.

(3) Where an order has been made under sub- section (1), the provisions of Section 454 shall apply in relation thereto as they apply in relation to an order under Section 453.

(4) No order made in this section shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit.

457. Procedure by police upon Seizure of property:- (1)Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall in such case, issue a proclamation specifying the article of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.

458. Procedure where no claimant appears within six months.- (1) If no person within such period establish his claim to such property, and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may, by order direct that such property shall be at the disposal of the State Government, and may be sold by that Government and the proceeds of such sale shall be dealt with in such manner as may be prescribed.

(2) An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Magistrate.

459. Power to sell perishable property.- If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay, or if the Magistrate to whom its seizure is reported is of opinion that its sale would be for the benefit of the owner, or that the value of such property is less than ten rupees, the Magistrate may at any time direct it to be sold, and the provisions of Sections 457 and 458 shall, as nearly asmay be practicable, apply to the net proceeds of such sale.

CHAPTER XXXV : IRREGULAR PROCEEDINGS

460. Irregularities which do not vitiate proceedings.- If any Magistrate not empowered by law to do any of the following things, namely:-

(a) to issue a search-warrant under Section 94;

(b) to order, under Section 155, the police to investigate an offence;

(d) to issue process, under Section 187, for the apprehension of a person within his local jurisdiction who

has committed an offence outside the limits of such jurisdiction;

(e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190;

(f) to make over a case under sub-section (2) of Section 192;

(g) to tender a pardon under Section 306;

(h) to recall a case and try it himself under Section 410; or

(i) to sell property under Section 458 or Section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.

461. Irregularities which vitiate proceedings:- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:-

(a) attaches and sells property under Section 83,

(b) issues a search-warrant for a document, parcel or other things in the custody of a postal or telegraph authority;

(d) demands security for good behaviour;

(e) discharges a person lawfully bound to be of good behaviour;

(f) cancels a bond to keep the peace;

(g) makes an order for maintenance;

(h) makes an order under Section 133 as to a local nuisance;

(i) prohibits, under Section 143, the repetition continuance of a public nuisance;

(j) makes an order under Part C or Part D of Chapter X;

(k) takes cognizance of an offence under Clause (c) of sub-section (1) of Section 190;

(l) tries an offender;

(m) tries an offender summarily;

(n) passes a sentence, under Section 325, on proceedings recorded by another Magistrate;

(o) decides an appeal;

(p) calls under Section 397, for proceedings; or

(q) revises, an order passed under Section 446,

his proceedings shall be void.

462. Proceedings in wrong place:- No finding sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.

463. Non-compliance with provisions of Section 164 or Section 281:--(1) If any Court, before which a confession or other statement of an accused person recorded, or purporting to be recorded under Section 164 or Section 281, is tendered, or has been received, in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement.

(2) The provisions of this section apply to Courts of appeal, reference and revision.

464. Effect of omission to frame, or absence of, or error in, charge.--(1)No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of Justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision, is of opinion that a failure of justice has in fact been occasioned, it may --

(a) in the case of an omission to frame a charge, order that a charge be framed, and that the trial be

recommended from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge

framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.

465. Finding or sentence when reversible by reason of error, omission or irregularity:-(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent Jurisdiction shall be reversed or altered by a Court of appeal, confirmation of revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order judgement or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

466. Defect or error not to make attachment unlawful :- No attachment made under this Code shall be deemed unlawful, nor shall any person making the same be deemed to trespasser, on account of any defect or want of form in summons, conviction, writ of attachment or other proceedings relating thereto.

CHAPTER XXXVI : LIMITATION FOR TAKING COGNIZANCE OF CERTAIN OFFENCES

467. Definitions:-For the purposes of this chapter unless the context otherwise requires, "period of limitation" means the period specified in Section 468 for taking cognizance of an offence.

468. Bar to taking cognizance after lapse of the period of limitation:-(1)Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be :-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

469. Commencement of the period of limitation:- (1)The period of limitation, in relation to an offender, shall commence -

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to

any police officer, the first day on which offence comes to the knowledge of such person or to any police

officer, whichever is earlier; or

offender is known to the person aggrieved by the offence or to the police officer making investigation

into the offence, whichever is earlier

(2) In computing the said period, the day from which such period is to be computed shall be excluded.

470. Exclusion of time in certain cases:--- (1) Incomputing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded:

Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(3) Where notice of prosecution for an offence been given, or where, under any law for the time being, in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case be, the time required for obtaining such consent or sanction shall be excluded.

Explanation:- In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded.

(4) In computing the period of limitation, the time during which the offender,-

(a) has been absent from India or from any territory outside India which is under the

administration of the Central Government, or

(b) has avoided arrest by absconding or concealing himself,

shall be excluded.

471. Exclusion of date on which Court is closed:- Where the period of limitation expires on a day when the Court is closed, the Court may take cognizance on the day on which the Court reopens.

Explanation:- A Court shall be deemed to be closed on any day within the meaning of this section, if, during its normal working hours, it remains closed on that day.

472. Continuing offence:- In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues.

473. Extension of period of limitation in certain cases:- Notwithstanding anything contained in the foregoing provisions of this chapter, any court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied of the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.

CHAPTER XXXVII : MISCELLANEOUS

474. Trials before High Courts:- When an offence is tried by the High Court otherwise than under Section 407, it shall, in the trial of the offences, observe the same procedure as a Court of Sessions would observe if it were trying the case.

475. Delivery to commanding officers of persons liable to be tried by Court-martial :-(1)The Central Government may make rules, consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air-force law, or such other law, shall be tried by a Court to which this Code applies, or by a Court martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for the purpose of being tried by a Court-martial.

Explanation:- In this Section-

(a) "Unit" includes a regiment, corps, ship, detachment, group battalion or Company,

(b) "Court-Martial" includes any Tribunal with the powers similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the Union.

(2) Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence.

(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial.

476. Forms:- Subject to the power conferred by Article 227 of the Constitution, the forms set forth in the Second Schedule, with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.

477. Power of High Court to make rules:- (1) Every High Court may, with the previous approval of the State Government, make rules.

(a) as to the persons who may be permitted to act as petition writers in the Criminal Courts subordinate to it;

(b) regulating theissue of licences to such persons, the conduct of business by them, and the scale of fees to be charged by them;

(c) providing a penalty for a contravention of any of the rules so made and determining the authority by which such contravention may be investigated and the penalties imposed;

(d) any other matter which is required to be, or may be, prescribed.

(2) All rules made under this section shall be published in the Official Gazette.

478. Power to alter functions allocated to Executive Magistrate in certain cases:- If the Legislative Assembly of a State by a resolution so permits, the State Government may, after consultation with the High Court, by notification, direct that references in Sections 108, 109, 110, 145 and 147 to an Executive Magistrate shall be construed as references to a Judicial Magistrate of the first class.

STATE AMENDMENTS

Andaman and Nicobar Islands ; Dadra and Nagar Haveli, Lakshadweep Islands :- In Section 478, the words "if the State Legislature by a resolution so requires" shall be omitted Regn. 1 of 1974, w.e.f. 30-3-1974.

Maharashtra - For the words "to an Executive Magistrate shall be construed", substitute the words "to an Executive Magistrate in the areas of the State outside Greater Bombay shall be construed", Maharashtra Act 1 of 1978, w.e.f. 15-4-1978.

479. Case in which Judge or Magistrate is personally interested:- No Judge or Magistrate shall, except with permission of the Court to which an appeal lies from Court, try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgement or order passed or made by himself.

Explanation:- A Judge or Magistrate shall not be deemed to be a party to, or personally interested in, any case by reason only that he is concerned therein in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed, or other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case.

480. Practising pleader not to sit as Magistrate in certain Courts:- No pleader who practises in the Court of any Magistrate shall sit as a Magistrate in that Court or in any Court within the local jurisdiction of that Court.

STATE AMENDMENT

Karnataka :- After Section 480, the following new Section 480A shall be inserted-

"480A. Other powers of Magistrate..- Any Judicial Magistrate or Executive Magistrate shall be entitled to attest, verify or authenticate any document brought before him for the purpose of attestation, verification or authentication, as the case may be, and to affix seals thereon, as may be prescribed by any law for the time being in force." Karnataka Act 35 of 1984.

481. Public servant concerned in sale not purchase or bid for property:- A public servant having any duty to perform in connection with the sale of any property under this Code shall not purchase or bid for the property.

482. Saying of inherent powers of High Court:- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

483. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates:- Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates.

484. Repeal and savings:- (1) The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed.

(2) Notwithstanding such repeal-

(a) if, immediately before the date on which this Code comes into force, there is any appeal, application trial, inquiry or investigation pending then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), as in force immediately before such commencement (hereinafter referred to as the old Code), as if this Code had not come into force: Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code;

(b) all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and order rules and appointments, not being appointments as Special Magistrates, made under the old Code are which are in force immediately before the commencement of this Code, shall be deemed respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of the Code;

(c) any sanction accorded or consent given under the old Code in pursuance of which no proceeds was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Code and proceedings may be commenced under this Code in pursuance of such sanction of consent;

(d) the provisions of the old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of Article 363 of the Constitution.

(3) Where the period prescribed for an application or other proceeding under the Old Code had expired on or before the commencement of this Code, nothing in this Code shall be construed as enabling any such application to be made or proceeding to be commenced under this Code by reason only of the fact that a longer period therefor is prescribed by this Code or provisions are made in this Code for the extension of time.

STATE AMENDMENT

Uttar Pradesh :- (1) In sub-section (2), after clause (d), the following clause shall he inserted.

"(e) the provisions of the United Provinces Borstal Act, 1938 (U.P. Act 7 of (1938), the United Provinces First Offenders Probation Act 1938 (U.P. Act 6 of 1938) and the Uttar Pradesh Children Act, 1951, (U.P. Act 1 of 1951) shall continue in force in the State of Uttar Pradesh until altered or repealed or amended by the competent Legislature or other competent authority, and accordingly, the provisions of Section 360 of this Code shall not apply to that State, and the provisions of Section 361 shall apply with the substitution of references to the Central Acts named therein by references to the corresponding Acts in force in that State." U.P. Act 16 of 1976, w.e.f. 1-5-1976.

(2) In sub-section (2), clause (a), the following second proviso shall be inserted:-

"Provided further that the provisions of Section 326 of this Code as amended by the Code of Criminal Procedure (U.P. Amendment Act) Act, 1976 shall also apply to every trial pending in a Court of Sessions at the commencement of this Code and also pending at the commencement of the Code of Criminal Procedure (U.P. Amendment) Act, 1983." U.P. Act 1 of 1984, w.e.f. 1-5-1984.

r offence, although he is not charged with it.

(3) When a person is charged with an offence, he may, be convicted of an attempt to commit such offence although the attempt is not separately charged.

(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.

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CODE OF CRIMINAL PROCEDURE, 1973 | SECTION 321 TO 484

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