1. The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10- 2019).

Study Notes

Section 1 of the Code of Criminal Procedure, 1973 provides the short title, extent, and commencement of the Act.

Subsection (1) states that the Act will be known as the Code of Criminal Procedure, 1973.

Subsection (2) extends the application of the Act to the whole of India, with certain exceptions. The provisions of the Code, other than those relating to Chapters VIII, X, and XI, will not apply to the State of Nagaland and tribal areas. However, the State Government may apply such provisions or any of them to the whole or part of the State of Nagaland or tribal areas by notification, with necessary modifications.

The term “tribal areas” is explained in this section as the territories that were included in the tribal areas of Assam before January 21, 1972, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, except for those within the local limits of the municipality of Shillong.

Subsection (3) specifies that the Act will come into effect on April 1, 1974.

1. Ins. by Act 45 of 1978, s. 2 (w.e.f. 18-12-1978).
2. Ins. by Act 5 of 2009, s. 2 (w.e.f. 31-12-2009).

Study Notes

Section 2 of the Code of Criminal Procedure defines several terms that are used throughout the code. These definitions are as follows:

a. “bailable offence” -A bailable offence is an offence where the accused has the right to claim bail. In such cases, the Court or the officer-in-charge of the Police station is obligated to release the accused on bail, provided they are ready to furnish bail [as per Section 436 of the Code of Criminal Procedure, 1973]. The determination of whether an offence is bailable or not can be made by referring to Schedule I of the Code or any other law that designates an offence as bailable. For instance, murder is a non-bailable offence, whereas causing death by a negligent act is bailable. Offences that are not bailable under the law are non-bailable, but this does not imply that release on bail is not available. In such cases, the granting of bail is left to the discretion of the officer-in-charge of the Police station or the Court, subject to the conditions and restrictions specified in Section 437 of the Code.

b. “charge”-The Code of Criminal Procedure (CrPC) does not provide a definition for the term “charge”. However, a charge is the specific accusation made against a person in respect of an act committed or omitted in violation of the penal law. It is not an abstract accusation, but an accusation made against a person in relation to an offence alleged to have been committed by him or her. The accused person is entitled to know the nature of the charge at the earliest opportunity.

c.”cognizable offence”-The term “cognizable offence” refers to an offense that is serious in nature and for which a police officer has the authority to arrest the accused without a warrant. This means that the police can take immediate action upon receiving a complaint or information about the commission of such an offense. The term “cognizable case” refers to a case that involves a cognizable offense and where the police have the authority to make an arrest without a warrant. In such cases, the police are required to make detailed notes about the offense, including the circumstances surrounding it, any witnesses or evidence, and any other relevant information that may help in the investigation and prosecution of the case.

d. “complaint”-Section 2(d) of the Code of Criminal Procedure (CrPC) defines a “complaint” as any allegation made orally or in writing to a Magistrate, with the intention of initiating action under this Code, that a person, known or unknown, has committed an offense. However, it does not include a police report. A Magistrate can take cognizance of an offense based on the receipt of a complaint, which is one of the methods listed under section 190(1)(a). The definition of a complaint has a broad meaning, including even an oral accusation, and there is no prescribed form that the complaint must take. However, it must contain the necessary facts that prima facie demonstrate the commission of an offense, enabling the Magistrate to take action.

e. “High Court”-As per section 2(e) of the Code of Criminal Procedure (CrPC), the term “High Court” refers to:

(i) The High Court of the concerned State for that particular State.
(ii) In case of a Union territory to which the jurisdiction of the High Court for a State has been extended by law, the High Court of that State.
(iii) In relation to any other Union territory, it refers to the highest Court of criminal appeal for that territory, except for the Supreme Court of India.

f.”India” refers to the territories that are covered by the provisions of this Code.

g.”inquiry”-The term “inquiry,” as defined in section 2(g) of the Code of Criminal Procedure (CrPC), refers to any type of judicial investigation or proceeding, other than a trial, that is conducted by a Magistrate or Court under the Code. The scope of the term is broad and includes a variety of proceedings. This includes inquiries such as those conducted under section 176 to ascertain the cause of death, preliminary inquiries under section 159, proceedings under section 144, and those under sections 145-147. It also encompasses inquiries under sections 207-209, in conjunction with section 309(2), preliminary inquiries under section 340(1), inquiries into the mental state of the accused under section 329, proceedings under sections 200-204, and any action taken by a Magistrate following the receipt of a police report under section 170.

h.”investigation” -The term “investigation” covers all proceedings under this Code for gathering evidence, carried out by a police officer or by any person authorized by a Magistrate. To fall under this definition, the following conditions must be met:

(i) The proceeding must be under this Code, except where a special act already provides for the mode of investigation of such offences.
(ii) The purpose of the proceeding must be the collection of evidence.
(iii) The proceeding must be conducted by a police officer or by any person authorized by a Magistrate in this behalf, except a Magistrate.

It is important to note that this definition is not exhaustive, as the word “includes” suggests. Therefore, if a special enactment empowers an officer other than a police officer to investigate into offences under that special Act, subsequent proceedings under the Code will not be without jurisdiction just because they did not fall under s. 2(h).

i.”judicial proceeding”- It means any proceeding where evidence is or may be legally taken on oath. It includes any proceeding that aims to determine a legal relationship between individuals or the community at large, where the judge exercises judicial power, has the power to administer oaths, and the proceeding ends in a judgment, sentence, or final order.

The following are examples of judicial proceedings:

(i) Inquiry under s. 144, s. 176, s. 202, s. 84, and s. 340.
(ii) Proceedings for the issuance of a search warrant under s. 97, and remanding accused under s. 167(2).
(iii) Proceedings for maintenance (Chapter IX), under s. 446, and under s. 299.
(iv) Proceedings for the grant or discharge of bail.
(v) Summary proceedings under s. 228, IPC.

j.”local jurisdiction”-It refers to the geographical area within which a Court or Magistrate is authorized to exercise any or all of its/his powers as provided under this Code. This area may encompass an entire State or a specific part of the State as determined by the State Government through a notification.

k.”metropolitan area” -Section 2(k) of the CRPC defines the term “metropolitan area” as an area declared, or deemed to be declared, under Section 8 of the Code to be a metropolitan area. Section 8 empowers the State Government to declare any area in the State comprising a city or town whose population exceeds one million as a metropolitan area for the purposes of the CRPC.

Under sub-section (2) of Section 8, the Presidency-towns of Bombay, Calcutta, and Madras, and the city of Ahmedabad are deemed to be declared as metropolitan areas from the commencement of the CRPC. Sub-section (3) allows the State Government to extend, reduce, or alter the limits of a metropolitan area, subject to the condition that the population of such an area shall not be reduced to less than one million.

If the population of a metropolitan area falls below one million after it has been declared, or deemed to have been declared, as a metropolitan area, sub-section (4) provides that such an area shall cease to be a metropolitan area on a date specified by the State Government. However, any inquiry, trial, or appeal pending before any Court or Magistrate in such an area shall continue to be dealt with under the CRPC as if such cesser had not taken place.

Similarly, if the State Government reduces or alters the limits of any metropolitan area under sub-section (3), sub-section (5) provides that any inquiry, trial, or appeal pending before any Court or Magistrate in such an area shall continue to be dealt with under the CRPC as if such reduction or alteration had not taken place.

The expression “population” in Section 8 means the population as ascertained at the last preceding census of which the relevant figures have been published.

l.”non-cognizable offence” -To elaborate, a non-cognizable offence is an offence for which the police officer cannot arrest a person without a warrant. In other words, the police officer has no authority to make an arrest in a non-cognizable offence case without first obtaining a warrant from a magistrate or court.

Similarly, a non-cognizable case is a case in which the police officer cannot arrest a person without a warrant. The police officer can only proceed in such cases by filing a complaint before the Magistrate or Court having jurisdiction and seeking the issuance of a warrant for the arrest of the accused.

m.”notification”- It means a notification published in the Official Gazette.

n. “offence”-The definition of “offence” in Section 2(n) of the CrPC includes any act or omission that is made punishable by any law that is currently in force in India. This means that it covers offences under laws other than the Indian Penal Code (IPC) as well. The definition is broader than the one given in Section 40 of the IPC, which defines an offence as any act or omission that is made punishable by the IPC or by any other law that is currently in force in India. It’s worth noting that the General Clauses Act, 1897 also has a similar definition of “offence” in Section 3(37).

o. “officer in charge of a police station”-The definition of “officer in charge of a police station” in the CrPC includes not only the regular officer in charge but also any other police officer who is next in rank to the regular officer and above the rank of constable, and who is present at the station-house in the absence of the regular officer or when the regular officer is unable to perform his duties due to illness or other causes. However, this definition does not authorize another officer to discharge the duties of the regular officer if the regular officer is present and able to attend to his duties.

The officer in charge of a police station has certain special powers and duties which cannot be exercised by any other police officer, such as those under sections 154(1), 155(1), 156(1), 157(1), 169, 170(1), and 173(2) of the CrPC. Even if another officer is vested with powers of investigation or other powers belonging to a police officer, he cannot exercise the powers belonging to an officer in charge of a police station, unless the relevant special law provides that such officer “shall be deemed to be an officer in charge of a police station.”

p.”place” -The definition of “place” under section 2(p) of the CrPC is an inclusive one, meaning that it includes not only traditional physical structures like houses and buildings but also more temporary or mobile structures like tents, vehicles, and vessels. This definition is important because it helps to ensure that law enforcement officials have the authority to enter and search any place where they have reason to believe that evidence of a crime may be found. By including a wide range of structures and locations within the definition of “place,” the CrPC gives law enforcement officials the flexibility they need to carry out investigations effectively and efficiently, while also protecting the rights of individuals to be free from unreasonable searches and seizures.

q.”pleader”-According to the definition provided under Section 2(q) of Cr.P.C, a “pleader” is someone who is authorized to practice in a particular court under any applicable law, and can include anyone else who is appointed with the court’s permission to act in a particular legal proceeding. This means that even someone who is not a lawyer under the Advocates Act of 1961 can act as a pleader for the accused, as long as they have the court’s permission. However, even if someone has been appointed by power of attorney, they cannot act as a pleader without the court’s permission.

The court has discretion to grant or withdraw permission for someone to act as a pleader for a particular legal proceeding. It is also important to note that the Public Prosecutor is not considered a “pleader” under this definition. As per sections 24-25, 301, and 303 of the Code of Criminal Procedure, the Public Prosecutor and Assistant Public Prosecutor can only conduct the prosecution and cannot defend the accused.

r. “police report”- The definition of “police report” in Section 2(r) of the Code of Criminal Procedure (CrPC) specifies that it refers to a report submitted by a police officer to a Magistrate under Section 173(2) of the CrPC. The ingredients of a police report include that it must be a final report submitted upon the completion of an investigation, by the officer-in-charge of the police station, to a Magistrate empowered to take cognizance of the offense on a police report. Additionally, the report must be in the form prescribed by the State Government and must contain all the particulars specified in Section 173(2) of the CrPC.

s. “police station” – Section 2(s) of the Code of Criminal Procedure defines a police station as any post or place that has been declared by the State Government to be a police station, and this definition includes any local area specified by the State Government for this purpose. This means that a police station can be a physical building or location, but it can also refer to a specific area or jurisdiction that is designated as a police station by the State Government.

t. “Prescribed”- It means prescribed by rules made under this Code.

u. “Public Prosecutor”-According to the Code of Criminal Procedure (CrPC), a “Public Prosecutor” is defined as any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor. Section 24 of the CrPC specifies the categories of Public Prosecutors, which includes a Public Prosecutor for the High Court, a Public Prosecutor appointed by the Central Government for conducting any case or classes of cases in any district or local area, a Public Prosecutor for each District appointed by the State Government, additional Public Prosecutor or Prosecutors for the district, and a special Public Prosecutor.

Assistant Public Prosecutors appointed for conducting prosecutions in the Courts of Magistrates are not regarded as Public Prosecutors for the purposes of the Code, because the definition in the instant clause refers only to those persons who are appointed under section 24.

A Public Prosecutor is entrusted with various functions, including conducting prosecution in sessions cases, power to appear and plead in any court without written authority, withdrawal of prosecution, appeal against acquittal, and notice for enhancement of sentence.

v.”sub-division” means a sub-division of a district;

w. “summons-case” -A summon case is a case relating to an offense that is punishable with a maximum of two years of imprisonment or less. In contrast, a warrant case is a case relating to an offense that is punishable with death or imprisonment for a term exceeding two years (which includes imprisonment for life). The sole test for determining whether a case is a summon case or a warrant case is the punishment prescribed by the Code for the offense in question.

It is important to note that even if the accused could be arrested without a warrant or a summons was not issued in the case, the nature of the offense determines whether it is a summon case or a warrant case.

If a person is charged with multiple offenses arising from the same transaction, and some of the offenses are warrant cases while others are summon cases, the warrant procedure is followed for all the charges. Conversely, a warrant case cannot be split up into its component parts to try each of them under the summon procedure.

It is determined at the beginning of the trial whether a case is to be tried under the summons procedure or the warrant procedure. If the trial has already commenced under the warrant procedure, it cannot be converted into a summons case to the prejudice of the accused. Even if the Court finds that the offense is triable as a summons case during the trial, it must complete the trial under the warrant procedure.

wa. “victim”-This definition of “victim” was inserted into the Code of Criminal Procedure in 2009 by an amendment made by Act 5 of 2009. The definition includes any person who has suffered any loss or injury as a result of the act or omission for which the accused person has been charged. This could include physical harm, financial loss, or damage to property.

The definition also extends the meaning of “victim” to include the guardian or legal heir of the person who suffered the loss or injury. This means that if the victim is deceased or incapacitated, their guardian or legal heir can be considered as the victim for the purposes of the proceedings.

The inclusion of this definition reflects a growing recognition of the rights of victims in criminal proceedings. It acknowledges that victims have suffered harm and deserve to be heard and represented in the criminal justice process. It also recognizes the importance of providing support and protection to victims throughout the proceedings

x. Warrant-case-According to the definition given in section 2(x) of the Code of Criminal Procedure (CrPC), a warrant-case is a case relating to an offence punishable with death, imprisonment for life, or imprisonment for a term exceeding two years. In other words, any offence that falls under this category is considered a warrant-case, and the procedure to be followed for such cases is more formal and detailed than for summons-cases.

The main difference between a warrant-case and a summons-case is the severity of the punishment prescribed for the offence. If the offence is punishable with death, or with imprisonment for a term exceeding two years (including imprisonment for life), it is considered a warrant-case. All other cases, irrespective of whether the accused could be arrested without a warrant or whether a summons was actually issued in the case or not, are summons-cases.

y. words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code.

Study Notes

Section 3 of the Code of Criminal Procedure (CrPC) deals with the construction of references used in the Code. It provides guidelines on how to interpret the terms used in the Code in different contexts.

Sub-section (1) of Section 3 states that any reference to a Magistrate in the Code should be construed according to the context in which it is used. If there are no qualifying words to specify the type of Magistrate, it should be understood as a Judicial Magistrate in areas outside of metropolitan cities, and as a Metropolitan Magistrate in metropolitan areas. References to Magistrates of the second and first class should be understood in relation to their corresponding Judicial or Metropolitan Magistrates based on the area in which they are exercising jurisdiction.

Sub-section (2) clarifies that any reference to a Judicial Magistrate’s court in the Code should be understood as a reference to the Metropolitan Magistrate’s court in metropolitan areas unless the context specifies otherwise.

Sub-section (3) deals with references made in enactments passed before the CrPC came into force. It states that any reference to Magistrates of the first or second class should be understood as a Judicial Magistrate of the first or second class, respectively. Similarly, references to Presidency Magistrates or Chief Presidency Magistrates should be understood as Metropolitan Magistrates or Chief Metropolitan Magistrates, respectively. Any reference to an area that is now part of a metropolitan area should be construed as a reference to that metropolitan area, and any reference to Magistrates of the first or second class in relation to that area should be understood as a reference to the Metropolitan Magistrate exercising jurisdiction in that area.

Sub-section (4) explains that the functions exercisable by a Magistrate under any other law (excluding the CrPC) should be exercised by either a Judicial Magistrate or an Executive Magistrate based on the nature of the functions. Matters that involve the appreciation or shifting of evidence or the formulation of any decision that could lead to punishment or detention in custody should be dealt with by a Judicial Magistrate. Administrative or executive matters such as granting or suspending a license or sanctioning or withdrawing from a prosecution should be dealt with by an Executive Magistrate.

Study Notes

Section 4 of the Code of Criminal Procedure (CrPC) lays down the provisions for the trial of offences under the Indian Penal Code (IPC) and other laws.

According to sub-section (1), all offences under the IPC shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the CrPC. This means that the procedures for investigation, inquiry, trial, and other aspects of the criminal justice system as laid down in the CrPC shall apply to all offences under the IPC.

Sub-section (2) states that all offences under any other law shall also be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the CrPC. However, this is subject to any enactment for the time being in force that regulates the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

In simple terms, the CrPC is the primary law that governs the criminal justice system in India, and all offences under the IPC and other laws shall be dealt with according to the procedures laid down in the CrPC, except where any other law regulates the manner of dealing with such offences.

Study Notes

The saving clause in Section 5 of the CrPC states that the provisions of the CrPC will not affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force, unless there is a specific provision to the contrary. This means that if a special or local law exists, it will prevail over the provisions of the CrPC. However, if the special or local law is silent on a particular matter, then the provisions of the CrPC will apply. If there is a provision in the special or local law that is contrary to the provisions of the CrPC, then the provision in the special or local law will prevail.