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Cognizance of Offence by Magistrate
Cognizance of Offence by Magistrate
-: Criminal Group :-
rejection at the precognizance stage is inherent and it cannot be mistaken for the
power of dismissal available under Sec. 203 of Cr.P C. since the said power of
dismissal is one which can be exercised only at precognizance stage.
b) Order of investigation under Sec. 156(3) :
Where the complaint is not rejected at the threshold,
the
Magistrate may without taking cognizance of the offence, order an
investigation by the police under Sec. 156(3) of Cr. P.C. and forward the
complaint to the officer incharge of the police station concerned, provided that
the complaint alleges the commission of a cognizable offence. Such a course
can be adopted by the Magistrate only at the precognizance stage. In, “Tukaram
Vs. Kishorsing (AIR 1977 SC 2401),” it was held that, even a complaint
alleging the commission of offences exclusively triable by Court of Sessions can
also be so forwarded under Section 156(3) of Cr. P. C. This power of the
Magistrate under Sec. 156(3) of Cr. P. C. can't be exercised by him after taking
the cognizance.
c) Taking cognizance of the offence :
Where the Magistrate does not order investigation under Sec.
156(3) of Cr. P. C. and does not return the complaint, the Magistrate may
proceed under chapter XV of Cr.P.C. and thereby take cognizance of the
offence. Where Magistrate chooses to take cognizance of the offence, he may
may adopt the alternatives given in Ss. 200 and 202 of Code.
d) Issuance of process :
If upon examining the complainant and witnesses under Sec. 200
of Cr. P. C. and after conducting an inquiry or directing an investigation under
Sec. 202, the Magistrate is of the opinion that there is sufficient ground for
proceeding, he shall then issue summons or warrant against the accused under
Sec. 204(1) depending on the nature of case.
e) Dismissal of the complaint :
If after considering the statements on oath of the complainant
and witnesses, if any, and the result of the inquiry or investigation, if any, under
Sec. 202 of Cr. P. C., the Magistrate is of the opinion that there is no sufficient
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ground for proceeding, he shall then dismiss the complaint after briefly
recording reasons for doing so under Sec. 203 of the Cr. P. C.
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(II) Provision as to bails and bonds.
(A) Provisions as to bail -
The Code of Criminal Procedure has classified offences in
two categories namely; Bailable offences and Non-bailable offences. The
classification has been made for the obvious reason that seriousness and gravity
of the charge and the severity of the punishment
awardable are very probable
factors which are likely to tempt an accused person either to tamper with the pro
secution evidence or to abscond in order to escape the punishment.
If a person is arrested for an offence which is non bailable, in that case
court in its discretion can grant bail. The definition of a nonbailable offence
appears in Section 2 (a) of our Code of Criminal Procedure 1974. Section 2(a)
provides that “Bailable offence” means an offence which is shown as bailable
in the first schedule or which is made by any other law for the time being
in
force and “nonbailable offence” means any other offence.
By and large, offences punishable with imprisonment for not less
than three years are taken as serious offences and are made nonbailable.
(i) Section 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, and shall, if
such person is indigent and is unable to furnish surety, instead of taking bail
from such person, discharge him on his executing a bond without sureties for his
appearance as hereinafter.
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discretion which must be utilized judicially. It is stipulated that bail may not be
denied only on the ground that the accused is required for getting him
identified by the witnesses. Certain conditions can be annexed to the liberty and
in certain contingencies liberty already granted can be snatched by cancellation
of bail. In addition to these provisions, there is a ban even on such
discretionary power of the Magistrate when there appear reasonable grounds
for believing that the accused has been guilty of an offence punishable with
death or imprisonment for life in which case, the Magistrate has no jurisdiction
and power to release the accused on bail as it is well emphasized by the use of
the words “but he shall not so release”. Exception to this general ban finds place
in the proviso relating to young persons or sick or infirm persons or women.
Bail is a mater of right if the offence
is bailable. In the case of a non
bailable offence, bail is a matter of judicial discretion. Bail shall not be granted
by the Magistrate if the offence is punishable with death or
imprisonment for
life if he is of the view that there appear reasonable grounds for believing that
the person concerned accused of or suspected of the commission of the offence
has been guilty of the offence, provided that he may, in his discretion that he
may, in his discretion, grant bail to a woman or a minor under the age of sixteen
years or a sick or infirm person. In a case involving a non-bailable offence, a
Court may impose reasonable conditions besides fixing of the bail amount for
the attendance of the accused.
A discretion has to be exercised in granting bail in cases not
punishable with imprisonment for life or death unless there may be some
reasons for not exercising such a discretion in favour of the accused. Such
reasons should be mentioned in the order while refusing bail. In cases of under-
trials charged with commission of an offence or offences the Court is generally
called upon to decide whether to release him on bail or to commit him to
jail.
The decision has to be made mainly in non-bailable cases, having regard to the
nature of the crime, the circumstances in which it was committed, the
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background of the accused, the possibility of his jumping bail, the impact that
his release may make on the prosecution witnesses, its impact on society and
the possibility of retribution, etc.
While granting bail the court has to consider the nature and gravity of
the circumstances in which the offence is committed; the position and status of
the accused with reference to the victim and witnesses; the likelihood of the
accused fleeing from justice, of repeating the offence, of jeopardizing his
own life being faced with the grim prospect of the possible conviction in the
case, of tampering with a witness; the history of the case as well as of its
investigation and other relevant grounds.
Test Applied for Grant of Bail in Nonbailable Offence
Normally the courts apply the following tests while considering applicati
ons for bail in case of nonbailable offences
(i) nature and seriousness of the accusation;
(ii) nature of the evidence in support of the accusation;
(iii) severity of the punishment which the conviction will entail;
(iv) the character, behavior and standing of the accused;
(v) a reasonable possibility of the presence of the accused not being secured
at the trial;
(vi) the danger of the alleged offence being continued or repeated;
(vii) the danger of the witnesses being tampered with;
(viii) the larger interest of the public or the State,and similar other
consideration.
(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,
(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 Session, 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 incharge 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
subsection (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
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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) 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 SubSection (3) of section
437, as if the bail were granted under that section.
application for anticipatory bail is considered, the police may not place all
factual details before the Court as the investigation in most of such cases is at
is at a preliminary stage. Therefore, some role can be played by the complainant
by pointing out factual aspects. In the circumstances, it is not possible to hold
that the first informant or the complainant connot be heard in an application for
anticipatory bail. When the complainant appears before the Court in the
course of hearing of an application for grant of anticipatory bail, the Court is
bound to hear him. But the said right cannot be allowed to be exercised in a
manner which will delay the disposal of an application for anticipatory
bail.
The delay in disposal of such application may adversely affect the investigation.
Therefore, the right which can be spelt out in favour of the first informant or
the complainant is of making oral submissions for pointing out the factual
aspects of the case during the course of hearing of an application for
anticipatory bail before the Court of Session. The said right is to be exercised
by the complainant either by himself or through his Counsel. This is not to say
that the Sessions Court hearing the application for anticipatory bail is under an
obligation to issue notice to the first informant or the complainant. There is no
such requirement of issuing notice to the first information or the complainant
at the hearing of the application for anticipatory bail. However, if the
complainant or the first informant appears before the Court, he cannot be denied
a right of making oral submissions either in person or through his Counsel.
It
must be noted here that the legal position on this aspect in the case of an
application for regular bail may not be the same "
SPECIAL POWRS OF HIGH COURT OR COURT OF SESSION
REGARDING BAIL SECTION 439 OF CRIMINAL PROCEDURE
CODE.
Special Powers have been conferred on High Court or court of session in
Criminal Procedure Code for Grant of Bail under this section. The powers
under this section are wide enough to empower, the Court to exercise its
discretion to grant bail to an accused person when he appears and surrenders
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himself in the Court even in anticipation of his arrest. The powers of the High
Court and the Court of Session under this section are of a concurrent
jurisdiction with that of a Magistrate. It is seen on a comparison of Section 437
& 439, that the High Court is invested with power under this section, as a Court
of superior, appellate or revisional jurisdiction and has vast powers to direct that
any person be admitted to bail in any case.
There can be no doubt that sub section (1) deals with cases of persons
accused of bailable as well as nonbailable offences. Even in regard to persons
accused of bailable offences, if the amount of bail fixed under Section 436 is
unreasonably high the accused person can move the High Court
or the Court of Session for reducing of that amount.
Similarly, a person accused of a bailable
offence may move the High Court or the Court of Session to be released on bail
and the High Court or the Court of Session may direct either that the amount
should be reduced or that the person may be admitted to bail. If a person
accused of a bailable offence is admitted to bail by an on order passed by the
High Court or the Court of Session, the provisions of subsection (2) become
applicable to his case; and under these provisions the High Court or the Court
of Session is expressly empowered to cancel the bail granted by it and to arrest
the accused and commit him to custody. The result is that this section applies
not only to cases of persons accused of nonbailable offences but also those
accused of bailable offences.
This section gives an unfettered discretion to the High Court or Court of
Session to admit an accused person to bail, but that discretion must be
exercised judicially. The power of the
High Court and of a Court of Session to
grant bail is not fettered by the restrictions contained in Section 437.
In every case i t is the cumulative effect of all the combined
circumstances that must weight with the Court and those considerations are
far too numerous to be classified or catalogued exhaustively. In exercising its
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discretion under this section, the High Court need not confine its attention to
the question whether the prisoner is or is not likely to abscond, as other
circumstances may also affect the question of granting bail to persons accused
of having committed crimes of a grave and serious nature. The principles
underlying Sec.437 Cr.P.C. are to be kept in view. The previous conviction of
an accused for a heinous crime punishable with imprisonment for life, his
involvement in other crimes and the quantum for punishment for the offences in
which the applicant is seeking bail are all relevant factors to which the Court
should consciously advert while taking a decision in the matter of enlargement
on bail. The Courts must not be too liberal in granting bail particularly when
bail is asked for with regard to a serious crime like murder. There is greater
justification for denying bail to persons charged of high corruption as from such
persons there is a danger of subversion of evidence against them by the use of
money power. Where an offence is not bailable the Court has to decide the
question of grant of bail in the light of such considerations as the nature and
seriousness of the offences, character of the evidence, circumstances which are
peculiar to the accused, a reasonable possibility of presence of the accused not
being secured at the trial, reasonable apprehension of witness being tampered
with, the larger interest of the public or the State and similar other
considerations.
Concurrent Jurisdiction
Although under this section concurrent jurisdiction is given to the
High Court and Sessions Court, the fact that the Sessions Court has refused to
bail under this section does not operate as a bar for the High Court entertaining
a similar application on the same facts and for the same offence. However, if
the choice was made by the party to move first the High Court and the
High
Court has dismissed the application, then the decorum and the hierarchy of the
Courts require that if the Sessions Court is moved with a similar application on
on the same facts, the said application be dismissed. 19 Where bail petition of
the accused is pending in the High Court, the accused cannot pursue his bail
application simultaneously before the Court of Sessions.
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(ii) Generally it is the rule to allow bail, rather than to refuse bail, and bail
ought not to be held as punishment.
(iii) The fact that the offence is a serious one does not afford a sufficient
ground to refuse bail.
(iv) The principle to guide the Court is the probability of the accused
appearing to take his trial, and not his supposed guilt or innocence.
(v) If bail has been granted to one accused, other accused in the same case
similarly placed are entitled to be released on bail.
(vi) In a serious offence such as murder, bail will be refused if there are
reasonable grounds for believing that the accused is guilty.
(vii) The fact that the charge-sheet has not been submitted against the accused
is a factor to be taken into consideration.
(viii) That the accused has been previously convicted is no bar to grant bail.
(21)
Section 441 contemplates furnishing of a personal bond by the accused
person and a bond by one or more sufficient sureties. It does not authorize a
demand of case security by a Magistrate. An accused person is entitled as of
right to bail, provided the necessary conditions prescribed by law are fulfilled,
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and his sureties can not be rejected unless the Police Officer or Court is not
satisfied about either their identity, solvency or reliability.
It is imperative for those who are in charge of receiving bonds from the
accused and sureties to be very careful in complying with the provisions of law
since the bonds are to be strictly enforced. If the time and place for the
appearance of the accused is not mentioned and the space for it in the form is
left blank the bond becomes vague and is void on that ground.
Section 441A provides that a person standing surety for an accused
person shall disclose as to in how many cases he has already stood surety for
accused persons.
Section 442 deals with the period when the accused shall be discharged
from custody after furnishing bond. 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
officerincharge 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.
When court orders the release of an accused person under this section it
has no right or power to put any restrictions on the accused's movement, and
when an accused person is released on suretyship of another, the intention is
that the surety should have control over his movements. Otherwise, there is no
sense in making the surety responsible for the attendance of the accused in the
court.
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
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and may order him to find sufficient sureties, and, on his failing so to do, may
commit him to jail. In accordance with the provisions of Section 443 of
Criminal Procedure Code.
Discharge of sureties. ( Section 444
)
(1) All or any sureties for the attendance and appearance of a person
released on bail may at any time may 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.
When a surety applies for the cancellation of his bond there is no such
thing as hearing the application on the merits. The presentation of the
application itself imposes upon the Magistrate the duty of issuing a warrant for
the arrest of the accused. Even if the surety fails to appear at a subsequent
hearing, the Magistrate has to act under the section.
Section 445 permits payment of cash or Government promissory notes in
substitution of passing a bond, except where the bond is one for good behaviour.
This provision is salutary, and is meant to help an accused who is a stranger to
the place. The presentation of the application itself imposes upon the Magistrate
the duty of issuing a warrant for the arrest of the accused. Even if the surety fails
to appear at a subsequent hearing, the Magistrate has to act under this section.
The provisions of this section are meant for the continuity of the surety bond
and for enabling the accused to offer other surety bonds; they are not conditions
precedent from the acceptance of a fresh surety in place of an earlier one.
(24)
This section refers to two classes of bonds : (1) a bond under the Code for
appearance or for production of property and (2) any other bond under the Code.
Both stand on the same footing so far as forfeiture is concerned. The section
lays down the procedure on forfeiture of such bonds. The Court before which an
appearance is to be made or property is to be produced or the Court to which the
case is subsequently, transferred or, in respect of the second class of bonds, the
Court by which the bond was taken or any Court to which the case is
subsequently transferred, or the Court of any Magistrate of the First Class may
satisfy itself as to forfeiture and call upon the person bound by it either to pay
penalty or to show cause. If sufficient cause is not shown and penalty not paid,
the Court will recover the same as if it were a fine imposed by a Court under
this Code as laid down in Section 421. The Court has a discretion to remit a
portion of the penalty. If a surety dies before the bond is forfeited, his estate is
discharged. Where the bond is forfeited and the penalty is not paid, the Court
may proceed to recover the amount by issuing a warrant for attachment under
Section 421.
(iii) CANCELLATION OF BOND AND BAIL BOND :
Cancellation of bond and bailbond. ( Section 446A
)
Cancellation of bail bond of the accused falls u/s.446A and not under
Sec.446, as Sec.449 Cr.P.C. does not provide for appeal against the said order,
and writ petition lies against the said order.
Procedure in case of insolvency or death of surety or when a bond is
forfeited. (Section 447)
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 a Magistrate of the first class, may order
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the person from whom such security was demanded to furnish fresh security 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.
On forfeiture of the bond, the accused has no right to be released on bail
on his furnishing fresh securities. But it would be within the discretion of the
Court to release him or not to release him upon the execution of fresh personal
or surety bond.
Bond required from minor. ( Section 448
)
When the person required by any Court or officer to execute a bond is a
minor, such Court or officer may accept, in lieu thereof, a bond executed by a
surety or sureties only.
Appeal from orders under Section 446. ( Section 449
)
All orders passed under Section 446 shall be appeallable, (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 Session, to the Court to
which an appeal lies from an order of such Court.
An appeal ordinarily would lie to the Court of Session from an order
passed by an Assistant Sessions Judge; but where the sentence imposed exceeds
imprisonment for seven years, the appeal will lie before the High Court. Appeal
against any sentence of fine would hence lie to the Court of Session only.
With this I conclude the summary/gist of subject for workshop.
Sindhudurg-Oros. ( D.W.Modak )
District Judg -1, and
Date :- 10/03/2016. Addl. Sessions Judge, Sindhudurg.
Head of the Core Group of Judges,
(CRIMINAL GROUP).