Code of Criminal Procedure Act, 1973 along with Commentary
[Act, No. 2 of 1974]
[25th January, 1974]
Preamble
An Act to consolidate and amend the law relating to Criminal Procedure.
BE it enacted by Parliament in the Twenty-fourth Year of the Republic of India as follows:-
Chapter: 1 - PRELIMINARY
Section 1 - Short title, extent and commencement
(1) This Act may be called the Code of Criminal Procedure Act, 1973.
(2) It extends to the whole of India except the State of Jammu and Kashmir:
Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply--
(a) to the State of Nagaland,
(b) to the tribal areas,
but the concerned State Government may, by notification apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification.
Explanation.-In this section, "tribal areas" means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong.
(3) It shall come into force on the 1st day of April, 1974.
Section 2 - Definitions
In this Code, unless the context otherwise requires,-
(a) "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence;
(b) "charge" includes any head of charge when the charge contains more heads than one:
Commentary
The definition of the word "charge" is not explicit. Charge is the precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage. A charge is not an accusation made or information given in abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or command in it. In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him.
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(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;
(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;
Commentary
Section 2(d) of the Code emcompasses a police report also as a deemed complaint if the matter is investigated by a police officer regarding the case involving commission of a noncognizance offence. In such a case, the report submitted by a police officer cannot be held to be without jurisdiction merely because proceedings were Instituted by the police officer after investigation, when he had no power to Investigate.
A complaint is nothing, but allegations made, orally or in writing, to the notice of a Magistrate that some person, whether known or unknown, has committed an offence and the person who makes such accusation or informant intends that some action, under the Code, be taken against the offender.
In the case of Parkash Singh Badal vs. State of Punjab, AIR 2007 SC 1274, it was observed that merely because the political opponent was the complainant that did not per se lead to an inference that the complaint had to be thrown out or that no notice should be taken thereof. Further, it was observed that a plea of mala fides was not only required to be clearly pleaded but specifically proved by adducing cogent evidence. Mere allegation and suspicions were not sufficient.
In the case of James Sebastain vs. State of Assam, 2008 Cri LJ 3634,it was held that a ''police report'' is a report, which is submitted, in terms of Section 173(2) (i), to a Magistrate on completion of investigation, which may have been carried out on registration of FIR. A report, which a police officer may submit, on completion of ''investigation'', which was directed under Section 202, cannot be treated as a ''police report'' within the meaning of Section 2(r) inasmuch as such a report is not the report which Section 173 (2) (i) envisages. Rather, such a report is meant to help the Magistrate make up his mind if process needs to be issued to the person, who is accused to have committed an offence.
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(e) "High Court" means,--
(i) in relation to any Stale, the High Court for that State;
(ii) in relation to a Union territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court;
(iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India;
(f) "India" means the territories to which this Code extends;
(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
Commentary
Inquiry is defined in section 2(g) of the Code as "every inquiry, other than a trial, conducted under this Code by a magistrate or court." It refers to the pre- trial inquiry, and in the present context it means the inquiry to be conducted by the magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said court has to make a complaint in writing to the magistrate of first class concerned. As the offences involved are all falling within the purview of "warrant case" [as defined in section 2(x)] of the Code, the magistrate concerned has to follow the procedure prescribed in chapter XIX of the Code. In this context, section 343 of the Code specifies that the magistrate to whom the complaint is made under section 340 shall proceed to deal with the case as if it were instituted on a police report. That being the position, the magistrate on receiving the complaint is required to proceed under section 238 to section 243 of the Code.
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(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;
Commentary
The word 'investigation' is defined under Section 2(h) of the Code which is an inclusive definition as including all the proceedings under the Code for the collection of evidence conducted by a police officer or any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. The said word 'investigation' runs through the entire fabric of the Code. In the case of H.N. Rishbud vs. State of Delhi, AIR 1955 SC 196, it has been held that:
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"Under the Code investigation consists generally of the following steps:
(1) Proceeding to the spot,
(2) Ascertainment of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender,
(4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5 Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173."
(i) "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath;
(j) "local jurisdiction", in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code 1 [and such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify];
(k) "metropolitan area" means the area declared, or deemed to be declared, under section 8, to be a metropolitan area;
(l) "non-cognizable offence'' means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant;
(m) "notification" means a notification published in the Official Gazette;
(n) "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871);
(o) "officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when, the State Government so directs, any other police officer so present;
Commentary
The term `investigation' has been defined in Section 2(h) of the Code to include all the proceedings under the Code for collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
`Officer in charge of a police station' is defined in Section 2(o) of the Code to mean `officer in charge of a police station' includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform...
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