Criminal Court Rules of the High Court of Judicature at Patna
VOLUME I.
Contents
Preliminary
PART I
General Rules Regarding Practice and Procedure
Chapter I
General
Chapter II
Process
Chapter III
Confessions and statements of accused (Section 164, Criminal Procedure Code)
Chapter IV
Complaints (Sections 200 to 203, Criminal Procedure Code)
Chapter V
Proceedings under Sections 145 and 147, Criminal Procedure Code
Chapter VI
Enquiry into cases triable by the Court of Sessions (Chapter XVIII, Criminal Procedure Code)
Chapter VII
Sessions Business
Chapter VIII
General Provisions as to Enquiries and Trials
Chapter IX
Mode of Recording Evidence (Chapter XXIII, Criminal Procedure Code)
Chapter X
Judgment and Sentence
Chapter XI
Execution (Chapter XXXII, Criminal Procedure Code)
Chapter XII
Appeals (Chapter XXIX, Criminal Procedure Code).
Chapter XIII
Reference and Revision (Chapter XXX, Criminal Procedure Code).
Chapter XIV
Lunatics (Chapter XXV, Criminal Procedure Code)
Chapter XV
Commissions for Examination of Witnesses (Chapter XL, Criminal Procedure Code)
Chapter XVI
Special Rules of Evidence (Chapter XXIII, Criminal Procedure Code)
Chapter XVII
Disposal of property (ChapterXXIV, Criminal Procedure Code)
Chapter XVIII
Miscellaneous (Chapter XLVI, Criminal Procedure Code)
PART II
Rules Regarding Practice and Procedure under Special Acts
Chapter I
The Indian Oaths Act X of 1873
Chapter II
The Reformatory Schools Act
Chapter III
The Indian Stamp Act II of 1899
PART III
Records
Chapter I
Arrangements of Records of Criminal Proceedings
Chapter II
A.—Order-sheet for Sessions Courts
B.—Order-sheet for Magistrates’Courts
Chapter III
Inspection of record
Chapter IV
The Transmission of Records to the District Record Room
Chapter V
Preservation and Destruction of Records and Return of Exhibits
Preamble Criminal Court Rules Bihar Local Laws
Chapter VI
Custody and examination of and requisitions for, access to and transmission of records from one court to another
PART IV
Information and Copies
Chapter I
Information and Copies
Chapter II
Copyists
PART V
Fees and Costs including Rules and Orders under the Court-fees Act
Chapter I
(A) Process Fees.
(B) Reduction and Remission of Courtfees.
(C) Searching and Copying Fees.
(D) Fees for Affidavits.
(E) Cost of Transmission of Records.
(F) Cancellation of Court-fee Stamps.
(G) Inspection of Records by Registration Officers.
PART VI
Registers, Periodical Returns and Statements and Annual Reports
Chapter I
Registers
Chapter II
Periodical Returns and Statements.
Chapter III
Annual Reports
PART VII
Miscellaneous
Chapter I
Process Services
Chapter II
Inspections.
Chapter III
Miscellaneous Instructions.
PART VIII
Accounts
Chapter I
General.
Chapter II
Receipt of Money.
Chapter III
Payment of Money.
Chapter IV
Account-keeping and Remittance to Treasury.
Chapter V
Deposit and Repayment Registers.
Chapter VI
Control over Subordinate Courts.
Chapter VII
District Monthly Returns.
Chapter VIII
Annual Clearance Register of Deposits.
Chapter IX
Lapse of Deposits.
Chapter X
Supplementary rules as to Receipts under Heads (b) to (g) of Rule 267.
Chapter XI
Miscellaneous.
APPENDICES
APPENDIX I
List of Registers to be compound daily by Magistrate Incharge.
APPENDIX II
Transactions at Treasury.
APPENDIX III
List of Returns.
APPENDIX IV
Rules relating to Fines.
APPENDIX V
[Deleted]
APPENDIX VI
Account Rules.
APPENDIX VII
List of Army Reserve Centres.
APPENDIX VIII
Important Instructions.
Preliminary
1. The Court hours shall ordinarily be from 10 : 30 A.M. to 4 : 30 P.M. standard time.
2. Every Sessions Judge and Magistrate shall sit daily and punctually at the hour appointed for the opening of his court unless prevented by circumstances which are to be recorded in the Court’s Diary [Form no. (R) 6].
Note 1.—Between the 1st April and 30th June, the exact dates being settled in consultation with the heads of the offices in the station, the courts may commence their sittings at 6 A.M. or as soon thereafter as convenient. When this arrangement is in force, the Sessions Judges and Magistrates are expected to sit for at least 5 hours each day. However, if the local weather conditions so necessitate or for any other sufficient reason or cause the subordinate courts may sit in the morning at any time of the year with the prior approval of the High Court.
Note 2.—Magistrates, who expect to spend all or the greater part of the day in criminal work should ordinarily rise for half an hour or less at about 1 : 30 P.M. (or at about 8 : 30 A.M. in the case of morning sittings).
3. A diary in the prescribed form shall be kept by every Criminal Court. Each case fixed for any day shall be entered in advance immediately upon a date or adjourned date being fixed. [G.L. 4/55.]
Note—This diary should also be utilized for the purpose of showing what work, if any, other than judicial work has been performed during the day by the officers maintaining it (vide also rule 106, Chapter VI of the1 Board’s Miscellaneous Rules, 1958).
4. At the close of each working day a list of cases fixed for the next working day, signed by the presiding Magistrate, shall be posted in some conspicuous place in every court house for the information of the parties and their pleaders. The cases will, as far as possible, be arranged in the order in which they are likely to be taken up. The number of cases to be fixed for each day should be such as, after making allowance for unavoidable postponements, the court may reasonably expect to be in a position to deal with. Orders and judgments ready for delivery, if any, should be shown in the list. The cases will be described by their number, year and the first name of each side, e.g., A vs. B. On the following working day will be shown in this list the dates to which the cases including new cases have been adjourned. [G.L. 1/64.]
Lists shall be prepared in the language of the Court and shall remain posted for seven working days after which they shall be filed in office for future reference, if necessary. At the end of every quarter, the lists for the preceding quarter will be destroyed.
5. Magistrates and other officers entrusted with the disposal of criminal business should refrain from and strictly interdict on the part of those subject to their authority the objectionable practice of transacting public business at their private residences, instead of at the public kachahries. A Magistrate can never be as accessible in his own house as at his court, and unless there are fixed hours for the regular disposal of business thereat, petitioners and others will be either deterred from attending or constantly subject to much inconvenience and expense.
6. Without the consent of parties and in the absence of urgent necessity no criminal enquiry or trial shall ordinarily be held on a Sunday or gazetted holiday.
7. (a) The Courts of Executive Magistrates should not be closed except on days which are gazetted as holidays by the State Govt. for such Courts.
(b) The Courts of Sessions and of Judicial Magistrates should not be closed except on days which are declared by the High Court as holidays for the Civil Courts.
Note—During the Civil Court annual vacation, the occasional holidays to be observed by the Courts of Sessions and Judicial Magistrates shall be those which are holidays gazetted by the State Government for the Executive Magistrates and other Govt. Offices. The High Court may, however, in its discretion, permit presiding officers of Courts of Sessions and Judicial Magistrates to avail themselves of the Civil Court annual vacation, either in whole or in part.
8. Judicial Officers shall in all cases take care to sign their names distinctly and legibly.
9. In the case of documents which are required by law to be signed, the impression of a stamp bearing the officer’s name is insufficient and illegal.
10. The District Magistrates and the Chief Judicial Magistrates are required to maintain a watchful and intelligent control over the works of the Magistrates subordinate to them and to inform themselves thoroughly, from time to time, of the mode in which business is transacted by them. In particular they are expected to secure circumspection in the issue of warrants and summonses and to see that business is transacted with due despatch.
11. The Government of Bihar have declared the following as Court language in the State of Bihar in supersession of all previous notifications and orders on the subject:—
PART I
General Rules regarding Practice and Procedure
CHAPTER I
General
12. All petitions should be in the language of the Court, as far as practicable, or in English, and type-written, if possible. No petition or pairvi shall be filed in the Court unless copies thereof have been previously served on the pleaders for each set of parties whose interests are not joint. Pleaders served with such copies shall give receipts on the original petitions or pairvis.
13. In every sentence or order made by a Criminal Court, the jurisdiction of the Judge or Magistrate making it should distinctly appear on the face thereof.
Note—When the law empowers Magistrates of a particular grade to do a particular act or make a certain order, it should always appear on the proceedings that the Magistrate making the order or doing the act is a Magistrate who has jurisdiction to do it. (22 W.R.Cr. R. 30).
14. In every process and every sentence or order (of whatever description) issued by a Judicial Officer for whatever purpose it may be issued or made, the name of the district and of the Court from which the same is issued and also the name and power of the officer issuing or making it, shall be clearly set out in such manner that it may be easily read. [G.L. 4/52.]
15. Every summons issued under 1[x x x x] the Code of Criminal Procedure shall be2 [in duplicate] signed and sealed by the Presiding Officer of the Court or in his absence by any other 1[x x x x] Magistrate exercising jurisdiction within the local area of the Court.
16. (1) The Regular Seal of the Court shall be placed in custody of a responsible officer of the Court authorised by the Presiding Officer for the purpose and documents required to be sealed with it should be sealed under his superintendence. Similar precaution shall be taken with respect to the Date Seal.
(2) Each Court shall affix a date seal to all documents and papers on their presentation to Court in such a way as to show clearly the date on which they were presented. If any Court-fee label appears on them, it shall be affixed a second time in such a way as to deface the Court-fee label.
17. All processes issued by the High Court in Criminal cases should be served as quickly as possible and the service reports sent by the date fixed. If service in sufficient time before the date fixed is impracticable, the process is to be returned to the issuing Court with reasons and thereupon a fresh date may be fixed. [G.L. 7/60.]
18. In every 3[such] case the serving Court shall satisfy itself that a valid service has been made or that there has been a failure of service and shall certify such opinion to the High Court with the reasons in case of failure. The certificate may be endorsed on the process and it shall be accompanied by the return of service or of failure to serve the notice and the affidavit or solemn declaration of the serving officer.
CHAPTER II
Process
19. Every person on whom a process is to be served or executed shall be described therein in such manner as will serve to identify him clearly, i.e., by the statement of his correct name and address and such further description as will serve to identify him. [G.L. 1/25, G.L. 2/54.]
Note—In the case of service or execution of process to be effected in large towns, the name of the street or section of the town and the number of the house (if known) should be given.
20. Processes shall ordinarily issue in the language of the Court, but when processes are sent for service to a place where the language is different from that of the Court issuing them, they should be accompanied by a translation into the language of such place or into English, certified by the transmitting Court to be correct. Where the return of service or report of non-service is in a language different from that of the issuing Court it shall be accompanied by an English translation similarly certified.
21. Process for foreigners should be issued along with an English translation thereof.
22. In a proceeding instituted upon a complaint made in writing, every process issued shall be accompanied by a copy of such complaint.
23. Whenever a summons to appear as a witness in a criminal case is issued against an officer of police, it shall be served upon such officer through the Superintendent or the Assistant in charge of the subdivision to which such officer may belong.
24. Whenever it may be necessary to summon an officer or soldier in Military employ to attend a Criminal Court as a witness, the process-server who is to serve the summons, shall be instructed to take it under cover to the Officer in Command of the Regiment or Detachment with which the witness may be serving and to apply for his assistance in serving it. With this assistance the proces-server shall then proceed to serve the process and shall make his return direct to the Court. In such cases sufficient time should always be given to admit or arrangements being made 1[of] the relief of the witness summoned. Note—For rules relative to the dress of military officers and soldiers appearing before Civil or Criminal Courts, see rule 247, Chapter III, Part VII post.
25. 2[* * * *]
26. As regards production of post office records under section 92, Criminal Procedure Code by Post Master, Rule 74, Chapter I, page 31 of Post Office Manual, vol. I, 1912 should be referred to.
27. Whenever any document or documents which are required to be produced in a case, are in the custody of the 3[Lok Sabha/Rajya Sabha/Vidhan Sabha/Vidhan Parishad] or whenever a witness whose presence is required in a case, for being examined, is an officer in the Secretariat of the 3[Lok Sabha/Rajya Sabha/Vidhan Sabha/Vidhan Parishad] or any duly informed officer of the Secretariat of the 3[Lok Sabha/Rajya Sabha/Vidhan Sabha/Vidhan Parishad], a letter of request in Form No. (M) 13-A shall be issued instead of a summons in the ordinary form.
28. 5[* * * * *]
CHAPTER III
Confession and Statements of Accused—Section 164, Cr.P.C.
29. (i) The examination of an accused person immediately on his production by the police is to be deprecated. Whenever possible, he should be allowed a few hours for reflection, free from the influence of the police, before his statement is recorded. The investigating police should not be allowed to be present when confession is recorded.
(ii) Confessions should be recorded in open court and during the court hours except when unusual circumstances require a different procedure as, for instance, when an open record would be detrimental to the public interests or when the recording of the confession in open court is rendered impracticable by reason of the fact that the Court is closed for two or more successive days on account of holidays.
(iii) A Magistrate recording a confession should satisfy himself in every reasonable way that the confession is made voluntarily. It is not necessary actually to invite complaints of police ill-treatment, though of these, if spontaneously made, cognizance should be promptly taken, but it should be made clear to the prisoner that the making or withholding of a statement is within his discretion, and any indication of use of improper pressure should be at once investigated.
(iv) The Magistrate should question a confessing prisoner with a view to ascertaining the exact circumstances in which his confession was made and the connection of the Police with it; in other words, the Court should record the confessions in as much detail as possible with a view to obtaining material from which its genuineness can be judged and to testing whether it is freely made or is the outcome of suggestion. To the certificate required by Section 1[164] of the Criminal Procedure Code, the Magistrate should add a statement, in his own hand, of the grounds on which he believes that the confession is genuine, of the precautions which he took to remove accused from the influence of the police and of the time, if any, given to him for reflection.
(v) The Magistrate should formally warn the accused, though not necessarily in set words, that anything said by him will be taken down and may thereafter be used against him.
(vi) A remand to police custody should not be allowed unless good and satisfactory grounds are shown for it; a general statement that the accused may be able to give further information should not be accepted.
(vii) Whenever possible, where the object of the remand is the verification of the prisoner’s statement he should, be remanded to the charge of a Magistrate.
(viii) The period of the remand should always be as short as possible.
(ix) A prisoner who has been produced for the purpose of making a confession and who has declined to do so, or has made a statement which, from the point of view of the prosecution, is unsatisfactory, should in no circumstances be remanded to police custody.
Note—Orders of remand to police custody should ordinarily be passed by stipendiary Magistrates exercising not less than second class powers and specially selected Honorary Magistrates of the 1st Class.
(x) If a prisoner produced for the purpose of making a confession declines to make any, the Magistrate before whom he is brought shall record on Form no. (M) 2 the refusal of the prisoner in his own words, and shall also record any statement which the prisoner may desire to make in lieu of a confession.
Comments & Case law
The Magistrate while recording confession u/s 164 has to ensure that the confessional statement being made before him is voluntary and without pressure, the Magistrate must record the confession in the manner laid down by the section. Omission to comply the mandatory provisions, one of such being as incorporated in sub section (4) of Section 164 is likely to render the confessional statement inadmissible. The words “shall be singed by the person making the confession”, are mandatory in nature and the Magistrate recording the confession has no option.
Mere failure to get the signature of the person making the confession may not be very material if the making of such statement is not disputed by the accused but in cases where the making of the statement itself is in controversy, the omission to get the signature is fatal. Dhananjay Reddy vs. State of Karnataka, AIR 2001SC 1512: 2001 Cr.L.J 1712: 2001 SCC (Cr) 652: 2001 (4) SCC 9.
The test of discerning whether a statement recorded by judicial Magistrate u/s 164 from an accused is confessional or non-confessional is not by dissecting the statement into different sentences and then to pick out some as not inculpative. The statement must be read as a whole and then only the Court should decide whether it contains admissions of his incriminatory involvement in the offence.If the result of that test is positive then the statement is confessional, otherwise not. (See Para-12). Lokeman Shah vs. State of West Bengal. AIR 2001 SC 1760: 2001 (5) SCC 235 : 2001 Cr.L.J 2196 : 2001 SCC (Cr) 829. Statement u/s 164 recorded by Magistrate of appellant—That statement cannot be treated as confession as no warning was given to him as required under the law—Investigation Officer also did not send him for recording of his confessional statement as he did not like to make him an accused—That appellant in his statement u/s 313 stated that the statement was procured by police under coercion Hence, statements u/s 164 cannot be treated as confessional statement of appellant.
Recording of confessions and statements—Discretion of Magistrate to refuse recording statements of witnesses—It has to be exercised judiciously-Case at the stage of investigation by Investigating Agency—Court to be very reluctant in interfering in the said investigation—But in case application filed by petitioner or by witness with a prayer to record his statement u/s Section 164, then Magistrate before rejecting or accepting said application, to apply his judicial mind to exercise his discretion—Not to reject mechanically or on flimsy ground.Diwakant Choudhary vs State of Bihar.1997 (1) BLJ 463 : 1997 (1) PLJR 313. The Criminal Court Rules state that whenever possible, the accused confessing his guilt should be allowed few hours time for reflection. How much time would be sufficient for reflection would differ from case to case. It is ultimately the satisfaction of the Magistrate that the confession is voluntary which will matter because it is the Magistrate recording the confession who has dealt with the accused, had an opportunity to talk to him and to watch his demeanor. When the Magistrate says that he was satisfied that the confession is voluntary, ordinarily that should not be doubted.
Statement made before Judicial Magistrate—Admission made by person making it, about his nationality, address and other details—Recorded by Judicial Magistrate after adopting legal formalities—Rightly believed by Courts below when Judicial Magistrate appeared before Court and proved it . Application for recording of statement—Filed after completion of investigation and when case was fixed for commitment—Rejection of application without enquiry—Against law—There is no bar for recording such statement even at stage of commitment—Direction by High Court for recording of statement. Md. Nezam vs. State of Bihar, 1996(1) BLJ 202 : 1995 (2) PLJR 360. Section 164 provides for safeguards for an accused. The provisions contained therein are required to be strictly complied with. But it does not envisage compliance of the statutory provisions in a routine or mechanical manner. (See Para 15) Taking of a statement of an accused on oath is prohibited.(See Para 10). Two confessions taken in quick succession and no legal aid was provided to the accused and there was no other material to establish the guilt of the accused. Conviction cannot be based on confession-Conviction set aside. Babubhai Udesinh Parmar vs. State of Gujarat. AIR 2007 SC 420.
CHAPTER IV
Complaints under Sections 200–203, Cr.P.C.
30. Complaints should be received daily at fixed hours ordinarily at the commencement of the day’s sitting. They should be immediately numbered in the order of their receipt and entered in 1[* * * *] the Register to be kept in Form no. (R) 1. When a case is made over for trial to another officer, and entry to this effect should be made in the column for preliminary orders. [G.L. 3/57.]
Comments & Case law
It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reason, the Magistrate under Sec.204.Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. Where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous
proceedings, have been adduced. (See Para 19) Mahesh Chand vs B. Janardhan Reddy, AIR 2003 SC 702: 2003 SCC (Cr)425. (2003) 1 SCC 734:2003 Cr. LJ 866. When there is also serious doubt whether the procedure required under the Code of Criminal Procedure was really followed by the Magistrate at all while taking cognizance of the offence alleged. In this background of inherent falsehood that could be ex facie noticed from the contents of the complaint and coupled with the fact admitted by the parties to the petition The said complaint is a fraudulent one and liable to be quashed based on the legal principle that an act in fraud is ab initio void. (See Para 8). Vijay Shekhar & anr. vs Union of India, 2004 AIR SC 3976 : 2004(4) SCC 666 : 2004 SCC (Cr.) 1403.
Examination of witness not named in the complaint petition before framing of charge—Magistrate allowing complainant—opposite party—Validity of order—Held, even before framing of charge, Magistrate may either on his own motion or on an application by complainant—Opposite party—may examine even those witnesses not named in complaint petition-Held, further impugned order not suffering from any illegality. Jogendra Paswan vs State of Bihar, 1998(1)BLJ 387 : 1997(2) East. Cr.C 114. Cognizance of complaint taken without examination of complainant on solemn affirmation (SA)—This omission is mere irregularity and not illegality— Thus curable—As the complaint was at initial stage—High Court directed the Court below to proceed in accordance with law—Cognizance taken without examining complainant-Effect of.
Complaint case-Sanction & prosecution of public servant i.e. police officers- III-treatment, assault and abuses by police officers—Cognizance of offence against some of the accused, after holding enquiry u/s 202, taken by Magistrate-But SDJM refused to take cognizance against Opposite party no.2&3 (police officers), who happened to be accused named in the complaint petition—Petitioner-complainant complained to the Magistrate who saw their injuries and while remanding to judicial custody, he directed jail doctor to examine and report—On those facts, a prima
facie case was actually made out against OP nos.2&3, but they were exonerated by lower Court under the wrong impression that they have got protection under Section 197 of the Code—Police has got enormous power under the Code, but if they behave like an unbridled horse, then everybody’s safety will be at peril, and such protection cannot be given to a person acting in such a manner—Protection granted to OP no’s 2&3 by Magistrate was not proper and legal—There was every justification in taking cognizance against the opposite parties along with others and they deserve to be tried along with others in the case—Open to trial Court to consider as to how far the allegation against them was proved and substantiated— SDJM directed to pass fresh order, and to take cognizance against the OP’s 2&3.
Any investigation under the provisions of Sec.202 of the Code can only be ordered after the complainant and witnesses were personally examined on oath under Section 200 of the Code. In the present case though, the complainant had appeared before the learned Chief Judicial Magistrate, he was not examined on Solemn Affirmation (SA). As noticed above this is curable irregularity under section 465 of the Code. However, if on the filing of the complaint petition an investigation is ordered as per clause (b) of first proviso of Sec 202 (1) of the Code then examination of the complainant and witnesses present, if any, becomes mandatory before any such investigation is ordered. (See Para 16). Rajeshwar Yadav vs State of Bihar. 2004(2) PLJR 699 : 2004(3) BBCJ 396 : 2004 (2) East Cr.C 202.
Note—Cases instituted under sections 182, 193 and 211, Indian Penal Code, cases sent by the Civil Courts for judicial enquiry, excise cases unless challaned by the police and cases under sections 174, 188 and 312, Indian Penal Code, are to be shown in the Register of Complaints of offences.
31. The examination of the complainant and the witnesses present, if any, is not to be a mere form, but an intelligent enquiry into the subject-matter of the complaint carried far enough to enable the Magistrate to exercise his judgment as to whether there is or is not sufficient ground for proceeding.
Note—Statement of complainant and the witnesses present, if any, should ordinarily be recorded on the back of the petition.
32. Magistrates are cautioned against the indiscriminate use of police agency for the purpose of ascertaining matters as to which a Magistrate is bound to form his own opinion upon evidence given in his presence. This caution is especially needful in respect of all cases regarding offences not cognizable by the police.
CHAPTER V
Proceedings under Sections 145 and 147 Cr.P.C.
33. Final orders in proceedings under sections 145 and 147 of the Code of Criminal Procedure should be drawn up in 1[Forms 25 and 27, Schedule II] of the Code [High Court Forms nos. (M) 51 and (M) 53, Vol. II], such modifications being made therein, in accordance with the provisions of 1[Section 476] of the Code, as the circumstances of each case may require. [G.L. 5/60].
& Case law Proceeding initiated under Sec.145 Cr.P.C. and any order passed by the Executive Magistrate, the same could be testified only on revision before the High Court. No other authority, much less than District Collector, has been conferred with any power to testify the validity of the order passed by the Executive Magistrate. District Collector entertaining an appeal or revision held to be without any jurisdiction When Parties are Co-owners of disputed land the question of invoking the provisions of u/s 145 Cr.P.C. would arise. 2002 Cr.LJ.,1865, Nilima Barman vs. Ratima Barman; see also Neelam Singh vs. State of U.P. Magistrate is not bound to consider police report viz a viz about status of Party as he is empowered to see the evidence or material independently. 2003 Cr.L.J. 4308 ; 2003 (11) A.I.C.862.
Parallel Proceeding Civil & Criminal—Case pertaining to injunction and dispute over partition. It will not be proper to run parallel proceedings by Criminal Courts when the subject matter is before Civil Court also since, the decision of the Civil Court are binding. The question of injunction has to be considered by the Civil Court. [Jora Singh vs. State of Punjab, 1999 Cr.LJ.1302.]
Pendency of civil litigation regarding title, and the Civil Court has ordered status quo to be maintained. Proceeding under u/s 145 Cr.P.C. is not competent. Harjet Singh vs. Amarjit Singh, 1999 Cr.LJ.98.]
! However, when no civil suits are pending dropping the proceedings u/s 145 Cr.P.C. is erroneous Jora Singh vs. State of Punjab, 1999 Cr.LJ.1302.]
Long pending civil litigation—On the question of possession of land— Breach of peace from time to time. Proceedings under Sections 144,145 and 107 Cr.P.C. initiated but dropped later on the ground that a title suit is pending before the Civil Court where under both the possession and title would be considered. Criminal Revision field before the Additional Sessions Judge. Dismissed. Dismissal of the Revision Petition by Additional Sessions judge on the ground that the order of the Executive Magistrate was well within law to drop the proceedings. High Court refused to interfere with the order of Additional Sessions Judge. Mohan Lal Kuer vs. State of Bihar, 1999 Cr.LJ. 4249.
The proceeding u/s 145 have to be taken cautiously and the Magistrate must follow the provisions scrupulously. Where the purpose of the party is to get possession without the expenses, delay and trouble of a civil suit or the settlement or a civil dispute it should not be initiated. Ramesh Ch. Saxena vs. VI. the Additional Sessions Judge, 1998 Cr.LJ. 3794.]
Though, a person is prevented from invoking jurisdiction of the Criminal Court when a suit or remedy in Civil Court for possession or injunction is available. When admittedly parties are co-owners and there is no partition and the dispute is not on the right to possession but on the question of the possession ,the Magistrate is empowered to take cognizance under Section 145 Cr.P.C. Prakash Chand Sachdeva vs. The State & another. [ AIR 1994 SC 1436: 1994 (1) SCC 471: 1994 SCC (Cr.) 438.]
Inherent power of High Court cannot be invoked if there is no abuse of proceeding u/s 145 of the Cr.P.C. No order can be quashed on the ground that the lower Court has passed an erroneous order, simply because he passed the order adverse to the interest of the petitioner. Section 482 of the Cr.P.C. is meant for such aggrieved party who have got no remedy under any legal provision and when there caused a gross injustice. Hanuman Prasad Agrawal vs. State of Bihar, 2001(3) BLJ 431 : 2001(3) BLJR 431 : 2001(3) PLJR 510.
When question of possession is being examined by the Civil Court and parties are in apposition to obtain interim orders, jurisdiction of Criminal Court should not be allowed to be invoked. Multiplicity of litigation and parallel proceedings are not in the interest of justice. Ram Sumer Puri vs. State of U.P., AIR 1985 SC 472 : 1985(1) SCC 427.
Competent court do not necessarily mean a civil Court only. It is one which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to possession over the properties forming the subject matter or the proceedings before the Executive Magistrate as contemplated in see 146 (1) of Cr.P.C. Shanti Kumar Panda vs. Shankuntla Devi, 2004 SCC (Cr) 320 : AIR 2004 SC 115 : 2004(1) SCC 438 : 2004 Cr.LJ 1249.
Note:—In the same judgment see also for (a) Effect of interlocutory or final Order of Court. (b) Order of Criminal Court is not binding on Civil Courts.
CHAPTER VI
Commitment of cases to the Court of Sessions.
34. A Magistrate making a commitment to the Court of Sessions, shall notify the same in Form No. (M)-7, Vol. II without delay, to that Court stating at the same time the number of days over which, in his opinion, the trial is likely to extend. The names of all the witnesses with their full addresses to be examined in the Court of Sessions, shall be appended to the said notice. A copy of the same shall be sent to the public prosecutor simultaneously. The public prosecutor shall, within a fortnight of the receipt of the copy, file in the Court of Sessions, a list of witnesses whom he wants to be summoned in the case. The Sessions Judge shall then fix the date for trial and send intimation of the date and also the summons to be served on the witnesses, direct to the Sub-divisional Judicial Magistrate concerned. He will also send intimation of the date fixed for trial to the District Magistrate and the public prosecutor. On receipt of the summons the Sub-divisional Judicial
Magistrate shall have them served on the witnesses in accordance with the provisions of section 62 of the Criminal Procedure Code. The District Magistrate and the local police shall be responsible to ensure the attendance of the witnesses on the dates fixed in the case.
35. As soon as the dates of sessions trial are settled, a list showing the same shall be fixed in a conspicuous place in the Court. The Sub-divisional Judicial Magistrate concerned on receipt of the dates fixed for trial from the Sessions Judge under rule 34 shall also get them notified at a conspicuous place in his office.] [G.L. 1/49, G.L. 12/57.]
Note 1.—As acknowledgement of the letter in Form no. (M) 7, Volume II, notifying the commitment should invariably be required by the Magistrate making the commitment from the Court of Sessions; and in the event of none being received within a reasonable time, enquiry should be made to ascertain the cause.
Note 2.—A Magistrate should furnish an explanation to the Court of Sessions in every case of delay of more than 7 days in notifying the date of commitment to that Court. [G.L. 13/51.]
Note 3.— 2[* * * *].
Note 4.—2[* * * *].
36. 2[* * * *].
37. 2[* * * *].
38. 2 [* * * *].
CHAPTER VII
Sessions Business
39. Sessions trials should be held in the order in which the commitments are notified to the Court of Sessions. The Sessions Judge should, however, exercise his discretion in the matter of giving priority to certain cases, particularly capital sentence cases, subsequently received judging the seriousness of the offence and the convenience of the accused. It should always be the endeavour of every Sessions Judge to see that a Session trial is brought to a close with due expedition and without unnecessary adjournment.
40. When it is duty of a Sessions Judge to hold sitting at more than one place and he finds that he is unable to proceed to the other place on the date fixed for trial there, he shall make such arrangements as may be best calculated to relieve the prisoners under trial from unnecessarily prolonged detention in custody and also to minimise the inconvenience of the witnesses. [G.L. 1/66.]
41. In all capital sentence cases where there has been an interval of one month or more between the apprehension of the accused and the conclusion of the trial in the Court of Sessions, a full explanation of such delay should be sent to the High Court along with the proceedings submitted under the provisions of Section 366 of the Code of Criminal Procedure. It should be clearly understood, however, that the period of 9 months here allowed before a capital sentence case becomes explanatory, should in no circumstances be regarded as the interval which may justifiably intervene between the apprehension of the accused and the conclusion of the trial in the Court of Sessions.
42. The Judge shall maintain a Register of sessions cases in Form no. (R) 23. 2[* * * *]. [G.L. 3/23.]
43. 2[* * * *].
44. Cases shall be entered in the Register of sessions cases in Form no. (R) 23 serially in the order of receipt of commitments in the Sessions Court. The series of numbers shall be separate for each year. A separate index number shall be given to each accused.
45. Column 4 3[of Register (R) 23] is meant to contain an abstract of the charge. Offences are to be stated as concisely as possible with the section of the Indian Penal Code or other law applicable. When a prisoner is charged with several offences, the heads of charge on which he has been convicted must be indicated by red underlining.
46. In the column of remarks 4[of Register (R) 23], Sessions Judges should state the ground of postponement when any trial is postponed, the period of any solitary confinement awarded to any prisoner—the fact, if it be so, that the sentence passed on any prisoner is in addition to any other sentence in a different case passed at the same Sessions, or one which is to take effect on the expiration of another sentence which the prisoner may be undergoing and the grounds on which any person punishable with death has been sentenced to any punishment other than death (Section 366 4, Criminal Procedure Code) the reasons which have prompted a specially light, or specially severe sentence in any particular case and generally any matter necessary to enable the High Court to exercise the power of revision vested in it by 5[Chapter XXX] of the Criminal Procedure Code.
47. Whenever an enhanced sentence is passed upon an accused on conviction on a charge within the terms of Section 75 of the Indian Penal Code the Sessions Judge should enter in the column for remarks the date of each previous conviction, the offence charged, and the sentence passed on each occasion.
48. When, in any case committed to the Court of Sessions, there is an interval of more than one month between the date of appearance of the accused or of his production before the Magistrate and the commitment of the case, the committing Magistrate shall, at the time of notifying the commitment, submit an explanation as to the delay, to the Chief Judicial Magistrate who shall forward the same to the Sessions Judge with his remarks therein with a note as to the action, if any, taken by him in case of any unreasonable delay. The Sessions Judge shall forward to the High Court, along with the Sessions statement, the explanation with his comments thereon.] [G.L. 1/34, G.L. 5/52, G.L. 6/52, G.L. 3/53, G.L. 1/56, G.L. 11/57, G.L. 4/58.]
Note—Any appearance or production of the accused before the submission of the final form under Section 173 of the Code of Criminal Procedure shall not be taken into account for the purpose of this rule.
49. (a) Sessions Judges, in all cases in which they may convict of culpable homicide not amounting to murder, shall invariably mention in their remarks on the trial, the circumstances under which the culpable homicide was held out to amount to “murder”.
(b) Sessions Judges shall invariably record their opinion whether the act by which death was caused was done with the intention of causing death,* or of causing such bodily injury as was likely to cause death, or with the knowledge that it was likely to cause death, but without any intention to cause death, or to cause such bodily injury as was likely to cause death†.
CHAPTER VIII
General Provisions as to Enquiries and Trials
50. In complaint cases, except those relating to offences mentioned in Section 195 of the Code of Criminal Procedure, the complainant/accused or his lawyer and in police cases and cases relating to offences mentioned in section 195 ibid, the public prosecutor or the assistant public prosecutor, concerned or the accused or his lawyer, as the case may be shall be required to make over to the
Bench Clerk not later than 11 a.m. during day sitting and 7 a.m. during morning sitting, a duly verified, dated and signed a list of witnesses who are in attendance for examination. The omission of the name of witnesses shall be no bar to such witnesses being examined if presented for examination, but no costs shall be allowed to any witness on account of his expenses for the days attendance if he is neither entered in the list nor actually examined.
Note 1—This rule is no way affects the obligation on the part of witnesses to attend punctually at the time for which they are summoned.
Note 2—Not only the names of witnesses entered in the lists mentioned in this rule but also of those who, though not so entered, are actually examined, will Penalty, imprisonment for life or imprisonment for a term which may extend to 10 years and fine.
Penalty, imprisonment of either description for a term which may extend to 10 years or fine or both. find entry in the register of the attendance of witnesses which is to be written up by the Bench Clerk.
51. The trial, when once commenced, should except for good and sufficient cause (to be noted in the order-sheet) proceed throughout the day on which it has been opened, and from day to day and throughout each day following until all the witnesses in attendance have been examined. [G.L. 4/54.]
52. All Courts should take care that officers who are about to proceed out of India, are examined, before their departure, in any pending criminal cases in which they are important witnesses.
53. Where the evidence of the Government expert in hand-writing cannot be obtained without undue delay and inconvenience other available evidence should be taken. The prolonged postponement of criminal trials for the purpose only of obtaining expert evidence of hand-writing should be discouraged. [G.L. 1/54, G.L. 2/65.]
CHAPTER IX
Mode of Recording Evidence—2[Chapter XXIII], Cr.P.C.
54. Deposition should be written on one side of the paper only, a margin of one-fourth of the sheet being left blank. Only one deposition should be written on each sheet of paper. [G.L. 9/22.]
Note—On account of scarcity of paper this rule should remain in abeyance till further orders. Depositions of witnesses may whenever practicable, be recorded on both sides of the paper.
55. Depositions shall be taken down in writing in the language of the Court, either by the Magistrate or Sessions Judge, with his own hand or from his dictation in open Court. The depositions so recorded shall be signed by the Magistrate or the Sessions Judge.
56. If a type writing machine be used by the Presiding Officer himself for the purpose of recording deposition and memoranda of evidence in criminal cases, a certificate must be given that this has been done. Each page of the record so made must be attested by the Presiding Officer’s signature.
57. Every Sessions Judge and Magistrate shall, in the examination of witnesses and accused persons, record in his own hand-writing in each deposition, or statement, the name of the person examined, the name of his or her father and, if a married woman, the name of her husband, the 2[nationality, religion], profession and age of the witness or accused person and the village, thana and district in which the witness or accused person resides 3[and in case the witness or accused person belongs to the Scheduled caste or Scheduled tribe, a statement to that effect]. The entry of age shall be the Presiding Officer’s own estimate and in his own handwriting.
Note—In recording the profession a general word like “service” should not be used. The precise nature of the service should be indicated.
58. (a) In depositions in which there may be any doubt, as to the exact meaning of any expression used and in which the doubtful expression has an important bearing on the offence with which the accused is charged, the words actually used should be 1[written] in order that the Court may be in a position to determine their exact signification.
(b) Should any instance occur in which a foreign language is used or in which the evidence may be delivered in a dialect to which a Judge may be unaccustomed, an interpreter may be employed.
59. All communications from witnesses regarding their attendance in the Court of Sessions should be addressed to the Government Prosecutor, or to the members of the legal profession appearing for the defence and laid by them before the Sessions Judge for orders. The orders passed thereon should be communicated to the witness through the same channel.
60. When several accused persons bearing the same or similar names are included in one trial, care should be taken in recording the evidence given by each witness, to specify the name of the father of the accused whenever the name of any one of them is mentioned.
61. When any person whose evidence is essential to the prosecution of a criminal charge against any accused persons, or to the proper investigation of an alleged crime with which no person has been specifically charged, may be in imminent danger of dying before the case comes to trial, the deposition of the dying person should, if possible, be recorded in the presence of such accused
person (if any), or of attesting witnesses, and in the event of his death, submitted at the trial with evidence of this fact.
CHAPTER X
Judgment and Sentence
62. Judgments should be written legibly and on one side of the paper only a margin of one-fourth of each sheet being left blank.
63. A type writing machine may be used for the purpose of recording judgments in criminal cases. The type writing machine must be used by the Presiding Officer himself and a certificate must be given that this has been done. In the alternative, type writing machine may be used to the dictation of the Presiding Officer and a certificate to the effect that the judgment has been dictated and corrected by him must be given. Each page of the record so made must be attested by the Presiding Officer’s signature. [G.L. 9/57, G.L. 7/65, G.L. 10/22, G.L. 1/39, G.L. 3/40, G.L. 4/43, G.L. 2/53, G.L. 2/55, G.L. 4/57, G.L. 6/60, G.L. 1/ 63, G.L. 3/65, G.L. 8/65, H.C. letter No. 5787–803, dated the 11th June, 1966.]
64. Whenever an enhanced sentence is passed on conviction on a charge within the terms of Section 75 of the Indian Penal Code, the Sessions Judge or Magistrate shall state in his judgment the date of each previous conviction and the sentence passed, as well as the particular offence charged.
65. When a Sessions Judge has occasion in any judgment, whether at sessions trial, or on appeal or in revision, expressly to condemn or to praise the action of the police or of any particular police officer, a copy of such judgment should be forwarded to the Magistrate of the district for his information. [G.L. 3/56.]
66. (a) Sessions Judges and Magistrates should forward to the Defence Department (Army Branch) of the Government of India copies of judgments of all cases in which Commissioned Officers have been tried for criminal offences. In the case of other ranks, it is not necessary to supply copies of judgments, but the Defence Department should be supplied with copies of the conviction and sentence only. Whenever a military pensioner is convicted and sentenced to imprisonment, a copy of the judgment should be sent by the Criminal Court concerned to the Deputy Controller of Military Pensions, Allahabad.
(b) In the case of a reservist of the Army who may be sentenced by a Criminal Court to imprisonment for any term exceeding three months, a report should be made to the Officer Commanding of the appropriate Reserve Centre. (Home Department letter no. F-1032-31-Judicial, dated the 2nd December, 1931.] A list of Reserve Centres will be found in Appendix VII.
67. Session Judges and Magistrates shall forward to the Registrar of the Council of Medical Registration, Bihar, free of charge, a copy of the judgment in all cases where a registered medical practitioner is convicted of any non-bailable offence. In other cases, when a judgment contains any unfavourable remarks on the professional conduct of a registered medical practitioner, whether accused in the case or a witness, a copy of the judgement, or relevant extracts therefrom, shall be sent if the Court pronouncing the judgment considers that the conduct of the registered practitioner has been such that it is desirable to call the attention of the Medical Council to it.
CHAPTER XI
Execution (Chapter 1[XXXII] Cr.P.C.)
68. In all cases where the accused is a soldier or person holding any rank in the army, the warrant for detention or imprisonment shall set forth accurately the rank of the prisoner, and the Regiment or Military Department to which he belongs.
69. Every Magistrate, when committing a prisoner to Jail, shall attach to the warrant of commitment a note in Criminal Process Form no. (M) 64, Volume II. When the prisoner is sentenced by a Court superior to that of a Magistrate, the Chief Judicial Magistrate] must arrange that this note be made by a competent officer, and be attached to the warrant.
70. (a) When a Magistrate passes an order to give security under 1[Section 122], Criminal Procedure Code, for a period exceeding one year and such security is not given on or before the date on which the period for which such security is to be given commences, he should commit the person against whom the order is made to prison, until the orders of the superior Court are received making the necessary modification in 1[Form no. 15 or 16 Schedule II], Criminal Procedure Code. When he receives the order of the superior Courts, he should, if the order is one to detain the person in Jail, issue a revised warrant in the terms of that order. The warrant will not, in such a case, be issued by the superior Court but by the Magistrate before whom the proceedings were instituted.
(b) Where a superior Court, on a reference being made to it under 1[Section 122 (2)], Criminal Procedure Code, directs release of the person detained, the warrant for release shall, as in the case of an appeal, be issued by the superior Court in 1[Form no. 17 of Schedule II] Criminal Procedure Code. [Form no. (M) 44, Volume II.]
71. When the record of a case tried at the Session is submitted to the High Court, the Sessions Judge shall call for (if necessary) and forward simultaneously all the police diaries connected with the case. He should also forward such of the material exhibits as in his opinion will be of importance at the hearing in the High Court and if any such exhibit is bulky he should ask for the instructions of the High Court. It is important to send any material exhibits directly connecting the accused with the crime. In murder and homicide cases all weapons, garments and other articles which are relied upon by the prosecution to prove the identity of the murderer or his victim should invariably be forwarded. Stolen property said to have been recovered and identified should also be forwarded. Such of the material exhibits as are not sent up with the record should not be returned or destroyed until the period for filing an appeal has expired, or, if an appeal is filed, until the appeal has been decided. [G.L. 1/35, G.L. 1/36, G.L. 2/43].
72. When the record of a case of culpable homicide amounting to murder is submitted to the High Court in connection with 2[Sections 366, 378 and 397] of the Code of Criminal Procedure the Sessions Judge shall also state whether the prisoner has funds or not to employ a pleader in the High Court for his defence and in the case of an appeal under 2[Section 378] or of a revision under 2[Section 397] of the Code of Criminal Procedure when notice has been given to the accused to show cause why the order passed should not be set aside, and sentence of death passed, the 2[Trial Court] shall in returning the notice, state thereon whether the accused has funds or not to employ a pleader in the High Court.
73. The date named by the Sessions Court in its warrant for the execution of a sentence of death shall not be less than twenty-one nor more than twenty-eight days from the date of the issue of such warrant.
74. When a prisoner has been committed to jail under two separate warrants, the sentence in the one to take effect from the expiry of the sentence in the other, the date of such second sentence shall in the event of the first sentence being remitted on appeal, be presumed to take effect from the date on which he was committed to jail under the first or original sentence.
75. All recommendations for remission or suspension of a sentence made under 2[Section 432] of the Code of Criminal Procedure, by an officer of any subordinate Court to the State Government, in regard to a convict whose case has been before the High Court on appeal, shall be made through the High Court.
76. In the case of a convict against whom an order is passed under [Section 356] of the Criminal Procedure Code, a copy of the order passed under that Section should be attached by the convicting Court to the warrant referred to in [Section 418] of the Code.
77. If in any case a claim is made to the property attached under 1[Section 421 (1) (a)], Code of Criminal Procedure, the ownership of such property must be determined by the Magistrate who issued the warrant, or his successor in office or the Magistrate in charge of the accounts.
78. When a Court of Sessions realizes a fine imposed by it on an accused person, it shall prepare the usual warrant for the realization of the fine, and shall forward it to the 1[Chief Judicial Magistrate] concerned with an endorsement thereon to the effect that the fine has been realized.
CHAPTER XII
Appeals—2[Chapter XXIX, Cr.P.C.]
79. Petitions of appeal against the sentence or orders of Sessions Judges, presented to officers in charge of jails shall be forwarded by such officers direct to the Registrar of the High Court, intimation of the fact being at once given, in each instance, to the Judge whose sentence or order is appealed against by sending him a copy of the letter [in Form no. (M) 18, Vol. II] addressed to the Registrar with a forwarding memo.
Note—Sessions Judges need not send the records of such cases to the High Court until they are requested to do so upon the admission of the appeal.
80. In the case of appeals preferred to the Court of Sessions by persons convicted by a Magistrate, the letter intimating the date fixed for the hearing and calling for the records of the case should be sent in Form (M) 14, Vol. II by the Sessions Judge to the trying Magistrate and in case of his absence to the Magistrate incharge or his successor-in-office, for compliance, with a copy to the
District Magistrate and the Chief Judicial Magistrate.
81. When an appeallate Court, or a Court of Revision direct the release of a prisoner on bail pending the hearing of an appeal or an application for revision, such Court shall send the warrant for his release on bail to the Court which passed the order under appeal or revision. If the Presiding Officer of the Court concerned is not there, then it shall be the duty of his successor-in-office or the officer-incharge of his Court, as the case may be, to comply with the order. The bail orders may also lay down the amount of bail, number and nature of sureties, etc. If any person is unable to furnish the bail required of him, the Court receiving the warrant for the release of the prisoner on bail shall forthwith return the same to the Appellate Court or Court of Revision which issued it, with an endorsement thereon to the effect that the prisoner is unable to furnish the bail. [G.L. 4/40, G.L. 1/53, G.L. 6/54.]
Note—In this behalf attention is drawn to General letter no. 3 of 1967 (Criminal).]
82. When an appeal has been disposed of, a copy of the judgment in appeal and of the order passed shall be forwarded to the Original Court.
83. (a) In every case in which a sentence is reversed the Appellate Court shall fill in the prescribed form of warrant of release on appeal, and shall send the same direct to the officer in charge of the jail in which the appellant is confined.
(b) In every case in which a sentence is modified on appeal the Appellate Court shall prepare a fresh warrant in the form reproduced in Vol. II as Form no. (M) 75, in accordance with the terms of the order passed and shall send the same direct to the officer in charge of the jail in which the appellant is confined. When the fresh warrant is returned with the endorsement of execution under 1[Section 430] Criminal Procedure Code, the Appellate Court shall forward it to the Court from the decision of which the appeal was preferred to be attached to the original record.
(c) The Appellate Court shall, at the same time when the release warrant or fresh warrant is issued recall and cancel the original warrant of commitment and this warrant as well as the release warrant when returned with an endorsement of execution shall be attached to the record of the original Court and returned to it therewith. [G.L. 5/40.]
(d) In the event of the conviction and sentence being set aside and a retrial ordered the Court directing the retrial shall communicate its order to the Jail authorities with a view to the necessary action being taken under rule 513 of the Jail Code. [G.L. 4/40].
84. Judicial Officers are prohibited from sending by telegraph orders to officers in charge of jails for the release of prisoners in their custody.
85. Irrespective of the procedure prescribed in rule 83 above the Appellate Court shall, for the information of the appellant, notify to the officer in charge of the jail in which such appellant is confined the result of his appeal. The notification shall be made in Form no. (M) 17, Vol. II.
86. Judicial Officers must understand that this notice is intended solely for the communication of the result of the appeal to the appellant, and in no way relieves them from the duty of issuing revised warrant when such are necessary.
Proviso 1.—Provided that, where an accused has been admitted to bail pending the hearing of his appeal the original warrant of commitment shall after being returned by the Jail authorities to the Court which issued it, be forwarded to the Appellate Court.
(1) In every case in which a sentence is reversed on appeal, the Appellate Court shall return the original warrant, with a copy of its order, to the Court by which the accused was admitted to bail with direction to discharge him.
(2) If the conviction and sentence are set aside and a retrial of the accused is ordered by the Appellate Court, that Court shall return the original warrant together with its order on the appeal 2[x x x x] to the Court which tried the case, with directions to retry the prisoner for the offence charged.
(3) In every case in which a sentence is modified on appeal, the appellate Court shall prepare a fresh warrant [in Form no. (M) 75, vol. II] and shall forward the same with the original warrant and with a copy of its order, to the Court by which the accused was admitted to bail, with directions to take measures to secure his surrender and commitment to jail on the modified warrant.
(4) In every case in which a sentence is confirmed on appeal the Appellate Court shall return the original warrant, with a copy of its order, to the Court by which the accused was admitted to bail, with directions to take measure to secure his surrender and re-commitment to jail on the original warrant. In each of the last above mentioned cases, it shall be the duty of the Court to which the accused surrenders to his bail to endorse on the warrant the dates of his release on bail and of his subsequent surrender. The copy of the order of the Appellate Court referred to in clauses (1) to (4) of this proviso shall be in Form no. (M) 17-A, Vol. II, and shall be prepared and despatched immediately after the order has been passed, without waiting for the judgment, a copy of which shall be sent to the Court concerned as soon as it is prepared. A direction by the Appellate Court to take measures to secure the surrender of an accused and his re-commitment to jail on an original or on a
modified warrant shall be carried out by the Court or Magistrate to whom it has been issued without any delay.
Note—The bail-bond, if any, must invariably accompany the copy of the order.
Proviso 2.—Provided also that where an accused surrenders to his bail in the Appellate Court, such Court, in every case in which the sentence is reversed on appeal, shall discharge him; and in every case in which the sentence is modified or confirmed on appeal, such Court shall forward the accused in charge of a Police Officer, with the modified or the original warrant, to the District
Magistrate, with direction to commit him to custody as in cases (3) and (4) of Proviso 1.
Note—Wherever a Sessions Division consists of more districts than one, the District Magistrate in this proviso shall be held to be the Magistrate of the District in which the Sessions Court is sitting for the hearing of appeals.
87. The Court to which the judgment of the High Court may have been certified for the purpose of giving effect thereto will be guided by the above rules (82 to 86). Except when the High Court otherwise directs, the lower Court shall issue the warrant of release or modification of sentence. [G.L. 5/40.]
Note—When an appeal is preferred to the High Court against the conviction and sentence passed by the Sessions Judge and the prisoner is admitted to bail the original warrant in case of reversal or modification of the sentence should be returned by the Magistrate to the Sessions Judge to be filed with the Sessions record.
88. Where the High Court simply modifies a sentence passed by a Sessions Judge without change of Section, and where the High Court passes a new sentence by changing the conviction Section or the punishment Section, or otherwise, the sentence finally passed shall count, unless especially otherwise directed, from the first day of imprisonment under the original sentence. [Reproduced
in Rule 523 of the Jail Code.]
CHAPTER XIII
Reference and Revision—1 [Chapter XXX] Cr.P.C.
89. The Magistrate of district must be deemed in respect of his judicial functions and in this respect only to be subordinate to the Sessions Judge.
90. Sessions Judges are to be guided by, but not to go beyond the following instruction in communications with the Executive Magistrates. District Magistrates are to comply with all requisitions made by Sessions Judges with regard to any case appealable to or revisable by them. The District Magistrates are also to render any explanation which the Sessions Judges may require from them and to obtain and submit any explanation which Sessions Judges may require from the Executive Magistrates.]
91. When the record of a proceeding in the Court of Executive Magistrates is called for by the Sessions Judge under Section 397, Criminal Procedure Code, it shall always be done through the District Magistrate. If the case relates to the Court of Judicial Magistrate, the record shall be called for from that Court.]
92. Every application under Section 397 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) shall be accompanied with an affidavit stating whether an application on the same facts and against same judgment or order had been previously filed before the High Court or the Sessions Judge on behalf of all or any of the petitioners, and if so with what result.]
93. 2[* * * * *]
94. 2[* * * * *]
CHAPTER XIV
Lunatics—3[Chapter XXV], Cr.P.C.
95. The following is suggested as a suitable form of finding of acquittal on the ground of insanity—
“The Court finds that ………… did kill ………… by striking him on the head with a club, but that, by reason of unsoundness of mind, he was incapable of knowing that he was doing an act which was wrong or contrary to law, and that he is not therefore guilty of the offence specified in the charge, viz, …………; and the Court directs that the said (…………) be acquitted, and that, under the provisions of 3[section 335], Criminal Procedure Code the said (…………) be kept in sate custody in the …………”.
CHAPTER XV
Commissions for Examination of Witnesses—Chapter XL, Cr.P.C.
96. 4[* * * * *]
97. When the evidence of a Gazetted Officer of the Mint or the Indian Security Press is required as to the genuineness or spuriousness of a coin or currency note, the Court concerned should ordinarily send the coin or the currency note to the Master of the Mint or the Controller of paper currency as the case may be, under cover of the Court seal or by a messenger whose evidence can
afterwards be taken. The experts at the Mint and in the Currency Department are much engaged and it is not always possible for one of them to attend on the date fixed by the Court. The Court should consider the desirability of issuing a commission for their examination instead of summoning them. [G.L. 2/23, G.L. 1/43.]
98. The instructions contained in Rule 97 shall apply mutatis mutandis to the articles to be sent for examination by a Gazetted Officer of the office of the Controller of Stamps and Stationery and also to the examination on commission of such officer with regard thereto. [G.L. 1/26, G.L. 5/44.]
CHAPTER XVI
Special Rules of Evidence—2[Chapter XXIII], Cr.P.C.
99. 3[* * * * *]
100. As soon as evidence under 2[Section 299], Cr.P.C. have been recorded or the trial has been separated, particulars thereof shall be noted in the register in Form no. (R) 5A, maintained in the Court for the purpose, and intimation thereof with necessary details shall be sent by the Courts concerned to the [Subdivisional Judicial Magistrate] and the Sessions Judge for being noted in the registers maintained in their respective offices. The Subdivisional Magistrate shall call for a report from Police concerned as to the action taken and forward a copy thereof with his comments thereon to the Sessions Judge at the end of each quarter. This report together with the register in Form (R) 5-A, shall be put up before the Sessions Judge at an interval of three months for necessary orders.
CHAPTER XVII
Disposal of Property—4 [Chapter XXIV], Cr.P.C.
101. (a) Criminal Courts in marking orders under 4[Sections 452, 457 or 458] of the Criminal Procedure Code for the disposal of counterfeit coin, should consider whether the coin should not be forwarded to the nearest Treasury or Sub- Treasury Officer with directions to him to deal with it in a manner similar to that prescribed by rule 1* of the Rules issued by the Government of India, in the Department of Finance and Commerce**. * When it can be done with the consent of the tenderer, counterfeit coins tendered to Treasury Officers and others authorised to cut or break them under the provisions of section 16 of Act III of 1906 should be sent to the Mint at Calcutta or Bombay. If the tenderer, however, does not consent to the counter-feit coin being sent to the Mint,
unless the broken pieces are afterwards returned to him, the coin should not be sent at all. It is however open to all Government Officers, to whom such a coin is tendered in cases in which the tenderer is otherwise unwilling to part with it to purchase it from him at a suitable price, not in any case exceeding its nominal value charging its cost to Government. This course should only be followed when from the excellence of the execution, or for any other special cause, it seems desirable that the coin should be acquired as a specimen, and the officer purchasing the same should, when forwarding is to the Mint, state at the same time the grounds upon which its purchase was considered desirable.
** Now “Commerce and Industry”.
(b) The above instructions should be held to apply also to any implements such as dies, moulds, etc., used in coining. When in any case, such coins or implements are forwarded to a Treasury Officer a copy of the judgment delivered in the case with which they are connected, should at the same time be forwarded to that officer.
CHAPTER XVIII
Miscellaneous—Chapter XLVI, Cr.P.C.
102. The following rules have been made by the Governor-General in Council under sub-section (1) of Section 549 of the Code of Criminal Procedure, 1898 (Act V of 1898), and in supersession of the notification of the Government of India in the Home Department no. 817, dated the 23rd May, 1902 (vide Home Department notification no. F-465-28, dated the 27th June, 1928), as to cases in which persons subject to military or air force law shall be tried by a Court to which the said Code applies, or by a Court-Martial, namely:—
1. Where a person subject tomilitary or air force law is brought before a Magistrate and charged with an offence for which he is liable, under Section 41 of the Army Act or under Section 41 of the Air Force Act, as the case may be, to be tried by a Court-Martial, such Magistrate shall not proceed to try such person, or to issue orders for his case to be referred to a Bench or to inquire with a view to his commitment for trial by the Court of Sessions ***, for any offence triable by such Court, unless—
(a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military or Air force authority, or
(b) he is moved thereto by such authority.
2. Before proceeding under clause (a) of rule 1 the Magistrate shall give notice to the Commanding Officer of the accused and, until the expiry of a period of five days from the date of the service of such notice, he shall not—
(a) acquit or convict the accused under sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (Act V of 1898), or hear him in his defence under Section 244 of the said Code; or
(b) frame in writing a charge against the accused under Section 254 of the said Code; or
(c) make an order committing the accused for trial by the High Court or the Court of Sessions under Section 213 or sub-section (1) of Section 446 of the said Code; or
(d) issue orders under sub-section (1) of Section 445 of the said Code, for the case to be referred to a Bench.
3. Where within the period of five days mentioned in rule 2, or at any time thereafter before the Magistrate has done any act or issued any order referred to in that rule, the Commanding Officer of the accused gives notice to the Magistrate that, in the opinion of competent military or air force authority, as the case may be, the accused should be tried by a Court-Martial, the Magistrate shall stay proceedings and, if the accused is in his power or under his control, shall deliver him with the statement prescribed by Section 549 of the said Code, to the authority specified in the said Section.
4. Where a Magistrate has been moved by competent military or air force authority, as the case may be, under clause (b) of rule 1, and the Commanding Officer of the accused subsequently gives notice to such Magistrate that, in the opinion of such authority, the accused should be tried by a Court-Martial, such Magistrate, if he has not before receiving such notice done any act or issued any order referred to in rule 2, shall stay proceedings and, if the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed in Section 549 of the said Code to the authority specified in the said Section.
5. Where an accused person, having been delivered by the Magistrate under rule 3 or 4, is not tried by a Court-Martial for the offence of which he is accused, or other effectual proceedings are not taken or ordered to be taken against him, the Magistrate shall report the circumstance to the State Government.
6. In these rules ‘competent military authority’ means the Brigade Commander, and ‘competent air force authority’ means the Air Officer Commanding, Air Force in India.
103. For rules framed by Government under Section 565 (3), Criminal Procedure Code, 1[see] Bengal Government notification no. 313-J., dated the 14th January, 1902.
103-A. In the matter of application of Rules 102 and 103, the provisions of Section 484 (2) (b) of the Criminal Procedure Code (Act 2 of 1974) may be seen.]
PART II
Rules regarding Practice and Procedure under Special Acts.
CHAPTER I
The Indian Oaths Act, X of 1873
RULES FRAMED BY THE HIGH COURT
104. The following forms of oaths and affirmations are prescribed by the High Court of Judicate at Patna under Section 7, Act X of 1873.
FOR WITNESSES
Oath
I swear that the evidence which I shall give in this case shall be true, that I will conceal nothing, and that no part of my evidence shall be false.
So help me God.
Affirmation
I solemnly declare that the evidence which I shall give in this case shall be true, that I will conceal nothing, and that no part of my evidence shall be false.
FOR INTERPRETERS
Oath
I swear that I will well and truly interpret, translate and explain all questions and answers, and all such matters as the Court may require me to interpret, translate and explain.
So help me God.
Affirmation
I solemnly declare that I will well and truly interpret, translate and explain all questions and answers, and all such matters as the Court may require me to interpret, translate, or explain.
So help me God.
Comments & Case law
Non reasoned conclusions by appellate Courts are not appropriate, more so when views of the lower Courts are differed from. In case of concurrence, the need to again repeat reasons may not be there. It is not so in case of reversal. Reason is the heart beat of every conclusion. Without the same, it becomes lifeless. (See Para. 19 ) Raj Kishore Jha vs. State of Bihar, AIR 2003 SC 4664 : 2003(11) SCC 519 : 2003 Cr.LJ 5040.
A false statement before the Court whether on affidavit or not is not to be treated lightly. The Court acts on the basis of the statement made by a party to the lis. (Para. 63) A person should not be permitted to take advantage of his own wrong. He should either stand by his statement made before a Court of law or should explain the same sufficiently. In absence of any satisfactory explanation, the Court will presume that the statement before a Court is correct and binding on the party on whose behalf the same has been made. (See Para 64) Sushil Kumar vs. Rakesh Kumar, 2004(1) PLJR SC 261 : 2004(1) BLJR 261 (SC) : 2004(2) BBCJ 98 (SC). The golden thread which runs through the web of administration of justice in Criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of justice is prevented. (Para 12 ) Mani Pal vs. State of Haryana, AIR 2004 (SC) 2158 : 2004(10) SCC 692 : 2004 SCC (Cr.) 1882.
Appeal was dismissed on 26-12-2003. The Order indicated that the reason would be given subsequently as the High Court was closing for winter holidays and as there was paucity of time. The Supreme Court deprecated such practice as there was no perceivable reason for hurry. Zahira Habibullah H. Sheikh vs State of Gujrat, 2004Cr.LJ 2050 : ( 2004) 4 SCC 158.
! Appeal against conviction-Filed by one of the two accused persons— Conviction of appellant set aside—Conviction of non appellant accused has also to be set aside—Co accused is entitled to same benefit in spite of fact that he did not file appeal. (See Para 6) 1996(1) BLJ 843, Ajit Singh vs. State of Haryana, 1996(3) SCC 335 : 1996 SCC (Cr.) 481.
! Inherent concept of Court having jurisdiction over specific territory and not beyond it, is indeed essential for the very maintenance of the comity of the courts. The concept of territoriality is inherent in the justice system and the more so in the realm of criminal jurisprudence. Zafrul Hassan vs The State. 1986 BLJ 367 (FB) :AIR 1986 Pat 194: 1986 BLJR 298: 1986 PLJR 274: 1986 Cr. LJ 605.
105. Christian witnesses and interpreters to whom oaths are administered are to be sworn upon the New Testament.
106. In other cases the oaths are to be administered upon such symbol, or accompanied by such act, as may be usual, or as such witness or interpreter may acknowledge to be binding on his conscience.
CHAPTER II
The Reformatory Schools Act
107. For rules under the Reformatory Schools Act—vide Bihar and Orissa Government’s no. 197-201-J., dated the 29th January 1917, circulating “Summary of orders relating to the treatment of juvenile offenders” and also the Reformatory Schools Act Manual, issued by the Local Government. [G.L. 5/63.]
CHAPTER III
The Indian Stamp Act, II of 1899
108. (a) When a Judicial Officer sees reason to doubt the genuineness of a stamp filed before him, the stamp should be forwarded to the Collector of the district, who will examine it, and satisfy himself, if possible, as to its character, reporting the result to the officer sending it.
(b) Care should be taken to retain an examined copy of any document bearing a stamp which may be forwarded to the Collector under the above orders.
PART III
Records
CHAPTER I
Arrangements of Records of Criminal Proceedings
109. “Record-room” is a room set apart for the storage of decided cases and “Record-keeper” is the ministerial officer in immediate charge of such records.
A.—RECORDS OF COURTS OF SESSION
110. Every record of a Court of Sessions shall consist of two files, to be styled and marked respectively File A and File B.
111. File A shall contain the following papers which shall be arranged in the following orders—
(1) Title-page*
(2) Table of Contents*
(3) Order-sheet
(4) Papers showing how the proceedings were initiated together with any sanction to the proceeding granted under sections 195, 196 or 197, Criminal Procedure Code [that is to say : the complaint, first information to the Police, or order of the Magistrate under Section 190 (1) (c) on which the proceedings were taken], the final report of the Police *The Title-page and the Table of Contents in records of Courts of Session should invariably be written up in English and in the combined form prescribed under Section 173 of the Criminal Procedure Code and the order of
commitment. 1[* * * * *]
(5) The charge under which the trial has been held, amended or otherwise : with a record thereon that is has been read and explained to the accused, and the plea of the accused.
(6) Any documents or document connected with the offence charged, or in respect of which the charge is made, e.g., the statements made by the accused, which form the subject of a charge of giving false evidence, document said to be forged, etc.
(7) List of articles connected with the offence, which have been proved and exhibited, but which cannot be attached to the records; e.g., any weapons used in the commission of any offence against the person, stolen property in an offence against property, counterfeit coin and materials for counterfeiting, etc.
(8) (a) The deposition of the witnesses for the prosecution examined at the trial in chronological order, except that when a witness has been cross-examined, or re-examined, in a later stage of the
proceedings, such cross-examination, or re-examination, shall be attached to his original deposition.
Note—When a witness has been cross-examined under Section 145 of the Evidence Act, for the purpose of contradicting him as to previous statements made by him in writing or reduced into writing (e.g., deposition taken during the enquiry before the Magistrate), such statements shall be filed in the record immediately after the deposition of the witnesses to which these relate. Every such statement, when proved, shall be marked by the Court in a series of its own which shall be noted in the order-sheet, but need not be included in any list.
(b) The depositions of witnesses who are absent at the trial, which are admitted under Section 33 of the Evidence Act, or 2[Section 299] of the Criminal Procedure Code or otherwise, e.g.,
Depositions of witnesses taken on commission; Dying declarations admitted in evidence;
(9) Deposition of a medical witness admitted under 2[Section 291], Criminal Procedure Code.
(10) Report of the Chemical Examiner, or Assistant Chemical Examiner to Government, admitted under 2[Section 293], Criminal Procedure Code.
(11) Any confession, or statement of the accused recorded under Section 164, Criminal Procedure Code, and admitted in evidence.]
(12) The examination (if any) of the accused before the Sessions Court.
(13) Any written defence that may be laid before the Court.
(14) The depositions of the witnesses examined for the defence in chronological order.
(14A) Written Memorandum of argument, if any, submitted under Section 314 of the Code of Criminal Procedure.]
(15) The judgment and final orders.
(16) If the trial involves a charge of previous convictions, the evidence for the prosecution to prove such convictions and the evidence for the defence, if any, and the final judgment and order as provided in clause (15).
(17) Copy of the judgment, or order of the Appellate, or Revisional Court.
(18) Warrant returned after execution by the Jail Authorities.
(19) If the sentence has been remitted in whole, or in part, by the President, or the Governor, a copy of the order of remission.
112. File B shall contain—
(1) Title-page,*
(2) Table of Contents,* and
(3) All other papers not included in File A, except documents admitted as evidence during the trial, that is, exhibits, which are dealt with in a separate rule.
B.—MAGISTRATES’ RECORDS
Warrant and Summons Cases
113. The record of every Warrant or Summons case tried by a Magistrate shall consist of two files, to be styled and marked, respectively as File A and File B.
114. The following papers shall be included in the File A in the following order—
(1) Title-page.†
(2) Table of Contents.†
(3) Order-sheet.
(4) Papers showing how the proceedings were initiated together with any sanction to the proceedings granted under Sections 195, 196 or 197 of the Criminal Procedure Code, that is to say, the petition of complaint, the first information, or other report to the Police or order of the Magistrate under Section 190 (1) (c), Criminal Procedure Code, on which the proceedings were taken, and, if there has been a police investigation, the final report of the Police under Section 173 of the Criminal Procedure Code. [G.L. 1/57.]
(5) Statement, if any, of the accused under 2[Section 252], Criminal Procedure Code, in Summons cases—For Summons cases only.
(6) (a) Deposition of witnesses for the prosecution examined at the trial in chronological order, except that, when a witness has been cross-examined, or re-examined in a later stage of the
proceedings, such cross-examination, or re-examination shall be attached to his original deposition.
(b) Deposition of witnesses who are absent at the trial, which had been admitted in evidence under Section 32 of the Evidence Act, or otherwise.
(7) Report of the Chemical Examiner or Assistant Chemical Examiner to Government admitted under 1[Section 293] Criminal Procedure Code, in Warrant cases—For Warrant cases only.
(8) List of articles connected with the offence which have been proved and exhibited but which cannot be attached to the record, e.g., any weapons used in commission of an offence, stolen property, etc., etc.
(9) The charge with a record thereon that it has been read and explained to the accused and plea of the accused in Warrant cases—For Warrant cases only.
(10) Any document or documents, connected with the offence charged, or in respect of which the charge is made, e.g., statements made by the accused, which form the subject of a charge of giving false evidence, etc.—For Warrant cases only.
(11) Any confession or statement made by the accused before a trial and recorded under Section 164, Criminal Procedure Code—For Warrant cases only.
(12) Examination of the accused under 1[Section 254], Criminal Procedure Code, in Summons cases or under 1[Section 313] Criminal Procedure Code, in Warrant cases and any written statement filed by the accused during the trial.
(13) The deposition of the witnesses examined for the defence in chronological order.
(13A) Memorandum of argument, if any, submitted under Section 314 of the Code of Criminal Procedure.]
(14) Judgment, finding and sentence.
(15) Copy of the judgments or order of the Appellate or Revisional Court or Courts.
(16) Warrant returned by the Jail authorities after execution of sentence.
(17) Any petition, or other paper bearing on the offence charged and material to elucidate, or justify the decision in Warrant cases—For Warrant cases only.
(3) All other papers not included in File A, except documents admitted as evidence during the trial, that is, exhibits which are dealt with in a separate rule.
Complaints dismissed under Section 203, Criminal Procedure Code
116. (a) It shall not be necessary to prepare a title-page, table of contents, or order-sheet in the case of complaints dismissed under Section 203, Criminal Procedure Code, in respect of which no enquiry is made under Section 202, ibid, but such complaints (with the order passed thereon), shall be formed into weekly, monthly, or quarterly files as may be most convenient and each such file shall constitute one record, to which shall be attached a title-page and a table of contents. Of each file or record thus formed a single entry shall be made in the list which accompanies all records sent to the District Record Room. These files shall be preserved for one year from the date of the latest order in each.
(b) No title page and table of contents need be attached in the cases under the Municipal and District Board bye-laws nor in those under Section 34 of the Police Act.
117. 1[* * * * *]
118. 1[* * * * *]
Summary Trials
119. In cases tried summarily, the A file should contain only the form of summary trial kept under Section 263 or 264 of the Criminal Procedure Code, and whatever else the Court may record under the provisions of these Sections; and all other papers connected with the trial, should be placed in the B file. In the absence of express orders to the contrary, the A file alone should be forwarded to a Court of Appeal, or Revision. In the case of such records, no title-page, table of contents, or order-sheet need be prepared.
Miscellaneous Inquiries
120. The rules relating to the records of Summons cases shall apply to the records of Inquiries under Section 107, Criminal Procedure Code and to such other proceedings as, under the Code, the procedure applicable to Summons cases applies; and the rules relating to the records of Warrant cases shall apply to the records of Inquiries in other cases, with such modifications in details as the
circumstances of such cases may require.
C.—RECORDS OF APPELLATE AND REVISIONAL COURTS
121. The record of the Appellate or Revisional Court shall be arranged in the same way as that of the Court of Original Jurisdiction, except that there shall be no separate B file, the papers which would belong to the B file being attached to the A file.
D.—EXHIBITS
Note 1—These rules apply to the records of all Courts.
Note 2—For rules as to return of exhibits see rules under Chapter V “preservation and destruction of records”.
(a) Documents Exhibited as Evidence
122. The Courts shall mark the documents which are admitted as evidence on behalf of the prosecution, with figures in the order in which they are admitted, thus—
Exhibit 1, Exhibit 2, etc., etc., and the documents admitted as evidence on behalf of the defendant with capital letters, thus—
Exhibit A, Exhibit B, etc., etc.
123. When a number of documents of the same nature are admitted, as for example a series of receipts for rent, the whole series shall bear one number or capital letter, a small number, or small letter being added to distinguish each paper of the series thus—
Exhibits 11, 12, etc., etc.
Exhibits Aa, Ab, etc., etc.
124. A list of the documents admitted in evidence on behalf of the prosecution, and another list of documents admitted in evidence for the defence, shall be prepared by the clerk of the Court and signed by the Judge/Magistrate. The documents shall be entered in these lists in the order in which they are admitted and marked. [For form of list see Form no. (M) 22, Volume II.]
125. Whenever a document used in evidence is withdrawn, either before or after judgment, a note of the fact shall be made in the column of remarks, stating also whether a copy has, or has not, been substituted.
126. Documents admitted as evidence at the trial and not included in file A, shall not be shown in the table of contents of that file, but shall be placed in a separate or supplementary file to which it is to be attached to the list referred to in rule 124. This file will include not only documents produced for other purpose, but also documents used to refresh the memory of witnesses, e.g., reports of a medical witness, etc.
127. If a witness has given his evidence on a conditional pardon, the proceedings under which pardon was tendered and accepted, and any statement of the witness recorded by the Magistrate, 1[x x x x] shall be included in this file.
(b) Documents not Admitted as Evidence
128. Documents which have not been admitted in evidence should not be made part of the record unless the Court directs otherwise. They should, immediately on the conclusion of the trial, be returned to the person producing them or his mukhtar or pleader after he has signed the receipt for the same in the appropriate column of the list [Form no. (M) 22A]. A mukhtar or pleader, when required to do so is bound to take back any document produced by his client which has not been admitted into evidence and to sign the receipt referred to above.
(c) Articles Exhibited as Evidence
129. When any article connected with the offence charged is produced in a Criminal Court and, after being proved, is admitted in evidence it shall be marked by the Court with a Roman Numeral, thus—
Exhibit I, II, III, etc.
130. A list of such articles admitted in evidence shall be prepared by the clerk of the Court, and shall be signed by the Judge/Magistrate. The articles shall be entered in the list in the order in which they are admitted and marked. [For form of list see Form No. (M) 22, Volume II.]
131. No article which has been admitted in evidence, shall be returned, or destroyed until the period for appeal has expired, or until the appeal has been disposed of, if an appeal be preferred against the conviction and sentence.
132. Whenever an article, which has been admitted in evidence is returned, or destroyed, a note of the fact shall be made in the column for remarks.
E.—GENERAL RULES
133. In every case, papers shall, as far as possible, be attached to the file to which they belong, as the trial proceeds, and shall be arranged in the order in which they are brought before the Court. The necessity of sorting papers in the Record-Room must be avoided.
134. To each file of every record there shall be prefixed a combined titlepage and table of contents in Form No. (M) 21, Volume II. 1[x x x x]
135. The Table of Contents will be in the following form and should be written up in the manner indicated below—
Note—The above form is reproduced in form no. (M) 21, Volume II.
Column 1 will give the consecutive number of the different papers in the file. The sheets in the file shall be numbered consecutively, and column 2 which should be kept blank until and filled in after the file is complete, will give the consecutive numbers of the sheets. Columns 1, 3 and 4 will be filled in as the trial proceeds and in column 5 the Record-keeper will enter the number of years for which each paper on the record is to be preserved according to the Rules for the preservation and destruction of records.
CHAPTER II
The Order-sheet
A.—Order-sheet for Sessions Courts
136. An Order-sheet in Form no. (M) 20, Volume II, shall be used in all Sessions trials, and shall form part of the record of each trial.
137. The Order-sheet shall contain a complete record, in chronological order, of the proceedings, from the commencement to the conclusion of the trial, and every order passed during the trial. It may be written by the clerk of the Court, but shall be signed, at the end of the proceedings on each day, as well as on the conclusion of the trial, by the Sessions Judge, after he has satisfied himself of the correctness of all the entries made therein. 1[* * * *]
138. It shall contain—
(1) An abstract of the charge or charges, and, if any amendments are made by the Sessions Judge under 2 [Section 216] Criminal Procedure Code, a note of that fact.
(2) A note of the fact that the charge has been read out, and explained to the accused, and a note of his plea.
(3) Deleted.
(4) Deleted.
(5) A note stating by whom the case is opened, and, if any preliminary objections are taken, the substance of such objections, with the orders passed thereon.
(6) The names of the witnesses for the prosecution, as they are examined.
(7) Particulars of any documentary evidence, or articles, admitted in evidence for the prosecution, with a note if any tendered in evidence and rejected, as well as the order passed.
Note—This should include any examination, or confession, of the accused or of any of the accused.]
(8) If the accused has been examined, a note of the fact, and whether, on being asked, he has stated that he means to call evidence 2[Section 233].
(9) A note of the fact that the prosecutor sums up his case (as the case may be) before, or after any defence made 3[Sections 233, 234].
(10) If accused or his pleader addresses the Court, a note of such fact.
(11) The names of any witnesses examined for the defence, and particulars of any documentary evidence, or articles, admitted for the defence.
Note—If any are rejected, the order should be here set out.
(12) If the prosecutor replies, the fact should be noted.
(13) Deleted.
(14) A note of the final order, or sentence, passed. And if a sentence of death be passed, a note of the fact that the accused has been informed of the period within which he can appeal 3[Section 363, Criminal Procedure Code.]
(15) Deleted.
B.—Order-sheet for Magistrates’ Courts
139. A form of Order-sheet in Form No. (M) 19, Volume II, is to be used by all Magistrates subordinate to the High Court, and it shall form part of the record of each trial. 1[* * *]
140. The Order-sheet shall include every interlocutory order, from the date of complaint, or 2[the date on which the F.I.R. as received in the office of the [Magistrate concerned] is laid before him, and shall also contain the substance of the final order. [G.L. 1/50, G.L. 1/58, G.L. 1/59]
141. Each order entered in the order-sheet shall bear serial number be signed by the Magistrate.]
CHAPTER III
Inspection of Record
142. No record not deposited in the Record Room shall be inspected without the permission of the 4[Court concerned].
143. The 4[Court concerned] may either in his presence or in the presence of a clerk deputed by him for the purpose allow inspection of any such record to public officers, pleaders and mukhtars in the case subject to the general conditions laid down for inspection of records in the Record Room (vide Chapter VI, rule 158 post).
CHAPTER IV
The transmission of Records to the District Record-Room
144. With the exception of proceedings before the Court of Sessions, the records of which will be kept in the Record Room of the Sessions Judge, the records of all criminal proceedings will be kept in the Record Room of the Magistrate of the district.
Note—Records received from the committing Court shall, for the purpose of depositing in the record room, be treated as part of the Sessions record.
145. The records of all decided cases shall be forwarded to the District Record Room by Magistrates, at headquarters, in the course of the next month, and by Magistrates, at Subdivisions, in the course of the fourth month succeeding that in which they were decided. [H.C. memo no. 4331–64, dated 21st April, 1966.
146. The District Magistrate shall fix the dates on which the records from each Court shall be despatched to the District Record-Room endeavouring so to fix the dates that too many records shall not reach the Record Room at one and the same time.
CHAPTER V
Preservation and Destruction of Records and Return of Exhibits
147. A list in Form No. (R) 13, Volume II, shall accompany all records sent by Magistrates to the District Record Room and a list in Form No. (R) 14, Volume II, shall accompany all records sent to the Sessions Judge’s Record Room. One list only shall be prepared for the record of all the four classes into which the cases have been classified under rule 150. The records of cases mentioned in
provisos to rule 150 shall be entered in a separate list.
148. These lists must be uniform in size and shape and shall be bound up from time to time, so as to constitute catalogues of the records sent to the District Record Room and the Record Room of the Sessions Judge, respectively. They shall be preserved for the same period as the record to which they relate.
149. The lists required by rule 147 shall contain an entry of every case disposed of during the period to which they relate and be prepared in duplicate by means of Zanetic (pen) carbon paper. One copy of each list shall be forwarded with the records. The duplicate copy shall be sent to the Judge or Magistrate in charge of the Record Room under a separate cover and will be returned to the
issuing Court duly signed by the Record-Keeper who shall acknowledge that the records have been received. These duplicate copies shall, on return, be preserved by the issuing Court for 1[three years] from the dates of despatch of the original copies to the Record Room.
Note 1—In every list, entries shall be serially numbered. Care should be taken to correct the classification of records as shown in the lists when this becomes necessary owing to the convictions being modified or set aside by higher Court.
Note 2—A note shall be made against each entry in the list of records mentioned in the provisos to rule 150 if and when destruction is carried out.
150. The period for which the records shall be preserved, such period being calculated from the date of the final judgment or order in each case, shall be as follows [G.L. 8/44]—
Class I—To be preserved for 14 years
(a) Files A and B of Sessions and Magistrates’ cases in which the accused has been acquitted or convicted of offences punishable under Sections 392 to 402, Indian Penal Code, inclusive.
(b) Files A and B of proceedings under Sections 109 and 110, Criminal Procedure Code.
(c) File A of Sessions cases other than those mentioned in (a) above, resulting in the conviction of the accused.
(d) File A of non-bailable Magistrate’s cases other than those mentioned in (a) above resulting in the conviction of the accused.
(e) File A of appeals and applications for revision against judgment or orders passed by Magistrates in cases (a), (b) and (d).
Class II—To be preserved for five years
(a) File A of possession cases under 1[Chapter X] Criminal Procedure Code.
(b) File A of security cases under Chapter VIII, Criminal Procedure Code, other than those mentioned in I (b) above.
(c) File A of appeals and applications for revision in respect of the cases mentioned in (a) and (b) above.
(d) File ‘A’ of cases where after an enquiry in the manner prescribed under the proviso to Section 202 (2) of the Code of Criminal Procedure a Magistrate has passed an order dismissing the complaint under Section 203 or where a Court of Sessions has passed an order of discharge, under Section 227, Criminal Procedure Code.]
Class III—To be preserved for two years
(a) Files A and B of other miscellaneous cases.
(b) Files A and B of Magistrates’ bailable cases.
(c) File A including B papers of appeals and applications for revision in respect of cases mentioned in (a) and (b) above.
(d) File B of cases mentioned in classes I and II, excepting cases in I (a) and (b).
Class IV—To be preserved for one year
(a) Files A and B of cases 2[excepting cases referred to in class II (d) above, in which Magistrate has declined to issue process.
(b) Files A and B of cases in which a Magistrate has passed an order of discharge under 1[Section 118 or 245 or 249], Criminal Procedure Code.
(c) Files A and B of cases in which the accused has been acquitted, excepting the cases referred to in class I (a) above.
(d) Cases in which the accused has been executed under a capital sentence, except in cases in which such sentence has been passed under Section 396, Indian Penal Code, vide Class I (a) above.
Proviso 1.—Provided that the following records shall be treated as permanent—
(i) The record of any case in which any of the accused or parties proceeded against has not been apprehended.
(ii) File A or form of summary trial under Section 263, Criminal Procedure Code, as the case may be, in cases in which the accused has been convicted of an offence, a repetition of which renders the offender liable to enhanced punishment.
(iii) Record of any case in which an order for maintenance has been made under 1[Section 125] Criminal Procedure Code.
Note—The records mentioned in clauses (i), (ii) and (iii) of this proviso may however be destroyed when all the persons on whose account they have been preserved are known to be dead. And in the case of the records mentioned in clauses (i) and (ii) of this proviso (except when the offence is one punishable with death or transportation for life) death shall be presumed when the records have been preserved for 30 years, and the records may then be destroyed.
Proviso 2.—Provided that the record of no case in which the sentence has not expired shall be destroyed.
Proviso 3.—Provided that the record of any case in which an order of attachment has been made under Section 146, Criminal Procedure Code, shall not be liable to destruction so long as such order remains in force.
Note—A quinquennial revision should be made in respect of the records mentioned in Proviso 1 of Rule 150 with a view to the destruction of those that have become liable to destruction under the instructions contained in note to it.
151. Sessions Judges and Magistrates may, at their discretion, preserve any particular paper on the record of any particular case, beyond the above periods.
Return of Exhibits
152. When an entry in a public register, or in private account book or other bulky record, not being itself an entry in respect of which an offence has been committed, or is alleged to have been committed, is produced in evidence, and made an exhibit in the case, and the retention of such register, account book or record would cause inconvenience to the public, or the person producing the same, such register, book or record shall not be retained by the Court but shall be returned to the person by whom it has been produced. Before returning the register, book, or record, the Court shall mark, for the purpose of identifications, such entry or entries as have been exhibited in evidence and shall cause a certified copy of the entry or entries to be filed with the records of the case. The person to whom the register, book, or record is returned, shall be bound to produce the same before the Court when required to do so, and may be required to enter into a bond to that effect.
153. (a) On the judgment, or order, in any case becoming final, notice shall be given to the person by whom any document, admitted and used in evidence; was brought into Court, or to his pleader, requiring him to take it into his keeping, within six months from the date of the notice, failing which the document will be destroyed, when the record to which it relates is destroyed. The notice must distinctly warn the owner that the document will be kept at his own risk, and that the Court declines all responsibility for its safe custody.
Note—For form of notice, see Form no. (M) 23, Volume II.
(b) A copy of the notice shall be put up in the Court in which the case was tried.
154. When returning documents, care must be taken that any document which the Court has impounded is not delivered out of the custody of the Court.
155. The destruction of records, in accordance with these rules, shall take place at the end of each calendar year, by burning in the presence of the recordkeeper. Sessions Judges and District Magistrates will not in their Annual Reports whether these rules have been duly observed.
Note—The above rules must be read in connection with the provision of Section 8, Act III of 1879.
CHAPTER VI
Custody and examination of and requisitions for, access to and transmission of records from one Court to another
156. The records of decided cases shall be retained in the record rooms of the Courts to which they appertain or of the superior Court of the district, and shall not be allowed to pass out of the custody of the officers of such Courts, except when called for by superior Judicial authority, or required for the purposes of Order XIII, rule 10 of the Code of Civil Procedure by a Civil Court. It is improper and inconvenient that records of the Courts of Justice should be sent to other public officer or functionaries. If a reference to their contents is required the proper procedure is ordinarily to obtain copies of the requisite papers. [G.L. 3/49.]
157. The records of cases called for by the High Court, on appeal, revision or reference from the judgments and orders passed therein, should be despatched within seven days from receipt of the requisition. In the event of any delay occurring in their despatch, a reply should be sent explaining the cause of delay, and the probable date of their despatch.
157-A. Reminders relating to records sent to the High Court should be issued in the first instance on the expiry of twelve months and thereafter at intervals of not less than six or more than twelve months.]
158. (a) The Record Rooms of the Criminal Courts are not open to the public generally, but public officers of the district, including Head Clerks, may, with the permission of the Sessions Judge or District Magistrate, as the case may be, be allowed to enter the Record Room and in the presence of the Record-Keeper or one of his assistants, deputed for the purpose, to examine the record of any specified case, provided that such entry is made in pursuance of a public purpose.
(b) Pleaders and Mukhtars, duly authorised by any person in that behalf, may, under similar conditions, and at a place to be provided for the purpose in the Record-Keeper’s office examine any specified record; but in doing so, shall make only brief notes (to be written in pencil on slips to be provided by the Record- Keeper). If any extract from the record is required, it shall be obtained through the Copying Department in the usual way.
159. The examination of records by Pleaders shall be allowed only on office days and during such office hours as the Sessions Judge or District Magistrate may prescribe.
160. When in the course of proceedings in a Criminal Court, it becomes necessary to refer to the contents of public documents deposited in other Courts the ordinary procedure is to require copies of them to be filed. It frequently happens, however, that in the course of a criminal trial the production of an original record becomes necessary. In such case the Court where the record is deposited shall comply with the requisition of the Court requiring it even though the reason given for the production of the original record may be considered insufficient. [G.L. 7/54.]
Note 1—This course should also be followed when no reason is given in the requisition. If the record required is that of an appeal pending before the 1[Court of Sessions or Chief Judicial Magistrate], he should intimate the fact to the officer making the requisition, and request him to return the record without delay.
Note 2—Papers and Records received from other officers or Courts shall be entered in Register (R) 14-A, to be maintained by all Criminal Courts.
161. When a Divisional Commissioner requires the record of a criminal trial in order to satisfy himself whether Government should be moved to direct an appeal against an original or appellate judgment of acquittal under 1[Section 378] or an application for enhancement of sentence under 1[Section 399 or 401] of the Criminal Procedure Code, the Sessions Judges should comply with the application. [G.L. 1/20.]
162. Similarly, when the State Government appoints a commission of inquiry into misconduct on part of a Police Officer in consequence of strictures expressed by a Court, the Sessions Judge should forward to the commission, on requisition, the original record of the decided sessions case in question. Access to Records in Courts of Session
163. (a) 1[Sessions Judges should give every facility to Executive Magistrates and Gazetted Police Officers authorised by the District Magistrates and Superintendent of Police concerned for inspecting the records of cases of the Courts of Sessions, care being taken that no record is removed from the Judges’ Record Room.] Copies of the judgment and order, when required by the District Magistrate, shall be prepared by the Copying Establishment of the Sessions Judge and, if possible, should be type-written. (For rates to be charged for such copies,
see rule 192 (a) of Part V, post). [G.L. 2/39.]
(b) Copies of papers other than those specified above, which are required by the District Magistrate, should be prepared by a clerk of the 1[District] Magistrate’s office deputed to the Judge’s office for that purpose. Such copies are to be used only for the information and guidance of 1[Executive Magistrates] x x x x] who are not at liberty to cavil at the judgment of the Sessions Court or enter into any discussion with the Judge upon its merits.
Note—The same procedure should be followed in respect of copies supplied free of cost from the records of the Courts of the Judicial 2[x x x x] Magistrates and also when a copy is required by any public officer referred to in Rule 188, at page 71.] How Records should be transmitted from one Court to another
164. The following instructions should be observed in transmitting records from one Court to another—
(a) If the two Courts are situated in the same station, the record should be despatched by hand properly packed with a peon book in which a serial number and date should be entered, and the signature of the recipient should be taken. The serial number and date appearing in the peon book should be reproduced in the remarks column of the register of records removed. If the requisitioning Court is situated in a different station, records should be sent by parcel post, the postage being paid by means of service stamps.
(b) Records relating to different cases may, if not inconvenient, be packed in the same parcel provided such records are separately tied up.
(c) In the parcel containing a record should be enclosed a forwarding letter, and the cover of the parcel should bear the distinguishing number and date of that letter.
(d) A letter of advice should be forwarded simultaneously with the despatch of the parcel by post but separately and by ordinary letter post, and in it the number and date of the forwarding letter referred to in the preceeding clause should be quoted.
(e) An acknowledgment should invariably be required from the Court to which a parcel containing a record has been sent, and in the event of none being received within a reasonable time, enquiry should be made to ascertain the cause.
Note 1—For forms of covering letter and of letter advising despatch of records, see Forms nos. (M) 24 and (M) 25, Volume II.
Note 2—For cost of transmission of records to Civil Courts at the instance of a party, see rule 195, Part V. post.
164-A. No requisition made under the provisions of Order XIII, Rule 10 of the Code of Civil Procedure, by a Court sub-ordinate to any of the High Courts other than the High Court at Patna for production of the record of a case appertaining to, and in the custody of, a Court subordinate to the High Court at Patna should be complied with unless such requisition is transmitted through the High Court at Patna and is accompanied by copy of the affidavit referred to in the rule above quoted together with a duly certified translation into English if such affidavit 2[be not in Hindi].
Note—The above procedure will apply when a Criminal Court subordinate to the High Court at Patna calls for a record appertaining to and in the custody of any other High Court or Court subordinate thereto.
PART IV
Information and Copies
CHAPTER I
For searching fees and charges for copies, see Part V Preparation and issue of copies and supply of information
165. In addition to the rules of this chapter, the relevant rules of Part IV, Chapter I of the Civil Court Rules, Vol. I shall apply as far as may be to the application for copies and information in the criminal Courts.] [H.C. Letter No. 5739–71, dated the 1st June, 1964; G.L. 2/61.]
Note—The copying work of the Sessions Judge’s Court is done in the Copying Department of the District Judge.
166. Any person may apply for information from the records and registers of any Court.
167. Information may be asked for in one application in respect of one matter from a single record or register and shall be limited to a single question. Questions about particulars to be inserted in application for copy of any document respecting which information is wanted will be treated as a single question. Information requiring anything but short answers shall not be given. If any extract from the record is desired the proper course is to apply for a copy.
168. In criminal cases, parties are entitled to obtain copies of any portion of the record of trial; this rule covers such Police Papers as may be made use of as evidence at the trial;
Provided that in cases where there arises a doubt as to whether copy of any particular paper from the record of a pending case should be granted or not specific orders of the Presiding Officer of the Court concerned shall be obtained at the earliest opportunity before sending the paper to the Copying Department; Provided further that for copies of depositions in a Cr. case which is being
heard the procedure laid down in rule 369 of the Civil Court Rules, Vol. I shall be followed.
Note—Police reports on which proceedings are instituted under 3[Chapters VIII, XB, XC and XD] from a portion of the record of trial.
169. As a general rule, copies of exhibit in a criminal case should not be granted to persons who are strangers to the case. A Magistrate should use his discretion in each case, acting on the general principle that no copy should be given to a stranger without good cause being shown.
170. Copies of printed and lithographed maps and plans will not ordinarily be supplied by the Copying Department. Application should be made to the office where the original maps are deposited.
171. Copies of papers from a record called for from another Court or office not being subordinate to the Court to which the Copying Department is attached will not be given unless an application for copy is made through the Court or office which sent the record or paper and such Court or office forwards the application for compliance.
172. 1[x x x x x]
173. At Sadr copies of English documents shall be type-written.
174. In the ordinary circumstances a copy shall be furnished not later than 1 P.M. or 8 A.M., as the case may be, on the 5th open day after the application; Provided that in case of notification regarding filing of deficit stamps and folios, copies shall ordinarily be furnished on the next open day following the date of filing of the deficit stamps and folios, if the time prescribed in the above rule has expired.
CHAPTER II
Copyists
175. Seventeen and a half paise out of the charge levied of 35 paise per folio (see Chapter I, Part V, Rule 187) represent the payment to Government on account of the salary of examiners and cost of paper and the remaining 17½ paise will represent the earning of the copyist or the typist, whose account will be made up monthly. (Fraction of a paise, if any, in the total of the monthly earnings will be ignored). The amount due to each shall be paid out of the grant for ‘Allowances’. These payments must be checked with the upper part of each stamp, which, when the copy is ready, must be torn off each sheet along the perforated line, and endorsed with the Typist’s or Copyist’s name and kept till the end of the month. In cases of maps and plans, half of the copying charges to be levied shall be paid to the Copyists and half will go to the Government on account of examination charges and cost of materials. The upper halves of the adhesive stamps used in maps, plans and copies on forms shall be treated in the same way as upper portions of impressed stamped sheets. Care must be taken to see that nothing in excess of half in either case of the amount realised in stamps is paid to the Copyists or Typists.
Note 1.—The Copyist or Typist is paid by the folios copied, whether the copies are subsequently taken out or not.
Note 2.—Expedition fees (Part V, Chapter I, Rule 187) are for credit to Government and no part of them is payable to the Copyists or Typists.
176. 3[x x x x x]
PART V
Fees and Costs including rules and orders under the Court-Fees Act
CHAPTER I
A.—Process Fees
Rules framed by the High Court of Judicature at Patna, under Clause (ii) of Section 20 of the Court-Fees Act, 1870, declaring the fees chargeable for the service and execution of processes issued by the Courts of Magistrates.
Note 1.—These rules apply only to processes served and executed by Magistrates, establishments. By this, however, it was not intended that processes issued under the orders of a Court of Sessions, should be served without charge, as it was contemplated that such processes should always be issued by the District Magistrate at the discretion of the Sessions Judge.
Note 2.—These rules do not apply to the service and execution of processes in the case of cognizable offences and no fee can legally be charged for the issue of process in the case of a cognizable offence, whether the case be instituted on complaint or not.
The question whether fees are chargeable in any particular case should be determined by the Magistrate with reference to the Section of the Indian Penal Code or other law relating to the offence in respect of which he directs process to issue, whatever the Section or law may be that is quoted in the complaint.
Note 3.—Under Clause (xviii) of Section 19 of the Court-Fees Act, VII of 1870, no court-fee is leviable on a complaint preferred by a Municipal Officer. Court-fee should, however, be levied for processes issued in non-cognizable cases instituted by such officers, such fees being, on conviction of the accused, recovered from him under 1[Section 359 of the Code of Criminal Procedure, 1973
(Act no. 2 of 1974)].
177. The fees hereinafter mentioned shall be chargeable for serving and executing the processes to which the fees are respectively attached, viz.—
(1) Warrant of arrest— For the warrant in respect of each person named therein
(2) Summons— For the summons in respect of one person, or of the first two persons residing in the same place In respect of every additional person named therein
(3) Proclamation for absconding party under 3[Section 62] of the Criminal Procedure Code— For the proclamation
(4) Proclamation for witness not attending [Section 62] For the proclamation
(5) Warrant of attachment
Where it is necessary to place officers in charge of property attached, for each officer so employed, per diem
(6) Written order— For the order
(7) Injunction
Note—The provisions of the 1 [Section 359] Cr. P.C., and of Rules 178 and 179 below, apply also to injunctions. Criminal officers are, however, reminded that injunction in proceedings not connected with offences are not chargeable with any fee. An injuntion under Section 143, Criminal Procedure Code, would, for example, be chargeable with the above fees whereas an injunction under Section 144 or 145 of the Code would not carry any fee (Rule no. 10 of 26th September, 1882].
(8) Notice
For the notice in respect of one to four persons residing in the same village In respect of every additional person named therein
178. No fee shall be chargeable on any process of Criminal Court in any case where the prosecution is on the part of the Government.]
179. No process which comes within the operation of rule 177 or 182 shall be drawn up for service or execution except upon an application made to the Court for that purpose in writing on a document bearing upon its face stamps not less in amount than the fee which is directed to be charged for serving and executing the process so sought to be drawn up. This application may, however, at the option of the party making it, be included in the petition by which he moves the Court to order process to issue, but in that case the petition must bear the requisite stamps
for the process-fee, in addition to such stamps if any, as are needed for its own validity; and in either case the filing of the application, thus duly stamped, shall constitute payment of the fee chargeable for the process.
180. Cost awarded under 2[Section 359] Cr.P.C. and compensation awarded under 2[Sections 250 and 357] of the Code of Criminal Procedure shall be realized by Magistrates of their own motion, and without payment or recovery of process-fee.
181. When a proclamation has been issued for an absent witness, if the witness shall afterwards appear, and the Court shall be of opinion that such witness had absconded or concealed himself for the purpose of avoiding the service of warrant upon him, such Court may order the witness to pay the cost of the proclamation.
182. In the districts named in the margin, in every case where a process has to be executed at a distance of more than 3[40 kilometres] from the Court from which it is issued, an addition of one-fourth is to be made of the fee chargeable, and if more than 1[80 kilometres] an addition of one-half. [Hazaribagh, Palamau, Singhbhum. 2(Giridih)].
183. Throughout the district of Purnea and the Madhepura and Supaul Subdivisions of the district of Saharsa and for the periods of the year during which travelling except by boats is, in the opinion of District Officer, impracticable, the fees chargeable for the service of processes shall be increased 25 percent in order to provide for payment of the boat-hire or ferry-toll rendered necessary by the State of the country. The additional fees may, however, be reduced to 12½ per cent over the fees ordinarily leviable at the discretion of the District Officer in any part of a district, where, or at any season of the year, when the levy of the larger amount is found to be unnecessary. In Khagaria Subdivision in the district of Monghyr an additional fee of 50 paise shall be realised in Court-fee stamps in addition to the ordinary fees chargeable for the service of processes in order to provide for payment of boathire or ferry-toll rendered necessary by the State of the country.
Note—The process-server’s boat-hire passed under this rule should alone be included under the head of “process-serving charges” under “Special Contingencies” (vide Resolution of the Financial Department of the Government of Bengal, dated the 4th August, 1890).
184. When for service of any process a peon has to cross a ferry, then the amount, if any, legally exigible as toll, shall be paid by the Court executing such process from the special permanent advance sanctioned by the State Government for the purpose of these rules.
Note—This rule will not apply to the district of Purnea and the Madhepura and Supaul Subdivisions of the district of Saharsa for the period of the year during which additional fees for the payment of the boat-hire or ferry-toll are leviable, under the preceding rule (rule 183).
185. No fee shall be chargeable for serving and executing any process, such as a notice, rule, summons or warrant of arrest, which may be issued by any Court of its own motion solely for the purpose of taking cognizance of, and punishing any act done, or words spoken in contempt of its authority.
B.—Reduction and Remission of Court-fees
Extracts from orders of the Government of Bihar and Orissa under Section 35 of the Court-Fees Act
186. Under Section 35 of the Court-Fees Act, 1870 (VII of 1870), as amended by Act XXXVIII of 1920 and in supersession of all previous notifications under that Section, it is hereby notified that, in exercise of the power to reduce or remit, in Bihar and Orissa, all or any of the fees mentioned in the First and Second Schedules to the said Act, the Government of Bihar and Orissa have been pleased to make the reductions and remissions hereinafter set forth, namely [Notification of the Government of Bihar and Orissa, no. 2576/L.A. 25, dated the 5th December, 1921.]—
(4) to remit the fees chargeable on—
(a) copies of village settlement records furnished to land holders and cultivators during the currency or at the termination of settlement operations;
(b) list of fields extracted from village settlement records for the purpose of being filed with petitions of plant in Settlement Courts; Provided that nothing in this clause shall apply to copies of judicial proceedings, or to copies of village settlement records (other than lists of fields) extracted as aforesaid, which may be filed in any Court or office;
(6) to remit the fees chargeable on security bonds for the keeping of the peace by, or good behaviour of, persons other than the executants;
(7) to remit the fees chargeable under articles 6, 7 and 9 of the First Schedule on copies furnished by Civil or Criminal Courts or Revenue Courts or offices for the private use of persons applying for them; Provided that nothing in this clause shall apply to copies when filed, exhibited or recorded in any Court of Justice or received by any public officer;
(8) to remit the fees chargeable under paragraph 4 of clause (a) and paragraph 2 of clause (b), of article I of the Second Schedule, on applications for orders for the payment of deposits in cases in which the deposit does not exceed Rs. 25 in amount; Provided that the application is made within three months of the date on which the deposit first became payable to the party making the application;
(13) to remit the fees chargeable on the following documents, namely:—
(a) copy of a charge framed under Section 210 of the Code of Criminal Procedure, 1898 (V of 1898), or of a translation thereof, when the copy is given to an accused person;
(b) copy of the evidence of supplementary witnesses after commitment, when the copy is given under Section 219 of the said Code to an accused person;
(c) copy or translation of a judgment in a case other than a summonscase, and copy of the heads of the Judge’s charge to the Jury, when the copy or translation is given under Section 371 of the said Code to an accused person;
(d) copy or translation of the judgment in a summons-case when the accused person to whom the copy or translation is given under Section 371 of the said Code is in jail;
(e) copy of an order of maintenance, when the copy is given under Section 490 of the said Code to the person in whose favour the order is made or to his guardian, if any, or to the person to whom the allowance is to be paid;
(f) copy furnished to any person affected by a judgment or order passed by a Criminal Court, of the Judge’s charge to the Jury or of any order, deposition, or other part of the record, when the copy is not a copy which may be granted under any of the preceeding sub-clauses without the payment of a fee, but is a copy which, on its being applied for under Section 548 of the said Code, the Judge or Magistrate, for some special reason to be recorded by him on the copy, thinks fit to furnish without such payment;
(g) copies of all documents furnished under the orders of any Court or Magistrate to any Government Advocate or Pleader or other person specially empowered in that behalf for the purpose of conducting any trial or investigation on the part of the Government before any Criminal Court;
(h) copies of all documents which any such Advocate, Pleader or other person is required to take in connection with any such trial or investigation, for the use of any Court or Magistrate, or may consider necessary for the purpose of advising the Government in connection with any criminal proceedings;
(i) copies of judgment or depositions required by officers of the Police Department in the course of their duties;
(15) to remit the fee chargeable on an application presented by any person for the return of a document filed by him in any Court or public office;
(18) to direct that no Court-fee shall be charged on an application for the repayment of a fine or of any portion of a fine the refund of which has been ordered by competent authority;
(19) to remit the fees chargeable on applications for copies of documents detailed in clauses 4 and 13 supra;
(23) (a) to remit the fees payable under Schedule II upon applications for the grant or renewal of licences or duplicates under the Indian Arms Rules, 1924, in respect of which a fee is payable under those rules; and
(b) to reduce to ten paise all fees exceeding ten paise payable under the said Schedule upon other applications relating to licences or duplicates granted or renewed under the said rules;
(24) to remit the fees chargeable on applications for the grant of licences of the nature mentioned in items 8 and 9 of Schedule II appended to the Indian Explosives Rules, 1914, to possess gunpowder, other explosives or detonators required bona fide for blasting purposes : [The Indian Explosives Rules, 1914 have been superseded by the Explosives Rules, 1940.]
(28) to remit the fees chargeable on applications for the grant of licences issued in accordance with the provisions of any rule made under Section 9 of the Indian Petroleum Act, 1899 (VIII of 1899), for the possession of dangerous petroleum for use on motor vehicles and for its transport thereon for the purpose of use therein; [The Indian Petroleum Act, 1899, has been superseded by Act XXX of 1944.]
* * * * *
(41) to remit the fees chargeable on copies of documents furnished by a District Magistrate to a pleader appointed by the Court to defend a pauper accused of murder;
* * * * *
(45) to remit the fees chargeable on applications made to a Magistrate under the Indian Motor Vehicles Act, 1914 (VIII of 1914), for the registration of a motor vehicle and for a licence to drive it.
[The Indian Motor Vehicles Act, 1914, has been superseded by Act IV of 1939.]
(46) To remit the fees chargeable on copies of judgments or relevant extracts therefrom furnished to the Registrar of the Council of Medical Registration, Bihar, by Courts exercising criminal jurisdiction in cases in which a registered medical practitioner is convicted of a non-bailable offence or in which the Court pronouncing the judgment considers that the professional conduct of a registered medical practitioner has been such that it is desirable to bring it to the notice of the Council. [Government of Bihar and Orissa Judicial Department Notification No. 1445 J.R.,
dated the 23rd July, 1931.]
Note—In rule 186 for the Sections of the Code of Criminal Procedure, 1898, the corresponding sections of the Code of Criminal Procedure, 1973, shall be read. The rule shall be followed subject to the relevant provisions of the latter Code.]
C.—Searching and Copying Fees
187. Searching and copying fees shall be charged according to the scale shown in the table below except in the cases where the law requires copies to be given free of cost :—
(1) For information whether the record is deposited in the Record room or not. 0 25 By a Court-fee stamp to be affixed to the application.
Note—This is the only fee to be paid on such application.
(2) For inspection of the record of a decided case.
Note—No searching fee to be charged to pleaders for looking at the records of pending cases.
(3) For copy (in addition to the prescribed fee of one anna under the Court-Fees Act) where the record is deposited in the Record room.
Note 1.—One searching fee shall be charged for any number of copies taken from the same record and included in the same application.
Note 2.—Records called for in connection with original case or appeal will be treated as a part of the record of such case or appeal.
By means of an impressed stamp of 35 paise on each sheet of paper corresponding with the folio to be provided by the applicant for copy.
Note 1—Complainants must pay copying fees whenever they want copies.
But an accused is entitled under Section 210, Criminal Procedure Code, to a copy of the charge, under Section 219 of the same Code, to a copy of the evidence of supplementary witnesses after commitment, and under Section 371 of the Code, in case other than summons cases, to a copy of the judgment absolutely free of cost and on plain paper. Similarly, under Section 490 of the same Code, a copy of a order of maintenance, shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid.
Note 2—The provision of 1[Section 363 (5)] of the Code should also be referred to.
Note 3—See also Rule 186 of this Chapter regarding remission of copying fees in certain cases.
Note 4—Court-fee stamps for extra fee in respect of urgent copies should find entry in the Register of Court-fee stamps.
188. No fees are to be required or paid for searching, or copying papers wanted by public officers for public purposes.
Note—In their Resolution no. 1248-64, dated 31st August, 1899, the Government of India directed that “The existing practice of supplying free of charge, to the head of the office concerned, copies of judgments convicting Government officers of criminal offences” should be continued and that “in future, copies of judgments of acquittal and orders of discharge” should also be “supplied
free of charge on the application of the Head of the Department”. [G.L. 1/20.]
189. In the case of maps and plans no general rule can be laid down. In each case the charges will have to be fixed with reference to the difficulty or intricacy of the work to be done. The charges shall be realized by means of adhesive stamps to be affixed to the map or plan, the upper half being kept by the copyist as his voucher. Half will be paid to the copyist and half will go to Government on account of examination fees and cost of material. The upper halves of adhesive stamps used in maps and plans shall be treated in the same way as upper portion of impressed stamped sheets.
190. In the case of urgent copies of maps and plans the expedition fee will also be fixed by the Magisterial Officer in charge to be paid by means of a Courtfee stamp affixed to the application for copy. No part of the expedition fee shall be paid to the copyists.
191. For the cancellation of Court-fee stamps on copies reference should be made to rule 197 of this part for “Information and Copies” to Chapter I, Part IV, and for “copyists” to rule 175 of Part IV, ante.
192. (a) The charge for obtaining copies of records in Courts of Sessions referred to in rule 163 (a) Part III, shall be at the rate of one rupee and forty paise per 2[1,200 words English or Hindi in Devanagri script, or 2,400 words Vernacular (except-Hindi in Devanagri script) which should be paid to the Typist or Copyist concerned. The typists or the copyist] should be paid at the same rate for preparing briefs.
(b) The charges for obtaining copies of records in Sessions cases 3[xxxxx] which are required by 4[District Magistrates] should be adjusted under “Civil and Sessions Courts” while those for copies of records in cases in which an appeal has been preferred, and the copies required for Government Pleaders, should be adjusted under “Civil and Sessions Courts’ or ‘Criminal Courts” according as the papers to be copied are at the time in the Office of the Sessions Court or of the Magistrate’s Court.
(c) The charge for typed copies of translations mentioned in rule 41, Part I shall be at the rate of one rupee and forty paise per 1,200 words to be paid to the copyist concerned;
Provided that when one or more copies are prepared simultaneously by carbon paper process and one of such copies is prepared for Government and the other or others for private individuals, the copyist shall not be entitled to remuneration for such a copy provided also, however, that the paper for the copy and also the carbon paper shall be supplied by Government.
D.—Fees for Affidavits
Fees for administering Oaths on Affidavits
193. The charge for administering the oath to the deponent in the case of any affidavit—1[three rupees and twenty paise]. [G.L. 8/64.]
Except (1) affidavits made by process-servers regarding the manner of service of processes;
(2) Affidavit made by any public officer in virtue of his office.
194. The above fee shall be paid by means of a Court-fee stamp.
Note—Fees for affidavits are to be entered in the Daily Register of Courtfees.
E.—Cost of Transmission of Records
195. When a record is called for by a Civil Court from a Criminal Court, at the instance of party, the cost of postage should be borne by such party at a uniform rate of one rupee per record to be paid in Court-fee stamp for transmission of the record and its re-transmission.
F.—Cancellation of Court-fee Stamps
196. Each Judicial Officer should, under Section 30 of the Court-fees Act, VII of 1870, formally appoint an officer for the purpose of cancelling stamps and should see that, that officer, and no other, is allowed to do the work. [G.L. 6/55, G.L. 5/56.]
197. The second or triangular punching of Court-fee stamps prescribed in rule 199 post should be made on the day the records are received in the District or Subdivisional Record-room or as soon after as possible, and should not await the inspection or examination of the records.
198. The Record-keeper should, on receiving records from a Muharrir or others, ascertain that all the papers in the records which require stamps are properly stamped and that the rules regarding their cancellation have been properly carried out. Should any of the stamps show signs of having been tampered with, or should there be any deficiency or any suspicious circumstances he must at once submit a report to the Presiding Officer of the Court. Record-keepers should be reminded that the appointment of a special peon or any other officer to punch stamps on records received into the Record-room in no way absolves them from the duty of seeing that the stamps are duly punched.
199. (a) The Record-Keeper of every Court or office shall, when a case is decided and the record consigned to his custody, punch a second hole with a triangular punch in each label distinct from the first and at the same time note upon the table of contents the date of his doing so. The second punching should not remove so much of the stamp as to render it impossible or difficult to ascertain its value or nature.
Note—In cases tried summarily, the note referred to above should be entered, in the forms of summary trial, kept under Section 263 1 [xxxx] of the Criminal Procedure Code.
(b) These directions apply only to adhesive labels used under the Court-fees Act. Impressed stamps used for denoting Court-fees need not be cancelled or punched otherwise than as required by Section 30 of the Court-fees Act.
200. The Court or office issuing copies, certificates or other similar documents liable to stamp duty shall, before issue, cancel the labels affixed to them by punching out with a square punch a portion of the labels in such a manner as to remove neither the figure head not that part of the label upon which its value is expressed*. As an additional precaution the signature of the officer attesting the document with the date should be written across the label and upon the paper on either side of it as is frequently done by persons signing stamped receipts. The stamp shall be punched at the time of attesting the document. Note—The Court or office in which the copy or certificate, etc., may be produced or filed must punch out the figure head under Section 30 of the Courtfees Act.
201. Each Judicial Officer should cause an occasional inspection to be made of documents that have been filed in order to ascertain that the stamps have been properly punched and defaced and have not been subsequently removed for the documents on which they have been used. The inspection should be made at least once a quarter. The check herein prescribed applies equally to all papers, which require, adhesive label, and they should be subjected to similar scrutiny.
G.—Inspection of Records by Registration Officers
202. Government having directed the Inspector-General and Inspectors of Registration to examine the record-rooms of various Courts in the mufassal in order to see how far the rules and instructions on the subject of the punching, custody and sale of stamps are carried out, every assistance should be afforded by Judicial Officers to those officers in the discharge of their duty.
203. Government having ordered that, on the discovery of any irregularity in respect of punching or otherwise defacing Court-fee stamps, the inspecting Stamps affixed to affidavits presented to a Commissioner for the purpose of administering an oath or affirmation to the deponent should be dealt with in the same manner as the stamps on copies, certificates or other similar documents liable to stamp duty (G.L. No. 3 of 6th August, 1896). Registration Officer should at once bring the matter to the notice of the Presiding Officer of the Court, such officer should go into the matter at once and thus trace the person who is responsible for the omission pointed out by the inspecting officer.