GENERAL RULES AND
CIRCULAR ORDERS
(CRIMINAL)
VOL. – I
PART – I
CHAPTER – I
Court and Office Hours and Court Seal
1. (a) Court hours – The Court hours shall ordinarily be from 10.30 AM. to 5.00 P.M. with recess of half an hour between 1.30 and 2 P.M. Except in morning sittings when it would be from 7.00
A.M. to 1.00 P.M. with a recess of half an hour between 10.00 A.M. to 10.30 A.M.
(B) Sitting and rising hour – The Courts shall ordinarily commence the sittings not later than11 A.M. and rise at 4 P.M. When day sittings are held and incase of morning sittings not later than 7.30 A.M. and rise at 12.30 P.M.
Note 1 – The exact period during which morning sittings of the Courts will be held shall be fixed by the High Court, by the issue of general or special orders.
Note 2 – The recess facility will be available only to the Presiding Officers.
Note 3 – The hours of work and commencement of sittings of Criminal Courts shall be regulated from time to time by issue of general or special orders by the High Court, as and when necessary.
2. (a) Use of Saturdays by Sessions Judges and Chief Judicial Magistrates – The Sessions Judges will devote all working Saturdays and the Chief Judicial Magistrates will devote first and last working Saturdays of a month for administrative work at the Headquarters subject to adjustment of hearing of part-hard Sessions cases
(a) Clearance day – The last Saturday of each month may be observed as ‘Clearance Day’ by the Judicial Magistrates at the stations to be specified by the High Court by General or Special Orders.
Whenever such Saturday is a holiday, the working day preceding that holiday will be observed as ‘Clearance Day’.
3. Court not to sit on holidays – Without the consent of parties and in absence of urgent necessity, no criminal enquiry or trial shall be held on Sundays or gazetted holidays.
4. Suspension of Court hour – The Presiding Officer of Courts are authorised to suspend the work for about half an hour or to stand in silence for a minute or two after a suitable reference has been made when a man of repute passes away and when request (either oral or in writing) for suspension of work is made to the Court by the Bar Association. Facility should be given to the litigants and members of the Bar who wish to attend the funeral ceremony.
5. Closure of Court in case of danger of Court’s property – Should any occasion arise when there is disturbance exposing the Court’s property to danger, the Presiding Officers may close the Court
when no other course is available. Such instances shall, however, be very rare and shall be immediately reported to the District Judge and the High Court explaining in detail the circumstances leading to the closure.
6. Courts to be open – Ordinarily all judicial matters shall be disposed of in open Court. The public should have access to or remain in the room or the building used by the Court except when the
Presiding Officer thinks it fit in any particular case, to exclude either the public in general or any particular person. The grounds for doing so should, however be recorded in the Court’s Diary and order sheet of the case.
Note 1 – Trial in camera – Cases of kidnapping, abduction, rape and proceedings under Section 493, 497 and 498, I.P.C., may be tried in camera.
Note 2 – Routine duties – The Judicial Officers in cases of indisposition are allowed to perform their current and routine duties in the Chamber for a maximum period of three days during any calendar year.
7. Court language – The Stale Government of Orissa have declared the following as Court language in the different districts in the State of Orissa in supersession of all previous notifications and
orders on the subject –
(1) In the district of Ganjam except English, Oriya Ghumsar and the Balliguda and Telegu Subdivisions and the ‘[Civil Judge (Junior Division)]’s Court at Aska.
(2) In Gunpur, Rayagada, Bissam-katak, English, Oriya Pottangi and Malkangiri taluks in and Telegu Koraput district.
(3) In all the districts of the State English and Oriya except Nos. 1 and 2 above
THE HIGH COURT OF ORISSA
8. Regular seal – The regular seal of the Court shall be placed in custody of a responsible Officer of theCourt and the documents required to be sealed with it should be under his superintendence.
This seal is to be used for sealing judgment, writs, processes, copies and other documents made or issued judicially.
9. Date seal – The date seal shall be affixed to all documents and papers presented to Court in such a way as to show clearly the date on ich they are presented. It shall be affixed a second time in such a way as to deface the Court-fee levels, if any, appearing on them.
10. Orders as to custody ofseals – The orders making the officers responsible for the custody and the use of the seals should be recorded in writing.
11. Use of name seals prohibited – The use of name seals whether by judicial or ministerial officers is. Prohibited.
12. Destruction of seals – The worn-out and useless Court – seals when replaced by new ones should be destroyed in the presence of the Presiding Officers concerned and note of such destruction should be made in the Order Book under the dated signature of the Presiding Officer.
13. Custody of seals of abolished Courts – When a temporary Court ceases to exist, the seals used by it shall be kept in the safe custody of the Registrar of the Civil and Sessions Courts at the
headquarters station or the Chief Ministerial Officer of the Court of the Sub-divisional Judicial Magistrate, or Judicial Magistrate, as the case may be, at the outlying stations.
CHAPTER – II
Petitions, Complaints and Affidavits
14. Petitions and affidavits how to be drawn up – All petitions and affidavits should be in the language of the Court and as far as practicable typewritten. Every page of the petition and every
interlineation, alteration or erasure therein shall be authenticated by initial of the petitioner, declarant or the appellant as the case may be or of his Pleader by whom it is presented.
Note – All petitions should be either typewritten or written on fullscape size paper, the quarter margin together with at least 1″ of space at the top and bottom of each sheet being allowed.
15. Contents of petitions – Every petition shall state concisely and clearly, (1) the facts, matters and circumstances upon which the petitioner relies; and (ii) the matter of complaint, if any, and the relief sought or prayer made.
16. Separate petition for distinct subject – Applications in regard to distinct subject-matter with separate prayer shall be made in separate petitions.
17. Service of copy of petitions – In contested cases, no petition or list of document shall be filed in Court unless copies thereof have been previously served on the opposite party or his Pleader. The opposite party or the Pleader served with such copies shall give receipt on the original petition or list.
18. Complaints to be received in fixed hours – Private complaints should be received daily at fixed hours, ordinarily at the commencement of the day’s sitting, but not later than 12 Noon.
19. (a) All complaints and charge – sheets shall at subdivision headquarters be received by the Sub – divisional Judicial Magistrates and subject to control by the High Court by such other Judicial Magistrate specially designated in tilis behalf by the Chief Judicial Magistrate.
(b) At other places where there are more than one Judicial Magistrate, the Chief Judicial Magistrate would designated the Magistrate who shall receive the complaints and charge-sheets.
20. Contents of complaint petitions – Every petition of complaint shall contain the following particulars –
(1) The name, age and other description of the complainant.
(2) The name, age and other description of the accused.
(3) The date, time and place of occurrence.
(4) The list of witnesses with addresses.
(5) Nature of offence with section of statute.
(6) Whether any information was given at the Police-Station and if so, the’ action taken thereon.
(7) Whether any previous complaint regarding the same occurrence was filed, and if so, the name of the Court and the date and manner of disposal of the same.
(8) Facts of the case.
(9) Documents, if any relied upon by the complainant.
Note – While making an application for issue of an order under Sections 94, 97 and 98 of the Code of Criminal Procedure, 1973, the applicant (or the party) should file an affidavit that he has not filed any such application on the same facts before any other Magistrate or in any other Court.
21. Examinatiori. of complainant – The examination of the Complainant under Section 200 of the Criminal Procedure Code should be a thorough and intelligent enquiry into the subject – matter
of a complaint to enable the Magistrate to find out whether the complainant is really aggrieved, or whether it would amount to Abuse of the process of the Court and harassment to the accused.
The examination of the complainant at this stage should be made by the Magistrate himself.
Note – Statement of the complainant should ordinarily be recorded on the back of the petition of complaint.
CASE LAW
Examination of the complainant under Sec. 200 Cr. P. C. should be a thorough and intelligent enquiry into the subject matter of a complaint to enable the Magistrate to find out whether the complainant is really aggrieved or whether it would amount to abuse of the process of the Court and harassment to the accused: Debakl Pradhan v. Prakash Chandra Pal: 2010 (Supp.-II) OLR 803. The Magistrate has to act while considering the question whether cognizance is to be taken or not. At the stage of taking cognizance Magistrate has simply to be satisfied whether the allegation make out a prima facie case for trial or not : Sk. Siraj v. State of Orissa : 1994 (I) OLR 403.
22. Undesirability of using police agency for enquiry into cases – Magistrate are cautioned against 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 should be specially borne in mind in respect of all cases regarding offences not cognizable by the Police.
23. Registration of complaints and Police reports – All complaints and Police reports should be Registered immediately after their receipt in order of their receipt.
24. Affidavits before whom to be sworn – Affidavits to be or affirmed before any Judge, Magistrate or Commissioner of Oaths appointed by the High Court or Court of Sessions or any Notary
appointed under the Notaries Act, 1952 for use before any Court shall be drawn up in the first person and divided into paragraphs, numbered consecutively and each paragraph, as clearly as may be, shall be confined to a distinct portion of the subject and may be sworn or affirmed before any Judge, Magistrate or Commissioner of Oaths appointed by the High
Court or Court of Sessions or any Notary Act, 1952 (54 of 1952).
25. Full description of deponent – Every affidavit shall state the full name, age, description and place of abode of the deponent and shall be signed or marked by him.
26. Authentication of corrections in affidavits – Alterations and interlineations shall, before the affidavit is sworn or affirmed, be authenticated by initials of the officers before whom the affidavit is taken.
27. Particulars to be noted by the Commissioner of Affidavits – The officer before whom t he affidavit is taken shall state the date on which and the place where the same is taken, sign his name and
mention his designation at the end.
28. Certificate to be given by the Commissioner of Affidavits – When an affidavit is sworn or affirmed by any person who appears to the officer taking the affidavit to be illiterate, blind or unacquainted with the language in which the affidavit is written, the officer shall certify that the affidavit was read over, translated or explained in his presence to the deponent, that the deponent seemed to understand it and made his signature or mark in the presence of the officer ; otherwise the affidavit shall not be used in evidence.
29. Affidavits to state on whose behalf it is filed – Every affidavit shall bear an endorsement stating on whose behalf it is filed.
30. Source of knowledge to be stated in affidavit – Every affidavit containing statements made on the information or belief of the deponent shall state the source or groud of the information or belief.
CHAPTER – III
Diary and Cause List
6. Diary – (a) Every Civil Court shall maintain a diary in the prescribed form. Each case for any day shall be entered in advance immediately upon a date or adjourned date being fixed, and the entry as to each case shall show the purpose for which it is set down on each of issues, or for trial after adjournment. The diary will show briefly the progress made in each case, and when witnesses
are examined in any case, when witnesses are examined without contest separately shall be stated. A running total in red ink should be inserted from day to day, in order to show the total number of witnesses examined during each quarter of the year. A new serial number should be started at the commencement of each quarter.
(b) The top most heading should be “For peremptory hearing” and under each heading should be grouped separately each class of cases in their chronological order according to the dates of their institution. The part-hard case adjourned on the previous day should be shown as the top case under the heading “Peremptory hearing”.
(c) Appeals and Miscellaneous cases should also be shown in the diary in the above manner. Execution cases should be noted last of all.
(d) The reason for adjournment shall be briefly stated in the Diary.
(E) The Presiding Judge shall insert with his own hand in the appropriate place (i) the hours of his arrival in the office, (ii) the hour at which he takes his seat for judicial work and (iii) the time of rising and (iv) the time of departure. In the case of any unusually short sitting on any day, a short note explaining the reason shall be given in the Diary.
Note – (1) When an officer’ has to perform criminal duties in addition to his work as a Civil Judicial Officer, he will maintain two separate diaries in the prescribed form, one for civil and the other for criminal work. He shall note the hours of sitting and rising in the civil diary only. On the Actual time devoted to criminal work in the criminal work, he shall note the hours of sitting and
rising in the civil diary or criminal diary only, as the case may be.
Note – (2) The Diary shall be signed each day by the Presiding Judge after careful scrutiny on completion of all the entries therein.
Note – (3) A separate diary should be maintained for the cases fixed for each place of circuit.
8. Dialy causes lists – A daily list of case shall be posted in some conspicuous place in every Court house for the information of the parties and their pleaders. The cases should, as far as possible, be arranged in the order in which they are likely to be taken up. Execution and Miscellaneous cases may be shown either in the same list or in a separate list. The said list shall be prepared and posted on the preceding working day at 4.30 P.M. or in the case of morning sittings before 12 A.M.. In the list, the cases will be sufficiently describedby their number, year and class. At the close of each day, the Peshkar shall prepare four copies of advance daily cause lists in prescribed forms in a bound book of printed lined perforated pages, with the help of carbon papers showing therein the cases fixed for the next day. One copy of the list shall be posted in the Court’s notice board and another sent to the Secretary Ministerial employee or any other person authorised by the local Bar
Association for being posted in the notice board of the Bar Association. The remaining two copies should be kept by the Peshkar for his next day’s use. At the close of the following’ day, he shall fill up the adjourned dates in the two copies of advanced daily cause lists in the Court’s notice board and take down the copy which was posted on the preceding day and will send the other copy
to the Secretary or ministerial employee of the Bar Association for publication in the notice board of the Association. He will further prepare four copies of advance daily cause lists for the next day in the same manner. The advance daily cause lists shall be sent to the Secretary, Bar Association through the Despatch Register in which the dated signatures of the recipient will be obtained.
Note – (1) The maximum number of cases to be fixed for hearing on any day may be half more than could be done on that day and preference be given to undone work of that day on the next day.
Note – (2) The lists shall be prepared in the language of the Court and shall remain posted for one week after which they shall be filed in office for future reference, if necessary. At the end of every quarter the lists for the previous quarter will be destroyed.
Note – (3) The lists shall be signed by the Presiding Judge and exhibited before he leaves the Court.
CHAPTER – IV
Processes
31.(a) Process to contain full description – Every person on whom a process is to be served or executed shall be described therein in ink 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.
Note – Inthe case of service or execution of a process to be effected in large towns, the name of the street, ward number of the Municipality and the number of the house, if known, should be given.
(b) Language of the process –
The process shall ordinarily be issued in anyone of the languages of the Court. But process sentfor service at another place where the languageis different from that of the Court issuing them,
shoul d be accompanied by translation in the language of such place or in English. to be issued by the
c) Whenever notices / summons / warrants are Court, the following shall be mentioned on the bottom of form for information about free Legal Services
32. Persons authorised to issue summons – Summons issued to witnesses shall ordinarily be signed by the Chief Ministerial Officer of the Court with the words ‘BY ORDER OF THE COURT’
prefixed to signature; but Magistrates and Judges shall themselves sign the summons issued to the accused persons. All summonses shall bear the seal of the Court.
33. Time and place of hearing to be stated in summons – Every summons relating to a case shall state the place of hearing and the date and time when the presence of the person summoned is required.
34. Summons to Military Officers – 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 witnesses may be serving and to apply for his assistance in serving it. With his assistance the processserver 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 of arrangement being made for the relief of the witness summoned.
35. Summons to expert – All summons meant for the Fingerprint or Handwriting Expert should not be sent to any particular expert by name. They should be sent to the Director of the Fingerprint Bureau by designation.
36. Non-bailable warrant – The date of execution to be stated – The Court may record a separate endorsement on every non-bailable warrant of arrest the date by which the Officer-in-Charge of the Policestation shall report to the issuing Court that the fact of execution or nonexecution of the warrant.
37. (1) Time for delivery of process in the Nizarat – Processes should, except in urgent cases, be made over to the Nazir or the Police Officer at least 10 days before the date fixed.
(2) Register of processes made over for service to Nazir – A Register of processes made over to the Nazir for service shall be maintained in the Form No. (R) 9-A.
(3) Register of processes issued to police – A Register of warrants and other processes issued to each Police Station shall be maintained in the ledger Form No. (R) l O, some pages being allotted to each specified Police-Station.
38. Return of processes – Processes made over to the Nazir or the Police Officer for service must be returned to the issuing Court as soon as possible, and atleast one day before the date fixed.
39. English translation of the report when necessary – When the process which has been served or returned unserved is the process of a Court outside Orissa transmitted for the purpose of service only, then the report regarding service or non-service of the process shall be accompanied by an authorised English translation thereof.
40. Different Register of processes – Rules 35 to 39, 41 and 43 of Part I, Chapter – II of General Rules and Circular Orders (Civil), Volume I shall also apply to processes issued on the criminal
side and one common set of Registers in Form Nos. (R) 11, (R) 12 and (R) 13 of the General Rules and Circular Orders (Civil), Volume II be maintained in respect of both Civil and Criminal processes issued from the Nizarat.
41. Production of post office records – As regards production of post-office records under Section 92, Criminal Procedure Code, by Post-masters, see Rule 74, Chapter – I, Page 31 of the Post-Office
Manual, Volume I, 1912.
42. Process against Members of the Parliament and State Legislature – No summons or other process issued against a Member of the Parliament or of a State Legislature shall be sent for service to the Presiding Officer or the Secretariat of the Parliament or the State Legislature. No such summons or other process shall be served on any Member within the precincts of the House of which he is a Member.
43. Letter of request – A Letter of request instead of summons should be issued to the Secretary of the House of Parliament or of the State Legislature for examination of any officer of the Secretariat as a witnesses in the Court of law or for production of any document in the possession of the House of Parliament or State Legislature.
44. Production of record from the custody of Parliament or State Legislature – Original documents in the custody of the House of Parliament or of the State Legislatures should not be called for if certified copies thereof would serve the purpose. It is only in cases where parties insist upon strict proof that the Courts should call for the originals.
Note – In this connection attention of the Judges and Magistrates is also called to Section 78 (2) of the Indian Evidence Act which specifies the way in which the proceedings of the Legislature can be proved
45. (i) Arrest of Members of Parliament and State Legislature – When a Member of the House of the People is arrested on a criminal charge or for a criminal offence or is sentenced to imprisonment by a Court, the Judge or Magistrate, as the case may be, shall immediately intimate such fact to the Speaker indicating the reasons for the arrest, detention or conviction as the case may be, as also the place of detention or imprisonment of the member in the appropriate prescribed form.
(ii) When a Member is arrested and after conviction released on bail pending an appeal or otherwise such fact also be intimated to the Speaker by the concerned authority in the appropriate prescribed form;
(iii) The provisions contained in the above sub-rules will apply mutatis mutandis to Members of the Council of State and of a State Legislature.
CHAPTER – V
Process – Servers and Nizarat
46. Rules relating to service of process and the duties of Nazir and his staff and the maintenance of various Registers contained in the G.R. & C.O. (Civil), Volume I shall be followed by the Criminal Court.
II – PROCESS-SERVER AND NAZARAT
A- Process-serving establishment
67. Process serving establishment – There shall be a joint process serving establishment for all the Civil Courts, Sessions Courts and Courts of Judicial Magistrates at the same station under the direct control of the Nazir who will be responsible for proper service of process made over to him for the purpose. The process-serving peons recruited on the civil and criminal side shall be entrusted to execute processes, both on the civil and criminal sides. The Nazir and the staff shall also be subordinate to any such Court issuing process for the purpose of execution of that particular process and shall place themselves under the order of the Presiding Officer in that regard. The Register of process-serving peons shall be maintained in the prescribed Form (H) 9-R.
68. Strength of process-servers to be determined in every five years – The Judge of every district shall ascertain after every five years’ the average number of original processes issued from his own Court from each of the Courts subordinate thereto during the immediately preceding five years’ and fixed the number of process servers to be employed, each peon being for this purpose considered capable of executing during the year the number of original processes given in the following table :
Summons and Notices Processes other than District [Civil Judge issued by all Courts those mentioned in (Junior Division)] and other processes Column (2) issued by Civil Judge (Junior Division
except in cases valued at over R. 1,000
Note – (1) For the purpose of this rule all copies of processes served in one village in one case by a process-server at one and the same visit shall be reckoned as one original process, while copies served in the same village for separate visits or in different villages shall be reckoned as separate visits to the same village.
Note – (2) Where a summons or notice is served by a peon at Sadar within the jurisdiction of any outlaying 1[Civil Judge (Junior Division)] under the special orders of the Court, it will be treated as belonging to the class mentioned in Column 3.
Note – (3) Processes served by special peons as in the cases of warrants or arrest, should be reckoned as service of three original processes only in case of due execution and not when returned unexecuted.
Note – (4) Each day on which a peon is occupied in keeping custody of attached movable property, standing crops or of a person under arrest in attending on Commissioners deputed to deliver possession or in taking records, letters etc. from one station to another or in guard duty at the residential office of Judicial Officers should be reckoned as service of 3 original processes.
69. Distribution of process servers – The District Judge may authorise the appointment of such total number of peons for the whole district as may suffice for the execution of all the processes issued for service within it and may from time to time apportion such peons among different stations in such manners as may appear necessary.
70. Increase or decrease of strength of process-servers – On the examination of the figures in the manner as in Rule 68, the District Judge shall increase or reduce the number of peons according as the number of processes has increased or decreased by 10 percent, the surplus permanent hands in case of diminution being gradually absorbed against permanent vacancies by stopping fresh recruitment until the permissible limit has reached.
47. Determination of the Strength of Process Serving establishment – The Sessions Judge of every Sessions Divisions shall ascertain the average number of original processes issued during the last three years from his own Court and from each of the Courts subordinate to him and the peons to be employed in the Sessions Division shall be sufficient for the execution of that number. The process serving establishment of the Criminal and Civil Courts in the State of Orissa having been amalgamated, each peon of the process serving establishment shall for this purpose, be considered capable of executing during the year the number of original Criminal Processes noted against each district in the following table –
Note – The term ‘original process’ means the original document which is filed with the record of a case, including the names of all persons residing within the jurisdiction of the Court upon whom copies of it (whether it be a summons warrant, notice or other process) are to be served in the same case and at the same time.
CHAPTER – VI
Proceedings under Sections 145 and 147, Cr.P.C.
48. Final orders in proceeding s under Sections 145 and 147, Cr.P.c. – Final orders in proceedings under Sections 145 and 147 of the Criminal Procedure Code should be drawn up in Form
Nos. 25 and 27 of the Second Schedule of the Code (High Court Forms Nos. (M) 47 and (M) 49, Volume (II) such modifications being made therein in accordance with the provisions of Section 476 of the Code as the circumstances of each case may require.
CHAPTER – VII
Confessions and statements of Accused
49. (i) Time for reflection to confessing accused – The recording of the confession of an accused person immediately on his production by the Police should be avoided. Ordinarily, he should be
allowed a few hours for reflection, free from the influence of the Police, before his statement is recorded. The Police should not be allowed to be present when a confession is recorded.
(ii) Confession to be recorded in open Court – Confession 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 interest 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) Precautions to be followed before recording confession – 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 of the same. However, it should be made clear to the prisoner that the making or with holding of a statement is within his discretion and any indication of use of improper pressure should be at once investigated.
(iv) Certificate about the genuineness of the confession – The Magistrate should question a confessing prisoner with a view to ascertaining exact circumstances in which the confession was made and the connection of the Police with it, in other words the Court should record the confessions inasmuch detail as possible with a view to obtaining materials 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 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 [vide Form No. (M)2].
(V) Warning to the confessing accused – The Magistrate should formally warn the accused though not necessarily in set words, that anything said by him will be taken down and may therefore be used as evidence against him, even if he retracts the same.
(vi) Remand to police custody – 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) Remand to Magistrate’s custody – 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 Judicial Magistrate.
(viii) Period of remand – The period of the remand should always be as short as possible.
(ix)Remand not allowed when confession is declined – 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.
(x) Statement by prisoner declining to make confession – If a prisoner produced for the purpose of making a confession declines to make any, the Magistrate before whom he is brought shall record in 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.
CASE LAW
After warning sufficient time should be given to reflect and the prisoner should be left alone for some time to collect his mind : AIR 1956 SC 217, 222 : 1956 Cri.L.J. 421. Half an hour was considered insufficient and generally it would be reasonable to insist upon at least 24 hours time : AIR 1957 SC 737.
CHAPTER – VIII
Commitment of the Accused to the Court of Sessions
50. Procedure to be followed by the Magistrate .committing an accused to the Sessions Court – 1[A Magistrate, while committing the accused to the Court of Sessions, under Section 209 of the Code of Criminal Procedure, shall supply to the accused copies of police reports and other documents as required under Sections 207 and 208 of the Criminal Procedure Code on proper receipt. All the commitment records of the Magistrate should also be sent to the Sessions Court immediately for being tagged on with the records of the sessions trial and the Sessions Judge after final disposal of the case, should consign those papers to the Record Room along with the Sessions case record for preservation and destruction with the sessions case record as per the rules prescribed. The Committing Magistrate shall also supply to the Public Prosecutor and the State Defence Lawyer, if any, a brief of the case records which shall consist of the following : –
(a) The report of the Police Officer of the complaint.
(b) The First Information Report recorded under Section 154 of the Criminal Procedure Code or the complaint petition.
(c) Sta tements recorded under Sub-section (3) of Section 161 of the Criminal Proced ure Code of all persons cited as witnesses in the charge-sheet or the statements recorded under Section 200 or 202 of the Criminal Procedure Code of all persons examined by the Magistrate.
(d) The confession and statements, if any, recorded under Section 164, Cr.P.c.
(e) Seizure Lis t.
(f) Spot Map.
(g) Inquest Report.
(h) Post-mortem certificate or injury certificate
(i) Dead body chalan.
(j) Command certificate.
(k) Letter forwarding articles to the Chemical Examiner.
(1) Report of the Chemical Examiner and seizure list.
(m)T.I parade report.
The receipt of the above shall be obtained in Form No. (M) 24 (A) and the same shall be forwarded along with the record to the Court of Sessions.
CASE LAW
When the case is committed to the Court of Session, the Committing Court shall remand to accused to custody till conclusion of trial : 1993 (I) OLR 532 : Amiya v. State.
51. Enquiry as to the means of the accused committed – When a Magistrate commits an accused to the Court of Sessions, he should enquire whether the accused has sufficient means to engage a
pleader and he should question the accused whether he desires to make his own arrangements for his defence in the Sessions Court or whether arrangements should be made by the Sessions Court to engage a lawyer on his behalf. In either case the Magistrate should when committing the accused intimate the Court of Sessions accordingly.
52. 1[The Committing Magistrate while committing the accused to the Court of Session under Section 209, Criminal Procedure Code, will fix a date on which the accused will appear in the Court of Session and will obtain a personal bond from the accused whom he releases on bail. On the accused appearing the Sessions Judge will decide whether t he case will be retained in his Court or will be transferred to the Court of additional/Assistant Sessions Judge and fix the date for appearance of the accused before the said Court.
CHAPTER – IX
Sessions Business
53. Register of Sessions cases – Cases committed to the Court of Session shall be entered in the Register of sessions cases in Form No. (R) 23 serially in the order of receipt of commitment records in the Sessions Court. The series of numbers shall be separate for each calendar year. A separate index number shall be given to each accused. Note – (1) Separate Registers for each Revenue district shall be maintained.
(2) Special cases under the Criminal Law Amendment Act, 1952 (XLVI of 1952) shall be entered in the Trial Registers in Form No. (R) 3, separate Registers being maintained for each Revenue district.
(3) For statistical purposes, sessions cases should be treated as brought to trial during the year when the accused is committed irrespective of the fact whether the records are received in the Court of Sessions during the year or during the next succeeding year.
54. Abstract of charge – Column 4 of (R) 23 is meant to contain an abstract of the charge, offences are to be stated as conscisely 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.
55. Reasons of adjournment and passing of light or severe sentence to be noted in the Register – In the column of Remarks of Form (R) 23, Sessions Judges should state the grounds of
postponement when any trial is postponed; the sentence passed on any prisoner 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; 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 Chapter – XXX of the Code of Criminal procedure.
56. Particulars of previous conviction – 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 of Remarks of (R) 23, the date of each previous conviction, the offence charged, and the sentence passed on each occasion.
57. Priority to sessions case – Sessions cases should usually be given preference over civil and other criminal matters, but every Sessions Judge should arrange as he finds most convenient, for the disposal of urgent civil and criminal matters.
58. Sessions case to be heard in order of receipt – Sessions trials should ordinarily be held in the order in which commitments are made. Sessions Judge should, however, exercise his discretion in the matter of giving priority to certain cases, particularly cases involving capital sentence subsequently received judging the seriousness of the offence and the convenience of the accused. It should always be the endeavors of every Sessions Judge to see that the sessions trial is brought to a close with due expedition and without unnecessary adjournments.
59. Fixing Circuits at a place not notified – If any Sessions Judge wants to fix any circuit at a place not notified to be a place of circuit, he should in advance intimate the reasons thereof to the High
Court and obtain prior approval.
60. Arrangement of Sessions business in Circuits – As far as possible at least two sessions cases should be posted for hearing in every circuit. Part-heard sessions cases should be combined with other sessions cases. A circuit solely for the purpose of consideration of charge or hearing on the question of sentence or for delivery of judgment should, as far as possible, be avoided. If, however, no other business is available, the Sessions Judge should devote the rest of the day in inspection work. Instances of fixation of circuits for anyone of the above purposes should be intimated to the Court.
61. Posting of civil and criminal appeal – The Sessions Judge may also post some civil and criminal appeals 1[and civil and criminal revisions] arising out of the place of circuit and presented by local lawyers for hearing along with sessions cases.
62. Court hours not to be spent on journey – Save in exceptional circumstances working hours of the Court should not be wasted merely for journey to and from the place of circuit and the place
of the headquarters.
63. When an Asst. Sessions Judge to submit records to the Sessions Judge – When an Assistant Sessions Judge on consideration of the records and documents and after hearing the parties
finds that a case comes within the purview of Section 228 (l) (a), Criminal Procedure Code, he shall instead of framing charges resubmit the record to the Sessions Judge along with a report supported by reasons that the case is not triable by the Court of Sessions. The Sessions Judge would then make arrangements for transfer of the cases to the file of the concerned Chief Judicial Magistrate for disposal according to law.
64. Arrangement to be made when Sessions Judge is unable to proceed to a place of circuit – When a Sessions Judge has fixed cases at different places of circuit one after another, and is unable to close the case at the first place to enable him to proceed to the next place, he shall make such arrangements sufficiently ahead at the second place as he deems fit to relieve the prisoner from unnecessary prolonged detention as also to minims inconvenience to the witnesses.
65. Rules relating to appointment of the State Defence Counsel Rules, 1974 as amended is reproduced below:
(1) These rules may be called the ” Appointment of State Defence Counsel Rules, 1974″.
(2) They shall extend throughout the State.
(3) These rules shall come into force at once.
(4) 3[(a) State Defence Counsel- ‘State Defence Counsel’ means a counsel appointed by a Court of Sessions or by a Court of Magistrate for defence, at the expenses of the State, of an accused who is not represented by a Pleader and who has not sufficient means to engage a Pleader in sessions trial or in any other criminal trial, as the case may be.
(b) If an appellant in a Criminal Appeal pending before the Sessions Judge/Additional Sessions Judge/ Assistant Sessions Judge has no means to engage an advocate or if an advocate appearing for him does not attend the Court and does not argue when called on for hearing or submits a memo of “no instruction” the Sessions Judge, or the Additional Sessions Judge or the Assistant Sessions Judge, as the case may be, shall appoint an advocate amicus curiae to represent the appellant and dispose of the appeal after hearing him.
(C) The advocate amicus curiae so appointed shall be governed by the same terms and conditions which govern the State Defence Counsel appointed in a Sessions case under these rules.
(5) Panel of Defence Counsel – The Sessions Judge shall prepare a panel of legal practitioners with their consent for each place of sitting of the Court of Sessions and for each Magisterial Station in his Sessions Division, keeping in view the need of such station, for being appointed as State Defence Counsel every calendar year.
(6) (i) Qualification – A person shall be eligible to be included in the panel for appointment as State Defence Counsel in sessions cases only if : (a) he has been in practice as a lawyer for not less than 7 years ; or
(b) he had been a member of Judicial Service of the State for not less than 7 years : Provided that in computing the period of service as aforesaid, the period of practice as a lawyer shall be taken into account.
(ii ) A person shall be eligible for inclusion in the panel of State Defence Counsel in Magisterial Courts only if :-
(a) he has been in practice as a Lawyer for not less than 5 years; or
(b) He had been a member of Judicial Service of the State for not less than 5 years.
(7) A Court of Session or a Criminal Court shall not, so long as a Panel Lawyer is available, appoint an outsider as State Defence Counsel.
(i) Resignation – Any person in the panel may tender his resignation in writing to the Sessions Judge.
(ii) Filling up vacancy – Any vacancy in the panel caused by resignation or otherwise may be filled up by Sessions Judge.
(iii) Penalty for negligence or refusal to accept any engagement – If any person after having agreed to serve in a Panel neglects or refuses to accept an engagement without any reasonable cause his name will be struck off the panel.
(iv)Removal from Panel – If any counsel after accepting any engagement neglects or refuses to discharge his duties properly, his name may be struck off the panel.
(8) Time for appointment – The appointment of State Defence Counsel shall be made, sufficiently ahead of the commencement of the trial. The concerned Magistrate shall make the appointment from out of the panel prepared by the Sessions Judge under Rule 5 for that station.
(9) Supply of brief – The Sta te Defence Counsel shall be furnished with a brief of the case free of cost at least seven days before the commencement of the trial. If after appointment of State Defence Counsel, the accused appoints another counsel, the appointment of State Defence Counsel shall cease and the brief prepared for the State Defence Counsel shall be made available to the Counsel privately engaged by the accused.
(10) Grant of free copies – No fees are to be required or paid for searching for or copying papers wanted by the State Defence Counsel for the purpose of defending the accused in the case.
(11) Fees of defence counsel – The daily fees of the State Defence Counsel in Sessions and Criminal Cases shall be the same as the fees of Public Prosecutor or Assistant Public Prosecutor, as the case may be, as fixed by the State Government from time to time.
(12) Fees when employed outside headquarters – The fees of the State Defence Counsel when employed outside their usual headquarters shall be double the usual daily fees at the headquarters.
(13) Fees during halt on holidays – The daily fees at the headquarters shall ordinarily be allowed to the State Defence Counsel for the days of necessary halt at intervening holidays during the absence from headquarters.
(14) No fees if case is adjourned without hearing – 1[The State Defence Counsel shall not be entitled to any fee on dates when cases are adjourned without hearing but half fee may be admissible when he attends the Court to hear the judgment pronounced or for all un-expected adjournments of a case and for putting appearance in interlocutory matter including hearing of bail applications.]
(15) Travelling allowance – The State Defence Counsel shall be entitled to traveling allowance at the rate admissible to Public Prosecutors.
(16) Separate defence counsel for separate accused when necessary
– If a State Defence Counsel has to be engaged for several accused persons and their respective defences are such that it appears to be undesirable to entrust the defence of all the accused persons to a single Counsel, as many pleaders may be appointed for the defence, as the necessity of the case seems to require : Provided that a single Defence Counsel shall be appointed for more than one accused unless there is conflict of interest.
CASE LAW : Whenever a criminal appeal is filed and the appellant does not appear, then the course open to the appellate Court is to appoint an Advocateemicus curiae: Tikan Bindhani v. State of Orissa : 2010 (I) OLR 190.
CHAPTER – X
General Provisions as to Enquiry or Trial
66. List of witnesses to be filed in the first hour – In Sessions cases and Police cases, the Public Prosecutor or the Assistant Public Prosecutor and in non-police cases the parties shall be required to
make over to the Bench Clerk not later than 11 A.M. (Standard time) in case of day siting and 7.30 A.M. (Standard time) in case of morning sittings, a list, verified dated and initiated by such officer or the witnesses who are in attendance for examination. The o missions of a name of the witnesses from the list shall be no bar to such witness being examined if presented for examination but no costs shall be allowed to any witness on account of his expense for the day’s attendance if his name is neither entered in the list nor he is 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 the witnesses entered in the lists mentioned in this rule but also of those whose names though not so entered are actually examined will find entry in the Register of attendance of witnesses which is to be filled up by the Bench Clerk.
67. Convenience of lawyers no ground for adjournments – The convenience of lawyers shall not ordinarily be regarded as a good ground for adjourning a case.
68. Examination of witnesses proceeding outside India – All Courts should take care that officers who are about to proceed on leave out of the State, are examined before their departure, in any pending criminal cases in which they are important witnesses.
69. Prolonged postponement of cases for examining handwriting expert to be discouraged – Where the evidence of the Government expert in handwriting 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 handwriting should be discouraged.
70. Accused may sit during trial – The accused person should be informed by the Court at the beginning of every trial that he may sit, if he desires to do so, and chairs or benches should, whenever available, be provided for this purpose. The accused must, however, stand up, whenever he is addressed by the Court.
71. Witnesses to give evidence from the witness box – No witness should be provided with any seat in the dias. All witnesses should give their evidence from the witness box. A witness should
normally stand when giving the evidence. But, however, a chair may be provided in the witness box, upon which any witness may sit receiving the prior permission of the Presiding Judge or Magistrate, as the case may be. This permission may be given on valid grounds such as (a) health, (b) age, and (c) the length of time to be occupied in giving the evidence and the like.
72. (1) Verification of solvency of sureties – The responsibility for accepting the surety as solvent for the required amount is primarily that of the Presiding Officer of the Court and in ordinary cases he should discharge it himself by making such summary enquiry as in the circumstances of the case he might think fit. This enquiry should in no event be left to be done by the Bench Clerk or any other official of the Court.
(2) Insistence upon the possession of immovable property by sureties in bonds of small amounts not exceeding R. l,OOO would cause serious inconvenience to the accused in procuring a surety. The Judge or Magistrate may, therefore, in suitable cases, where the amount of the bond does not exceed R. l,OOO / – assess the solvency of the surety even upon the basis of his movable property and assets. The intending surety should present his application for surety ship in Form No. (83-A). The Judge or Magistrate should consider the application in the light of proof produced and, if necessary, examine the surety personally and may also require further proof as he deems fit. The Judge or Magistrate after necessary enquiry may pass an order either accepting or rejecting the application.
72. A. Whenever an accused is released on bail he need not ordinarily be required to appear before the Court until the charge sheet is filed and the process is issued by the Court. The Magistrate while releasing the accused on bail should require execution of a bond with or without surety, as the case may be, binding the accused not only to appear as and when required before him but also to appear when called upon in the Court of Sessions.
CHAPTER – XI
Mobile Courts
73. Holding of Mobile Courts – The Judicial Magistrates who have powers to take cognizance should comply with the requisitions for holding Mobile Courts but always subject to their previous engagement in the Court.
74. Mobile Court Magistrate should dissociate from Police Officers – The Judicial Magistrates should dissociate themselves from investigation or detection of offences by the Police and Excise
Officers.
75. Manner of noting the Mobile Court cases in the Register – The Judicial Magistrate holding Mobile Courts should take with him the Trial Register of his Court and enter all cases of which he takes cognizance during mobile duty. After return to the Court, the Bench Clerk should fill up these cases in the appropriate Register in Form No. (R) 1 with the help of the Trial Register and also fill up Column 2 of the latter Register. To facilitate quick compilation of figures, these cases may be indicated by the letter ‘M’ below the serial number of the cases in Column 1 of the Trial Register for the purpose of distinguishing them from the regular cases.
76. ReaIisation of fines in Mobile Courts – Realisation of fines imposed in Mobile Courts should in no case be left to the Bench Clerk. The Magistrate holding Mobile Court should himself collect the fines and deposit the same with the Nazir on return to headquarters.
77. Issue of receipts – The Magistrate shall issue a receipt in Form No. (A) 8-D to the persons paying fines at the spot in the Mobile Court.
CHAPTER – XII
Commission for Examination of Witnesses
78. Commission to the Master of the Mint of the Controller of Paper Currency – When the evidence of an officer connected with the Mint of the Currency Department at Calcutta is required as to the genuineness or spuriousness of a coin or currency note, the Court or Magistrate concerned should ordinarily send the coin or currency note, to the Magistrate of the Mint or the Controller of paper currency as the case may be, under cover of the Court-seal or by a messenger for his examination and report. As to the summoning and examining officers of the Mint, attention of the Judicial Officers is drawn to Section 292 of the Criminal Procedure Code, 1973.
79. Commission to t he Controller of Printing, Stationery and Stamps, Calcutta – Summoning of officers of the Stamp Department, Calcutta to give evidence in Criminal Courts regarding the secret water mark causes considerable inconvenience to that Department. In cases, therefore, in which such evidence is required the Court should, unless there be special reasons to the contrary, consider the desirability of sending the papers to the Controller of Printing, Stationery and Stamps, Calcutta, under cover of the Court-seal, or by a messenger for his examination and report. As to the summoning and examining officers Of the Controller of Printing, Stationery and Stamps attention of the Judicial is inflicted to the Criminal Procedure Code, 1973. Note – The procedure indicated in Rules 78 and 79 above shall be followed mutatis mutandis for the examination as witnesses of the Indian Security Press, Currency Note Press and the Central Stamp Store, Nasik Road.
80. Issue of commission of foreign Court – Commission for the examination of witnesses residing in the foreign countries to be issued under the Criminal Procedure Code, 1973 should be issued to the Courts or Judges or Magistrates as specified in Appendix VII as having authority in this behalf in’ that country.
81. Form to be used – In issuing such commission, Form No. (M) 88-A should be used except in the case of colony of Singapore in respect of which Form No. (M) 88-B should be used.
82. Commission to be forwarded through High Court – It should be noted that commission issued to witnesses residing in the colony of Singapore are to be forwarded through the High Court which has to forward it direct to the High Court in the colony of Singapore unlike the Commission issued to witnesses residing in other foreign countries specified in Appendix VII which have to be sent through the Channel of Ministry of External Affairs, Government of India, New Delhi, for onward transmission to the foreign Courts concerned.
CHAPTER – XIII
Mode of Recording Evidence
83. Manner of recording deposition – Depositions should be written on both sides of the paper, a margin of one-fourth of the sheet being left blank. Only one deposition should be written on each sheet of paper.
84. Use of typewriting machine f or recording deposition –
A typewritten machine may be used for the purpose of recording depositions and memoranda of evidence in criminal cases. The typewriting machine must be used by the Presiding Officer himself or by the person who records the depositions and memoranda of evidence to the dictation of the Presiding Officer in open Court and 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.
85. Description of witness and accused to be in the hand of the Presiding Officer – Every Sessions Judge and Magistrate shall, in the examination of witnesses and accused persons, record in his own handwriting 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, profession and age of the witness or accused person and the village, thana and district in which the witness or accused person reside. 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.
86. Expression of doubtful expressions – (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 defence with which the accused is charged, the words actually used should be transliterated in order that the Court may be in a position to determine their exact signification.
(b) Use of interpreter – Should any instance occur in which a foreign language is used or in which the evidence may be given in a dialect with which a Judge may be unaccustomed, an i nterpreter may be employed.
(c) Expenditure of interpreter – All Sessions Judges and District Magistrates are authorised to incur expenditure on account of interpretation of evidence given in Kui, Khond, Ho, Savara and other
Adibasi languages not understood by the accused or Court or the Lawyers, 1[to a limit not exceeding Rs.25/- per day]. Sessions Judges and District Magistrates are also empowered within the limit
prescribed to pass similar charges incurred by Magistrates subordinate to them. Sessions Judges and District Magistrates will report to the High Court expenditure incurred under this rule, as it is incurred.
87. Deposition to be paragraphed – Deposition of each witness should be separately paragraphed and consecutive numbers. should be assigned by them.
88. Reading over certificate to be personally signed by the Presiding Officer – The Magistrate or Presiding Judge shall personally sign the certificate at the bottom of the deposition of each witness to the effect that “Read over and explained to the witness in presence of the accused/pleader representing the accused and admitted to be correct.”
CASE LAW
Rule 88 – Magistrate/Presiding Judge, shall personally sign certificate at Bottom of deposition of each witness – Duty of trial Jutiqe or Magistrate – Discussed: Radheshyam Singhania v. Ranjit Kumar Patnaik and another : Rule 88 – Trial Court’s duty under – Indicated. Held, according to the provisions in Chapter XIII in the General Rules and Circular Orders of the High Court of Judicature, Orissa (Criminal) (Vol. I) in Short, “G.R.C.O.)Rule 88 after recording the deposition of a witness it is a bounden duty of a trial Judge or the Magistrate, as the case may be, to read over and explain the contents of the deposition to the witness in the language he understands and thereafter the witnesses called upon to sign on the deposition and accordingly that certificate is granted: Radheshyam Singhania v. Ranjit Kr. Patnaik and another : 85 (1998) CLT 407 : (1998) 15 OCR 282.
89. Deposition regarding several accused of the same name at one trial – 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 such witness, to specify the name of the father of the accused whenever the name of anyone of them is mentioned.
90. Evidence of person who is about to die – When any person whose evidence is essential to the prosecution of criminal charge against any accused person, 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 such persons, if possible, be recorded in the presence of such accused person (if any), or of attending witnesses, and in the event of his death, submitted at the trial as evidence of this fact.
91. Marking of documents on behalf of defence on – The Courts shall mark the documents (a) which are admitted as evidence on behalf of the prosecution with figures in the order in which they are admitted thus : Exhibit I, Exhibit 2, etc.
(b) Making of documents on behalf of defence – The documents admitted as evidence on behalf of the defence with capital letters, thus : Exhibit A, Exhibit B, etc.
(c) Documents marked by the Court – When documents are admitted at the instance of the Court and neither party is willing to accept them as evidence on his behalf, they shall be marked as C-I, .C-II, etc., Etc.
92. Marking of a series of documents of the same nature – When a number of documents of the same nature are admitted, as for example a series of receipt for rent, the whole series shall bear one
number or capital letters, a small number, or small letter being added to distinguish each paper of the series, thus :
93. List of documents admitted in evidence – A list of the documents admitted in evidence on behalf of the prosecution and another of document admitted in evidence of 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) 20, Volume II].
94. Whenever a document is admitted in evidence it should not ordinarily be returned until the case in all its stages is over. Return of documents may, however, be ordered whenever the Court is of opinion that a reference to the original documents is not necessary. But in all such cases the document can only be returned on substitution of a certified copy.
95. Separate file for documents received in evidence – 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 is to be attached to the list referred to in Rule 93. This file will include not only documents produced for other purposes, but also documents used to refresh the memory of witnesses, e.g., reports of a medical witness, etc.
96. Documents not admitted in evidence – 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 pleader after he has signed the receipt for the same in the appropriate column of the list [Form No. (M) 21]. A Pleader when required to do so is bound to take back any document produced by his client which has not been admitted in evidence and to sign the receipt referred to above.
97. Marking of Articles admitted in evidence – 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 Number, thus – M.O.I., II, III, etc.
98. List of articles admitted in evidence – List of such articles admitted in evidence shall be prepared by the Clerk of the Court, and shall be signed by the Judge. 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) 20, volume II].
99. Return of articles to be marked in the list – 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.
CHAPTER – XIV
Judgment and Sentence
100. Judgment to be legibly written – Judgment should be written with a margin of one-fourth of each sheet being left blank.
101. Procedure when the Judgment is transcribed by Stenographer or typed by Typist – A Stenographer may be employed to record judgment in criminal cases, provided that the Presiding Judge attaches a certificate to the effect that the judgment has been recorded Athis dictation and attests each page thereof by his signature.
Note – (1) When a Presiding Judge uses a typewriting machine himself, a certificate must be given that this has been done and each of the record so made shall be attested by his signature.
102. Judgments to be paragraphed – Judgment should be written down in separate paragraphs by assigning consecutive numbers to them.
103. (a) Remarks in culpable homicide cases – Sessions Judges, in all cases in which they convict persons for culpable homicide not amounting to murder, shall invariably mentioned in their judgment the circumstances under which the culpable homicide was held not 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.
104. Noting the nature of case at the end of acquittal judgments
– The Judicial Magistrates are required to declare at the end of their acquittal judgments whether the cases are found to be true, intentionally false, mistake of fact or mistake of law, as the case may be, for statistical purposes.
105. (a) Hearing on the question of sentence – The hearing of argument on the question of sentence should be taken up soon after the pronouncement of the judgment of conviction. If, however, it is considered necessary to adjourn hearing on the question of sentence, adjournment may be granted for a short period and necessary measures 1. Deleted by C.S.No. 4-XLlX-D-21 /79, dt. 19.10.1979. may be taken for securing the attendance of the accused on the date of hearing on the question of sentence and the passing thereof.
(b) Judgment in any criminal case cannot be deemed to be complete unless the sentence is passed. The Presiding Officers should, therefore write and sign the judgment up to the stage of finding the accused guilty and convicting him for particular offence and after completion of the hearing of argument on the question of sentence, the Judge or the Magistrate, as the case may be, may pronounce the sentence imposed. The list of witnesses examined, documents and material objects exhibited should then be appended to the judgment thereby making it complete in all respects.
106. Procedure of passing enhanced sentence – 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 such previous conviction and the sentence passed as well as particular offence charged.
107. Mode of recording of order of acquittal of Lunatics – The following is suggested a suitable form of finding of acquittal on the ground of insanity:
108. List of witnesses, documents and material objects to be appended to the judgment – The list of the witnesses examined, the documents and material objects admitted in evidence in the case should be appended to the judgment of every case in chronological order. For copying purposes, however, such lists will not be treated as a part of the judgment unless the copy applied for is for the purpose of appeal or revision.
109. Time for delivery of judgment – Ordinarily judgment in all criminal cases, appeals and revisions should be delivered soon after the hearing. But where it is not possible to do so, either on account of the length of the case or for other sufficient reasons, the delivery of judgment should not be postponed sine die. A definite date should be fixed not more than 1[three weeks] after the conclusion of arguments on which the judgment should be delivered. But in any case, the judgment must be delivered within 30 days from the date of conclusion of arguments. All cases in which the judgment is not delivered within ‘[three weeks] from the date of the conclusion of argument, should be brought to the notice of the Registrar, High Court direct by means of a demi-official letter by the first day of every month next succeeding the date of delivery of the judgment furnishing copies thereof to the respective Sessions Judges stating therein the names of the parties and the numbers of the cases in which judgments are delivered after more than 1[three weeks] in their respective Courts. Particulars as to the number of adjournments made, if any, after the conclusion of hearing and the dates of such adjournments till the delivery of judgments shall also be stated.
Note – The period of 30 days and 2[three weeks] may be reckoned from and exclusive of the date on which arguments are heard and concluded.
110. Delivery of all pending judgments by Judicial Officers either proceeding on leave or on transfer – Judicial Officers before proceedings on leave or transfer and before making over charge should deliver all pending judgments and intimate the fact of clearance to the Sessions Judge and in case of Sessions Judges to the High Court.
111. (a) Communication of observations in judgments – When a Sessions Judge or a Magistrate has any occasion in any judgment whether at any 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 District Magistrate for his information and necessary action.
(b) Observations, either of an adverse or commendatory nature made about an Executive Magistrate by any Sessions Judges or Judicial Magistrate should be forwarded to the State Government in Home Department by the Sessions Judge concerned, for their information and necessary action.
(c) Such observation made about any other public servant made by the Court of Sessions or Magistrate should be brought to the notice of his immediate superior officer.
112. (a) Forwarding copies of judgments of Courts to different authorities – 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 and also when such conviction and sentence are confirmed in appeal, a copy of the judgment should be sent by the Criminal Court or the Appellate Court, as the case may be, to the Controller of Defence Accounts (Pension), Allahabad and another copy to the pension paying officer concerned.
(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 Commandant of the Regimental Centre (Ministry of Home Affairs letter No. 110/50-Judl., dated the 12th October 1950). A list of Regimental Centres will be found in Appendix VI.
1. Sessions Judges and Magistrates shall forward to the Registrar of the Council of Medical Registration, Orissa, free of charges, 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 unfavorable remarks on the professional conduct of a Registered medical practitioner, whether accused in the case or a witness, a copy of the judgment 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.
2. Sessions Judges and Magistrates shall forward to the Inspector General of Registration, a copy of judgment in which the official character and conduct of a. Registering officer is impugned.
3. Copies of judgments should be sent by all Sessions Judges and Magistrates to the Forensic Science Laboratory in all cases where a reference was made to the Laboratory for examination of exhibits which helped the investigations of cases. Copies of such judgments or orders or the manner of disposal of the case may be sent to the S.P. (C.I.D.) Crime Branch who will transmit the same to the Laboratory concerned.
(F) Copies of judgments in cases tried by a Court of Session or a Chief Judicial Magistrate should invariably be sent to the District Magistrate concerned within 3 days of the delivery thereof.
(g) In all criminal cases instituted on the complaint of a Court, a copy of the trial Court’s judgment may be sent to the complaining Court as soon as practicable after judgment has been pronounced.
113. Copy of Sessions judgment to committing Court – Copies of judgments in sessions cases should be sent to the committing Court who after making necessary entries in the concerned Registers
shall return the same.
114. Copy of appellate judgment to the trial Court – The appellate Courts shall send a copy of judgment in appeal to the Court against whose judgment the appeal was preferred.
115. Shorthand note books to be page-marked and signed – Every shorthand note book used by a Stenographer for taking down dictations of judgments and orders shall be page marked consecutively according to the sequence in which the pages of the note book are made use of and signed by him in each page. He shall put his signature with date at the end of the record of every dictation.
CHAPTER – XV
Appeals
(CHAPTER – XXIX, CR.P. CODE)
116. Separate or joint appeals – Where several accused persons are convicted in a single trial, each of them can prefer an appeal against his conviction either separately or jointly with one or more of the other accused when one accused has been convicted at different trials, he should prefer a separate appeal in each case.
117. Manner of forwarding Jail appeals – 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) 16, Volume II] addressed to the Registrar with 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.
118. Manner of intimation of the date of hearing and calling for record – In the case of appeals preferred to the Court of Session by persons convicted or directed to execute bonds under Sections 108 to 110, Cr.P.c. by Judicial Magistrate or directed to execute bonds under Section 107, Cr.P. C. By an Executive Magistrate at the Sadar Subdivision of a district, the letter intimating the date fixed for the hearing and calling for the record of the case [Vide Form No.(M) 11, Volume II] should be sent by the Sessions Judge to the Chief Judicial Magistrate in case of appeals against the sentence or order of a Judicial Magistrate or to the District Magistrate in case of appeals against the order of an Executive Magistrate for compliance. In the case also of persons convicted or directed to execute bonds as aforesaid by Magistrates at other subdivisions the letter should be sent to the Chief Judicial Magistrate or the District Magistrate as the case may be for compliance, and duplicate thereof sent’ at the same Time, to the Sub-divisional Judicial Magistrate or Subdivisional Magistrate concerned.
Note – Notice of hearing of the appeal shall be given to the complaint (Private prosecutor, mentioning therein that the State has the right to appear to oppose the appeal and that except where the right is given by the law to him, the person to whom the notice is issued, requires the permission of the Court to appear, and ordinarily will not receive such permission, if the State appears.
119. Forwarding sessions records to the High Court – When the record of a case tried at the Sessions is submitted to the High Court, the Sessions Judge shall forward simultaneously all the police
diaries connected with the case. He should also forward such of the material exhibits 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 exhibit directly connecting the accused with the crime. In murder and homicide cases all weapons of offence should invariably 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.
Note – When records are called for by the Appellate Court for purpose of reference in appeals, revisions and references, the trial Court or the Court which is in custody of records should call for all the records and documents even if they were returned to the parties, make the records complete and then send them to the Appellate Court.
120. Report about the means of the accused to engage a pleader-When the records of a case tried at the Sessions is submitted to the High Court in connection with Section 366 or 378 of the Code of
Criminal Procedure, the Sessions Judge shall also state whether the accused has funds or not to employ a pleader in the High Court for his defence and in the case of an appeal under Section 378 or of a revision under 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 Chief Judicial Magistrate shall, in returning the notice, state thereon whether the accused has funds or not to employ a pleader in the High Court.
121. Manner of sending bail orders by the Appellate or Revisional Courts – When an Appellate Court or a Court of Revision directs 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 Chief Judicial Magistrate or if the order under appeal or revision was passed by a Court in an outlying subdivision, in the Alternative to the Sub-divisional Judicial Magistrate of such subdivision or, if the said order was passed by a Court not at the sub-divisional headquarters, to the Judicial Magistrate concerned and send a copy of the order to the trial Court. The Magistrate concerned shall comply with the bail orders on the every day of its receipt and in case of non-compliance
on that day shall note the reasons for the same in the order sheet. If such person is unable to furnish the bail required to him, the Court receiving the warrant for the release of the prisoner on bail shall forthwith return the same to the Appellate Court or the Court of Revision which issued it, with an endorsement thereon to the effect that the prisoner is unable to furnish the bail.
CASE LAW
Duty of the Magistrate to keep the appellate Court and the revisional Court informed in case the accused does not furnish bail within 15 days – Bail order should be treated to be operative even after that – Prisoner should be released on bail as soon as he is able to furnish the bail bond – Magistrate need not wait for any further clarification or order from appellate/revisional Court : Thabir Suna v. State of Orissa : 1999 (II) OLR 257 : I (2000) CCR 166 (Cri.).
122. Order of suspension to be sent to Jail – Whenever an Appellate Court orders the suspension of the execution of a sentence of imprisonment under Section 389 of the Code, it shall send a copy of the order to the Superintendent or Officer-in-charge of the Jail in which the appellant is confined.·
123. Effect of order of suspension – The effect of an order by an Appellate Court suspending the execution of a sentence of imprisonment pending disposal of an appeal, is that the appellant, if detained in jail, is to be treated, in all respects, as an under-trial prisoner.
124. In case of an order for stay of realisation of fine, it will have the effect of suspension of all proceedings relating to real isation of fine and warrant for realisation of fine issued shall, on receipt of order of stay, be forthwith recalled.
125. Application for return of articles retained in the High Court – Articles as are sent up with the record such as Sticks, Stones, Knives, Bill hooks, Axes, Guns, rags or clothing, earth, etc. And all
articles of trifling values are ordinarily retained in the High Court and destroyed there. Any application for the return of these articles (for return to parties or for reference in any other case) or of any articles that High Court has omitted to return, shall be made within one month from the date on which the records of the case are received back in the Lower Court.
CHAPTER – XVI
Reference and Revision
126. Certificate in revision application – Every criminal revision application shall contain a certificate that no revision application in respect of the same matter has been previously filed.
127. Certified copy of judgment or order to be filed in revision cases – Every criminal revision application shall invariably be accompanied with a certified copy of the judgment or order sought to be revised.
128. Compliance of requisitions of Sessions Judges – Sessions Judges are guided but not to go beyond the following instructions in communication with the Magistrates. Chief Judicial Magistrates and District Magistrates are to comply with all requisitions for records, returns and information made by Sessions Judges with regard to any case appealable to them or referable by them to he High Court, decided by any Judicial Magistrate or Executive Magistrate respectively or made by Sessions Judge under the orders of the High Court in exercise of their duties of superintendence
over subordinate Courts. The Chief Judicial Magistrates and District Magistrates are also to render any explanation which the Sessions Judge may require from them and to obtain and submit any explanation which Sessions Judges may require from the Judicial Magistrate and Executive Magistrates respectively in order to assist the Appellate Courts in respect of. all the three classes of cases above referred to.
Note – The attention of Sessions Judges and Chief Judicial Magistrates is invited to the provisions of Section 405 of the Criminal Procedure Code that in the case of prisoners whose conviction and sentence by a Magistrate is affirmed by a Court of Session or Chief Judicial Magistrate but modified by the High Court of Sessions Judge on revision it is the duty of the Sessions Judge or the
Chief Judicial Magistrate, as the case may be, to whom the decision or order of the High Court or Sessions Judge is certified, to issue order comfortable to the decision so certified.
129. Manner of calling for the records – When the record of a proceeding in the Court of any Judicial Magistrate or Executive Magistrate is called for by the Sessions Judge under Section 395,
Criminal Procedure Code, it shall always be done through the Chief Judicial Magistrate or the District Magistrate respectively.
130. 1[ * * * ]
CHAPTER – XVII
Execution of Sentences
(CHAPTER – XXXII, CR.P.C.)
131. 1 [Whenever a Magistrate convicts an accused and sentences him to fine either with or without any substantive sentence of imprisonment, there should be a separate order mentioning whether the fine has been paid or not and if the fines is not paid, there should be a further order in the order-sheet to start a miscellaneous case in which the original order of the Court imposing the fine and default sentence should be extracted. The Magistrate should then take action in the miscellaneous case record either to grant time under Section 424 of the Code of Criminal Procedure or to send the accused to jail custody. The miscellaneous case should bear a separate number in order to distinguish it from the original case record. The question of issue of warrant for
realisation of fine may be taken up only after the accused has undergone the whole of default sentence. In this connection, reference is also invited to Sub-rule (b) of Rule 140 infra].
132. (a) Issue of Fine Cheque – When an offender is sentenced to fine by a Magistrate, a small printed form, called the Fine Cheque, shall be at once filled in by the Bench Clerk with the
particulars, and sent by him with the person fined, in charge of a constable, to the Nazir, i.e., the Clerk who is employed as the cashier.
(b) The printed forms prescribed in the above rule will be bound together like a cheque book, each book containing 100 forms with the serial numbers printed on both foil and counterfoil. The foil or outer section will be torn off and sent with the person fined to the Nazir and the counterfoil retained in the Magistrate’s office. The form should be used by the Magistrate in all cases, whether the fine is imposed by himself or by the Court of Sessions or High Court. The counterparts will enable the Register of Criminal Fines to be easily checked.
133. (a) The duty of Nazir on receiving the Fine cheque and the convict – The Nazir will call upon the prisoner to pay the amount of fine. If the fine be paid in full the person fined should be released unless he be also sentenced to substantive imprisonment. The Nazir will then report the fact to the Court on the foil received by him from the Bench Clerk. If the sentence be one of fine only without any imprisonment in default of payment and the fine be paid. in part, the prisoner ‘Will be released and the sentence in order that a warrant may be issued for the realisation of the
balance. If the sentence be one of fine only and the fine be not paid tall, the Nazir shall apply for a warrant for the realisation of the whole amount and other necessary orders. No person not under sentence of imprisonment alternative or otherwise shall be detained on account of inability to pay the fine. Where the sentence is one of fine, with or without a substantive term of imprisonment, but with an alternative sentence of imprisonment in default of payment of the fine, if the fine be not wholly satisfied at once, the Nazir shall report to the Court which imposed the sentence for its orders as to the term of imprisonment proportionate to the amount still unpaid which, under Section 69 of the Indian Penal Code, the convicted person has yet to undergo. In such cases the fact of the payment of the fine, in part, should be noted on the warrant of imprisonment by the Magistrate who issued it. Where, however, the fine has not at all been paid, the fact of non-payment should be noted in the warrant of imprisonment in every case.
(b) Duty of the Clerk-in-charge of the fine Register – The Clerk-in-charge of Fine Register who will ordinarily be the Magistrate’s peskar, will make the necessary entries in the Register of
Criminal Fines. The foils with the Nazir’s report thereon shall be shown to the Clerk-in-charge of the Fine Register without delay.
134. Receipt for payment of fine – A receipt should be granted to the person paying a fine by the Nazir in Form No. A-8 (D).
135. Procedure on realisation of fine during the currency of the term of Imprisonment – Any payment made during the currency of the term of imprisonment must be at once reported by the Nazir
to the Magistrate who, after satisfying himself that the necessary entries elating to the payment have been made in the Fine Register, shall immediately give notice of such payment to the
Superintendent of the district jail in which the prisoner was first confined after conviction with a view to the amendment of the sentence of imprisonment or the release of the prisoner, as the
case may be. The fine realisation statement shall be drawn up by the Court in the prescribed form and in the English language, and shall be sent in duplicate, with the Court-seal affixed thereto, to
the jail, the original being sent on the first opportunity and the duplicate on the following day. The responsibility of the Court shall not cease until it has received back the duplicate statement with an acknowledgment from the jail showing that the necessary corrections have been made in the release diary.
Note – If the fine is paid before the transfer of a prisoner from the subsidiary jail in which he was first confined to the district jail. the fine realisation statement should be sent to the subsidiary jail.
136. (a) Procedure when Sessions Court imposes a sentence of fine – 1[When a Court of Sessions issues a warrant for realisation of fine imposed by. it the same shall be sent for realisation of the fine to the Chief Judicial Magistrates of the district who shall treat it in allrespects as a fine imposed by him. After making necessary entries in the Register of Criminal Fines maintained by him, the Chief Judicial Magistrate shall take steps for realisation of the fine amount. He is also competent to write off the fine amount in terms of Rule 145, if the fine amount cannot be recovered.
Note – If the fine mentioned in this rule was imposed in any previous quarter, it shall for all purposes be treated as an outstanding fine brought forward in red ink from the previous quarter.
(b) In cases in which the Sessions Court itself realises the fine it has imyosed, it shall prepare the usual warrant for the realisation of the fine and forward it to the Chief Judicial Magistrate of the
district with an endorsement thereon to the effect that the fine has been realised and the fine shall thereupon be entered in the Register of Criminal Fines.
137. Procedure ‘to be followed when an order of fine is either confirmed or enhanced on appeal – When an order of fine is confirmed on appeal, the fine amount will continue to be shown in the
Register in which it was originally entered and be treated as one imposed by the Court which originally tried the case. If the fine is enhanced in appeal or a new fine is imposed in modification of a sentence of imprisonment, the additional fine or new fine will be entered in the Register of Criminal Fines of the Court originally trying the case as a fine imposed by the appellate Court and for purpose of its realisation, will be treated as a fine imposed by the original Court. When a fine is enhanced on appeal, the entry of the original fine in the Register of Criminal Fines will remain unchanged, a note only being made against it about the order of the appellate Court. The trying Judge or Magistrate or his successorin- office would take necessary steps for realisation of the fine amount after disposal of the appeal.
138. Realisation of fines by police – At each Police Station a Register in Form No. (A) 19 shall be kept of all warrants received by the police for realisation of fines within its jurisdiction. Every such warrant shall specify the time within which it should be returned which ordinarily should not exceed six months. The police must return the warrant in due time whether the- amount of the fine imposed or any pad of it be realised or not. They should not retain time-expired warrants in the irpossession nor after the warrant has been returned, pay any domiciliary visit to a defaulter with a view to the realisation of any portion of the fine outstanding, unless fresh orders to that effect are issued. Any enquiries they may make when they have no warrant to authorise their action should be made only under the order of a Magistrate with a view to ascertaining whether there are grounds for the issue of a fresh warrant. Such enquiries should not ordinarily be made, by an officer lower in rank than a Sub-Inspector of Police.
Note – In exercise of the power conferred by Sub-section (2) of Section 386 of the Code of Criminal Procedure, 1898 (Act V of 1898), the Governor-in-Council is pleased to make the following
rules to regulate the manner in which warrants under Sub-section (1), Clause (a) of the said section are to be executed, and for the summary determination of any claims made by any person other
than the offender in respect of any property attached in execution of such warrant, namely :
(1) A warrant issued under Sub-section (I), Clause (a) of Section 386 of the Code of Criminal Procedure, 1898, for the levy of a fine shall ordinarily be directed to a police officer (see Form No. XXXVII, Schedule V of the said Code.) The authority issuing it shall specify a time within which the attached property is to be sold or the return of the warrant.
(2) The police officer or other person to whom a warrant is directed u nder Rule 1 shall attach any movable property belonging to the offender.
(3) If no person claims the property attached, the police officer or such other person directed to execute the warrant, shall sell it within the time specified in the warrant without any previous reference to the Magistrate.
(4) If any person makes any claim in respect of the property attached, then the ownership of such property shall be determined by the Magistrate who issued the warrant or his successor-inoffice
or the Magistrate-incharge of the accounts, The services of a Junior Deputy Magistrate or Sub-Deputy Magistrate or Circle Officer may be utilized, if necessary, for the investigation of
such claims.
(5) Subject to the proviso to Section 386 (1) of the Code of Criminal Procedure, 1898, if at any time subsequent to the return of the warrant, and within the period of six years from the passing of the sentence, the fine, or any part thereof remains unpaid (see Section 70 of the Indian Penal Code) and the Court has reasonable ground for believing that any movable property belonging to the offender is within its jurisdiction, it may issue a fresh warrant for the attachment and sale of such property. Such warrant shall be made returnable within a time to be definitely fixed therein.
139. Report about the assets of the defaulter – If it appears that a defaulter can, in all probability, pay the amount of fine outstanding against him, the police officer shall forthwith report the matter to the Magistrate having jurisdiction with a view to the issue of a warrant. In all other cases he will merely note ‘no assets’ in the remarks column, dating the entry.
Note – Report of subordinate police officer that the offender has no assets should be checked by local enquiry by a superior police officer, not below the rank of Sub-Inspector of Police before the same is accepted by the Magistrate. The checking officer should furnish a certificate to the following effect.
140. (a) Levy of fine within six years and thereafte 70 of the Indian Penal Code gives power to levy a fine within from the passing of the sentence or during the term of imprisonment the offender if this exceeds six years. But this is subject to the provisions contained in the proviso to Section 421 (i) of the Code of Criminal Procedure.
(b) 2[ * * * ] Should the fine be paid or levied by process of law, whether in whole or in part while the offender is undergoing imprisonment in default, Sections 68 & 69 of the Indian Penal Code will apply. When, however, efforts made to realise the fine in full have proved unsuccessful and the offender has undergone the whole of the imprisonment awarded in default of payment of the fine, the Court must proceed according to the proviso to Section 421 (1) of the Code of Criminal Procedure. Before issuing a warrant in such a case, the Court must record in writing the special reasons which, in its opinion, make the issue of a warrant necessary, it would, for example, be open to the Court to take into consideration such a fact as the persistent refusal to pay fine by an offender who is well able to do so. On the other hand it would also be open to the Court to consider whether the circumstances of the case or the means of the offender justify any further action.
(c) In cases where a substantive sentence of imprisonment is awarded in addition to a sentence of fine, a warrant for the levy of the amount by distress and sale of movables should, if the Court elects to adopt this particular method, be issued with as little delay as possible. Realisation or payment of the fine in whole or in part while the offender is in jail whether under the substantive sentence or the sentence in default will under Sections 58 and 59 of the Indian Penal Code cancel or proportionately reduce the sentence of imprisonment awarded in default. When, however, the offender has undergone the full term of imprisonment awarded in default and the fine still remains unrealised the Court must proceed, as indicated above, in accordance with the proviso
to Section 421 (1) of the Code of Criminal Procedure.
141. Entry of warrants in Thana Register – Warrant of this description, subsequent to the first must be entered in the Thana Register in red ink but be treated as a fresh entry, a reference being made in the remarks column to the year and number of the original warrant.
142. Enquiry as to the assets of a defaulter after his death – In the event of the death of a defaulter being reported one final and formal enquiry should be made as to whether he has left anywhere any property of any kind liable for his debt.
143. Return of warrant after realisation of fine – All fines realised should be remitted with the returned warrant at once to the Magistrate’s Nazir. The Nazir shall sent the returned warrant to the Clerkin- charge of the fine Register noting on it the amount received and the date of receipt.
144. (a) Inspection of Thana Register by the Magistrate – The Magistrate should call for the Register of each Thana at least once a quarter and have it compared with the Fine Register of his Court. He should also note that the police enquiries have been regularly made and properly recorded . .The comparison must never be made by the Nazir. It should, when possible, be done by a Magistrate.
(b) Entries in the Thana regarding realisation of fines imposed in other districts, or in a subdivision of the same district should be compared with the entries of the fine warrants in the Court’s Register of processes and with the Magistrate’s cash-book, once a quarter.
145. Writing off of irrecoverable fines – Subject to the’ control and supervision of the Sessions Judges, the Chief Judicial Magistrates in respect of fines imposed by Judicial Magistrates, the District Magistrate subject to the control and supervision of the Revenue Divisional Commissioners may at their discretion, give orders for the writing off of all fines which (a) in consequence of the death of the defaulter or (b) after due enquiry that there are no assets of the defaulter or (c) thewhereabouts of the defaulters cannot be ascertained and the defaulters have undergone default sentence may be irrecoverable. Provided that-
(1) Where the apprehension of the defaulters cannot be secured on account of their change of places or abode after their appearance in Court either in person or through recognised agents, to commit them to jail custody to undergo the default sentences, the fines imposed upon them may be written off.
(2) Where the defaulters have been released on bail, the fines imposed upon them may be written off only after taking appropriate steps against the bailers for realisation of the bail amounts.
(3) Where a Magistrate decides not to issue a distress warrant after the convict has undergone the whole of default sentence, there being no special reason for it, he shall be competent to write off the fine amount. After passing the order to write off the fine amount, he should close the connected misc. case and direct that the connected entry in the fine Register may be struck off.
146. Realisation of fines imposed in other districts – In cases of fines imposed in one district but realised in another, the following procedure is to be observed:
(a) The Court imposing the fine will issue a distress warrant direct to the Magistrate of the district or districts where the property of the prisoner is supposed to be. The Magistrate of the district, on receipt of this warrant, will deal with it as if the fine was imposed in his own district. This warrant shall contain the following particulars : Name of prisoner, sentence, date of sentence, name of the district jail in which the prisoner was first confined after conviction and name of the Court issuing the warrant.
Note – If the prisoner has not been transferred from the subsidiary jail in which he was first confined to the district jail, then the name of the subsidiary jail.
(b) The proceeds of all fines so realised will be paid into the local treasury, with the realisation of the Court that makes the recovery. The amount should be carefully distinguished from local
fines, and will be separately acknowledged by.tJ1e Treasury Officer. No entry of these fines will be recorded in the Fine’ Registers of the district where the fine was recovered, but the amount realised must be credited in the Magistrate’s cash-book and in the Register of Criminal Fines of other districts and a footnote made in his fine statement of the total amount realised on account of their districts, the sums relating to each district being carefully distinguished for comparison and check in the Accountant-General’s Office. The Magistrate-incharge of Fines should examine and sign the Register of Criminal Fines of other districts daily and should see that realisations are promptly acknowledged.
(c) The Clerk-incharge of the Fine Register is responsible for seeing that the realisation of all such fines is immediately communicated to the Chief Judicial Magistrate or Sub divisional Judicial Magistrate, as the case may be, of the concerned district or subdivision in which the fine was imposed by the despatch to him of both the treasury receipts and the warrant. The use of remittance transfer receipts is strictly prohibited. The Chief Judicial Magistrate or Subdivisional Judicial Magistrate, as the case may be, will at once send an acknowledgment of the receipt of the Treasury receipt and warrant to the Magistrate of the district where the fine was realised. He will also note the realisation in his Register of Criminal Fines and include the amount in the monthly statement of fines which he renders to the Accountant- General with a note against the item showing into which treasury the amount has been paid and the date of payment. The rule is applicable mutatis mutandis in respect of fines imposed by a Magistrate at headquarters and realised in a subdivision, or imposed in one subdivision and realised in another of the same district.
(d) The fact of recovery will then be reported to Superintendent of Jail referred to in Clause (a) by the Chief Judicial Magistrate of the district or Sub divisional Judicial Magistrate in which the fine is imposed, provided that if the fine is realised in the district in which the prisoner is confined, the Magistrate of the district should also immediately send intimation direct to the Superintendent of Jail in which the prisoner is confined.
(e) In all cases of communicating the realisation fines by the despatch of the treasury receipt to the district or subdivision where such fines were imposed, it will be the duty of the Clerk-in-charge of the Fine Register to send reminders whenever acknowledgements of receipts of such communications are unduly delayed.
Note – When the distress warrant is issued to the Magistrate of a district in another Part ‘A’ State or ‘C’ State a clear note should be made on it as to the manner in which the amount is to be credited, i.e. whether to Government, or to a Municipality or to Cantonment fund or to any other Local Body, or whether it is to be held as a criminal deposit. It the amount is creditable to Government or to criminal deposits, the proceeds of the fine should be paid into the local treasury for credit to Government, as required by Clause (b) and an intimation should be sent to the Chief Judicial Magistrate or Subdivisional Judicial Magistrate as laid down in Clause (c). If the amount is creditable to a Municipality or to a Capital Cantonment Fund or to any other local body, the
proceeds of the fine should be remitted by a remittance transfer receipt to the Chief Judicial Magistrate or Subdivisional Judicial Magistrate on whose account the fine has been collected. He will endorse a receipt to the Treasury Officer if the Municipality or Cantonment fund or other local body banks with the district treasury for credit to its account ; otherwise the receipt should be endorsed to the Chairman or Secretary of the Municipality or local body concerned.
147. Execution of substantive sentence of imprisonment – In all cases where the accused is a soldier or a 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 of Military Department to which he belongs.
148. Committing Prisoner – Every Criminal Court when committing a prisoner to jail, shall attach to the warrant of commitment a note in criminal process Form No. (M) 61, Volume II.
149. Committing persons to jail who fail to furnish security – When a Magistrate passes an order to give security under 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 Form No. (M) 39 or (M) 40 of the Second Schedule, Criminal Procedure Code. When he receives the order of the superior Court, 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 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 Form No.17 of the Second Schedule, Criminal Procedure Code [Form No.(M) 41, Volume II.]
150. Sentences to take effect one after the other – When a person has been committed to jail under two separate warrants, the sentence in the one is 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 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.
151. Recommendation for remission or suspension to be made through High Court – All recommendations for remission or suspension of a sentence made, under Section 432 of the Code of
Criminal Procedure by officer of any subordinate Court to State Government in regard to a convict whose case has been before the High Court on appeal, shall be made through the High Court.
152. Recommendation to Government in case of infanticide – In all cases in which women are convicted for the murder of their infant children, the records shall be submitted promptly through the
High Court to the Government with any recommendation under Section 432, Cr.P.C. by the Sessions Judge as to the propriety or otherwise of commuting or reducing the sentence with his reasons for the same.
153. Copy of order passed under Section 356, Cr.P.C. to be attached to warrant – In the case of 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.
154. Appellate Court to send release warrant to jail on reversing the sentence – In every case in which a sentence is reversed, the appellate Court shall fill in the prescribed Form No. (M) 77 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.
155. Appellate Court to send modified warrant to jail – In every case in which a sentence is modified on appeal the Appellate Court shall prepare a fresh warrant in Form No. (M) 78 in accordance with the terms of the order passed and shall send the same direct to the Officer-incharge of the jail in which the appellant is confined. When the fresh warrant is returned with an endorsement of execution under 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.
156. Procedure to be followed when Appellate Court issues release warrant or modified warrant – 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.
157. Procedure to be followed when retrial is ordered – In the event of the conviction and sentence being set aside and 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 558 of the Orissa Jail Manual, 1942, Volume I (Part I).
158. Telegraphic release orders prohibited – Judicial Officers are prohibited sending by telegraph orders to Officers-incharge of jails for the release of prisoners in their custody.
159. Appellate Court to notify result of appeal of prisoners to officers-in-charge of jail – Irrespective of the procedure prescribed in Rules 154 to 157 above, the Appellate Court shall, for the information of the appellant, notify to the Officer-incharge of jail in which such appellant is confined the result of his appeal. The notification shall be made in Form No. (M) 14, Volume II.
160. Issue of revised warrants – Judicial officers must understand that this notice is intended solely for the purpose of communicating the result of the appeal to the appellant, and in no way relieves them from the duty of issuing revised warrant whenever necessary. Proviso 1. (a) Forwarding warrant of commitment to Appellate Court – 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.
(b) Return of warrant on sentence being reversed – 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.
(c) Return of warrant on order of retrial – 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, either to the Chief Judicial Magistrate or to the Court which tried the case, with directions to retry the prisoner for the offence charged.
(d) Issue of modified warrant – In every case in which a sentence is modified on appeal, the Appellate Court shall prepare a fresh warrant [in the Form No.(M) 78, Volume 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.
(e) Return of warrant on confirmation of sentence – 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 measures to secure his surrender and recommitment to Jail on the original warrant. Duty of the Court on surrender of the convict – 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 warrant the dates of his release on bail and of his subsequent surrender. Despatch of the order of the Appellate Court – The copy the order of the Appellate Court referred to in Clauses (b) of this proviso shall be in Form No. (M) 15, Volume 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 by the Appellate Court to take measures to secure the surrender of an accused and his recommitment 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. Procedure on surrender of accused in Appellate Court
– 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 Chief Judicial Magistrate,
with directions to commit him to custody as in cases (d) and (e) of Proviso 1.
Note – Whenever a Sessions Division consists of moral district one the Chief Judicial Magistrate in this proviso shall be herd to be Chief Judicial Magistrate of the district in which the Sessions Court sitting for the hearing of appeals.
161. Duty of Court to which High Court certifies judgment 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 (154 to 160). Except when the High Court otherwise directs, the lower Court shall issue the warrant of release or modification of sentence.
Note – When an appeal is preferred to the High Court against conviction and sentence passed by the Sessions Judge and the 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 to be filed with the Sessions record.
162. Sentences finally passed to Court – 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 punishment section or otherwise, the sentence finally passed shall count, unless specially otherwise, the sentence finally passed shall count, unless specially otherwise directed, from the first day of imprisonment under the original sentence.
163. Issue of dusti release order prohibited – Issue of dusti orders for the release of prisoners is strictly prohibited. Orders for release of prisoners should in no case be made over to private
individuals for delivery to the jail authorities. It is, however, the duty of all Criminal Courts to see that order of release is taken to the jail authorities without delay.
164. Duty of trial Court to secure return of warrant – It is the duty of the trial Court to issue reminders to the jail authorities from time to time to secure the return of the original warrant and that its duty of complying with Rule 156 is not discharged until the original has been obtained from those authorities and cancelled and attached to the record.
165. Particulars of the case and offence to be noted in modified warrant – The Appellate Courts while issuing modified warrants [Form No. (M) 78] should note the number of the case both of
the trial Court and the Appellate Court and sections under which the original conviction was recorded.
166. Separate warrant for each convict – When two or more persons are convicted and sentenced to imprisonment at the same time a separate warrant of commitment shall be issued for each one of them.
167. Manner of calculation of term of imprisonment – In calculating the sentence of imprisonment the date on which the sentence is passed and the date of release both ought to be included and
considered as day of imprisonment.
168. Returned warrants to be filed with the record – Warrants of commitment which are returned to Courts after execution should be filed with the records of the respective cases and dealt with
under rules, or destruction of records.
169. (a) Procedure in case of death sentence – Sessions Judge shall make arrangements for communicating every order of the High Court or Supreme Court imposing, confirming, reversing or
commuting a sentence of death to the Superintendent of the Jail, where the prisoner is confined within 24 hours of the receipt of the order in the Court of Session.
(b) Immediately after the receipt of the order of the Supreme Court or the High Court confirming or passing the sentence of death, the Sessions Judge shall issue a warrant in Form No. 42 of Second Schedule of the Code of Criminal Procedure, (Suitably amended with regard to cases in which a sentence of death is passed by the Supreme Court or High Court) accompanied by a copy of judgment for delivery to the convict, transmit the same to the Superintendent of the Jail in which the person so sentenced is confined : Provided that, the Sessions Judge shall withdraw the warrant-
(a) On receipt of an order of stay either from the High Court or the Supreme Court ; or
(b) On receipt of direction from the High Court to postpone the execution or
(c) When the Sessions Judge, for any sufficient reason, considers that the execution should be postponed to a future date : Provided further that, on receipt of a copy of an order from the High Court or the Supreme Court of the stay having been vacated, or on receipt of further instructions from. the High Court that the sentence may be executed, the Sessions Judge shall issue a fresh warrant fixing a date for the execution.
In any case in which the warrant has been withdrawn by the Sessions Judge, consequent on his having postponed the execution to some future date, the Sessions Judge shall issue a fresh warrant for the execution of the sentence being carried out on that date.
170. Time of execution of death sentence – 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 or more than twenty-eight days from the date of issue of such warrant.
171. No modified warrant to issue on communication of death sentence – No modified warrant should be issued when the sentence of death is commuted by the order of the President or Governor. The order itself will serve the purpose of a, warrant. A copy of such order need only be sent to the jail authority.
172. Register of property – 1[Any property produced in the Criminal Courts should be entered in the Property Register to be maintained in Form No. (R) 27, immediately after receipt thereof. The primary responsibility of preparing and signing the Register shall be of the Nazir 2[or the Clerk-in-charge of the Malkhana as the case may be] both in the District Courts and in the outlying
stations. The Registrar, Civil and Sessions Courts at the district Headquarter Stations and at outlying stations the Subdivisional Judicial Magistrate and where there is no Sub-divisional Judicial
Magistrate, the Judicial Magistrate shall be the Judge-in-charge of the Malkhana. The entries made in the Property Register should be countersigned by the Judge-in-charge of Malkhana to indicate that the property received in the Court is actually so entered.]
Note – The Mal chalans under which properties are received the prosecuting agencies shall be first entered in the Register of Received maintained in the Court and thereafter sent
to the Nazir/Clerk-incharge of Malkhana who shall make entries of the properties in the Register of property (R) 27 and note the C.M.R. No. assigned to such properties against the
corresponding entry in the Register of letters received and preserve the Mal Chalans till disposal of the properties.]
173. Description of incriminating articles – When death or hurt has been caused by a blow from a stick or other weapon, or when any person is convicted of the offence’ of being in illegal possession thereof, the height and dimensions of the weapon should be stated in the Register and the list of exhibits with such particularity as may enable the Appellate or Revisional Court to form an opinion
as to the character of the weapon and the intention with was probably used and to enable such Court to judge the of the offence and the appropriateness of the sentence.
174. Description of valuable properties in the Register – In case of valuable properties such as valuable metals or ornaments prepared out of such metals, full description of such properties along with their weight shall be noted in Column 4 of the Register.
175. Verification of the Register – 2[The Judgein- charge of the Malkhana] should verify personally at least every 3 months, the property with reference to the Property Register and make an endorsement with the date of the verification in the remarks column of the Register. He should also make a report to the Sessions Judge every three months of having verified the properties
indicating in brief the result of his verification.
176. Unclaimed notes and coins how to be dealt with – Currency notes and coins, if not claimed by any person within 30 days from the final disposal of the case, should be remitted to the person concerned by money-orders. If the amount remitted is returned undelivered by the Post Office because the payee could not be traced, it should be credited to Government.
176 (a) As to the proper custody of the goods in the Malkhana, if identification of cash be not required, the sum if it be beyond R. 1,000 should be deposited in the Bank].
177. Disposal of property to await the result of appeal – In cases where appeal or revision lies to the High Court, 4[all Criminal Courts including] the Court of Sessions should not dispose
of the material objects for four months after the expiry of the period of limitation for appeal or revision; and if intimation regarding the filing of appeal or revision is received, till
the disposal-of the appeal or revision.
178. Report of loss or defalcation – A report should be made to the High Court and the Accountant- General as soon as a loss or defalcation occurs.
179. Half-yearly report of property -A half-yearly report should be submitted to the High Court to the effect that the material objects in cases decided six months prior to the date of the report have been disposed of. The report should also state the number of cases in which the material objects remained to be disposed of with the necessary explanation therefor.
180. Special orders regarding disposal of property – In cases where the property cannot be disposed of in the’ manner directed by the Court specific orders of the Court should be obtained from the Court for its disposal in any other manner.
181. Disposal of property subject to speedy and natural decay – Notwithstanding anything contained in these rules the Court may dispose of immediately after the disposal of the case any
seized property consisting of livestock or property subject to speedy and natural decay or the property in respect of which a bond has been executed under Sub-section (2) of Section 452 of the Code of Criminal Procedure.
182. Notice to take back property – In other cases, the person concerned, should after the final disposal of the case or two months after the expiry of the period of appeal or revision, be asked by service post-card to appear before ‘[The Judge-incharge of the Malkhana] to receive the property. If he fails to do so within 15 days from the date of intimation, the property should be sold at
his cost by public auction and the amount so realised credited to criminal deposit.
183. Sale when to take place – The property mentioned in the preceding rule and the property ordered to be forfeited to the State shall be sold as soon as possible four months after the expiry of the period of limitation of appeal or revision or two -months after disposal thereof, as the case may be. 2[The Judge-incharge of the Malkhana] shall make proper enquiry and ascertain the fact that neither appeal nor revision is filed in the matter before the property is put to auction.
184. (i) Sale by whom to be conducted and how to be made – The sale should be conducted by the Nazir of the Court. 3[Judge-in-charge of Malkhana] shall cause a proclamation of the intended
sale to be made in the notice board of such Court.
(ii) Such proclamation shall state the date, time and place of sale and specify as fairly and accurately as possible the description of the property to be sold.
(iii) It shall also state that the bidders will have to pay the price immediately.
(iv)It shall be incumbent upon 1[The Judge-in-charge of Malkhana] of outlying Court to fix up-set price of the articles sold.
(v) The sale shall not take place until after the expiration or at least 15 days from the date on which the copy of the proclamation has been affixed on the Court’s Notice Board.
(vi)Auction sale should be held during the Court hours and within the Court premises.
(vii) The Officer conducting the sale may in his discretion adjourn the sale to a specified date and hour recording his reasons for such adjournment.
(viii) No public servant and no officer or other person having any duty to perform in connection with the sale shall bid for, acquire or attempt to acquire an interest in the property sold.
(ix)Proceeding of the sale be recorded on the bid sheet.
(x) If. convenient, the property may be sold by lots.
(xi)Valuable articles, however, should not, as far as possible, be sanctioned in lots.
(xii) Sale shall be confirmed in the name of the highest bidder unless 2[The Judge-in-charge of the Malkhana] thinks that the bid offered is grossly inadequate, in which case the property shall be put to sale again.
(xiii) The price of the articles shall be paid at the time of sale.
(xiv) The officer conducting the sale shall pass a receipt for the price paid and then hand over the property to the purchaser.
(xv) If the price not paid, the property shall be resold.
185. (a) Forwarding of counterfeit coins and implements to the Treasury – Criminal Courts in making orders under Sections 452, 453 and 458 of the Criminal Procedure Code or 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 Rules by the Government of India, in the Department of Commerce and Industry.
(b) The above instructions should be held to apply any implements such as dies, moulds, etc. used in coining. in 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.
186. (1) Forged currency notes and implements confiscated how to be dealt with – In the case of forgery of currency the disposal of implements, such as moulds, dies etc., in, and confiscated by a Court of law, is a matter for the of the Court which tries the case; and when they areordered the Court to be delivered to the police for destruction, the police shall themselves arrange for their destruction/ and not send to the currency offices or mints for destruction; provided the police consider any particular implements are of special interest and should be
preserved, they shall make them over to the Criminal Investigation Department for this purpose.
(2) All forged currency notes brought before the Court shall be handed over to the police for being forwarded to the Issue Department of the Reserve Bank of India, with a brief report of the case.
(3) All arms, ammunition of prohibited bore which are confiscated should be sent to the nearest arsenal for disposal.
187. Disposal of excisable goods in Court custody – In the case of excisable goods held in the custody of Criminal Courts, notice of the date of auction or other method of disposal shall be
issued to the Excise authority concerned requiring authority to arrange for the collection of the duty leviable, if any, goods for the issue of transport permits where necessary. The authority may also be required to satisfy itself that the purchaser in auction or otherwise is licensed to deal in such goods.
188. Sessions Records – Every record of a Court of Session shall consist of two files, to be styled and marked, respectively, File A and File B.
189. File A shall contain the following papers which shall be arranged in the following order-
Papers showing how the proceedings were initiated together with any sanction to the proceeding granted under Section 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, final reports of the police under Section 173 of the Criminal Procedure Code.
(5) The charge under which the trial has been held, amended or otherwise with a record thereon that it has been read and explained to the accused, and the plea of the accused.
(6) Any document or documents 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.
(7) List of articles connected with offence, which has been proved and exhibited, but which cannot be attached to the records, e.g. any weapon 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) The deposition of the witnesses for the prosecution examined at the trial in chronological order, except that when a witness had been cross-examined, or Reexamined in a later stage of the proceedings, such crossexamination 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 relates. 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.
(9) The depositions of witnesses who are absent at the trial, which are admitted under Section 33 of the Evidence Act, or Section 299 of the Criminal Procedure Code or otherwise, e.g. depositions of witnesses taken on commission; dying declarations .admitted in evidence. The title page and table of contents in records of Courts of Sessions should invariably be written up in English and in the combined form prescribed.
(10) Deposition of medical witnesses admitted under Section 291, Criminal Procedure Code.
(11) Report of the Chemical Examiner or Assistant Chemical Examiner to Government admitted under Section 293, Criminal Procedure Code.
(12) Documents admitted as evidence on behalf of prosecution.
(13) Confession or statement, if any, of the accused recorded under Section 164, Criminal Procedure Code, and admitted in evidence.
(14) The examination (if any) of the accused before the Sessions Court.
(15) Any written defence that may be laid before the Court.
(16) The depositions of the witnesses examined for the defence in chronological order.
(17) Documents admitted as evidence for the defence.
(18) Memorandum of arguments, if any.
(19) If the trial involves a charge of previous convictions, the evidence for the prosecution to prove such convictions and the evidence for defence, if any.
(20) Judgment, finding and sentence.
(21) Police case diary.
The following papers shall be subsequently added to complete the record-
(22) Copy of the judgment, or order of the Appellate, or Revisional Court.
(23) Warrant returned after execution by the jail authorities.
(24) If the sentence has been remitted in whole, or in part by the President or the Governor, a copy of the order of remission. 190. File B shall contain
(1)Title Page
(2) Table of contents, * and
(3) All other papers not included in File A
B-Magistrate’s Records
Warrant and Summons Cases
191. Magistrate’s Records – The record. of every warrant or summons case tried by a Magistrate shall consist of two files, to be styled and marked, respectively, File A and File B.
To be written up in English and in the combined form prescribed.
192. The following papers shall be included in 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 Section 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.
(5) The charge with a record therein that it has been read over and explained to the accused and plea of the accused in warrant case instituted on a police report.
(6) Statement, if any, of the accused under Section 252, Criminal Procedure Code, in summons cases (For summons cases only).
(7) Deposition of witnesses for the prosecution examined at the trial in chronological order, except that, when a witness has been crossexamined, or re-examined in later stage of
the proceedings, such crossexamination, or re-examination shall be attached to original deposition.
(8) Deposition of witnesses who are absent at the trial, which had been admitted in evidence under Sections 32 and 33 if any, of the Evidence Act, or otherwise.
(9) Report of the Chemical Examiner or Assistant Chemica Examiner to Government admitted under Section 293, Criminal Procedure Code in warrant cases (For warrant cases only.)
(10) Documents admitted as evidence for the prosecution.
(11) 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 properly, etc.
(12) The charge with a record therein that it has been read over and explained to the accused and the plea of the accused in warrant cases instituted otherwise than on a police report.
(13) Any document or documents, connected with the offence charged or in respect of which the charge is made, e.g., statement made by the accused, which form the subject of a charge of giving false evidence, etc. (For warrant cases only).
(14) Any confession or statement made by the accused before a trial and recorded under Section 164, Criminal Procedure Code (For warrant cases only).
(15) Examination of the accused under Section 254, Criminal Procedure Code, in summons cases or under Section 313, Criminal Procedure Code, in warrant cases and any writtez: statement filed by the accused during the trial.
(16) The deposition of the witnesses examined for the defence in chronological order.
(17) Documents admitted as evidence for the defence.
(18) Memorandum of arguments, if any, filed by the parties.
(19) Judgment, finding and sentence.
(20) Police case diary.
The following papers shall be subsequently added to complete the record:
(21) Copy of the judgments or order of the Appellate or Revisional Court or Courts.
(22) Warrant returned by the jail authorities after execution of sentence.
(23) Any petition, or other paper bearing on the offence charged and material to elucidate or justify the decision of warrant cases (For warrant cases only).
193. File B shall contain:
(1) Title Pages,
(2) Table of contents, and
(3) All other papers not included in File A. Complaints dismissed under Section 203, Criminal Procedure Code.
194. (a) Record of Complaint dismissed – 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, 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 as 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 case under the Municipal Bye-laws nor in those under Section 34 of the Police Act.
195. Records of summary trials – 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 sheets need be prepared.
196. Records of inquiry – 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 modification in details as the circumstances of such cases may require.
197. Appellate records – 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
the papers which would belong to the B file being attached A file.
198. Arrangement of papers – In every case, the papers as far as possible, be attached to the file to which they the trial proceeds, and shall be arranged in the order theyare brought before the Court. The necessity of sorting in the record room must be avoided.
199. Combined title page and table of contents – To each file of every record there shall be prefixed a combined title page and table of contents in Form No. (M) 19, Vol. II. This form should be written up in English.
200. Table of contents – The Table of Contents should be written up in the manner indicated in Form No. (M) 19, Vol. II.
CHAPTER – II
The Order sheet
A-Order sheet for Sessions Courts
201. Order sheet in Sessions trial – An order sheet in Form No. (M) 18, Volume II, shall be used in all Sessions trial, and shall form part of the record of such trial.
Note – Order shall not be written on petitions, reports and similar documents. The serial number and the date of the order passed on any petition shall be noted on such petition].
202. Manner of maintaining order sheet – The order sheet shall contain a complete record 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 Bench Clerk, 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 about the correctness of all the entries made therein. The order sheet shall invariably be written in English.
203. Contents of order sheet – It shall contain :
(1) An abstract of the charge or charges.
(2) A note of the fact that charge has been read out and explained to the accused and a note of his plea.
(3) 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.
(4) The names of the witnesses for the prosecution, as they are examined.
(5) Particulars of any documentary evidence, or articles, admitted in evidence for the prosecution wi th a note, if any, tendered in evidence and rejected as well as the order passed.
(6) 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.
(7) A note of the fact that the prosecutor sums up his case (as the case may be) before, or after any defence made.
(8) If accused or his pleader addresses the Court a note of such fact.
(9) 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 noted.
(10) If the prosecution replies, the fact should be noted.
(11) The fact that there was a hearing on the question of sentence. B-Order sheet for Magistrate’s Courts
204. Magistrate’s order No. (M) 17, Volume II is to form part of the record of written in English. sheet – A form of order sheet in Form be used by the Magistrate and it shall each trial. The order
sheet should be
Note – 1[Order shall not be written on petitions, reports and other similar documents. The serial number and the date of the order passed on any petition shall be noted on such petition].
205. Contents of order sheet – The order sheet shall include every interlocutory order from the date of complaint or the date on which the accused is sent in custody to the Magistrate by the police
and shall also contain the substance of the final order.
206. Signing of order sheet – Each order entered in the order sheet shall be signed by the Magistrate.
207. Nothing in the order sheet about commitment or recommitment of the convict to jail – The commitment of the convict to jail, his release on bail granted by the trial appellate or revisional Court and his re-commitment to jail after disposal of the appeal or revision should invariably be noted in the order sheet of the original record of all the Criminal Courts.
Note – When the original record is in the Appellate or Revisional Court the order may be recorded in a separate sheet and the same be sent to the Appellate or Revisional Court for being tagged to the original record.
CHAPTER- III
Inspection of Records
208. Inspection of pending records – No record not deposited in the Record Room shall be inspected without the permission of the Sessions Judge or the Magistrate to whose file it appertains.
209. Procedure of inspection of pending records – The Sessions Judge or the Magistrate may either in his presence or in the presence of the Registrar, Civil & Sessions Court or the Chief
Ministerial Officer 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.230 post).
210. Inspection of records on the date fixed – The Presiding Judge or Magistrate may, in his discretion without making a written order in that behalf, permit a party or his pleader to inspect in the Court room the record of a pending case fixed for the day.
211. Inspection of records of subordinate Courts by the Sessions Judge -When the Sessions Judge desires to examine the record of a case in a Court subordinate to his Court, he may order the
Court forthwith to forward the same to him.
212. Inspection by the High Court – Nothing in these rules above shall apply to any inspection by or on behalf of the High Court.
CHAPTER -IV
Transmission of Records to the District Record Room
213. Record Room – ‘Record Room’ is a room set apart for the storage of the records of decided cases and ‘Record Keeper’ is the ministerial officer in immediate charge of such records.
Note – The rules contained in the General Rules and Circular Order (Civil) Volumes I and II in so far as they relate to the maintenance of Registers, arrangement of records, receipt of records, custody and removal and transmission of records and of the documents for which no provisions has been made in these rules shall be followed in respect of criminal records.
214. Consignment of records of decided cases – The records of all the decided proceedings before the Court of Sessions and Judicial Magistrate will be kept in the District Record’ Room and records of all decided proceedings before the Executive Magistrate will be kept in the District Magistrate’s Record Room.
215. Consignment of dormant file records – Records transferred to the dormant file shall be consigned to the Record room with a separate list in Form No. (E) 13-A. They shall be kept in separate
bundles without being mixed up with records of disposed of cases so as to trace them out easily.
216. Period of consignment – The records of all decided cases shall be forwarded to the District Record Room of the Sessions Judge by-‘ officers at the headquarters in the course of second month and by officers at out stations in the course of the fourth month succeeding the month in which they were decided or disposal of, on the dates fixed by the District Judge for the despatch of civil records.
217. Period of consignment – The records of all decided cases shall be forwarded to the District Magistrate’s Record Room by the Executive Magistrates at the headquarters in course of the second month and by the Executive Magistrate at out stations in the course of the fourth month succeeding that in which they were decided.
218. Time of periodical consignment – The District Magistrate shall fix the dates on which the records of each Court shall be despatched to his Record Room endeavoring so to fix the date that too many records shall not reach the Record Room at one and the same time.
219. Consignment of used up shorthand note books -Completely used up shorthand note books shall be consigned to the Record Room along with the consignment of records.
CHAPTER – V
Preservation and Destruction of Records and Returns of Exhibits
220. List of records consigned – A list in Form No. (R) 13, Volume II shall accompany all the records sent by Magistrates to the Record Room and a list in Form No. (R) 14, Volume II shall accompany all records in Sessions Cases, Criminal Appeals and Revisions sent to the Record Room. One list only shall be prepared for the records of all the four classes into which the cases have been classified under Rule 223. The records of cases mentioned in proviso in Rule 223 shall be entered in a separate list.
221. Size and shape of the lists – 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 Record room. They shall be preserved for the same period as the record to which they relate.
222. Manner of preparation of the lists – The lists required by Rule 220 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 Registrar or the Judge-in-charge of the Record Room under a separate cover and shall 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 Cadre 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 proviso to Rule 223 if and when destruction is carried on.
223. Calculation of period of preservation of records – The period from 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 –
Note – The records of Sessions cases in which sentence of imprisonment for life has been passed shall be preserved till the lapsed jail warrants and received back in the concerned Courts].
Note – 2 The Records of Narcotic Drugs and Psycho tropic Substances Act cases, in which the convict is sentenced to undergo imprisonment for 20 years or more, shall be preserved till the lapsed jail warrants are received in the concerned Courts 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 Magistrates’ cases other than those mentioned in (a) above resulting the conviction of the accused.
(e) File A of appeals and applicatio ns for revisions against judgment or orders passed by Magistrate s in cases (a), (b) and (d).
(f) The case records of Motor Accidents Cases shall preserved permanently.] Class II – To be preserved for five years (a) File A of possession cases under Chapter – XI, 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 appeals preferred under Section 6 (c) of the Essential Commodities Act, 1955.
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 (a) arid (b).
Class IV – To be preserved for one year
(a) Files A and B of cases in which Magistrates has declined to issue process.
(b) Files A and B of cases in which a Magistrate has passed an order of discharge under Sections 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) Records of any case in which an order for maintenance has been made under 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 the case of the records mentioned in Clauses (i) and (ii) of this proviso (except when offence is one punishable with death or imprisonment for life) death shall be presumed when tire 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 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 revrsion should be made in respect of the records mentioned in Proviso 1 of Rule 223 with a view to the destruction of those that have become liable to destruction
under the instructions contained in note to it.
224. Preservation of records beyond the preservation period Sessions Judges and Magistrates may, at their discretion, preserve any particular paper on the· record of any particular case, beyond
the above period. Return of Exhibits.
225. Return of exhibits – When an entry in a public Register, or in a 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 identification, 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 record 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.
226. (a) Notice to return exhibits – 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 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 records 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) 22, Volume II.
(b) A copy of the notice shall be put in the Court in which the case was tried.
227. Not to return impounded document – 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.
228. Destruction of records – The destruction of records in accordance with these rules shall take place at the end of each quarter by burning in the presence of the Record-Keeper, Sessions Judges and District Magistrates will note in their Annual Reports whether these rules have been duly observed.
Note – The above rules must be read in connection with provisions of Section 5 of the Destruction of Records (Act V of 1917).
CHAPTER – VI
229. Custody of disposed of records – 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. His improper and inconvenient that records of the Courts of Justice should be sent to other public officers or functionaries. If a reference to their contents is required the proper procedure is ordinarily to obtain copies of the requisite papers.
230. (a) Access to the Record-Rooms – 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 casemay be, be allowed to enter the Record Room, and in thepresenceof the Record-Keeper or one of his Assistants deputed for
the purpose and under his control, to examine the record of any specified case, provided that such entry is made in pursuance of a public purpose.
Pleaders and Mukhtars, duly authorised by any that behalf, may, under similar conditions, and at a place provided for the purpose in the Record-Keeper’s office, any specified record; but in doing so, shall make only brief notes.
231. Time for Inspection of records – 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.
232. Calling for the records – When in the course of proceedings in a Criminal Court, it becomes necessary to refer to the of public documents deposited in other Courts, the ordinary is to require copies of them to be filed. It frequently happens, however, that in the course of a criminal trial the production original record becomes necessary. In such case, the Court where record deposited shall comply with the requisition of the Court it even though the reason given for the production of the record may be considered insufficient.
Note – This course should also be followed when no reason if given in the requisition. If the record required is that of an appeal pending before the Sessions Judge or the Chief Judicial Magistrate, he should intimate the fact to the officer making the requisition, and request him to return the record without delay.
233. Complying with requisitions of the Commission – When the State Government appoints a Commission of Inquiry into misconducting on part of a police officer in consequence of strictures
expressed by a Court, the original record of the decided cases in question should be forwarded to the Commission on requisition. How records should be transmitted from one Court to another
234. Transmission of records – 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 recipient should be taken. The serial number and date appearing in the Peon Books should be reproduced in the remarks column of the Register of records removed. If 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 following letter referred to in the preceding clause should be quoted.
(e) An acknowledgement 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
Note 1 – For forms of covering letter and of letter advising despatch of records, see Forms Nos. (M) 23 and (M) 24, Volume II.
Note 2 – For cost of transmission of records to Civil Courts at the instance of a party, see Rule 309, Part IV, post.
235. Report of lost or missing records – Whenever it is discovered that a record or portion of a record or a document on the file of a record or Register, etc. Is destroyed or missing, the loss or theft shall be immediately reported to the Sessions Judge in whose division of office the loss or theft has occurred, and he, in turn, shall report the fact to the High Court and state the steps taken to try and recover the papers missing. The Presiding Officer of the Court concerned should take personal charge immediately of their remanents and proceed with the work of construction of records.
PART III
CHAPTER -I
Information and Copies
PRELIMINARY
236. Judge-incharge – At headquarters, the Registrar, Civil and Sessions Courts and at the outlying stations, such officers as may be appointed by the District and Sessions Judge co to be the Judge-incharge of the copying section will be responsible for the strict compliance of the rules relating to the same.
237. Time for presenting applications – All applications for information or copies shall be made in the prescribed Form Nos. (M) 3A and (M) 3B during the first two hours of the Court’s sitting to
the Register or the Judge-incharge of the copying section as the case may be : Provided that an application either for copy or information may be presented at any time during Court hours of expedition fee has been paid.
Note – An application for copies of running depositions may be filed at any time during Court hours.
238. Procedure for prisoners to apply for copies – An application by a prisoner may be made through the Superintendent of the Jail or through a friend on the prisoner’s behalf; in the latter case the application shall be sent to the Superintendent of the Jail, to be attested by the prisoner, and if it be so attested, shall thereafter be treated as the prisoner’s own application. The Superintendent of the Jail shall note on the application whether the prisoner wishes the copy to be Sent to the jail or to be delivered to the friend, if any, who applied for it.
239. Number of application – Only one application should be made for copies of papers or for information required in respect of a single cause or matter from a single record or Register and it should be limited to a single question. In other words where copies are required of several separate papers on a single cause or matter from the same record, only one application need be made.
Where several causes on a single matter or cause have been tried together, separate applications are not required in respect of each cause. A single application for a copy of all or any part of the
record is sufficient.
240. Records called for in connection with the original case or appeal, revision or review will be treated as part of the record of such case.
Note – Questions regarding particulars of any document or record necessary to be inserted in an application for copy for its proper identification (e.g., date of document, date of disposal, number of the case, names of parties, etc.) will be treated as a single question.
241. Where copies or information relating to papers or Registers connected with different matters or cause are wanted as many applications as the matters or causes to which they relate are necessary.
242. When an application for information or for a copy is filed and search in once made, no amendment in the application shall be allowed unless a further search or extra searching fee is paid.
243. Sale of Forms – The form of application for information and copy [Form Nos. (M) 3A and (M) 3B] will be obtained from the Nazir or any other employee in charge of saleable form at. 1[R. 85
per 100 copies or R. 1 per sheet].
244. From Nos. (M) 3A and (M) 3B shall be indented from the Government Press. The saleable forms shall be kept in the personal custody of the employee in charge of such forms and shall be
properly accounted for in the Register in Form No. (A) 17 B.
245. Application to be rejected for want of searching fee – An application will not be considered complete or preparation of copy will not commence until the requisite searching fee is paid in full. If full payment is not made within three days of notifying the same, the applications may be rejected unless the Registrar or the Judge- in-charge of the copying section thinks fit to grant extra time.
246. Copies required by public officers – No fee will be payable for searching or for copying or for typing papers required by public officers for public purposes. In these cases copies are to be made on plain paper.
Note 1 – Local bodies and Managers under the Court of Wards are not to be treated as public officers for the purpose of this rule.
Note 2 – Remissions and reductions of Court-fees for grant of copies ordered by the Government under Section 35 of the Court-fees Act, 1870 are detailed in Rule 330 Post.
247. Procedure on presentation of application – Applications shall be consecutively numbered and Registered as they are received in the Register in Form No. (R)’28 and the date of receipt shall
be noted or stamped thereon; the receipt portion after being initiated shall be forthwith made over to the applicant.
Note 1 – Application for free copies shall be entered in the Register (R) 29.
Note 2 – Urgent applications will be entered in the Register in red ink. An application for information will be entered under a sub-number to the last preceding application for copy.
248. Reference to Clerk-in-charge of records – The application after being Registered shall be sent to the Clerk-in-charge of the record who .shall take necessary further action.
249. Manner of dealing referred applications by ministerial officers – Each ministerial officer through whose hands the application passes shall put his initial, the date and hour of receipt and passing on the application by him on the back of the application. These entries should be made one below the other and must be legibly written, the dates and hours being shown against the entries beyond a vertical line on the left to be drawn about three inches from the left hand side on the reserve of the application. Each Clerk receiving an application shall at once comply with the requisition on its back or pass it on to another who can do so.
Note – There should be no unnecessary delay in complying with the requisitions of the copying section.
250. When application may be rejected – Applications in respect of which the information for copy asked for cannot for any reason be given, shall be rejected. Such applications are to be destroyed at the end of every quarter. If the application is merely defective in that search is necessary in order to trace the record, a searching fee, except when it is an application for free copy, shall be demanded and affixed to the application for copy and the information shall be supplied on the application form without any separate application in accordance with the rules. This concession is to be liberally interpreted in favour of the application for copy.
Note – When an application for copy is rejected on the ground that the original has been destroyed, the fact should be noted on the back of the application and the endorsement should be signed by the Judge-in-charge.
II. INFORMATION
251. Who can apply for information – Any person may apply for information from the records and Registers of any Court.
252. Information applied for should be short answers – 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.
253. How application for information is to be dealt with – After an application for information has been Registered it shall be sent to the ministerial officer in immediate charge of the record and it shall be the duty of the latter to note the necessary information and to return the the application to the Head Comparing Clerk with the least possible delay. On the applicant’s appearance and
on his producing the receipt referred to in Rule 247 above, the application shall be made over to him. Information will be given in writing in the remarks column of the application ordinarily on the
next open day after its presentation. Urgent applications. for information will, if possible, be complied with on, the same day.
III. COPIES
254. Supply of copies – A party to criminal proceeding may at any stage, before or after the disposal of the case, obtain copies of the records of the case or proceeding including exhibits 1[except printed or lithographed maps and plan] which have been put in and finally accepted by the Court as evidence :
CASE LAW
Pleader can file an application for certified copy of the order under Rule 254 on behalf of the party if such power is given by the party to make such an application on his behalf : Bighneswar Patra v. The Officer-in-charge,Copying Section, Kendrapara Court and another: 2004 (I) OLR 631.
254-A. The District Judge while finding any of the copying sections of his Judgship failing to cope up with the work load and facing difficulty in making copy within the prescribed period, be may engage a private Entreprenure to instal a photo copier machine within the Court premises as a licensee in order to facilitate the parties in securing early supply of certified copies of documents
on his agreeing to abide by the following terms and conditions:
(A) That he shall work under the control and supervision of the Court ;
(b) That he will charge at the rate of 50 paise per sheet of photo copy taken out by his machine;
(c) That he will bear the cost of the photo-copy papers drawal of copy ;
(d) That he will always keep his photo copier machine during working hours on all working days of the
(e) Copiers as licensees in the premises of various Courts may take up private work otherwise than entrusted with them by the Courts whenever there is no work of the Courts entrusted to them. The time in this regard will be fixed by the District Judges.
(f) That he willprepare photo copy of documents entrusted with him on the very day of entrustment under the direct supervision of an assistant of the Copying Department defailed for the purpose and no sooner the copies are made out, hand over the original documents as also all of the copies taken out of the same to the said Assistant;
(g) That he shall not lift copy of the seal or signature of any of the Hon’ble Judge of the Court or Presiding Officers of the Subordinate Courts while taking out the copies of the documents;
(h) That he will not destroy tamper with or mutilate in any manner any of the original documents entrusted with him for being copied out and shall make himself personally responsible for safe
custody of the entrusted documents;
(i) That he will remove his machine from the Court premises immediately as and when directed to do so; AND
(j) That he will furnish personal security and also cash security of (which is liable to forfeiture on violation of the terms and conditions) for abiding by the aforesaid terms.
2. Grant of certified copy of xerox process shall not be allowed of judgments and orders which are in the manuscript form or upon which the Judge/Presiding Officer concerned has indicated for not issuing certified .copy by appending a mark such as ‘n-x’, upon the document concerned, unless permission of the Judge/Presiding Officer concerned is taken in that behalf.
3. An applicant requiring to have copy of any document drawn by means of photo copier machine shall so indicate by putting the words “Xerox copy” on the top of the copy application form.
4. Where the facility of taking out copy by means of a photo copier machine is available and drawal of copy by means of such a machine is permissible, the applicant intending to avail of the benefit may, in lieu of supplying the required impressed stamp papers, supply, for being affixed to the copy, adhesive stamps of the value thereof in addition to depositing with the Assistant concerned of
the Copying Department, the value of the photo copy papers required to be used for drawal of the copy at the rate of R. 0.50 paise per sheet.
5. The Assistant concerned on receiving applications for supply photo copy shall, after evaluation, .collect from the applicant photocopypaper charges at the rate of Rs. 0.50 paise per sheet of paper in the manner indicated in Sub-rule (4) and indicate the amount collected by him for the purpose, separately on the counter foil of the application where he is required to state the date and hour when the copy is to be made ready for delivery while acknowledging receipt.
5.(a)(i) The installation of photo copier machine, in the Court premises shall be made after consultation with the High Court.
(ii) Register, Civil Court/ other officer appointed by the concerned District Judge will remain in-charge of the Xerox machine.
(iii) All the documents for which certified copies are required be given by the Xerox process subject to order of the competent authority. Rules granting for certified copies will be applicable as per the existing provisions in the C.R. & C.O. The persons desirous to .get the certified copies by Xerox process are to give the proper charge-sheet as would have been fixed by the District Judge and required adhesive stamp. The District Judge should fix the maintenance charge to be paid on each ,of the copy application considering the number of papers used.
(iv)No such fees are required where there is provision for supply of free copies. The amount collected from the parties be deposited in the local treasury to facilitate for withdrawal by the District Judge for purchase of papers and other connected articles and payment of maintenance charge to the company concerned.
(v) The party desirous of taking certified copies of civil matters by Xerox process may apply to the District Judge after considering the urgency of the matter and pendency of the application for urgent criminal matters may allow to grant of certified copies by Xerox process.
(vi) No private work will be allowed to be done by the departmental Photo copier machines.
(vii) After installation of departmental Photo copier machines in their respective judgship may consider to take action against the private entrepreneurs under Rule 254-A of the G.R. & C.O. (Criminal) Volume-I for removal of the machine from the Court premises.]
6. The Assistant of the Copying Department in charge of receiving application for supply of copies shall enter each applications made for preparation of copy with the aid of a photo copier machine chronologically, in a separate Register in the following pro forma no sooner all the requisites are made available and thereafter, he shall take the original document
shall take the original document along with the Register and amount deposited in cash to the operator of the Photo copier machine and get the
photo copy drawn by the operator in his presence and under his supervision. After drawal of the copy, he shall collect the original document as also all the
copies thereof drawn with the aid of the machine from the said operator and making him over the charge for preparation of
the-copy. collect his signature in token on payment of the charges in Column 8 of the Register, maintained in the following pro forma : (See Page No.l02)
7. After the photo copies of the documents are received in the Copying Department immediate steps shall be taken for certifying the copies after erasing the signature and seal of Hon’ble Judges of the High Court of Orissa, or of the Presiding Officers of the Subordinate Courts if available upon the photo copies.
8. The Assistant as also the Head Comparing Clerk of the Copying Department shall draw daily total of the collections and disbursements indicated in the Register maintained under Sub-rule (6) and sign against the same in token of correctness of the entries. The Judge-incharge, Copying Department shall inspect the Register maintained under Sub-rule (6) once in a week.
255. Supply of copies of judgment, etc., to a stranger – A stranger to criminal proceeding may, after final disposal of the proceeding, obtain copies of judgment or orders at any time.
256. Restriction to the supply of copies of private to a stranger – A stranger to a proceeding has no right copies of private documents except with the consent of by whom they were produced or is successor in- interest. He may obtain copies of other documents in which he has an interest including depositions for bona fide use in the Courts.
Note – Copies of police papers and other relevant documents relating to any accident should be supplied to the claimants instituting cases under Section 11 O-A of the Motor Vehicles Act.
256-A. Certified copies of the documents collected by the investigating agency which have linked with the Motor Vehicles Accident cases shall be granted to the Insurance Company after following
usual procedure for obtaining such copies, in case of pending proceedings, as, if a case is disposed of, even a third party can apply for certified copy of document : Provided that if the case is disposed of in Lok Adalat a copy of such order be given to Insurance Company in free of cost.
257. Copies of private documents when to be withheld – Copies of public documents which applicants may have a right to inspect are not to be withheld from them even though they may be used
as evidence against Government; but discussions or opinions of public officers written previously to a decision, as they can be no legal evidence and no one has a right to inspect them, are not to be given.
258. A copy of a copy should not be granted unless good grounds are shown for not applying to the office where the original is kept.
259. Restriction to the supply of copy from a record called from another Court or office – Copies of papers from a record called for from another Court or office not being subordinate to the Court or office to which the copy section is attached shall 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.
260. Supply of copy of any paper in a pending case – Every application for copies of papers in a pending case shall be laid before the Court with whom the case is pending for such orders as in the
discretion of the. Court may be made.
261. Copies of printed maps not to be supplied by the copying Section – Copies of printed or lithographed maps and plans will not be supplied by the copying Section. Applications should be made to the office where the original maps are deposited or to the office where they are available for sale.
262. Specification as to the purpose for which copy wanted – Every application for copy shall state whether or not the person applying is a party to the case from the record of which copy is wanted. If the applicant is not a party or: his pleader, the application shall state the Object for which a copy is required.
263. Doubt as to propriety of giving copy – Where there shall arise any doubt as to the propriety of giving copy, the Clerk-incharge of the record shall take orders of the Judge-in-charge of the Court
concerned in this regard before the document is made over to the Copyist or Typist for preparation of copies.
264. Application fee for copy – 1[Each application for copy is required by Article (a) of Schedule II of the Court-fees Act, 1870 as amended by the Orissa Court-fees (Surcharge Amendmen.) Act, 1947, Orissa Court-fees (Surcharge Amendment) Act, 1951, Orissa Court-fees (Surcharge Amendment) Act, 1958 (Acts 16 and 17 of 1958) and the Court-fees (Orissa Amendment) Act, 1974 to bear Court-fees Stamps worth fifty-five paise to the affixed to the application In the form of adhesive Court-fee Stamps.]
REGISTER FOR XEROX COPY
265. Duty of Head Comparing Clerk – After an application for copy has been Registered, the Head Typist or the Head Comparing Clerk shall forward the application to the proper officer who shall at once enter it in a Register to be kept in Form No.(R) 30, bring out the document to be copied and keep it in readiness for the estimating of the folios and Court-fee stamps required for the copy. The Head Typist or the Head Comparing Clerk shall depute a Comparing Clerk to make the estimate by reference to the original document. The Comparing Clerk shall enter the amount of Court-fee stamps and the number of folios required in the space provided for the purposes in the application, sign and date the entries, make the necessary entry in Column 5 of Register No. (R) 30 and return the completed application to the Head Typist or the Head Comparing Clerk. The number of folios required should be carefully calculated so that it may not be necessary to obtain additional folios from the applicant,. a contingency which ordinarily under a proper system ought never to arise.
Note 1 – The expression “Head· Comparing Clerk” in the rules In this CHAPTER – includes a Comparing Clerk to whom the functions of the Head Comparing Clerk have been delegated by the Sessions Judge for the purpose of these rules.
Note 2 – In outlaying stations where there is only one Comparing Clerk the estimating of the folios and Court-fee stamps may, if the Judge-in-charge so directs, be made by the officer to whom the application is forwarded.
266. Notifying folios and stamps – The Head Typist or the Head Comparing Clerk shall notify the number of folios and Court-fee stamps required for the copy in the case of each application on the same day, or, at the latest, on the day following, unless they have already been filed by means of an entry in the prescribed Register [Form No. (R) 32]. This Register shall be kept at a convenient place prescribed by the Sessions Judge for public inspection during such hours as the Judge-in-charge may direct. When the folios or stamps are deficient, the deficit shall be notified in the same manner. Rejected applications shall also be shown in this Register.
267. Time for filing folios and stamps – The requisite folios and stamps shall be filed before the Head Typist or the Head Comparing Clerk within three days of the giving of the notice prescribed
in Rule 271. If this is not done the application may be rejected. If the application has been rejected, a note to that effect shall be made against the entry of the application in the Register No (R) 32.
The Comparing Clerk while going round the offices to make estimates shall take with him the rejected applications and shown them to the Judge- in-charge who shall sign the applications on there verse and after restoring the documents to the proper places make the appropriate entries in Column 7, 8 and 9 of Register No.(R) 30.
268. Procedure for supply of Court-fees folios by the applicants _ The applicants should file along with the f olics a list showing the number and date of the application, the name of the applicant and the number of folios filed. Court-fee stamps tor either copying fees or for value of forms or tracing cloth should be noted. Before they are made over to the copyist, the lists and papersshould be stitched to the respective original applications, should be compared with the reports of the Copyists on the back of the applications and should beinitiated by the Judge-in-charge as a token of the fact that the correct number of folios, plain paper and Court-fees of required value, as reported by the Copyists, have been filed.
269. Additional folios – If.the folios supplied by the applicant fall short of the actual requirement, additional folios should be called for. The additional folios should be filed during the prescribed
hours with a list in the same manner as ordinary folios are filed, and before they are distributed to the Copyists concerned. The list stitched with theoriginal application, should be. compared
with the report of the Copyist and initiated by the Judge-incharge. The ministerial officer attending the Court Officer Room oi the Judge-in-charge will enter them in the prescribed Register. A receipt for them should be given on the counterfoil as prescribed by the rules.
270. Distribution of completed applications among Copyists or Typists – After the requirements of Rules 266, 267 and 268 are complied with and the applications satisfy all conditions for copying,
the *Head Typist or the Head Comparing Clerk 2[in out-lying stations and Head Typist in the District Headquarters Stations] will distribute the completed applications for copying among the Copyists and Typists indicating the date by which copy should be made ready. 1[The Head Typist or the Head Comparing Clerks in the Out-lying Stations and the Head Typists or the Head Comparing Clerk in the Head quarters Stations] will maintain a Register in Form No. (R) 33 inwhich he should enter the distribution of applications aforesaid. Each\type folios shall contain 180 words in English or partly in English and partly in vernacular or 240 words in vernacular, four figures counting as one word.
271. Copying of document written in language or character not known to the Copyist/Typists – When an application is made for the copy of any document in a language or character which the
Copyists/Typists are not acquainted, the Judge-in-charge shall arrange, if possible, for a copy to be made thereof and compared with the original by such persons acquainted with the aforesaid language or character as are forthcoming and may in his opinion be relied upon for the purpose.
272. Comparing – When a copy required in respect of an application is completed, it will be made over by the Copyist/Typist concerned together with all unused folios and the original documents
to the *Head Typist or the Head Comparing Clerk. The prepared copy shall, at the end bear the initial of the Copyist/Typist and the date of copying/typing. The *Head Typist or the Head Comparing Clerk will distribute the prepared copies among the comparers for comparing by the time and date fixed by the former. The prepared copies together with the documents, unused folios, etc. should be returned by the comparers concerned, after comparing to the *Head Typist or the Head Comparing Clerk. Every page of the compared copy will be initiated by the comparers in token of comparison. All cuttings and corrections made during comparision will initiated by the comparers. On the completion of comparision the comparers will put with signature and
the date at the footof the last page of the copy. On no account any alterations or erasure are to be made in any copy. A mistake must be scored through, initialled and the correct entry made above it. All movements of prepared copies to and from the comparers should be noted in a Register in Form No. (R) 34 to be maintained by the *Head Typist or the Head Comparing Clerk.
273. Preparation of ordinary copies should not suffer on account of urgent copies – Care should be taken to ensure that application for copies for which expedition fees have not been paid
do not materially suffer on account of grant of urgent copies.
274. Delivery of copies – All copies ready for delivery shall be entered day by day between 2 and 3 P.M. or in the case of morning sitting between 9 and 10 – A.M. in a Register in Form No. (R) 35 which shall be placed outside for public inspection. The copies shall be made over in open Court in the presence of the Judge-in-charge, the appropriate entries in the Register being at the same time struck out and initiated by the officer in whose presence the copy is delivered.
Note – Loose forms of the above Register may also be used for the purpose and posted up on the Notice-board.
275. Return of receipt by applicant – When the copy is delivered to the applicant, his receipt therefor with the date will be taken on the counter-foil which should at the same time be given up. Unused folios and stamps returned with the copy should be noted by the applicant in the receipt taken as above from him. To counterfoil will be kept attached to the application. If the counterfoil is missing or lost, the Judgein- charge after satisfying himself about the identity of the applicant, may take his receipt on the application and deliver the copy.
276. Undelivered copies and unused folios how to be dealt with – Should the applicant, in any case, fail to appear to claim either the copy or the unused folios both must of necessity be retained
temporarily but on the last day of each month all unclaimed copies ready for delivery before the close of the preceding month together with all unused folios attached thereto and copies, if any, which remained in complete on account of the failure of the applicant to furnish the extra folios required within the prescribed period shall be destroyed in the presence of the Judge-in-charge of the Copying Department.
277. Return of unused folios and stamps – In any case in which copy cannot be granted the folios and stamps supplied by the applicant for the copy should be returned to him when he is so informed. This should be done also where the application is withdrawn and the folios and stamps have not been used. Such stamps would not include searching fee and expedition fee affixed to the application.
278. Safe custody of undistributed, incomplete copies – At the end of the working day all undistributed work and all incomplete copies with the originals, shall be locked up in an almirah/ chest, the key of which will be kept by the Head Comparing Clerk. Separate compartment in the almirah/ chest or separate boxes to be kept in the almirah or chest as the case may be, shall be allotted
to each Copyist/Typist/Comparer in which to place the papers.
279. Responsibility of the Head Comparing Clerk and comparer – incharge relating to copying – The Head Comparing Clerk shall be responsible to ensure that the copy prepared is a correct copy and has been prepared strictly according to the rules prescribed for the purpose. If he finds that a copy has not been written or typed legibly and with proper ink or has not been compared properly or has not been prepared strictly according to the requirements in the prescribed rules, he shall bring it to the notice of the Judge-in-charge who may require the Copyists z Typists /Comparers to prepare. fresh copies at their cost. In case it is noticed that a folio contains more words than the prescribed limit, (under Rule 275) additional copying charges in shape of Court-fee stamps should be realised from the applicant before making over the copy to him.
280. Disposed of copy applications – 1[(1) Applications for information and copies which have been disposed of shall be recorded in the copying section and filed in a separate bundle for each
month. At the dose of each quarter they will be examined by the Chief Ministerial Officer, who will bring to notice any irregularity or unpunctuality that may bE apparent in the section. The Judge-in-charge after satisfying himself as to the working of the office by an inspection of the forms recorded will then direct their destruction.
(2) All endeavors should be made to deliver copies of briefs prepared for use of public officers and free copies of documents, judgments and orders prepared for supply to public officers. If not claimed by and delivered to the persons concerned for whose use or at whose instance those are prepared, they should be destroyed after a period of six months from the date on which they are made ready, in presence of the Judge-in-charge of the Copying Departments.
281. Transmission charge-in application for copy for records of outlying Court deposited in record room – An application for copy of a document from the records of the outlying Courts deposited in the District Record Room may be made by the applicant to such outlying Court with a transmission fee of Re.10.00 in the shape of Court-fee stamp affixed thereon. The outlying Court may thereafter send the application to the District Record Room for necessary compliance and return.
282. Proper custody of documents – The Sessions Judge should make special arrangements for the proper custody of the documents removed from themselves for compliance with applications for copies until the document is sent to the Copying Department to be copied or until intimation is received of the rejection of the application.
283. Copy of English documents -Copies of English documents shall as far as possible be typewritten.
284. Examination of copies – All copies must be examined before issue by a responsible officer.
285. Certificate to be appended to the copy – A copy must be “certified to be a true copy” must bear the seal of the Court and must be signed, if not by the Judge-in-charge, then by the officer hereinafter named : At the headquarters of a district – By such officer as may be appointed by the Registrar, Civil and Sessions Court with the approval of the Sessions Judge. At outstations – By
the Chief Ministerial Officer of the office of the Judge-in-charge. In every case the certifying officer will append to his signature the words “Authorised under Session 76, Act 1 of 1872”
The words :
“Certified to be a true copy”.
“Authorised under Section 76, Act 1 of 1972, may be impressed by means of a stamp.
Note 1 – The above certificate shall not be given on a blank sheet. If the last has been fully taken up by the copy, the certificate may be given on its reverse.
Note 2 – In each sheet of the certified copy, the certifying officer shall sign an endorsement “True Copy”.
286. In case of copies filed, exhibited, or recorded in any Court, the Court-fee chargeable under the Courtfees Act should be levied by of fixing the necessary stamps to the first folio of
the copy.
287. Particulars to be noted on the copy – The following particulars must invariably be recorded on the last sheet of the copy:
(a) Date of application for copy.
(b) Date fixed for notifying the requisite number of folios and stamps.
(c) Date of delivery of the requisite folios and stamps.
(d) Date on which the copy was ready for delivery.
(e) Date of making over the copy to the applicant.
In the case of a copy of judgment, or order, the date excepting the date of making over copy to the applicant shall also be expressed in words.
Note 1 – Each date on which extra folios are to be notified and each date on which they are delivered shall also be recorded.
Note 2 – In case of free copies only the particular noted in (a), (D) and (e)above should be given.
288. Particulars as to cost – On the back of the last sheet of the copy shall be recorded the costs paid by the parties applying for copies in the form given below:
The entries shall be made by the examiner of the copy. A rubber stamp may be used for the form of these particulars.
289. Full particulars of the names and address of all the parties to a case must be invariably stated in the certified copies of judgments an d orders.
290. Incomplete copy to be made ready on fresh application with extra stamps, folios – In any case in which the application is rejected on account of the failure of the applicant to furnish the extra stamps and folios within the prescribed period, the applicant may present a fresh application together with the extra stamps and folios, whereupon the incomplete copy shall be made ready for delivery. Where the application relates to a number of documents from one record and from one record and copies of some of the Documents are complete, the applicant may at his choice take delivery of these documents after filing a memo to that effect.
291. Time for granting ordinary copies – In ordinary circumstances a copy shall be furnished not later than 4 P.M. or 10 A.M. as the case may be on the fifth open day after the application.
292. Time for granting urgent copies – Urgent copies should be furnished on the day of the application and where this is not possible on day. following :-
Note – No application is complete stamps until the necessary and folios have been filed. When these are not filed, with the period referred to in this rule it will be reckoned from the date of their being filed.
293. Copy of running deposition – Every application for copies of depositions in a case which is being .heard shall be laid before the Presiding Officers for such orders as he in his discretion may make. If such Officer so directs so much of the deposition shall each day be given to the *Head Typist or the Head Comparing Clerk as there is a reasonable hope or being copied in the course of the day. The *Head Typist or the Head Comparing Clerk shall return the deposition to the Bench Clerk at the close of the day. Subject always to (a) the precedence which must invariably be given to applications on which an expedition fee has been paid and (b) delay occurring as a consequence in respect of ordinary applications of an earlier date, such copies will ordinarily be issued on the same day or the following day .
294. Copy during summer vacation – Application for copies both urgent and ordinary, should be entertained and complied with during the period of Summer Vacation. For this purpose, the Judge-incharge of the copying section should make necessary arrangements to retain necessary staff during the Vacation.
295. Daily outturn – Daily outturn for Typists and Copyists working both on Civil and Criminal sides should at least be 2(50) folios in type and 2[30] folios in handscript respectively. For Typists and Copyists engaged in preparation of briefs and copies of case diaries the daily outturn should be at least 3[35] pages of typed material and 3[20] pages manuscript respectively, each page containing 180 words. When the whole-time of a Typist or Copyist is not covered according to the above standard outturn he may he employed in other office work.
PART IV
FEES AND COSTS
CHAPTER – I
Process and other fees
PRELIMINARY
Concerned Court to decide whether process fee is chargeable – Rules framed by the High Court of Judicature, Orissa under Clause (ii) of Section 20 of the Court-fees Act, chargeable for the service
and execution of processes issued by the Criminal Courts.
Note 1 – 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 issues 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 Court with reference to the Section of the -Indian Penal Code or other law relating to the offence in respect of which it directs process to issue, whatever the Section of the Indian Penal Code or other law may be quoted in the complaint.
Note 2 – Under Clause XVIII of Section 19 of the Courtfees Act, VII of 1870, no Courtfee is liveable on a complaint preferred by Municipal Officer. Court-fee should, however, be levied for processes issued in non-cognizable cases instituted by such officers.
296. Rates of process fee – The fee hereinafter mentioned shall be changeable for serving and executing the processes to which the fees are respectively attached;
Note – The provision of Section 359, Cr.P.C. and of Rules 299 and 301 below, apply also to injunctions. Criminal Officers are, however, reminded that injunctions in proceedings not connected with offences are not chargeable with any fee. An injunction under Section 143, Criminal Procedure Code would, for example, be chargeable with the above fee; whereas an injunction under
Section 144 or 145 of the Code would not carry any fee.
297. Additional process fee – (1) In such part of the district, where the destination cannot be reached by a process server during the rainy season without hiring a boat or without payment of ferry
toll, the area and duration of the year should be declared by the Sessions Judge for the purpose of levy of additional fees towards boat hire and ferry toll which shall be realised from the party in the shape of Courtfee stamps in addition to ordinary fee chargeable for the service of process as follows :
(2) The boat hire and ferry toll charge shall be paid by the Court executing process from its special permanent advance to the process server entrusted with the service of process.
298. Costs of process fee to be realised from the accused when convicted – No fee shall be chargeable in advance on any process of a Criminal Court in any case where the prosecution is on the part of Government, but it shall be competent to any Court in such case, if the accused is convicted, to order that such fee shall be paid up by the accused, or any of them, in like manner as if such fees
had been paid by the prosecutor in the first instance.
299. Application for issue of process to be duly stamped – No process which comes within the operation of Rule 296 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 moved the Court to order the 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.
300. No process fee chargeable for realisation of costs and compensation – Cost awarded under Section 359, Criminal Procedure Code and compensation awarded under Section 250 and 255(1) and (2) of the Code of Criminal Procedure shall be realised by Courts of . their own motion, and without payment or recovery of process fee.
301. When witness to pay costs of proclamation – When a proclamation has been issued for an absent witness, if 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 proclamation.
302. No fees for process issued by the Court of its own motion – No fee shall be chargeable for service 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.
REDUCTION AND REMISSION OF COURT – FEES
Extracts from orders of the Government of Orissa under Section 35 of the Courtfees Act
303. In exercise of the powers conferred by Section 35 the Court-fees Act, 1870 (VII of 1870) as amended by the Orissa Court-fee (Amendment) Act, 1939 (Orissa Act V of 1939), and in supersession of all previous notifications on the subject, heretofore in force in any part of the Province, the Governor of Orissa is pleased to make in the Province of Orissa the reduction and remission hereinbefore set forth in fees liveable under Schedules I and II to the said Act, Namely:-
(a) Copies of village settlement records furnished to land holders and cultivators during the currency or at the termination of settlement operations;
(b) Lists of fields extracted from village settlement records for the purpose of being filed with petitions of complaint 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 peace by, or good behaviour or persons other than the executants ;
(7) to remit the fees chargeable under Articles 6, 7 and 9 of Schedule I 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 Judicial 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 Schedule II on applications for orders for the payments 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;
(12) to remit the fees chargeable on the following documents, namely :-
(c) Copy or translation of judgment in a case other than a summons case when the copy of translation is given under Section 363 of the Criminal Procedure 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 363 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 favor the order is made, 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, deposition or other part of the record when the copy is not a copy which may be granted under
any of the preceding subclauses without the payment of a fee, but is a copy which on its being applied for under Section 363 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 any 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 document, 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 is considered necessary for the purpose of advising the Government in connection with any Criminal Proceedings.
(I) Copies of Judgment or deposition required by officers of the Police Department in the course of their duties.
(14) to remit the fees chargeable on an application presented by any person for the return of a document filed by him in any Court or public office ;
(17) to direct that no Court-fee shall be charged on an application for the repayment of a fine or any portion of a fine the refund of which has been ordered by competent authority.
(18) to remit the fee chargeable on applications for copies of documents detailed in Clauses (4) and (12) supra;
(31) to remit the fees chargeable on copies of documents furnished by a Criminal Court to a Pleader of the Court to defend a pauper accused in a Sessions Case.
(34) to remit the fees chargeable on copies of judgments or relevant extracts thereof furnished to the Registrar of the Council of Medical Registration, Orissa, 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.
304. Searching and copying fees shall be charged according to the scale shown in the table below except in the cases w here the law requires copies to be given free of cost ;-
Note 1 – Complainants must pay copying fees whenever they want copies. But an accused under Section 363 of the Code in all appealable cases is entitled to a copy of judgment absolutely free of cost. Similarly, under Section 128 of the same Code, copy of an 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 provisions of Sections 363 of the Code should also be referred to.
Note 3 – See also Rule 303 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 Courtfee stamps.
305. No fees for copy to public officers – No fees are to be required or paid fee searching or, copying papers wanted by public officers for public purposes.
Note – In their Resolution No. 1248-64, dated the 31st August 1899, the Government of India directed that the existing practice of supplying free cf charge to the Head of the office concerned,
copies of judgments convicting Government officers or 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 Department.
306. Charges for map and plans – 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 realised by means of adhesive stamps to be affixed to the map or plan. In case of urgent copies of maps and plans the expedition fee will also
be fixed by the Judge-incharge to be paid by means of Court-fee stamps affixed to the application for copy.
FEES FOR AFFIDAVITS
Fees for administerin g oaths on affidavits.
307. Fees on affidavits – The charge for administering the oath to the deponent in the case of any affidavit – one rupee.
(1) Except affidavits made by process-servers regarding the manner of service of processes.
(2) Affidavit made by any public officer in virtue of his office.
308. Mode of paying fees – 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 Court-fees.
COST OF TRANSMIS SION OF RECORDS
309. Cost of transmission of records – 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 an uniform rate of Rs. 1[30.00] per record to be paid in Court-fee stamps for transmission of the record and its re-transmission.
CANCELLATION OF COURT-FEE STAMPS
310.Appointment of officers for cancellation of stamp – 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 officer, and no other is allowed to do the work.
311. Triangular punching – The second or triangular punching of Court-fee stamps prescribed in Rule 313 post should be made on the day the records are received in ,the District Record Room or as soon after as possible, and should not await the inspection or examination of the records.
312. Duty of Record Keeper to examine stamps – The Record Keeper should on receiving records from a Muharrir or other, ascertain that all the papers in the record 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 properly tampered with or any suspicious circumstances he must at once submit a report to Presiding Officer of the Court. Record Keepers should be reminded that the appointment of a special peon or any other officer to punch stamps or records received into the Record Room in no way absolves them from the duty of seeing that the stamps are duly punched.
313. (a) Punching a Second hole in the Record Room – The Record Keeper of every Court or office shall, when a case is decided and the record consigned to his custody punch a second
whole with a triangular punch in 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 stamps as to render it impossible or difficult to ascertain its value or nature.
Note – In case tried summarily, the note referred to above should be entered in the forms of Summary trial, kept under Section 263 or 264 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 Courtfees Act.
314. Square punching of copies, certificates, etc. – 2[The Court or office receiving copies, certificates or other similar documents liable to liable to stamp duty shall, on receipt cancel the levels affixed to them by punching out the figure-head with a round punch. As an additional precaution the Clerk-in-charge of the Register of Petitions and Courtfees shall when entering the value of the Court-fee stamps in the said Register, put his signature with date across the label and upon the paper on either side of it, as is frequently done by persons signing stamped receipts.
Note – Stamps affixed to affidavits presented to a Commissioner for the purpose of administering an oath or affirmation to the deponent, shall be cancelled by punching out with a square punch, a portion of the stamp in such a manner as to remove neither the figure-head nor the part of the stamp upon which the value is expressed.
315. Inspection of documents by Judicial Officers – Each Presiding 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 from 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.
EXPENSES TO ACQUITTED PRISONERS
316. Expenses to acquitted prisoners – Sessions Judges and Magistrates may grant travelling and subsistence allowances to prisoners who have been acquitted or discharged and released from custody by them and to prisoners who having been arrested under Section 340 of the Code of Criminal Procedure are subsequently released at the following rate to enable them to return to
their villages: Provided. that such prisoners reside at a distance of more than “eight kilometer” from the place where they are released from custody and are not possessed of sufficient means to return to their village. TA by Subsistence rail Public otherwise than sea or allowance motor by public canal bus motor service Second Actual 0.05 per K.M. Actual As admissible Class bus fare expenses to a witness in fare of the lowest passage grade with chances from time to time
317. Determination of distance – The distance for which fare or mileage and the number of days for which subsistence allowance should be allowed for the journey shall be determined by the Judge
or Magistrate ordering the payment in each case.
INSPECTION OF RECORDS BY REGISTRATION OFFICER
318. Inspection of records by registration officer –
Government having directed the Inspector-General and Inspectors of Registration. to examine the Record Room of various Courts in the mufassil 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 Presiding Officers to those officers in the discharge of their duty.
319. Duties of Registration Officer – Government having ordered that on the discovery of any irregularity in respect of punching or otherwise defacing Court-fee stamps the Inspecting 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 then trace the person who is responsible for the omission pointed out by the Inspecting Officer.
PART – V
REGISTERS, PERIODICAL RETURNS STATEMENTS AND ANNUAL REPORTS
CHAPTER – I
Registers
320. List of Registers – While the Court do not positively forbid the maintenance of other Subsidiary Registers in the various Criminal Courts subordinate to it, the list of Registers given in
Volume II specifies all the Registers which, it is believed, are absolutely necessary for judicial, administrative or statistical purposes.
321. All Registers shall be kept in English.
322. Registers to be kept in English – Preservation and destruction of Registers – The list of Registers given in Volume II shows the period for which each is to be preserved. Registers of Magistrate’s Courts which are to be preserved for three years or less should not be consigned to the Record Room, but should be retained in the office in which they were written and should be destroyed by that office in With the Magistrate’s sanction on the expiry of the prescribed period. All other Registers of such Courts are to be consigned to the Record Room along with the consignment of records. Those that are to be preserved permanently will be entered by the Record-Keeper In a Register in Form No. (R) 37 and those that are to be preserved for more than three years, but not permanently, in another Register in Form No. (R) 38. The Registers in Form Nos.(R) 37 and 38 are to be preserved permanently.
322-A.- Registers (R) 1 and (R) 2 which are required to be preserved for 7 years are to be consigned to the District Record Room after 3 years from the date of last entry in the Registers.