CHAPTER XXXVII
CHAPTER XXXVII - MISCELLANEOUS
474. Trials before High Court.
When
an offence is tried by the High Court otherwise than under section 407, it
shall, in the trial
of
the offence, observe the same procedure as a Court of Sessions would observe,
if it were
trying
the case.
475. Delivery to commanding officers of persons liable to be tried
by Court-martial.
(1)
The Central Government may make rules consistent with this Code and the Army
Act, 1950
(46
of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 1950 (45 of
1950), and
any
other law, relating to the Armed Forces of the Union, for the time being in
force, as to cases
in
which persons subject to military, navel or air force law, or such other law,
shall be tried by a
Court
to which this Code applies or by a Court-martial, and when any person is
brought before a
Magistrate
and charged with an offence for which he is liable to be tried either by a
Court to
which
this Code applies or by a Court-martial, such Magistrate shall have regard to
such rules,
and
shall in proper cases deliver him, together with a statement of the offence of
which he is
accused,
to the commanding officer of the unit to which he belongs, or to the commanding
officer
of the nearest military, naval or air-force station, as the case may be, for
purpose of being
tried
by a Court-martial.
Explanation.—In this section—
(a)
"unit" includes a regiment, corps, ship, detachment, group, battalion
or
company.
(b)
"Court-martial" includes any tribunal with the powers similar to
those of a Courtmartial
constituted
under the relevant law applicable to the Armed Forces of the Union.
(2)
Every Magistrate shall, on receiving a written application for that purposes by
the
commanding
officer of any unit or body of soldiers, sailors or airmen stationed or
employed at
any
such place, use his utmost endeavours to apprehend and secure any person
accused of such
offence.
(3)
A High Court may, if it thinks fit, direct that a prisoner detained in any jail
situate within the
State
be brought before a Court-martial for trial or to be examined touching any
matter pending
before
the Court-martial.
476. Forms.
Subject
to the power conferred by Article 227 of the Constitution, the forms set forth
in the
Second
Schedule, with such variations as the circumstances of each case require, may
be used
for
the respective purposes therein mentioned, and if used shall be sufficient.
477. Power of High Court to make rules.
(1)
Every High Court may, with the previous approval of the State Government, make
rules—
(a)
as to the persons who may be permitted to act as petition-writers in the
Criminal
Courts
subordinate to it;
(b)
regulating the issue of licences to such persons, the conduct of business by
them, and
the
scale of fees to be charged by them.
(c)
providing a penalty for a contravention of any of the rules so made and
determining
the
authority by which such contravention may be investigated and the penalties
imposed;
(d)
any other matter which is required to be, may be, prescribed.
(2)
All rules made under this section shall be published in the Official Gazette.
Comments
Rules
and orders for the guidance of the criminal Courts in a state are issued by the
High Court
in
exercise of its powers conferred by Article 227 of the Constitution of India
and section 477 of
the
Code of Criminal Procedure; K. Umapathy v. Superintendent of Jail, (1997) 2 Crimes 609
(AP).
478. Power to alter functions allocated to Executive Magistrates
in certain cases.—
If
the Legislative Assembly of a State by a resolution so permits, the State
Government may,
after
consultation with High Court, by notification, direct that references in
sections 108, 109,
110,
145 and 147 to an Executive Magistrate shall be construed as references to a
Judicial
Magistrate
of the first class.
STATE AMENDMENT
Maharashtra:
In
section 478 for the words "to an Executive Magistrate shall be
construed" the words "to an
Executive
Magistrate in the areas of the State outside Greater Bombay shall be
construed" shall
be
substituted.
Vide Maharashtra Act 1 of 1978 (w.e.f.
15-4-1978).
480. Practising pleader not to sit as Magistrate in certain
Courts.
No
pleader who practises in the Court of any Magistrate shall sit as a Magistrate
in that Court or
in
any Court within the local jurisdiction of that Court.
STATE AMENDMENT
Karnataka:
After
section 480, the following section(480A) shall be inserted.
481. Public servant concerned in sale not to purchase or bid for
property.
A
public servant having any duty to perform in connection with the sale of any
property under
this
Code shall not purchase or bid for the property.
482. Saving of inherent power of High Court.
Nothing
in this Code shall be deemed to limit or affect the inherent powers of the High
Court to
make
such orders as may be necessary to give effect to any order under this Code, or
to prevent
abuse
of the process of any Court or otherwise to secure the ends of justice.
COMMENTS
(i)
When the investigation of the case had been handed over to the CID because of
unsatisfactory
investigation
by the police, the quashing of charges under section 302 read with section
120B,
IPC
against the accused in exercise of powers under section 482 by the High Court
on the
conclusion
of the inadequacy of evidence was unwarranted as at the stage of framing of
charges,
meticulous
consideration of evidence and material by the Court was not required; Radhey Shyam
v.
Kunj Behari, (1990)
Cr LJ 668 (SC) : AIR 1990 SC 121.
(ii)
In exercising jurisdiction under section 482 High Court would not embark upon
an enquiry
whether
the allegations in the complaint are likely to be established by evidence or
not; State of
Bihar v. Murad Ali Khan, (1989) Cr
LJ 1005: AIR 1989 SC 1.
(iii)
To prevent abuse of the process of the Court, High Court in exercise of its
inherent powers
under
section 482 could quash the proceedings but there would be justification for
interference
only
when the complaint did not disclose any offence or was frivolous vexatious or
oppressive;
Dhanlakshmi (Mrs.) v. R. Prasana Kumar, (1990) Cr
LJ 320 (DB): AIR 1990 SC 494.
(iv)
Where there was some discrepancy mainly in regard to the implications of
respondent by
name
in the FIR and the statement of the witnesses recorded during the
investigation, the practice
of
prejudging the question by the High Court without affording reasonable
opportunity to the
prosecution
to substantiate the allegations have on more than one occasion been found fault
with
by
the Supreme Court, Thus there is no justification by the High Court to
interfere with the
prosecution
at the preliminary stage; State of Bihar v. Raj Narain Singh, (1991) Cr LJ 1416
(1417)
(SC).
(v)
If the allegation made in the First Information Report are taken at their face
value and
accepted
in their entirety do not constitute an offence the criminal proceedings
constituted on the
basis
of such FIR should be quashed; State
of Uttar Pradesh through CBI, SPE Lucknow v.
R.K.
Srivastava, (1989) Cr LJ 230: AIR
1989 SC 2222.
(vi)
It amounts to abuse of the process of the Court if without prima facie case having been made
out
a person is summoned to face trial in a criminal proceeding; Laloo Prasad v. State of Bihar,
(1997)
2 Crimes 498 (Pat).
(vii)
It is well settled that the inherent powers under section 482 can be exercised
only when no
other
remedy is available to the litigant and not where a specific remedy is provided
by the
statute.
Further, the power being an extraordinary one, it has to be exercised
sparingly. If these
considerations
are kept in mind there will be no inconsistency between sections 397(2) and 482
of
this Code; Basudev Bhoi v. Bipadabhanjan Puhan, (1997) 2 Crimes 331 (Ori).
(viii)
If the prosecution has been instituted within six months of Bengal Excise Act,
1909 under
section
92 alleged there is no question of producing any sanction as the Magistrate
would then be
free
to take cognizance under the Act. Reasoning adopted by the learned Single Judge
that steps
for
obtaining sanction should have been adopted before the expiry of first six
months period has
no
support in section 92. Quashing of proceeding not proper; State of West Bengal v. Rashmoy
Das, AIR 2000 SC 228.
(ix)
Necessary ingredients of offence of cheating or criminal branch of trust have
not been made
out
but the attendant circumstances indicate that the FIR was lodged to prompt the
filing of
criminal
complaint against the informant under section 138 N.I. Act Quashing of FIR was
proper
to
avoid the abuse of process; Sunil Kumar v. Escorts Yamaha, AIR 2000 SC 27: 2000 Cr LJ 174
(SC).
(x)
FIR lodges to preempt the filing of criminal complaint against the informant
under section
138
N.I. Act Quashing of FIR proper, (See also AIR 1992 SC 1815); Sunil
Kumar v. Escorts
Yamaha Motors Ltd., AIR
2000 SC 27: 2000 Cr LJ 174 (SC).
(xi)
So far as the quashing of complaints and inquiry on the basis of FIR registered
by the
complainant
are concerned the High Court was not justified in interfering with the same and
quashing
the proceeding by an elaborate decision on the merit of matter and in coming to
conclusion
that section 195 of Cr PC will be a bar it was a premature conclusion. Order
quashing
the
two complaint set aside; Manohar v. Ashoka, AIR 2000 SC 202.
(xii)
The extra-ordinary power under section 482 of Code have to be exercised
sparingly and
should
not be resorted to like remedy of appeal or revision; Kavita (Smt.) v. State, 2000 Cr LJ
315
(Del).
(xiii)
In absence of any allegation in complaint that the petitioner was a director on
the date when
cheque
was issued by company or that he was incharge of and was responsible to
company, the
complaint
is liable to be quashed; M. Chockalingam v. Sundaram Finance Service Ltd., 2000 Cr
LJ
137 (Mad).
(xiv)
When the provisions under section 37 of N.D.P.S. are applicable and operative
with nonobstanate
clause,
the powers of High Court remains restricted by limitation under section 37
(1)(b)
of Act in considering bail application of accused charged for offence under
N.D.P.S. Act,
then
the accused not entitled to grant of interim bail; Islamuddin v. State of Delhi, 2000 Cr LJ
108
(Del.).
(xv)
In absence of any valid ground, the F.I.R. lodged against immigration
consultant for
violating
sections 10, 16 of Emigration Act by issuing advertisement, High Court can not
interfere
at the stage of F.I.R.; M.D.K. Immigration
Consultant, Chandigarh v. Union of India,
2000
Cr LJ 252 (P&H).
483. Duty of High Court to exercise continuous superintendence
over Courts of Judicial
Magistrates.
Every
High Court shall so exercise its superintendence over the Courts of Judicial
Magistrates
subordinate
to it as to ensure that there is an expeditious and proper disposal of cases by
such
Magistrates.
Comments
When
alternative remedy is available, inherent powers cannot be exercised; Alimuddin Khan v.
Nasiran Bibi, 1998 Cr LJ 1811
(Ori).
484. Repeal and savings.
(1)
The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed.
(2)
Notwithstanding such repeal,—
(a)
if, immediately before the date on which this Code comes into force, there is
any
appeal,
application, trial inquiry or investigation pending, then, such appeal,
application,
trial,
inquiry or investigation shall be disposed of, continued, held or made, as the
case
may
be, in accordance with the provisions of the Code of Criminal Procedure, 1898
(5 of
1898),
as in force immediately before such commencement (hereinafter referred to as
the
Old
Code), as if this Code had not come into force:
Provided
that every inquiry under Chapter XVIII of the Old Code, which is pending at
the
commencement of this Code, shall be dealt with and disposed of in accordance
with the
provisions
of this Code;
(b)
all notifications published, proclamations issued, powers conferred, forms
prescribed,
local
jurisdictions defined, sentences passed and orders, rules and appointments, not
being
appointments as Special Magistrates, made under the Old Code and which are in
force
immediately before the commencement of this Code, shall be deemed, respectively
to
have been published, issued, conferred, prescribed defined, passed or made
under the
corresponding
provisions of this Code.
(c)
any sanction accorded or consent given under the Old Code in pursuance of which
no
proceeding
was commenced under that Code, shall be deemed to have been accorded or
given
under the corresponding provisions of this Code and proceedings may be
commenced
under this Code in pursuance of such sanction or consent;
(d)
the provisions of the Old Code shall continue to apply in relation to every
prosecution
against
a Ruler within the meaning of Article 363 of the Constitution.
(3)
Where the period prescribed for an application or other proceeding under the
Old Code had
expired
on or before the commencement of this Code, nothing in this Code shall be
construed as
enabling
any such application to be made or proceeding
to
be commenced under this Code by reason only of the fact that a longer period
therefor is
prescribed
by this Code or provisions are made in this Code for the extension of time.
STATE AMENDMENT
Uttar Pradesh:
In
sub-section (2) of section 484, after clause (d), the following clause shall be
inserted and be
deemed
always to have been inserted, namely:—
"(e)
the provisions of the United Provinces Borstal Act, 1938 (U.P. Act VIII of
1938) the United
Provinces
First Offenders Probation Act, 1938 (U.P. Act VI of 1938), and the Uttar
Pradesh
Children
Act, 1951 (U.P. Act 1 of 1951) shall continue in force in the State of Uttar
Pradesh until
altered
or repealed or amended by the competent Legislature or other competent
authority, and
accordingly,
the provisions of section 360 of this case shall not apply to that State, and
the
provisions
of section 361 shall apply with the substitution of references to the Central
Act named
therein
by references to the corresponding Acts in force in the State."
[Vide U.P. Act 16 of 1976, sec. 10
(w.e.f. 1-5-1976).
In
sub-section (2) of section 484, in clause (a) after the proviso, the following
further proviso
shall
be inserted, namely:—
"Provided
further that the provisions of section 326 of this Code as amended by the Code
of
Criminal
Procedure (Uttar Pradesh Amendment) Act, 1976 shall apply also to every trial
pending
in
a Court of Session at the commencement of this Code and also pending at the
commencement
of
the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1983".
[Vide U.P. Act 1 of 1984, sec. 11
(w.e.f. 1-5-1984). (c) any sanction accorded or consent given
under
the Old Code in pursuance of which no proceeding was commenced under that Code,
shall
be
deemed to have been accorded or given under the corresponding provisions of
this Code and
proceedings
may be commenced under this Code in pursuance of such sanction or consent;
(d)
the provisions of the Old Code shall continue to apply in relation to every
prosecution against
a
Ruler within the meaning of Article 363 of the
Constitution.
(3)
Where the period prescribed for an application or other proceeding under the
Old Code had
expired
on or before the commencement of this Code, nothing in this Code shall be
construed as
enabling
any such application to be made or proceeding
to
be commenced under this Code by reason only of the fact that a longer period
therefor is
prescribed
by this Code or provisions are made in this Code for the extension of time.
STATE AMENDMENT
Uttar Pradesh:
In
sub-section (2) of section 484, after clause (d), the following clause shall be
inserted and be
deemed
always to have been inserted, namely:—
"(e)
the provisions of the United Provinces Borstal Act, 1938 (U.P. Act VIII of
1938) the United
Provinces
First Offenders Probation Act, 1938 (U.P. Act VI of 1938), and the Uttar
Pradesh
Children
Act, 1951 (U.P. Act 1 of 1951) shall continue in force in the State of Uttar
Pradesh until
altered
or repealed or amended by the competent Legislature or other competent
authority, and
accordingly,
the provisions of section 360 of this case shall not apply to that State, and
the
provisions
of section 361 shall apply with the substitution of references to the Central
Act named
therein
by references to the corresponding Acts in force in the State."
Vide U.P. Act 16 of 1976, sec. 10
(w.e.f. 1-5-1976).
In
sub-section (2) of section 484, in clause (a) after the proviso, the following
further proviso
shall
be inserted, namely:—
"Provided
further that the provisions of section 326 of this Code as amended by the Code of
Criminal
Procedure (Uttar Pradesh Amendment) Act, 1976 shall apply also to every trial
pending
in
a Court of Session at the commencement of this Code and also pending at the
commencement
of
the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1983".
Vide U.P. Act 1 of 1984, sec. 11
(w.e.f. 1-5-1984).
Subscribe to:
Comments (Atom)