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CRPC NOTES
- FUNCTIONARIES CONTENTS
- FIR
- COGNIZANCE
- APPEALS
- CHARGES
- TRIAL
- WARRANT TRIAL
- SUMMARY TRIALS
- TRIAL FOR SUMMONS
- MAINTENANCE
- BAIL
- ISSUE OF PROCESS
- SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR
- EXECUTION
- REFERENCE
- SEARCH & SEIZURE
- CONFESSION
- FAIR TRIAL
- RIGHTS OF ACCUSED
- CLASSIFICATION OF OFFENCES
- UNLAWFUL ASSEMBLY
- SECTION 144 – ANALYSIS
FUNCTIONARIES
Functionaries consist of 5 main aspects: -
- Police
- The prosecutors
- Defence counsels
- Magistrates, and judges of higher courts
- The prison authorities and correctional services personnel POLICE (PRESUPPOSES EXISTENCE)
- Instrument for prevention and detection of crime
- Established and enrolled by every State Government under police act, 1861 or under a state enactment replacing the Act of 1861(Delhi police Act, 1978, Bombay police Act, 1951West Bengal police act,1952.)
- Each state – DGP in charge of the overall administration of the state police force.
- Each district – DSP – general control and collector of district (Sec.4 – Police Act)
- Members enrolled as police - Specific powers in Code – make arrest, search; wider power
- if incharge of police stations (Sec. 2(s))
- Sec. 36 - When a police officer is above the rank of a police officer who is the incharge of the police station – same powers throughout the local area
- Sathvinder kaur v. State (wide jurisdiction of Police) - Sec. 177 & 178 – inquire into complaint – already filed in another jurisdiction PROSECUTORS (defined under section 2(u)) AND elaborated in 24)
- Crime - not only against the individual but also against the state ; Because of this State participates in criminal trial as party against the accused (especially in cognizable offence)
- Responsibility of State to prosecute accused – at least in serious offences
- CG and SG after permission from HC – appoint prosecutors – to conduct prosecution & other criminal proceedings on behalf of accused in HC, Sessions or Court of Magistrate
- Pub. Prosecutor – eligible in HC – if practiced not less than 7 years (s. 24(7))
- SPP should have experience for at least 10 years.
- 25 Talks about Ass. PP, this may include a police who is not below inspector
- Directorate of Prosecution 25A. DEFENCE COUNSEL (RIGHT UNDER ARTICLE 22) (303, 304 For legal aid)
- Sec 303 – right to be defended by a pleader of his choice, if accused of an offence before criminal court, whose proceedings are instituted under Code (Art. 22(1))
- Equally competent
- Legal Services Authority Act, 1987 – allows Judiciary legal rep. for indigent accused (poor; unable to get a lawyer) – Khatri v. State of Bihar
e. Every Metropolitan area – HC appoint a Metropolitan Magistrate as Chief Metropolitan Magistrate (CMM) and Additional Metropolitan Magistrate (ACMM); subordinate to Sessions Judge
- Special Judicial or Metropolitan Magistrates (Section 13 and Section 16) a. In any district or metropolitan area – on request of Govt. – HC confer upon the government servant or retired government servant all or any of the powers of Judicial Magistrate or of the metropolitan Magistrate in certain cases or certain class of cases b. Appointment of such Magistrate – not exceeding 1 year – S. 13 & 18
- Courts of Executive Magistrate a. Magistral functions allotted to Executive b. Implement policy of separation of the Judiciary from the Executive c. Sec. 20(1) – SG appoint EM and one of them as District Magistrate d. Executive Magistrate – Control SG; deals with functions that are police and administrative in Nature e. Hierarchy i. District Magistrate (Additional District Magistrate) ii. Sub-Divisional Magistrate iii. Executive Magistrate iv. Special Executive Magistrate PRISON AUTHORITIES AND CORRECTIONAL SERVICES PERSONNEL
- If accused is guilty at conclusion of trial a. Pass sentence on him; Exception - Deal with him under the probation Laws or other special laws for the reformation and rehabilitation of the offenders (S. 235 (2), 248(2), 255(2))
- Necessary to provide machinery and personnel in case of execution of sentences & rehabilitation & treatment of offenders
- But no provision for creation, working and control of such machinery; machinery parts left to other special Acts - prison Act,1894, Prisoners Act, 1900, Borstal school Act, etc.
- For correctional services like treatment, training and rehabilitation of young offenders. – courts depend on Probation of Offenders Act, 1958, Borstal school acts, Reformatory Schools Act, 1897 FIR The term ‘First Information Report’ has not been defined in the CrPC. The report first recorded by the police relating to the commission of a cognizable case is the First Information Report giving information on the cognizable crime. This is the information on the basis of which investigation begins. The FIR must be in writing.
Object: The main objective of filing F.I.R. is to set the criminal law in motion and also to enable the police officer to start the investigation of the crime committed and collect all the possible pieces of evidence as soon as possible. Essential Conditions of FIR : In Moni Mohan v. Emperor, it was decided that the essential conditions of F.I.R. are:
- It must be a piece of information.
- It must be in writing. If given in writing, should be reduced into writing by the concerned police officer.
- The main act or crime should be cognizable in nature, not the ones subsequent to the main act. The F.I.R. must be in the nature of complaint or accusation with the object of getting the law in motion. Information in Cognizable Cases [S.154] Since the information received u/s 154 is termed as FIR, it is important to know the provisions relating to the procedure for recording information in respect of cognizable cases u/s/ 154. · If the information is given orally to an officer in charge of a police station, it has to be reduced in writing by the concerned police officer. It should be then read over to the informant, and then signed by him. The information thus received has to be recorded in a book authorized by the state government regarding the same. · A copy of the information recorded is to be given to the informant, free of cost. · If the officer in charge refuses to record the information, the person may send such information, the aggrieved person may send, the substance of such information to the Superintendent of Police and the Superintendent of Police if satisfied about the commission of the cognizable offence, shall either investigate the case himself or direct an investigation to be made by the subordinate police officer. Such police officer shall exercise all the powers of an officer in charge of the police station in the concerning offence. When the information is given by a woman against whom any of the offences under sections 326
- A, 326-B, 354, 354-A to 354-D, 376, 376-A to 376-E or 509 IPC is alleged to have been committed or attempted, such statement shall be recorded by a woman police officer or any woman officer. What Information is Considered in an F.I.R? Only information relating to the commission of a cognizable offence can be termed as an FIR. It is not necessary that the information must set out every detail of the case. It need not state the name of the accused also. What is necessary is that it must disclose information regarding the commission of a cognizable offence.
COGNIZANCE
Introduction After the stage of investigation, the next significant stage is to give fair trial to the accused. For the same the court has to contemplate certain points like taking cognizance of the case, existence of a prima facie case against the accused, consolidate proceedings related to the case and if the case is exclusively triable by the sessions court. Section 190 to 199 of CrPC deals Meaning Taking cognizance of an offence is the first step taken towards trial. Cognizance literally means taking notice and subsequently, taking cognizance means taking notice or becoming aware that the offence has been committed. This is when a judicial officer comes into picture. He will take cognizance of an offence before he proceeds. with the trial. This phrase hasn’t been defined in the code, however, the courts are settled with the meaning of the phrase. In the case of R.R. Chari v. State of UP , the court held that taking cognizance is not a formal action but just the involvement of the magistrate and him involving his judicial mind in the suspected commission of offence Cognizance by magistrate? According to Section 190, any magistrate of first class and second class can take cognizance of any offence if he receives a complaint of facts with respect to the offence, or if police report the facts or if he receives information from any person, except a police officer or on his own. Referring to section 190(2), any magistrate of second class can take cognizance which is within his competence to inquire or try if he is specially empowered by the Chief Judicial Magistrate (CJM). Transfer of case As per section 190(1)©, magistrate can take cognizance upon his own knowledge or information. If that’s the case, then section 191 makes it mandatory to inform the accused before taking the case of any evidence that he is entitled to have the case inquired or tried by another magistrate. If the accused objects to the proceedings before the magistrate took cognizance, the case should be transferred to a magistrate specified by the CJM. Failing to comply with this shall lead to vitiation of trial ( Dulichand v. State ) and an illegality under section 465. Further, section 192 empowers the CJM or an authorized first-class magistrate to transfer a case to another competent magistrate for the purpose of administrate convenience. But this should be done after taking of cognizance. Cognizance of offences by sessions court Referring to section 193, sessions court are not allowed to take cognizance unless it has been committed to it by the Magistrate or when it has been expressly provided in the CrPC or any other law.
Limitations on the power to take cognisance
1. Prosecutions for contempt of lawful authority of public servants Section 172 to 188 of IPC deals with offences related to contempt of court. According to section 195(1)(a), if the offence committed is under section 172 to 188 of IPC, then unless a written complaint is made by a public servant, the court cannot take cognizance to those cases. The court cannot take cognizance even in case of attempt, conspiracy or abetment of offence under section 172 to 188 of IPC. Further, if a superior officer of a public servant who has complained gives an order to withdraw the case, then the court cannot proceed with the trial. The only exception to this is when the trail has been concluded. ( Ashok v. state – Object to prevent accused from baseless prosecution)
- Prosecution for offences against public justice (section 195(1)(b)(i)) - Section 193 to 196, 199, 200, 205 to 211 and 228 of IPC deals with public justice. 3. Prosecution for offences relating to documents given in evidence (section 195(1)(b)(ii))
- Cases offensive under Section 463, or punishable under Section 471, 475 or 476.
- Section 195(3) – meaning of court – civil, revenue, criminal court, tribunal constituted y central or State Act (if the act has declared as court for the purpose of this section.
- Section 195(4) - superior court & subordinate court 4. Prosecution for offences against the state (Section 196(1))
- Chapter VI of IPC – offence against state – except with prevision sanction of CG or SG
- Section 153A (harmony), Section 153B, Section 295A or Section 505(public mischief) of IPC
- Object – prevent unauthorized persons from intruding in matters of the state
- Bajinath v. state of MP - Sanction – condition precedent for taking cognizance 5. Prosecution for the offence of criminal conspiracy (Section 196(2))
- criminal conspiracy under Section 120B
- Exception: consent in writing is given by the State Government or the District Magistrate to initiate the proceedings
- Section 196(3) - preliminary investigation by a police officer (not below the rank of inspector) - before giving consent by Central Government, State Government or District Magistrate 6. Prosecution of Judges and Public Servants (Section 197(1))
- offences done by Judges, Magistrates or any Public Servants during employment
- Exception: consent in writing is given by the State Government (offender is employed under state govt.) or the Central Government (offender is employed under central govt.) to initiate the proceedings
(1) Any person who is convicted by a trial held in a high court may appeal to a supreme court (2) Any person convicted by a trial in a court of a sessions judge or by an additional sessions judge or by any other court where the imprisonment is for more than seven years (3) If it is less than seven years, there can be an appeal with the session court if started from the metropolitan magistrate or assistant sessions judge or magistrate of first class or second class; or if the person is sentenced under 325 or 360 of crpc. (4) In short, when the amendments for rape had been included in the ipc, in that case, an appeal can be filed but the case must be disposed off within a period of 3 months.
- Section 375: No appeal in certain cases (Exceptions): If the accrued pleads guilty and the conviction is made in the high court; or if the conviction is made by a session court, metropolitan magistrate or MFC or MSC unless it is about the legality of the sentence.
Section 376: No appeal for matters of petty cases (Exceptions): This is in cases where:
(1) The sentence is by HC and the imprisonment is not exceeding 6 months; (2) The sentence is by a court of session/metropolitan magistrate and the imprisonment does not exceed 3 months; (3) The Sentence is by mfc and the sentence does not exceed 100 rupees (4) In a summary case, where the sentence is not more than 200 rupees- Section 379: Appeal against conviction by high court in certain cases: Where the High Court has, on appeal, reversed an order of acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more, he may appeal to the Supreme Court. An appeal to would lie to the Supreme Court as a matter of right when High Court, on appeal, (1) Reversed an order of Acquittal of an accused person; AND (2) Convicted and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more. In other circumstances, an appeal may be lodged if the High Court certifies that the matter is properly before the Supreme Court. Only severe unfairness shown on the record may persuade the Supreme Court to overrule the concurrent guilt findings of the lower courts. The Court would be reluctant to reverse the High Court's judgement unless there is a perverse and erroneous assessment of the evidence. If the High Court gave reasonable grounds for acquitting the accused, the Supreme Court would not be justified in intervening with such acquittal. The term "acquittal" does not always imply that the trial resulted in a full acquittal; it may instead refer to a case in which an accused was cleared of murder but convicted of a lesser crime.
CHARGES
A "charge" simply means an accusation. For the purposes of trial procedures under the Code, it signifies a formal accusation in writing against a person that he committed an offence. The main object of the charge is to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The purpose of the charge is to inform the accused as precisely and as concisely as possible of the accusation which he has to answer, and to afford him an opportunity to defend him. Section 211- 22 4 deals with the same.
1. SECTION 211 Section 211 of CrPC constitutes essentials elements of the contents of the charge; it states that the offences name will be written and the same must be written in the language of the curt and the same should be mentioned in the charge form. In case there is no specific name given under any law for the offence which the accused is charged with, then the definition of the offence must be clearly stated in the charged form and informed to the accused. In the case of Court in its Motion v Shankroo , the court held that mere mentioning of the Section under which the accused is charged, without mentioning the substance of the charge amounts to a serious breach of procedure. 2. SECTION 212 It states that the offence for which the accused is charged and the particulars like the time, place and the person against whom the offence is committed and giving to the accused the precise and clear notice of matter for which he is charged. 3. SECTION 213 Section 213 of Cr.PC asserts When the nature of the case is such that the particulars mentioned in Section 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall contain such particulars of how the alleged offence is committed as will be sufficient for that purpose. 4. SECTION 216 Section 216 of Cr. PC explains that courts shall have the power to alter or add to charge at any time before the judgment is pronounced. The trial court or the appellate court may either alter or add to the charge provided the only condition is:
- Accused has not faced charges for a new offence.
with having committed all or any of such offences and the charges against may be tried at once or the accused may be charged in the alternative with having committed someone of said offences. Withdrawal Section 224 of Cr. PC states when the accused is charged with more than one head, and after the conviction of the accused under that head then either the complainant or the officer conducting the prosecution may withdraw the remaining charge with the consent of the court. In the case of Vibhubti Narayan Chaubey v. State of UP , it was held that a charge can be withdrawn under this section only after the judgment and it cannot be deleted. TRIAL The code provides different types of criminal trials for different kinds of criminal cases. The more elaborate trial procedures being provided in respect of serious types of offences. Simple and less elaborate procedures in case of offences of lesser gravity and complexity and still simple and more abridged procedures for petty criminal cases. Such differential treatment of trial procedures becomes inevitable if the available time and resources are to be utilized equitably to do justice in all and sundry criminal cases. They are of four types; which are: - WARRANT TRIAL Warrant cases are those that include serious offenses that are punishable by death, life imprisonment, or a sentence of more than two years in prison. Sessions court or Magistrate court usually handles the trials in warrant proceedings. If the offense is more serious, the Court of Sessions will hear it, but if it is a less serious warrant case, the Magistrate will hear it. There are two elements to the trial of warrant cases: i) “Trial before a Court of Sessions” ii) “Trial by a Magistrate” TRIAL BEFORE A COURT OF SESSIONS (Section 220-237)
- Parties - The prosecution should always be handled b the Public Prosecutor in the sessions court. He will basically be representing the State. In the case of Shiva Kumar v. Humum Chand, it was decided that the prosecution in the Court of Sessions shall be handled by the Public Prosecutor and that no one else can do so. ( Section 225 - Trial to be conducted by the Public Prosecutor). Further, every accused should be defended by a counsel of his own choice. If he is not sufficient enough to do that, then the court shall assign a lawyer for him.
- Section 226 - Opening Case for Prosecution - When an accused commits an offense exclusively triable by Sessions court (section 209), then the prosecutor should open the case by explaining the allegation/charge against him and should disclose the evidence that
will prove his guilt. It is not needed to provide all the documents but the necessary ones while opening the case.
- Discharge (227) - If the judge determines that there is no adequate cause for proceeding against the accused after reviewing the case records and materials presented and hearing the prosecution and the accused, he shall release the accused under Section 227. It is also important to record the reasons for the accused's release.
- Section 228-Framing of Charge - If the Court finds that the accused has committed the offence, which is exclusively triable in the Court of Session, he would frame the charge against the accused after reviewing the record of cases and documents as evidence and after hearing the prosecution and the accused. If the offense committed is not exclusively triable by sessions court, the judge may frame the charge and transfer the case to the Chief Judicial Magistrate or any other Judicial Magistrate of First Class. In Bhawna Bai v. Ghanashyam & Ors , it was decided that the prima facie case must be observed while framing the charges, and the Court is not needed to record an order at that point.
- Explain charges - As per section 228(2), the charges should be read and explained to the accused and the accused will decide whether he will plead guilty to the same or not.
- Section 229 – Conviction on Plea of Guilty - The court upon its discretion will convict the accused if the accused pleads guilty and confirms that it is on his own will and not by coercion. Further, the accused should be given with all kinds of information regarding his charge, only then the plea will be valid. In Pawan Kumar v. State of Haryana, The court held that if the accused is not provided with information regarding the charges framed against him and he has pleaded guilty, that plea will be invalid.
- Evidence for the prosecution - Section 230 & Examination of witness (231)- If the accused refuses to plead guilty, does not plead, or claims to be tried, the Judge may order any procedure to force the production of any document, the presence of a witness, or anything else. The judge will then continue to hear all of the prosecution's evidence.
- Arguments on behalf of prosecution and examination of accused
- Section 232 – Acquittal - If there is no evidence to prove that the accused is guilty, the judge can order an acquittal under Section 232, or if the prosecution's evidence against the accused is determined to be unfounded by the court, the judge can order an acquittal.
- Section 233 – Defence - If the accused is not acquitted, the processes for his defense may begin, and he will be called to testify in his own defense. The written evidence presented by the defense will be submitted as a record by the Judge.
- Section 235 – Judgement Of Acquittal or Conviction and Section 236 Previous Conviction - The court shall determine the case after hearing the arguments (Section 234 CrPC). Whether the accused is acquitted or convicted will be decided only after hearing both the prosecution and the defense. If the accused has earlier been convicted under Section 211(7) and refuses to accept the earlier conviction, the court may call for proof of the previous charge, according to Section 236 of the CrPc.
the offense. The defense is aware of the evidence provided and has the option to contest it if necessary.
- Record of evidence - The Magistrate shall proceed to take all types of evidence submitted in favor of the prosecution and record them based on their relevance to the case on the fixed date (Section 242(3)). The Magistrate takes down the testimony of witnesses and any evidence presented by the prosecution to establish that the accused has committed the crime. The Magistrate has the authority to delay cross- examination of any witness until all other witnesses have been examined, or to recall any witness for additional cross-examination by the defense.
- Defence evidence - The magistrate will call the accused to appear in court and provide evidence, as well as allow for cross-examination. It was decided in Rasik Behrj v. State of UP that following the examination, the accused has the right to request entry into the defense and exhibit the evidence, which is considered a right of the accused. The accused must be given a reasonable chance to submit evidence before the Magistrate. Cases instituted otherwise than on Police Report (244-247)
- Preliminary hearing of the protection case - When an accused appears before the magistrate in case of warrant case which is instituted without a police report, then the magistrate shall take all evidence produced by the prosecution to support their case
- Discharge of accused - If the magistrate considers that no case has been made against the accused, then the accused shall be discharged (245(1)). If the magistrate feels that the charges are groundless, the magistrate can discharge the accused at the previous stage of the case (245(2).
- Framing of charges (246(1)- If the magistrate considered that there is ground for assuming that the accused has committed the offence, then the magistrate shall frame the charges
- Explain the charges to the accused (246(2))- Following the framing of the charges, the same will be read and explained to the accused before being asked if he or she is guilty.
- Choice of accused to recall prosecution witness (246)- If the accused refuses to plead guilty or does not plead guilty or claims to be tried or if the magistrate did not convict the accused even after the accused has pleaded guilty, then the magistrate will give the accused the choice to cross-examine if he wishes to in the next hearing.
- Prosecution evidence - If the accused wants to cross examine, then witnesses shall be recalled
- Defence evidence - Following the end of the prosecution's evidence, the prosecution's arguments, and the accused's examination, the accused will be summoned to enter his defense and produce his evidence. The accused cannot provide evidence until the prosecution is finished and the accused's examination under Section 313 of the Code is
completed. In R.S. Nayak v. A.R. Antulay, the Supreme Court ruled that Parliament might change the procedure.
- Special course adopted by Magistrate
- Magistrate not having jurisdiction: If in the course of any inquiry or trial before a Magistrate, the evidence warrants a presumption that the lagistrate lacks jurisdiction, then he shall stay the proceedings (322)
- Where case should be committed (323)- If it seems to the Magistrate during a trial that the matter should be heard by a Sessions Court, he shall commit the case to that court.
- When Magistrate cannot pass sentence sufficiently severe - If the Magistrate believes that the accused is guilty and that he should receive a punishment that is different in kind from, or more severe than, that which such Magistrate is authorized to impose, he may record his view and submit his action, and advance the accused to the Chief Judiciary Magistrate (CJM) (325(1)). The CJM has the authority to examine the parties, recall and question any witness, accept further evidence, and issue whatever judgment, punishment, or order he sees suitable in the matter (325(3)). Common provisions regarding conclusion of trial
- Acquittal or conviction - The Magistrate will render judgment following the conclusion of the defense evidence and the hearing of the arguments. If the Magistrate finds the accused not guilty, he shall record an order of acquittal; [S. 248(1)]; if the Magistrate finds the accused guilty, he shall hear the accused on the sentence issued and then pronounce sentence on him according to law. [S.248(2)]; Sections 353-365 include provisions for the delivery and pronouncing of a decision, as well as its language and content.
- Procedure in case of previous conviction - When a prior conviction is charged under Section 211(7) and the accused refuses to accept it, the court may, after convicting the accused under Section 229 or Section 235, consider evidence in relation to the alleged previous conviction and make a conclusion on it [S. 236]. This clause is used to determine whether the accused is subject to greater penalty as a result of a previous conviction.
- Compensation for accusation without reasonable cause - If the Magistrate believes there was no reasonable ground for making the allegation against the accused person while dismissing or acquitting the accused, he may order the person making the accusation to show cause why he should not pay compensation to the accused. This compensation shall not exceed the fine amount which the magistrate is empowered to impose
The procedure contains the following stages:
- Explaining the substance of accusation (sec. 251): In a summons case, when the accused appears or in brought before the magistrate, he shall be informed of the particulars of the accusation. It is not necessary to frame a charge. Omission to state particulars of accusation amounts to irregularity and is punishable under sec. 313. The court, then asks the accused to plead guilty or claim to be tried.
- Conviction on plea of guilty (sec. 252): If the accused pleads guilty, the magistrate may convict him.
- Conviction in the absence of accused in petty cases (see. 253): If the accused pleads guilty in respect of a petty offence, the magistrate may impose fine even in his absence and the same may be communicated through messenger or by post.
- Hearing of the prosecution and defense on procedure when not convicted (see. 254): If the accused does not plead guilty, the magistrate does not convict and hears: - Prosecution evidence. - Evidence produced for the defense and may summon the appearance of witness if necessary.
- Acquittal or conviction (sec. 255): After hearing from both the sides, if the magistrate finds the accused not guilty, he shall record an order of acquittal, if the accused is found guilty, the magistrate passes a sentence according to law. In other words, the magistrate may convict the accused upon the proof of facts.
- Non-appearance or death of complainant (sec. 256): The complainant shall appear before the court/magistrate on the date fixed for his appearance. If he fails to appear, the accused should be acquitted. In case of death of the complainant, the accused may be acquitted or the hearing may be adjourned.
- Withdrawal of complaint (sec. 257): According to see. 257, a magistrate has a discretionary power to allow withdrawal of complaint. The complaint may be permitted to withdraw his complaint at any time before a final order is passed under this chapter XX.
- Power to stop proceedings in certain cases (see. 258): In any summons case instituted than upon complaint, a magistrate of the first class or with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witness has been recorded, pronounce a judgment of acquittal and in any other case, release the accused and such release shall have the effect of discharge. Conversion of summons cases into warrant
cases (sec. 25 9): Sec. 259 empowers the magistrate to convert a summons case into a warrant case if: a. The offence is punishable with imprisonment for more than 6 months. b. He is of the opinion that it would be in the interest of justice to try such case in accordance with the procedure for the trial of warrant cases. MAINTENANCE The term maintenance has not been defined by the CrPC, 1973. Section 125 to Section 128 of the Code has made provisions for maintenance of wives, children and parents. Section 125 is a substantive provision conferring a right of maintenance on certain persons even though the Code is a procedural law. Nature and Scope According to Section 125 if any person having sufficient means neglects or refuses to maintain his wife, children or parents who are unable to maintain themselves, a Judicial Magistrate First Class may order such person to pay maintenance to them. Section 125 serves a social purpose preventing starvation, destitution and vagrancy of dependents. Furthermore, the word maintenance has liberal interpretation and includes appropriate food clothing and shelter and other basic necessities. Under section 125, the Magistrate is conferred with preventive Jurisdiction and not punitive or penal. Constitutional Basis of the Provisions Relating to Maintenance Article 15(3) of the Constitution states that nothing shall prevent state from making laws for women and children and therefore section 125 is enacted. ( Champakam Dorairajan case) According to Article 39 of the Constitution, men and women equally have the right to an adequate-livelihood. Section 125 safeguards the rights of women and children and parents which are weaker sections of the society and therefore cannot be said to be arbitrary to Article 14.’ Eligibility for Maintenance Under Section 125 following persons can claim maintenance:
- Wife: The wife, who is unable to maintain herself, is entitled to claim maintenance. She may be of any age-minor or major. The term "wife" includes a woman who has been divorced by, or has obtained divorce from, her husband and has not remarried. "Wife" for the purposes of Section 125 means a legally married woman - Savithramma v. N. Ramanarasimhaiah.
