Complaint Case - Criminal Procedure Code - LLB Solved Question

Q. Explain the procedure before a magistrate in a complaint case. (2019, 20 marks)

Complaint Case: S.210 of CrPC defines complaint case as Warrant case instituted otherwise than on a police report. Sections 244 to 249 deals with the procedure in complaint case.

S.244 Evidence for prosecution

• Proceed with hearing, examine prosecution evidence

• Summon prosecution witnesses on application of PP

S.245 When accused shall be discharged

• On examining of evidences and witnesses as per S244, the Magistrate finds no case made out against the accused can order a discharge

• The magistrate can discharge the accused at any previous stages of the trial if he finds the charges to be groundless

S.246 Procedure when accused is not discharged

• Frame charges

• Read and explain the charges to he accused

• If accused pleads guilty, convict the accused

• If refuses or not plead guilty, the accused will provide list of witnesses he wants to cross-examine

• If he names so, the defence will cross examine all those witnesses

• Evidences of remaining Prosecution witnesses

S.247 Evidence of Defence

• Evidences of defence witnesses to be called

S.248 Acquittal or conviction 

2.249 Absence of complainant

• If the offence is compoundable and non-cognizable, Discharge at the discretion of the magistrate

Constitution, Functions, Powers and Jurisdiction of Criminal Courts under Criminal Procedure Code

Q. Discuss the constitution, functions, powers and jurisdiction of criminal courts under criminal procedure code. (2018, 2019, 20 marks)

Q. What are different Courts established under Cr.PC in a district? Write about each one. Also write about their powers.  (2017, 20 marks)

Q. Discuss the Classes of Criminal Court and their Powers and mention sentences which may be passed by them  (2016, 20 marks)

Classes of criminal courts in India (S.6 Chapter XXI of CrPC)

(i) Court of Session

(ii) Judicial Magistrate of the 1st class or Metro Magistrate 

(iii) Judicial Magistrate of the 2nd class

(iv) Executive Magistrates

Structure and power of Criminal courts in India is as follows:

1. High Court.

2. Courts constituted by any law other then this code

3. Court of Session (S.9)

• Every session division

• Session Judge, Additional Session Judge (optional)

• Appointed by High Court

• Same jurisdiction as HC except death punishment for which need approval from High Court

• Assistant Session Judge (optional)

• Appointed by High Court

• Cannot award Death/ Life/ imprisonment more than 10 yrs

• Assistant Session Judge is subordinate to Session Judge

4. Court of Judicial Magistrate (S.11)

• District level court

• High Court appoints the Judicial Magistrate of 1st class as the Chief Judicial Magistrate

• There may be as many Judicial Magistrate of 2nd class as required

• Subordinate to Session Judge

• Chief Judicial Magistrate/ Additional Chief Judicial Magistrate

• Can award imprisonment not more than 7 years

• Special Judicial Magistrate subordinate to Chief Judicial Magistrate for admin purpose

• Judicial Magistrate of the 1st class

• Can award up to 3 yearrs of imprisonment or Rs. 10 thousand fine or both

• Judicial Magistrate of the 2nd class

• Can award up to 1 year imprisonment or Rs. 5 thousand fine or both

5. Metropolitan Magistrate (in metropolitan areas having population more than 1 million)

• Same as CJM

6. Executive Magistrate

• Appointed by State Govt

• One of them is District Magistrate

• Appointed Sub Divisional Magistrate

• All Executive Magistrates are subordinate to the District Magistrate

7. Special Executive Magistrate

• Subordinate to Executive Magistrates

Rights of an arrested person - Law question

Q. What are the rights of an arrested Person? (2019, 10 marks)

Q. What are the constitutional and Legal rights of an arrested Person? (2017, 10 marks)

Rights of an arrested person

1. Right to silence : Article 20(3) of Constitution of India “No person accused of any offence shall be forced to be witness of himself”

2. Right to know the ground of arrest: 

Section 50(1), Section 55 - An arrested person has right to know the ground of arrest in case of arrest without warrant

Section 75 - An arrested person has right to know the ground of arrest in case of arrest with warrant

Article 22(2) - No person should be detained without informing him the ground of such arrest asap nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.

3. Information regarding the right to be released on bail

Section. 50(2) of CrPC provides that right to be released on bail can be exercised in case of bailable offence only.

4. Right to be produced to a magistrate without delay

Sections 56 and 76 of CrPC

5. Should not be detained for over 24 hours without judicial scrutiny

Section 57 of CrPC

6. Right to a speedy and fair trial

  Fair trial - Article 14 provides equality before law

  Speedy trial - The SC in case of Hussainara Khatun directed that in case of  summary trial, it should be completed by 6 month

7. Right to consult a legal practitioner of his choice

Article 22(1) provides rights to consult a legal practitioner of the arrested person's choice.

8. Right to free legal aid

In Khatri vs State of Bihar, the Supreme Court indicates that right to legal aid is implicit in Article 21

9. Right to consult a medical practitioner

Section 54(1) of Cr PC gives this right

10. Right to produce evidence

Arrest of a person by a Magistrate and a private person - CrPC

Asked in 2019 for 10 marks

When a private person and a magistrate may cause the arrest of a person?

Section 43 of Criminal Procedure Code provides provision for arrest by private person as follows

1. Non-bailable, cognizable offence committed in front

2. Proclaimed offender

Section 44 of the Criminal Procedure Code states that a Magistrate can arrest a person under the following circumstances

1. Any offence committed in his presence, within his local jurisdiction

2. Competent to arrest the person

Trial procedure in petty cases under Code of Criminal Procedure

Asked in 2019 for 10 marks

Trial procedure in petty cases under Code of Criminal Procedure

Section 253 Conviction on plea in absence of accused in petty cases

Section 253 deals with Conviction on plea of guilty in absence of accused in petty cases and acts as an exception to general rule which provides a simple procedure for disposing of petty cases without the presence of accused in court by post and messenger. By this provision discretion is given to the Magistrate to convict the accused. It also enables the pleader authorised by the accused to plead guilty on behalf of his client when offence is punishable only with fine.

Section 264 No appeal lies in petty cases tried summarily

As per Section 264 of the Code, in all the cases of summary trials, in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the same shall be recorded.

Summary trials deal with cases relating to petty offences and hence the procedure for trial is not elaborate. There is no appeal in such a trial if a sentence of fine only not exceeding two hundred rupees has been awarded. However, there can be an application for revision to the High Court.

Investigation - Criminal Procedure Code

Asked in 2016, 2019 for 4 marks

Investigation

Investigation is the process of collection of evidence by Police Officer or any person authorised by Magistrate.

According to Section 2(h) of the Code of Criminal Procedure, "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

Anticipatory Bail - Criminal Procedure Code

Asked in 2019 for 4 marks

Anticipatory Bail
According to Section 438 of the Code of Criminal Procedure, Anticipatory baiul is direction for grant of bail to person apprehending arrest. Person anticipating an arrest may apply for this bail to avoid arrest.

Charge - S.2(b) of Criminal Procedure Code

Asked in 2018, 2019 for 4 marks

Charge

According to Section.2(b) of the Code of Criminal Procedure “charge” includes any head of charge when the charge contains more heads than one.

Compoundable Offences under Criminal Procedure Code

Asked in 2019 for 4 marks

Compoundable Offences
Section 320 of the Cr PC deals with compoundable offences. These are the offences that can be compromised by the complainant. The complainant can agree to take back the charges levied against the accused subject to the following conditions.

(i) Such compromise should be bonafide in nature

(ii) There must be no consideration to which the complainant is not entitled to. 

(iii) The offences listed in Section 320 of the Code of Criminal Procedure which are compoundable in nature and are punishable under a different section of the Indian Penal Code.

Example of Compoundable Offences  

1. Criminal or house-trespass. 

2. Uttering words with an intent to hurt any person’s religious feeling. 

3. Printing or engraving matters, knowing as defamatory. 

4. Criminal breach of contract of services.

Discharge - Definition as per Criminal Procedure Code

Asked in 2016, 2019 for 4 marks

Discharge

Section 227 of the Cr.PC deals with discharge in Session Court. According to section 227 of the Cr PC If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

S. 239 of Cr PC deals with discharge on Warrant Cases on a police report.

S.245 of the code deals with discharge on Warrant cases otherwise on a police report (complaint cases)

Temporary Injunction: Grounds on which Temporary Injunction can be granted

Q  What to you mean by temporary injunction? (2018, 4 marks)

Q  What is temporary injunction? When and in what matters temporary injunctions can be granted? (2019, 20 marks)

Injunction: 

An injunction is a court order whereby a party is required to do, or refrain from doing, any act in the interest of justice. This can be a remedy or a relief in the form of an order which prohibits one form doing something or asks to continue to do something.

Temporary Injunction

A temporary or interim injunction restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further order of the court. It is regulated under the provisions of Order 39 of CPC and may be granted at any stage of the suit.

Grounds on which Temporary Injunction can be granted

Order 39 Rule 1 of the CPC provides that Temporary Injunction may be granted by court under the following circumstances:

1. Property in dispute is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of decree.

2. The defendant threatens or intends to remove or dispose off his property with a view to defraud creditors.

3. The defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to the property in dispute

4. The defendant is about to commit breach of peace or contract or otherwise (order 39 rule 2).

5. where the court is of opinion that interest of justice, so required.

Conditions for granting Temporary Injunction:

Injunction is discretionary remedy and thus, before granting of the temporary injunction, the following conditions are required to be satisfied:

1. Prima Facie Case is in the favour of the plaintiff and against the defendant.

2. Irreparable injury is likely to be caused to the plaintiff, which cannot be compensated for in terms of money.

3. Balance of convenience is in favor of the plaintiff and against the defendant.

4. There is a bona fide dispute raised by the applicant and there is a probability of the applicant being entitled to the relief claimed by him.

Thus, the burden is on the plaintiff praying for the relief. Mere proof of one of the above conditions does not entitle a person to an order of temporary Injunction.

Case reference: Dalpat Kumar vs Prahlad Singh and Ors. the Apex Court, while considering the question of balance of convenience observed that the court while exercising discretion in granting or refusing injunction should exercise sound judicial discretion and should attempt to weigh substantial mischief or injury likely to be caused to the parties, and in the case of refusal of injunction should compare it with that which is likely to be caused to the opposite party, if the injunction is granted.

Ex-parte decree: Rules and remedies for setting aside and ex-parte decree

When and what remedies are available for setting aside decree ex-parte against defendant? explain fully. (2018, 20 marks)

What is an ex-parte decree? Discuss the procedure for setting aside an ex-parte decree. (2019, 20 marks)

Ex-parte Decree: An ‘Ex parte decree’ is a decree passed against a defendant in his/her absence. This situation arises when despite service of summons, only the plaintiff appears on the date of hearing, the Court may hear the suit ex parte and pass a decree against the defendant. 

Order 9, rule 6(1)(a) states that: Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing

. The Rule further classifies this situation into three distinct scenario

1. When summons duly served. if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.

2. When summons not duly served. if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant.

3. When summons served but not in due time. if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons.

Decree can only be given in relation to a suit. Although CPC does not define what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. the Privy Council defined the term suit as a civil proceeding instituted by the presentation of a plaint.

Setting aside ex parte Decrees 

Rule 13 - Setting aside decree ex parte against defendant

The defendant may apply to the Court for an order to set it aside. The application is to be made to the same court which passed the decree. The application can be made on the grounds that that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. If the court is satisfied, shall make an order setting aside the decree as against the defendant upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

Rule 14 - No decree to be set aside without notice to opposite party.

No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.

Remedies Against Ex Parte Decree

1. An Application Under Order 9, Rule 13,
   Order 9 Rule 13 states that while setting aside ex-parte decree, the defendant may apply to the Court by which the decree was passed for an order to set it aside and if the Court is satisfied that the summons were not duly served, or that he was prevented by any sufficient means from appearing when the suit was called on for hearing, the Court may make such order setting aside the decree against him as it thinks fit, and shall appoint a day for proceeding with the suit, provided that the decree was of such a nature that it could not be set aside as against such defendant but it may be set aside as against all or any of the other defendants also.
    

2. Appeal Under Section 96
   An appeal may lie from an original decree passed ex parte: Unless expressly provided, appeal lies from any decree passed by the court. In cases, where the value of suit does not exceed Rs.10, 000 appeal can only be filed on question of law. When a decree has been passed against the Defendant as Ex-Parte appeal lies. In cases headed by two or more judges, the majority decision shall prevail. In case there is no majority, then the decree of lower court shall be confirmed.

A Review Application Under Section 114 of C.P.C.
Section 114 states that-  Review- Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

Set-off : Meaning, Essentials, Types and Distinctions

Set-off is an important topic for LLB and BA LLB examinations. Question related to Set-off is often asked in CPC as well as in Drafting and Pleading papers as given below.

 

Civil Procedure Code

What is set-off? Explain the difference between legal set-off and equitable set-off. (2019, 20 marks)
Distinction between Legal set-off and Equitable Set-off. (2018, 4 marks)
Distinguish between counterclaim and set-off. (2016, 10 marks, 2017, 20 marks)

Drafting and Pleading
Define set-off (2019, 4 marks)
Counter claim and set-off (2017, 10 marks)

Distinction between Legal set-off and Equitable Set-off. (2018, 4 marks)

Meaning of Set-off: The doctrine of set-off is defined in Order 8 Rule 6(1) of the CPC. As per this rule, in a suit of recovery of money, if the defendant finds that they have their own claim against the plaintiff, then they can plead to set off or deduct any amount which the plaintiff owes them from the claim of the original suit. So, simply said, Set-Off refers to a cross-claim of money or reciprocal acquittal of debts between two persons. Both the Plaintiff and the defendant are debtors and creditors to each other.  Set-Off is considered an important tool of defense for the defendant.

Example: A sues B for recovery of Rs. 5000 against a bill of exchange.  

On the other hand B holds a judgement against A for Rs. 8000. Both the claims being definite and certain, the amount of Rs. 5000 can be set-off against each other.

Essentials of Set-off:

1. The suit must be for recovery of money

2. The amount of money must be definite

3. The amount should be legally recoverable

4. It must be recoverable by the defendant from the plaintiff

5. The set-off amount will not exceed the pecuniary limits of the court

Types of Set-off

The Civil Procedure Code defines two types of set-offs, Legal Set-off and Equitable Set-off. Rule 6 of Order 8 deals with Legal set-off. The concept of equitable set-off comes from the broad principles of justice, equity and good conscience. 

Legal Set-off: Legal set-off cab be claimed by a defendant if he or she finds that the plaintiff owes them debt too and decides to deduct that sum of money to lessen their own debt. As per rule 6 the following conditions are applicable for legal set-off

1. The suit brought by the plaintiff is for recovery of debt only. 

2. The amount of money must be ascertained or fixed.

3. The money can be legally recoverable.

4. The original claim and the set-off must be in the same character.

5. The set-off shouldn’t exceed the pecuniary jurisdiction of the court.

Equitable Set-off 

Equitable set-off refers to a claim of set-off where the amount of money is unascertained. an unascertained sum of money where both the plaintiff and the defendant’s claim arise out of the same transaction or are connected in nature and circumstance. 

In India, the courts are not bound to entertain equitable set-off. They have the discretionary power to entertain it. The courts can also refuse an equitable set off if they find that an usual investigation is necessary to determine the unascertained sum of money which will be a hassle for the court. Though courts generally allow the defendant claim as it will be inequitable to drive the defendant to file another suit.

Distinction between Legal Set-off and Equitable Set-off

Legal Set-off	Equitable Set-off
The sum of money of the claim should be ascertained	Claim is allowed even if the amount of money is unascertained
Legal set-off is a right. The courts are obliged to adjudicate upon such claim	This is not a right. Courts have discretionary power to entertain it
It is not necessary that the cross-demands arise out of same transaction	In equitable set-off it is mandatory that the cross-demands should arise out of same transaction
In a legal set-off, the amount claimed must be legally recoverable and not time-barred.	In Equitable set-off even if the claim is barred by time and there is a fiduciary relationship between the parties then the court can entertain it.
Court fee is required	Court fee is not required

Distinction between Counter-claim and Set-off

Set-off	Counter Claim
Set-off is a statutory Defence against plaintiff's action	Counter claim is a cross-action
Set-off must be for an ascertained sum or must arise out of the same transaction as the plaintiff’s claim.	A counter-claim may arise out of different transactions.
Set-off is a statutory ground of defence	Counter claim is not a statutory defence
An equitable set-off is a claim by the defendant in defence, which generally cannot exceed the plaintiff’s claim.	In a counter-claim the defendant may, however, exceed the plaintiff’s claim, this being a cross action.