Kelkar's Criminal Procedure Code Law India

955 Pages·2014·84.298 MB·English

by  R.V. Kelkar K.N. Chandrasekharan Pillai

R.V. Kelkar’s
C
riminal
P
rocedure
Revised by
Dr K.N. Chandrasekharan Pillai
BSc (Ker), LLM (Del), LLM, SJD (Michigan)
Formerly
Director, National Judicial Academy, Bhopal
Director, Indian Law Institute, Delhi
Director, National Institute for Advanced Legal Studies, Cochin
& Dean, School of Legal Studies, CUSAT, Cochin
Member, Law Commission of India
Foreword by
Hon’ble Mr Justice H.R. Khanna
Judge, Supreme Court of India (Retd.)
Eastern Book Company
Lucknow
EASTERN BOOK COMPANY
Website: www.ebc.co.in, E-mail: [email protected]
Lucknow (H.O.): 34, Lalbagh, Lucknow-226 001
Phones: [phone] (30 lines), Fax: [phone]
New Delhi: 5-B, Atma Ram House, 5th Floor
1, Tolstoy Marg, Connaught Place, New Delhi-110 001
Phones: [phone], [phone], Fax: [phone]
Delhi: 1267, Kashmere Gate, Old Hindu College Building, Delhi-110 006
Phones: [phone], [phone], Fax: [phone]
Bangalore: 25/1, Anand Nivas, 3rd Cross, 6th Main, Gandhinagar,
Bangalore-560 009, Phone: [phone]
Allahabad: Manav Law House, 8/10, M.G. Marg
Opp. Bishop Johnson School, Allahabad-211 001
Phones: [phone], 2422023, Fax: [phone]
Ahmedabad: Satyamev Complex-1, Ground Floor, Shop No. 7
Opp. High Court Gate No. 2 (Golden Jubilee Gate)
Sarkhej — Gandhinagar Highway Road, Sola, Ahmedabad-380 060
Phones: [phone], [phone]
www.facebook.com/easternbookcompany
www.twitter.com/ebcindia
Shop online at: www.ebcwebstore.com
First Edition, 1977 Fourth Edition, 2001
Second Edition, 1984 Fifth Edition, 2008
Third Edition, 1993 Reprinted, 2011
Reprinted, 2012 with Supplement
Sixth Edition, 2014
Rs. 695.00 USD 17.50
All rights reserved. No part of this work may be copied, reproduced, adapted, abridged or translated, stored in any retrieval system,
computer system, photographic or other system or transmitted in any form by any means whether electronic, mechanical, digital,
optical, photographic or otherwise without a prior written permission of the copyright holders, Eastern Book Company, Lucknow. Any
breach will entail legal action and prosecution without further notice.
This book is sold subject to the condition that it, or any part of it, shall not by way of trade or otherwise, be sold, lent, re-sold,
displayed, advertised or otherwise circulated, without the publishers' prior written consent, in any form of binding, cover or title other
than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser (s).
Any breach of any of these rights or conditions will entail civil and criminal action without further notice.
While every effort has been made to avoid any mistake or omission, this publication is being sold on the condition and understanding
that neither the author nor the publishers or printers would be liable in any manner to any person by reason of any mistake or omission
in this publication or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this work. For any error
in the text or any defect in printing or binding, the publishers will be liable only to replace the defective copy by another correct copy of
this work then available.
All disputes subject to the exclusive jurisdiction of courts, tribunals and forums at Lucknow only.
Copyright © Eastern Book Company, Lucknow
Publisher: EBC Publishing (P) Ltd., 34-A, Lalbagh, Lucknow-226 001
Printed and Produced by: Gopsons Papers Ltd., A-2, Sector-64, Noida-201 301
Foreword
Man may be a little lower than the angels, he has not shed off the brute
and the brute within is apt to break loose on occasions. Such aberrations
in human behaviour result in crime. Crime, however, has acquired today
wide dimensions, both in its enormity and variety. Mens rea was at one
time considered to be an essential ingredient of every offence. The posi­
tion has somewhat changed and there are various offences of which mens
rea is not an ingredient.
To deal with the perpetrators of crime, we need law courts. We also
need a code prescribing the procedure to be'followed in the law courts.
Not all people who are sent up for trial are guilty of the offences with
which they are charged. Duty therefore has been cast upon the courts of
deciding as to whether the person charged with an offence has actually
been proved guilty. The procedure which governs the court proceedings
before it arrives at that conclusion has to be such as is fair, inspires con­
fidence and at the same time is not such as provides a wide escape route
for the guilty.
The Criminal Procedure Code, as observed in Iqbal Ismail Sodawala
v. State of Maharashtra [(1975) 3 SCC 140] is essentially a code of proce­
dure and like all procedural law, is designed to further the ends of justice
and not to frustrate them by the introduction of endless technicalities. At
the same time it has to be borne in mind that it is procedure that spells
much of the difference between rule of law and rule by whim and caprice.
The object of the Code is to ensure for the accused a full and fair trial in
accordance with the principles of natural justice.
Mr Kelkar has brought a fresh approach in this book while dealing
with the subject of criminal procedure. There is topicwise arrangement
of the subject-matter and analysis of the relevant sections connected with
each topic. I am sure the book would prove useful to all those interested
in criminal procedure.
May 7, 1977 H.R. Khanna
Preface to the Sixth Edition
It is with a sense of satisfaction that the sixth edition of R.V. Kelkar’s
Criminal Procedure is presented to the students to whom the book was
dedicated by the illustrious author, late Prof. R.V. Kelkar. I had the for­
tune to study criminal procedure law under him. It was.his command that
I should revise his book.
Prof. Kelkar was the first to come out with a book on criminal proce­
dure with topic-wise treatment. This mode of dealing with issues in crimi­
nal procedure law has indeed revolutionised law teaching and research in
India.
M/s Eastern Book Company shares the glory of this achievement. Their
concern to keep the book to be relevant for law teaching and within the
reach of the students made it possible to bring out the present edition with
some innovations which are student-friendly.
The space provided in the margin may help the students to make notes
on important developments of current importance. The points for discus­
sion given at the end of the book might ignite the imagination of students
who are interested to do research in criminal procedure law.
I am grateful to my student, Dr Balakrishnan, Associate Professor,
National University of Advanced Legal Studies, Cochin for all help ren­
dered in updating the material.
Here is the product of our labour. I stand beholden to my teacher. I am
indebted to Shri Surendra Malik of M/s Eastern Book Company for his
active support and appreciation.
Cochin
April 15, 2014 —Dr K.N. Chandrasekharan Pillai
Preface to the First Edition
A fairly good grasp of criminal procedure is obviously essential for the
prosecutors, defence lawyers, magistrates and other senior judges dealing
with criminal matters. Where and how do they learn this law? Most of
them would probably say that they really learnt the procedural law only
after completing their formal legal education at the colleges and universi­
ties. Very few of them, if at all, would be able to acknowledge that they
could get adequate grounding in the basic principles of criminal proce­
dure before leaving the portals of academic institutions.
The Bar Council of India rightly requires that criminal procedure
should be one of the compulsory subjects to be included in the syllabi for
the degree course in law. It has been so included by all the universities.
However very few full-time law teachers have been teaching criminal pro­
cedure. The part-time law teachers do not simply have the necessary time
to develop the academic study including its teaching methods. The proce­
dural laws have not been as yet considered to be good fields for specialisa­
tion at the LLM level, and are mostly neglected. The leaders in the field of
legal education, with few honourable exceptions, hardly take any serious
interest in the study and development of procedural laws. This might just
be a fortuitous situation, but it is there. Many socio-legal research areas
in the field of criminal law have remained untapped; others have been
handled not quite effectively. One important reason for this unfortunate
situation is the lack of adequate background study of criminal procedure
on the part of those who undertake, or who are expected to undertake,
such research studies. In a changing society, the criminal procedure by its
very nature would need frequent changes to keep pace with the times and
also to reflect in it the changing values and moods of the people. The con­
tribution of the academic community in this field of law reforms and leg­
islation is unfortunately far from impressive. All this cannot be changed
X Preface to the First Edition
overnight. Patient efforts consistently made over a period of years may
change this dismal picture.
The neglect and indifference in the study of criminal procedure are both
the cause and the consequence of the dearth of suitable reading materials
in the field. No doubt there are several books on the Criminal Procedure
Code giving sectionwise commentaries. These works—and some of them
are quite impressive—are useful in their own way. They are of great assis­
tance to the busy practitioners in their daily chores. However, these books
are less suited to those who want to study the basic fundamental princi­
ples of criminal procedure in a logical sequence. The present arrangement
of the sections of the Criminal Procedure Code has not been specially
designed to subserve the needs of the students. Experience has shown that
the section wise commentary is not quite effective and efficient medium
for class-room instruction. It fails to evoke adequate interest in the subject
and falls short of focussing enough attention on the basic fundamental
principles and also on the interaction of the different sections through
which the principles become operative.
The topic-wise organisation of the subject of criminal procedure has
better chances of success in imparting knowledge of the provisions and
also developing insight into the subject. Needless to say that such arrange­
ment of the subject-matter would certainly give an important place to the
study of the judicial experience in the actual working of the Criminal
Procedure Code. Therefore, the topicwise arrangement of the subject­
matter, the analysis of the relevant sections connected with each topic,
and the critical appraisal of such sections in the light of judicial decisions,
shouklform the hard core of the reading materials on criminal procedure.
That alone, it is humbly submitted, would make the study of criminal
procedure both meaningful and interesting. There are hardly any books
on criminal procedure which evince such a treatment. Even the books pri­
marily written for students do not have the abovesaid features in adequate
measure and mostly follow the traditional section wise pattern. Hence the
Outlines of Criminal Procedure has been conceived to fill the gap. It is
an attempt to provide a new type of book on criminal procedure, and it
is hoped that the students and teachers would welcome this experiment.
The author is quite conscious of his shortcomings; and after completion
of the book he did feel that a better arrangement could have been made
in the organisation of the subject-matter. But by then it was too late to
recast the mould. The author hope to improve upon his efforts in the next
edition of the book.
Readers may kindly note that the following abbreviations have been
used in the book for the sake of convenience:
41st Report Forty-first Report of the Law Commission of India on
the Code of Criminal Procedure, 1898, Part I (1969)
Preface to the First Edition XI
37th Report Thirty-seventh Report of the Law Commission of India
on the Code of Criminal Procedure, 1898 (1967)
14th Report Fourteenth Report of the Law Commission of India on
Reform of Judicial Administration (1958)
Statement of Statement of Objects and Reasons appended to the Code
Objects and of Criminal Procedure Bill, 1970 as introduced in the
Reasons Rajya Sabha.
Notes on Clauses Notes on clauses appended to the Code of Criminal
Procedure Bill, 1970 as introduced in the Rajya Sabha.
Joint Committee Report of the Joint Committee on the Code of Criminal
Report Procedure Bill, 1970 (1972)
Report of the Report of the Expert Committee on Legal
Expert Committee Aid—Processual Justice to the People (1973)
on Legal Aid
IPC The Indian Penal Code, i860.
The sections referred to in the text of the book, unless otherwise indi­
cated, pertain to the Criminal Procedure Code, 1973.
Readers may also note that judicial decisions under the provisions of
the Criminal Procedure Code, 1898, have been cited where the new provi­
sions of the Criminal Procedure Code, 1973 are similar to those of the old
Code of 1898. Reference to such cases would be useful in understanding
as to how the provisions of the new Code of 1973 are likely to be inter­
preted by the courts.
I take this opportunity to express once again my sincere thanks to the
publishers for the patience with which they waited—and they waited for
long—for the completion of the book. I am thankful to all those who
directly or indirectly rendered assistance to me in the preparation of the
book.
New Delhi
May 3, 1977 —R.V. Kelkar
Brief Contents
Table of Cases ............................. xxvn
Table of Statutes .......................... cxi
Prologue ................... cxxv
I. Object, Extent and Scope......... i 10. Cognizance of Offences .... 221
Constitution of Criminal Courts . 7 11. Commencement of Proceedings
Before Magistrates ................. 261
3. Police, Prosecutors, Defence
Counsels, Prison Authorities . . 19 12. Bail ........................................ 289
4. Pre-trial Proceedings—General 13. Trial Procedures: Principal
Observations ...............................31 Features of Fair Trial ................345
5. Pre-trial Procedure: Steps to 14. Trial Procedures: Courts
Ensure Accused’s Presence and Parties ............................... 359
at the Trial ....................................43
15. Trial Procedure^: Charge .... 391
fo. Pre-trial Procedure: Arrest,
16. Trial Procedures: Some
and the Rights of the Arrested
Common Features ....................419
Person .............................. 71
17. Trial Procedures: Disposal
7. Pre-trial Procedure: Search,
of Criminal Cases without
Seizure and Production of
Full Trial ....................................461
Materials ......................................91
18. Trial Procedures: Preliminary
8. Pre-trial Procedure:
Pleas to Bar Trial ......................499
Investigation by Police ..............123
19. Trial Procedures: Trial Before
9. Local Jurisdiction of the
a Court of Session ....................523
Courts and the Police........... 203
XIV Brief Contents
20. Trial Procedures: Trial 27. Execution, Suspension,
of Warrant Cases by Remission and Commutation
Magistrates ...............................543 of Sentences ...............................737
21. Trial Procedures: Trial of
28. Preventive and Precautionary
Summons Cases and
Measures ............................... 771
Summary Trial...........................567
29. Proceedings for Maintenance
22. Trial Procedures: Special
of Wives, Children and
Rules of Evidence.......................585
Parents ...................................... 833
23. Judgment ....................................601
30. Miscellaneous Provisions .... 871
24. Review Procedures: Appeals . 649
25. Review Procedures: Revision . 693 Probing the Problem^.................... 909
26. Transfer of Cases ......................721 Subject Index........................................923