23/04/2014
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Section------ 3, Cr. P. C.
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Magistrate-comments on----Section 3 (4) which provides that where, under any law, other than Code of Criminal Procedure, the function exercisable by a Magistrate relate to matters as enumerated in sub clauses (a) and (b) the Magistrate shall be deemed to be either a Judicial Magistrate or an Administrative Magistrate. Under Sub-section (2) of Section 68 of the Wakf Act, 1995, the District Magistrate has to act on an application by the newly appointed mutwalli or committee along with a certified copy of the order of the Board and direct for delivery of charge. The Magistrate contemplated under section 68(2) has not to go behind the order of the Board appointing mutwalli or Committee nor it can question the said orders which is clear by the specific provisions of Section 68(5) of the Wakf Act. Thus, the Magistrate function is not the appreciation or shifting of evidence or the formulation of any decision hence, Section 3 (4) (a) of Code of Criminal Procedure is not attracted and the nature of the function of the Magistrate is only administrative or executive in nature, hence the Magistrate used in said statute has to be construed as executive Magistrate. The functioning of the Magistrate as contemplated by Section 68(3) being administrative or executive in nature , the conclusion is inescapable that provisions of section 68(2) of the Wakf Act read with section 3 (4)(b) of the Code of Criminal Procedure, clearly refers to the executive Magistrate. --------MOHD ACHCHEY KHAN AND ANR V/S DISTRICT MAGISTRATE/UPPER SURVEY COMMISSIONER (WAQF) AND ORS , 2011 (4) AllLJ 577, 2011 (89) AllLR 150, 2011 (8) RCR(Civ) 1714
Magistrate-domain of------Naib Tehsildar may be made Magistrate for the revenue purposes but he cannot be considered to be an Executive Magistrate under the Cr.P.C. or NDPS Act. -----SHANKER LAL V/S STATE OF HARYANA, 2001 (4) AICLR 609, 2002 (1) CriCC 77, 2001 (4) RCR(Cri) 531
Executive Magistrate-status of-----Sub-Divisional Magistrate is an executive Magistrate and is appointed by State Government under sub-section (4) of Section 20 of the Code of Criminal Procedure, 1973. Clause (b) of sub-section (4) of Section 3 of the Code provides that where under any law, other than this Code, the functions exercisable by a Magistrate relates to matters which are administrative or executive in nature such as the granting of a licence, suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from prosecution, they shall be exercisable by an executive Magistrate. Sub-Divisional Magistrate under the Code of Criminal Procedure functions as Court as provided in Sections 107, 108, 109, 110, 111, 112 and other sections falling in Chapter VIII of the Code. He also acts as an administrative or executive officer under various other laws. Thus he is officer as well as a Court. ------JAI PRAKASH AGARWAL V/S PRESCRIBED AUTHORITY/S D M, SADAR, DEORIA , 1998 (4) AWC 10, 1999 (1) UPLBEC 697, 1999 (35) AllLR 261
Code of Criminal Procedure, 1973-attraction of------A combined reading of the above provisions of the Code of Criminal Procedure, 1973 and the Indian Penal Code makes it quite clear that the Cr.P.C. lays down, the procedure to be followed in the trial of the criminal eases except such cases for the trial of which any special form of procedure is prescribed by any other law for the time being in force. Sub-section (22) of Section 4 mandates that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the provision contained in the Cr.P.C. but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The word "otherwise" preceding the words "dealing with" used in the phraseology of Sub-section (2) points out at the fact that the expression "dealing with" is quite exhaustive and comprehensive and covers investigation, inquiry or trial which are some of the aspects of dealing with the offences. Section 5, in express terms, excludes the application of the Cr.P.C., (in the absence of a specific provision therein) to any (1) special law, or (2) local law, or (3) special powers conferred or (4) special form of procedure prescribed by any other law. The effect of Section 5 Cr.P.C., therefore, is to render the provisions of the Code of Criminal Procedure, 1973 inapplicable in respect of all matters covered by special law-----HANUMAN SINGH V/S UNION OF INDIA , 1997 CrLJ 1054, 1997 CrLR 102 [see also:Ajmer Singh v. Union of India (1987) 3 SCC 340 : 1987 Cri LJ 1877. ]
Executive Magistrate-law on-------under Section 3 of the Code of Criminal Procedure, Sub-clause (4) (b), it has been provided that a Magistrate who does the duty of an administrative or executive nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution shall be known as Executive Magistrate. Under Section 397 of the Code of Criminal Procedure, there is a clear provision that all the Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge.----SANKATHA PRASAD V/S VIMAL KUMAR KAPPOR AND ANR , 1997 (21) AllCriR 3, 1997 (1) AWC 80
Criminal Courts - classes of-------Section 3 of the Code deals with the construction of references to the words "'Magistrate, 'Magistrate of the Second Class,' 'Magistrate of the First Class,' and 'the Chief Judicial Magistrate'. The classes of criminal Courts are contemplated under S.6 of the Code.------KARTAR SINGH; KRIPA SHANKAR RAI V/S STATE OF PUNJAB , 1994 (1) Crimes 1031, 1994 CrLJ 3139, 1994 (1) CurCriR 162, 1994 (2) JT 423, 1994 (2) LW(Cri) 422, 1994 (Supp1) Scale 1, 1994 (3) SCC 569, 1994 SCC(Cri) 899, 1994 (2) SCR 375
Magistrate – classification of -
Legislature in its wisdom had empowered the Metropolitan Magistrate or Judicial Magistrate for recording the statement. The proviso to Sub-section (1) further reveals that the anxiety of the Legislature in barring other person than the Metropolitan Magistrate or a Judicial Magistrate from recording the confessions is well apparent as even a police officer on whom powers of the Magistrate have been conferred under any law for the time being in force has been debarred from recording such confessions. The scheme of the Cr PC, 1973, itself provides that the Legislature in its wisdom has classified courts of Executive Magistrate separately than those of the Judicial Magistrate as is apparent from the provision of Section 6 of the Code.-----STATE OF HARYANA V/S PARMANAND SON OF RATI RAM , 1995 CrLJ 396 PUNJAB & HARYANA (D.B.)
Presidency Magistrate -ambit of-------The reference to the term Presidency Magistrate in the Bombay Police Act has to be construed as reference to the Metropolitan Magistrate as per Section 3 of the Code of Criminal Procedure. According to Section 5 of the Code, in the absence of a specific provision to the contrary, nothing in it shall affect any special or local law for the time being in force. Admittedly, the Bombay Police Act is a local law. There being no specific provision in the Criminal Procedure Code to the contrary, the provisions of Section 96(i)(ii) of the said Act would govern grant of remand in Greater Bombay and police remand from time to time may be granted but not exceeding 15 days at a time. -----MOHAMMAD DAUD ALIAS MOHD SALEEM V/S SUPERINTENDENT OF DISTRICT JAIL1993 (1) AWC 225, 1993 CrLJ 1358
Executive Magistrate -powers of--------Section 3 of the 1974 Act provides in its Sub-section (4) that where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters which are administrative or executive in nature, such as, the granting of a licence the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.-------KRISHNA KUMAR SINGH V/S STATE OF BIHAR , 1989 AIR(Pat) 201, (D.B.)
Executive Magistrate-function of---------Clause (b) of sub-section (4) of section 3 of the Criminal Procedure Code mentions a few functions which are within the ambit of that section and may be either administrative or executive in nature. The functions so mentioned therein are only illustrative and can by no means be said to be exhaustive. Functions akin or similar to them will fall in either of the two categories, i.e. administrative or executive. in view of the nature of the function required to be performed by the Magistrate under section 165(1) of the Criminal Procedure Code, the functions are only executive in nature and, therefore, have to be performed only by an Executive Magistrate but not by any Judicial Magistrate. ----NAGAR PALIKA PARISHAD, BEGAMGANJ V/S JUDICIAL MAGISTRATE, FIRST CLASS, BEGAMGANJ AND ANOTHER , 1987 MPLJ 630 , (D.B.)
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Section-4
----------------------------------------------------------------------------------------------- Provision of new Code-comments on------The relevant provisions of the new Code is Sections 4, 5 and 27 which correspond to Sections 5, 1 (2) and 29-B of the Old Code. A comparison of the corresponding provisions of the two Codes shows that they are substantially the same and are in effect a reproduction in the new Code of their corresponding provisions in the Old Code. The statement of Objects and Reasons together with Notes of Clauses of the Bill relating to the New Code (The Gazette of India, Extraordinary, dated 10-12-1970, Part II, at Pages 1309, 1312 and 1314) shows that the Clauses which have finally become Sections 4, 5 and 27 of the new Code were treated as corresponding to the sections of the old Code already referred and incorporated without any material changes. It is, therefore, clear that these provisions of the new Code which alone are relevant for our purpose operate in the same field as the corresponding provisions of the old Code and by these provisions in the New Code the Parliament did not intend to create a new jurisdiction or enlarge the existing ones of the general Courts specified in the Code which had not existed under the old Code. In other words, if the corresponding provisions of the Old Code were capable of co-existence with the provisions of the Bal Adhiniyam and there was no irreconcilable difference between the provisions of the two enactments, then there is no occasion to hold that the provisions of the new Code have altered this position and taken away the exclusive jurisdiction of the Juvenile Courts constituted under the Bal Adhiniyam which undoubtedly was not affected by the corresponding provisions of the old Code even without the aid of Article 254 .------DEVISINGH V/S STATE OF MADHYA PRADESH , 1978 AIR(MP) 100, 1978 CrLJ 585, 1979 ILR(MP) 3930, 1978 JabLJ 126, 1978 MPLJ 238--- MADHYA PRADESH (F.B.)
Provision-comments on----The Act contains various provisions which differ from the provisions of the Code. Section 4(2) of the Code clearly stipulates that "all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." Thus, if the special law were to regulate the manner or place of investigating, inquiring into, trying or otherwise deal with such offences, the provisions of the Code cannot be applied. ------SHARVAN KUMAR V/S STATE OF RAJASTHAN , 2012 CrLJ 1480, 2012 (3) RajLW 2044
Provision-law on-----Section 4(2) of the Code of Criminal Procedure provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and "otherwise dealt with according to the provisions contained in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or place of investigating, inquiring into, trying or otherwise dealing with such offences. It is clear from this provision that in so far as the offences under laws other than the Indian Penal Code are concerned, the provisions of the Code of Criminal Procedure apply in their full force subject to any specific or contrary provision made by the law under which the offence is investigated or tried.------Mirza Iqbal Hussain v. State of U.P., 1983 AIR(SC) 60,
Provision-scope of------Under Section 4(1) of the Cr.P.C. investigation includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorized by a Magistrate in this behalf. --------VISHNU DUTTA SONI V/S STATE OF RAJASTHAN , 2006 CrLJ 1061, 2006 (1) CrLR 335, 2006 (2) RajLW 1016, 2006 (1) WLC(Raj) 780---Raj—DB
Provision-meaning of-------Subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if another enactment contains any provision which is contrary to the provisions of the Code, such other provision would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby. ------------MOLY V/S STATE OF KERALA , 2004 (1) ACE 543, 2004 ACJ 119, 2004 (2) AICLR 869, 2004 AIR(SC) 1890, 2004 AIR(SCW) 1708, 2004 (2) AllCriC 130, 2004 (2) AllCriR 869, 2004 (2) AllCriR 1495, 2004 (5) AllMR 765, 2004 AllMR(Cri) 1486, 2004 (4) ALT(SC) 77, 2004 (2) AWC 1781, 2004 (2) BCR(Cri) 333, 2004 CalCriLR 679, 2004 CriAppR 209, 2004 (2) CriCC 514, 2004 (2) Crimes 341, 2004 CrLJ 1812, 2004 CrLR 648, 2004 (2) CurCriR 121, 2004 (2) EastCriC 206, 2004 (3) GLR 2270, 2004 (19) IndLD 243, 2004 (2) JCC 696, 2004 (4) JT 1, 2004 (2) MhLR 441, 2004 (28) OCR 120, 2004 (2) RajLW 238, 2004 (2) RCR(Cri) 389, 2004 (3) Scale 503, 2004 (4) SCC 584, 2004 SCC(Cri) 1348, 2004 SCCriR 561, 2004 (3) SCR 346, 2004 (2) SLT 942, 2004 (2) Supreme 610, 2004 (2) AWC 1495 ---SC
Provision-comprehension for------Section 4 of the Code says that when in the Statute there is specific provision for trying a particular offence of the said Statute then the provision of the Code shall not apply and the Special Provisions of the Statute or law that is provisions under Section 143 of the Act is saved by saving provision of Section 5 of the Code. Sub-section (3) of Section 143 of the Code has also saved for expeditious trial and endeavour shall be made to conclude trial within six months from the date of filing of complaint. There is no room of doubt that for the purposes of trial an offence falling under the Act, provisions of summary trial Sections 262 to 265 of the Code would be applicable and the summary trial cannot be converted in the warrant trial.------STEEL TUBES OF INDIA V/S STEEL AUTHORITY OF INDIA , 2006 (3) AICLR 573, 2007 (1) BankCas 525, 2006 (2) CivCC 117, 2006 CrLJ 1988, 2006 (4) ICC 305, 2006 (1) MPLJ 194, 2006 (1) RCR(Cri) 757 ----MP
Statutory Provision – comprehension of------Sections 3 and 4 deal with offences committed beyond the territorial limits of India and Section 2 obviously and by contrast refers to offences committed within India. It appears clear that it is Section 2 that has to be looked to determine the liability and punishment of persons who have committed offences within India. The section asserts categorically that every person shall be liable to punishment under the Code for every act or omission contrary to the provisions of the Code and of which he shall be guilty within India. This recognises the general principle of criminal jurisdiction over persons with reference to the locality of the offence committed by them, being within India. The use of the phrase "every person" in Section 2 as contrasted with the use of the phrase "any person" in Section 3 as well as Section 4 (2) of the Code is indicative of the idea that to the extent that the guilt for an offence committed within India can be attributed to a person, every such person without exception is liable for punishment under the Code. Learned counsel for the appellant suggests that the phrase "within India" towards the end of Section 2 must be read with the phrase "every person" at the commencement thereof. But this is far-fetched and untenable. The plain meaning of the phrase "every person" is that it comprehends all persons without limitation and irrespective of nationality, allegiance, rank, status, caste, colour or creed. This section must be understood as comprehending every person without exception barring such as may be specially exempt from criminal proceedings or punishment thereunder by virtue of the Constitution (See Article 361(2) of the Constitution) or any statutory provisions or some well-recognised principle of international law, such as foreign sovereigns, ambassadors, diplomatic agents and so forth, accepted in the municipal law. -----LEE KUN HEE AND ORS V/S STATE OF UTTAR PRADESH AND ORS , 2012 AIR(SC) 1007, 2012 AIR(SCW) 1316, 2012 (2) AllCriR 1608, 2012 (2) ALT(Cri)(SC) 260, 2012 (3) BCR(Cri) 401, 2012 CrLJ 1551, 2012 (2) JT 237, 2012 (1) RCR(Cri) 884, 2012 (2) Scale 152, 2012 (3) SCC 132, 2012 (2) SCC(Cri) 72
Criminal Procedure Code-attraction of-----Provisions of the Criminal Procedure Code would apply in respect of investigation and trial even in respect of such enactments, but would be subject to any provision regulating the manner of such investigation and trial. ------JAMIRUDDIN ANSARI V/S CENTRAL BUREAU OF INVESTIGATION , 2009 AIR(SC) 2781, 2009 AIR(SCW) 4213, 2009 (4) AIRBomR 57, 2009 (5) AIRBomR 57, 2009 AllMR(Cri) 2790, 2009 (3) BCR(Cri) 589, 2009 (3) Crimes(SC) 126, 2009 CrLJ 3961, 2009 (8) JT 169, 2009 (4) MhLJ(Cri) 1, 2011 (5) RCR(Cri) 743, 2009 (7) Scale 263, 2009 (6) SCC 316, 2009 (4) Supreme 754, 2009 (3) AWC 3168
Code of Criminal Procedure-application of-----Section 4(1) provides for investigation, inquiry or trial for every offence under the Indian Penal Code according to the provision of the Code whereas Section 4(2) provides for offences under other law to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. In absence of a specific provision relating to inquiry, trial, etc. under the special statute it has to be dealt with in accordance with the Code of Criminal Procedure. ------Anosh Ekka V/S State through Vigilance Bureau , 2009 AIR(Jhar) 862, 2010 (2) Crimes(Jhar) 315, 2010 CrLJ 259, 2010 (1) RCR(Cri) 935 --- JHARKHAND
