Misrepresentation & Malpractices – Civil and Criminal Trial Procedure – Resolution of Corporate Disputes, Non-Compliances & Remedies Important Questions

Question 1.
Mr. Nfaryanan was the Managing Director of ABC India Limited and his wife Mrs. Kaika was also a director of the Company. Proceedings were initiated by Registrar of Companies (ROC) against the Company and its directors. Mr. Narayanan died while the proceedings were pending. Subsequently, Mrs. Kaika was impleaded as an accused in the proceedings after his death. She filed an application in High Court under section 204 of Criminal Procedure Code, 1973, praying for discharge on the ground that notice had not been served upon her by the ROC. Would High Court grant relief to Mrs. Kaika on this ground? Answer with reference to Judicial Pronouncement(s).
Answer:
The Madras High Court in case of K. Seethalakshmi v. Registrar of Companies and another rejected the plea of the petitioner that the ROC has not issued any notice to her. The Managing Director had died when the proceedings were pending. The petitioner, who was also a director and the wife of the deceased Managing Director was impleaded as an accused in the proceedings. As the petitioner was impleaded as an accused, she filed an application under section 204 of Criminal Procedure Code, 1973, praying for her discharge. She claimed she could not be impleaded as an accused because of the below grounds:

  • Notice had not been served upon her but on her deceased husband.
  • When there were other directors, the Registrar had picked out the petitioner to proceed against.

The High Court refusing to discharge the petitioner by dismissing the petition held that:

  • The petitioner was a director of the Company, when her husband the Managing Director, died during the pendency of proceedings. Hence, for non-compliance with the provisions of Sections 159 and 220, the director was also liable to be proceeded against and punished under the law. It was the duty of the petitioner as the surviving director, to comply with the provisions of the Companies Act.
  • The Registrar had impleaded the petitioner, as an accused on the death of her husband, not merely because she was the wife of the deceased managing director but because she was a director of the said company and liable to comply with the mandatory requirements or the Act.

Hence, in the background of aforementioned case law, it can be concluded that the High Court would not award any relief to Mrs. Kaika.

Question 2.
Explain the various types of Criminal Courts under the Criminal Procedure Code, 1973 and their powers in brief Discuss the powers of Criminal Courts.
Answer:
According to Section 6 of The Code of Criminal Procedure, 1973, besides the High Courts and the Courts constituted under any law, other than CrPC, there shall be, in every State, the following classes of Criminal Courts, namely:-

  • Courts of Session;
  • Judicial Magistrates of the first class and, in metropolitan area, Metropolitan Magistrates;
  • Judicial Magistrates of the second class; and
  • Executive Magistrates.

Courts of Magistrates are the basic Courts for conducting trial of criminal offences. In metropolitan cities such as Mumbai, Kolkata and Chennai, respectively the capitals of the States of Maharashtra, West Bengal and Tamil Nadu, have special category of Magistrates called Presidency Magistrates/ Chief Metropolitan Magistrates. As per sections 28 and 29 of Criminal Procedure Code, 1973, following are the criminal court and their powers:

Types of court Power Power
High Court To award any sentence as authorised by a substantive law
Sessions Judge/Additional Sessions Judge To award any sentence authorised by a substantive law. Sentence of death should be subject to confirmation by High Court.
Assistant Sessions Judge To award imprisonment up to 10 years and/ or fine. For fine, no upper limit has been prescribed.
Chief Judicial/Chief Metropolitan Magistrate To award imprisonment up to 7 years and/or fine. For fine, no upper limit has been prescribed.
Judicial Magistrates of Class I/ Metropolitan Magistrates/Sub- divisional Judicial Magistrates To award imprisonment up to 3 years or fine up to 10,000 or both
Judicial Magistrates of Class II To award imprisonment for a term not exceeding one year, or of fine not exceeding five thousand rupees, or of both

Question 3.
Mr. A sold goods to Mr. B amounting to ? 1 crore. Mr. B was delinquent in payment, after repeated follow-ups, he issued a cheque for the said amount to Mr. A. The cheque was not honoured and Mr. A filed a cheque bouncing case against Mr. B. The Court issued summons to Mr. B. Later, Mr. A wanted to withdraw the case. Will the Magistrate permit Mr. A to withdraw the case at this stage?
Answer:
Section 257 of the Criminal Procedure Code, 1973 (CrPC) lays down the circumstances under which a complaint may be withdrawn with the consent of the Court in a summons case. It permits a complainant at any time before a final order is passed in any case, to withdraw with the permission of the Magistrate, his complaint against the accused, or if there be more than one accused, against all or any of them provided he satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint and the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom complaint is so withdrawn.

On a bare reading of this section, it can be manifested that a complainant has no legal or vested right to withdraw a complaint as and when he wishes. Withdrawal of the complaint under section 257 of CrPC is permissible only if the Magistrate is satisfied that there are sufficient grounds for permitting such withdrawal. This clearly implies that the Magistrate must apply his judicial mind to the reasons, which compel the complainant to withdraw the complaint, before granting permission. Thus, the Magistrate may permit Mr. A to withdraw the case if he is satisfied that there are sufficient grounds for such withdrawal.

Question 4.
Mr. Mon had employed Ramu as a domestic help for quite some time. Ramu had intention of robbing the house, so he planned the robbery on a day when most of the family members were out. Ramu was caught off guard, when Ms. Mona, mother of Mr. Mon, caught him committing the crime and tried to alert the police. Unfortunately in the scuffle, Ramu ended up killing Ms. Mona and ran away with the valuables. Investigation was Initiated and Ram was caught by the PoUce. Mr. Mon contended that there are two separate crimes, one of murder and other of burglary and Ramu should be penalized for them separately. Can offence committed by Ramu be clubbed in a single trial under Criminal Procedure Code, 1898?
Answer:
Section 220(1) of Criminal Procedure Code, 1898 provides for single trial for more than one offence. If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial, for every offence. The above section could be used when different offences committed by a single person or same persons and the trial could be a combined and held as a single trial.

The Calcutta High Court in Madan Gaped Dey and another v. State and Anor. held that if several offences are committed in the course of the same transaction, section 235 of Criminal Procedure Code, 1898 would authorize their joinder for the purpose of a single trial.

If a continuous thread runs through the acts complained of, charges arising out of those acts would be liable to be joined together under this section. Continuity of action, therefore, seems to be a very important test in the matter. Yes, the offences committed by Ramu can be clubbed in single trial.

Question 5.
“Companies Act, 2013 is mixture of both civil law as well as criminal law.” Comment briefly.
Answer:
The Companies Act, 2013 is mixture of both civil as well as criminal provisions with majority being criminal. The civil and criminal provisions under the Companies Act, 2013 can be identified by observing the language used by Act for consequences or non-compliances/contravention of its provisions. The words “liable to penalties” denote civil nature of non-compliances whereas the words “punishable with fine and/or imprisonment and/or both” denote criminal nature of non-compliance.

The Act has clearly laid down the mechanism and the forum for speedy and smooth administration of judicial activities under the Act. The power of adjudication of civil non-compliances (defaults liable for penalties) is being vested with the ROC and the power of adjudication of criminal non-compliances (offences punishable with fine/imprisonment) is being vested with the special courts with sub-delegation of power of compounding of offences to Regional Director and NCLT. Thus, the statement given in the question that “Companies Act, 2013 is mixture of both civil law well as criminal law” is correct.

Question 6.
“Person once convicted or acquitted not to be tried for same offence again”. Comment on the statement in the light of decided case law(s).
Answer:
Scction 300 of Code of Criminal Procedure, 1973 (CrPC) protects a person from being prosecuted for the same offence again. Section 300 of CrPC cannot be definitely interpreted to mean that if a person steals a property and gets convicted of the offence of theft, he should not be prosecuted for the same offence if it arises out of another theft. Section 300 of CrPC is unique in the sense that it requires either a conviction or acquittal as a pre-requisite for the protection to be available.

In the case of Kerala High Court in Bharat Plywood and Timber Products Private Limited and Anr. v. Registrar of Companies and Another. [2002] 108 Comp Cas 601 (Ker.) held that “Section 300 of the CrPC provides that so long as an order of acquitted or conviction handed down by a court of competent jurisdiction stands in respect of a person charged with committing an offence, that person cannot again be tried on the same facts for the offence for which he was earlier tried or for any other offence arising therefrom.

Section 300 of CrPC becomes applicable when a court of competent jurisdiction had already tried the accused and that he is either acquitted or convicted. It is also necessary to note that for the first part of sub-section (1) of Section 300 to apply, the prior prosecution and subsequent prosecution should be for the same offence.

Question 7.
X, a Police Officer comes to know from reliable sources that four persons are staying in a house and are planning to kidnap and murder Mohan. He also has information that they possess automatic weapons. The Police Officer apprehends that they will commit the crime at any moment. He directly goes to that house and without any warrant or order from the Metropolitan Magistrate, arrests all the four persons along with weapons in their possession. Is the arrest of all the four persons valid?
Answer:
Section 2(c) of the Criminal Procedure Code, 1973 defines cognizable offences. Cognizable offence means a case in which, a police officer may arrest without warrant, as per the First Schedule of the Criminal Procedure Code, 1973 or under any other law for the time being in force. Cognizable offences are usually offences which are serious in nature like, Murder, Rape, Dowry, Kidnapping etc. In the given case, all four persons are planning to kidnap and murder Mohan, which is in nature of cognizable offence, hence arrest of all four persons is valid according to section 2(c of the Criminal Procedure Code, 1973.

As per section 156 of Criminal Procedure Code, 1973, a police officer may, without an order of the Magistrate, investigate any cognizable case. Thus on the basis of the first information report and other materials placed before the Police, if there is a suspicion that a cognizable offence has been committed, the Police Officer may arrest without any warrant.

Question 8.
Briefly discuss the powers of National Company Law Tribunal specified under section 424 of the Companies Act, 2013.
Answer:
1. The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before it, be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice, and, subject to the other provisions of this Act or of the Insolvency and Bankruptcy Code, 2016 and of any rules made thereunder, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure.

2. The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act “or under the Insolvency and Bankruptcy Code, 2016”, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:-

  • summoning and enforcing the attendance of any person and examining him on oath;
  • requiring the discovery and production of documents;
  • receiving evidence on affidavits;
  • subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or a copy of such record or document from any office;
  • issuing commissions for the examination of witnesses or documents;
  • dismissing a representation for default or deciding it ex parte;
  • setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and
  • any other matter which may be prescribed.

3. Any order made by the Tribunal or the Appellate Tribunal may be enforced by that Tribunal in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Tribunal or the Appellate Tribunal to send for execution of its orders to the court within the local limits of whose jurisdiction,-

  • in the case of an order against a company, the registered office of the company is situated; or
  • in the case of an order against any other person, the person concerned voluntarily resides or carries on business or personally works for gain.

4. All proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code, and the Tribunal and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

Question 9.
Differentiate Criminal Proceedings vis-a-vis Civil Proceedings
Answer:
A civil proceeding is concerned with a civil right, whether with reference to common law or a law created by any statute. A civil proceeding is distinguished from a criminal proceeding by the fact that if the criminal proceeding is taken to a logical conclusion and if the accused is found guilty, there may be imposition of a sentence of fine or imprisonment or both including a capital punishment if the statute so provides.

In civil proceeding, there may be an award of compensation and damages. A criminal proceeding includes all proceedings which are capable of being instituted under ordinary criminal law of land and is not confined to proceedings under CrPC.

Prosecution of an offence under the Companies Act, 2013 or for that matter those under the Foreign Exchange Management Act, 1999 or the Securities and Exchange Board of India Act, 1992 or the Securities Contracts (Regulation) Act, 1956 and other statutes are criminal proceedings and the complaints filed are criminal cases and, subject to provisions of such statutes, CrPC will apply to regulate the trial of offences under such laws. In M.S. Sheriff v. The State of Madras and Ors. AIR 1954 SC 397, the following propositions were laid down:

“We are informed at the hearing that the two further sets of proceedings arising out of the same facts are now pending against the appellants. One is two civil suits for damages for wrongful confinement. The other is two criminal prosecutions under section 344, Indian Penal Code for wrongful confinement, one against each Sub-Inspector.

It was said that the simultaneous prosecution of these matters will embarrass the accused. But after the hearing of the appeal, we received information that the two criminal prosecutions have been closed with liberty to file fresh complaints when the papers are ready, as the High Court records were not available on the application of the accused.

As these prosecutions are not pending at the moment, the objection regarding them does not arise but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed”.

“As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be ‘ laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages.

such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment”.

In Para 18, on the question of staying a proceeding on the ground there is another proceeding:
“Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might made some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished”.

Question 10.
Discuss the Summons Case and Warrant Case
Answer:
As per section 2(w) of CrPC, ‘summons case means a case relating to an offence, and not being a warrant case. This implies that summons cases are cases relating to offences provided they are not warranted cases.
As per section 2(x) of CrPC, ‘Warrant-case’ means a case relating to an offence punishable with death, imprisonment for a term exceeding two years. In other words, if the minimum punishment prescribed by any substantive law for an offence is an imprisonment for a term exceeding two years, the offence will be dealt with as a warrant case. The basis of the classification is the seriousness of the offence to which the case relates. A warrant case relates to a serious offence while a summons case relates to a comparatively less serious offence.

It is for the same reason that the trial procedure prescribed for a warrant case is very elaborate when compared to that prescribed for a summons case.

As per CrPC in a summons case a summons is to be issued to the accused in the first instance and in a warrant case a warrant of arrest is normally to be issued for the arrest of the accused. CrPC gives discretion to the Judicial Officer to depart from this general rule if the circumstances so demand in a particular case.

Question 11.
Discuss the Powers of the Appellate Court under CrPC.
Answer:
Section 386 of the CrPC declares the powers of an Appellate Court. It will come into play only in a case where the appeal has not been dismissed summarily under section 384 through the power to dismiss an appeal summarily is by itself a power of the Appellate Court.

With respect to the powers of the Appellate Court, section 386 of CrPC states that the Appellate Court may dismiss the appeal if it considers that there is no sufficient ground for interfering with the order under appeal.

Before doing so, the Appellate Court must peruse the records, hear the appellant or his pleader, if he appears, and also the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the Appellate Court must hear the accused too.

If the Appellate Court has not dismissed the appeal as aforesaid, it may –
a. in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to the law.

b. in an appeal from a conviction, reverse the finding and the sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or alter the finding, maintaining the sentence, or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

c. in an appeal for enhancement of sentence, reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court competent to try the offence, or alter the finding maintaining the sentence, or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

d. in an appeal from any other order, alter or reverse such order;

e. make any amendment or any consequential or incidental order that may be justified or proper:
Provided that the sentence shall not be enhanced unless the accused has been given an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment than the court passing the order or sentence under appeal for the offence, which in its opinion the accused has committed.

Section 386(&) of CrPC is important. It gives ample powers to the Appellate Court in relation to an appeal arising from an order of conviction and the Appellate Court may even acquit the person convicted of an offence by the trial court.

Section 389 of CrPC contains another important provision.
Section 3 86( 1) of CrPC states that pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. The words “execution of sentence or order appealed against may be suspended” are very important and in order that the sentence or order is capable of being suspended, it should be an executable order.

A proviso under sub-section (1) states that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release. In the case of offences covered under section 447 involving the element of fraud or similar fraudulent elements, a person may be sentenced to imprisonment for a term of 10 years too.

In case of offences covered under section 443 of the Companies Act, 2013, as stated in section 443 company prosecutors have all the powers and privileges conferred by the Code on Public Prosecutors appointed under Section 24 of the Code and accordingly opportunity must be given to the company prosecutors as stated in this proviso. A further proviso states that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

Section 386(2) states that the power conferred by this section on an Appellate Court may also be exercised by the High Court in case of an appeal by convicted person to a Court subordinate thereto.
Section 386(3) of CrPC states that if the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,

  • where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
  • where the offence for which such person has been convicted is bailable, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing the bail.

The Court shall give sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of imprisonment shall be deemed to be suspended as long as he is released on bail.

Section 386(4) of CrPC declares that when the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is sentenced.

Question 12.
Differentiate between summons case and warrants case. Whether procedure adopted in a trial changes as per the nature of the case? Elucidate.
Answer:
Summons Case and Warrant Case:
As per Section 2(x) of CrPC, ‘summons case means a case relating to an offence, and not being a warrant case. In other words, this means that summons cases are cases which do not satisfy requirements of warrants case:-
As per Section 2(x) of CrPC, ‘Warrant-case’ means a case relating to an offence punishable

  • with death, or
  • imprisonment for a term exceeding two years

In other words if minimum punishment prescribed by any substantive law for an offence is an imprisonment for a term exceeding two years, the offence will be dealt with as a warrant case.

Those cases which are punishable with imprisonment for two years or less are summons cases, the rest are all warrant cases.

The basis of the classification is the seriousness of the offence to which the case relates. A warrant case relates to a serious offence while a summons case relates to a comparatively less serious offence. The procedure for warrant case is usually more elaborate than the procedure for summons case.

Question 13.
Write short note on Conviction of an accused under Code of Criminal Procedure, 1973.
Answer:

  • The trial procedure is over when judgment is pronounced. Such judgment may either be an acquittal or conviction.
  • As per Section 255(1), if the Magistrate finds the accused not guilty after considering the evidence for prosecution and defence, he shall record an order of acquittal.
  • When the prosecutor has sought the assistance of the court for securing the attendance of the witnesses, the court cannot refuse to take steps for securing attendance of such witnesses and pass an order of acquittal on the ground that the case fails for want of evidence.
  • But if the prosecution did not take proper steps to produce the wit-nesses or ask the court to give them time to do the same, or to issue fresh summons, the court was not bound to fix another date.
  • Under such circumstances, the Magistrate can record an order of acquittal under Section 255 of CrPC, if there is no evidence to hold the accused guilty.
  • No charge may be framed in a summons case, but the details of offence will be contained in complaint or summons.
  • As per Section 255(3), where the Magistrate is convinced that the accused appears to have committed the said offence, the Magistrate may convict the accused of such offence. Such conviction may be based either on facts admitted or proved.
  • As such a person accused of a particular offence triable as a summons case can be convicted of a totally different and unconnected offence. But the Magistrate should form an opinion that the accused would not be prejudiced thereby.

Question 14.
Trial Procedure before a Session Court – Detailed Note
Answer:
As the Judge of a Special court is going to be of the rank of the Sessions Judge or the Additional Sessions Judge, the Special Court has to follow this procedure except as regards matters that are contained under the Companies Act, 2013 (the substantive law relating to offences triable by the Special Court established or designated under Section 435 of the Companies Act, 2013), as if it were a trial before a Court of Sessions.

(a) The provisions regarding the stage prior to framing of charge are contained in Sections 225,226 and 227 whereas Section 228 provides for the framing of charge against the accused person.

(b) If after the charge is framed the accused pleads guilty, Section 229 provides that the Judge shall record the plea and may, in his discretion, convict him thereon. However, if he does not enter a plea of guilty, Sections 230 and 231 and provide for leading of prosecution evidence.

(c) The Judge shall record an order of acquittal if, on the completion of the prosecution evidence and examination of accused, the Judge is of the opinion that there is no evidence that the accused committed the offence with which he is charged.

(d) If the Judge does not record an acquittal under Section 232, the accused would have to be called upon to enter on his defence as required by Section 233. Section 235 requires the Judge to give his judgment for the case after the evidence-in-defence is completed and the arguments heard as required by Section 234.

(e) If the accused is convicted, Section 235(2) requires that the Judge shall hear the accused on the question of sentence and then pass sentence on him according to law. However, the judge has the option of proceeding as per Section 360 which pertains to setting off the convicted person on probation for good conduct.

(f) Section 353 of CrPC requires the Judgment to be pronounced in the open court. Even if the accused is in custody, he should be brought to the court when the judgment is pronounced.

(g) Section 354 specifically requires the Court to state in the Judgment the offences for which the accused has been convicted and sentenced or of which he has been acquitted. As per Section 354 of CrPC, the Judgment:

  • shall be written in the language of the Court;
  • shall contain the points for determination, the decision thereon and the reasons for the decision;
  • in case of conviction, shall specify the offence (if any) of which the accused is convicted along with the relevant section of the Indian Penal Code, 1860 or other law under which, the accused is convicted
  • the punishment to which he is sentenced; and
  • If it be a judgment of acquittal, shall state the offence of which the accused is acquitted along with direction that he be set at liberty.

(h) Section 354(2) states that when the conviction is under the Indian Penal Code, 1860, and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative section.
(i) As per Section 354(3), when the conviction is

  • for imprisonment for life or imprisonment for term of years, the s judgment shall state the reasons for the sentence awarded, and,
  • for an offence punishable with death, the judgment shall state the special reasons for such sentence

(j) Section 354(5) stipulates that when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.

(k) Section 355 contains provisions regarding the manner in which a Metropolitan Magistrate will make the Judgment. Judgment should state the below points in all cases in which an appeal lies from the final order either under Section 373 or under Section 374(3):

  • the serial number of the case;
  • the date of the commission of the offence;
  • the name of the complainant (if any);
  • the name of the accused person, and his parentage and residence;
  • The offence complained of or proved;
  • The plea of the accused and his examination (if any);
  • The final order;
  • The date of such order.

(l) Section 356 of CrPC prescribes the requirement regarding making an order for notifying address of previously convicted offender.

(m) Section 357 of CrPC is about the power of the Court to order payment of compensation. Such order could require a part of the fine to be awarded with regard to-

  • paying the expenses incurred in the prosecution;
  • payment to any person for compensation of any loss or injury caused by the offence;
  • when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who, under the Fatal Accidents Act, 1855 are entitled to recover damages from the person sentenced for the loss resulting to them from such death;’
  • when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen – in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

(n) Section 357(2) of CrPC provides that if the fine is imposed in a case, which is subject to appeal, then no such payment shall be made

  • before the period allowed for presenting the appeal has elapsed, or
  • before the decision of the appeal, if such appeal has been presented

(o) Section 357(3) states that when a Court imposes a sentence of which fine does not form a part, the Court may, while passing the judgment, order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

(p) Section 357(4) of CrPC contains an important declaration that the type of order referred to in this Section may also be made by an Appellate Court or by the High Court or Court of Session while exercising its powers of revision.

(q) Section 359 provides for an order in regard to the payment of costs in non-cognizable cases.

Question 15.
Specify the procedure of appeals under CrPC in case of conviction of the accused.
Answer:
1. Right to appeal is not a natural or inherent right but a nght created by law. Section 372 of CrPC clearly states that there is no question of preferring any appeal against any order unless the statute specifically provides. Section 373 applies to appeals from orders requiring security or refusal to accept or reject security for keeping peace or good behaviour.

2. Section 374 enables appeals by a person who has been convicted of an offence.
Sections 375 and 376 contain, the restrictions relating to appeals.
Section 374 of CrPC says as follows:
(a) Any person convicted on a trial held by a High Court exercising its criminal jurisdiction may appeal to the Supreme Court. [SectIon 374(1)1
(b) Any person may appeal to the High Court if he is convicted on a trial

  • held by a Sessions judge or an Additional Sessions Judge or
  • held by any other Court in which a sentence of imprisonment for more than seven years has been passed;

3. Section 375 of CrPC states that there shall be no appeal when the conviction in a case is pursuant to the accused pleading guilty.

4. Section 376 further states that there shall be no appeal against any order of sentence of a High Court if the punishment awarded is a sentence of imprisonment for a term not exceeding 6 months or of a fine exceeding Rs. 1000. In the case of an offence in which a sentence of imprisonment for a term not exceeding 3 months or of fine not exceeding Rs. 200, or of both, no appeal can be preferred.

5. An appeal would however lie in the following situations:

  • that the person convicted has been ordered to furnish security to keep the peace; or
  • that a direction for imprisonment in default of payment of fine is included in the sentence; or
  • That more than one sentence of fine is passed in the case if the total amount of fine imposed does not exceed the amount hereinbefore specified in respect of the case.

There tire several offences under the Companies Act, 2013 that are punishable with imprisonment which may extend to 6 months. Further, there are offences in which punishment by way of fine cannot be less than the prescribed minimum amount.

Question 16.
Is appeal possible under CrPC in case of acquittal of the accused?
If yes, discuss the procedure regarding the same.
Answer:
1. SectIon 378(1) states that
(a) The District Magistrate may direct the Public Prosecutor to present an appeal to the Court of the Session from an order of
acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) The State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court

  • not being an order under clause (a) or
  • an order of acquittal passed by the Court Session in revision.

2. Section 378(2) of CrPC states that if such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal:

  • To the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
  • To the High Court from an original or appellate order of an acquittal passed by any Court other than High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session revision.

3. Without obtaining the leave of the High Court, the appeals under subsections (1) and (2) of Section 378 are not possible.

Resolution of Corporate Disputes Non-Compliances & Remedies Notes

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