SPELUNCEAN EXPLORERS

 Law vs morality
 The four accused explorers were stranded in a cave with a fifth explorer named Roger Whetmore.
 They were stranded as the cave’s entrance was obstructed due to a landslide. The 5 explorers only carried minimal provisions and did
not have any food to survive for long. Luckily for them on the twentieth day, they noticed a portable wireless machine in the cave that
could help them contact people at the rescue camp through a similar machine that was installed there. Through this, they contacted the
rescue team and soon enough, rescue efforts were underway.
 the rescuers had a tough time navigating their way through consequent landslides and informed the explorers that it would take about
10 days to rescue them.
 During the rescue process ten of the rescuers lost their lives due to fresh landslides.
 post a discussion with medical experts regarding their situation, the explorers learned that there was little to no possibility of their
survival for an additional 10 days without any food.
 Roger Whetmore suggested that they should kill and eat one of the members of the group for survival. The other explorers agreed but
did not know how they should go about choosing the prey.
 No rescuer, doctor, member of the government, or priest offered advice regarding this situation when the explorers asked. So, they
decided to throw a dice and leave it to luck. Before throwing the dice, Roger Whetmore, albeit the one to originally suggest the idea,
realised he couldn’t go through with it and withdrew. The others however were keen on going ahead with the plan and threw the dice
anyway without excluding Whetmore so as to improve their chances at survival. Unfortunately for him, the dice went to Whetmore’s
disadvantage and he was killed and eaten by the four accused.
 The four living explorers were finally rescued on the 32nd day. Whetmore was killed and eaten on the 23rd day, 9 days earlier. The
medical experts deduced that there was a chance of all five surviving had the four survivors not cannibalised Whetmore. After being
rescued, the 4 surviving explorers were treated for malnutrition and shock.
 They were tried for murder and consequently awarded capital punishment by the Court of General Instances. They then proceed to file
a review petition in the Supreme Court of Newgarth. Upon appeal, the case is decided by a bench of 5 judges.

C.J. TRUEPENNY (Legal positivism)

He upholds the conviction of the four accused explorers. In his opinion, the course followed by the jury and trial judge was not only
fair and wise but also followed the route of law. He states his reasons for holding the accused guilty by reiterating what the basic
statute states “Whosoever shall willfully take the life of another shall be punished by death”.
Justice Truepenny takes the viewpoint of an exclusionary legal positivist and says the statute is such that it does not permit any
exceptions whatsoever. That said, he was sympathetic towards the accused and states that, unlike the judges, the Chief Executive is not
bound by the law and has complete power to pardon. So, he suggests that the Chief Executive can be instructed to exercise clemency
given the circumstances of this case to mitigate the rigours of the law.
(Clear divide in role of judiciary and executive is stated saying it’s not executives role to try the case again.)

Foster (Natural law theorist)

 The positive law is inapplicable in this case, instead it is governed by the law of nature.
 Positive law is asserted on condition of men's coexistence in the society, in this case, as it is not so, the law is irrelevant.
 Maxim: cessante ratione legis, cessat et ipsa lex should be applied here which means when the reason for law ceases, the law itself
ceases.
 Territorial principle- When Whetmore was killed by defendants, they were remote from the legal order. They were not In ‘state of civil
society’ ‘but in state of nature.’
 If the event of the case had been taken place a mile beyond the territorial limits of the Commonwealth, no one would pretend that law
would be applicable.
 He questioned If the lives of ten rescue workmen could be sacrificed for five explorers, then why not save four lives at cost of one?
Positive law should be interpreted reasonably in the light of its evident purpose.
 Commonwealth v. Staymore: In this case, the defendant was convicted under a statue according to which it is a crime to leave car
parked in certain areas for more than two hours. The defendant had attempted to remove his car but because of an ongoing political
demonstration, he couldn't do so. His conviction was set aside by the Court.
 Fehlar V. Neegas: In this case, the word not in the statute had plainly been transposed from its intended position. Since its
interpretation was going against the object of the preamble the court refused to accept it and instead rectified its language.
 The statute has never been applied literally.
 it is established that killing in self-defence is excused but there is nothing in the statute that suggest the same. He puts up the point that
killing in self-preservation is same as killing in self-defence.
 He had a purposive approach to law.

TATTING (recused)- believes in multiple purposive interpretation

 Contradicted Foster's theory of the law of nature by pointing out that case has come to them on the legal ground and not natural
ground. He also points out that law of contract is given more importance than law of murder and then emphasizes that Foster ignored
the fact that Whetmore withdrew later(so even that rebuttal is irrelevant).
 Example against Foster's self-defence point: He argued that if the defendants were right to kill Whetmore, then in a situation wherein
Whetmore kills them in self-defence, pleading the same wouldn’t get him acquitted
 He points out that another reason for the failure of the self-defence point of view would be that murder requires a wilful act whereas
self-defence is an impulse.
 Object of the law is to provide an orderly outlet for retribution and also to the rehabilitation of the wrongdoer, and not just deterrence.
  Indicating ignorance of Foster, referred to the case: Commonwealth v. Valjean:
In which the defendant was indicted for theft of a loaf of bread, and he pleaded starving condition as a defence. The court refused to
accept it. Thus, raising a question- If hunger cannot justify the theft of food, then how can it justify killing and eating of a man?
 If those men had known their act was deemed by law to be murder, they would have waited for few days before carrying out their plan.
During that time some unexpected relief might have come. Agreed to the fact that element of deterrence in the present case would be
less than what is normally involved in application of the criminal law.
 If there was a provision in the statute making cannibalism a crime that would have made things simpler.
 He wasn't able to resolve the doubts that bothered him regarding the laws of this case, thus he declared withdrawal.

KEEN (Positive textualism)

 Justice Keen favoured the death penalty and convicted the accused explorers.
 According to him, the role of a judge is limited to applying the law. The approach he employed is termed as ‘positive textualism’.
 He stated that the powers of the Chief Justice and the Chief Executive are separated and the former cannot give directions to the latter.
According to him, Chief Justice Truepenny requesting the Chief Executive to exercise clemency and pardon the accused is a violation
of the judicial process.
 That said, he sides with Chief Justice Trupenny’s opinion on this case not being one of self-defence as he is of the opinion that the
scope of self-defence is applicable only when the party is resisting an existential threat to their own life. Whetmore posed no threat to
the lives of the accused and hence applying that theory here is a flawed
 Focused on knowing the purpose of the statute and added that neither he nor Foster knew it
 Keen said it is a legislative prerogative to bring about new laws and not that of judges?

HANDY (Legal realism-common sense)

Justice Handy

• Legal realism and Law is not what is written but Common sense
• Practical wisdom to be applied with respect to human realties and not abstract theories.
• Whetmore’s withdrawal was a revocation of the offer prior to action.
• Law is just an instrument to read reality. It is the terms we have agreed to live on.
• Law can be negotiated except for a few fundamentals’ rules. Instruments to govern ourselves.
 He acquitted the accused explorers and followed the approach of legal realism which was connected to common sense. He appeals to
public opinion and believes that the defendants should be pardoned. various public polls suggested that over 90% of the voters
believed that the explorers ought to be pardoned and left off with a kind token as a punishment. He believed that common sense
dictated acquittal and used the poll results to justify the same.
 In his opinion, this matter required practical wisdom to be exercised with respect to human realities and not abstract theories.
 Raised the question of the legal nature of the bargain struck in the cave- whether it was unilateral or bilateral and whether Whetmore's
withdrawal couldn't be considered as a revoke of the offer prior to the action taken.

According to the judicial process in situations of a tie, the original opinion is to be upheld. So, the original justice of the Court of General
Instances stood and the public executioner was directed to impose a death sentence on the accused explorers.

COMMON LAW AND CIVIL LAW

 The fundamental difference between the two systems lies in the fact that most Civil Law Jurisdictions have comprehensive written
codes which are designed to cover every area of law.
 Common law systems are based on judge-made laws, which are developed on a case-by-case basis and statutes play an important role
in technical areas.
 Statutes- They are a paramount source of law in both civil and common law jurisdictions.
 In civil systems, codes + complemented by statutes – form the core of law and jurisprudence plays a secondary role.
 In common law jurisdictions, case laws is backbone of the system and ststutes apply in selective areas.
 Statutes in common law don’t cover all laws ( address only selective areas) but provide detailed rules in particular areas.
 Statutes are not meant to be read alone and are part of the bigger picture.
 Jurisprudence- In civil law system judges have a purely interpretative role, within doctrinal guidance leaves little room for individual
discretion.
 Common Law Systems, however, judges play a pivotal role, moulding and changing the law through case-by-case development. This
inherently flexible and efficient system allows for a timely and relevant response to the changing requirements of society and the
formulation of detailed provisions to cater for developing areas of law
 Common law is somewhat Inefficient, given that the development of the common law is dependent on particular fact patterns coming
before the courts.
 Under the Common Law, a Judge Bears Major Responsibility for ensuring Certainty and Stability, but also for exercising the discretion
to change and develop the law.
 The rules of Stare Decisis - Under which a Lower Court must follow decisions of Courts Above it in the Judicial Hierarchy, thus
preventing a multiplicity of inconsistent rules from developing in any given area – are fundamental to the common law system
 Under the rules of stare decisis only the Ratio of a case - i.e., the Decision on the Facts, is Binding
 Obiter Dicta - i.e., observations which are not crucial to the decision, are Not Binding, even if they are statements by the most eminent
judges in the highest courts.
 Ratio dicendi- the deciding of ratio between stare decisis and orbiter dicta.
 CONCLUSION:

 Shared values- 1)Shared aspirations of regulating society. 2) Resolving disputes 3) Meting out justice in an even-handed manner..
 Similar challenges , judges have to face legislative gaps, to reconcile conflicting statutes, assist in law evolution, Both favour
purposive approach than literal rule (lack of clarity).
 The Significance of these differences is being constantly reduced by increased levels of communication and interplay. Ease of access
means that the Legal World is becoming a smaller and less disparate place. Cultural and legal influences are spreading, and we are
beginning to see far greater willingness to look outside our own legal heritage. This is being reflected in a number of ways. One is the
growing willingness of common law judges to refer to the position under civilian codes. Another is the increased movement of lawyers
between common and civil law jurisdictions, both at the academic level, with student and staff exchanges, and at the business level,
with law firms opening offices in every continent, frequently employing a mix of common and civil lawyers
 This fosters a level of understanding and acceptance that would have been unheard of only decades ago and suggests that integration of
our respective legal cultures is likely to increase exponentially in the coming years.

TRADITIONS IN COMMON AND CIVIL LAW

 The Common Law tradition emerged in England during the Middle Ages and was applied within British colonies across continents.
The Civil Law tradition developed in continental Europe at the same time and was applied in the colonies of European imperial powers
such as Spain and Portugal.
 Common Law: 1. Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and
statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent,
meaning the judicial decisions that have already been made in similar cases. 2. The precedents to be applied in the decision of each
new case are determined by the presiding judge. As a result, judges have an enormous role in shaping Law in this system.Common law
functions as an adversarial system, a contest between two opposing parties before a judge who moderates.
 Historical development of English Common Law : English Common Law emerged from the changing and centralizing powers of the
king during the Middle Ages
 New forms of legal action established by the Crown functioned through a system of writs, or royal orders, each of which provided a
specific remedy for a specific wrong
 Courts of Equity were authorized to apply principles of equity based on many sources (such as Roman law and natural law) rather than
to apply only the common law, to achieve a just outcome.
 The Writ of Habeas Corpus, which protects the Individual from Unlawful Detention - Originally an order from the king obtained by a
prisoner or on his behalf, a Writ of Habeas Corpus summoned the prisoner to court to determine whether he was being detained under
lawful authority.
 Only in the Seventeenth Century did Common Law triumphed over the other laws, when Parliament established a permanent check on
the Power of the English king and claimed the right to Define the Common law and declare other laws Subsidiary to it
 Civil Law:
 Civil Law, in contrast, is codified. Countries with Civil Law systems have comprehensive, continuously updated legal codes that
specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense
 Substantive Law establishes which acts are subject to criminal or civil prosecution, Procedural Law establishes how to determine
whether a particular action constitutes a criminal act, and Penal Law establishes the appropriate penalty
 In a Civil Law system, the judge's role is to establish the facts of the case and to apply the provisions of the applicable code. Though
the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework
established by a comprehensive, codified set of laws.
 Historical Development of Civil Law:
 Term civil law derives from the Latin ius civile, the law applicable to all Roman citizens.
 Succeeding generations of legal scholars throughout Europe adapted the principles of ancient Roman law in the
Corpus iuris civilis to contemporary needs.(collection of fundamental works in jurisprudence)
 Medieval scholars of Catholic Church Law, or Canon law, were also influenced by Roman law - Church, an
institution central to medieval culture, politics, and higher learning.
 Throughout the Early Modern Period, this desire generated scholarly attempts to systematize scattered, disparate
legal provisions and local customary laws and bring them into harmony with rational principles of civil law and
natural law.
 Systematic Legal codes including Austria's 1786 Code of Joseph Il and Complete Civil Code of.
 1811, Prussia's Complete Territorial Code of 1794, and France's Civil Code (known as the Napoleonic Code) of
1804. Such codes, Shaped by the Roman law tradition, are the models.

 Louisiana is civil law based state due to it being French and Spanish territory in past.
 Southwestern state have the same impact due to colonial history with Spain and Mexico
 California has a code but is made of common law
 Pierron v. Poat- New York Judge citied roman law principle as precedent.

JUDICIAL ARCHITECTURE- ROBINSON

  The Power and Functioning of Different Branches of Government is Intertwined with their Structure. A Bicameral Legislature
functions differently from a Unicameral one. The powers of an executive headed by a President differ from that headed by a Prime
Minister. The judiciary is no different.
 Focuses on how the Indian Judiciary Coordinates it behaviour through appeal and Stare Decisis and through a System of Internal
Administrative Control.
 The Indian Judicial system, particularly the Upper Judiciary plays a Central Role in Indian Political Life and is widely covered in the
Media, there has been limited academic literature on the impact of the judiciary's structure
 The top- heaviness of the Indian judiciary is striking, both in terms of the relative power of the upper judiciary and the number of cases
these courts hear in relation to the sub-ordinate.
 When writing the Indian Constitution the drafters emphasised that the upper judiciary should be accessible to ordinary Indians,
especially to enforce constitutional claims
 To protect the judiciary's independence, giving Supreme Court and High Court judges a prominent role in court administration and the
appointment of judges
 Broad Distrust of the Subordinate Judiciary, both by litigants and judges of the upper judiciary, has led liti-gants to appeal from, or
attempt to bypass, the subordinate judiciary in large numbers
 The Supreme Court in particular has become an omnivorous arbiter of last, and sometimes seemingly first, resort, it has seen an ever-
mounting number of cases, which has caused a multiplication of judges and benches
 Appeals progress up a set of hierarchically organised courts, whose judges interpret law under a single national constitution.
 Although States may pass their own laws, there are no separate State constitutions, and the same set of courts interprets both State and
national law. At the top of the judicial system, there is a single Supreme Court
 Each State in India has its own judicial service for the subordinate judiciary, and judges of the High Court in a State are
overwhelmingly selected from the State's judicial service and the State High Court's practising bar
 In India, the upper judiciary is traditionally viewed not so much as an extension of the subordinate judiciary, but as categorically
distinct— more capable, less corrupt, and with a more central role in enforcing constitutional rights
 The judges in the upper judiciary tend to be from more high- status families and often have already had distinguished professional
careers before joining the bench, unlike members of the subordinate judiciary, who often join the judiciary directly from law school,
making them less assertive and more likely to simply follow the arguments of more seasoned lawyers or the government
 The Constitution allows for litigants to directly petition the High Courts in constitutional matters, and the Supreme Court if their
fundamental rights are at stake
 Article 228 of the Constitution allows for a High Court to withdraw any matter involving a substantial question of constitutional law
from a subordinate court to itself
 In practice the High Courts and Supreme Court are the de facto constitutional courts of the country with the subordinate courts hearing
few such cases.

1) DESCRIPTION OF THE COURTS:

 The Judges of the Supreme Court have traditionally resisted attempts to have benches outside the capital, fearing that such a practice
would further weaken the Court's sense of institutional integrity.
 No State has more than one High Court, but some High Courts have jurisdiction over multiple States and over Union Territories.
 For example, the Bombay High Court is the High Court for the States of Maharashtra and Goa and the Union Territories of Daman &
Diu and Dadra & Nagar Haveli
 The Top Judge in the Administrative Hierarchy in a District Court is called a District and Sessions Court Judge, as she will hear both
civil and criminal matters.
 Similarly, Civil Judges of the Senior or Junior Division are also often Chief Judicial Magistrates or Judicial Magistrates, respectively.
 The judicial service in the subordinate judiciary in a State will generally be broken up between the regular judicial service and the
higher judicial service. District and Sessions Court Judges will be in the more senior cadre, while civil judges and magistrates will be
in the lower cadre.
 In most States, original jurisdiction for both civil and criminal matters begins in the subordinate courts.
 Each State has a civil courts act under which a judge will have jurisdiction to hear a case depending on the monetary amount at stake
in the suit.
 All High Courts may also exercise extraordinary civil or criminal original jurisdiction at their
 There are a number of tribunals, commissions, and courts whose judges are generally not drawn directly from the State judicial
service, and instead have members that may be retired judges, former bureaucrats, social workers, or members of civil society.
 In the Constituent Assembly debates Jawaharlal Nehru reassured the delegates that the newly independent government would quickly
secure the Independence of the Judiciary.
 There has been a push over many decades to create a more informal justice system through Lok Adalats and alternative dispute
resolution, as well as more local justice through Gram Nyayalayas.
 These alternative dispute forums loosen procedural standards in order to hasten the hearing of more minor matters, and draw on
historical ideals of village justice, even if the actua forums have become relatively formalised by the State.

1)Subordinate Courts:

 To staff the subordinate courts, each State has its own judicial service that is chosen through competitive examination.
 The High Court, through a committee of judges, sets and administers the exam, although in some States this is done with the
involvement of the State public service commission.
  Internal promotion of subordinate court judges ensures independence from the executive, but creates a high degree of norm following
within the system as judges try to ensure they please- or at least do not upset- superiors within the judiciary.
 There has been a long-standing call for the creation of an All-India Judicial Service to staff the subordinate judiciary. It has been
argued that such a pan- Indian judicial service, modelled on the vaunted All India Administrative Service, would be more prestigious
and so attract higher-quality and more professional judges to the subordinate judiciary,
 The Supreme Court ordered the creation of an All-India Judicial Service in 1992,74 but despite declared support from the Supreme
Court and multiple Prime Ministers this order has yet to be fulfilled, in part because of resist-ance by State governments as well as
State bar councils and members of the subordinate judiciary.
 The Supreme Court has indirect influence over the subordinate judiciary through its interaction with High Court judges, particularly
High Court Chief Justices, who often are eager to be appointed to the Supreme Court.

2) The Upper Judiciary:

 To be appointed a Supreme Court judge one must be a High Court judge for at least five years, an advocate at a High Court for at least
ten years, or a distinguished jurist.
 High Court judges must be High Court advocates with ten or more years of experience or judicial officers of the subordinate judiciary
with ten or more years of experience.
 Currently, about one- third of High Court judges are promoted from the judicial service and two-thirds are selected from the bar
directly.
 High Court judges are traditionally selected from the State or States over which the High Court has jurisdiction.
 While in the original constitutional text, it was the President who appointed Supreme Court and High Court judges in consultation
with the judiciary
 Starting in the 1980s the Supreme Court began to have a controlling hand in appointments.
 Through its orders in what is collectively known as the Three Judges Cases the Court evolved new rules for the appointment and
transfer of judges in the upper judiciary in order to guard against what it perceived as undue influence from the executive both during
and before the Emergency.
 The NJAC was to replace the collegium and would appoint and transfer High Court and Supreme Court judges. The Commission was
to comprise the Chief Justice of India, the two other seniormost judges of the Supreme Court, the Union Minister for Law and Justice,
and two eminent persons to be nominated by the Prime Minister, the Chief Justice of India, and the Leader of the Opposition of the
Lok Sabha.
 However, in 2015 a five- judge bench of the Supreme Court struck down the amendment that established the NJAC as violating
judicial independence and so the Basic Structure doctrine of the Indian Constitution.
 The majority argued that by not giving the judges control over the appointment process the amendment undercut the independence of
the judiciary and ordered that the previous collegium system be restored. For now the judiciary clearly remains central to its own self-
governance.
 While the design of the Indian judiciary has historically insulated judges from the demands of the executive, it also makes them much
more susceptible to the demands of judges further up the judicial hierarchy who may control their prospects for promotion or transfer.

CONCLUSION:

 The Indian judiciary is a polycephalic creature- whose largest heads can snarl and sometimes bite— but which for much of its history
has had an emaciated body. By centralizing power in the upper judiciary, and particularly the Supreme Court, the judiciary has helped
protect and consolidate its independence, as well as corrected some of the worst errors of the rest of the judiciary
 The interpretation of the Constitution, and law in general, frequently becomes polyvocal and in flux.
 critical role the High Courts and Supreme Court have played in checking some of the worst abuses or omissions of the State, but if the
Indian judiciary is to truly be democratised it will be in the subordinate courts. It is only judges at a more local level that can
systematically ensure that a citizen unfairly imprisoned by the police or a shopkeeper attempting to enforce a contract receives justice.
 Empowering the subordinate courts will require reforming the top- heavy nature of the Indian judiciary
 Subordinate courts could be allowed to hear at least some constitutional matters, while efforts could also be made to dismantle the
rigid social hierarchy that creates undue servility in the subordinate judiciary in relation to the High Courts and Supreme Court

INTRODUCTION TO INDIAN CRIMINAL JUSTICE SYSTEM

 Article 246 read with Schedule VII to constitution, seperates legislative power between the state and centre. Shedule VII consists of
union, state ad concurrent lists. Centre prevails if there is a clash in concurrent list.
 The Indian judiciary is unitary in nature, with courts having the power to adjudicate on both central and state laws – there is no
separate federal and state judiciary in this respect.
 HC and SC are appellate courts. Roster- changes of judges periodically to ensure that same judges don’t deal with a particular field of
law for extended period of time.
 IPC (1860) deals with substantiative criminal. Law. CRPC (1973) laws related to criminal procedures. IEA (1872) consolidates and
defines the law of evidence. a large number of specialized legislations which address offences that are not dealt with by the IPC like
Narcotic Drugs and Psychotropic Substances Act of 1985, The Prevention of Food Adulteration Act, The Unlawful Activities
(Prevention) Act, ich deals inter alia with terrorism), The Prevention of Corruption Act.
  The magistrates’ courts are the first and lowest tier of criminal courts in India. Magistrates – First class (chief judicial magistrate0 and
Second class. Sessions court(each district has one) is above magistrate’s court presided by sessions judge. {First schedule of CRPC
delineates whether the offence is to be tried by a magistrate’s court or sessions court depending on the severity of the offence}
 PRETRIAL- CRPC classifies offences as either cognizable or non-cognizable offences in First schedule. Cognizable- serious in nature,
direct police intervention, don’t need courts permission or obtain a warrant. Non-cognizable- less serious, need court’s permission. The
criminal process starts with filing of FIR. The FIR can be filed by any person who is aware that an offence has been committed, not
necessarily by the victim of the crime. This marks the start of investigation- questioning, searches and arrests. Once the investigation is
completed, the police is required to file a report (chargesheet- details of the evidence collected and the offences that should be
charged.) with a magistrate, who takes cognizance of it.
 Police aren’t required to consult prosecutors before filing. Police can also ask for closure of the case. In such cases, the person who
reported can directly file a petition to the magistrate.
 After taking cognizance of the offence, the magistrate forwards the case to the court which has jurisdiction to try it. The trial court then
begins the process of framing charges against the defendant, which is the first step of the trial process.
 Detention- A person can be arrested by a police officer without a warrant under 10 circumstances. 1- if the person commits a
cognizable offence in the presence of the police officer 2- if the police officer receives ‘credible’ information that the person has
committed a cognizable offence punishable with imprisonment for a term exceeding 7 years or with death. Once a person has been
arrested, he has to be produced before a magistrate within 24 hours.
 The maximum period of pre-trial detention (if a charge sheet has not been filed) is 60 days. It can extend to a maximum of 90 days if
the offence is punishable by death, imprisonment for life or imprisonment for more than 10 years. So a person accused of rape can be
detained for up to
90 days before the filing of the charge sheet.
 Bail- The CrPC. bifurcates offences into ‘bailable’ and ‘non-bailable’ offences. Bailable offences is matter of right. If a person is
willing to
meet the conditions of bail, he can be immediately released by the police. In non-bailable offences bail is a matter of discretion. A
magistrate’s court and a police officer can release a person who has been arrested or detained for having committed a non-bailable
offence subject to two conditions.
 First, the person shall not be released if there appear reasonable grounds for believing that he is guilty of committing an offence which
is punishable with death or imprisonment for life. The second condition in which bail is prohibited is if the person has been arrested
for committing a cognizable offence and has been previously convicted for an offence punishable with death or imprisonment for 7
years or more, or has been convicted on two or more occasions of an offence punishable with imprisonment for 3 years or more.
 The Criminal Procedure Code (Cr.P.C.) states that if a charge sheet is not filed within 60 or 90 days, the defendant is entitled to be
released on bail, provided they are willing to furnish bail. However, once the investigation is complete and the charge sheet is
submitted, the defendant can be re-arrested and held in custody until the trial concludes. In this case, the defendant must apply for bail
again after being re-arrested.
 Sessions Courts and High Courts have broad powers and can grant bail for all offences, unlike the magistrate’s court. Factors to
consider while granting bail- 1- the enormity of the charge 2-nature of the accusation and severity of the punishment which the
conviction will entail. the Supreme Court has held that the previous criminal history of the person is an important factor while deciding
on bail.
 Section 441 of the Cr.P.C. requires the person who has been granted bail to execute a bond of an amount fixed by a court or the police.
Courts also often require accused persons to deposit land records with the court registries, thereby ensuring that the accused persons do
not abscond.
 Article 22(1) of the Constitution of India guarantees a person the fundamental right to consult and be defended by counsel of his
choice. This right has also been codified in Section 303 of the Cr.P.C.
 If the defendant does not have the resources to engage a counsel of his choice, the State is under an obligation to provide him with free
legal representation. The responsibility of ensuring that the defendant is represented by counsel is on the court. If the court fails to
appoint counsel for the defendant, the principles of fair trial are violated and consequently, the trial will be vitiated on that ground. The
right to free legal aid extends to the appellate stage as well. In Madhav Hayavadanarao Hoskot v. State of Maharashtra, the Court held
that the right to free legal aid is a part of the due process guarantee of Article 21.
 Criminal Process- Trial Process: Trial begins w/Prosecutor’s opening statement, charge sheet charges the basis for the arguments the
prosecution aims to present evidence which prima facie indicates that the defendant is guilty of the offence with which he is being
charged. the defence is allowed to rebut the same. After hearing the two sides, if a prima facie case is made, the judge frames charges.
 The prosecution and the defence are then allowed to place their arguments before the court. If, after hearing arguments of both the
parties, the court concludes that there is not enough evidence to prove beyond a reasonable doubt, that the defendant committed the
offence with which he has been charged, it must acquit him.
 If the defendant is not acquitted at this stage, the court calls upon him to enter his defence. The defendant has the option of calling
witnesses who support his case. After this stage is completed, the prosecutor summarizes the case against the defendant, and the defence
is provided with a right to reply. After hearing arguments of both parties on facts and law, the court either convicts or acquits the
defendant.
 The sentencing phase of the trial:
1. Once the offender is convicted, generally a separate date is set for arguments on sentencing. (new Code enacted
in 1973) Both the prosecution and the defence can place evidence before the court, relating to factors that are relevant for sentencing.
Hearing on sentence is mandatory and a sentence imposed without following the procedure will be vacated on appeal. After hearing
the parties, the court pronounces the sentence imposed on the offender
2. IPC provides for 5 types of punishments i.e. Death, Imprisonment for life, Imprisonment (simple or rigorous), Forfeiture of property
and fine
 3. Final Judgement made in Open Court at the end of sentencing, i.e. end of trial with reasoning and made in writing. It also contains
the points for determination and the decision thereon, and the offences for which the defendant has been convicted, along with the
sentence imposed on each of the charges.
 A chief judicial magistrate may impose a sentence of not more than 7 years, a magistrate of the first class may impose a sentence of not
more
than 3 years and a fine of not more than 10,000 rupees, and a magistrate of the second class may impose a sentence of not more than 1
year or a fine not
more than 5000 rupees.
 The court has the discretion to order the release of a person on probation of good conduct or after admonition if: (a) he/she is being
convicted for an offence which is punishable with less than 7 years of imprisonment or fine only or (b) if the defendant is less than 21
years of age or is a woman who is convicted for an offence not punishable with death or imprisonment for life, and he/she has no prior
conviction.
 The Cr.P.C. also empowers a court imposing a sentence of which a fine forms a part, to order that the entire amount (or a part of it) be
paid to the victim as compensation. However, the maximum amount that can be awarded as compensation in such a case depends on the
amount of fine that the court is jurisdictionally empowered to impose. If, on the other hand, the court imposes a sentence of which a fine
does not form a part, it still retains the power to order the offender to compensate the victim. In this case, there is no jurisdictional limit
on the amount that can be imposed.
 The Appellate Process- The Cr.P.C. provides for the first appeal as a matter of right from a trial verdict.
-The Appellate system follows the hierarchy of courts
-For a court to reverse the finding of acquittal, it is not necessary that the decision of the subordinate court be perverse, unreasonable or
unsustainable.
-In an appeal against an acquittal, the appellate court can re-assess the evidence de novo(from the beginning) and come to a different
conclusion on facts. -Both questions of fact and law can be determined by the appellate court. Hence, the Supreme Court of India has
provided various safeguards concerning appeals of acquittals
 The Court has held that an appellate court must give due consideration and adequate weight to the trial judge’s assessment of the
credibility of witnesses.
 In appeals of convictions, the appellate court has the discretion to suspend the execution of the sentence imposed and grant bail to the
convict pending the appeal's decision.

KM NANAVATI

 Bombay High Court- Rigorous Life Imprisonment for the murder of Prem Bhagwandas Ahuja.
• Trial Court- Tried under the section of 302 (murder) and 304(Culpable Homicide) in session court with a special jury.. Jury held
the verdict not guilty (8:1).
• Session Judge did not agree- no reasonable body of men could, having regard to the evidence, bring in such a verdict. S
 He referred the case to the Bombay High Court under section 307 of the Code of Criminal Procedure. A division bench, comprising
Justices Shelat and Naik, reviewed the case. While delivering separate judgments, both judges agreed on the appellant's guilt for
murder under section 302 and sentenced him to rigorous imprisonment for life. Justice Shelat noted misdirection to the jury and
found clear evidence of the appellant's guilt.( The jury was not properly told the law in case in advance about the question of sudden
provocation is a legal question not to be judged by the jury- the jury is supposed to give a judgement based on established facts). Both
the Judges agreed that no case had been made out to reduce the offence from murder to culpable homicide not amounting to murder.
(Sudden and grave provocation leads to culpable homicide while murder is premeditated)

• Evidence divided into three categories- Evidence in regards with before the shooting, after the shooting and during the shooting.
• The conversation between Nanavati and Sylvia seemed unnatural as it is difficult to believe that Nanavati will question his wife’s
fidelity based on just her cold behaviour without any prior suspicion or information.
• Nanavati’s explanation to go to Ahuja’s place to question his intentions is improbable. Also Sylvia’s statement that Ahuja was
backing out of marrying her were proved false by the letters between themselves.
• No shop that caters medicines for dog in the ship. Nanavati did not shoot himself either after or before Ahuja was shot dead.
Hence, him taking the revolver and loading it with 6 cartridges indicate the intention on his part to shoot somebody with it.
• Nanavati’s conduct of going straight to Ahuja’s bedroom and closing the door instead of waiting in the drawing room was of an
enraged man who had gone to wreak vengeance on a person who did him a grievous wrong.
• Ahuja did not possess licence to own a gun hence, proving Sylvia to be colluding with Nanavati to prove defence to the fact he
took a loaded gun to Ahuja’s bedroom.
• He entered the flat and then the bed-room unceremoniously with the loaded revolver, closed the door behind him and a few
seconds thereafter sounds were heard by Miss Mammie and Anjani. that when they entered the bed-room, they saw the accused
with the revolver in his hand, and found Ahuja lying on the floor of the bathroom. This conduct of the accused to say the least, is
very damaging for the defence and indeed in itself ordinarily sufficient to implicate him in the murder of Ahuja.
• Nanavati not only did not try to explain his actions to Mammie but also threatened the servant and did not try calling for a doctor
conduct of a person who had committed a deliberate murder and not of one who had shot the deceased by accident.
• Having shot Ahuja he was going to surrender himself to the police; he knew that he had committed a crime; he was not a hardened
criminal and must have had a moral conviction that. It was quite natural, therefore, for him to confess his guilt and justify his act to
the watchman.
• Nanavati’s unusual behaviour at Marshal Provost Samuel’s house showed that having committed the murder, he wanted to
surrender himself to the police and to make a clean breast of everything.
• Accused did not tell the Court that he told Samuel that he shot the deceased in a fight.
• After the shooting, till his trial in the Sessions Court, he did not tell anybody that he shot the deceased by accident.
• His description of the struggle in the bathroom is highly artificial and is devoid of all necessary particulars. The injuries found on
the body of the deceased are consistent with the intentional shooting and the main injuries are wholly inconsistent with accidental
shooting
• Accused shot the deceased while deprived of the power of self-control by sudden and grave provocation and, therefore, the offence
would fall under Exception 1 to s. 300 (Culpable Homicide not amounting to Murder)
• Culpable homicide is not murder if: (1) The deceased must have given provocation to the accused. (2) The provocation must be
grave. (3) The provocation must be sudden. (4) The offender, by reason of the said provocation, shall have been deprived of his
power of self-control. (5) He should have killed the deceased during the continuance of the deprivation of the power of self-
control. (6) The offender must have caused the death of the person who gave the provocation or that of any other person by
mistake or accident.
• (1)The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused,
placed in the situation in which the accused was placed would be so provoked as to lose his self-control.(2) In India, words and
gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the
first Exception to s. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be
taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the
offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the
passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.