CrPC

1. What is complaint? Explain the procedure to be followed magistrate receiving a complaint.

The Code of Criminal Procedure, 1973

Section 2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view
to his taking action under this Code that some person, whether known or unknown, has committed
an offence, but does not include a police report. Explanation.- A report made by a police officer in a
case which discloses, after investigation, the commission of a non- cognizable offence shall be
deemed to be a complaint; and the police officer by whom such report is made shall be deemed to
be the complainant.

The code of criminal procedure defines the term complaint' as any allegation made orally or in
writing to a Magistrate. It's done with a view to his taking action under this Code, that some person,
whether known or unknown, has committed an offence, but does not include a police report.

Procedure to Receive Complaint by a Magistrate Section 200:

A Magistrate with whom compliant filed, shall examine the complainant and also witnesses on oath.
The contents in the compliant shall also examined and reduced in writing in a report. The report
shall have signature of complainant, witnesses and also the Magistrate. Provided that, when the
complaint made in writing, the Magistrate need not examine the complainant and the witnesses:

1. if a public servant acting or purporting to act in the discharge of his official duties or a Court
has made the complaint; or
2. if the Magistrate makes over the case for inquiry or trial to another Magistrate under section
192:

Provided further that if the Magistrate transfers the case to another Magistrate under section 192
after examining the complainant and the witnesses, the latter Magistrate need not re-examine
them.

The procedure has been enunciated in Section 200 of Code of Criminal Procedure Act, 1973. For the
purpose of explain the main points in a nutshell for practical use, I'll state them in bullet points:

1. The complaint has to be filed with the magistrate who has the jurisdiction to try the offence
complained of. However, in cases where the complaint is accidentally filed with the magistrate
not having the jurisdiction, the magistrate is duty bound to return the complaint to be presented
to the appropriate magistrate by stating the necessary details thereof.
2. The complaint may be made orally or in writing. However, it is always better to furnish it in
writing.
3. Unlike the filing of the FIR, where after the police straightaway proceed to investigate the offence
complained of and arrest the suspects, in case of the complaint the magistrate will not proceed
with it without examining the complainant and witnesses (note-only the witnesses who are
present at the time of filing such complaint).
4. Thereafter the magistrate will make a written report of the examination and sign it himself as
well as get it signed by the complainant and the witnesses.
5. Thereafter if the magistrate is satisfied that the complaint coupled with the examination discloses
an offence, he shall proceed with taking cognizance of the offence (which simply means that he
would summon the accused suspects for the purpose of trial)
6. However, if the magistrate is not satisfied that the complaint (and examination) discloses any
offence, he may take one of the two options available to him: he may either dismiss the
complaint or he may order the police to undertake some further investigation under Section 202
of the Code.
7. After the police officer reports back to the magistrate his findings the magistrate may proceed
with either of the steps stated in point 5 and point 6 (minus the investigation order, of course,
which has already been given).

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2. Explain the procedure of trial before the Court of Session.

In India, we follow the adversarial system. It implies that the Judge acts as a neutral party and hears
the prosecution and defence on the point of law without actually taking part in the proceeding.
Under the Criminal Procedure Code, 1973 every individual has a right to fair trial and hearing by an
independent and unbiased tribunal. Section 303 confers a right upon the accused to be defended by
a lawyer of his choice. Under Section 304 where an accused person is unable to represent his case by
a pleader, the Court shall appoint a pleader for him at the state’s expense. The accused is presumed
to be innocent until proven guilty of the charges against him. Moreover, the accused has a right to
cross-examine the witnesses of the prosecution.

All offences under the Indian Penal Code, 1860 are inquired, investigated and tried according to the
provisions of Criminal Procedure Code, 1973 except otherwise provided. The Code describes the
procedure for the trial of a criminal case and its stages. In India, there is a uniform judicial system at
the apex position being the Supreme Court, the High Court has the power of superintendence over
all the courts and tribunal within the state.

The CrPC divides criminal trial into sessions trial and magistrate trial. Whether an offence is triable
by a Court of Session or Magistrate’s Court is specified under the First Schedule of the Code. When a
District Court exercises its jurisdiction over criminal matters it is referred as a Court of Session. A
Court of Session is considered as a court of first instance which deals with offences which are of a
serious nature at a district level. It is the highest criminal court in a district. According to Section 9 of
the CrPC, the State Government is empowered to establish a Court for every sessions division and
every Court of Session is presided over by a Judge appointed by the High Court.

Trial before a Court of Session:

1. Parties (sec. 225)

2. Opening the case (sec. 226)
3. Discharge of the accused (sec. 227)
4. Framing of charge (sec. 228)
5. Explaining the charge and enquiry about plea (sec. 228(2))
6. Conviction on plea of guilty (sec. 229)
7. Date for prosecution evidence (sec. 230)
8. Evidence for prosecution (sec.231)
9. Arguments of the prosecution (sec. 314(2))
10. Examination of the accused
11. Acquittal (sec. 232)
12. Entering upon defence (sec. 233)
13. Arguments (sec. 234)
14. Judgment of acquittal or conviction (sec. 235)
15. Previous Conviction (sec. 236)
 16. Procedure in cases instituted under sec. 199(2) (sec. 237)

The code lays down the procedure for trial before a court of session as follows:

1. Parties (sec. 225): In a trial before a court of session, the prosecution shall be conducted by a
public prosecutor. The accused has a right to engage a counsel of his choice. If he cannot afford
to engage the defence counsel, the court engaged at the state expenses. Before commencing
the trial, the accused in supplied with the copies of documents like police report, F.I.R etc.

2. Opening the case (sec. 226): The public prosecutor opens the case by describing accusation
against the accused. He states briefly by what evidence, he proposes to prove the guilt. The
prosecutor duty is not to secure a conviction but simply to lay the facts of the case before the
tribunal, which is to judge.

3. Discharge of the accused (sec. 227): After hearing from both the parties if the court considers
that there is no sufficient ground to proceed against the accused, discharges him and records
the reason for doing so. There is no scope for examination of any witness but there is scope for
both sides to argue their case in favour of framing charge or discharge.

4. Framing of charge (sec. 228): After hearing from both the parties if the court presumes that the
accused might have committed the offences:
i) If frames a charge in writing, if the offence is exclusively triable by the Court of Session.

ii) If the offence is not triable exclusively by the session’s court, it frames charge and transfers
the case to the Chief Judicial Magistrate. It was held in Kanti Bhadra Shah & anr v. State of West
Bengal while exercising power under Section 228 CrPC, the Judge is not required to record his
reasons for framing the charges against the accused.

While framing charges, only the prima facie case has to be seen. At this stage, the Judge is not
required to record a detailed order necessary to see whether the case is beyond reasonable
doubt as held by the Supreme Court in Bhawna Bai v. Ghanshyam & Ors.(2)

In Rukmini Narvekar v. Vijaya Satardekar {3} it was ruled by the Court that the accused cannot
produce any evidence at the stage of framing of charge and only those materials can be taken
into consideration which is specified in Section 227 at the time of framing charges.

5. Explaining the charge and enquiry about plea (sec. 228(2)): The contents of the charge have to
be explained to the accused as to enable him to plead guilty of the offence or claim to be tried.
In Banwari v. State of UP, {4} the Court held that default in reading out or explaining the charge
to the accused would not vitiate the trial unless it has been shown that non-compliance with
Section 228 has resulted in prejudice to the accused.

6. Conviction on plea of guilty (sec. 229): If the accused pleads guilty, the judge shall record the
plea and may in his discretion convict him thereon. It was held in Queen Empress v. Bhadu {5}
that the plea of guilty must be in unambiguous terms otherwise such a plea is considered as
equivalent to a plea of not guilty. Section 229 states that if an accused pleads guilty then the
Judge shall convict him as per his discretion and shall record the same. The Court cannot convict
an accused on the basis of the plea of guilty where the offence is of a nature in which the
punishment is death or imprisonment for life. In Hasaruddin Mohommad v. Emperor,{6} the
Court held that it will be reluctant for the Court to convict a person accused of an offence in
which the punishment is death or life imprisonment on the basis of his plea of guilty. The right
 of appeal of the accused is curtailed by Section 375 If the accused is convicted on the basis of
his plea of guilty.

7. Date for prosecution evidence (sec. 230): If the accused refuses to plead or does not plead or
claims to be tried or is not convicted under sec. 229, the judge shall fix at date for the
examination or witness or may order for compelling appearance of any witness or production of
a thing/document.

8. Evidence for prosecution (sec.231):

It consists of two points:
i) On the date so fixed as above, the judge takes all such evidence is support of the prosecution.
ii) The judge may in his discretion, permits the cross examination of any witness to be deferred
until any other witness have been examined or recall any witness for further cross examination.

In Ram Prasad v. State Of U.P , {7} The Supreme Court was held that, if the court finds that the
prosecution had not examined witness for reasons not tenable or proper, the Court would be
justified in drawing an inference adverse to the prosecution.

The Court observed in Statep of Kerala v. Rasheed {8} that a balance must be struck between
the rights of the accused and the prerogative of the prosecution to lead the evidence while
deciding an application under Section 231(2). The following factors must be considered:
1. The possibility of undue influence,
2. Threats,
3. That non-deferral would enable subsequent witnesses giving evidence on similar fact to tailor
their testimony to circumvent the defence strategy,
4. Loss of memory of the witness whose examination-in-chief has been completed.

9. Arguments of the prosecution (sec. 314(2)): The prosecution after the close of witnesses submits
a memorandum of his oral arguments. A copy of the same if is supplied to the opposite party.

10. Examination of the accused: It is to be made without administering oath. It is to give an

opportunity to him to explain the circumstances alleged against him by prosecution.

11. Acquittal (sec. 232): After hearing from both the parties if the judge considers that the accused
has not committed the offence, record an order acquitting the accused.

12. Entering upon defence (sec. 233): If the accused is not acquitted, he shall be called upon to enter
on his defence. The court may summon or examine at any stage any person as court witness.

13. Arguments (sec. 234): After recording defence, the prosecutor sums up his case and the accused
or his pleader shall be entitled to reply. The prosecutor may be allowed to make his submission
in case any law point is raised by the defence.

14. Judgment of acquittal or conviction (sec. 235): After hearing arguments from both the sides, the
court delivers judgment of acquittal or conviction. On this point, the Apex Court in Santa Singh
v. State of Punjab {9} held that the Judge should first pass a sentence of conviction or acquittal.
If the accused is convicted he shall be heard on the question of sentence and only then the
Court shall proceed to pass a sentence against him.

In Bacchan Singh v. State of Punjab, {10} it was ruled by the Court that this Section provides for
a bifurcated trial and specifically gives to the accused person a right of pre-sentence hearing
 which may not be strictly relevant to or connected with the particular crime under inquiry but
may have a bearing on the choice of the sentence.

15. Previous Conviction (sec. 236): In a case where a previous conviction is charged under the
provisions of sub Sec. (7) of Sec. 211, and the accused does not admit that he has been
previously convicted as alleged in the charge, the judge may take evidence in respect of the
alleged previously conviction and shall record a finding there on:
Provided that no such charge shall be read out by the judge not shall the accused be asked to
plead thereto nor shall the previous conviction be referred to by the prosecution or in any
evidence adduced by it unless and until the accused has been convicted under sec. 299 or sec.
235.

16. Procedure in cases instituted under sec. 199(2) (sec. 237):

i) A Court of Session taking cognizance of an offence under sub sec. (2) of sec 199 shall try the
case in accordance with the procedure for the trial of warrant cases instituted otherwise than on
a police report before a court of magistrate.

ii) Every trial under this section shall be held in camera if either party thereto so desires or if the
court thinks fit so to do.

iii) If, in any such case, the court discharges or acquits all or any of the accused and is of the
Opinion that there was no reasonable cause for making the accusation against them or any of
them, it may try its order of discharge or acquittal, directs the person against whom the offence
was alleged to have been committed to show cause why he should not pay compensation to
such accused or to each or any of such accused, when there are more than one.

iv) The court shall record and consider any cause which may be shown by the person so directed
and if it is satisfied that there was no reasonable cause for making the accusation, it may make
an order that compensation to such amount not exceeding Rs.1000 it may determine, be paid by
such person to the accused or to each or any of them.

v) Compensation awarded under sub sec. (4) shall be recovered as if it were a fine imposed by a
magistrate.

vi) no person directed to pay compensation under sub sec (4) shall be exempted from any civil or
criminal liability 1n respect of the compliant made under this section.

vii) The person who has been ordered under sub sec. (4) to pay compensation may appeal to the
High Court.

viii) When an order for payment of compensation to an accused person is made, the
compensation shall not be paid to him before the period allowed for the presentation of the
appeal has elapsed, or if an appeal is presented, before the appeal has been decided.

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3. Write a note on first information report.

4. Examine the procedure of recording first information report. Discuss the evidentiary value of
FIR and the effect of delay in lodging FIR.
First Information Report (FIR) is a written document prepared by the police when they receive
information about the commission of a cognizable offence. It is a report of information that reaches
the police first in point of time and that is why it is called the First Information Report. The term
‘First Information Report’ has not been defined in the Code of Criminal Procedure. Rather the term
has not been used except in section 207 which requires the Magistrate to furnish to the accused a
copy of the First Information Report recorded under section 154 (1) of the Code. The report first
recorded by the police relating to the commission of a cognizable case is the First Information
Report giving information on the cognizable crime.

1. It is a piece of information given to the police officer.

2. The information must relate to a cognizable offence.
3. It is a piece of information reported first in point of time.
4. The victim of the cognizable offence or someone on his/her behalf gives information and lodges
a complaint with the police.

This is the information on the basis of which investigation begins. The FIR must be in writing. In the
State of Rajasthan v. Shiv Singh, the Rajasthan High Court defined a First Information Report as ‘the
statement of the maker of the report at a police station before a police officer recorded in the
manner provided by the provisions of the Code.’

Object

The main objective of filing F.I.R. is to set the criminal law in motion. And also to enable the police
officer to start the investigation of the crime committed and collect all the possible pieces of
evidence as soon as possible.

The various objects of recording F.I.R. are:

1. To inform the District Magistrate and the District Superintendent of Police, who are responsible
for the peace and safety of the district, of the offence, reported at the police station.
2. To make known to the judiciary and judicial officers before whom the case has to be ultimately
tried, about the facts and scenario which came out after the immediate occurrence of the
crime.
3. To safeguard and protect the accused against subsequent additions or variations.

Essential Conditions of F.I.R.

In Moni Mohan v. Emperor, it was decided that the essential conditions of F.I.R. are:

1. It must be a piece of information.

2. It must be in writing. If given in writing, should be reduced into writing by the concerned police
officer.
3. The main act or crime should be cognizable in nature, not the ones subsequent to the main act.

The F.I.R. must be in the nature of complaint or accusation with the object of getting the law in
motion.

What Kind of Information is considered in an F.I.R?

Only information relating to the commission of a cognizable offence can be termed as an FIR. It is
not necessary that the information must set out every detail of the case. It need not state the name
of the accused also. What is necessary is that it must disclose information regarding the commission
of a cognizable offence.
Information received in the following cases is not considered as FIR:

1. Information received after commencement of the investigation.

2. Telephonic information, unless it has been given by a known person who discloses his identity
and the message contains all the necessary facts which constitute an offence and such a
message is reduced to writing by S.H.O.
3. Information of mere assemblage of some persons.
4. Indefinite, Vague and unauthorized information.

Procedure for recording of FIR

1. When the police officer receives oral information he shall reduce it into writing.
2. In case of written information the police will record it under section 154 crpc
3. Police officer shall read over the information to the informant or complainant
4. The police officer shall take signature or thumb impression of the informant
5. Thereafter, the police will record the substance of information in General Diary (GD)
6. Police officer will give a copy of FIR to the informant at free of cost

Evidentiary Value of F.I.R.

An FIR is not a substantive piece of evidence. That is, it cannot be considered as evidence of facts
stated therein. However, FIR may be used for the following purposes:

1. It can be used to corroborate an informant witness u/s 157 of Evidence Act. But it cannot be
used to contradict or discredit other witnesses.
2. It can be used to contradict an informant witness u/s 145 of Evidence Act.
3. FIR can be used by the defence to impeach the credit of the maker under sec. 155(3) of the
Evidence Act.
4. A non-confessional FIR given by an accused can be used as an admission against him u/s 21 of
Evidence Act.
5. FIR can be used as a dying declaration as substantive evidence If it relates to the cause or
occasion or circumstances and facts which resulted in the informant’s death. Within the
meaning of section 32(1) of the Evidence Act.

Effect of delay in lodging FIR

Prompt lodging of information of commission of cognizable offense at the first available opportunity
is supposed to be true version without any addition, embellishment and concoction.

The chances of missing links outside influence after thought and additions are removed, where the
memory is fresh and information is given without any loss of time.

In past their was many hardships in registering a case, as distance of Police Station and Place of
occurrence, transport and communication mediums, but some of these factors have been
extinguished by the lapse of time.

Condonation of Reasonable delay in Lodging FIR- Delay in many cases brings the prosecution case
out of the court and court has to look into the matter seriously for the purpose so that justice may
be done to the victim person.

All reasonable delay in lodging the FIR must be condoned in the interest of Justice and the accused
should not be allowed to take defenses of technicalities and delay in Justice delivery system.
Knowledge of Modern Scientific and Technical tools- In India there is high illiteracy rate. People are
not aware of the new methods of scientific investigations.

Even in many cases decided by the Supreme Court it has been discussed that some victims do not
know that prompt registration of the case is necessary and delay will throw out their case out of the
court. Literacy rate in developed countries is high and the citizens of these countries use the
technology in the manner as they are familiar in using the same.

FIR in Special Cases- In matrimonial cases unless it is proved that cognizable offense is occurred or
not then the case (FIR) is not to be registered.

These types of cases are of serious nature and must deal accordingly and these types of institutions
must be ended Like, Woman Protection Cell or any Type of Special cells. Establishment of these
institution/ department having quasi-judicial powers are not the solution of any problem and
constitutionally invalid.

At the stage of registration of a crime or the case, on the basis of information disclosing a cognizable
offence in compliance of the mandate of Section 154 of CrPc the concerned police officer cannot
embark upon an inquiry as to whether information laid by the informant is reliable or genuine and to
refuse registration of a case on that ground. It is therefore manifestly clear that if the information
disclosing cognizable offence is laid before a police officer in charge of a police station satisfying the
requirements of Section 154(1) of CrPC the said officer has no other option except to enter the
substance thereof in prescribed form that is to register a case on basis of such information.

There is no time frame provided either by the legislature or judiciary to report the occurrence of
crime. Though, it is expected to be informed within a reasonable time limit. This time frame to
provide information on an offense depends mostly on the facts and circumstances of a case. In the
case of State of Rajasthan vs. Om Prakash, where a minor has been raped and FIR was lodged after
the gap of nearly 26 hours, the Supreme Court held that the delay does not necessarily affect the
case of the prosecution as it is related to the rape of a minor, where the reputation of a family and
career of a child is at stake. Similarly, in Ravinder Kumar and another vs the State of Punjab, the
Court held that delay of FIR is not illegal. Of course, it is ideal to register FIR within a reasonable
time, giving the prosecution a twin advantage. Firstly, the commencement of the investigation.
Secondly, it rejects the possibility of any concocted version. Barring these two advantages, the
demerits of mere delay in lodging an FIR is not always fatal to the case of prosecution but only if the
delay can be sufficiently and satisfactorily explained. Also just delay in filing FIR is not a sufficient
reason to quash the FIR. It can just raise a suspicion in the prosecution to look for the possible
motive. Still, at any point, it can be condoned with a satisfactory explanation of the reason for such
delay.

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5. What is arrest? State the circumstances under which a person can be arrested without
warrant.

An arrest is the act of apprehending and taking a person into custody (legal protection or control),
usually because the person has been suspected of or observed committing a crime. After being
taken into custody, the person can be questioned further and/or charged. An arrest is a procedure in
a criminal justice system, sometimes it is also done after a court warrant for the arrest.

Arrest, placing of a person in custody or under restraint, usually for the purpose of compelling
obedience to the law. If the arrest occurs in the course of criminal procedure, the purpose of the
restraint is to hold the person for answer to a criminal charge or to prevent him from committing an
offense. In civil proceedings, the purpose is to hold the person to a demand made against him.

The Criminal Procedure Code of 1973, however that deals with the aspects of arrests has not defined
the ‘Arrest’. When a person is arrested, then the arrested person is taken into custody of an
authority empowered by the law for detaining the person. The person is then asked to answer the
charges against him and he is detained so that no further crime is committed.

Arrest by the police without a warrant (Section 41: CrPC)

Section 41 of the Code of Criminal Procedure (the Code from hereinafter) contains the law for arrest
by the police without a warrant. A long list has been provided. Following are some of the items from
the list:

1. When a person commits a cognizable offense in the presence of a police officer

The cognizable offense is defined in section 2(c) of the Code. When a particular offense is designated
as such in Schedule I of the Code as a cognizable offense, it is called a cognizable offense. Cognizable
offenses are usually offenses that are serious in nature.

2. When a reasonable complaint is made against a person or credible information has been received,
or a reasonable suspicion exists that such person has committed a cognizable offense punishable
with imprisonment for a term which may be less than seven years or which may extend to seven
years whether with or without fine if the following conditions are satisfied:

 the police officer has reason to believe based on such complaint, information, or suspicion that
such person has committed the said offense;
 the police officer who is arresting is satisfied that the following conditions have been fulfilled-

a) To prevent such person from committing any additional crime; or

b) For proper facilitation of the investigation of the crime; or
c) To stop such person from causing the proof of the crime to disappear or tampering with
such evidence in any manner; or
d) To restrain such person from making any inducement, threat or promise to any person
acquainted with the facts of the case so as to stop him from disclosing such facts to the
Court or to the police officer; or as unless such person is arrested, his presence in the Court
whenever required cannot be ensured;

And the police officer shall record while making such arrest, his reasons in writing, and when the
police officer does not make an arrest, he shall also write the reasons for not making the arrest.

1. Against whom credible information has been received that he has committed a cognizable
offense punishable with imprisonment for a term which may extend to more than seven years
whether with or without fine or with a death sentence, and the police officer has reason to
believe based on that information that such person has committed the said offense.
2. The person so being arrested is a proclaimed offender by the Central or the State Government.
3. When the person being so arrested is in possession of the stolen property and who may
reasonably be suspected of having committed an offense with reference to such thing.
4. When the person being so arrested obstructs a police officer while in the execution of his duty.
5. When the person being so arrested has escaped or attempted to escape from lawful custody.
6. When the person being arrested is reasonably suspected of being a deserter from any of the
Armed Forces of the Union.
7. Who has been concerned in, or against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists, of his having been concerned in,
any act committed at any place out of India which, if committed in India, would have been
punishable as an offense, and for which he is, under any law relating to extradition, or otherwise,
liable to be apprehended or detained in custody in India.
8. When the person being arrested is a released convict, commits a breach of any rule under
subsection (5) of section 356.
9. A requisition is made or received from any other police officer. The requisition must specify the
person to be arrested with the crime that was committed by him. The requisition may be in
writing or be oral.

For all the above situations, the police have the power to make arrests. In all the other cases, a
warrant is required from the magistrate before making an arrest. The section is not exhaustive.
There are various other Acts like Arms Act, Explosives Act, etc., which confer such powers on police
officers.

The power to arrest is also given to public servants under other statutes. The Custom Officers,
Officers of Enforcement Directorate, Narcotic Officers, etc. also have the right to arrest persons
under different statutes.

As it can be observed from the above provision, the words, ‘reasonable suspicion’ and ‘credible
information’ have been used several times. These words have been inserted to keep a check on the
powers of the police. The police cannot arrest on a whim or to exact revenge against the arrestee.
The information so received must be solid. The suspicion on which the arrest is made must also be
based upon solid grounds and not mere fiction.

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6. Explain the circumstances under which a police officer may arrest a person without warrant
and state the circumstances in which a private person can arrest.

Arrest by a private person

Section 43 of the Code of Criminal Procedure provides for arrest by a private person and the
procedure of such arrest.

According to this section, any person and not just a citizen can arrest or cause a person to be
arrested who commits a non-bailable and cognizable offence in his presence. This also includes a
proclaimed offender. The private person shall take over such a person arrested by him to a police
officer. In case of absence of a police officer, he shall take him to the nearest police station. The
police officer shall re-arrest such person under Section 41 if there is reason to believe that such
person has committed a cognizable offence.

If a person, concerning whom there is reason to believe that he has committed a non-cognizable
offence, either refuses to give his name and residence to the police officer or gives a name or
residence which the police officer has reason to believe that it is false, Section 42 shall be made
applicable on him. However, if the police officer has no reason to believe that such person has
committed an offence, he shall release that person.

Procedure of arrest

Section 46 of CrPC lays down the procedure of arrest by a police officer and also a private person. It
includes the following:
1. The police officer or private person shall touch or confine the body of the person only if there is
no submission to the custody by word or action.
2. A woman shall be arrested by a female officer and in no case shall a woman be touched by a
male police officer. The submission of a woman to custody on oral intimation is sufficient.
Moreover, a woman should not be arrested after sunset and before sunrise and under
exceptional circumstances, a report is required to be made to that effect.
3. In case the person forcibly resists the attempt to arrest or attempts to evade the arrest, the
police officer of the private person can use all means necessary to effect the arrest.
4. However, they do not have a right to cause the death of a person who is not accused of an
offence not punishable with death or life imprisonment.

In Abdul Habib v. State) it was held that a private person cannot arrest anyone on mere suspicion or
information. The offence must be committed in his view or in his presence. Where therefore an
individual seeing a person fleeing with the knife in his hand pursued by others, tries to arrest him his
exercise of power of arrest cannot be brought under Section 43.

In Directorate of Enforcement v. Deepak Mahajan) it was observed “The code gives power of arrest
not only to a Police Officer and a Magistrate but also under certain circumstances or given situations
to private persons.

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7. What do you mean by arrest? Who can arrest? Explain the rights of arrested person.

Arrest can be made by a police officer, magistrate or any private person, like you and me can also
arrest any person but the arrest should be made according to the process mentioned under CrPC. A
police officer is authorized to arrest a person with warrant and without warrant. The code exempts
the members of Armed forces from being arrested for anything done by them in discharge of their
official duties except after obtaining the consent of the government (Sec. 45). Any private individual
may arrest a person only when the person a proclaimed offender and the person commits a non-
bailable offence and cognizable offences in his presence (sec. 43). Any magistrate (whether
Executive or judicial) may arrest a person without a warrant (sec. 44)

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8. Write a note a Rights of arrested person.

The legal system in India is established on the platform of innocent till proven guilty. An unlawful
arrest of an individual can be a violation of Article- 21 of the Indian Constitution that states, no
human shall be denied of his right to life and personal liberty except if established by law• which
means that the process must be fair, clear and not arbitrarily or oppressive.

1. Right to know the grounds of arrest

2. Right to be produced before the Magistrate without unnecessary delay
3. Right to be released on bail
4. Right to a fair and just trial
5. Right to consult a Lawyer
6. Right to free legal aid
7. Right to keep quiet
8. Right to be examined by a Doctor
9. Additional rights available to an arrested person
1 - Right to know the grounds of arrest

 Article- 22(1) of the Indian Constitution stipulates that no police official can arrest any individual
without informing the accused the reason/ ground of his detainment/ arrest.
 Section- 50of the Code of Criminal Procedure (CrPC) says that every police official with authority
to arrest someone without a warrant must inform the person getting arrested about the crime
for which he is arrested and other relevant grounds for the arrest. This is the duty of the police
official which he cannot refuse.
 Section- 50Aof CrPC makes it compulsory for the person/ police official arresting a person to
inform of the arrest to any of his relatives or even friends who may have interest in the same.
 Section- 55of CrPC states that in situations where a police official authorises his junior to arrest a
person without a warrant, the junior official must notify the arrested person of the order of
delegation that is given which must also mention the crime and the grounds of arrest.
 Section- 75of CrPC states that the police official executing the warrant must notify the substance
to the arrested person and furnish the warrant of the arrest when required.

2- Right to be produced before the Magistrate without unnecessary delay

 Article- 22(2) of the Indian Constitution stipulates that the police official making an arrest must
produce the arrested person before the Magistrate within 24 hours of the arrest failing to do so
would make him liable for wrongful detention.
 Section- 55 of CrPC states that in case a police official is making an arrest without a warrant, then
he must produce the person arrested without any unnecessary delay before the Magistrate with
jurisdiction or before a police officer in charge of the police station, depending upon the
conditions of the arrest.
 Section- 76 of CrPC states that the arrested person must be produced in court within 24 hours of
his arrest, the same can must exclude the time duration which is required for the journey from
the place of arrest to the Magistrate Court.

3- Right to be released on bail

 Section- 50 (2) of CrPC provides that the arrested person has the right to get released on bail by
making arrangement for the sureties or just inform him of his right when arrested without a
warrant for an offence other than a non-cognizable offence.

4- Right to a fair and just trial

The legal provision regarding the right to a fair and just trial can be extracted from the Indian
Constitution as well as a lot of Supreme court and High court judgments since no specified law has
been stipulated in this regard.

 Article- 14 of the Indian Constitution states that every individual is equal before the law which
means that all the sides in a legal dispute must be treated equally.

The principle of natural justice must be considered in respect to both the parties.

Similarly, a right to a speedy trial has also been upheld in Huissainara Khatoon v/s Home Secretary,
State of Bihar where the court observed that the trial must be disposed of as diligently as possible.

5- Right to consult a Lawyer

  Article- 22 (1) of the Indian Constitution provides that every arrested person has the right to
choose and elect his own lawyer to defend him in the court of law for whatever crime he may/
may not have committed.
 Section- 41D of CrPC allows prisoners to be able to consult with their lawyers even during their
interrogation.
 Section- 303 of CrPC allows every alleged convict/ criminal the right to be defended by a lawyer
of his choice even if the criminal proceedings against him have already begun.

6- Right to free legal aid

 Article- 39A The government in an effort towards securing justice instituted Article- 39A to
provide free legal aid to people in need. The same right was reaffirmed in the dispute of Khatri
v/s Bihar, where the court held that, “the state must provide free legal aid to the poverty-
stricken accused person―. The same right to free legal aid is provided at the first instance of
production of the accused before the Magistrate in the court.

Moreover, this right to free legal aid for the accused cannot be refused even when the accused fails
to ask for it himself. Now, a key note to remember, if the government is unable to provide free
legal aid to the poverty- stricken accused person, then whole trial will stand to be void. The same
was firmly established in Sukh Das v/s Arunachal Pradesh where the Court held that, the right of
a poverty- stricken accused person cannot be refused even when the accused fails to apply for
the same.

 Section- 304 of CrPC provides a very significant right to every accused who is set to appear before
a Sessions Court to appoint him a lawyer (totally free of cost) at the expense of the State. The
court may appoint him a representing lawyer if the accused has no sufficient means to appoint
himself a lawyer for his case then.

7- Right to keep quiet

The right to keep quiet does not have any mention in any Indian law, however, its authority can be
derived from CrPC as well as the Indian Evidence Act.

The right to stay silent is principally related to the statement and confession made by the accused
person in the court. In addition to this, it is the responsibility of the magistrate to perceive if any
statement or confession made by the accused person was voluntarily or was after the use of force
and manipulation. Therefore, police or any other authority for that matter is not allowed to compel
an accused person to speak anything in the court.

 Article- 20(2) Additionally, reiterates that no person whether accused or not cannot be compelled to
be a witness against himself. This act of exposing oneself is the principle of self- incrimination. This
principle was affirmed in the case of Nandini Satpathy v/s P.L. Dani, where the court observed that,
“No person can force any other person to furnish any statement or compel to answer any
question because the accused person has a right to keep quiet during his interrogation―.

8- Right to be examined by a Doctor

 Section- 54 of CrPC asserts that if an arrested person claims that medical examination of his body
would lead to a detail which would dismiss the fact of commission of the crime by him, or some
detail that might lead to evidence towards commission of the crime by some other person against
his body.
 The court has complete discretion to order for a medical examination of an accused person at his
request and the same is granted by the court when satisfied that the request is not made to delay or
defeat justice.

9- Additional rights available to an arrested person

 Section- 55A of CrPC asserts that maintaining reasonable heath care and safety of every arrested
person will be the sole responsibility of the person (police official) who has the custody of the
accused.

This principle was established to protect the arrested person from cruel and inhuman treatment in
the prison.

 Section- 358 of CrPC is another groundbreaking effort towards the principle of natural justice where
the arrested person is provided with compensation when arrested unreasonably.
 Section- 41A of CrPC asserts that the police official must furnish notice to the person who has
supposedly committed a cognizable offence to appear before him at a specified time, date and
location.
 Section- 46 of CrPC stipulates the mode of arrest of an accused person which includes submission to
custody by the accused, physically touching the body, or to a body.

The police official must not cause death of the accused person while trying to arrest the person
except when the person to be arrested is accused of an offence which is punishable with death or
life imprisonment or when the accused person is trying to unnecessarily resist his arrest by turning
violent and aggressive or when the accused is trying to escape.

 Section- 49 of CrPC asserts that the police official must not restrain or detain the accused without a
legal arrest.

The landmark case of D.K. Basu v/s West Bengal and Ors. Concentrates on the rights of an arrested
person which further impels the police officer to act in a certain way.

The court further observed that if the police official is unable to perform his duty properly, then he
will be accountable for contempt of court and also for departmental inquiry. Such dispute can be
initiated in any High Court that has the jurisdiction over the said dispute.

Regardless of numerous efforts to safeguard an accused person from unnecessary torture and
inhuman conduct, number of custodial deaths and police atrocities are still common. Therefore, to
overcome this, the Indian Apex court circulated 9 significant guidelines to protect an accused person
which also included amendment to numerous sections of the CrPC which are as follows:

 Section- 41B Every police official authorised to conduct the investigation/ arrest must supply clear,
visible and valid badge where the name and designation of the police official is clearly mentioned.

Besides this, the police official authorised to make an arrest must prepare a cash memo with
complete details of the arrest like the date and time. The same document must have signatures of at
least 1 family member or any one honourable person of the locality of the accused. The arrested
person has to countersign the cash memo.

 Section 41D entitles an arrested person to a right to have 1 friend or relative or any other person
who he wants by his side during his arrest.
 The police must inform the person arrested about his right to inform someone immediately when
the person is detained or put under custody.

 Appropriate entry must be made in the diary and be maintained by the police which must furnish all
the important information related to the arrest of the person which must further include the details
of the person accompanying the arrested person and also the details of the person to whom
information regarding the arrest has been made.

The official diary must also include the name and additional particulars of the police officials under
whose custody the arrested person is. Moreover, a medical examination has to be conducted but
after the request of the arrested person to put on record any minor or major injuries suffered by the
arrested person. This inspection memo is supposed to be signed by both the police officials as well
as the arrested person.

The arrested person has the right to meet his lawyer while in prison and during interrogation.

In addition to these, all the copies of the entire documentation must be sent across to the
Magistrate for his record which must also include the arrest memo.

 Section- 41C. Every arrest made by any police official must be informed to the District and the State
headquarters within 12 hours of any arrest which also needs to be displayed on the conspicuous
board.
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9. Explain the provisions relating to proclamation and attachment of property of person

absconding.

A majority of the criminals elope after the commission of a crime, to escape from the law. Had it
been the solution to save oneself from being punished for a crime or a wrong, commission of crimes
would have ended up becoming very common. However, there are several occasions when criminals
and defaulters surrender themselves before the Police or the Court. It is often because they realise
their mistake and other times, it is because the Court procures something that is most valuable to
them- ‘their property’.

The Code of Criminal Procedure (CrPC) is a procedural law. It elucidates the manner in which trials
shall be conducted. The property is attached to attract the physical presence of an accused when
they do not present themselves after the issuance of notices and warrants. But there are several
underlying factors like time, reasons behind the absence of the person, nature of property attached,
interested parties to a property and so on. This article is an illustration of the provisions governing
proclamation and attachment of property under CrPC.

Proclamation

In a legal sense, the term ‘proclamation’ refers to an official announcement. Here, it is one of the
ways of compelling a person to present himself before the Court of law.

Conditions to make a Proclamation

Section 82 of the CrPC has laid down the conditions when a person could be proclaimed as an
absconding offender. In situations when a Court has issued a warrant against a person and the Court
has a reason to believe that such person has either eloped or is concealing himself so as to ditch the
Court, the Court may issue an order of proclamation against such person, ordering them to appear
before the Court on a certain date, at a certain time.

Section 204(1) of The Code of Criminal Procedure, 1973 (CrPC) states that when the Magistrate who
is empowered to take cognizance is satisfied that the case is a:

1. Summons case, then he shall issue a summons for the attendance of the person accused.
2. Warrant case, then he may issue a warrant or a summons to present the accused before the
Court at a certain time.

Section 204(5) states that nothing in this section shall affect the provisions of Section 87 of the Code.
The said Section states that the Court that is empowered to issue a summons for a person’s
appearance may issue an arrest warrant against the said person by penning down the reason behind
the same, if:

3. The Court has a reason to believe that the person has absconded or would not abide by the
summons before or after the issuance of summons, but before the date when the concerned
person was required to present himself before the Court; or
4. The person fails to present himself before the Court and the summons has been served duly
on time and no reasonable excuse behind such failure has been given to the Court.

The Court can issue an order of proclamation, both before and after procuring evidence against the
person who is absconding. It should be noted that the person to whom the proclamation is
addressed shall be given a period of a minimum of 30 days to present themselves before the Court.

Under Section 82(4) IPC, when a person accused of commission of the offences punishable under the
below-stated Sections of the Indian Penal Code of 1860 (IPC) fails to appear before the Court as
required under the proclamation, the Court may, if it deems fit, declare such person as a ‘proclaimed
offender’ and make an announcement to that effect.

The manner in which Proclamation shall be made

Sub-section 2 of Section 82 of the CrPC specifies the manners in which a proclamation can be made.
They are as follows:

 The proclamation shall be read out publicly in a noticeable area that falls under the vicinity of the
residential address of the person or it shall be attested to some part of the person’s house or on
a nearby building. Either of those should be attested to someplace which is observable; or
 It shall be attached to a noticeable place in the Court.
 If the Court deems fit, it might give orders for publishing the proclamation on the newspaper
which is circulated in the vicinity of the person’s residence.

Punishment for non-appearance after the issue of Proclamation u/s 82 of the CrPC

The Criminal Law (Amendment) Act of 2005 inserted Section 174-A in the IPC. It states that when a
person fails to abide by the terms of the proclamation u/s 82(1) of the CrPC, he/she shall be
punished with imprisonment for a period of maximum three years.

In case of non-abidance to the proclamation issued under offences laid down u/s 82(4) of the CrPC
and the person has been announced as a proclaimed offender, the punishment shall be
imprisonment for a term that may extend to seven years and a fine could also be imposed on same.

Attachment of property - Section 83 of the CrPC

The Court that issues the proclamation might attach any movable or immovable property of such
person under Section 83 of the CrPC when it has a reason to believe (by an affidavit or other
evidence) that the person is making an attempt to:

1. dispose of the immovable property; or

2. Is going to transfer the immovable property either entirely or partially, to an area outside the
local jurisdiction of the concerned Court.

The Court’s order to attach the property would be authorized within the local jurisdiction. If the
attached property is located in another area, then it would be authorized after being endorsed by
the District Magistrate of the concerned area.

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10. For every distinct offence there is separate charge and separate trial. Discuss.
11. Define the term charge. For every distinct offence there is a separate charge and separate
trial. Discuss

Sections 218 to 222 of the Code provide for joinder of charges in one trial against the same accused.
Section 223 deals with joint trial against two or more accused persons. The basic rule section 218
lays down the basic rule relating to trial of offences and enacts that for every distinct offence there
must be a separate charge and a separate trial for each such charge.

Basic Procedure regarding charge & its trial

The initial requirement of a fair trial in criminal cases is a precise statement of the accusation. The
code seeks to secure this requirement, first, by laying down in Sections 211 to 214 of CrPC as to what
a charge should contain; next, stipulating in Section 218 of CrPC that for every distinct offence there
should be a separate charge; and lastly, by laying down in the same section that each charge should
be tried separately, so that what is sought to be achieved by the first two rules is not nullified by a
joinder of numerous & unconnected charges.

Section 218 reads as Separate charges for distinct offences

The object of section 218 is to save the accused from being embarrassed in his defence if distinct
offences are lumped together in one charge or in separate charges & are tried together. Another
reason is that the mind of the court might be prejudiced against the prisoner if he were tried in one
trial upon different charges resting on different evidence. It might be difficult for the court trying
him on one of the charges not to be influenced by the evidence against him on the other charges.
The strict observance of Section 218(1) may lead to multiplicity of trials, therefore exceptions, in
suitable cases, have been provided by Section 218(2) in Sections 219,220,221 & 223. The effects of
non-compliance with provisions regarding charge would be considered later.

It would however be useful to allude to the decision of the Supreme Court in context of non-
compliance with Section 218. In every case, in which a departure from the requirements of Section
218 has occurred, the question before the courts is, whether the omission to frame the required
charge has or has not in fact occasioned a failure of justice by prejudicing the accused in his defence,
& whether he has thus been deprived of a fair trial.

A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be
separately charged and separately tried for the theft and causing grievous hurt.
Power of Court to order separate trial in cases where joinder of charges or of offenders is
permissible

The basic rule regarding charge is that for every distinct offence there shall be a separate charge &
for every such charge there shall be separate trial. The only exceptions recognized are contained in
Sections 219,220,221 & 223 of CrPC. Therefore separate trial is the rule and the joint trial is an
exception. The sections containing the exceptions are only enabling provisions. A court has got the
discretion to order a separate trial even though the case is covered by one of the exceptions
enabling a joint trial.

A joint trial of a very large number of charges is very much to be deprecated even though it is not
prohibited by law. A separate trial is always desirable whenever there is risk of prejudice to the
accused in a joint trial. The Supreme Court has taken the view that it is the option of the court
whether to resort to Section 219,220 & 223 of the Code or whether to act as laid down in Section
218 and that the accused has no right to claim joinder of charges or of offenders.

Power of court to order separate trial in cases wherein joinder of charges or of offenders is
permissible

The general rule in case of charges is that there shall be a separate charge for every distinct offence,
which shall be tried separately. But, Sections 219, 220, 221 and Section 223 carve out the exceptions
to this basic rule. In simpler words, a separate trial is a rule while a joint trial is its exception.

The provisions regarding the exceptions have only enabling nature, and it is at the discretion of the
Courts whether or not to apply them to a particular case. In the case of Ranchhod Lal v. State of
Madhya Pradesh, it was held that it is at the discretion of the court whether to apply Section 219,
Section 220 and section 223 of the Code of Criminal Procedure, 1973 or resort to Section 218. The
accused has not been given this right to resort to joinder of charges.

The question regarding the misjoinder of charges and joint trial for distinct offences was answered
by the Supreme Court in the case of Union of India v. Ajeet Singh (2013). It was held by the court
that the principles underlying the provisions in the Code of Criminal Procedure, 1973 only act as a
guiding principle.

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12. What is charge? State the consequences of alteration of charge.

Charge means informing the accused person of the grounds on which the accused is charged. A
charge is defined under Section 2(b) of the Criminal Procedure Code, 1973 which states, the charge
includes any head of the charge when the charge contains more than one head. The case of V.C
Shukla v. State (1980) explains the purpose of framing charge is to give intimation to the accused,
which is drawn up according to the specific language of the law, and giving clear and unambiguous
or precise notice of the nature of the accusation that the accused is called upon to meet in the
course of a trial.

Alteration of charge and the procedure to follow such alteration

Section 216 of Cr.PC explains that courts shall have the power to alter or add to charge at any time
before the judgment is pronounced.

The trial court or the appellate court may either alter or add to the charge provided the only
condition is:
  Accused has not faced charges for a new offence.
 Accused must have been given the opportunity of meeting and defending the charge against
him.

After such alteration or any addition made to the charge, the charge shall be explained to the
accused as to enable him to prepare to meet the fresh challenges.

If the court concludes that the alteration or addition of the charge is likely to be prejudiced to the
accused or the prosecutor then the court may proceed with the original trial or adjourn it. The case
shall not move forward unless the sanction is obtained in respect of the facts constituting the
offence.

Provisions dealing with ‘charge’

A charge is dealt with under Chapter 17 of the Criminal Procedure Code, 1973.

Section 211 to 214 Contents of Charge

Section 216 to 217 Powers of the court to alter the charge

Section 218 Basic rule

Section 219, 220, 221 and 223 Exceptions

Section 224 Effects of withdrawal

Section 215 and 464 Effects of errors

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13. When can the court tender pardon to an accused under CrPC? Can it be revoked?

Accomplice is a witness to the crime, who is connected with the crime by any unlawful act or
omission, with his active or inactive participation to the crime some way or the other and he/she
admits his/her active involvement in the crime.

Section 133 of the Indian Evidence Act, 1872 talks about accomplice witness. According to it, an
accomplice is a competent witness against an accused person. Usually, crimes are committed in
sheltered or private places. In such cases, the police pick up one of the suspects, that have been
arrested and who are least guilty and asks them to give all the information regarding the crime, how
it was committed and offers him surety to be pardoned for the crime if he delivers true information.

“It was held in R.K. Dalmia V. Delhi administration that an accomplice is a person who participates in
the commission of the actual crime charged against the accused.”

According to Section 306 and Section 307 of the Criminal Procedural Code, an accomplice is a
competent witness to the crime. According to Article 20(3) of the Constitution of India of the
accused shall be compelled to act as a witness.

Principles to be followed for the grant of pardon are as follows-

1. Trial must be initiated.

2. Guilty shall not be proved.
 3. An accomplice shall agree to be approved, there must be an agreement to be an approver.
4. The approver becomes the witness if the pardon is granted by the court.
5. If he violates these terms, no pardon shall be granted.
6. He shall not be released before the decision or order.

Grant of pardon under CrPC, 1973

Section 306: Tender of pardon to an accomplice.

Purpose

To obtain the evidence of the person who may be directly or indirectly related to the offence

Competency

Authorities under this section are empowered to tender a pardon.

 A chief judicial magistrate or the metropolitan magistrate.

 Judicial magistrate first class.

Applicability

 Any offence which is triable by Court of Special Judge under the Criminal Amendment Act,
1952 or by Session Court.
 An offence which is punishable with the imprisonment extending to 7 years or more severe
sentence.

Conditions

To make a valid and full disclosure of the whole of the circumstances within his knowledge related to
the offence and to give information regarding the person whether as the abettor or the principal
who is related to the offence.

Duties of Magistrate

It is the duty of every Magistrate to record

 The reason for doing so.

 Whether the person to whom tender was made has accepted it or not.
 To furnish the copy of record free of cost to the accused.

A person accepting a tender shall be examined in Court of the Magistrate taking the cognisance of
an offence as the witness. He is detained in custody until the disposal of the trial or unless he is
already on bail.

Final Stage

When the person to whom tender was made had accepted the bid of pardon and has been
examined as the witness in the court by taking the cognisance of an offence shall without any
further inquiry in the case.

Send it for a trial as per the following scenarios.

 If the offence is triable by Court of the session or if the Magistrate who is taking the
cognisance of offence is Chief Judicial Magistrate or to the Session Court.
  If the offence is triable by Special Judge appointed under the Criminal Amendment Act, 1952
or to the special judge.
 In another case to make over the case to Chief Judicial Magistrate who shall try the case
himself.

Offences

Section 306 talks about the offences for which pardon can be granted. It says that the offences
punishable with imprisonment extending to seven or more years are covered under this section.

Stage

Pardon to accomplice can be tendered at any juncture before the pronouncement of the judgement.

In the case of Dipesh Chandal vs Union of India

The Court stated that the accused cannot claim the immunity from the prosecution for any offence
which is of economic nature.

In the case of Konajeti Rajababu vs the State of A.P

The court held that the divisional court has a jurisdiction to determine whether the Magistrate who
has tender a pardon has acted judiciously or not.

Section 307- Power to direct tender to pardon

At any time after the commitment of the case, but before the judgement is passed, the court to
which matter is committed may with the view to obtain the evidence of any person who may be
directly or indirectly related to an offence or privy to an offence, tender a pardon on the same
condition to such person.

In the case of K.Anil Agarwal vs the State of Kerala

The High court of Kerala stated that a statement recorded under section 164 of Cr.P.C cannot be the
condition for granting a pardon and the Session Court can tender a pardon under section 306(1) on
the same conditions as specified in Section 306(1).

In the case of Lt Commander Pascal Fernades vs the State of Maharashtra

The Supreme Court held that generally, it is prosecution who asked for the tendering to pardon but
in the case when the accused applies directly to the Special Judges, he must first send the request to
the prosecuting agency.

Competency

Authorities who can exercise power is mentioned under section 307. The following magistrates can
confer the power given by the code,

 The chief judicial magistrate or the metropolitan magistrate.

 Judicial magistrate first class.
 Session Court
 Special judge

Persons
The qualification for becoming an approver under both of these sections is one, and the same and
moreover can be tendered under the same conditions.

Only those persons who have committed certain specified offences can only receive a pardon from
the court and there shall be a true and full confession of the crime by the approver to be able to get
the pardon. The accomplice who has more charges of crime on him or has such past records of
various commitments of heinous crimes then he cannot be pardoned by the court.

The person with lessor participation in the crime may be tendered pardon by the court, to punish
the main culprits. The person shall make full and valid disclosure of the facts and circumstances of
the crime within his knowledge to get tender to pardon by the court.

******************************************************************* ***

Answer copied from another source.

S. 306 Tender of pardon to accomplice

Description

1. With a view to obtaining the evidence of any person supposed to have been directly or indirectly
concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a
Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence,
and the Magistrate of the first class inquiring into or trying the offence, at any, stage of the inquiry
or trial, may tender a pardon to such person on condition of his making a full and true disclosure of
the whole of the circumstances within his knowledge relative to the offence and to every other
person concerned, whether as principal or abettor, in the commission thereof.

2. This section applies to—

a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge
appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).
b) Any offence punishable with imprisonment which may extend to seven years or with a more
severe sentence.

3. Every Magistrate who tenders a pardon under Sub-Section (1) shall record—

a) his reasons for so doing;

b) Whether the tender was or was not accepted by the person to whom it was made, and shall,
on application made by the accused, furnish him with a copy of such record free of cost.

4. Every person accepting a tender of pardon made under Sub-Section (1)—

a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the
offence and in the subsequent trial, if any;
b) Shall, unless he is already on bail, be detained in custody until the termination of the trial.

5. Where a person has accepted a tender of pardon made under Sub-Section (1) and has been
examined under Sub-Section (4), the Magistrate taking cognizance of the offence shall, without
making any further inquiry in the case;

a) Commit it for trial—

i. to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate
taking cognizance is the Chief Judicial Magistrate;
 ii. to a Court of Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of
1952), if the offence is triable exclusively by that Court;

b) In any other case, make over the case to the Chief Judicial Magistrate who shall try the case
himself.

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14. Explain the provisions of CrPC relating to security for keeping good behaviour and peace.
15. Discuss the provisions of CrPC relating to security for keeping peace and good behaviour.

Chapter 8 of the criminal procedure code discusses the provisions related to the security for keeping
the peace and for good behaviour. In the essence of the code, here security refers to furnishing
guarantee to the satisfaction of the Court that a certain conduct is mandatory to be maintained for a
certain period by a certain person concerning a certain thing. This procedure takes place in the
shape of a bond to be executed by such person from whom security is demanded. It may occur with
sureties or without sureties.

The law has vested this discretionary power upon the court. It is not an administrative proceeding.
Rather it is a judicial proceeding. Neither it is repugnant to the Fundamental rights under the
Constitution nor it is discriminatory in character. It is a give and take procedure where the accused
gives the security while the security is taken by the court. Such security proceedings are taken after
undergoing a judicial inquiry. Hence security proceedings are judicial proceedings

An exhaustive and comprehensive procedure has been provided by the Code on the subject of
Security covering various circumstances which the legislative wisdom could encompass at the time
of enacting this law in its 21 provisions, divided into three parts. The following sections enumerate
the provisions related to the topic:

A. Section 106– Security for keeping the peace on conviction.

B. Section 107– Security for keeping the peace in other cases.
C. Section 108-Security for good behaviour from persons disseminating seditious matters.
D. Section 109– Security for good behaviour from suspected persons.
E. Section 110– Security for good behaviour from habitual offenders.

In Madhu Limaye & Ors vs. Sub-divisional magistrate, Monghyr & Ors., the constitutional validity of
chapter VIII was challenged and gist of the chapter that it is for prevention of crimes and prevention
of public tranquillity and to curb breach of peace was held.

A) Section 106: Security for keeping the Peace on Conviction:

1. Section 106 of the Code of Criminal Procedure provides that a Court of sessions or a Magistrate of
the First Class may, at the time of passing sentence on a person convicted of certain specified
offences, order him to execute a bond for keeping the peace for any period not exceeding three
years. It differs from Sections 107 to 110, as the order must be passed at the same time when there
is a conviction and passing of a sentence. The court may order the bond to be executed with or
without sureties.

2. The offences in connection with which security can be taken under the section are:-

a) Except an offence punishable under section 153 A or section 153 B or section 154, any
offence punishable under chapter VIII of the Indian Penal Code,
b) Offences consisting of, or including assault or using criminal force or committing mischief;
 c) Offences of criminal intimidation
d) Any other offence which caused or was intended or known to be likely to cause a breach of
peace.

3. In passing an order under section 106 of the Code of Criminal Procedure, it has to be seen, not
whether the persons concerned did commit a breach of the peace, but whether they were convicted
of an offence which necessarily involves a breach of the peace.

4. Under section 106 evidence of past conduct is not legal evidence for an order.

5. Section 106(3) provides, that, if the conviction is set aside on appeal or otherwise, the bond
executed shall become void. Also, the Appellate Court can, while upholding the conviction for the
specific offence, set aside the order for security passed against the accused.

6. Under sub-section (4), power is given to the appellant court and the High Court in revision to
demand security under the section.

(i) In prosecutions for any of the offences referred to in clauses (a), (b) and (c) above the need to
move the trial Magistrates to bind over the accused concerned under Section 106 should be
carefully examined and timely action taken in cases in which it is warranted. In respect of persons so
bound over, rowdy sheets should be opened and their movements periodically checked and noted.
Amongst other information, the names and addresses of the sureties should be mentioned in the
sheets.

ii) If during the term for which an accused is bound over under Section 106, breaks the peace, steps
should promptly be taken against him and his sureties and the Court moved to forfeit their bonds.

B) Section 107 OF Cr.P.C – Security for keeping the peace in other cases

(1). An Executive Magistrate who is informed that any person is likely to commit a breach of the
peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a
breach of the peace or disturbance of the public tranquillity, may, under-Sub-Section (1) of Section
107 of the Code of Criminal Procedure require such person to show cause why he should not be
ordered to execute a bond, with or without sureties, for keeping the peace for a period not
exceeding one year.

(2)

(a) Section 107 is thus an effective means for preventing breaches of the peace or disturbances of
public tranquillity in connection with religious processions, festivals, fairs, elections, political
movements or other disputes between factions. It is not essential in every case that there should be
two parties against each other. It must however, be clear that a breach of the peace is imminent,
unless averted by proceedings under the section.

(b) Before starting proceedings under this section, the Police should collect evidence, oral and
documentary, of persons (including Police Officers) acquainted with the circumstances of the case,
regarding:

i. The specific occasion on which the breach of the peace is anticipated;

ii. The existence of a cause, quarrel or other circumstances which is likely to lead to the breach
and the period of its duration;
iii. The declaration of the parties indicating their determination to carry out, or to prevent,
certain things in connection with the subject-matter of the quarrel;
 iv. The strength and the following of the party or parties, and
v. Attempts made for conciliation with their results.

(c) It is not necessary to record elaborate statements of witness, short notes being sufficient.
However, the provisions of Section 162 of the Code of Criminal Procedure are not applied to any
statements or notes made in connection with such an enquiry. In fact, the enquiry is not governed
by any of the provisions of Chapter XII of the Code of Criminal Procedure.

(3) Section 151 of the Code of Criminal Procedure empowers a Police Officer to arrest without
warrant any person designing to commit a cognizable offence, if, in his opinion, the commission of
the offence cannot otherwise be prevented. If, then, action under section 107 is contemplated
against the arrested person, he may be produced before an Executive Magistrate for taking action.

The Magistrate may, under Section 116 order the execution of an interim bond, with or without
sureties, for keeping peace until the conclusion of the inquiry may detain him in custody until such
bond is executed or, in default to execution, until the inquiry is concluded.

The provisions of Chapter XXXIII of the Code of Criminal Procedure relating to bail do not apply to an
order of detention passed under Sub-Section (4) of Section 107 Cr.P.C or Sub- Section (3) of Section
116 Cr.P.C. any person who has been arrested by the Police under section 151 of the Code of
Criminal Procedure for the initiating of security proceedings or against whom security proceedings
have already been started, is as a rule entitled to be released on bail under Section 436 Cr.P.C. But
the proviso to Section 436 states that “nothing in this section shall be deemed to affect the
provisions of Sub-Section (3) of Section 116 Cr.P.C. These are, therefore special provisions which are
not affected by Section 436, 437, 439 and 440 Cr.P.C.

Thus, superior courts interfere in the matter of release on bail with an order passed by a competent
Magistrate acting under Sub-Section (4) of Section 107 Cr.P.C. This, obviously, is a very useful
provision for those entrusted with the task of maintaining law and order and may well be resorted to
for the detention of person arrested under Section 151 Cr.P.C., if that is considered necessary for the
public safety or in the interest of the public peace.

C) Section 108 of CrPC Security for good behaviour from persons disseminating seditious matters:

1) When any Executive Magistrate receives information that there is within his local jurisdiction any
person who, within or without such jurisdiction.-

(i) In any case either orally or in writing or in any other manner, intentionally disseminates or
attempts to disseminate or abets the dissemination of.-

a) Any matter the publication of which is punishable under section 124A or section 153A or
section 153B or section 295A of the Indian Penal Code ( 45 of 1860 ), or
b) Any matter concerning a Judge who acts or purports to act in the discharge of his official
duties which amounts to criminal intimidation or defamation under the Indian Penal Code.

(ii) In any case is making, producing, publishing or keeping for sale, imports, exports, conveying,
selling, letting to hire, distributing, publicly exhibiting or in any other manner is putting in circulation
any obscene matter such as is referred to in section 292 of the Indian Penal Code ( 45 of 1860 ), and
the magistrate opines that there is sufficient ground for proceeding, then he may, in the manner
provided, require such person to show cause why he should not be ordered to execute a bond, with
or without sureties, with regard to his good behaviour for such period, not exceeding one year, as
the Magistrate thinks fit.
(2) It is to be kept in mind that under this section no proceeding shall take place against the editor,
proprietor, printer or publisher of any publication which is registered under, and edited, printed and
published in conformity with the rules laid down in the Press and Registration of Books Act, 1867 (25
of 1867), with reference to any matter contained in such publication except by the order or under
the authority of the State Government or some officer empowered by the State Government in this
behalf.

D) Section 109 of CrPC– Security for good behaviour from suspected persons:

In cases where any Executive Magistrate receives information that within his local jurisdiction there
is a person taking precautions to conceal his presence and that there are reasons to believe that it is
being done by him with a view to committing a cognizable offence, the Magistrate, in such case may
in the prescribed manner, may require such person to prove and show cause that why he should not
be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not
exceeding one year, as the Magistrate thinks fit.

Before a person can be proceeded against under Section 109 of the Code of Criminal Procedure, he
must be found to be taking precautions to conceal his presence and there must be reason to believe
that he is taking the precautions with a view to committing any offence. Merely because a person
hid his face by means of a cloth when his presence was noticed by somebody going on the road at
midnight, it cannot be said that he was taking precautions to conceal his presence.

Again, from the mere fact that at the sight of the Police Officer he began to move briskly and when
called out he ran, it cannot be said that he was taking precautions to conceal himself. It has also
been held that by mere possession of a crow-bar by a person without any precautions being taken to
conceal his presence, the requirements of Section 109 (a) of the Code of Criminal Procedure cannot
be said to have been satisfied. The person proceeded against must have taken precautions to
conceal his presence with a view to committing an offence. Mere disinclination for the society of the
police amounts to no concealment. Mixing with the crowd or moving in and out of the crowd or
‘dashing’ into it in a railway shed does not amount to taking precautions to conceal one’s presence.
2137.

The following illustrations are given as examples of cases coming under Section 109 (a) of the Code
of Criminal Procedure.

(i) A person concealing himself at night with his companions in hedges near a village, giving wrong
name and address and being unable to explain his presence in hedges at night with house-braking
implement and refusing to disclose the identity of his companions who had escaped into jungle.

(ii) The respondent giving false name and address to the police was seen attempting to feel the
pockets of crowds at the railway station, appearing originally at 9 a.m. and suddenly disappearing for
two hours and re-appearing at 11 a.m. 2138. As regards concealment, it has been held that it need
not be continuous. Even a single attempt at concealment may be enough. 2139. Proceedings under
both the sections (Section 109 and 110 of the Code of Criminal Procedure) cannot be taken against
one and the same individual at one and the same time.

Reports under Section 109 should be submitted before the Magistrate (Executive), observing the
following principles:-

(i). Once information is laid before the Magistrate, it cannot be withdrawn. Section 321 of the Code
of Criminal Procedure has no application to security proceedings;
(ii). Copies of statements of witness recorded by the Police Officer need not be provided to the
respondent, as the information laid before a Magistrate is not a Police report coming within the
purview of Section 173(4) of the Code of Criminal Procedure; and

(iii). Under Section 116(2) of the Code of Criminal Procedure as for as a summons case has been
prescribed for all inquiries to Sections 107, 109 and 110 of the Code of the Criminal Procedure. 2141.
The Superintendent of Police should specially ensure that security proceedings initiated under
Sections 107, 109 and 110 of the Code are concluded with utmost expedition in the courts. The
Senior Superintendent of Police (Law & Order) should verify this during the monthly crime meeting.

The court before which proceedings are initiated should be promptly moved for an order under Sub-
Section (3) of Section 116 of the Code pending completion of the inquiry under Sub- Section (1) of
the Section. The Superintendent should ensure that such action is unfailingly taken by the officer
conducting prosecution or by the concerned Station House Officer.

When there are objections to raise the sureties tendered in pursuance of an order made under (3) of
Section 116 or Section 117 of the Code, the Police should raise without delay.

Further inquiry cannot be ordered under Section 398 of the Code of Criminal Procedure into the case
of a person discharged under Section 118 of the Code of Criminal Procedure. In Such cases, the
District Magistrate has power under Section 401 of the Code of the Criminal Procedure to report for
the order of the High Court.

E) SECTION 110 OF CR.P.C. – Security for good behaviour from habitual offenders:

Security cases under section 110 of the Code of Criminal Procedure against local habituals should be
built up on details recorded in the Station Crime History as the result of careful watching by the
Police. It should be very exceptional for a local criminal for whom a History Sheet has not been
opened, to be put up under these sections.

The section requires that the person proceeded against should be within the local limits of the
Magistrate’s jurisdiction (Executive Magistrate) at the time when proceedings are taken against him.
Otherwise, the Magistrate cannot take action under this section. Temporary presence within the
limits of the Magistrate’s jurisdiction is sufficient. But, then the presence must be at the time when
the proceedings are initiated.

(1) The object of this section also is preventive and not punitive, and action under it is not intended
as a punishment for past offences. It is aimed at protecting society from dangerous characters
against the perpetration of crimes by placing them under such substantial but not excessive security
as would prevent them from resorting to evil courses.

(2) To sustain a charge under clause (a), the person proceeded against must be proved to be by habit
a robber, house-breaker, thief or forger. The word “habit” implies a tendency or capacity resulting
from the repetition of the same acts.

(3) To substantiate a charge under Clause (b), it must be proved that the person proceeded against is
a habitual receiver of stolen property knowing the same to be stolen.

(4) Clause (c) of section 110 Cr.P.C. is designed to meet the cases of persons who assist the thief
after theft by harbouring him, protecting him from discovery and arrest, and helping him to dispose
of his property. The acts, which amount to harbouring must be done with an intention of screening
the offender from legal punishment or of preventing him from being apprehended.
(5) Clause (d) of section 110 Cr.P.C. prescribes certain offences, the habitual commission or
abetment of which, or the attempt to commit which, is ground for taking action under this section.

(6) Clause (e) contemplates taking security when one habitually commits or attempts to commit or
abets the commission of offences involving breach of the peace. The following are the offences
within the purview of this clause:

i. Offences punishable under Chapter VIII of the Indian Penal Code, other than those
punishable under sections 143, 149, 153-A and 154, Indian Penal Code,
ii. Assault or other similar offences, and

(iii) Criminal intimidation.

This can be effectively used in curbing the activities of factionists.

(7). Under Clause (g), “a man of desperate and dangerous character” means a person who shows
such a reckless disregard for the safety of the person or property of his neighbours that his being at
large without security would be detrimental to the community.

(8). Section (2) of Section 41 Code of Criminal Procedure empowers the Police to arrest without
certain classes of habitual offenders described in section 110 of the Code of Criminal Procedure.
Proceedings under Section 110 of the Code of Criminal Procedure may follow an arrest under
Section of 41 (a) of Code of Criminal Procedure.

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16. Explain the provisions of CrPC relating to the transfer of criminal cases.
17. Explain the provisions regarding the transfer of criminal cases as provided under the code of
criminal procedure.

The procedure to be mandatorily followed while pursuing a case is briefly dealt with under the Code
of Criminal Procedure, 1973. Chapter XXXI of the Code contains the provisions related to the transfer
of the criminal cases from Section 406 to 411. The main reason behind the incorporation of transfer
of cases is that of delivering justice to people and to achieve the same, the provisions regarding the
right to appeal is also provided. The overburden of pending cases and appeals results in delayed
justice thus, it creates unrest in judicial processes. So to address this problem, certain provisions
have been brought to transfer the criminal cases from one court to another. The right of appeal in
the Supreme Court is available only in exceptional cases. As per the Code of Criminal Procedure, the
original court of criminal appeal in the High Court.

1. Transfer of cases and appeals by SC (406)

2. Transfer of cases and appeals by HC (407)
3. Transfer of cases and appeals by the sessions judge (408)
4. Withdrawal of cases and appeals by Sessions Judges (409)
5. Withdrawal of cases by Judicial Magistrates (410)
6. Making over or withdrawal of cases by Executive Magistrates (411)

Transfer of cases and appeals by SC (406)

Section 406 of the Code of Criminal Procedure confers the power upon the Supreme Court to
transfer cases and appeals. The Code grants the widest discretionary powers to the Supreme Court
to transfer any case or appeal lying before the High Court to any other High Court of any state in the
country in order to meet the ends of justice and fulfil the principle of natural justice. The application
requesting the transfer of any case or appeal pending before the High Court can be moved to the
Supreme Court by any of the following persons:

 Who is under the apprehension of unfair trial by the court; or

 Who is unable to find any proper justice being served to himself; or
 Attorney General or Advocate General of India.

The power granted by the Code under Section 406 to the Supreme Court is purely discretionary in
nature and the applicant is under no obligation to conclusively establish that in case the transfer
does not take place then fair justice will not take place and the applicant is only expected to
reasonably substantiate the contentions made by him under the application he has submitted to the
Supreme Court. The application under Section 406 of the Code is made by the interested party
should always be in the form of motion supported by an affidavit or affirmation, except in the cases
where the applicant is the advocate general or attorney general of the country.

The power of the Supreme Court to transfer the cases and appeals also extends to the transfer the
cases from any subordinate court in the country where any matter is pending. However, the court
where the case is pending can ensure that the Supreme Court, while transferring the case is taking
all the measures to uphold fairness and principles of natural justice. The parties in any suit are
always guaranteed the opportunity to bring to the notice of any court with appropriate jurisdiction
that there are reasonable grounds which uphold the apprehension in the mind of the person that
certain factors inhibit his right to a fair trial.

In Vishwanath Gupta v. State of Uttar Pradesh, the applicant filed an application for the transfer of a
case on the contention that he was under the apprehension that he wouldn’t be able to engage a
counsel in the court where a case against him was already pending in the case. However, the District
Bar Association submitted an application assuring the court that a defence counsel from among the
members of the Bar Association would be made available to the applicant. The Supreme Court held
the application to be invalid dismissing the prayer for the transfer.

Grounds for transfer of appeal and cases

1. To uphold the spirit of justice: The ultimate goal of any judicial system on the earth is the
deliverance of justice and protection of the rights of every person. The courts are highly revered
institutions of justice with people having high expectations of justice which is sought after by
the aggrieved party. Therefore, the court is under high moral obligations for keeping the
machinery of justice, equity and good conscience alive.
2. Recommendations made by the superior judicial officers: The courts while deciding whether to
transfer the cases and appeals from one court to another takes into consideration the inquiries
and findings as revealed by the reports carried on by the senior judicial officers such as Chief
judicial magistrate or any sessions judge.
3. Upon request by the trial court: Where the court before which the matter is pending deems the
case to be outside its scope of jurisdiction due to involvement of a substantial question of law
which is outside its purview. It may request the higher judiciary to transfer the case.
4. Lack of complete jurisdiction: In certain cases, the court has limited jurisdiction over the subject
matter of the case before it. In such cases of shared or limited juridical issues, the court trying
the case has the liberty of transferring the case to the court which possesses the conclusive
jurisdiction of trying the matter. This process ensures that complete justice has been done to
the parties before the court.
 5. Differences between the party and the judicial officer: In circumstances where there is already a
presence of differences between the judicial officer and any of the party the chances of an
unfair and partial trial being carried out are relatively higher. Therefore, the party apprehending
such consequences of carrying on of the trial is granted the opportunity by the judicial system
to apply for transfer of the case.
6. Infringement of principles of natural justice: Where the proof of continued contravention of the
principles of natural justice by any court or judicial officer is rendered by a party to the Supreme
Court, then in order to uphold the principles of natural justice, the court may order the transfer
of the case.

Transfer of cases and appeals by HC (407)

Section 407 of the Code of Criminal Procedure empowers the High Courts to transfer cases and
appeals. The very purpose of Criminal law is the free and fair dispersal of justice which is not
influenced by any extraneous considerations. Section 407 of the Code of Criminal Procedures
enables the party to seek for transfer of case anywhere within the state while Section 406 of the
Code enables the party to seek transfer of the case anywhere in the country.

Circumstances in which HC may order the transfer of a case or appeal

The High Court has the authority to transfer the cases when it is satisfied that:

 The right to a fair and impartial trial which is guaranteed under Article 21 of the Indian
Constitution cannot be exercised by any of the party to the suit if the case is tried by any of the
courts which is subordinate to it;
 Certain questions pertaining to the present matter in the court are of unusual difficulty;
 The transfer of the appeal or the case is made inevitable by any of the provisions under the
Code;
 The order of transfer will be in the interest of the general convenience of the parties or
witnesses involved in the suit.

Transfer of cases and appeals by the sessions judge (408)

The Sessions judges are also conferred with the power to transfer cases and appeals by the Code
under Section 408.

Subsection 1 of Section 408 provides that whenever a Sessions Judge finds it expedient to transfer a
case to meet the ends of justice. He has the authority of transferring such cases from one criminal
court to another criminal court within his sessions division;

Subsection 2 of Section 408 provides the instances on which the Sessions court can transfer the
cases. The Section provides that the authority to transfer the cases with the Sessions Court can be
exercised by it at the instance of the report in this regard submitted to it by the lower court,
application in this regard submitted by the interested party or the court may exercise the power at
its own discretion;

The provisions under subsections (3), (4), (5), (6), (7) and (9) of section 407 shall be made applicable
to the Sessions Judge while making any order in regards to the power vested on it by Subsection 1 of
Section 408 in the same way as they are made applicable to the High Court while it exercises the
provisions mentioned under subsection 1 of Section 407 of the Code.

Withdrawal of cases and appeals by Sessions Judges (409)

Section 409 of the Code of Criminal Procedure contains provisions regarding the power of the
Sessions Court to withdraw the cases and appeals.

 Subsection 1 of Section 409 provides that the Sessions Judge, not only has the power to
withdraw any case or appeal but also has the power to recall any case or appeal which he had
earlier transferred to any Additional Sessions Judge or Chief Judicial Magistrate who is
subordinate to him;
 Subsection 2 of Section 409 provides that the power of recalling the cases by the Sessions Judge
from any Additional Sessions Judge can be exercised by him at any time before the
commencement of the trial of the case or hearing of the appeal before the court of Additional
Sessions Judge;
 Subsection 3 of Section 409 provides the course of action which can be followed by the Sessions
Court if it exercises the power vested on it by Subsection 1 and 2 of Section 409. Accordingly,
after the recall of an appeal is made by the Sessions Judge, he may either try the case or hear
the appeal on his own, or again transfer the case or the appeal to some other court in
accordance with the provisions of the Code.

In Surendra Kumar vs Vijayan, the court held that the authority of transferring such cases from one
criminal court to another criminal court within his sessions division conferred on the Sessions Judge
by Section 408(1) of the Code is an independent judicial power and is not subject to any bar
provided under Subsection 2 of Section 409.

Withdrawal of cases by Judicial Magistrates (410)

Section 410 of the Code of Criminal Procedure contains provisions regarding the withdrawal of cases
by Judicial Magistrate. According to the Section:

 Subsection 1 of Section 410 of the Code grants the powers to the Chief Judicial Magistrate to
transfer any case from any Magistrate subordinate to him as well as the power to recall any case
which he had earlier transferred to any Magistrate subordinate to him. When the Chief Judicial
Magistrate recalls a case, he has the authority to himself hear and try such case or he may refer
the case to any other Magistrate who is competent to hear and try the case;
 Any Judicial Magistrate has the authority to recall any case which he had transferred to any other
Magistrate under Section 192 of the Code and may inquire into the case on his own.

Making over or withdrawal of cases by Executive Magistrates (411)

Section 411 of the Code contains provisions about the withdrawal of cases by the Executive
Magistrate. The Section provides that any District Magistrate or Sub-divisional Magistrate has the
authority to:

 Withdraw any proceedings which started before the court to any Magistrate who is subordinate
to it for the disposal of the case;
 Withdraw or recall any case which he had earlier transferred to any Magistrate subordinate to it
and dispose of the proceedings of the case himself or refer the same for disposal to any other
competent magistrate.

Transfer of cases does not alter the nature of the trial or relief which is provided to the parties to the
suit. It is a mechanism ensuring the parties are rendered justice. The authority of transferring of
criminal cases from one court to another is conferred upon Supreme Court, the High Court and the
Sessions Court. However, the powers with each of the institute differ. If the party to the suit
enforces their rights guaranteed to them under the Sections and it is found that the intention of the
party is vexatious then the courts have the discretion of ordering compensation to be paid by such
person to the person who has opposed it. The sum of compensation that the court may order differs
from courts to courts. Cases can be recalled or withdrawn by the Sessions Judge, Judicial Magistrate
and Executive Magistrate. The order made under these sections has to be recorded with the reasons
for making these orders. There should be reasonable apprehension that justice would not be met by
the court under jurisdiction then only the case can be transferred.

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18. Explain the provisions relating to compounding of offences.

Compoundable offences

Section 320 of the CrPC looks at the compounding of offences. Compoundable offences are those
offences where, the complainant (one who has filed the case, i.e. the victim), enter into a
compromise, and agrees to have the charges dropped against the accused. However, such a
compromise should be a "Bonafide," and not for any consideration to which the complainant is not
entitled to.

To compound means “to settle a matter by a money payment, in lieu of other liability.” In criminal
law, the power to compound the offence is at the discretion of the victim. Legal provisions regarding
compounding of offences are mentioned under Section 320 of the Code of Criminal Procedure, 1973.
The object of Section 320 of the Code is to promote friendliness between the parties so that peace
between them is restored.

Compoundable offences are less serious criminal offences and are of two different types mentioned
in tables in Section 320 of the Criminal Procedure Code. Compoundable offences are those offences
where, the complainant (one who has filed the case, i.e. the victim), enter into a compromise, and
agrees to have the charges dropped against the accused. Section 320 of the code deals with
compounding of offences. These are less serious in nature and are of two different types as
mentioned under S. 320 in two different tables:

1. Court permission is not required:

These are the offences, compounding of which do not require prior permission of the court. The
offences punishable under the Sections of the Indian Penal Code, 1860 specified in the first two
columns of the Table next following may be compounded by the persons mentioned in the third
column of that table.

Examples of these offences are:

 adultery,
 causing hurt,
 defamation,
 Criminal trespass, etc.

2. Court permission is required:

These are the offences, compounding of which require prior permission of the court. The offences
punishable under the Sections of the Indian Penal Code, 1860 specified in the first two columns of
the Table next following may, with the permission of the Court before which any prosecution for
such offence is pending, be compounded by the persons mentioned in the third column of that
Table. Few examples of such offences are:
Examples of such offences are:

 theft,
 criminal breach of trust,
 voluntarily causing grievous hurt,
 assault on a woman with the intention to outrage her modesty,
 Dishonest misappropriation of property amongst others, etc.

Application for compounding the offence shall be made before the same court before which the trial
is proceeding. Once an offence has been compounded it shall have the same effect, as if, the
accused has been acquitted of the charges.

In Gian Singh v. State of Punjab, wherein the constitution bench had observed that compounding
powers should be exercised by the Court considering the social impact of the crime in question vis-à-
vis its individual impact, as decisive criterion for quashing power in such cases.

Other provision governing Compounding of Offences-

The general rule embodied under sub section (3) provides that when any offence is compoundable
under Section 320 of the Code, the abetment of such offence or an attempt to commit such offence
(when such attempt is itself an offence) may be compounded in like manner. The Supreme Court, in
the landmark case of Mahesh Chand vs. State of Rajasthan, gave permission to compound attempt
to commit murder offence under Section 307 IPC.

As per Sub Section (5) of Section 320, when the accused has been committed for trial or when he has
been convicted and an appeal is pending, no composition for the offence shall be allowed without
the leave of the Court to which he is committed or, as the case may be, before which the appeal is to
be heard. Application for compounding the offence shall be made before the same court before
which the trial is proceeding.

Sub Section (6) provides that a High Court or Court of Session acting in the exercise of its powers of
revision under Section 401 may allow any person to compound any offence which such person is
competent to compound under Section 320 of the Code.

Sub section (7) provides for a limitation to compounding of offences. It says that no offence shall be
compounded if the accused is, by reason of a previous conviction, liable either to enhanced
punishment or to a punishment of a different kind for such offence.

Effect of Compounding of an Offence

Sub Section (8) prescribes that a compounding of offence under section 320 shall have the effect of
acquittal of the accused with whom such offence has been compounded.

Kulwinder Singh vs. State of Punjab & Another, High Court held that “the offence under sections 406
and 120-B I.P.C qua the present petitioners in both these revision petitions are compounded and the
conviction and sentence of the petitioners is set aside.”

Prohibition Regarding Compounding Of Offences

Sub section (9) bars any contravention from the provisions of Section 320. It prescribes that no
offence shall be compounded except as provided by Section 320 of the Code.

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19. Write a note on irregular proceedings.

Irregular proceedings means something which is not even or is not in shape and their criminal law
that aims to deliver Justice by pushing the guilty and by providing a remedy to de victim and under
Crpc there were some sections which deal with the legal provision of irregular processings section
460-466 there were consequences and in regular processing. There were some cases discussed
above in which an omission on an error in the procedure of trial was held to be made irregularities
did not vitiate the trial and were suitable under section 465 the code as it did not cause the failure of
justice.

The legal provisions relating to the irregular proceedings are embodied in Chapter XXXV, Sections
460-466 of the Code of Criminal Procedure. The chapter deals with the effect of irregularity in
proceedings before the criminal courts.

 Section 460– Irregularities which do not vitiate proceedings

 Section 461– Irregularities which vitiate proceedings
 Section 462– Proceedings in wrong place
 Section 463– Non-compliance with provisions of section 164 or section 281
 Section 464– Effect of omission to frame, or absence of, or error in, charge
 Section 465– Finding or sentence when reversible by reason of error, omission or irregularity
 Section 466– Defect or error not to make attachment unlawful

Irregularities which do not vitiate proceedings (Sec. 460)

Section 460 provides for legal provisions dealing with irregularities which do not vitiate proceedings.
It cures nine kinds of irregularities, if only when they are done in good faith. It provides that if any
Magistrate who is not empowered to do any of the following nine things, erroneously and in good
faith, does that thing, his proceedings are not to be set aside, merely on the ground of his not being
empowered to do so.

Irregularities which vitiate proceedings (Sec. 461)

461 enumerates seventeen kinds of irregularities which vitiate the proceedings. It lays down if any
Magistrate who is not empowered to do so, does any of the following things, his proceedings shall
be void. This will happen when a Magistrate who is not empowered to do so.

Proceedings in wrong place (Section 462)

As regards proceedings taking place at a wrong place, it is provided by Section 462 that, No finding,
sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial
or other proceedings in the course of which it was arrived at or passed, took place in a wrong
sessions division, district, sub-division or other local area, unless it appears that such error has in fact
occasioned a failure of justice.

Non-compliance with provisions of section 164 or section 281 (Section 463)

As statements and confessions acquire a very delicate yet important position in Criminal law, there
have been various safeguards provided for their recording and use in criminal trials under section
164 and 281 of the code. Non-compliance with such requirements may result in having a statement
or confession ruled out of evidence.

Effect of omission to frame charge, or error in the charge (Sec. 464):

The object of framing a charge is to enable the accused person to know the accusation against him
so that he can prepare for his defense. Any omission, irregularity or defect in the framing of charge
may cause prejudice to the accused. But it is not necessarily so in all the cases. Therefore, this
section provides that a mere omission to frame the charge or any error, omission or irregularity in
the charge including misjoinder of charges will be no ground for a de novo trial or a re-trial unless it
has occasioned a failure of justice to the accused.

Finding or sentence when reversible by reason of error, omission or irregularity (Section 465)

An order of sentence passed or recorded by a Court of competent jurisdiction is curable under this
section provided the omission, irregularity or error in the order or finding has not occasioned a
failure of justice. Thus where the order of the trial Court is substantially in accordance with the law
and there has been no failure of justice, it should not be set aside merely on the ground of technical
procedural defect or error. In other words, what is curable under this section is an error or
irregularity only of form and not of substance.

Legality of attachment (Sec. 466):

466 provides that no attachment made under the Criminal Procedure Code is to be deemed to be
unlawful on account of any defect or want of form in the summons, conviction, writ of attachment
or other proceedings relating thereto. In such cases, any person making the attachment cannot
likewise be deemed to be a trespasser.

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20. Write a note on disposal property.

When dealing with a criminal case, the police comes across various articles which are then seized by
it. These articles are of utmost significance and act as evidence. These are presented before the
court and become an important element in a successful trial. The term property applies to all such
documents or articles which are submitted before the court and marked as documentary exhibits or
material objects.

Once the trial ends, however, these articles or documents need to be disposed of. Chapter 34 of the
Code of Criminal Procedure, 1973 (CrPC) deals with this disposal. This process of disposal is governed
by Section 451 to 459 of the code.

What kinds of properties are referred to in this chapter?

Chapter 34 of CrPC deals with disposal of 4 kinds of properties. This includes:

 Properties or documents which have been used in committing an offence.

 Properties or documents on which an offence has been committed.
 Properties or documents which have been produced before the court.
 Properties or documents which are in the custody of Police or Court.

Key Provisions

1. Section 451 of the Code of Criminal Procedure

2. Section 452 of the Code of Criminal Procedure
3. Section 453 of the Code of Criminal Procedure
4. Section 454 of the Code of Criminal Procedure
5. Section 455 of the Code of Criminal Procedure
 6. Section 456 of the Code of Criminal Procedure
7. Section 457 of the Code of Criminal Procedure
8. Section 458 of the Code of Criminal Procedure
9. Section 459 of the Code of Criminal Procedure

Section 451 of the Code of Criminal Procedure

Section 451 of the Code deals with the disposal of property before the conclusion of the case. Thus,
this section deals with interim disposal of the property. According to this, when a property is
produced before any Criminal Court during any inquiry or trial and according to the Court it is fit for
it to be placed in proper custody before the trial or inquiry is concluded it can give an order for the
same. Also, if the property is subject to speedy and natural decay, the Court may record necessary
evidence and order it to be sold or disposed of.

Section 452 of the Code of Criminal Procedure

Now that we have discussed the disposal of the property before the conclusion of the trial, i.e., at
the interim stage, let’s move on to the disposal of the property once the trial has concluded.

As per Section 452, the Court may order for the disposal of property when a trial or inquiry into a
Criminal Court has been concluded. This disposal may be by destruction, confiscation or delivery to
any person who claims to be entitled to possess a property or document produced before the Court.

Sub Section (2) of this Section says an order made under Section 452 may be made with or without
any condition that the possessor of the property would execute a bond (with or without securities)
that he will restore such property to the court if the order made is modified or appealed.

Sub Section (3) explains that the Sessions Court may decide to deliver the property to the Chief
Judicial Magistrate.

Further, Sub Section (4) states that the order will not be carried for at least 2 months or if an appeal
is presented until it is disposed of. However, in the case, the property is exposed to natural decay or
is livestock or a bond has been executed in this regard, this rule would not apply.

Section 453 of the Code of Criminal Procedure

Section 453 is in regards to payment of money found on an accused to an innocent purchaser. This
Section talks about the case where the accused is convicted of an offence which amounts to theft or
stolen property and an innocent person who had no idea of the property being stolen. Such an
innocent person can recover the money (at maximum equal to the purchase money) from the court
by filing an application. However, if no money is found on the convicted person, the court cannot
order him/her or even the owner to make payment of purchase money to the innocent purchaser.

Section 454 of the Code of Criminal Procedure

Section 454 of The Code deals with appeals against the orders given by the Court under Section 452
and 453. This Section states that any person aggrieved by the order given by a Court under Section
452 and 453 may make an appeal against it. On such an appeal, the Appellate Court may direct the
order given by the lower court to stay or may modify, alter or annul the given order and make
further orders which it considers to be just.

Section 455 of the Code of Criminal Procedure

Section 455 of the Code of Criminal Procedure is regarding the destruction of libellous or other
matters.

Section 456 of the Code of Criminal Procedure

Section 456 is regarding the power of the Court to restore possession of immovable property. This
Section states that if it appears to the Court that a person convicted of criminal force or intimidation
dispossessed some person of immovable property, the court can order for recovery of such property
to that person. This restoration can even be done by evicting the property by force from someone
who possesses it. However, this restoration must be made within 1 month after the conviction.

Section 457 of the Code of Criminal Procedure

Section 457 talks about the procedure to be followed by the police upon the seizure of property.

This Section applies to the scenario when a property is seized by the police but has not been
produced before the magistrate during the inquiry and/or trial. In such circumstances, on receiving a
report or information regarding the seizure of the property, the magistrate can order for the
disposal of property or delivery of such property to an entitled person.

Section 458 of the Code of Criminal Procedure

Section 458 is regarding the procedure to be followed in case no person appears to claim the
property within 6 months. It states that if:

No person claims such property and is able to prove that the property belongs to him/her, and If the
person from whose possession the property was obtained is unable to prove that the property was
legally acquired by him.

Section 459 of the Code of Criminal Procedure

Section 459 is regarding the power to sell a perishable property. As per this, the magistrate can
order for sale of a perishable property, which is subject to speedy and natural decay if: The person
entitled to it is unknown or absent. The magistrate to whom the report of the seized property is
given believes that the sale of the property would be better for the owner, Value of the property is
less than Rs. 500.

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21. Explain the powers and duties of probation officers.

A probation official is a court officer who regularly meets people sentenced to a supervised
probation period. Generally, these people are perpetrators and lower-level criminals. The majority
of the offenders placed on probation are first time offenders. Placing any one on probation is a way
for the court to prevent offenders from incarceration. Many that are on probation live in our
neighbourhoods, stay home, are working or participating in an educational program, and raise their
children. The justice system’s objective is to have a person who is put on probation as a responsible
member of society while retaining contact with his or her family and community support sources.
Once on probation, a person may be ordered to engage in an evaluation of drug abuse or domestic
violence to determine if treatment is necessary. Moreover, by doing breathalyzer or urinalysis tests,
people may need to assist in tracking sobriety. Another typical condition is for an individual to
continue his/her education and/or work.

Duties of Probation Officer

Pursuant to the Offenders Probation Act 1958 – Section 14 Gives details concerning the duties of
probation officers that, subject to such conditions and limitations as may be imposed, a probation
officer is expected to do:

1. Investigate the circumstances or domestic environment of any person accused of an offence with
the intention, in accordance with any direction of the Court, to help the Court to determine and
report the most appropriately advised approach to his dealing with it;
2. Supervising probationers and other persons under his supervision and seeking suitable
employment where necessary;
3. Counselling and supporting victims in the payment by the Court of penalties or costs;
4. Advice and assist persons released pursuant to Section 4 in such situations and manner as may be
prescribed;
5. Perform the other duties prescribed as may be.

A probation agent, as laid down in Section 14 of the Act, has main functions, such as investigation,
supervision and guidance, counselling and professional control of criminal probation. As an inspiring,
guiding and supporting probationer, this probation officer facilitates the rehabilitation of the
criminal as a law-abiding member of society.

Powers of Probation Officer

1. Analysis and monitoring

2. Supervision and counselling
3. Link to the Court
4. Pre-sentence report of the probation officer
5. Decision making
6. Probationer rehability and after care

Analysis and monitoring

To obtain information about his mistakes or achievements, a detailed review of the life history and
background history of the delinquent is needed. In case the criminal refuses to respond favourably
to the reform procedures, a proper enquiry would require further limitations on the rights of the
criminal. To extract as much information as possible about his antecedents, the probationer must be
approached psychologically, with the result that information is so obtained that it is possible to
assess the chances that the offender is reformed through the probationary process. Monitoring is
mainly a police function, so it would be very useful to advise and support the research officer in this
police task.

Supervision and counselling

Continuous monitoring of the work of the probationer is not necessary or feasible. Supervision of
probation can therefore only be carried out through field visits and intermittent contacts. The
Probation Officer will fully understand and prescribe steps to resolve issues that can hinder the re-
adjustment in a society of the offender. He must actively support the probationer in the process of
his rehabilitation. The probationer does not feel continuously pressured or controlled.

Link to the Court

Another major function of the probation officer is to act as a link between the probation and the
Court, as the prime duty of the probationer under his charge is the defence of the interest. The court
may require that the terms of the probation order differ or that the probationary bond be exercised.
When he finds that the progress of the probationer is adequate in adapting to regular life in society.

Pre-sentence report of the probation officer

The trial officer is expected to provide a pre-sentence report with specific details of the prisoner
requested to be released by the Court on probation, as given in Section 7 of the Probation of
Offenders Act, 1958. On the basis of this report, the judge decides and orders the sentence of the
defendant to be released upon probation. The trial officer’s pre-sentence report must include
accurate and truthful details about the offender’s character, temperament, history in family and
education, job statistics, general circumstances and historical precedents

Decision making

Whilst deciding on the probationer under his responsibility, the probation officer should remember
that his decisions are of great importance not only for the offender but also for the safety of the
community.

Probationer rehability and after care

(1) In order that the probationary officer does not resort to violence, he shall assist with social
rehabilitation. The probation officer will try to secure the probationer for this purpose:

1. Facilities of training,
2. Opportunities for jobs,
3. Any financial support needed, and
4. Contacts and groups such as Boy Scouts and Girl Guides, youth programs and civic initiatives
for regular citizens and co-organizations.

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22. Explain the constitution and powers of juvenile justice board.

The Juvenile Justice System is radically different from the Criminal Justice System in view of the fact
that the Juvenile Justice System aims to make the juvenile in conflict with the law as a useful
member of the society and thus to rehabilitate them.

Section 27 of the Code of Criminal Procedure, 1973 discusses the jurisdiction in the case of juveniles.
It lays down that “Any offence not punishable with death or imprisonment for life, committed by any
person who at the date when he appears or is brought before the Court is under the age of sixteen
years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered
under the Children Act, 1960 (60 of 1960), or any other law for the time being in force providing for
the treatment, training and rehabilitation of youthful offenders.

Now, such an offender is tried under the Juvenile Justice (Care and Protection) Act, 2015. It is very
surprising that though CrPC was amended in the year 2005, sec.27 was not amended or altered to
bring in conformity with the existing juvenile legislation. Therefore, this provision of CrPC has
become redundant. The Juvenile Justice Board is an institutional body constituted under Section 4 of
the JJ Act, 2015. According to the division of powers, the subject of administration of criminal justice
has been included in the State List (List II, Schedule VII) of the Indian Constitution. Therefore, one or
more than one Juvenile Justice Board(s) are established by the State Government for each district.
The Board exercises its powers and discharges functions relating to the ‘child in conflict with law’ as
has been defined under Section 2(13) of this Act.
Section 4(2) of the JJ Act - The constitution of the Board

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the
State Government shall, constitute for every district, one or more Juvenile Justice Boards for
exercising the powers and discharging its functions relating to children in conflict with law under this
Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being
Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal
Magistrate) with at least three years’ experience and two social workers selected in such manner as
may be prescribed, of whom at least one shall be a woman, forming a Bench and every such Bench
shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a
Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class.
(3) No social worker shall be appointed as a member of the Board unless such person has been
actively involved in health, education, or welfare activities pertaining to children for atleast seven
years or a practicing professional with a degree in child psychology, psychiatry, sociology or law.
(4) No person shall be eligible for selection as a member of the Board, if he—
i. has any past record of violation of human rights or child rights;
ii. has been convicted of an offence involving moral turpitude, and such conviction has not
been reversed or has not been granted full pardon in respect of such offence;
iii. has been removed or dismissed from service of the Central Government or a State
Government or an undertaking or corporation owned or controlled by the Central
Government or a State Government;
iv. Has ever indulged in child abuse or employment of child labour or any other violation of
human rights or immoral act.
(5) The State Government shall ensure that induction training and sensitisation of all members
including Principal Magistrate of the Board on care, protection, rehabilitation, legal provisions and
justice for children, as may be prescribed, is provided within a period of sixty days from the date of
appointment.
(6) The term of office of the members of the Board and the manner in which such member may
resign shall be such, as may be prescribed.
(7) The appointment of any member of the Board, except the Principal Magistrate, may be
terminated after holding an inquiry by the State Government, if he—
i. has been found guilty of misuse of power vested under this Act; or
ii. fails to attend the proceedings of the Board consecutively for three months without any
valid reason; or
iii. fails to attend less than three-fourths of the sittings in a year; or
iv. Becomes ineligible under sub-section (4) during his term as a member.

Powers

The Board constituted for any district shall have the power to deal exclusively with the proceedings
under the Act:

 In the area of jurisdiction of the Board,

 In matters relating to children in conflict with the law.

These powers may be exercised by the High Court or the Children’s Court, when proceedings under
Section 19 come before them or in appeal, revision or otherwise. It was held in the case of Hasham
Abbas Sayyad vs. Usman Abbas Sayyad (2007) 2 SCC 355 that an order passed by a magistrate
beyond his jurisdiction would be considered void ab initio.

When an alleged child in conflict with law is produced before the Board, it shall exercise its power to
hold an inquiry according to the provisions of this Act and may pass orders as it deems fit under
Section 17 and 18 of the JJ Act, 2015.

The Board is also empowered to inquire into heinous offences under Section 15 of the Act. Such
preliminary assessment has to be disposed of within a period of 3 months from the date of first
production of the child before the Board.

In the case of Puneet S. vs. State of Karnataka (2019 SCC OnLine Kar 1835), the Karnataka High Court
held that only the Juvenile Justice Board has the power to decide whether an offence committed by
a juvenile is heinous or not.

Functions

1. Ensuring informed participation of the child & the parent or the guardian throughout the
process
2. Ensuring protection of the child’s rights throughout the process of arresting the child, inquiry,
aftercare and rehabilitation
3. Ensuring the availability of legal aid for the child through various legal services institutions
4. Providing a qualified interpreter or translator to the child if he/she fails to understand the
language during the course of proceedings
5. Directing Probation Officer/Child Welfare Officer/Social Worker to undertake a social
investigation into the case. Further, directing them to submit the report within 15 days from the
date of the first production before the Board.
6. Adjudicating and disposing of cases pertaining to children in conflict with the law according to
the process mentioned in Section 14
7. Transferring matters to the Committee in cases where the child is alleged to be in conflict with
the law, but is stated to be in need of care and protection at any stage
8. Disposing of the matter and passing a final order which should include an individual care plan
for the child’s rehabilitation. This also includes follow-ups by officers or an NGO.
9. Conducting inquiry for declaring that a certain person is fit for taking care of the child in conflict
with the law
10. Conducting inspection every month of residential facilities for children in conflict with the law
and recommending various measures for improvement in the quality of services provided
11. Ordering the police for registration of FIR if any offence is committed against any child in
conflict with the law
12. Conducting a regular inspection of jails meant for adults, to check if any child is lodged in such
jails
13. Taking immediate measures for the transfer of a child found in jails for adults, to an observation
home
14. Any other function as may be prescribed to the Board

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23. Procedure in case of offender failing to observe the conditions of bond.

The probation of offenders act 1958

Section 9 – Procedure in case of offender failing to observe conditions of bond – Probation of
Offenders Act:

(1) If the Court which passes an order under Section 4 in respect of an offender or any Court which
could have dealt with the offender in respect of his original offence has reason to believe on the
report of a Probation Officer or otherwise, that the offender has failed to observe any of the
conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest or may, if it
thinks fit, issue a summon to him and his sureties, if any, requiring him or them to attend before it at
such time as may be specified in the summons.

(2) The Court before whom an offender is so brought or appears may either remand him to custody
until the case is concluded or it may grant him bail, with or without surety, to appear on the date
which it may fix for hearing.

(3) If the Court, after hearing the case, is satisfied that the offender has failed to observe any of the
conditions of the bond or bonds entered into by him, it may forthwith—

a) Sentence him for the original offence; or

b) Where the failure is for the first time, then, without prejudice to the continuance in force of
the bond, impose upon him a penalty not exceeding fifty rupees.

(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as the
Court may fix, the Court may sentence the offender for the original offence.

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24. Write a note on Bail of juvenile in conflict with law.

Section 12 of the Juvenile Justice (Child Protection and Care) Act talks about the bail to a person who
is apparently a child alleged to be in conflict with the law.

The provision states that the juvenile who has committed a bailable or non-bailable offense can be
released on bail with or without surety. However, the juvenile cannot be released if there are
reasonable grounds that would bring the child in association with any of the known criminals or
expose him to any moral, physical or psychological danger or his release would defeat the ends of
justice.

The Hon’ble Supreme Court of India in the Judgement of Om Prakash v. State of Rajasthan observed
that the Juvenile Justice act was incorporated with the laudable object of holding separate trials for
children/ juvenile as they are pushed by the force of circumstance and not by choice. However, if the
juvenile is involved in the commission of “heinous nature” like the rape or murder, providing bail to
the juvenile would defeat the purpose of ends of justice as mentioned under Section 12 of the act.

On the other hand, Chhattisgarh High Court, relying on Supreme Court judgment, observed the non-
obstante clause in Section 12 of the Act. The said non-obstante clause only seeks to put the child in
conflict with law in the better position as compared to any other person. It provides that, usually, a
child in conflict with the law has to be granted bail in supersedure for granting of bail as provided for
in the code. Hence, it was held that the application for grant of anticipatory bail under Section 438 of
the Code at the behest of a child in conflict with law before the High Court or the Court of Session is
maintainable. The said remedy is not omitted by the process of Section 12 of the Act.

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25. Write a note on summary trial.

Legal provisions for Summary trials are provided for under Sections 260-265 of the Code of Criminal
Procedure. Summary trial is the name given to trials where cases are disposed of speedily and the
procedure are simplified and the recording of such trials are done summarily. In a summary trial
only, small offences are tried and complicated cases are reserved for summons or warrant trials. The
main purpose of summary trials is to expeditiously dispose of cases as the caseload on the judiciary
is immense and continues to grow. Summary trials also seek to uphold the legal maxim, “Justice
delayed is justice denied.” Summary trials allow for the people to procure justice even for small
offences that may otherwise have taken years to complete legal proceedings.

Types of offences that can be tried in a Summary Trail

Sections 261 and 262 provide the type of cases that can be heard by first class and second class
Magistrates respectively.

In case of any Chief Magistrate or Metropolitan Magistrate or any first class Magistrate the following
cases may be tried:

1. Offences which cannot be punished with the death penalty, life imprisonment or imprisonment
exceeding 2 years.
2. Theft provided in sections 379, 380 and 381 of the IPC as long as the value of item stolen does
not exceed 2000 rupees.
3. Receiving or retaining any stolen property under 2000 rupees given in Section 411 of the Indian
Penal Code.
4. Assisting in the concealment of any stolen property under 2000 rupees given in Section 414 of
IPC.
5. Lurking, trespass breaking in of houses under Section 454 of IPC.
6. Criminal intimidation and insult with intent to provoke under Sections 506 and 504 respectively.
7. Abetment of any of the above offences will also be tried in a summary trial.

In case of Magistrates of Second class the following offence can be tried if the High Court empowers
him to do so;

1. Offences which can be punished with imprisonment of less than 6 months with or without a
fine.
2. Any offences that can be punished with a fine.
3. Abetment or attempt to commit the above offences.

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26. Explain constitution and powers child welfare committee.

Legal provisions regarding constitution of Child Welfare Committee under Section 29 of the Juvenile
Justice (Care and Protection of Children) Act, 2000.

(1) The State Government may, within a period of one year from the date of commencement of the
Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, by notification in the
Official Gazette, constitute for every district one or more Child Welfare Committees for exercising
the powers and discharge the duties conferred on such Committees in relation to child in need of
care and protection under the Juvenile Justice (Care and Protection of Children) Act, 2000.

(2) The Committee shall consist of Chairperson and four other members as the State Government
may think fit to appoint, of whom at least one shall be a woman and another, an expert on matters
concerning children.
(3) The qualifications of the Chairperson and the members, and the tenure for which they may be
appointed shall be such as may be prescribed.

(4) The appointment of any member of the Committee may be terminated, after holding inquiry, by
the State Government, if:

i. He has been found guilty of misuse of power vested under this Act;
ii. He has been convicted of an offence involving moral turpitude, and such conviction has not
been reserved or he has not been granted full pardon in respect of such offence;
iii. He fails to attend the proceedings of the Committee for three consecutive months without any
valid reason or he fails to attend less than three-fourth of the sittings in a year.

(5) The Committee shall function as a Bench of Magistrates and shall have the powers conferred by
the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial
Magistrate of the first class.

Powers

The powers of the Child Welfare Committee are laid down in Section 29 of the Juvenile Justice (Care
and Protection of Children) Act, 2015:

The Committee has the full authority of disposing of cases for the care, protection and treatment of
the children.

The Committee can also dispose of cases that are for the development, rehabilitation and protection
of children that are in need, and also to provide for the basic need and protection that is needed by
the children.

When a Committee is constituted for any particular area, then it has the power to exclusively deal
with all proceedings that are being held under the provisions of this Act that are related to children
in terms of need of care and protection.

While exercising the given powers curtailed under this Act, the Committee is barred from performing
any act which would go against anything contained in any other law that is in force at that time.

In the case of Ms. Sheila Ramchandra Singh v. State of Maharashtra and Others, a Government
Circular dated 16 June 2016 was issued by the Women and Child Development Department
(Government of Maharashtra).

Functions and Responsibilities

The Functions and Responsibilities of the Child Welfare Committee are mentioned in Section 30 of
the Juvenile Justice (Care and Protection of Children) Act, 2015. Few functions and responsibilities
are listed below:

1. Cognizance of children that are produced before it. Children who are neglected can be
produced before this committee.
2. Conducting inquiry on issues relating to and affecting the safety and well-being of the children
under this Act.
3. To direct the Child Welfare Officers, District Child Protection Unit and Non- Governmental
organizations for social investigation and also to submit a report before the Committee.
4. To conduct an inquiry for the declaration of fit persons for the care of children in need of care
and protection.
5. To direct placing of a child in a foster care facility.
6. To ensure care, protection, restoration and appropriate rehabilitation of those children that are
in need of care and protection. This is based on that child’s individual care plan. It also includes
the passing of necessary directions to parents or guardians or the people who are fit or
children’s homes or fit facilities in this regard.
7. To select a registered institution for the placement of every child that requires support which is
based on that child’s gender, age, disability and needs. This should be done by keeping in mind
the available capacity of the institution.
8. To recommend action that is for the improvement in the quality of services provided to the
District Child Protection Unit and the Government of a State.
9. To certify the performance of the surrender deed by the parents and to make sure that they are
given time to think about their decision as well as to make a reconsideration to keep the family
together.
10. To make sure that all the efforts are made for the restoration of the lost or abandoned children
to their families by following due process which is prescribed by the Act.
11. To declare children legally free for adoption after due inquiry who are orphans, abandoned and
surrendered.
12. To take suo moto cognizance of cases and also to reach out to the children who are in need of
care and protection.
13. To take action against the rehabilitation of children who are abused sexually and are reported
as children in need of protection and care from the Committee, by the Special Juvenile Police
Unit or the local police as the case may be.
14. To deal with cases referred by the Board under sub-section (2) of 17 of this Act.
15. To coordinate with various departments that are involved in the care and protection of
children. These departments include the police, the labour department and other agencies.
16. To conduct an inquiry and give directions to the police or the District Child Protection Unit in
case of a complaint of abuse of a child.
17. To access appropriate legal services for the children.
18. To perform such other functions and responsibilities as may be prescribed.

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27. Explain investigation, inquiry, trial and inquest.

Chapter XXIV of The Code of Criminal Procedure, 1973 deals with the general provisions of Inquiries
and trials. Inquiries and trials are just two stages out of the various stages that help in deciding the
due course of a criminal nature.

Investigation

Investigation has been defined under Section 2(h) of CrPC. Investigation includes all the proceedings
under the Code required for the collection of evidence. It is conducted by a Police Officer or by any
person other than a magistrate, who has been authorized by the magistrate on this behalf.

Steps of Investigation

 Proceeding to the spot where the offence has been committed.

 Ascertain the facts and circumstances of the case.
 Discovery and arresting the suspected offender.
 Collecting evidence of the offence that may consist of:
a. Examination of various persons (including accused) and reduction of his statement into
writing, if it is deemed fit by the officer.
 b. The search and seizure that are considered necessary for investigation and to produce
before trial.

Who has the Authority to Investigate?

The police officer or any other person who has been authorized by a Magistrate on his behalf is
competent to investigate.

Commencement of Investigation

There are two ways to commence the investigation:

 The police officer in charge has the authority to investigate when the FIR is lodged.
 When the complaint has been made to the Magistrate then any person who has been
authorized by the Magistrate can investigate in this regard.

Malafide Investigation

If investigating agencies conduct mala fide investigation, then it is open to correction by invoking the
jurisdiction of the High Court.

Gurman Singh v. State of Rajasthan, 1968 - In this case, the Investigating Officer and the Station
House Officer had received information about a murder from an unknown place. It was held that
before the investigation commences a Magistrate should take cognizance of the offence.

Inquiry

An inquiry is done either by a Magistrate or it is done by the Court but not by a police official.
Investigation differs from inquiry.

According to Section 2(g) of The Code of Civil Procedure, Inquiry includes every inquiry except for a
trial conducted under this Code that is done either by a Magistrate or by the Court. The inquiry
relates to the proceedings that are carried out by the Magistrate before a trial is done.

Inquiry includes all the enquiries that are conducted under this code but it does not include the trials
that are conducted by a Magistrate.

Section 159 of CrPC empowers the Magistrate on a receipt of a police report under Section 157 of
CrPC, to hold a preliminary enquiry to ascertain whether an offence has been committed. If the
offence has been committed then, whether any person should be put upon trial.

Types of Inquiry

 Judicial Inquiry
 Non-Judicial Inquiry/ Administrative Inquiry
 Preliminary Inquiry
 Local Inquiry
 Inquiry into an offence
 Inquiry related to matters other than an offence

Under Section 159 of CrPC, the Magistrate is empowered to hold a preliminary inquiry on receipt of
the police report under Section 157 of CrPC, to ascertain whether an offence is committed and if an
offence has been committed then whether any person has to be put upon trial. The cases which are
triable by the Session Court, the commencement of their proceedings take place before a
Magistrate. The proceedings can be in the nature of an inquiry preparatory to send the accused for
trial before the court of Session.

Magistrate also conducts an enquiry in the cases which are triable by himself under Section 302 of
CrPC. If a complaint is filed before a Magistrate, the Magistrate examines the witnesses and the
complainant on an oath to find out if there is any matter for the investigation that has to be carried
out by a criminal court. If the Magistrate distrusts the statement made by the complainant and the
witnesses, the Magistrate may dismiss the complaint. The result of the investigation or inquiry does
not establish sufficient ground to proceed with the case. All these proceedings are done in the
nature of the inquiry.

Difference between Investigation and Inquiry

Object: The object of investigation is to collect the evidence related to the case, whereas the object
of inquiry is to determine the truth or falsity of certain facts related to the offence, in order to take a
further step.

Authority: An investigation is done by a Police Officer or by any person other than a Court or a
Magistrate, whereas inquiry must be done by a Magistrate or Court.

Stage: Investigation is the first stage of any case and the Magistrate further proceeds with an
inquiry.

Commencement: Investigation commences after the FIR is lodged or a complaint is made before a
Magistrate, whereas Inquiry commences after the complaint has been filed to a Magistrate.

Trial

The Code of Criminal Procedure does not define the term trial. A trial is a judicial proceeding that
ends in either a conviction or acquittal but does not discharge anyone. It is examination and
determination by a judicial tribunal over a cause which has jurisdiction over it.

The trial begins in a warrant case with the framing of the charge when the accused is called to plead
thereto. In a summons case, it is not necessary to frame a formal charge, the trial starts as soon as
the accused is brought before the magistrate and the particulars of the offence are stated to him.
The case which is exclusively triable by a session court, there the trial begins only after committal
proceedings done by the Magistrate. Appeal and revision are included in the term trial, they are a
continuation of the first trial.

In a criminal trial, the function of the court is to find out whether the person who is produced before
the court as accused, is guilty of the offence with which he has been charged. To hold that the
accused is guilty of the offence with which he has been charged, the purpose of the court is to scan
the material on record to find out whether there is any trustworthy and reliable evidence on the
basis of which it is possible to find the conviction of the accused.

There are generally three types of trials:

1. Trial by Court of a session.

2. Trial by a magistrate (can we summon or warranty case).
3. Summary trials.

Inquest
The Code of Criminal Procedure, 1973 is the law that governs the procedural aspect. It provides a
mechanism for all the procedures that have to be followed for the administration of justice. It is the
primary legislation for the administration of the substantive laws in India, i.e. the Indian Penal Code,
1860 and other criminal statutes.

The preparation of an inquest report under the Code of Criminal Procedure, 1973 is conducted to
create a record of crime as it forms an important basis for determining the commission of an
offence. The process of criminal investigation is a search for truth. Under Article 21 of the
Constitution of India, 1950, the right to know or the right to have correct knowledge has been
included. This includes in its ambit the right to know the correct cause of the death of any person.

An inquest report is made primarily to look into the causes of unnatural death. In the case of
unnatural death, the circumstances have to be examined. The State owes a duty to its citizens to
ensure their health and life. When a crime is committed, it is committed against the State. In the
circumstances of unnatural death, it is the duty of the State to ascertain the cause of death and
accordingly take further measures. This is the purpose of an inquest report, to establish facts that
can be used to apprehend and punish the offender.

Under Section 174 of the Code, the police have been empowered to enquire and report on cases of
unnatural death. The first clause to the provision states that when an officer-in-charge of a police
station or some police officer who is empowered by the State Government receives information
that:

1. A person has committed suicide;

2. A person has been killed by another;
3. A person has been killed by an animal;
4. A person has been killed by machinery;
5. A person has been killed by an accident;
6. A person has died under such circumstances which raise a reasonable suspicion that some other
person has committed an offence.

In the aforementioned cases, the police officer should immediately notify the nearest Executive
Magistrate who is empowered to hold inquests. Further, he shall proceed to the place where the
body of the deceased person is and in the presence of two or more respectable residents of the
neighbourhood, such police officer shall make an investigation and prepare a report.

The statements of the witnesses which are to be so recorded during the course of the investigation
are within the inhibition of Section 162 of the Code. The statement recorded under this section
cannot be used as a substantive piece of evidence. It can be only used to corroborate or contradict
the person making it at the trial. But, there are no restrictions on the powers of the police officers
from obtaining the signatures of the witnesses on their respective statements.

Under Section 174(2) of the Code, the report has to be signed by the investigating police officer and
other persons, including those who concur therein. This report is then forwarded to the District
Magistrate or the Sub-Divisional Magistrate.

Under Section 174(3) of the Code, special circumstances involving the death of a woman have been
laid down. This was added by the Criminal Law (Second Amendment) Act, 1983.

In the cases where:

1. Suicide has been committed by a woman within seven years of her marriage;
2. The death of a woman within seven years of her marriage raises reasonable suspicion that some
other person has committed an offence in relation to such a woman;
3. The death of a woman within seven years of her marriage has taken place and any relative of
such a woman has made a request on this behalf;
4. There is a doubt regarding the cause of death;
5. The concerned police officer for any other ancillary reasons considers it expedient to do so.

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28. What is taking cognizance of offence? Whether is it obligatory? Discuss the limitations on the
powers of court to take cognizance of offence.

‘‘Cognizance’’ in general meaning is said to be ‘knowledge’ or ‘notice’, and taking ‘cognizance of

offences’ means taking notice, or becoming aware of the alleged commission of an offence. The
dictionary meaning of the word ‘cognizance’ is ‘judicial hearing of a matter’. The judicial officer will
have to take cognizance of the offence before he could proceed with the conduct of the trial. Taking
cognizance does not involve any kind of formal action but occurs as soon as a magistrate as such
applies his mind to the suspected commission of an offence for the purpose of legal proceedings. So,
taking cognizance is also said to be the application of judicial mind.
It includes the intention of starting a judicial proceeding with respect to an offence or taking steps to
see whether there is a basis for starting the judicial proceeding. It is trite that before taking cognizance
that court should satisfy that ingredients of the offence charged are there or not. A court can take
cognizance only once after that it becomes ‘functus officio’.
If a magistrate involves his mind not for reason of proceeding as mentioned above, but for taking
action of some other kind, example ordering investigation under Section 156(3) or issuing the search
warrant for the purpose of the investigation, he cannot be said to have taken cognizance of offence.
The term ‘Cognizance of offence’ has not been defined in the Criminal Procedure Code. Section 190,
191, 192, 193, 194, 195, 196, 197, 198, and 199 deals with methods by which and the limitations
subject to which various criminal courts are established to take cognizance of offences. However, the
meaning of the term is well defined by the Courts. Taking cognizance is the first and foremost steps
towards the trail. The judicial officer will have to take cognizance of the offence before he could
proceed to conduct or trail.
Cognizance under Code of Criminal Procedure
The Code of Criminal Procedure has not specified what cognizance is. Literally, it means 'to be aware
of' but when used in respect to a trial or a magistrate it means 'Judicial notice of an offence' Actually,
taking cognizance does not require any formal action by the judge or magistrate, because as long as a
magistrate turns his mind to the alleged crime of an offence for the purpose of taking further actions
under the Code of Criminal Procedure, such as summoning an accused on the basis of the information
available for prosecution or trial, cognizance can be said to have been taken.
In simple terms, cognizance can be interpreted as looking through a narrow keyhole and evaluating
whether or not an offence has been committed, and if it has been committed at all, then whether
certain parts of the IPC or any other special statute are attracted or not. The underlying principle in
law or aim of cognizance is to maintain a 'judicial check' on the police, as a judicial officer by taking
cognizance examines whether or not the crimes have actually been committed. Thus, in the Code, the
word cognizance is used to denote the points when the Magistrate or Judge first takes legal notice of
an offence. It is an infinite term of import, which may not always be used in precisely the same context.
COGNIZANCE OF OFFENCES BY MAGISTRATE
 Any First class Magistrate and any Second Class Magistrate can acknowledge any offence. Section 190-
199 of the code defines the procedures by which various criminal courts are entitled to take
cognizance of offences, and the restrictions under which they are entitled.
(a) Section 190 of CrPC "Cognizance of offences by Magistrates"
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of
the second class specially empowered in this behalf under subsection (2), may take cognizance of any
offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge,
that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance
under subsection (1) of such offences as are within his competence to inquire into or try.
(b) Section 191 of CrPC "Transfer on application of the accused"
When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190,
the accused shall, before any evidence is taken, be informed that he is entitled to have the case
inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more
than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be
transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.
(c) Section 192 of CrPC "Making over of cases to Magistrates"
(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for
enquiry or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may,
after taking cognizance of an offence, makeover the case for enquiry or trial to such other competent
Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon
such Magistrate may hold the inquiry or trial.
Tula Ram & Ors vs Kishore Singh: 1977 AIR 2401, 1978 SCR (1) 615
Taking cognizance does not require any formal procedure, or indeed intervention of any kind, but
happens as soon as a judge, as such turns his mind to the suspected crime of an offence for the
purpose of continuing to take further steps towards damage or trial. Furthermore, when a Magistrate
applies his mind not for the purpose of proceeding as mentioned above but for taking action of some
other kind, such as directing an investigation or issuing a search warrant for the purpose of
investigation, he cannot be said to have taken cognizance of the offence.
COGNIZANCE TAKEN BY A MAGISTRATE NOT EMPOWERED
If any magistrate were not allowed to recognize an offence under Section 190(1)(a) and 190(1)(b), if
an offence is wrongly accepted in good faith, the proceedings shall not be set aside solely on the
ground that it is not permitted to do so. On the other hand, if a magistrate who is not empowered to
take cognizance of an offence takes cognizance by information received or his own knowledge
pursuant to section 190(1)(c), his proceedings shall be null and void. In such a case it is immaterial
whether he was acting erroneously in good faith or otherwise.
COGNIZANCE OF OFFENCES BY COURT OF SESSION
According to Section 193, "Courts of Session are not permitted to take note of any crime (as a court
of original jurisdiction) unless the case is committed by a Magistrate." If it is specifically established by
this code or by any other statute, then only Courts of Session are permitted.
LIMITATION ON THE POWER TO TAKE COGNIZANCE
Sections 195-199 are exceptions to the general rule that, even though he is not personally interested
or impaired by the crime, any person with knowledge of the conduct of an offence that sets the law
in motion by a complaint. The general rule is that any person with knowledge of an offence
commission may put the law into motion through a complaint even though he is not personally
interested in or affected by the offence. Sections 195 to 199 of the CrPC provide exceptions to this
general rule because they prohibit cognizance of the offences referred to therein except where a
complaint is lodged by the Court or the relevant public servant. The provisions of these sections are
obligatory and a Court has no authority to recognize any of the offences listed therein unless there is
a written complaint as provided by the section in question.
Prosecutions for contempt of the lawful authority of public servants
According to section 195(1)(a), "Court shall not take cognizance of those cases which are punishable
under section 172 to section 188 of the Indian Penal Code unless a public servant makes a written
complaint." Section 172 to 188 of the IPC deals with offences related to public servant contempt. In
case of an attempt, conspiracy abetment of offence set out in IPC section 172 to 188, the court will
not take cognizance.
According to Section 195(2), ' ' Court will not proceed further with the trial when a superior official of
a public servant (who has complained) gives the order of withdrawal. '' Provided that no such
withdrawal is ordered after a trial has been completed in court.
Prosecution for offences against public justice
According to Section 195(1)(b)(i),'' Court shall not take cognizance of offensive cases pursuant to
Sections 193 to 196, 199, 200, 205 to 211 and 228 of the Indian Penal Code unless a formal complaint
is filed by that court or by some other court to which that court is subordinate.' In the event of an
attempt, conspiracy, abetment of offences against public justice, the court will not take cognizance.
Prosecution for offences relating to documents given in evidence
According to Section 195(1)(b)(ii),'' Court shall not accept those cases which are offensive according
to Section 463 or punishable according to Section 471, 475 or 476 of the IPC unless a formal complaint
is lodged by that court or by any other court to which it is subordinate.' In case of an attempt,
conspiracy, abetment of offences relating to documents provided in evidence, the court will not take
cognizance.
The definition of' court' in Section 195(1)(b) is addressed in paragraph 195(3). Court' means a Civil,
Revenue or Criminal Court, which involves, for the purposes of this section, a tribunal created by or
under a Central Provincial or State Act where that Act has been declared a Tribunal.
Section 195(4) deals with the definition in Section 195(1)(b) of the superior court and subordinate
court. If Court ' A' has the authority to appeal the decision granted by Court' B' we will then presume
Court' B' is subordinate to Court' A.'
Prosecution for offences against the state
According to Section 196(1), ‘‘Court will not take cognizance to those cases which punishable under
Chapter VI (Of Offences against the State) or under Section 153A, Section 153B, Section 295A or
Section 505 of Indian Penal Code except with the consent of the Central Government or of the State
Government.”
The listed IPC sections deal with state offences. Chapter VI of IPC describes the state offence. Section
153A of the IPC deals with harmony 295A deals with the offence of comments leading to violations of
religious belief. Section 505 deals with an offence related to public mischief.
Prosecution for the offence of criminal conspiracy
According to Section 196(2), “Court will not take cognizance to offences of any criminal conspiracy
under Section 120B of Indian Penal Code (other than a criminal conspiracy to commit a cognizable
offence punishable with death, imprisonment for life or rigorous imprisonment for two a term of two
years or upwards) unless consent in writing is given by the State Government or the District Magistrate
to initiation of the proceedings.”
Conclusion
In the Code of Criminal Procedure, the term 'Cognizance' is not specified. This basically means adding
the judicial mind to a suspected crime commission CrPC Chapter XIV deals with' Conditions Required
to begin proceedings' and CrPC Chapter XV deals with 'Complaints to Magistrates'.
------------------------------------------ ------------------------------------------------------------- ---------------

29. Explain the process to compel the production of things before the criminal courts under CrPC.

The law regarding processes to compel the production of documents or things is laid down in section
91 to section 105 of the CrPC, 1973. The court when thinks fits or is of opinion that the production of
such a thing is necessary then the court may issue summons to produce the same. The police officer
or authorized person is required to be work efficiently according to the rules and regulations. This is
a broad topic which includes search warrants, production of summons, seizure, the power to
impound, etc.

1. Issuance of Summons
2. Letters and telegrams
3. Search warrant
4. Search of suspected places
5. Declare the publication forfeited and issue the warrant
6. Application to High court to set aside the declaration of forfeiture
7. Search of persons wrongfully confined
8. Restoration of abducted females
9. Permission to allow search at close place
10. Disposal of things found in search
11. Seize certain property
12. Direction by the magistrate
13. Power to impound the document
14. Reciprocal arrangement

1. Issuance of Summons:

i. When the court is of opinion that it is necessary to produce the things for the purpose of
trial, the inquiry then in such case the court may issue a summons for production.
ii. The person who is required to produce a document or thing under this section shall be
deemed to have complied with all the requirements if he causes such things to be produced
instead of physically attending it personally to produce the same.
iii. In case such things are under the possession of another person then it requires him to
attend and produce things on time and place as mentioned in the summons.
iv. That person is not obliged to attend personally, he may send such things or documents
through another person.

2. Letters and telegrams:

 i. The documents or things which are important to produce are under the custody of the
telegram authority then the court may require the postal telegraph authority to produce the
things or documents.
ii. In simple terms, it can be invoked when a document or thing is in the custody of the postal
and telegraph authority.

3. Search warrant:

i. Search warrants are written authority given to a police officer or other person by a
competent magistrate or court for the search of any place either generally or for specific
things or documents or for a person wrongfully confined.
ii. Search warrant may be issue when the court is of opinion that the person who has received
the summons will not produce the documents or things.
iii. Where the document is not known to the court that the possession is with such person.
iv. The court will specify the place to which extend a particular place is to be searched. An only
authorized person is entitled to for the execution of search warrant.
v. Only District magistrate or Chief Judicial Magistrate have the power to grant a warrant to
search for documents or things.
vi. Search warrant must be in writing and contain all the matters that the law requires it to
stated therein.
4. Search of suspected places:

i. If the court is of opinion that the place is used for the deposit of stolen property then the
court may authorize any police officer.
ii. To enter such place in the same manner as specified in the warrant.
iii. To take the possession of any property found at the suspicious place
iv. To convey the property before the magistrate
v. To take into custody such things and carry before the magistrate
vi. Such suspicious or objectionable object includes counterfeit currency notes, counterfeit
coins, forged documents, false seals, obscene objects, obscene object etc.
5. Declare the publication forfeited and issue the warrant:

i. When any matter is published in any document or book whenever printed and contain the
forfeited matter then any police officer seizes such documents by issuing a warrant issued by
the magistrate.
ii. State Government by its notification declares the documents or things forfeited then only
the police officer is empowered to search and seizure.
6. Application to High court to set aside the declaration of forfeiture:

i. When the forfeiture is made in the newspaper, book or any document then within the date
of publication of such declaration in the official gazette then such person apply to the High
court to set aside the declaration.
ii. In case of three or more judges then heard and determined by special bench of High Court
on the other hand when judges are less than three or more judges such special bench shall
be composed of all the judges.
iii. If there is a difference of opinion among the judges, the majority decision will prevail
7. Search of persons wrongfully confined
 i. The magistrate is of opinion that any person is confined under such circumstances that such
act amounts to an offense then the magistrate may issue a search warrant.
ii. Search shall be made in accordance therewith and the person on being found shall be
instantly taken before the magistrate and shall make such order as in the circumstances of
the case seems proper.
8. Restoration of abducted females

When the complaint is made that unlawful detention of woman or female child is made for an
unlawful reason then the magistrate of First-class may make an order for immediate restoration of
such woman or female child to their parents or guardian.

9. Permission to allow search at close place

i. Whenever the inspection is of the closed place then in charge of such person on demand of
the authorized person and production of warrant search will take place.
ii. In the case of suspected concealing, the search should be made. If the person is a woman
then the search shall be made by the other lady.
iii. The occupant of such place searched is permitted to attend during the search and the list of
the copies prepared has to be signed by the witness.
10. Disposal of things found in search

When the things are found disposed of in the other jurisdiction, then such things shall be
immediately taken before the court who has issued the warrant.

11. Seize certain property

i. The Police officer has power or authority to search any property which is suspected to be
stolen or something or it may show the suspiciousness of an offence.
ii. In case the police officer is subordinate then a report has to be made to the officer by the
subordinate officer.
iii. The police officer reports such a seizure to the magistrate who has the jurisdiction on the
other hand if it is not possible to secure proper accommodation for the custody of the
property in such case the custody will be given to the person to produce the property before
the court.
iv. Provided that when seized property is perishable in nature and the person entitled to the
possession of such property is unknown or absent, in that situation property having less than
500 rupees value will be sold by auction under the orders of the Superintendent of Police
and the provisions of section 457 and 458 will be applicable nearly and also apply to the net
proceeds of such sale.
12. Direction by the magistrate:

The magistrate has the power to direct a search to be made in his presence but for such direction,
he is competent to issue a search warrant.

13. Power to impound the document:

The meaning of the word impound is to seize. The court if it thinks fit may impound the document or
things before the courts.

14. Reciprocal arrangement:

i. The courts can exercise its power where the court extend by issuing following that will be served
or will be executed at any place-

i. A summons to an accused person

ii. A warrant for the arrest of an accused person
iii. A summons to any person requiring him to attend and produce such document or other
thing or to produce it
iv. A search warrant etc.

ii. Central government with the Government of any country or place outside India can make
arrangement for the service or execution of summons or warrant in relation to criminal matters, it
can summons or warrant in duplicate form directed to such Court, Judge or Magistrate and Central
Government can also send notification on his behalf to search authority for transmission.

Case laws:

1. S. Kuttan Pillai v. Ramkrishnan

In this case the constitutional validity of the search warrant was arise. It was held by the court that
the accused will not be forced or compelled to give the evidence against himself. Thus, search
warrant is not violative of the provision of the constitution.

2. Kalinga tubes ltd v. D. Suri - it was held by the court that the search warrant is to be used with
proper caution and with due care. The police officer has to work effectively according to the rules
and regulations.

Conclusion:

It can be concluded that there are 2 processes to compel the production of things i.e. Summons to
produce and search warrant. Mere suspicion is no ground for issuing search warrant. While issuing
the search warrant for the production of things the court need to be careful. In other words, with
due care such action has to be taken by the court. Hence search has to be done legally or according
to the law and not unlawfully. The authorized person has to do work effectively according to the
rules and regulation. This Criminal Procedure Code lays down general rules that need to be followed
in case of search and seizure.

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30. Discuss the procedure to be followed by criminal courts in compelling the appearances of
persons.

Ways for processes to compel a person to appear in court they are -

1. Summons -
2. Warrant
3. Warrant in lieu of summons
4. Proclamation of an absconder
5. Attachment of his property and
6. Bond with or without sureties to appear before a court on a certain date.
6 Ways or Processes to compel a person to Appear in the Court.

1) Summons -

Summons is a document issued by a Court of Justice calling upon the person to whom it is directed
to attend before a judge or officer of the Court. It also means to notify a defendant that an action
has been commenced against him in which he may file and answer or plead in some other fashion.
Summons should be clear and specified because it is a milder form of process issued for enforcing
the appearance of the accused or of witness and for the production of a document or thing.
According to Section 61 of the code of criminal procedure, every summons issued by a court under
this Code shall be in writing, in duplicate, signed by the presiding officer of such Court, or by such
other officer as the High Court may, from time to time by rule direct and shall bear this seal of the
Court. According to Section 61 of the Code of Criminal Procedure 1973 summons may be sent to - (a)
The accused (b) A witness (c) A person to show cause against some order, and (d) The person
proceeded against under section 125 of the Code.

2) Warrant -

A warrant is a written order of a Magistrate giving official authority to arrest a suspected criminal or
accused person. The Code of Criminal Procedure does not define the expression warrant of arrest
but it is clear form the code that a warrant is an order address to a certain person to arrest the
accused, to take him into custody and bring him before the court issuing the warrant.

3) Warrant in lieu of summons -

According to Section 87 of the Code of Criminal Procedure - A Court may, in any case in which it is
empowered by this Code to issue a summons for the appearance of any person, issue, after
recording its reasons in writing, a warrant for his arrest- (a) if, either before the issue of such
summons, or after the issue of the same but before the time fixed for his appearance, the Court sees
reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails
to appear and the summons is proved to have been duly served in time to admit of his appearing in
accordance therewith and no reasonable excuse is offered for such failure.

4) Proclamation of an absconder -

Section 82 of the Code of Criminal Procedure 1973 provides -

(1) If any Court has reason to believe (whether after taking evidence or not) that any person against
whom a warrant has been issued by it has absconded or is concealing himself so that such warrant
cannot be executed, such Court may public a written proclamation requiring him to appear at a
specified place and at a specified time not less than thirty days from the date of publishing such
proclamation.

(2) The proclamation shall be published as follows:-

(i)

a) it shall be publicly read in some conspicuous place of the town or village in which such
person ordinarily resides;
b) it shall be affixed to some conspicuous part of the house or homestead in which such person
ordinarily resides or to some conspicuous place of such town or village;
c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily
newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation
was duly published on a specified day, in the manner specified in clause (I) of sub-section (2), shall
be conclusive evidence that the requirements of this section have been complied with, and that the
proclamation was published on such day.

(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an
offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399,
400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear
at the specified place and time required by the proclamation, the Court may, after making such
inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under
sub-section (4) as they apply to the proclamation published under sub-section (1).

5) Attachment of his property of person absconding -

Section 83 of the code of criminal procedure provides that -

(1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at
any time after the issue of the proclamation, order the attachment of any property, movable or
immovable, or both, belonging to the proclaimed person: Provided that where at the time of the
issue of the proclamation the Court is satisfied, by affidavit or otherwise that the person in relation
to whom the proclamation is to be issued, -

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court,
it may order the attachment simultaneously with the issue of the proclamation.

(2) Such order shall authorize the attachment of any property belonging to such person within the
district in which it is made, and it shall authorize the attachment of any property belonging to such
person without such district when endorsed by the District Magistrate within whose district such
property is situated.

(3) If the property ordered to be attached is a debt or other movable property, the attachment
under this section shall be made-

a) by seizure; or
b) by the appointment of a receiver; or
c) by an order in writing prohibiting the delivery of such property to the proclaimed person or
to anyone on his behalf; on
d) by all or any two of such methods, as the Court thinks fit.

(4) If the property ordered to be attached is immovable, the attachment under this section shall, in
the case of land paying revenue to the State Government, be made through the Collector of the
district in which the land is situated, and in all other cases-

a) by taking possession; or
b) by the appointment of a receiver; or
c) by an order in writing prohibiting the payment of rent on delivery of property to the
proclaimed person or to anyone on his behalf; or
 d) by all or any two of such methods, as the Court thinks fit.

(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court
may, if it thinks it expedient, order immediate sale thereof, and in such case, the proceeds of the
sale shall abide the order of the Court.

(6) The powers, duties, and liabilities of a receiver appointed under this section shall be the same as
those of a receiver appointed under the Code of Civil Procedure, 1908(5 of 1908).

6) Bond with or without sureties to appear before a court on a certain date -

Section 88 of the Code of Criminal Procedure deals with the power to take Bond for appearance. It
provides that when any person for whose appearance or arrest the officer presiding in any Court is
empowered to issue a summons or warrant, is present in such Court, such officer may require such
person to execute a bond, with or without sureties, for his appearance in such Court, or any other
Court to which the case may be transferred for trial.

Section 88 of the Code is only applicable to persons who are present in court but not the person at
houses to compel them to execute bonds for appearance in court with or without securities where
an accused is already in custody, Section 88 has no application.

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31. Explain the law relating to maintenance of wives, children and parents.

The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX of the
Code of Criminal Procedure deals with provisions for maintenance of wives, children and parents.
‘Maintenance’ in general meaning is keeping something in good condition. ‘Maintenance’ in legal
meaning is money (alimony) that someone must pay regularly to a former wife, husband or partner,
especially when they have had children together. It is the duty of every person to maintain his wife,
children and aged parents, who are not able to live on their own.

Law for Maintenance of Parents, Wife, and Children According to section 125 of CrPC, a person
having sufficient means is bound to maintain;

1. His Wife (unable to maintain herself).

2. His legitimate or illegitimate minor child, whether married or not (unable to maintain
himself/herself).
3. His legitimate or illegitimate child (not a married daughter) who has attained majority, if the
child is physically or mentally abnormal or having any injury by which he/she is unable to
maintain himself/herself.
4. His father or mother (unable to maintain himself/herself)

Scope and objective of Proceedings

Scope and objectives of proceedings for maintenance of wives, children and parents are the
following:

1. The proceedings are not punishable in nature. The main objective of Chapter IX of Cr.PC is not
to punish a person who is not maintaining those whom he is bound to maintain.
2. The main objective is to prevent homelessness by way of procedure to provide a speedy
remedy to those who are in pain.
3. It does not make any distinction between persons belonging to different religions or castes.
4. It has no relation to the personal laws of parties.
Order for maintenance of wives, children and parents

Section 125 of Cr.PC deals with “Order of maintenance of wives, children and parents”. In this
Section, it is given the name of parties who are entitled to get maintenance, essential ingredients to
claim and get maintenance and order of the first-class magistrate.

In the case of Mohd. Ahmed Khan v Shah Bano Begum, Supreme Court delivered a judgement
favouring maintenance given to an aggrieved divorced Muslim woman.

Who can claim and get maintenance?

Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”. According
to Section 125(1), the following persons can claim and get maintenance:

 Wife from her husband,

 Legitimate or illegitimate minor child from his father,
 Legitimate or illegitimate minor child (physical or mental abnormality) from his father, and
 Father or mother from his son or daughter.

Wife

In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’ and it includes even
those cases where a man and woman have been living together as husband and wife for a
reasonably long period of time. Strict proof of marriage should not be a precondition of
maintenance under Section 125 of the Cr.PC.

In the case of Smt. Yamunabai Anantrao Adhav v Ranantrao Shivram Adhav, the Supreme Court held
that marriage of women in accordance with Hindu rites with a man having a living spouse is
completely nullity in the eye of law and she is not entitled to benefit under Section 125 of the Cr.PC.

In the case of Sirajmohmedkhan Janmohamadkhan v Hafizunnisa Yasinkhan, the Supreme Court held
that maintenance can be allowed to the wife when her husband is impotent.

A wife can claim and get maintenance from her husband in the following conditions:

 She is divorced by her husband, or

 Obtained divorce from her husband, and
 She has not remarried, and
 She is not able to maintain herself.

Note: Muslim wife can also claim maintenance under Cr.PC though they have a separate Act (Muslim
Women Protection of rights on Marriage Act) for them.

A wife cannot claim and get maintenance from her husband in the following conditions:

 Wife living in adultery, or

 Refuses to live with husband without any valid reasons, or
 Living separately by mutual consent.

Child

Legitimate or illegitimate abnormal child who has attained majority

If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit), then the
father of that child has to maintain him and he can claim maintenance on this ground of
abnormality. A person is entitled to basic amenities like food, clothing, shelter and other necessary
requirements to live a dignified life. Under the principles of social justice, it is the natural duty of a
man to provide these amenities to his wife, parents and children in the form of maintenance. The
maintenance law in India lays down the duty of a man to provide maintenance to his parents, wife,
and children when they are unable to maintain themselves. Maintenance in law is defined as the
amount which is paid to the dependent wife, child, or parents to maintain themselves. The amount
can be paid either by doing one lump sum payment or by way of monthly instalments.

Section 125 of the Code of Criminal Procedure, 1973 lays down the concept of maintenance in India,
along with the different personal laws that extend the right of maintenance to not only the wife but
also to her parents and children as well. Personal laws relating to maintenance in India are
applicable to people belonging to those religions, whereas the maintenance claim under Section 125
of the CrPC can be filed by anyone regardless of religion or caste. Law of maintenance in India lays
down the procedure as to how to claim maintenance for a child in India and also for a wife.

Father or mother

 Natural father and mother can claim maintenance.

 Mother includes adoptive mother, she can claim maintenance from adoptive son.
 Father can claim maintenance, it is a statutory obligation, this claim cannot be defeated by
pleading that the father failed to fulfil his parental obligation.
 A childless stepmother can claim maintenance.

In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade, Bombay High Court has
held that the father or mother can claim maintenance under Section 125(1)(d) if he or she is unable
to maintain himself or herself. But it is also important that if parents claim maintenance to their
children, children must have sufficient means to maintain their parents and yet neglects or refuses
to maintain the father or mother.

Parents

Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ( Section 2(b)) is a legislation,
initiated by Ministry of Social Justice and Empowerment, Government of India to provide more
effective provision for maintenance and welfare of parents and senior citizens. It makes it a legal
obligation for children and heirs to provide maintenance to senior citizens and parents, by monthly
allowance. It also provides simple, speedy and inexpensive mechanism for the protection of life and
property of the older persons. After being passed by the Parliament of India, it received President's
assent on December 29, 2007.

Essential conditions for granting maintenance

There are some essential conditions which should be fulfilled for claiming and granting maintenance:

1. Sufficient means for maintenance are available.

2. Neglect or refusal to maintain after the demand for maintenance.
3. The person claiming maintenance must be unable to maintain himself/herself.
4. Quantum of maintenance depends on the standard of living.

Who can claim Maintenance under the Act?

Under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 the maintenance can be
claimed by parents, grand parents and senior citizens.
Parents

For the purpose of this act Parents include: father or mother whether biological, adoptive or step
father or step mother. However it is pertinent to mention here that it is not the requirement of the
Act that the parents should be senior citizens.

Grand Parents

Grandparents includes both maternal and paternal grandparents.

Conditions to claim Maintenance

The condition prior to claiming maintenance by the above mentioned people under this Act is that
the persons must be unable to maintain themselves from their own earnings.

Who is liable to pay Maintenance?

Adult Children in case of Parents and adult grandchildren in case of grandparents, both male and
female, are responsible/liable to pay maintenance to parents and grandparents.

If in case the parents or senior citizens don’t have any children or grandchildren, they can claim
maintenance from their relatives. The conditions under which parents and senior citizens can claim
maintenance from relatives are as follows:

 The relative must be a major.

 The relative should have sufficient means to provide maintenance.
 The relative should either be possessing the property of the senior citizens or they will
inherit the property after the death of senior citizen.
 In case there are more than one relative, who are likely to inherit the property of the senior
citizen, then maintenance must be paid by relatives in proportion to their inheritance of the
property.

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32. Explain the types of appeals in criminal cases.

The word “appeal” has not been defined in The Code of Criminal Procedure, 1973, (hereinafter
CrPC), however, it can be described as the judicial examination of a decision, given by a lower court,
by a higher court. The Merriam-Webster dictionary defines appeal as “a legal proceeding by which a
case is brought before a higher court for review of the decision of a lower court”.

It needs to be pointed out that except for the statutory provisions laid down by CrPC or any other
law which is in force, an appeal cannot lie from any judgment or an order of a criminal court. Thus,
there is no vested right to appeal as such as even the first appeal will be subjected to statutory
limitations. The justification behind this principle is that the courts which try a case are competent
enough with the presumption that the trial has been conducted fairly. However, as per the proviso,
the victim has a right to appeal against any order passed by the Court under special circumstances
comprising of a judgment of acquittal, conviction for lesser offence or inadequate compensation.

The fundamental principles of appeal under CrPC are as follows:

1. An appeal is a creature of statute.

2. No inherent right to file an appeal.
3. No appeal only against conviction.
 4. No appeal in petty cases.
5. Generally, there is no appeal on conviction on a plea of guilt.

Kinds of Appeal under Criminal Procedure Code

1. Appeal in Court of Session – Section 373 CrPC

2. Appeal From Convictions – Section 374 CrPC
3. State Appeals Under Sections 377 and 378 of CrPC
4. Appeal Against Conviction by High Court in Certain Cases – Section 379 CrPC
5. Special Right of Appeal in Certain Cases – Section 380 CrPC

1. Appeal in Court of Session – Section 373 CrPC

An appeal may lie to the Court of Session against the order under:

Section 117: Where a person has been ordered to give security for keeping the peace or for good
behaviour.

Section 121: Where a person has been aggrieved by any order refusing to accept or reject a surety.

2. Appeal from Convictions – Section 374 CrPC

1. While exercising extraordinary original criminal jurisdiction, if High Court passes an order of
conviction, an appeal shall lie to Supreme Court.
2. If Court of Session or Additional Court of Session passes the order of conviction during the
trial, an appeal shall lie to High Court.
3. If Court of Session or Additional Court of Session gives punishment of more than seven years,
the appeal shall lie to High Court.
4. Where a person is convicted by Assistant Court of Session, Metropolitan Magistrate Judicial
Magistrate I, Judicial Magistrate II, an appeal shall lie to Court of Session.
5. A person aggrieved under section 325, 360 of the Criminal Procedure Code can appeal to the
Court of Session.

Exception to Section 374 CrPC

Section 375 and section 376 of the Criminal Procedure Code are exceptions to sections 374 of the
Criminal Procedure Code, elaborated as follows.

Section 375 CrPC – No Appeal in Certain Cases Where the Accused Pleads Guilty. If the accused
pleads guilty at High Court and the court takes the plea on record and convicts the person, then no
appeal shall lie. Where the accused pleads guilty at a court other than High Court, an appeal for the
sentence is allowed.

Appeal on sentence is allowed based on:

1. Extent.
2. Legality of the sentence.

Section 376 CrPC – No Appeal in Case of Petty Cases

No appeal shall lie in the case of petty cases. Petty cases differ from court to court. Following are
considered petty cases:

 In case of High Court- Imprisonment up to 6 months, fine of Rs 1000 or both.

 In case of Court of Session- Imprisonment up to 3 months, fine of Rs 200 or both.
  In case of Metropolitan Magistrate- Imprisonment up to 3 months, fine of Rs 200 or both.
 In case of Judicial Magistrate I- Fine of Rs 100.
 In case of Magistrate empowered under section 260 of the Criminal Procedure Code- Fine up
to Rs 200.

3. State Appeals under Sections 377 and 378 of CrPC

Appeals by the State Government:

 For enhancement of sentence – Section 377

 Against the acquittal of accused – Section 378

Section 377 CrPC – Appeal against Sentence

The section empowers the State Government to file an appeal through a public prosecutor at the
Court of Session or High Court on the grounds of insufficiency of the sentence:

 If an order of sentence is given by Magistrate, then appeal to lie to Court of Session.

 If an order of sentence is given by any other court, then appeal to lie to High Court.

The direction will be given to the public prosecutor by the central government if the investigation is
done by Delhi Special Police Establishment or any other central agency.

When such appeal or order for enhancement of punishment is filed, such order will not be passed
until a reasonable opportunity of being heard is given to the accused.

Section 378 CrPC – Appeal in Case of Acquittal

In this section, District Magistrate is empowered to direct the public prosecutor to file an appeal to
the Court of Session for the order of acquittal done by any Magistrate in a matter of cognizable and
non-bailable offence.

The State is also empowered to direct the public prosecutor to file an appeal for the order acquittal
done by any court other than High Court for appeal or revision.

 If the investigation is done by Delhi Special Police Establishment or any central agency, the
direction to file an appeal will be given by the Central Government.
 It is to be noted that prior permission of the High Court will be taken before filing an appeal
at the High Court.
 If an order of acquittal is given in a matter of case instituted on complaint, and High Court
grants special permission to present the appeal, then such appeal can be presented by the
complaint.
 If the complainant is a government servant, then the application can be moved within six
months from the order of acquittal.
 If the complainant is not a government servant, then the application can be moved within 60
days from the order of acquittal.
 If such appeal is rejected, no appeal from an order of acquittal shall lie.

4. Appeal against Conviction by High Court in Certain Cases – Section 379 CrPC
If the High Court reversed an order of acquittal of a person and convicted him and sentenced him to
death, life imprisonment, or imprisonment for a period of ten years or more, the accused has the
right to make an appeal to the Supreme Court.

5. Special Right of Appeal in Certain Cases – Section 380 CrPC

Under this section, an accused has a right of appeal in an unappealable sentence if his co-accused
has been given an appealable sentence.

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33. Explain the schemes available for rehabilitation and social reintegration of children under
juvenile justice (care and protection of children) act 2000

Rehabilitation and Social Reintegration

The recovery and social inclusion of children under the Act is performed on the basis of the child’s
individual care plan. It is done ideally by family-based treatment such as return to the family or
guardian with or without guidance or support, or adoption or foster care. Provided that every
attempt is made to retain the siblings placed together in institutional or non-institutional care. Only
if not being left together is in their best interests.

The method of rehabilitation and social integration is followed in observation homes for children,
contrary to the law. It happens usually when the child is not released on bail and held there by the
Board’s order in special homes or in a place of protection or with a suitable individual. Section 39
specifies that children who need treatment and security who are not kept in families for any reason
as such, on a temporary or long-term basis, can be placed in an institution licensed for such children
or with a suitable individual or facility.

The rehabilitation and social integration process shall be followed wherever the child is placed.
Those in need of care and support and live in institutional care or in special homes or places of
security may receive financial assistance when they reach the age of eighteen as stated in Section
46. This is to help them reintegrate into the mainstream.

Restoration of a child in need of care and protection

The primary goal of any Children’s Home, Specialized Adoption Agency, or open shelters is the
rehabilitation and protection of a child. The Children’s Home, Specialized Adoption Agency, or an
open shelter has to take all such measures that are deemed appropriate for the recovery and
security of a child who is temporarily or permanently removed from his or her family environment
and is kept under their care and protection.

Section 40 specifies that the Competent Authority under its discretion can return any child in need of
care and security to his or her parents, guardian, or fit person after assessing their worthiness to
take care of the child. The committee can also provide them with the correct directions regarding
anything related to the child. “Restoration and security of a child” means, restoration to parents,
adoptive parents, foster parents, guardian, or fit person.

What are the provisions made by the Juvenile Justice Act?

The Juvenile Justice Act provides for the rehabilitation of the children to begin as soon as the child’s
transfer to the care home or other correctional facilities. The social reintegration of the child in
conflict with law can be done by
Aftercare care organisations

These are transitional homes where the child is kept before totally reintegrated into society.
Aftercare organisations are special homes registered under the governmental nodal agency
functions for the welfare of delinquent children.

At the aftercare organisations, the Juveniles were given,

1. Vocational training
2. Therapeutic training to improve psychological behaviour
3. Continuing education
4. Consensus about social values
5. Economical ability to support themselves
6. Activities for physical and mental fitness

Sponsorship

In order to implement various initiatives for the sponsorship of children, such as individual, group, or
community sponsorship, the State Government can make rules to facilitate them as mentioned in
Section 45. The sponsorship will provide financial resources for families, children’s homes, and
special homes in order to meet the children’s medical, nutritional, educational, and other needs in
order to enhance their well-being.

The sponsorship conditions include:

 where the mother is a widow, divorced or deserted by the family;

 where the children are orphaned and stay with the extended family;
 where the parents are victims of life-threatening illness;
 where the parents are injured as a result of an accident and are unable to take care of the
children physically and financially.

Foster care

It is one of the non-institutional care provided for the juveniles. Based on Section 42 of the Juvenile
Justice Act of 2000, the child may be placed with a foster family so he/she may be surrounded in a
family environment and parental care which cannot be possible in normal institutional
rehabilitation. The child is provided with education as well as family care. The foster family is paid
for their service, and it is voluntary in nature.

A child may be placed in foster care if the natural parents are

 sentenced,
 suffering from deadly diseases
 being abroad
 Incapacitated by other means

Open shelter

The State Government may create and maintain as many open shelters as may be necessary as
mentioned in Section 43, by itself or by voluntary or non-governmental organizations, and such open
shelters have to be registered as such in the manner specified. The open shelters operate on a short-
term basis as a community-based facility for children in need of residential assistance with the goal
of shielding them from violence or holding them away from life on the streets. The open shelters
have to submit reports to the District Child Protection Unit and the Committee every month, in the
manner specified, concerning children who have benefited from the shelter services.

Adoption

Adoption benefits the orphans, homeless children and destitute youngsters as well as childless
couples. Adoption makes life meaningful for lone single adults too as they gain a parent-child
relationship. Adoption empowers a powerful relationship between the child and its adopted parents
even though they are not related. Section 2(2) of the Juvenile Justice Act of 2015 states that
adoption as the process through which the adopted child is permanently separated from his/her
biological parents and becomes the lawful child of his/her adoptive parents with all the rights,
privileges and responsibilities that are attached to a biological child.

Observation homes

The State Government may create and maintain observation homes as prescribed by Section 47, for
the temporary admission, treatment, and rehabilitation of any child alleged to be in conflict with the
law in each district or group of districts, either by itself or by voluntary or non-governmental
organizations, during the time period in which inquiry is pending.

Special homes

Section 48 specifies that the State Government must create and maintain, either on its own or
through voluntary or non-governmental organizations, special homes registered in any district or
group of districts as these may be necessary for the rehabilitation of those who are found to have
committed an offence and who is held there by the order from the Juvenile Justice Board (Section
18).

Place of safety

According to Section 49, the State Government shall create at least one place of protection in a State
registered under section 41 to locate an individual over the age of 18 years or a child who is between
17 and 18 years of age and is suspected or guilty of having committed a heinous crime. Every place
of safety must provide various arrangements and amenities for these children or individuals to
reside throughout the investigation process, and also for those who are convicted of committing an
offence.

To provide proper care, protection and treatment by catering to the juvenile delinquents’
developmental needs, and for adopting a child-friendly approach in the adjudication and disposition
of court proceedings in the best interests of children and for their proper rehabilitation the Juvenile
Justice Act of 2000 is enacted by Government of India. Provisions for institutional and non-
institutional measures for rehabilitation are provided in the Juvenile Justice (care and protection) Act
of 2000.

Inspection of registered institutions

The State Government shall appoint inspection committees for the State and districts as prescribed
by Section 54, for those institutions registered or recognized to be fit under this Act. Such inspection
committees shall undertake compulsory visits to all facilities housing children in the area designated,
at least once in every three months, in a group that at least consists of three members, including one
who shall be a woman and one of them shall be a medical officer.

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34. Write a note on judgement.

Judgement is a basic term used in our daily lives. Generally, it means analysing a certain situation
and forming a notion thereafter. In a legal sense, judgement is the decision given by the Court, after
hearing both sides, it contains reasons for reaching such a conclusion. The judgement thus forms an
important part of a legal process. A faulty judgement has the potential to deteriorate the very
foundation of the legal justice system in the country. Therefore it is imperative to study various
aspects of judgement from a judicial point of view.

Chapter XXVII of the CrPC, 1973, deals with Judgement. However there is no definition of
“judgement” present in the Code, but it is to be understood as the final order of the Court. In the
case of Ismail Amir Seikh vs. the State of Maharashtra, it was held that a judgment is the act of
judging. It was pointed out that judgment should clearly mention the reason for accepting an
argument and rejecting the other.

Section 353 – Judgment

1. The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in
open Court by the presiding officer immediately after the termination of the trial or at some
subsequent time of which notice shall be given to the parties or their pleaders,

1. by delivering the whole of the judgment; or

2. by reading out the whole of the judgment: or
3. By reading out the operative part of the judgment and explaining the substance of the
judgment in a language which is understood by the accused or his pleader.

2. Where the judgment is delivered under clause a) of Sub-Section (1), the presiding officer shall
cause it to be taken down in short-hand, sign the transcript and every page thereof as soon as it is
made ready, and write on it the date of the delivery of the judgment in open Court.

3. Where the judgment or the operative part thereof is read out under clause b) or clause c) of Sub-
Section (1), as the case may be, it shall be dated and signed by the presiding officer in open Court
and if it is not written with his own hand, every page of the judgment shall be signed by him.

4. Where the judgment is pronounced in the manner specified in clause c) of Sub-Section (1), the
whole judgment or a copy thereof shall be immediately made available for the perusal of the parties
or their pleaders free of cost.

5. If the accused is in custody, he shall be brought up to hear the judgment pronounced.

6. If the accused is not in custody, he shall be required by the Court to attend to hear the judgment
pronounced, except where his personal attendance during the trial has been dispensed with and the
sentence is one of fine only or he is acquitted:

Provided that, where there are more accused than one, and one or more of them do not attend the
Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to
avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their
absence.

7. No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the
absence of any party or his pleader on the day or from the place notified for the delivery thereof, or
of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the
notice of such day and place.
8. Nothing in this section shall be construed to limit in any way the extent of the provisions of
section 465.

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35. Explain the procedures to be followed for the trial warrant cases by magistrates.

Criminal cases can be divided into two types: Summons Case and Warrant Case. A summons case
relates to an offence not being in a warrant case. Warrant cases are those that include offences
punishable with death penalty, imprisonment for life or imprisonment exceeding more than two
years. The criteria that differ a summons case from a warrant case is determined by the duration of
punishment in any offence.

The procedure of trial in warrant cases by magistrates in the following way:

1. Compliance with Section 207;

2. When accused shall be discharged;
3. Framing of charge;
4. Conviction on a plea of guilty;
5. Evidence for Prosecution;
6. Evidence for Defence Side;
7. Evidence for Prosecution;
8. When accused shall be discharged;
9. Again Evidence for Defence;
10. Acquittal or conviction;
11. Absence of Complaint;
12. Compensation for accusation without a reasonable cause.

Initial steps in the trial

The initial steps involve the filing of an FIR. Once the FIR is filed in the police station, an investigation
is conducted to discover the facts and relevant details of the case. Once the investigation is
completed, a charge-sheet is filed and the documents are forwarded by the police station to the
Magistrate. The steps in warrant cases instituted on police report are:

1. Supply of copy of police report to accused in compliance with Section 207. (Section 238)
2. Discharge of accused on baseless charges. (Section 239)
3. Framing of charges. (Section 240)
4. Conviction on a guilty plea. (Section 241)
5. Evidence for the prosecution. (Section 242)
6. Evidence for defence. (Section 243)

Supply of copies to the accused

A copy of the police report and other documents relevant to the case should be supplied to any
person or persons who appears or is brought before a magistrate at the commencement of the trial.
And the Magistrate shall satisfy himself in complying with the provisions of Section 207. This is to
ensure that the accused are aware of the charges against him and can prepare for defence under fair
trial by law.

Discharge of accused if allegations against him are baseless

Once the Magistrate receives the police report and other relevant documents and provides them to
the accused, the Magistrate shall consider each report. A hearing shall be convened and a
reasonable opportunity shall be provided for both the accused prosecution to present their case.
The Magistrate examines the accused if necessary. If the charge against the accused is discovered to
be baseless and lacking in substance, the accused shall be discharged under Section 239. The prima
facie of the case is also considered.

Framing of charge

Section 240 of CrPC authorises the Magistrate to consider the police report and even to examine the
accused if he feels the need to. If the Magistrate feels the presence of valid grounds to presume that
the accused has committed the offence and is capable of committing such an offence, and he is
competent to try the offence to adequately punish the accused in his opinion. Then the written
charge is framed against the accused and the trial is conducted after the charge is read and
explained to the accused. Framing of the charge is a duty of the court and the matter must be
considered judiciously.

Explaining the charge to the accused

Clause 2 of Section 240 describes that the charge against the accused shall be read and explained to
the accused. Once the accused understands the charges against him, he shall be asked whether he
pleads guilty of the offence or wishes to challenge the charge by a fair trial under the law.

Conviction on a guilty plea

The accused can plead guilty to cut short the procedure of law and reduce the punishment for his
offence. The Magistrate records the guilty plea and convicts the accused on his discretion. (Section
241)

Evidence for prosecution

Section 242 of CrPC defines the procedure with regards to the gathering of evidence against the
offender and recording the evidence after examination and cross-examination to acquit or convict
an accused individual. In a criminal trial, the case of the state is presented first. The burden of
proving the accused guilty is on the prosecution and the evidence must be beyond a reasonable
doubt.

Steps in evidence presentation of prosecution

Fixing date for the examination of witnesses

Section 242(1) declares that once the charge is framed and read to the accused and he does not
plead guilty and wishes to proceed with the trial, the Magistrate shall fix a date for the examination
of witnesses.

Examination of witnesses

According to Section 242(2), the Magistrate, on the application of the prosecution, has the authority
to issue summons to any witnesses and direct them to attend or produce any document or thing
relevant to the case. The cross-examination by the defence is allowed by the Magistrate before
some other witness has been examined.

Presentation of evidence
The testimonies of witnesses once they are cross-examined by the defence are considered evidence.
And other documents or relevant things are brought to the Magistrate to link the accused to the
offence. The defence is informed of the evidence presented and may challenge the evidence as may
be deemed necessary.

Record of the evidence

Section 242(3) declares that on the date fixed, the Magistrate shall proceed to take all pieces of
evidence produced in support of the prosecution and record them based on their relevance to the
case. The testimonies of witnesses and any evidence provided to prove the accused had committed
the offence by the prosecution is recorded by the Magistrate.

Evidence for the defence

Section 243 of CrPC describes the procedure with regards to collecting and presenting evidence in
the defence of the accused. After the prosecution is finished with the examination of the witness,
the accused may enter his defence in a written statement and the Magistrate shall file it with the
record. Or defence can be produced orally. After the accused has entered his defence, an application
may be put to the Magistrate to perform cross-examination of any witness presented by the
prosecution.

Written statement of accused

Section 243(1) declares that the accused shall be called upon to enter his defence and produce
relevant evidence. Any written statement presented by the defence shall be recorded by the
Magistrate and filed. Under Section 313(1), the accused shall have the opportunity to be heard and
explain any circumstances appearing against him or other facts and circumstances of the case that
are relevant. This may be done by a written statement or orally.

Examination of witnesses for the defence

Section 243(2) describes the process of examination of witnesses for defence of the accused. An
application can be made by the defence to the Magistrate to compel the attendance of a witness for
the purpose of examination or cross-examination, or for the production of any relevant documents
or other things. The Magistrate shall issue such directions unless he feels the application has been
put for the purpose of delay or vexation or defeats the ends of justice and refuse the application on
those grounds.

Record of the evidence

CrPC declares that any evidence or witness testimonies shall be filed by the Magistrate with the
record. The evidence submitted can be in the form of a written statement or orally submission which
the Court shall record. The evidence submitted is recorded to prevent tampering by an interested
party to further their agenda and prevent justice from being served to the accused.

Steps in evidence presentation of defence

Court witness

The defence shall have an opportunity to present witnesses to defend the accused. This may include
an alibi or individuals that can point out that the accused was present elsewhere from where the
offence was committed. The witnesses presented by the defence can be cross-examined by the
prosecution and their testimonies challenged. The purpose of defence witness is to create a
reasonable doubt to point out that the accused may not have been the exact individual that
committed the offence.

Arguments submitted on behalf of defence

After the closing of evidence, the defence may produce an oral argument and submit a
memorandum to the Court. A copy of this memorandum should be supplied to the prosecution. The
court possesses the power to interfere if the oral arguments are not to the point and irrelevant to
the case and made to waste the time of the court and delay the delivery of justice. The
memorandum of argument must be submitted before the closing of oral delivery.

Judgement

The Magistrate holds the authority to judge the evidence provided by the defence and its relevance.
If any evidence or testimony is in his opinion irrelevant or lacks substance, it may be thrown out and
not filed with the record and shall no longer be considered in the case. The relevance of the
evidence and testimony can be challenged by the opposing party but only the Magistrate has the
authority to decide whether it shall be filed with the record or thrown out of the case.

------------------------------- ------------------------------------------------------ --------------------- ------------

36. Explain the provisions of CrPC relating to reference and revision.

A Judge may make some error as Judge is also a human. No human is perfect, this is applied to
Judges or Magistrates as well. The provisions such as Appeal, Review, Reference and Revision are to
avoid any injustice or if any human has grievance about the given decree or Judgment and it is an
attempt to reduce the errors, which has been done by Judges and Magistrates.

For the same purpose, the Code of Civil procedure has introduced the concepts called Review,
Reference and Revision under Sections 114, 113 & 115 respectively. An application for Review,
Reference and Revision can be filed in the concerned courts as provided by the Code and the
proceedings under these applications do not deal with merits (facts or evidence) of the case. They
are solely based on technical grounds.

What is reference under criminal procedure code?

Meaning of Reference under Criminal Procedure Code: – The reference is simply an application
made by the trial court to the High Court for the interpretation (explanation) of a matter relating to
an Act, Legislation, and Regulation. Reference can be defined as the terms to consult a various
information from the trial Court which is to make an application for the explanation of the
Legislation, Act or regulation pertaining to the case. Reference power is vested with the Court.

High Court empowers the reference power where the cases are transferred by the Subordinate
Courts. Reference can be done to the High Court as per the Section 395, for which the case is
pending and it has involved in any question pertaining to any of the Act or Regulation or Ordinance
or any Provision, which is necessary to determine to dispose a case.

As such, there will be an in-depth examination of the laws to ascertain whether there is a
misunderstanding or misapplication of the law or a re-evaluation of the facts of the case with the
application of the laws. Reference Chapter XXX specifically falls under Sections (395-396) Criminal
Procedure Code.

Section 395 of Criminal Procedure Code

A reference arises when a case is before a trial court and such a case includes a question relating to
the validity of any regulation, ordinance or act or any provision of the act, which is necessary for the
determination of a criminal case. Such an act, regulation or ordinance may be inoperative or invalid
but the Higher Court like Supreme Court or High Court has not declared it.

As such, the lower court or trial court shall refer to the High Court for its cause or opinion. Such
opinions or reasons may form the basis of the court’s decision. In such cases, the accused may be
sent to the jail or released on the bail, as there is pending of revert of opinion from the higher court.

Section 396 of Criminal Procedure Code: – Disposal of case according to the decision of the High
Court

When the question has been so referred, the High court shall pass such an order that it thinks fit and
also can send a copy of such an order to the lower court which shall dispose off the case comfortably
to the said order. The high court may also direct the cost of such reference which has to be paid.

What is revision under criminal procedure code?

Meaning of Revision under Criminal Procedure Code: – A revision or modification is a rule that is to
correct or change a decision already made. Both revision and appeal are under the review
procedures of Criminal Procedure Code. Superior Courts have the power to suspend or execute the
sentence. That is, a Court’s decision can be modified by Sessions court or higher or Supreme Court.
The main objective of both sides is to modify, change, correct the decision already made by the trial
court. The Revision power can be exercised by Superior Court.

Usually the High Court has power to re-examine the case which has been dealt by the lower courts;
this power is not like appeal; High Court can determine whether to examine a case or not. The
purpose of a revision is to re-assure the legal procedures which were exercised by the lower court is
without any errors while delivering the verdict. Revision in Higher Court falls under Revisional
Jurisdiction.

Chapter XXX of CrPC with the sections 397 to 402 deals with the provisions of revision. Revision can
be done by Higher Courts. It is mentioned in the code to serve as a check and also to ensure that the
High Court has the power to see that justice is served in accordance with the rules and laws. The
amendment ensures that the Court does not abuse its powers or exceed its jurisdiction as provided
by the Code.

Section 362 of the Criminal Procedure Code

Provides that no court has the authority to review or change its final judgment or order or decision,
which is signed. The only exception is to correct clerical, arithmetic or grammatical errors. Therefore,
the power to review may vest in the superior court but the power to revise rests with the lower
court. The power of review, reference and revision cannot be exercised in the case in which the
appeal is pending in the High Court.

Revision is defined under Chapter XXX, Sections (397–402) of the Criminal Procedure Code

Section 397: – The court has the power to call for the record of the proceedings of its court or any
inferior courts.

Section 398: – Upon examining the record of proceedings, the judge has the right to order an inquiry
into the decision of a case.
Sections (399 – 400): – The Sessions Judge has the power to revise any decision and may call
additional Sessions Judges to revise the decision.

Section 401: – The High Court has the power to modify cases before it or before the lower or inferior
courts.

Section 402: – The High Court is also empowered to transfer or withdraw the revision cases.

Difference between an Appeal, Reference and Revision

APPEAL REFERENCE REVISION

It is defined under Chapter It is defined under Chapter XXX It is defined under Chapter XXX
XXIX of the Criminal of the Criminal Procedure Code. of the Criminal Procedure Code.
Procedure Code.

It is defined from Section 372- It is defined from Section 395- It is defined from Section 397-
394 of the Criminal Procedure 396 of the Criminal Procedure 402 of the Criminal Procedure
Code. Code. Code.

An appeal is made to the Reference is made to the higher Revision is made to both higher
higher court on the points of court on the points of the law. and lower court on the already
the fact and laws. adjudicated matters.

The Appeal begins on the The Reference occurs while the The revision begins under the
determination of the case. case is still pending in the court. final judgment or final order or
final decision of the court.

An appeal or petition is to be Reference is to consult the High Revision is to review, change or

filed against the decision Court on insolvency or invalid amend any grammatical,
passed by the lower court. law, act, regulation or clerical or arithmetic error by a
ordinance related to the case at trial court or high court.
hand.

In some cases, an appeal can Reference is made by the trial The revision can be initiated by
be filed with leave of the court to the High Court. the trial court suo moto or the
court by an aggrieved person High Court.
or accused.

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37. Discuss the provisions juvenile justice (care and protection of children) act, 2000 in respect of
the establishment and maintenance of observation home and special home.
Observation Homes and Special Homes have a unique objective and purpose for the services
provided for children in conflict with law, and hence the approach of each would be different. Place
of Safety function as Observation Home or a Special Home for children between the age of 16 - 18
years of age, who are accused or found guilty of having committed heinous offences

Observation Home

Sec 2(40),Chapter I, JJ Act 2015 - ―observation home‖ means an observation home established and
maintained in every district or group of districts by a State Government, either by itself, or through a
voluntary or non-governmental organisation, and is registered as such, for the purposes specified in
sub-section (1) of section 47.

For temporary reception, care & rehabilitation of any child alleged to be in conflict with law, during
the pendency of any enquiry under this Act. For every child alleged to be in conflict with law who is
not placed under the charge of parent or guardian. Duration of care does not exceed 4 months. The
State Government shall establish and maintain in every district or a group of districts, either by itself,
or through voluntary or non-governmental Observation Homes.

Care in an Observation Home (OH)

Objectives of residential care in an OH:

1. To ensure the safety, protection, and care of the alleged CCL during the period of inquiry.
2. To support the child through the period of inquiry by ensuring that legal aid is accessible to the
child, ensure attendance on every hearing, and explaining to the child the process and progress
on the case.
3. To formulate an Individual Care Plan for each child based on understanding the child‘s
background (familial situation, peer and neighbourhood influences, positive influences), needs
and interests, through the use of appropriate methods including counselling sessions, interaction
with the child‘s family, home visits, aptitude testing for education and vocational training, and
consultation with physical and mental health professionals.

Approach to provision of services in an OH

Since an OH is a temporary residential care facility for a child who is alleged to be in conflict with
law, the approach to provision of services in the institution as a whole, and its duty bearers must be
one which ensures that:

 There is no presumption at any level that the alleged CCL is guilty. Therefore, an OH shall not
resemble a prison in terms of its infrastructure, services or in how duty bearers conduct
interactions with children.
 Services and care are provided in a manner which facilitate finding out the unique needs of
each alleged CCL using appropriate methods and in consultation with professionals.
 At the end of the period of stay the child is on a path to rehabilitation with a clear monitor able
individualized plan for rehabilitation.

Key messages to children in OH care:

Key messages which must come through to children in Observation Home which includes care-
through the nature of infrastructure, manner of provision of services, tone of interactions between
staff and children are:

 The OH does not presume child as guilty.

  The role of the OH and staff is to support the child.
 The OH will explore as many options as possible to help the child get on a path towards
rehabilitation and reintegration in society.

Special Home

Sec 2(56), Chapter I, JJ Act 2015 ―special home‖ means an institution established by a State
Government or by a voluntary or non- governmental organisation, registered under section 48, for
housing and providing rehabilitative services to children in conflict with law, who are found, through
inquiry, to have committed an offence and are sent to such institution by an order of the Board.

For rehabilitation of those chldren in conflict with law whoare found to have committed and
offenceand who are placed there by an order of the Juvenile Justice Board made under section 18.
Duration of care does not exceed 3 years. The State Government shall establish and maintain in
every district or a group of districts, either by itself, or through voluntary or non-governmental,
Organisations Special Homes.

Objectives of care in Special Home:

 Provide reformative services including education, skill development, counselling, behaviour

modification therapy, and psychiatric support during the period of stay in the Special Home.
 Formulate and/or review and/or implement an Individual Care Plan for each child based on
understanding the child‘s background (familial situation, peer and neighborhood influences,
positive influences), needs and interests, through the use of appropriate methods including
counselling sessions, interaction with the child‘s family, home visits, aptitude testing for
education and vocational training, and consultation with physical and mental health
professionals.
 Ensure that children accept responsibility and take accountability for the crime they were found
to have committed, and begin a process of healing and transformation.
 Preparing the child for reintegration into the family and community with skills and a plan to
ensure that he/she will not commit crime again.

Approach to provision of services in a Special Home:

Since SH is a reformative care facility which houses children found to have committed offences for a
period up to 3 years, and is not a prison, the approach to provision of services the institution as a
whole, and its duty bearers must be one which ensures that:

 Children are not treated as criminals or prisoners and shall be provided with as much liberty as
is possible.
 Upon entering the institution, children must be reassured that the SH and its staff are there to
support them throughout the period of stay.
 Children are counselled through a process of taking accountability and responsibility for their
actions.
 Children must be supported to make a fresh start with their lives, and must be supported to
become emotionally and financially self-reliant as they reintegrate back into society.

Key messages to children in SH care:

Key messages which must come through to children in Special Home which includes care-through
the nature of infrastructure, manner of provision of services, tone of interactions between staff and
children are:

 Children are not criminals or prisoners. Role of the SH staff is to support children in the process of
taking responsibility and accountability for actions and reformation.
 The SH would make available as many options as possible to enable children to avail facilities to
ensure their reformation and rehabilitation.

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38. Write a note on anticipatory bail and admonition.

Bail means temporary release of an accused person awaiting trial, sometimes on condition that a
sum of money is lodged to guarantee their appearance in court. In other words release or secure the
release of a prisoner on payment of bail. It may be defined as Security. Such as cash, a bond, or
property, pledged or given to a court by or on behalf of one accused of committing a crime, to
obtain release from incarceration and to ensure the person's future appearance in court when
required during the criminal proceeding. Bail is money or some property that is deposited or pledged
to a court, in order to secure the release from custody or jail of a suspect who has been arrested,
with the understanding that the suspect will return for their trial and required court appearances.
From the above, to conclude what bail is, as a concept in law, means an accused is granted release
from custody from officers of the law (the police) and into the custody of a person that is normally
known to the accused as sureties.

Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends arrest under a
non-bailable offence in India can apply for Anticipatory Bail under the provisions of section 438 of
The Code of Criminal Procedure, 1973. It is basically bail before arrest, a person arrested cannot seek
Anticipatory Bail, he would have to move for regular bail. The words anticipatory bail is neither
found in section 438 nor in its marginal note. In fact, anticipatory bail is a misnomer. When a court
grants anticipatory bail, what it does is to make an order that in the event of arrest, the person shall
be released on bail.

Types of Bail

With the Constitution of India, there is one basic rule with the law as Bail and not Jail. Thus,
everyone who is accused of an offence Civil or Criminal has a right to apply for Bail. Only exception
for it is if the said or accused is a repeat offence maker or other is a dire possibility of the fleeing
away from justice, intimidating the witness or the crime is grave enough. Bail is the kind of security
that you provide to the law for them to release you. It is a surety that you would be available in
court as and when required in future. As mentioned before bail is the right, its right to freedom and
that must apply for it. There are different categories of bails applicable depending upon the type of
charges.

Interim Bail- is for certain period of time granted before hearing to the prosecution.

Permanent Bail- permanent in nature and granted only after hearing to the petitioner a well as the
prosecution.

Bail before Arrest- it is granted when the court feels that the accused is falsely involved in the case
and an arrest would affect his honor and dignity badly.
Bail on Arrest under Section 497 of Cr. Pc. Bail can be granted for both bail able as well as non bail
able offences after the accused is arrested against a charge.

Protective Bail- A bail granted so that the accused can approach the provincial court for getting a
pre-arrest bail without touching its merit.

Directly Approaching Superior Court- the Superior Courts can grant pre-arrest bail in some
appropriate cases directly if the accused has been deprived or prevented of approaching lower
courts.

Bail For The Convict- Once convicted, bail is granted to the accused even if the appeal for the same is
accepted if court finds that there are considerable grounds for his/her release.

Anticipatory Bail - The concept of Anticipatory Bail comes into place when the accused may rightfully
fear arrest in cases of cognizable offences. Bail is a legal relief that a person may be entitled to in
order to get temporary freedom until his case is disposed of. Depending on the gravity of the
allegations, a person may be able to avoid arrest altogether. However, there are cases in which
arrest is made and the accused is set free as per the provisions of the bail as given under the
Criminal Procedure Code. In cases of Criminal cases, especially those pertaining to dowry,
anticipatory bail comes as a relief to many accused person. It is literally applied for in anticipation of
arrest.

Admonition

Section 3 of the Probation of the Offenders Act, 1958 deals with the power of court to release the
offender after admonition. An Admonition, in literal terms, means a firm warning or reprimand.
Section 3 says how the offender is benefited on the basis of admonition after satisfying the following
conditions:

1. When any person is found guilty of committing an offence under Section 379 or Section 380 or
Section 381 or Section 404 or Section 420 of the Indian Penal Code,1860 or any offence
punishable with imprisonment for not more than two years, or with fine, or with both, under the
Indian Penal Code, or any other law
2. An offender should not previously be convicted for the same offence.
3. The Court considers the nature of the offence and the character of the offender.
4. The Court may release the offender on probation of good conduct applying Section 4 of the Act,
instead of sentencing him. And,
5. The Court may release the offender after due admonition, instead of sentencing him.

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39. Explain the procedure regarding the granting of bail in cases of bailable and non-bailable
offences.

Regular Bail for Bailable Offence

In Bailable Offence- In this offence it is a person's right to get a bail which can be provided:

Either by the Police officer in charge of the case itself.

Or by the Judicial Magistrate Court on furnishing the surety by the arrested person. But if the
accused is not able to give surety he can be released on execution of a bond without any surety.

Non-Bailable Offence:
In this offence getting bail is not the right of the accused it depends on the discretion of the person
given authority to grant bail which can be provided by:

1. A police officer in charge of the case has the authority to grant bail in this offence. But he has to
mention the reason for granting the bail in the case diary and also has to furnish the bail bond.
2. But if the offence has the maximum punishment of life imprisonment or death penalty then
police officer has no power to grant bail.
3. If bail is not given by the police officer in charge accused can reach the Magistrate Court for bail
in an offense that doesn't have a maximum punishment of life imprisonment or death penalty.
4. Only Session Court and the High Court have the Jurisdiction for granting bail in offences with a
maximum punishment of life imprisonment or death penalty after imposing certain condition
which they seem necessary. And they also have to give notice to the public prosecutors to
oppose such bail.

Reasons on which bail in a Non-Bailable offence is granted are:

1. If the accused is a woman or child, bail can be granted in a non-bailable matter

2. If there is a lack of adequate evidence, the court can grant bail in the non-bailable offence on
discretion.
3. If there is a delay in registering the FIR by the complainant
4. If the person accused is physically or gravely sick.
5. If there is some corroboration as to personal animosity between the accused and the person
who filed the criminal matter.

Difference between Bailable and Non-Bailable Offences

Bailable Offences Non-Bailable Offence

Bailable offence means an offence which is

shown as bailable in the First Schedule or which
Non-Bailable Offence means any other offence.
is made bailable by any other Law for the time
being in force.

Bailable offences are regarded as less grave and Bailable offences are grave and serious offences,
less serious. For example- offence of murder.

Under bailable offences, bail is claimed as a Under Non-bailable offences, bail is a matter of
matter of right. discretion.

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40. Discuss the power of court to release the offenders after admonition and on probation of
good conduct.
41. Briefly discuss the release of offenders on probation or due to admonition.

The probation of offenders act, 1958

Admonition

Section 3 of the Probation of the Offenders Act, 1958 deals with the power of court to release the
offender after admonition. An Admonition, in literal terms, means a firm warning or reprimand.
Section 3 says how the offender is benefited on the basis of admonition after satisfying the following
conditions:
 1. When any person is found guilty of committing an offence under Section 379 or Section 380 or
Section 381 or Section 404 or Section 420 of the Indian Penal Code,1860 or any offence
punishable with imprisonment for not more than two years, or with fine, or with both, under
the Indian Penal Code, or any other law
2. An offender should not previously be convicted for the same offence.
3. The Court considers the nature of the offence and the character of the offender.
4. The Court may release the offender on probation of good conduct applying Section 4 of the Act,
instead of sentencing him. and,
5. The Court may release the offender after due admonition, instead of sentencing him.

The probation of offenders act, 1958

Section 3. Power of court to release certain offenders after admonition.—

When any person is found guilty of having committed an offence punishable under section 379 or
section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or
any offence punishable with imprisonment for not more than two years, or with fine, or with both,
under the Indian Penal Code or any other law, and no previous conviction is proved against him and
the court by which the person is found guilty is of opinion that, having regard to the circumstances
of the case including the nature of the offence, and the character of the offender, it is expedient so
to do, then, notwithstanding anything contained in any other law for the time being in force, the
court may, instead of sentencing him to any punishment or releasing him on probation of good
conduct under section 4, release him after due admonition.

Explanation.—for the purposes of this section, previous conviction against a person shall include any
previous order made against him under this section or section 4.

Section 4. Power of court to release certain offenders on probation of good conduct.—

(1) When any person is found guilty of having committed an offence not punishable with death or
imprisonment for life and the court by which the person is found guilty is of opinion that, having
regard to the circumstances of the case including the nature of the offence and the character of the
offender, it is expedient to release him on probation of good conduct, then, notwithstanding
anything contained in any other law for the time being in force, the court may, instead of sentencing
him at once to any punishment direct that he be released on his entering into a bond, with or
without sureties, to appear and receive sentence when called upon during such period, not
exceeding three years, as the court may direct, and in the meantime to keep the peace and be of
good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the
offender or his surety, if any, has a fixed place of abode or regular occupation in the place over
which the court exercises jurisdiction or in which the offender is likely to live during the period for
which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report,
if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the
interests of the offender and of the public it is expedient so to do, in addition pass a supervision
order directing that the offender shall remain under the supervision of a probation officer named in
the order during such period, not being less than one year, as may be specified therein, and may in
such supervision order impose such conditions as it deems necessary for the due supervision of the
offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he
is released, to enter into a bond, with or without sureties, to observe the conditions specified in such
order and such additional conditions with respect to residence, abstention from intoxicants or any
other matter as the court may, having regard to the particular circumstances, consider fit to impose
for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the
terms and conditions of the order and shall forthwith furnish one copy of the supervision order to
each of the offenders, the sureties, if any, and the probation officer concerned.

Section 5. Power of court to require released offenders to pay compensation and costs.—

(1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit,
make at the same time a further order directing him to pay—

(a) Such compensation as the court thinks reasonable for loss or injury caused to any person by the
commission of the offence; and

(b) Such costs of the proceedings as the court thinks reasonable.

(2) The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance
with the provisions of sections 386 and 387 of the Code.

(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted,
shall take into account any amount paid or recovered as compensation under sub-section (1) in
awarding damages.

Probation on good conduct

Section 4 of the Probation of the Offenders Act, 1958 talks about the release of the offender on the
basis of good conduct. It is a very important Section of the Act. The important points that must be
remembered for the application of this Section are:

1. Section 4 of the Act is not applicable if the offender is found guilty of an offence with death or
imprisonment for life.
2. The Court has to consider the circumstances of the case including the nature of the offence and
the character of the offender.
3. The court may pass a supervision order to release the offender on probation of good conduct.
The supervisory period is not to be shorter than one year. The probation officer must supervise
the individual for such a span in such a situation. In the supervisory order, the name of the
probation officer should be listed.
4. The Court can direct the offender to execute a bond, with or without sureties, to appear and
receive sentence when called upon during such period which should not exceed a period of three
years. The court may release the offender on good behaviour.
5. The Court may put appropriate conditions in the supervision order and the court making a
supervision order explain to the offender the terms and conditions of the order. Such supervision
order should forthwith be furnished to the offender.
6. Probation officer’s report is not compulsory to enforce this rule, but if the information is required
on record, the Court shall take into account the probation officer’s information before granting a
probation order for good behaviour.

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42. Write a note on juvenile welfare board.

43. JMFC court convicts Ramesh on his plea of guilty. Now Ramesh desires to appeal against the
conviction. Decide.