1.

SESSIONS TRIAL
Introduction
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.
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.
Initial steps in the trial
Initially, a Magistrate takes cognizance of an offence and thereafter as per Section 209, he will commit the case
to the Court of Sessions. A Magistrate is empowered under Section 190 to take cognizance of an offence upon
receiving a complaint; upon a police report; upon information received from a person other than a police
officer; or upon his knowledge. According to Section 193, Court of Session cannot take cognizance of an
offence directly but the Court of Session is permitted to take cognizance of an offence without a case being
committed to it if the Magistrate commits the case to it or if it acts as a special Court.
Under Section 207 and Section 208 the Magistrate is required to supply copies of documents like First
Information Report, the statement recorded by the police or Magistrate, etc to the accused. Under Section 209,
if it appears to the magistrate that the offence is triable exclusively by the Court of Session, he may commit the
case to the Court of Session and send all the documents and records to it and either grant bail or remand the
accused into custody and shall also notify the Public Prosecutor. The procedure for trial before a Court of
Session is mentioned from Section 225 to Section 237. As per Section 225, every trial before a Court of
Session is conducted by a Public Prosecutor.
Opening case for prosecution
When the magistrate commits a case under Section 209 to the Court of Session and the accused appears or is
brought before the Court, the prosecutor is required under Section 226 to open his case by explaining the charge
against the accused and also states the evidence by which he will prove the guilt of the accused. At this stage,
full details of the evidence need not be stated. The opening of the prosecution case must only be to matters
which are necessary to follow the evidence. It is not necessary for a Public Prosecutor in opening the case for
the prosecution to give full details of the evidence with which he intends to prove his case.
Discharge
The Court, on considering the documents and records of the case, and hearing the prosecution and the accused
on the matter, shall discharge the accused if the Judge thinks that there is no sufficient ground to proceed
against the accused. The Judge is required to record his reasons for discharging the accused under Section 227.
It was held in State of Karnataka v. L. Muniswamy that the object of this Section is to require the Judge to give
reasons for discharging the accused is to enable the superior court to examine the correctness of the reasons for
which the Sessions Judge has held that there is or is not sufficient ground or not to proceed against the accused.
Framing of charge

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Under Section 228, The Judge after considering the records of the case and the documents submitted along with
it in evidence and hearing the prosecution and the defence, he thinks that there is a ground to presume that the
accused has committed the offence and is exclusively triable by the Court of Session, he will frame a charge
against the accused.
If the case is not exclusively triable by the Court of Session then the Judge may frame a charge against the
accused and by order, transfer the case to the Chief Judicial Magistrate or any other Judicial Magistrate of First
Class. He shall direct the accused to the Judicial Magistrate to whom the case has been transferred. The
Magistrate shall then try the case in accordance with the procedure laid down for the trial of the warrant-cases
instituted upon a police report.
If two views are possible regarding the guilt of the accused, then the one which is more favourable to the
accused has to be taken.
It was held in Knati 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.
In Rukmini Narvekar v. Vijaya Satardekar 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.
Explaining the charge to the accused
Section 228(2) says that when a case is exclusively triable by the Court of Session and the Judge frames a
charge against the accused he has to read and explain the charge and ask the accused if he wants to plead guilty
or claims to be tried. The Judge shall ensure that the charge read and explained to the accused have been fully
understood by him before he is asked to plead guilty. In Banwari v. State of UP, 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
Conviction on plea of guilty
The accused may plead guilty under Section 229 or he can refuse to plead. The Court under Section 229 has the
discretion to accept the plea of guilty. This discretion has to be applied with care and not arbitrarily. Also, the
Judge has to ensure that the plea has been made voluntarily and not under any inducement otherwise it would
be violative of the Provisions of the Constitution of India.
Date for prosecution evidence
Under Section 230, the Judge will fix a date for the examination of witnesses if the accused has refused to plead
guilty or does not plead guilty, or if he claims to be tried or if he is not convicted under Section 229. On an
application of the prosecution, the Judge will issue a process for compelling the attendance of witnesses or to
produce any document or any other thing.
Evidence for prosecution
As provided by Section 273, all the evidence must be taken in the presence of the accused or in his absence in
the presence of his pleader during the course of a trial or proceeding.
Examination of witnesses
When the date is so fixed (as mentioned under Section 230), The Judge will proceed to take all the evidence
that may be produced by the prosecution in his support as per Section 231. The Judge has the discretion to

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permit cross-examination of any witness to be deferred until the other witness or witnesses have been examined
or recall any witness for further cross-examination.
Section 137 of the Indian Evidence Act, 1872 (‘IEA’) states that the examination of a witness shall be done
by the party who calls him (prosecution) and it shall be called examination-in-chief. The cross-examination of
the witness is done by the adverse party (defence). The re-examination is done subsequent to cross-examination
by the prosecution. Section 138 of the IEA, 1872 lays down the order of examination of the witnesses.
Record of the evidence
According to Section 276, the evidence of each witness in all trials before a Court of Session shall be written
down by the Presiding Judge himself or under his dictation or under his direction and superintendence by the
officer of the Court appointed by the Judge in this behalf. Such evidence is usually taken down in a narrative
form. Section 278(1) that when the evidence of each witness is complete, it shall be read over in the presence of
the accused or in his absence in the presence of his pleader and shall if necessary be corrected.
Steps to follow the prosecution evidence
 Oral arguments and memorandum of arguments on behalf of the prosecution. -Section 314
 Explanation of the accused.- Section 313
 Hearing the parties.- Section 232
 Order of the acquittal-Section 232
Steps to follow the defence evidence
 Court witnesses, if any
 Arguments
 Judgment and connected matters
 Judgment
Conclusion
The above article outlines all the procedures relating to the sessions trial. The Code of Criminal Procedure
provides an opportunity for the accused for fair trial and makes an effort to avoid any delay in investigation or
trial. The Judge in every case ensures that the accused is given a fair opportunity of hearing and defending his
case. The Code also provides for legal aid to an indigent accused who is unable to engage a lawyer in
compliance with the constitutional requirements and also as required by Section 304 so that any person accused
of committing an offence is not wrongly convicted and justice is served.

2.EXP. CONSTITUTION OF JUVINILE JUSTICE BOARD AND ITS POWERS

UNDER JUVINILE JUSTICE ACT
Introduction
The Juvenile Justice (Care and Protection of Children) Act, 2015 (Hereinafter JJ Act, 2015) is a new legislation
which repeals the Juvenile Justice Act, 2000. One of the primary reasons for the introduction of this act was to
address the commission of heinous offences by juveniles aged 16-18. This development comes after the
infamous Mukesh & Anr. vs. State of NCT of Delhi and Ors. (Nirbhaya case). Traditional criminal law labelled
offenders as ‘delinquent or neglected children’ and proceeded to punish them as criminals but the new law aims
at reformative justice for the convicts.
Juvenile Justice Board
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
3
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 begins with the ‘saving clause’ which means that an overriding effect over the Code of Criminal
Procedure,1973 has been given to this provision. It means that in spite of the provisions mentioned in the Code,
the particular clause (S.4 here) would have a full operation. Therefore, S.4 is an enabling provision. The
‘notwithstanding clause’ has been discussed in the case of Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram
(AIR 1987 SC 117).
Under Section 7 of the Act, the procedure in relation to the Board has been laid down. The Board shall meet
and carry out transactions of business as may be prescribed. It is the duty of the Board to ensure that all
procedures are child friendly and the venue is not intimidating. If a difference of opinion arises among the
Board members in the interim or final disposal stage, then there are two options:
Either the majority opinion will prevail or if there is no majority, then the opinion of the Principal Magistrate
will prevail.
In those circumstances when the Board is not sitting, a child in conflict with law may be produced before an
individual member. Further, the Board can pass orders even if any Board member is absent and such orders
cannot be held invalid by the only reason that any member was absent during any stage of proceedings.
Constitution
The constitution of the Board has been defined in Section 4(2) of the Act.
Composition of Bench under Juvenile Justice Act, 2015
1. Metropolitan Magistrate or Judicial Magistrate First Class (Principal Magistrate herein) [not being Chief
Metropolitan Magistrate or Chief Judicial Magistrate]
-Experience Required: 3 years.
2. Two social workers (one being a woman)
-Experience Required: Active involvement for 7 years in health, education or welfare activities pertaining to
children; OR
-A practising professional with a degree in child psychology, psychiatry, sociology or law.
It was held by the Himachal Pradesh High Court in the case of State of Himachal Pradesh vs. Happy (2019
SCC OnLine HP 700) that judgment passed by a single member of the Juvenile Justice Board is void ab initio.
In this case, the impugned order was passed by a single Magistrate, without fulfilling the criteria of the
composition required for the functioning of the Juvenile Justice Board. Therefore, the order was set aside.
Powers granted to Juvenile Justice Board
The Bench shall have all the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan
Magistrate or a Judicial Magistrate First Class.
Eligibility Criteria for Selection as Member of Juvenile Justice Board
Under Section 4(4) of the Act, the eligibility criteria for selection as a Board member has been listed down. It
has been defined in a negative manner.
The person will not be eligible if they:
 Have any past record of violation of human rights or child rights;
 Were convicted of an offence which involved the ground of moral turpitude + such conviction has not
been reversed or has not been granted pardon;
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  Were removed or dismissed from the services of:
 Either the Central Government or the State Government
 An undertaking/ corporation owned or controlled by the Central Government or the State Government
 Have ever indulged in the acts of:
 Child abuse
 Child labour
 Any other violation of human rights or immoral act.
Training for Members of the Juvenile Justice Board
Under Section 4(5), the onus of sensitizing and providing training to all the Board Members lies on the State
Government. It is to be ensured that the induction training is provided within a duration of 60 days from the
date of appointment.
Term of Office for Members of the Juvenile Justice Board
Under Section 4(6) of the Act, the tenure of office for the Board members and the manner in which they may
resign has been discussed.
Termination/Disqualification of Members of the Juvenile Justice Board
Under Section 4(7) of the JJ Act, 2015 – the appointment of any Board member, except the Principal
Magistrate, may be terminated post an inquiry by the State Government if they:
 were found guilty of misuse of power bestowed upon them under this Act; or
 failed to attend the Board proceedings consecutively for three months without valid reasons; or
 failed in attending less than three-fourths of the sittings in a year; or
 Have become ineligible under sub-section 4 during their tenure 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 tohold 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

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 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
15. Any child who is in conflict with law cannot be kept in police lock-up or jail under any circumstances.
The Supreme Court said that Juvenile Justice Boards should not be ‘silent spectators’, in the case Re:
Exploitation of Children in Orphanages in the State of Tamil Nadu vs. Union of India and Ors.
Conclusion
in traditional law, the offenders were dealt with in a strict and harsh manner. The practice of jailing the
juveniles with hardened criminals led to further trouble and disintegration of society. There are several factors
behind the involvement of children in criminal activities, such as poverty, unemployment, broken families, lack
of parental control, etc. The new legislation provides a response to these factors through the procedure of
reformative justice. It acknowledges the fact that child require special care and protection instead of treating
them in the same manner which led to their engagement in criminal activities.
The Juvenile Justice Board aims to deal with such children in conflict with the law in the best possible manner
so that they can be integrated into society as a contributing member at a later stage.

2. EXP LAW RELATING TO ARREST IN CASE OF FEMALE AND JUDICIAL

OFFICERS?
Introduction:-
“women cannot be arrested before sunrise and after sunset”. Notably, the abstract word here is “darkness”. Why
should any accused woman be kept away from the darkness? The answer is to protect the “accused” woman
from becoming a “victim”. Thus, even at the time of an arrest where the accused is a woman, her safety is a
priority for the fair trial of the accused. To ensure that, amendments in Section 46 of the Criminal Procedure
Code, 1973, were made (Section 6) in 2005 to make a very significant point regarding the safety of women.
Procedure for the arrest of a woman
One of the prime motives of the legislature is to safeguard the woman during her arrest. The basic procedure
regarding the arrest of a woman has been laid down in Section 46 of the Criminal Procedure code 1973, and
6
Section 46(4) (amended under Section 6) of the Code of Criminal Procedure (Amendment) Act, 2005. Section
46(4) says that out of the ordinary circumstances, no women shall be arrested after sunset and before sunrise,
and when such exceptional circumstances exist, the woman police officer, by making a written report, should
obtain the prior permission of a first-class Judicial Magistrate within whose local jurisdiction the offense is
committed or the arrest is to be made. Moreover, as per National Human Rights Commission Guidelines,
women police officers should be associated when a woman is being arrested.
Section 160(1) – As per the provision of Section 160(1), women should not be called to the police station or to
any other place other than their place of residence for questioning. It also says that neither a male under age 15
nor any woman shall be required to attend any place other than the place where they reside. In the case of
Sheela Barse vs. State of Maharashtra (1983), the Hon’ble Supreme Court held that it is the duty of police
officers making arrests to ensure that arrested females are segregated from men and kept in female lock-up in
the police station. In the absence of separate lock-ups, the women should be kept in a separate room.
Search procedures
The search of an arrested person within his/her place of residence is a significant part of the arrest procedure.
Under Section 47 and Section 51, the process of executing the search has been provided along with separate
provisions for women. The person, place, or both can be searched by authorities who are executing the arrest.
Section 46(1) – “In making an arrest the police officer or other person making the same shall actually touch or
confine the body of the person to be arrested unless there be a submission to the custody by word or action”.
Provided that when a woman is to be arrested, her submission to custody shall be taken on an oral intimation
unless the circumstances indicate to the contrary and, unless the circumstances otherwise require, or unless the
police officer is a female, the police officer shall not touch the accused woman for making her arrest.
Section 47(2) – This Section holds that the police officer or any other person, whoever is executing the arrest
warrant comes to know that the premises to be searched, is the original residence of women, who according to
custom does not appear in public, then such police officer or person shall appoint a notice to that woman
regarding her right to cancel the search, before initiating the search.
Section 51(2) – As per the provision of Section 51(2) of Code of Criminal Procedure, 1973, whenever it is
necessary to search the women, it should be performed by another female with strict decency.
Medical examination of an arrested woman
According to Section 53(1) of CrPC, if there is a reasonable suspicion that the medical examination of an
accused person would help in the procurement of evidence related to the offense committed, the registered
medical practitioner can carry out such examination at the request of a police officer, not below the rank of sub-
inspector, or any other person acting in good faith. However, if the accused person brought for medical
examination is a female, the provision is slightly different.
Section 53(2) – As per this section, whenever a woman is being examined, the examination shall be made only
by, or under the supervision of a female registered medical practitioner. The definition of registered medical
practitioner has been clearly stated in clause (b) of Explanation to Section 53. It states that a medical
practitioner is a “registered medical practitioner” if he or she possesses the necessary qualifications mentioned
under Section 2(h) of the Indian Medical Council Act, 1956 and his/her name has been enrolled in a State
Medical Register.
Other than these provisions, it is given that women should be guarded by female constables or police officers
while being questioned or arrested. All necessary prenatal and postnatal care should be provided to females
who are arrested. Restraints for pregnant women should be used as a last resort, keeping in mind that their
safety and the safety of their foetuses should never be compromised or never be put at risk. A woman should
never be restrained during labour.
Rights of an arrested woman

7
It is an important task to maintain the modesty of a woman, even if she is accused of an offense. Therefore,
certain general rights have been provided to arrested women along with some specifically allotted rights.
Right to free legal aid
The right to free legal aid has been provided under Article 39A of the Constitution. This right accompanies
those people who are incapable of bearing the expenses of civil or criminal proceedings. It shall be the
responsibility of the State to provide that person with adequate legal assistance at State’s expenses for proper
representation in the court of law. This tree-like provision extends its branches to all sections of society,
including women.
According to Section 304 of CrPC, the State Legal Services Authorities shall bear the cost of legal proceedings
including the cost of printing and translation, and fees of the appointed legal counsel. If a woman is accused of
an offense, she is entitled to exercise the right of free legal aid and hence, ensure her proper representation in
the Court. This right was considerably exercised in Hussainara Khatoon v. State of Bihar (1979), where the
Apex Court held that if an accused is not able to afford legal services, then he has a right to free legal aid at the
cost of the State.
Right to be informed regarding the grounds of arrest and bail
Under the provisions of Section 50(1) of CrPC, the arrested person is entitled to gather information regarding
the grounds of his/her arrest, and the police officer or any other person executing the arrest shall communicate
the same to him/her. As per the judgement in D.K. Basu vs. State of West Bengal (1986), this right is
exercisable by accused men and women as well. Moreover, as per Section 50(2) of CrPC, a woman shall be
informed of her right to be released on bail after the arrest of a womanwithout a warrant for an offense other
than a non-bailable one, and after arranging sureties on her behalf.
Right against manhandling and handcuffing The submission to custody on oral intimidation of arrest shall
be presumed when executing the arrest of an accused woman, provided under Section 46(1) of CrPC.
Moreover, if touching an accused woman is necessary to execute the process of her arrest, it should be
performed only by a female police officer other than in situations of absolute necessity. In the case of Vibin
P.V. vs. State of Kerala (2012), it was observed that it is the duty of the law to protect an individual from
torture and abuse by the police and other law enforcing officers.
Right to inform relatives or friends
While arresting a woman or man, the police officer, performing the arrest, has the duty to immediately provide
the information regarding such arrest and place where the arrested person is being held, to any of the relatives
or friends of the arrested person, whosoever he or she nominates for disclosure of the information.
Rights during detention
A police officer is not authorized to detain an arrested person for more than 24 hours (which excludes time of
travelling) in his custody, under normal circumstances. As mentioned earlier, in the case of an arrested woman,
the arrangements of her custody should be made with strict decency. In keeping with moral norms, arrested
men and women cannot be kept in the same lockup, concerning the modesty of a woman. In the case,
Gandharba Rath vs. Aparti Samal (1959), Orissa High Court observed that Section 56 makes it compulsory for
police officer to make the arrest in a written order while specifying the person to be arrested and the offence or
other cause for which the arrest is to be made, especially in cases where a police officer has deputed a
subordinate to arrest without warrant.
Sheela Barse v. State of Maharashtra (1983)
In Sheela Barse vs. State of Maharashtra (1983), a journalist Sheela Barse wrote a letter complaining of
custodial violence to women prisoners while confined in the police lock-ups in the city of Mumbai, which was
later treated as a Writ Petition. Following this case, various directions were issued to the State of Maharashtra
conferring protection to women prisoners in police lockups.
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Conclusion
The constant debates and discussions about the rights of women, gave rise to various amendments in the
Criminal Procedure Code 1973, regarding women’s rights during and after the process of arrest. For an
accused, it is essential to know the proper procedure, guidelines, and rights while getting arrested. It becomes
even more important if the accused is a woman as women are more vulnerable to social evils. To provide a
safeguard to arrested women, the Criminal Procedure Code 1973 laid down and amended certain sections
related to strict guidelines, procedures, and rights of an arrested woman.

3. JUDICIAL OFFICERS.
Introduction
Judiciary is one of the pillars of a democratic society and is a prestigious part. It is the platform where a
common man hopes for justice against all odds, even if the case is against the government. The basic principle
of justice has always been that ‘No one is above law’. And it is on the basis of this principle that even Judges or
Judicial Officers are bound by law and liable for any offence. However, Judicial Officers are reputed and
because they are in the window of the judiciary itself it is important that a case against such judicial officers is
handled with utmost care. The same power to make a judicial officer liable can be misused as well. The facts of
the landmark case of Delhi Judicial services Association v. The State of Gujarat had shocked the country and
there was a need for certain guidelines in case a Judicial Officer is being arrested for an offence. It is also
crucial to understand in which circumstances the judicial officers can be arrested and can be made liable in their
judicial capacity.
Delhi judicial services association v. the State of Gujarat
Facts of the case
In this case, the Chief Judicial Magistrate at Nadiad found no cooperation with the police in delivering the
summons or producing offenders and thus delaying the trials. The Chief Judicial Magistrate wrote a letter to the
DSP (District Superintendent of Police) and DGP (Director General of Police) stating the same, however, no
action was taken. The Police Inspector of Nadiad had withdrawn the constables from the C.J.M Court after this
incident and the C.J.M. directed the police to file a criminal case against persons who were delaying the
investigation, however, again no action was taken. The Police Inspector complained about the C.J.M. to the
Registrar of the High Court through DSP (District Superintendent of Police). The C.J.M. was further called to
the Police Station to check documents, however, the C.J.M. was forced to drink liquor and pictures were
clicked in that state. Further, the Police arrested, assaulted and handcuffed the judicial officer. The case went to
the Supreme Court and the issues were raised regarding the arrest made by the Police Inspector.
Judgment
The Supreme Court held that the arrest made by the Police Officer, in this case, was violative of Article 136 of
the Indian Constitution. This judgment is a landmark judgment and in this case, the court provided with
guidelines to arrest a judicial officer-
In case a judicial officer is to be arrested for any offence, an intimation to the District Judge or the High Court
has to be done.
In case there is an immediate arrest of a judicial officer of subordinate judiciary due to certain facts and
circumstances, a technical or formal arrest can be made.
The facts of any such arrest should be immediately communicated to the District and Session Judge of the
concerned District and the Chief Justice of India.
The arrested judicial officer is not to be taken to a police station without the prior orders of the District &
Sessions Judge of the concerned district.

9
Facilities of communication with family, legal advisors and Judicial Officers (District and Session Judge) have
to be provided to the arrested judicial officer immediately.
No statement should be recorded nor any ‘panchnama’ should be drawn and no medical test should be
conducted of the arrested judicial officer unless in the presence of the legal advisor or any other judicial officer
of equal or higher rank.
The Judicial Officer should not be handcuffed. However, in a case where there is an imminent need to effect the
physical arrest to avert danger to life and limb, such a person can be overpowered and handcuffed. An
immediate report has to be made to the District & Sessions Judge and to the Chief Justice of the High Court in
such a case. Such a burden falls on the Police to establish the necessity for handcuffing. If found that such
handcuffing was unjustified, such Police Officers responsible for it would be guilty of misconduct and would
be personally liable for the compensation or damages as determined by the High Court.
The Court held that such guidelines provided are not exhaustive but a minimum safeguard which has to be
followed while arresting a judicial officer.
Statutes and provisions
The Judicial Officers Protection Act, 1850
Under this Act, protection is provided to judicial officers, in the sense that no civil suit is to be filed against
such persons in any Court against an act which was done in good faith and judicial capacity by the judicial
officer. Thus, this act aims to protect judges who are acting in their judicial capacity and good faith. Good faith
has been described as care and attention in the performance of official duty. Any negligence done on part of a
judicial officer in signing or issuing warrants will not be protected under this Act. This protection is given only
for suits in Civil Courts.
The Judges (Protection) Act, 1985
Additional protection was provided to judges after the Judicial Officers Protection Act under the new Act of
1985. The Act provides an additional clause of protecting the judges from civil as well as criminal suits. The
act, however, does not bar the powers of the Central Government or State Government or Supreme Court or
High Court to take any such action against a judge. The said act works in addition to the already existing acts
and does not hamper or contradict it.
The Judges (Inquiry) Act, 1968
This Act deals with the misbehaviour on the part of the judges of the Supreme Court and High Courts. It
provides for the procedure of investigation of any matter relating to the misbehaviour or incapacity on the part
of judges.
Section 228 & 77 of IPC
Section 228 of IPC (Indian Penal Code) states that if any personal insults or cause any kind of interruption to a
public servant in judicial proceedings, then such a person will be liable for imprisonment which may extend to
six months and with fine. This clause takes care of the prestige of judicial officers that in any case there is no
infringement upon their position.
Section 77 of IPC states that an act done by the judge in his judicial capacity and good faith will not be
considered as an offence. The section goes in parallel with other statutes provided and provides the judges
immunity from a criminal act if done in good faith and judicial capacity.
Section 345 CrPC
The said Section of criminal law states about the ‘contempt of court’. It says that if any offence is committed by
a person under Section 175, 178, 179, 180 or 228 of IPC then such an offender may be detained in custody and

10
after appropriate reasoning, the court may provide for punishment with a fine not exceeding two hundred
rupees and if such fine is not paid then imprisonment for a term of maximum one month.

landmark judgments
State of U.P. v. Tulsi Ram
In this case, the accused was first convicted by the Trial Court but the High Court reversed the decision. The
same was notified to the Judicial Magistrate but the judge issued an NBW against the accused. The same was
challenged by the accused and the court held that such an order by the magistrate under Section 425 of Cr.P.C.
is only a ministerial function and not judicial. Such negligence by a judicial officer cannot be ignored and is not
protected by the Judicial Officers Protection Act, 1850. The judge can be made liable for such negligence and
may be made to pay damages for the same.
Daya Shankar v. High Court of Allahabad
The petitioner, in this case, was a member of U.P. State Judicial Service and was pursuing an L.L.M. degree
from Aligarh University. The petitioner was found to be cheating in the exams and thus an inquiry was set up to
investigate the matter. The court held that the protection cannot be granted in such a manner to a judicial officer
and a judicial officer cannot have two standards, and cannot act even remotely unworthy of the office they
occupy.
Conclusion
The Judicial Officers are an important aspect of the democratic system and thus it is important to understand in
what situations the judicial officers can be made liable and what guidelines to be followed in such cases.
Nobody is put above law, not even judicial officers, but considering the judicial aspect and their prestige, it is
important that proper measures are followed even in cases where they are being alleged of the particular
offence. There are various provisions already in place which immune the judicial officers from offences,
however, at the same time, the courts have interpreted every now and then that the same cannot hold true in
every case.

4. HOW IS COMPLAINT MADE TO MAGISTRATE? EXP. PROCEDURE OF

COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATE?
Introduction
The phrase "complaint" refers to any assertion made before a magistrate, either orally or in writing, according
to the code of criminal procedure. It's done without a police report but with the intention of initiating action
under this Code against some person, known or unknown, who has committed an offence. . The Indian legal
system gives enough choices that one can use in such instances, but it is quite frequent for people to lack the
necessary information to do so. If a person reports a crime and the police refuse to register the FIR for
unjustified reasons, the individual may file a complaint with a higher-ranking official. If despite submitting a
complaint to senior police officials, no FIR is lodged, the informant has the legal right to file a complaint with
the Judicial Magistrate/ Metropolitan Magistrate under Section 156(3) of the Code of Criminal Procedure,
1973, requesting that the FIR be registered by the police and an investigation into the matter begin, and the
Magistrate may take cognizance of the same under Section 190 of the Code.
The significance of complaint proceedings made to Judicial Magistrates
Everyday court experiences indicate that many of the accusations are unfounded, and these complaints must be
handled cautiously from the start. Furthermore, complaints that lack appropriate proof should be submitted for
additional review so that only in true situations may the accused individual be summoned to court. It is critical
to remember that an order calling a person to appear in a court of law for a criminal accusation carries
significant implications and has the potential to deprive an accused person of his or her liberty, which is
regarded as so valuable in our Republic.

11
Such an order should not be issued unless authorised by law. Section 200 to Section 203 have been adopted
with this goal in mind, and their major purpose is to be able to discern real instances from fake ones and to root
them out at the beginning without calling on the person against whom the complaint is filed. The Magistrate’s
weeding-out operation under Sections 200 to 203 is wholly and only applicable to situations where cognizance
is taken on a complaint. For obvious reasons, such a unique procedure or practice is not required when
cognizance is based on a police report.
Judicial Magistrate’s complaint proceedings
When an effort is made to file a complaint under Section 154 or Section 155 of the Criminal Procedure Code
(CrPC), the police may merely record an FIR if an offence of cognizable character is revealed. If the police
decline to file an FIR, a complaint can be filed with the Superintendent of Police (SP) or Commissioner of
Police (CP), who can then investigate themselves or instruct an officer subordinate to them to do so. However,
if no inquiry is done by the SP/CP or requested to be conducted by a subordinate officer, the
informant/complainant may approach a Judicial Magistrate of First Class (JMFC) who has authority over the
police station where the first attempt to submit an FIR was made.
The abovementioned remedy is accessible to the informant under Section 156(3) of the CrPC. To avail of it, the
informant/complainant must file an application/complaint with the JMFC court, detailing the relevant
circumstances that constitute an offence of cognizable character. It is important to note that the application
under Section 156(3) must also be accompanied by copies of the complaints made by the
informant/complainant, first before the concerned police station and then before the SP/CP, to demonstrate that
the informant/complainant exhausted their local remedies before approaching the court of law.
Following the facts and circumstances of each case, the Judicial Magistrate reviews the application or
complaint after receiving one under Section 156(3) of the CrPC to determine whether the facts stated therein
constitute an offence of a cognizable nature and whether the filing of an FIR is necessary. After reviewing the
contents of the application/complaint, if the Magistrate believes that the facts mentioned in the
application/complaint constitute a cognizable offence, he will direct the concerned police station to register an
FIR, conduct an investigation, and submit a report as required by Section 173 of the CrPC.
Examination of the complainant before procedural issues
The examination of the complaint is the first step in strengthening the whole proceeding. Before initiating the
procedure, the complaint must be thoroughly reviewed. Only after this examination Chapter XVI will come into
action. This examination confirms the complainant’s locus standi. The Magistrate will also determine whether
the complaint falls within the exclusions set out in Section 195 to Section 199.
When the prima facie case is established in the inquiry, the Magistrate may issue the process without further
delay. This procedure of analysing the complaint must be carried out by the Magistrate himself, not by the
advocate; nevertheless, the relevant counsel may assist in the process. Section 190 of the Code of Criminal
Procedure establishes the requirement for Magistrates to take cognizance of offences. The Magistrate may take
cognizance of this clause in the following circumstances:
1. Following the receipt of a police complaint;
2. Following receipt of charges of facts constituting an offence;
3. Upon obtaining information from a source other than a police officer or upon his knowledge that such
an offence has been committed;
4. The Chief Judicial Magistrate may delegate authority to any Magistrate of the Second Class to take
cognizance of offences for which he is competent to conduct an inquiry or a trial.
Before issuing a process, the Magistrate might analyse and thoroughly evaluate the complaint.
Examination of the complainant
The examination of the complainant is addressed under Section 200 of the Code of Criminal Procedure. After
taking cognizance of an offence, the Magistrate must question the complainant and any witnesses present. This
12
examination must be conducted under oath. The Magistrate is also required to record any pertinent information
discovered during the examination. The substance of such an examination should be provided in writing and
signed by the complainant and witnesses. The Magistrate is not required to perform this examination when:
 If the complaint is brought by a public servant acting or appearing to act in the performance of his
official responsibilities or by a Court;
 If the Magistrate refers the case to another Magistrate for investigation or trial under Section 192.
If the Magistrate in charge examines the case and refers it to another Magistrate for investigation or trial, the
later Magistrate does not need to review the cases again. Any Magistrate authorised under Section 190 may
order such an investigation, according to Section 156(3) of the CrPC.
Section 156 in The Code Of Criminal Procedure, 1973
The authority of the police officer to look into a cognizable matter is discussed in Section 156. This Section
states that:
1. Any officer in charge of a police station may look into any cognizable matter that a court with
jurisdiction over the local area within the borders of that station would have the authority to look into or
trial under the requirements of Chapter XIII without the need for a Magistrate’s order.
2. No police officer’s action in any such instance shall be brought into question at any time because the
officer was not authorised to investigate the matter under this Section.
3. Any Magistrate authorised by Section 190 may order the aforementioned investigation.
The procedure to be followed when a complaint is filed
Section 200 of the CrPC requires the Magistrate to hear a case and question the complainant and any witnesses
present under oath for a sufficient amount of time to satisfy himself. The object of this is to determine if the
accusations present a prima facie case for the Magistrate to issue process under Section 204 of the Criminal
Procedure Code of 1973. If the witnesses are present on the date the complaint is filed, their statements should
also be recorded under this provision.
The Magistrate has three alternatives after recording the complainant and witnesses’ testimonies and evidence
under Section 200 CrPC, 1973.
He may issue a process under Section 204 of the Criminal Procedure Code of 1973 if a prima facie crime is
established and the potential accused resides within the Magistrate’s local jurisdiction.
He may dismiss the complaint under Section 203 of the CrPC, 1973 if no prima facie crime is shown and no
reasonable foundation for prosecution exists, or
He may postpone the issuance of the process awaiting further inquiry by himself or investigation by police or
any other person as he thinks appropriate under Section 202 of the Criminal Procedure Code of 1973.
As a result, Section 200 of the CrPC 1973 mandates that the complainant and any witnesses present be
interrogated. This provision also makes it mandatory for the Magistrate to question the witnesses. In the matter
of Rajesh Balchandra Chalke v. State of Maharashtra (2010), the Court concluded that Section 200 applies to
the words ‘shall review’ and not ‘may review’. As a result, the method of the evaluation of the complaint on the
declaration is mandatory rather than voluntary.
The procedure by a Magistrate who is ineligible to take cognizance of the case (Section 201)
If the complaint is filed with a Magistrate who is unable to take cognizance of the offence, then the Magistrate
shall,
If the complaint is submitted in writing, it can be returned to the complainant, and the party can be asked to
present the complaint in the competent court.

13
If the complaint is not submitted in writing, the Magistrate has the authority to refer the complainant to the
appropriate Court.
Inquiry or investigation to look into the complainant further Section 202 of the Code allows for further
investigation of the complainant. If the Magistrate believes that additional inquiry is required, the procedure
might be postponed. The Magistrate will assess whether there is a valid basis for proceeding.
Refusal/ dismissal of the complaint
Section 203 gives the Magistrate the authority to dismiss a case. If the Magistrate believes there are insufficient
grounds for continuing, he may dismiss the case. After completing an adequate inquiry or investigation under
Section 202, the Magistrate reaches this determination. The Magistrate may also reject the complaint if the
processing fee is not properly paid, as specified in Section 204.
Magistrate’s Power with respect to Sec 200 CrPC
 Power of questioning the Complainant and the Witnesses
 Investigation for further examination of the complaint
 Power to reject the complaint
Gurudas Balkrishna v. Chief Judicial Magistrate Goa
In the aforementioned case, a complaint was filed before the learned Magistrate on July 31, 1992, however, it
was taken on record on August 3, 1992, and nothing happened even thereafter till September 25, 1992. As per
the Roznamcha,on September 25, some other cases urgently required to be dealt with on apriority basis before
the Magistrate and hence, the case was adjourned for the mentioned reason to February 19, 1993. The Hon’ble
High Court then observed that engagement of the Court for a day in any other work delay the recording of
complaints cannot be justified and that too for around five months as it is likely to frustrate the very purpose for
which the criminal complaints are being filed.As a result, the application was allowed by the High Court and
the Hon’ble Court directed the Chief Judicial Magistrate, Panaji, to record the evidence of the complainant and
his witnesses within a week from the date of its order.
Rajendra Singh v. State Of Bihar
In the instant case, the trial court acquitted the accused on the grounds that the court had no jurisdiction to
proceed with any action over the complaint so filed. However, in an appeal before the Hon’ble Supreme Court,
the Hon’ble Court held that the order of acquittal was illegal and in contravention of the provisions provided in
the CrPC, as if the court did not have the competent jurisdiction in the concerned case, then it could have
returned the complaint and asked for the presentation to the proper court of jurisdiction instead of acquitting the
accused as a result.
Conclusion
We can conclude that when a written complaint is submitted to the court, the Magistrate registers it after
reviewing it. Following registration, the complainant’s statement is recorded under Section 200 of the Criminal
Procedure Code, 1973, on the same day. The case is set for recording the evidence of witnesses under Section
202 of the Code of Criminal Procedure on any other day. After recording the testimony of the witness or
witnesses under Section 202 CrPC, the matter is set for arguments on summons. After hearing the arguments
during the hearing, the matter has been scheduled for the next summons. If the Magistrate determines or
believes that evidence relevant to the offence is contained in the complaint following Sections 200 and 202 of
the Code of Criminal Procedure, then the Magistrate issues the process against the accused under Section 204
of the CrPC.

5.WHAT IS AN FIR ? EXP. PROCEDURE OF INVESTIGATION BY A POLICE

OFFICER RIGHT FROM FILING AN FIR TILL SUBMISSION OF THE FINAL
REPORT?

14
Introduction
Imagine you saw a crime happening or anticipated that a crime was going to be committed by a person. You
feel panicked and wish to inform the police authorities to stop or prevent the crime from happening. As a
responsible citizen and a human being, you feel that you must report the crime and seek legal remedy for it. It
could be anyone at this spot. As we have seen in various television series and movies, it only takes an FIR to
get registered if you want to report a crime or an apprehension of the same. But it’s not that straightforward and
easy; there lies a quantum of requirements that should be fulfilled before going down the path of filing an FIR.
This article will unravel the rights, requirements, and responsibilities and the path thereafter to successfully
deliver justice in society.
Meaning
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.
It may be defined as follows:
 It is a piece of information given to the police officer.
 The information must relate to a cognizable offence.
 It is a piece of information reported first in point of time.
 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.’
Section 2(c) of the CrPC
Section 2(c) of the CrPC defines the cognizable offences for which an FIR can be lodged. These offences are
listed in Schedule I of the Code. These offences fall under this category and are allowed for filing/lodging an
FIR.
Cognizable offences are those for which the police officer is allowed to arrest the accused without a warrant or
magistrate’s permission.
Schedule I of the CrPC
Schedule I of the CrPC enlists the offences that are classified as cognizable offences, for example, murder,
robbery, etc. These offences require immediate police attention, and preventive measures are needed to be taken
by them. These offences are generally more severe and graver in nature and act against the public interest at
large.
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:
 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.

15
  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.
 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.
4. The F.I.R. must be in the nature of complaint or accusation with the object of getting the law in motion.
An investigation is an important segment of criminal procedure. The first step after a crime is committed or
information received by a police officer about the commission of an offence is “investigation.” The purpose is
to identify the offender and proceed him for trial so as to serve him with punishment as per the provisions of the
Code. Section 156 of the Code of Criminal Procedure confers powers on police officers to investigate
cognizable cases. In Non Cognizable cases, the police officer has no authority to investigate without warrant
and has to obtain a warrant under Section 155 (2) of the Code.
The term ‘investigation’ has been defined in Section 2(h) of the Code of Criminal procedure, Investigation
includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by
any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
The investigation of an offence consists of:
1. Proceeding to the spot.
2. Ascertainment of facts and circumstances of the case.
3. Discovery and arrest of the suspect.
4. Collection of evidence which may include:
5. Examination of persons concerned and reducing their statement to writing.
6. Search and seizure of places and things respectively considered necessary.
7. Formation of opinion as to whether there is a case for trial, and taking necessary steps accordingly. [2]
Information to the Police Officer
Section 154 of the code talks about when information is given as a cognizable offence. The information must be
given by the informant to the officer in charge of a police station in writing or must be reduced into writing by
the officer in charge of the police station. The written information has to be read over to the informant and be
signed by him, which is called “First Information Report.” When the information is given by a woman against
whom any of the offences under Sections 326-A, 326-B, 354, 354-A to 354-D, 376, 376-A to 376-E or 509 IPC
is alleged to have been committed or attempted, such statement shall be recorded by a woman police officer.
After the information has been received by the police officer, he shall start his investigation, provided he has
reasons to suspect that a cognizable offence has been committed.
Power of Police to Investigate
Section 156 of the code empowers the officer in charge of a police station to investigate a case in his territorial
jurisdiction without the order of the Magistrate if the offence is cognizable in nature. The officer may also
initiate an investigation on the orders of the Magistrate empowered under Section 190.
Cases consisting of both Cognizable and Non-Cognizable Offences
According to Section 155(4), when two or more offences are there in a case, of which at least one is of
cognizable nature, and other of non-cognizable nature, then the entire case has to be dealt as a cognizable case,
and the investigating officer will have all the powers and authority as he has in investigating a cognizable case.

16
Procedure of Investigation
Section 157 of the Code lays down the procedure of investigation to be followed by the police, for collection of
evidence. The investigation of a cognizable case begins when a police officer in charge of a police station has
reason to suspect the commission of a cognizable offence on the basis of FIR or any other information so
received. It requires that prompt intimation of the FIR be sent to the Magistrate. The officer shall then proceed
in person to the spot for investigation of facts and circumstances, or shall depute one of his subordinate officers
for the same, and if required, measures for the discovery and arrest of the person shall be taken.
When the information received by the police officer is not of serious nature, the officer need not proceed in
person or depute some subordinate officer to investigate on the spot. And if no sufficient ground exists for
entering on an investigation, he shall not investigate the case. And shall state in its report for not complying
with the requirements of this section, and notify the informant that he will not investigate the case or cause it to
be investigated. He shall then send this report to the Magistrate empowered to take cognizance of such offence.
Sending a Report to the Magistrate (Section 158)
A report is sent to the Magistrate which is called the police report. It is sent by the superior police officer, so as
to make the Magistrate aware that a particular case is being investigated by a police officer. The main objective
of sending a report is to enable the Magistrate to control the investigation and give directions if required under
Section 159 of the Code.
Section 157 of the CrPC requires the officer in charge of the police station to submit a report to the Magistrate,
called a preliminary report.
Section 168 of the CrPC requires a subordinate officer to submit a report to the officer in charge of the police
station.
Section 173 of the CrPC requires that a final report is to be submitted to the Magistrate as after the
investigation gets over.
Order of Investigation by the Magistrate
The Magistrate, under Section 159, has been empowered, if he feels necessary, after receiving the report to
direct investigation, or to conduct himself or direct a subordinate Magistrate to hold a preliminary inquiry. And
as held by the Supreme Court, the Magistrate has no power to stop the investigation after it has started.
Attendance of Witnesses
The police officer making the investigation is empowered under Section 160 to require the attendance of any
person as a witness who is acquainted with the facts and circumstances of the case.
Examination of Witnesses
Any police officer who is in charge of the investigation or any other officer who is acting on the request of an
officer in charge shall and is empowered to examine a witness or person who is acquainted or aware of the facts
and circumstances of the case put before him. Section 161 of the Code confers powers on police to examine
witnesses.
Recording of Confessions and Statements
Any magistrate whether metropolitan or judicial, if he has jurisdiction or not in the case, is empowered under
Section 164 to record any statement or confession made to him in the course of the investigation. But a police
officer on whom powers of a magistrate have been conferred for the time being is not empowered to record the
same. The magistrate, before recording the statement is required to explain it to the person giving the statement
that he is not bound to give it and the statements can be used as evidence against him.
Admissibility of Evidence

17
The confession recorded under section 164 can be used as substantive evidence, without being formally proved.
Record of such confession is admissible as evidence. Entire confession must be brought on record. The Court
must carefully weigh it with other evidence. The Court may reject part of it.. Where the confession was found
rejected, the convictions based on them could not be sustained.
Procedure of Search
A police officer has to record in writing his reasons for the search, the place to be searched and the thing that
has to be searched in that place, after which he proceeds in person. If the police officer is unable to do the
search himself, then he may, in writing, order his subordinate officer to conduct the search, directing him to the
place to be searched and the thing to be searched for. And the subordinate officer can then conduct the search
on the basis of the written order given to him. The officer should make a record of the search done and send a
report of the same to the nearest Magistrate who can further furnish it to the owner/occupier of the place
searched, free of cost, on application.
Conclusion
The FIR is the stepping stone of the whole justice delivery system. It is a very crucial document for every
criminal case. It marks the beginning of the criminal prosecution. An FIR can be registered in simple steps and
is still a significant document for the investigation to begin. An investigation is an extremely thorough process
in criminal law and is done in a procedure established by law.

6.WHAT IS AN APPEAL? WHEN CAN BE AN APPEAL BE FILED IN AN

APPELLATE COURT? WHO CAN FILE AN APPEAL AGAINST ACQUITTAL?
Introduction
The criminal justice system can have far-reaching effects on an individual’s life, most significantly affecting
their right to life and freedom. Since courts, like any other man-made organisation, are likely to make mistakes,
it follows that the judgements they make are also subject to this risk of making errors. In order to prevent a
serious miscarriage of justice, there should be procedures in place to carefully review the rulings of subordinate
courts. To account for this, certain measures have been incorporated into the criminal procedure for appealing a
criminal court’s judgement or order. From Section 372 all the way up to Section 394 of the Criminal Procedure
Code are detailed requirements regarding appeals.
However, the opportunity to appeal is not always available. For this reason, even in circumstances where the
right of appeal has been limited by CrPC, the lawmakers integrated the concept of a review procedure termed
“revision” into the legislative process to entirely preclude any miscarriage of justice. The higher courts’
revision powers and the method for exercising those powers are laid forth in Sections 397 to 405. These
authorities are wide-ranging and ad hoc, which should be taken into account.
According to the Supreme Court’s decision in Hari Shankar v. Rao Ghari Chowdhury (1963), “the
distinction between an appeal and a revision is a real one. Unless the statute that grants the right of appeal
specifies otherwise, a rehearing on appeal includes a rehearing on both the law and the facts. In most cases, a
higher court has the authority to review a previous ruling to ensure that the original decision was made in
accordance with the law.”
Meaning of appeal
The Black’s Law Dictionary, while construing the concept of ‘appeal’ in its most original and natural sense,
explains it as “the complaint to a superior court for an injustice done or error committed by an inferior one,
whose judgment or decision the Court above is called upon to correct or reverse. It is the removal of a cause
from a Court of inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and
retrial”.
Appeal under criminal law

18
Although the term “appeal” is not defined in the Code of Criminal Procedure, 1973, it can be thought of as the
review of a lower court’s ruling by a higher court. It must be stressed that no appeal can be made from any
judgement or order of a criminal court except in accordance with the legislative procedures given forth in the
Code of Criminal Procedure, 1973, or any other law that is in force. This means that even the initial appeal is
time-limited by law; hence, no “vested right” to appeal exists. The rationale behind this principle is the
presumption that the trial was handled fairly by the courts that heard the matter. In the event of an acquittal, a
conviction for a lesser offence, or insufficient compensation, however, the victim may file an appeal of the
court’s decision. Appeals in the sessions courts and the high courts are typically governed by the same sets of
rules and procedures The Supreme Court’s authority is principally determined by the provisions of the Indian
Constitution and the Supreme Court (Enlargement of Criminal Appellate Jurisdiction), 1970.
In accordance with Article 134(2) of the Indian Constitution, the legislature also passed the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970, which gives the Supreme Court the authority to
hear appeals from the high court in certain cases. If the trial involved multiple defendants and the court issued
an order of conviction for all of them, each defendant has the same right to appeal the decision. The right to
appeal may be waived, however, under limited circumstances. These rules can be found in Sections 265G, 375,
and 376. The Code of Criminal Procedure of 1973 prescribes that verdicts and orders cannot be appealed except
in certain situations. This demonstrates the critical status of appeals.
The victim needs the permission of the high court to initiate an appeal against a decision of acquittal, as the
Supreme Court ruled in the case of Satya Pal Singh v. State of Madhya Pradesh. These are the cornerstones
of the appeals process under CrPC:
 The right to appeal must be established by law.
 No automatic right to seek an appeal.
 No appeal only against conviction.
 Petty cases are final and cannot be appealed.
 A plea of guilt results in an automatic conviction; there is no right of appeal.
Who can appeal
A person whose trial results in a guilty verdict may file an appeal of that verdict. When an appeal is made, it
does not imply that the case is being heard again. Issues raised by the trial transcript are used to make a decision
on the appeal. The court may hear new evidence from the appellant if the circumstances warrant it. Affidavits
from witnesses detailing their prepared statements for a new trial should be submitted to the court to
demonstrate this. It is the appellant’s burden to persuade the court that:
 claims that the jury’s judgement should be overturned because it was arbitrary or not supported by the
evidence,
 the judge made an error in interpreting the law, or
 there was a miscarriage of justice.
If an appeal is filed, the court can do just about anything with it. The court may uphold the conviction, overturn
the conviction, substitute a judgement of acquittal, or order a new trial. Even if the court rules in the appellant’s
favour on a technicality of the law, it may nonetheless decide to throw out the appeal if it determines that there
was no serious miscarriage of justice. The Director of Public Prosecutions may also file an appeal with the
Court of Appeal, requesting that the Court of Appeal quash an acquittal and retry the case, or file an appeal
against an interlocutory judgement.
Kinds of appeal
Section 373 CrPC – Appeal in court of session
In the event that a person has been ordered to offer security for the purpose of maintaining the peace or for
good behaviour, an appeal against the order may be filed with the Court of Session in accordance with Section
117.

19
Where a person has been wronged by any order refusing to accept or reject a surety, the person may seek
redress under Section 121.
Section 374 CrPC – Appeal from convictions
High Court orders of conviction issued while exercising original criminal jurisdiction have the right to be
appealed to the Supreme Court.
Conviction orders issued by the Court of Session or Additional Court of Session are appealable to the High
Court.
If the Court of Session or the Additional Court of Session imposes a sentence of more than seven years in
prison, the defendant may appeal the decision to the High Court.
Appeals may be taken to the Court of Session from convictions handed down by the Metropolitan Magistrate,
Judicial Magistrate I, or Judicial Magistrate II.
The court of session hears appeals from anyone who is dissatisfied with the results of a criminal proceeding
under Sections 325 and 360 of the Criminal Procedure Code.
Section 377 and 378 CrPC – State appeals
State government appeals:
Under Section 377, to increase the severity of a punishment;
Under Section 378, to overturn an acquittal of an accused person
Section 377 CrPC – Appeal against sentence
The state government may appeal the sentence to the Court of Session or High Court on the grounds that it is
inadequate pursuant to this clause, which may be done through the office of the public prosecutor.
If one disagrees with a magistrate’s sentencing decision, they have the right to file an appeal with the court of
session. If a sentence is handed down by a lower court, an appeal could be filed with the high court.
Section 378 CrPC – Appeal in case of acquittal
If a magistrate issues an acquittal in a case involving a cognizable and non-bailable offence, the district
magistrate may instruct the public prosecutor to appeal the decision to the court of session. If an acquittal is
issued by a court other than the high court, the state can still ask for a review of the decision by filing an appeal
with that court. If the inquiry was conducted by the Delhi Special Police Establishment or another government
body, the Central Government will provide instructions on how to file an appeal.
It should be mentioned that the high court’s authorisation will be sought in advance of launching an appeal
there.
In the event that the high court grants special permission to make an appeal, the complaint may do so in the
event that the case launched on the basis of the complaint is afterwards acquitted. A government employee who
has been found not guilty may file a new application within six months after the acquittal.
An application may be filed within 60 days following the judgement of acquittal if the complainant is not a
government employee. No appeal from a judgement of acquittal shall lie if such an appeal is dismissed.
Section 379 CrPC- Appeal against conviction by High Court in certain cases
If a person’s acquittal by the high court is overturned and he is subsequently convicted and sentenced to death,
life in prison, or a term of imprisonment of 10 years or more, the accused may appeal to the Supreme Court.
Section 380 CrPC- Special right of appeal in certain cases
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If a co-defendant has received an appealable sentence, then the other defendant has the right to appeal his own
non-appealable punishment under this provision.
Non-appealable cases
Section 375 CrPC- Certain guilty pleas are non-appealable
No appeal shall lie if the defendant enters a plea of guilty before the high court and the court records such a plea
and finds the defendant guilty.
If the defendant enters a guilty plea in a lower court, an appeal of the sentence may be made to the high court.
There is a right to appeal a sentence based on:
1. The totality of the punishment.
2. The sentencing process was followed per the law.
Section 376 CrPC- No appeal in petty cases
Petty misdemeanours shall not be subject to appeal. The procedures for handling petty matters vary by
jurisdiction. The following are examples of minor offences:
 In the instance of the High Court, the possible penalties include either imprisonment for up to 6 months
or a fine of up to Rs 1000, or both.
 Up to three months in jail time, a Rs. 200 fine, or both if found guilty in court of session.
 Up to 3 months in jail, or a fine of Rs. 200, whichever is greater, if prosecuted by a metropolitan
magistrate.
 There is a Rs 100 fine if you are caught breaking a law in front of a judicial magistrate.
 Up to Rs. 200 in the instance of a Magistrate authorised under Section 260 of the Criminal Procedure
Code.
Appellate court
The jurisdiction of an appellate court is laid out in detail under Section 386 of the Criminal Procedure Code.
Although the appellate court has the jurisdiction to dismiss an appeal summarily, it will only do so if the appeal
has not been dismissed under Section 384. In accordance with Section 386 of the Criminal Procedure Code, the
Appellate Court may dismiss the appeal if it finds that there is insufficient cause for interfering with the order
under appeal.
If the appellate court hasn’t already ruled out the appeal for the reasons stated, it might:
Reverse the lower court’s acquittal decision and remand the matter for further investigation, a new trial, or
commitment, as appropriate; or find the defendant guilty and impose the appropriate punishment;
Reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of
competent jurisdiction subordinate to such Appellate Court, or commit him for trial, or alter the finding,
maintaining the sentence, or with or without altering the finding, alter the nature or the extent, or the nature and
extent of the sentence, but not so as to enhance the same in an appeal from a conviction;
Reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court
competent to try the offence; Alter the finding maintaining the sentence; Alter the nature, the extent, or both, of
the sentence, so as to enhance or reduce the same; With or without altering the finding, alter the nature, the
extent, or both;
Modification or reversal of any prior order pending appeal;
Make any adjustment or order that is necessary or appropriate to the punishment; Provided, however, that the
sentence shall not be increased unless the accused has been given a chance to show cause against such increase.

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Further, the Appellate Court shall not impose on the defendant a greater penalty than that imposed by the court
that issued the order or sentence that is the subject of the appeal. Regarding an appeal that has arisen from an
order of conviction, Section 386(b) provides the Appellate Court with extensive powers, and the Appellate
Court has the authority to even acquit a person who has been found guilty of an offence by the trial court.
According to Section 386 of the Criminal Procedure Code, a person who has been convicted has the right to
appeal their case, and the Appellate Court has the authority to, while the appeal is pending, order that the
execution of the sentence or order that is being appealed against be suspended, and also, if the person is in
confinement, that they be released on bail or on their own bond.
Powers of appellate court If the Appellate Court has not dismissed the appeal as aforesaid, it may:
1.in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the
accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him
according to the law.
2.in an appeal from a conviction, reverse the finding and the sentence and acquit or discharge the accused, or
order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed
for trial, or alter the finding, maintaining the sentence, or with or without altering the finding, alter the nature or
the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
3.in an appeal for enhancement of sentence, reverse the finding and sentence and acquit or discharge the
accused or order him to be re-tried by a Court competent to try the offence, or alter the finding maintaining the
sentence, or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the
sentence, so as to enhance or reduce the same;
4.in an appeal from any other order, alter or reverse such order;
5.make any amendment or any consequential or incidental order that may be justified or proper;
Provided that the sentence shall not be enhanced unless the accused has been given an opportunity of showing
cause against such enhancement.
Provided further that the Appellate Court shall not inflict greater punishment than the court passing the order or
sentence under appeal for the offence, which in its opinion the accused has committed.
Section 386(b) gives ample powers to the Appellate Court in relation to an appeal arising from an order of
conviction and the Appellate Court may even acquit the person convicted of an offence by the trial court.
Section 386(1) of CrPC states that pending any appeal by. a convicted person, the Appellate Court may, for
reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be
suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
Conclusion
An appeal does not result in a new trial. In order to evaluate whether there are sufficient grounds to grant the
appeal, the appellate court instead reviews the record of the lower court’s proceedings. A complete transcript of
the trial as well as all pre and post-trial motions are included in the record. Appellate courts don’t just look at
the evidence presented in the trial; they also read the briefs the parties submit. Appellate briefs provide context
for the arguments made in an appeal and lay out the relevant legal issues at stake.

7.EXPLAIN THE PROCEDURE OF TRYING AN ACCUSED WHO IS OF UNSOUND

MIND IN A CRIMINAL COURT?
Introduction
The Code of Criminal Procedure, 1973 intends to give a mechanism for smoother delivery of justice. Since
CrPC deals with the arrest and trial of the person, it is very necessary that fairness should be there to establish
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the lawful detainment of a person from his liberty. When a person is unable to understand things, he is said to
be of unsound mind. Idiocy, madness, alcoholism, and mental degeneration are all examples of unsoundness.
According to Section 84 of the Indian Penal Code, 1860, “Nothing constitutes an offence done by a person
who, at the time of committing it, by reason of unsoundness of mind, is incapable of comprehending the nature
of the conduct, or that he is doing what is either improper or contrary to law”.
In other words, an act committed by a person of unsound mind is not considered an offence and falls under the
category of ‘General Exceptions’. Here, the caring attitude towards people who are mentally ill is maintained.
CrPC Chapter XXV Sections 328 to 339 makes provisions for accused persons of unsound mind. These
provisions are in the best interests of the mentally ill.
Criminal proceedings related to unsound mind
The following are the criminal procedures related to a lunatic or an individual of unsound mind under CrPC –
Section 328– procedure in case of the accused being a lunatic
According to Section 328 of the Act, if the magistrate believes that the person being investigated is unable to
defend himself or is mentally ill, the magistrate must guarantee that the subject is evaluated by a medical
professional during the investigation.
If the defendant is unable to defend himself, the magistrate will hear the prosecution and examine the records.
The magistrate shall postpone the proceeding for a limited term until the person’s unsoundness is remedied,
based on medical proof.
In the case of Mohan Lal @ Ranjan Mohan Bhatnagar vs The State (Nct Of Delhi) (2011), it was
contended that the evidence on record shows that the appellant was examined by various doctors prior to the
start of the trial by the learned Metropolitan Magistrate in proceedings under Section 328 CrPC and was found
to be a man of unsound mind, and the learned M.M. also passed an order in this regard and the trial began only
after he was declared mentally fit.
Section 329– procedure where a person of unsound mind is tried before the court
According to Section 329 of the Act, if the magistrate believes the person being tried is of sound mind and
incapable of self-defence, the magistrate ensures this by having the subject evaluated by a medical professional.
If the defendant is unable to defend himself, the magistrate will hear the prosecution and examine the records.
The magistrate shall record such a determination and postpone the hearing based on medical evidence.
The fact of insanity throughout the trial will be considered part of the proceedings.
In the case of Kulwinder Singh v. State of Haryana (2011), it was stated that since Section 329 of CrPC relates
to the trial of a person of unsound mind and that the application has been filed during the trial Section 329 of
the Cr.P.C. would be applicable.
Section 330- release of a person of unsound mind pending investigation or trial
According to Section 330 of the Act, If the person is found unsound or incapable of making his defence during
the inquiry and trial (Sections 328 and 329), regardless of whether the offence is bailable or not, the Court may
release him. In other words, if the offence is non bailable, the magistrate must grant bail as well. If, on the other
hand, bail cannot be granted, the accused must be kept in a location where he can receive treatment.
In the case of Kanhaiya v. State of U.P. (2018), the learned Additional Sessions Judge noted that a doctor at
the mental hospital in Varanasi had opined that he was an accused of unsound mind, and ordered that the
accused be sent under a detention warrant to the mental hospital in Varanasi, where the accused-applicant was
being treated, as noted in his decision. He opined that there was no good reason to release the applicant on bail,
and he denied the applicant’s bail application under Section 330 of the CrPC.

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Section 331- resumption of inquiry or trial
According to Section 331 of the Act, when the inquiry and trial are postponed or suspended, the magistrate
shall summon the person after he or she regains mental soundness or ceases to be insane and resume the inquiry
and trial.
In the case of Subhash Bhardwaj v. State (2016), the Court concluded that the trial will be scheduled after the
trial court receives the IHBAS report and completes its investigation pursuant to Section 331 CrPC.
Section 332- procedure of accused appearing before the magistrate or the court
According to Section 332 of the Act, If the accused appears before the magistrate and the court believes he is
capable of presenting his defence, the investigation and trial will continue.
If the person is still unable to recover from his condition, the provisions of Section 330 will apply once more.
In the case of Geeg Singh v. State of Rajasthan (2008), the Court said that the trial will continue as the accused
is capable of presenting his defence.
Section 333- when accused appears to have been of sound mind
According to Section 333 of the Act, when the magistrate has reason to believe the individual is of sound mind
and there is also evidence that acts were committed by the accused, when the act was committed by the
accused, and when the act was committed while the accused was of sound mind. The magistrate will then
proceed with the case.
Section 334- judgement of acquittal of the accused on the ground of unsoundness of mind
According to Section 334 of the Act, if a person is acquitted on the grounds of insanity and is unable to identify
the nature of the act, the findings must state whether the act was committed by the accused or not.
In the case of Abdul Latif v. The State of Assam (1981), the Court came to the conclusion that the accused
was incompetent to know the nature of the act or that he was doing something that was either illegal or against
the law at the critical moment. As a result, they overturned the convictions and punishments, accepted the plea
of insanity, granted the appeal, and found the appellant not guilty.
Section 335- person acquitted on such ground to be detained in safe custody
According to Section 335 (1) of the Act, if a person is acquitted by a magistrate on the grounds of insanity, he
or she should be detained in safe custody or should be delivered to a family member or friend.
When it comes to delivering an accused person to a relative or friend, the court can only do so if the relative or
friend makes an application to the magistrate and the friend or relative assures the court of security.

Responsibilities of a relative or friend

 He must take proper care of that individual.
 When necessary, the relative or friend should present that person for inspection as directed by the state
government.
Section 336- the power of state government to empower officer in charge to discharge

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According to Section 336 of the Act, the State Government may delegate all or all of the functions of the
Inspector-General of Prisons under Section 337 or Section 338 to the official in charge of the jail in which a
person is imprisoned under the provisions of section 330 or section 335.
Notable case laws related to person of unsound mind
State of Maharashtra v. Sindhi (1975)
In this case, the Court held that the accused could not be declared to be incapable of defending himself because
he was fully aware of the nature of the crime he had committed and the proceedings against him. The specialist
has been called to ensure mental insanity. The High Court carefully considered their testimony before recording
its own conclusions on the key issues.
I.V. Shivaswamy v. State of Mysore (1971)
In this case, the Court ruled that the investigation will be conducted only if the magistrate is satisfied that the
accused is insane or of unsound mind. However, if there is no possibility of unsoundness, such an investigation
will not take place. In the event of a doubt, an investigation is required.
Conclusion
It can be concluded that such provisions are in the best interests of those who are mentally ill and incapable of
self-defence. During the period of his insanity, the magistrate has the authority to postpone the trial or
procedures. After he has recovered his health or is capable of defending himself, the court will proceed as if he
is of sound mind. Such a person must be maintained in a secure environment or in safe custody. A relative or
acquaintance of that person may file a petition to the magistrate for release if that person is mentally ill. We can
see the court’s concern for the mentally ill in this case. Such provisions are required to achieve proper justice.

8.EXPLAIN THE DUTIES OF PROBATION OFFICER WITH REFRENCE TO

PROBATION OF OFFENDERS ACT 1958?
Introduction
The Probation of Offenders Act of 1958 builds on the premise that juvenile offenders should be stopped by
counselling and rehabilitation rather than thrown into jail by being regular offenders. The probation officer
focuses on the offender’s concern or desire, and tries to solve his concern and aims to make the offender a
productive member of the community. Within the criminal justice system, the probation officer plays a critical
or important role. He is at the forefront of the rehabilitation of the prisoners, he helps confess and rehabilitates
the prisoners as a decent citizen in society
Who is a Probation Officer
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

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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.
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.
The probation officer is responsible for overseeing the probationer according to Section 14(b) and Section 18.
The probationers issued or granted a check by the judge, i.e., have different aspects. Both human and legal.
When the court awards punishment to an offender, it must make sure that the offender also has rights to
rehabilitate and according to ordinary human beings. Supervision is, therefore, one of the strategies that can
cure and rehabilitate the offender under the supervision of the probation officer and protect society against the
offender.
At the same time, the trial officer has a responsibility to mould the offender’s character. There are therefore two
aspect of supervision.
 The testing person must comply with the requirements of the court. In the event that the probationer
violates terms, the check agent must report the probation order to the court. The trial officer must
maintain the balance between the offender’s recovery and the safety of society. In this sense, he has
double work. If the probationer makes no improvement in his actions, he would then have to act as a
guardian for society.
 Second, the trial officer must accept the probationer as he is, that is, with all his faults. He has to
distinguish between cases which require very little support and attention, those which respond to
guidance and advice and those which require close attention, but which do not respond to his therapy.

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The probation officer must establish a relationship with the offender and create faith in him in the mind of the
offender during the probationary period. He must also construct and give him the confidence in the offender in
deciding his own course. The probation officer must stand by him in order to provide him with appropriate
guidance and suggestions and information, which will enable him in cooperating with the probation officer to
carry out rehabilitation programs.
Probation is an alternative sentence, which the offenders selected under the supervision of probation officers are
allowed to serve a criminal sentence within the community. A probation sentence can require a criminal to pay
fines or restitution or seek advice on substance abuse or for problems with his or her health or family.
Probation control is one of the ways for courts to punish people who are accused of criminal activity. Infractors
undertake to the court to behave properly, to prevent more crimes and to comply with the terms of the warrant.
Normal supervisory requirements include:
1. Being of good conduct;
2. To comply with the orders of the supervisor;
3. Information about any change of address to the supervising officer.
Based on the circumstances of the case, additional conditions can be imposed by the Court. Examples can
contain:
1. Participation in a course of training;
2. Hostel residence; and
3. Participation in a clinic or program.
For at least six months to three years, the Court is entitled to issue a probation order.
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.
Impartiality and objectivity are the two most important requirements of a pre-sentence statement to bear witness
to the history and behaviour of the offender. Submitting a disciplinary report on the defendant as ordered by the
Court is also one of the main tasks of a probation agent. It should include all the details of the offender as well
as an evaluative summary of the case of the offender.
The preparation of a pre-sentence report for guidance by a Court, to grant or not the benefit of probation, is one
of the major tasks of a PO entrusted to under Section 14 (a) of the Act. For Section 14(a) of the Act, the PO
shall submit relevant facts, the information in the report as requested by the Court, following inquiries into the
character of a criminal, his social circumstances, financial and other circumstances of his family.
The case shall be outlined with a statement of facts. PO’s case review helps the court decide the right way to
deal with the defendant after it’s identified guilty.
The report shall, if submitted to the Court one day before its judgment, be treated like ‘confidential’ and
delivered to the Court on the date specified therein; it shall be included in a sealed cover.

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̈If the PO determines that the probationer has matured enough that further supervision is no longer required, he
will make a request for release of the bond in consultation with the district probation officer.
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.
In order to monitor progress in rehabilitating discharged probationers during such periods as may be prescribed
by the Chief Probation Superintendent and to submit a follow-up report to the district probation officer and the
Chief Probation Superintendent, the Probation officer will continue to keep contact with discharged
probationers. Where appropriate, aftercare schemes and organisations such as Nav Jeevan Mandals, District
Probation and After Care Association shall be participating in the Probation Officer.
Appointment of Probation Officer
Section 13 of the Probation of Offenders Act states about the appointment of Probation Officer:
 A person appointed by or recognized as a probation officer by the Government of the State.
 A person to whom a company recognized on behalf of the State Government has made provision for this
reason.
 Any other person who, according to a court, is fit to act, under the particular circumstances of the case,
as a probation officer in an exceptional case.
Responsibilities of Probation Officer
A probation officer will need to meet, on a monthly or sometimes weekly basis, their client. Based on an
assessment of risk/needs, the probation officer may decide the degree of supervision that a person requires
(minimum, medium or maximum). It helps to determine how much assistance a person requires. Evaluations
assess how a person is engaged in a group, often referred to as their community relations. The assessment also
checks how likely another person will commit more crimes.
Any time a probation client visits his/her probation officer, a report form needs to be filled out. Lives of the
populations also shift because of unemployment, job gain, or divorce. Meeting with a client allows the
probation officer to see where additional support is required in order for the client to succeed. Therefore, when
a person starts at a maximum supervisory level (weekly meetings), this does not mean that they must remain at
this level during their probationary period. Probation officers are required to regularly revise the case plan of a
probationer.
Conclusion
The Probation of Offenders Act, 1958 is very helpful especially in the present context of prison reform, of a
prison sentence that no longer recognizes the jail sentence as the only course of care to ensure the safety of
society, is of considerable significance to the judiciary and probation services. The alternative punishment
measure, i.e. probation and the theory of reform penalty, can be achieved only by the cooperation of the
judiciary and the administration. This will benefit a country like India, with prisons that are always

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overcrowded, with regular abuses of human rights that harden a person’s internality. Probation is a validation of
the human being inside every being, and priority should be granted.

9FEATURES OF PROBATATION OFFENDORS ACT ?

Introduction
“Hate the crime and not the criminal”. You might have heard this a zillion times. This means that we need to
eliminate crime and for this the elimination of criminals is not required. The Criminal Law in India is more into
reforming offenders rather than punishing them. It is true that punishment gives a sense of satisfaction to the
society as well as to the victim, but this does not reform the criminals. Especially in the cases of imprisonment,
once the person is out of prison, he is back to his old ways of infringement of rights. This is common in the
cases of youth criminals. Their minds are not mature and get diverted when engaged with several criminals in
jail.
Thus, instead of keeping the accused with hardened criminals in jail, the court may order personal freedom on
the basis of good behaviour. The court can also grant a supervision period for the accused. The main aim
behind the Probation of Offender Act, 1958 is to give an opportunity to offenders to reform themselves rather
than turning into hardened criminals. Section 562 of the Code of Criminal Procedure,1898 (after amendment it
stands as Section 360 of the Code of Criminal Procedure, 1973) provides that any person not below twenty-one
years of age who may have not been convicted for an offence for imprisonment up to seven years or not
convicted to death or imprisonment of life can be released on the basis of probation for good conduct.
The Act is based on a reformative approach which has come over the years from the Doctrine of Deterrence. It
has been observed that the offender’s readjustment in society decreases after the release. They might also face
problems while working with professional delinquents. This creates an undesired impact on the convicted and
his/her life afterwards. The Probation of Offender Act, 1958 saves minor offenders from becoming regular
criminals. This is done by providing them with a chance to reform themselves rather than getting into prison.
The probation officer amicably reaches to the needs and difficulties of the accused and tries to solve the
problem. This is done for the person convicted of minor crimes.
The Probation Officer is the key human being in the process of Probation management. He contacts the
Probationer directly. He is responsible for upholding the provisions of the court’s probation order. He carries
out two primary functions which consist of the Probation offender presentence investigation and supervision of
the offender. The Probation of Offender Act, 1958 aims at providing the release of the accused if he has been
found not guilty of an offence not punishable with death or life imprisonment after due admonition. It has been
enacted to provide the offenders with an opportunity to prove that they can improve their behaviour and can
live in a society without harming them.
Scope and Background
The Act is a landmark in advancing the new liberal reform movement in the penology field. It is the result of
the recognition of the doctrine that criminal law is more about reforming the individual offender than about
punishing. Probation has its influence from the juvenile justice system of “positivism” which has its
development from the ideologies of the criminal justice system. The origin of probation was traced in the early
practices of the English law and experienced development in the 19th century. However, the development of
probation began in the early twentieth century, when various countries like Europe and North American began
to initialize methods to reduce the consequence of severe punishments. Imprisonment became the most
common mode of penal sanction.
From early 1800 to the present date, probation has tried to reform, remake, remould the offenders into honest,
good and law-abiding citizens. In India, the main legal articulation to the reformatory framework for the
probation theory is found in procedural code. Later the Children Act, 1908 additionally enabled the court to
discharge certain guilty parties waiting on probation because of their good conduct. The extent of arrangements
of probation law was expanded further by the enactment in 1923 resulting in the Indian Jails Committees

29
Report (1919-1920). In 1931 the Government of India arranged a Draft Probation of Wrongdoers Bill and
flowed it to the then Provincial governments for their perspectives.
The Indian system says that the judiciary should solely vest in the probationary laws. This is so because the
power of probation will be vested upon the voluntary and extrajudicial agencies which lack judicial methods
and techniques. This would create a serious problem as these organisations will have their own values and
considerations. Sociologists and psychologists will be concerned only upon the reformations of the offender
and not the legal implication of the reformative measure. Probation is subjected to judicial review under Article
226 of the Indian Constitution which will eventually allow the judges to bring it under judicial scrutiny.

Aim and Objective of Probation

The main aim and objective of probation is to permanently reform the lawbreakers. It involves moulding the
habits into constructive ways by rehabilitation and reformation. The objective is to give a chance to the anti-
social person to willingly cooperate with society. This will also give him social protection and security. It is a
substitution for imprisonment. Imprisonment will not always serve the purpose of eliminating crime. The object
of Probation Law is more to reform the offender than to punish him. This is what we generally call Probation.
Simply, it can be understood as the conditional release of an offender on the promise of good behaviour.

Statutory provisions under the Act

The provision is broadly classified into procedural and substantive general laws dealing with probation of the
offenders.The first provision to deal with probation was in Section 562 of the Code of Criminal
Procedure,1898. After the amendment in 1973, the probation was dealt with in Section 360 of the Code of
Criminal Procedure. This Section says that if:

1. Any person who is not below twenty-one years and is convicted of a crime for which the punishment is
imprisonment for seven years or is convicted for an offence punishable with fine.
2. Or any person who is below twenty-one years or if any women convicted of an offence not punishable
with imprisonment of life or death and no previous conviction is proved against the offender.
3. And appears before the court, regardless of the circumstances in which he has committed the offence,
the court might release the offender on the promise of good conduct.

Salient features of the Act

The most important salient feature of the act is

1. The Probation of Offenders Act of 1958 is aimed at modifying novice prisoners by rehabilitating them
in the society and avoiding the progression of juvenile offenders into obdurate criminals under
environmental control by locking them in prison with hardened criminals.
2. This seeks to release first offenders, following proper admonition or notice with advice who are
suspected to have committed an offence punishable under Section 379, Section 380, Section 381,
Section 404 or Section 420 of the Indian Penal Code and even in case of any crime punishable with
incarceration for not more than two years, or with fine, or both.
3. The Act demands that the Court can order such compensation and the costs of the prosecution for
reimbursement by the accused as it finds fair for the damage or injury to the victim.
4. This Act empowers the Court to free those prisoners on probation in good behaviour if the crime
supposedly perpetrated is not punishable by death or imprisonment for life. He will, therefore, be kept
under control.

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 5. The Act gives the Judge the right to modify the terms of the bail after a prisoner is placed on probation
with good behaviour and to prolong the probation period not to exceed three years from the date of the
initial order.
6. The Act offers extra protection for people under the age of twenty-one to prevent sentencing him to
prison. However, a person found guilty of a crime punishable by life imprisonment can not have this
clause.
7. The Act empowers the Court to grant a warrant of arrest or summons to him and his guarantees
compelling them to appear before the Court on the date and time stated in the summons if the defendant
placed on bail refuses to comply with the terms of the bond.
8. Under the terms of this Act, the Act empowers the Judge to try and sentence the defendant to jail. The
High Court or any other Court may even make such an order when the case is put before it on appeal or
in revision.
9. The Act offers a significant function for probation officers to support the Court and oversee the
probationers under its supervision and to guide and support them in seeking appropriate work.
10. The Act applies to India as a whole except for Jammu State and Kashmir. This Act shall come into force
in a State on such date as the Government of the State may designate, by notice in the Official Gazette.
It also gives state governments the right to put the Act into force on multiple dates in different parts of
the State.

Case laws

Daulat Ram v. The State of Haryana 1972 SC 2434 – In this case, it was held that the aim of this Section was
to protect the youth. The juvenile offenders would not be sent to jail if their crime was not as serious as to
punish them with life imprisonment or death. Therefore, the provision should be liberally construed keeping in
view the spirit embodied therein.

Ramji Nissar v. The State of Bihar; AIR 1963 SC 1088 – In this case, the Supreme Court observed that the
object of the Act, 1958 is to prevent the turning of youthful offenders into criminals by their association with
hardened criminals of mature age within the walls of a prison. The method adopted is to attempt their possible
reformation instead of inflicting on them the normal punishment for their crimes. The person’s age problem is
important not for the purpose of assessing his or her guilt, but rather for the purpose of punishing the crime for
which he or she is found guilty. Consequently, if a court determines that the defendant was not under the age of
21 on the day the court found him guilty, Section 6 does not apply.

Conclusion

The benefit of probation can be usefully applied to cases where persons on account of family discord,
destitution, loss of near relatives, or other causes of like nature, attempt to put an end to their own lives. Its aim
is to reform the offender and to make him see the right path.It would be of great help to a country like India
where the prisons are always overcrowded, with regular abuses of human rights that will harden a person’s
inside. Probation is the divine affirmation inside every being and it has to be given importance. In order to
accomplish the ultimate purpose of reclaiming all criminals back into organized society, the reform and
recovery process must be carried out in the sense of the current social situation. It also helped to build positive
views towards prisoners and expanded the role of enforcing criminal justice beyond standard sentencing.

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 10EXPLAIN. CHILD WELFARE COMMITTIES CONSTITUTION AND POWERS
UNDER JUVINILE JUSTICE ACT?
Introduction

According to the Child Marriage Restraint Act, 1929, a male of age below twenty-one years is called a child
and a female of age less than eighteen is called a child. Children are young, innocent and vulnerable and hence
they need to be protected from the cruelty of the outside world. In India, 39% of the population is of children,
which is approximately 472 million.The future of children holds the future of a nation and therefore protection
of children is of prime importance. It is the duty of the State to look after a child to ensure full development of
its personality and for him to achieve his goals.

The Juvenile Justice Act was enacted by the Government of India in 1986. The General Assembly of the United
Nations, in 1989, adopted the UNCRC (United Nations Convention on the Rights of Child). In 2000, in order
to adhere to the Convention on the Rights of Child, the old law was replaced by the Juvenile Justice(Care and
Protection of Children) Act, 2000. The Juvenile Justice (Care and Protection of Children) Act was passed in
2015 with the aim of reenacting the previous Act of 2000 so that comprehensive provisions could be made for
the children alleged and who are found to be in conflict with the law and also the children in need of protection
as well as care.

Child Welfare Committee Constitution.

The Child Welfare Committee is an autonomous body declared as a competent authority to deal with children
in need of care and protection. Section 27 of Chapter V of the Juvenile Justice (Care and Protection of
Children) Act, 2015 talks about the Child Welfare Committee.

It is mandatory to form one or more Child Welfare Committees in every district for exercising power and to
discharge the duties conferred in relation to children in need of care and protection. This committee consists of
a Chairperson and other four members who according to the State Government are fit to be appointed, at least
one of whom should be a woman and the other should preferably be an expert on matters that are concerning
the children.

A Secretary and other staff shall be provided by the District Child Protection Unit for secretarial support to the
Committee for its effective functioning. For becoming a member of the Committee, that person(who wants to
become a member) should be actively involved in health, education and welfare activities in relation to children
for at least seven years or should be a practising professional who has a degree in child sociology, psychiatry,
psychology, law or human development.

For the appointment of a member, he should possess all the prescribed qualifications. The duration of this
appointment should not exceed the time period of three years. Appointment of a member shall be terminated if
that member uses his power for wrong measures, been convicted of an offence involving moral turpitude
(where such conviction has not been reversed and he has not been granted full pardon) and does not attend the
meetings of the Committee for a period of three months of three-fourths sitting of the Committee in that year. A
review in every three months shall be conducted by the District Magistrate.

The Child Welfare Committee functions as a bench guided by the powers that are conferred in the Code of
Criminal Procedure, 1973. Anyone connected to the child is allowed to file a petition to the Magistrate of that
District, who considers and passes appropriate orders.

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Procedures in relation to the committee

The procedures in relation to the committee are mentioned in Section 28 of the Juvenile Justice (Care and
Protection of Children) Act, 2015. There should be a meeting of the Committee at least twenty days in a month
for observing rules and procedures with regards to the transaction at its business meetings.

A sitting of the Committee is considered when there is a visit to an existing child care institution of the
Committee. A child, who is in need of care protection and care needs to be placed in a Children’s Home or a fit
person when the Committee but is not in session, he must be produced before an individual member of the
Committee.

The opinion of the majority shall prevail if there is any difference of opinion between the members of the
Committee.

If there is no majority of such kind then the opinion of the Chairperson shall be considered. Subject to the
provision of minimum members of the Committee, there shall be no order made by the Committee that declares
it invalid by reason of just the absence of a member during any stage of the proceedings that are held.

This is applicable provided that there are at least three members who need to be there to dispose of the case
finally.

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).

The said circular stated that the Child Welfare Committee of Thane (Maharashtra) was not fully constituted and
functional. By looking at the above Circular, the charge of Thane Child Welfare Committee was handed over to
the Child Welfare Committee, Mumbai on the command of the State Government. The Deputy Secretary of the
Woman and Child Development Department presented this in the Court.

The Court directed the Child Welfare Committee, Mumbai to take up an application dated 4 April 2016 on a
priority basis and pass appropriate orders in accordance with law. The petition was disposed of by giving such
directions.

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In the case of Krishna Kumar v. Kollam Child Welfare Committee, a writ petition was filed by the father of
Kumari Amalenthu who was a victim of a rape case.

The court was approached by her father who contended that the child was originally handed over to the father
by the Child Welfare Committee but later, the Committee took away the child and then that child was housed at
the Nirbhaya Shelter Home. He contended for the custody of the child as he was the biological father. The
learned Counsel had submitted that the child had no complaint against the father.

There was no explanation as to why the child was taken to the hospital and where the prime accused was being
treated. It is true that she may like to have an association with her biological father. Learned counsel then
submitted that the child was taken at the instance of the police and that statement could not be believed.

In the above circumstances, the Court was of the view that the child will be more protected when she is in the
custody of the Child Welfare Committee. It shall be open for the petitioner to approach the Child Welfare
Committee and seek for appropriate orders and therefore dismissed the writ petition.

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.

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 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

Conclusion

A reading of Section 27 of the Juvenile Justice (Care and Protection of Children) Act, 2015, tells us that the
State Government constitutes Child Welfare Committees in various districts. These Child Welfare Committees
are constituted for exercising powers, performing procedures in relation to the committee, carrying out
functions and responsibilities and discharging duties that are applicable to the committees that work for the
protection and care of children by this Act.

Child protection is about protecting children against any perceived or real danger which would pose a risk to
their life or childhood. It focuses on reducing their vulnerability to any kind of harm and ensuring that no child
falls out of the social safety net. Those children who do, should receive necessary care, protection and the moral
support to bring them back to safety. The Child Welfare Committee works to provide such care to the children..

9.GENERAL PRINCIPLES TO BE FOLLOWED IN ADMINISTRATION OF

JUVENILE JUSTICE BOARD & CARE & PROTECTION OF CHILDREN ACT?
Introduction

An apparent set of principles focused on reformation and rehabilitation has dominated academic and political
discourse concerning the drafting of laws related to juvenile justice and children in conflict with the law. The
Juvenile Justice Act of 1986 and its subsequent amendments can be considered in many ways a landmark in
signifying changes in the thought process of lawmakers. At the turn of the 21st century, a need was felt to
update the laws bearing in mind prescribed standards set by the UN Convention on the Rights of the Child,
1989. The UN Standard Minimum Rules for Administration of Juvenile Justice, 1985, as well as the UN Rules
for Protection of Juveniles Deprived of their Liberty, 1990. The legislative exercise subsequently culminated
into the Juvenile Justice (Care and Protection of Children) Act, 2000, along with the Juvenile Justice (Care and
Protection of Children) Model Rules of 2000, are replaced by the Juvenile Justice (Care and Protection of
Children) Model Rules of 2007. In the wake of the 2012 Delhi gangrape and murder case, one of the accused,
who was a juvenile, was sentenced to three years in a reformation home as per the provisions of the juvenile
justice Act, 2000. In light of the Supreme Court judgement upholding the constitutional validity of the Act, in
December 2015, the Delhi High Court held itself to be bound by the provisions and refused to extend the
sentence of the accused. This led to a widespread feeling of a failure of justice, with the masses protesting in
unity with the victim’s family. Drawing much flak from various sections to correct the supposed gap in the
previous act, the government delivered the juvenile justice (Care and Protection of Children) Bill, 2014, which
was surpassed by the Parliament in its present shape on 22nd December 2015. It acquired the President’s assent
on 31st December 2015, and came into impact on 15th January 2016, as the juvenile justice (Care and
Protection of Children) Act, 2015.

35
If a child is found guilty of committing a crime, then the Juvenile justice board takes several measures
regarding the minor’s reformation and they are as follows:

 Allow the child to return home after proper advice and caution regarding the crime that the child has
committed and what is the punishment of that crime as per the provisions of law.
 Juvenile justice boards sometimes also instruct the children to engage in social work and social welfare
so that this engagement can help in imparting good social values in the accused child.
 It also makes children busy in group counselling and group activities as much as possible so that the
child can learn the value of working together and can learn how to cooperate with each other in a
society.
 If the child has committed a grave crime then, in that case, the child can be sent to the reform house for
a minimum of 3 years or it can be exceeded if required.
 Sometimes the Juvenile justice board releases the convicted child on trial if the child is seen to exhibit
good conduct towards the society or an individual.

Juvenile Justice Care and Protection Act, 2015

The accompanying Act of Parliament obtained the consent from the President on 31st December 2015 and is
thus circulated for general info. This is an Act to combine and amend the law associated to children which are
positively asserted and found in conflict with the law and the child needs to provide care and security by taking
into account their essential needs through legitimate consideration, assurance, advancement, treatment, social
re-mix, by embracing a child cordial approach in the mediation and removal of issues to the most progressive
growth of the child and for their restoration through procedures given, and organizations and bodies as
mentioned in the recent amendment of juvenile justice Act 2015 Section 1(1)(2)(3)(4) it represents that:

This Act might be popularly known as the juvenile justice (Care and Protection of Children) Act, 2015.

It reaches out to the entire of India aside from the State of Jammu and Kashmir.

It will come into power on such date as the Central Government may, by notification in the Official Gazette,
choose.

Notwithstanding anything contained in some other law for now in power, the social arrangements of this Act
will apply to all issues concerning child’s needs care and security and youths in strife with law, including
anxiety, confinement, arraignment, appropriate punishment or detainment, restoration and social re-
incorporation of kids in a struggle with law.

The increase in the number of crimes (including rapes) committed by juveniles (aged 16 to 18) was the main
reason to introduce the new legislation. More retributive than reforming, the new law raised several questions.
The new law is considered retributive because it contains provisions for teenagers who commit a heinous crime
(punishable by 7 years or more) must be tried as adults but in the juvenile court. The child found guilty of the
heinous crime is sent to a safe place until the age of 21, after which he is transferred to prison. The children’s
court ensures it. This means that the benefit of a child is not granted to the minor when found guilty of
committing a heinous crime.

Many protesters criticized the new law on minors for being unconstitutional. The Court noted that in Rule 4 of
the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, in the case of Pratap
Singh v. the State of Jharkhand [3], one had to give all its importance to the moral and psychological elements
even when responsible for a crime.

36
According to Professor Ved Kumari [4], if a 16-year-old commits a heinous crime and his is punishable by 7
years of imprisonment, he must be brought before the Juvenile Justice Council, which decides on the physical
and mental capacity of the child; if the minor committed such an offence has the ability to understand the
consequences of the offence and under what circumstances the offence was committed. This work of the
Juvenile Justice Commission is difficult and there is a good chance of uncertainty.

Many activists have raised another problem, namely that the 2015 law violates the spirit of Article 20(1), which
states that a person can not be sentenced to a harsher sentence than that which would have been applied to him
or her. by the law of the country. Under the new law, if a sentenced minor reaches the age of 21 but has not
completed his entire sentence, he can be sent to prison if deemed appropriate. This new law undermines the
spirit of Article 20(1).

Important Definitions

Section 2(13) of the juvenile justice act 2015 signifies a child who is in conflict with the law and asserted or
found to have convicted an offence and not finished the 18 years of age on the date of the delegation of such an
offence.

Section 2(35) characterizes the significance of a juvenile as “juveniles” and a child underneath the age of 18
years.

Juvenile Justice (Care and Protection of Children) Rules, 2016 are the primary rules. The constitution of India
and UN Standard Minimum Rules for the Administration of juvenile justice, 1985 also known as the Beijing
Rules are guiding fountains. United Nations Convention on the Rights of the Child, 1989 known as UNCRC is
the source of all protection issues for children.

General principles of care and protection of children

General standards to be followed in the organization of Act- The Central Government, the State Governments,
the Board, and different offices, by and large, while executing the provisions of this Act will be guided by the
accompanying basic principles, specifically:

Section 3 of the Juvenile Justice Act 2015 states the principles of care and protection of children:

1. Principle of the Best Interest of the Child- “Best interest of the child” signifies the reason for any choice
taken with respect to the child, to guarantee satisfaction of his fundamental rights and needs, character,
social prosperity and physical, enthusiastic and scholarly improvement.
2. The Principle of Presumption of Innocence- It will be regarded all through the procedure of justice and
protection, from the underlying contact to elective consideration, including aftercare. Any unlawful
behaviour of a child which is done for endurance, or is because of environmental or situational factors
or is done under the control of adults, or peer groups.
3. Principle of Right to maintain privacy and Confidentiality- Each child has an option to the right of his
protection and privacy by all methods and all through the legal procedure. No report of the juvenile will
be distributed that may prompt the recognition of the juvenile but to the situations where the exposure of
their distinguishing proof identity would cause protection of them.
4. Principle of equality and non-discrimination- That there shall be no discrimination against a child on
any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity
and treatment shall be provided to every child. Every single suitable measure should be taken to ensure

37
 that the child is secured against all types of discrimination or punishment based on the status, activities,
expressed opinions or convictions of the child’s parents, lawful guardians, or family members.
5. Principle of Participation- The child should be provided with an opportunity to being involved and the
child who is capable of forming his or her own views has the right to express those views freely in all
matters which is affecting the child’s growth and development, the views of the child is given due
importance in accordance with the age and maturity of the child.
6. Principle of institutionalization- It is a measure of last resort, in certain circumstances the family is not
capable of taking care of the well being of the child and when the child has no family to be cared for and
there is no one to look after the child, the government must make alternative provisions.
7. Principle of Diversion- Diversion presents a few preferences when contrasted with the conventional
criminal justice framework which can be excessively unbending, awkward, slow and inert to the
necessities of children who are often first-time or non-genuine offenders. Police are the first point of
contact between the juvenile and the juvenile justice Board or the court and as such the police think that
it is not essential to proceed for the juvenile to the judicial bodies on the consideration that the rights of
the child, protection of the society and the rights of the victims, they may divert the juvenile from the
formal court processes based on the acts and rules.
8. Principles of Natural Justice- Every child should be treated fairly and equally, regardless of his or her
race, ethnicity, colour, gender, language, religion, political or another opinion, national, ethnic or social
origin, property, disability, and birth or another status. In certain cases, special services and protection
will need to be instituted to ensure children’s rights are met equally.
9. Principle of Family Responsibility- Guardians or parents of a juvenile must be associated with the
groundwork for the inquiry and trial and be available when it happens. They ought to be educated by
police, investigators or judges that a conventional request will happen and that they are welcome to join
in.
10. Principle of Dignity and worth- The treatment of the child will be predictable with the child’s feeling of
pride and worth. Every single person is brought into the world free and equivalent in poise and rights.
They are invested with reason and conscience and should act towards each other in a soul of fellowship
(Article I of UN Declaration Human Rights). All children will be managed with respect due to their
inherent dignity and human beings.
11. Principle of Safety- The state has a greater responsibility for ensuring the safety of every child in its care
and protection, without resorting to restrictive measures and processes in the name of care and
protection.
12. Principle of Positive Measures- The main theme of the principle is the promotion of the wellbeing of the
juveniles. The characters and behaviours of the juveniles shall be corrected and reformed by following
positive measures.
13. Principle of non-stigmatizing Semantics- The principle of non-stigmatizing semantics proposes not to
utilize words that are utilized in ordinary criminal procedures, choices, and activities that may
stigmatize the juveniles. The rule command to maintain a strategic distance from the utilization of
antagonistic or accusatory words, for example, capture, remand, blame, charge sheet, preliminary,
indictment, warrant, summons, conviction, detainee, reprobate, ignored, custody or prison.
14. Principle of non-waiver of Rights- The Constitution of India carefully precludes the waiver of rights.
The equivalent is epitomized in the juvenile justice system in India. The legal rights enforced by the
Juvenile Justice Act should not be postponed under any circumstances by any juvenile, competent
authority and stakeholder working under the juvenile justice system. Also, further, the non-exercise of
fundamental rights doesn’t add up to the waiver of the equivalent.
15. Principle of Repatriation and Restoration- States that it shall be ensured that a child shall not be
separated from his or her parents against their will. However, the Board or the Court considers the
38
 separation is necessary for the best interests of the child in accordance with the law and procedures,
such determination may be necessary in a particular case such as one involving abuse or neglect of the
child by the parents, or one where the parents are living separately and a decision must be made as to
the child’s place of residence.
16. Principle of Fresh Start- The principle of fresh start promotes a new beginning for the juvenile in
conflict with the law. This rule also instructs to destroy all past records of the juvenile within a
stipulated period. They are ensured to erase all their past records.

Conclusion

According to a 2015–16 economic analysis, it is found that there is a sharp decrease in government school
enrolments in provincial regions from 2007 to 2014. It stressed the need to build these numbers significantly to
accomplish the Universalization of Education. However, considering such proposals, funds assigned to the
Sarva Shiksha Abhiyan was raised by a minimum percent. There exists just a single welfare scheme identified
with child labour scheme for the welfare of working children in needing care and security and that too saw a
certain decline in funding.

Juvenile Justice (Care and Protection) Act 2015 was passed in light of the failure of Child protection. Yet at the
same time there exists a similar circumstance due to the absence of duty and commitment, coordination
between different partners in Child Protection and due to the absence of experienced and logical social work
experts in the usage of ICPS at state to grass-root level. Child protection should go under a single organization
following with a positive, adequate and proficient hierarchical structure which should root till the village level.

10WHAT ARE THE VARIOUS PROCESS TO COMPEL APPERANCES AND WHAT

ARE THE CONSEQUENCES OF NON APPERANCES?
Introduction

Something which violates penal law and is a positive or negative act or omission is called a crime. Crime is
constituted when an evil mind thinks of doing something even when that is against the laws of the country. The
concept of crime is as ancient as the human race and it has even grown to a far extent now. Crime can also be
divided into the following categories:

 Cognizable and non-cognizable;

 Bailable and non-bailable;
 Compoundable and non-compoundable.

Chapter VI (Sections 61 to 90) of the Code of Criminal Procedure, 1973 contains the provisions relating to
Processes to Compel Appearance of Persons in Court.In most cases, the court first issues Summons to the
person whose attendance is required before the Court. If the person fails to appear after receiving the Summons,
then Warrants are issued. But if Warrants also fail to compel the attendance of a person, then that person is
declared as a Proclaimed Absconder. Now, if the person does not appear before the court even after the
proclamation, then the court can attach and sell the absconder’s property. Apart from this, Bonds (with or
without sureties) are also used for securing the attendance of persons. Now, in this article, I will explain each of
these processes in detail, one by one.

Processes to Compel Appearance in Court Summons (Section 61 to 69, CrPC)

The presence of an accused or any other person can simply be ensured by directly arresting him and keeping
him confined till the date of hearing of the case in which his presence is necessary. But this would unreasonably

39
encroach upon the Fundamental Rights of that person. So, by way of issuing summons, the person (whose
appearance is required) is given a chance to appear on his own.

Section 61– Form of Summons- This Section provides the provisions relating to the ‘Form of summons’. It
states that every summons issued by the court must be in writing, in duplicate, and signed by the Presiding
Officer of the Court. Furthermore, it states that the summons must bear the seal of the court. Form No. 1 of the
Second Schedule of CrPC provides a template for preparing summons.

Section 62– Procedure of service of summons It provides the manner in which summons need to be served.
This Section states that the summons can be served by – (i) a police officer, (ii) an officer of the court issuing
the summons, and (iii) any other public servant. The summons must (unless impractical) be served personally
on the person who has been summoned to the court and the person who has been served, has to provide an
acknowledgment by signing a duplicate copy of the summons. So, to summarise Sections 61 and 62, two
written copies of summons are issued by the court. Then, these are served by a public servant, by giving one of
the copies to the person who has been summoned. The 2nd copy is brought back to the court after obtaining the
signatures of the summoned person on that copy.

In the case of Guthikonda Sri Hari Prasad Rao v. Guthikonda Lakshmi Rajyama (1992 CrLJ 1594 AP), it
was held that an order of maintenance passed ex parte without following the correct procedure for service of
summons was liable to be set aside.

Section 63 –Service on corporate bodies This section provides provisions for the service of summons on
corporate bodies and societies. They can be served by affecting service: (i) On the secretary, local manager, or
another principal officer of the corporation, or (ii) By letter sent by registered post, addressed to the chief
officer of the corporation in India.

Section 64 – Service on Adult Male Family Member This section provides provisions for a scenario where
the person who has been summoned by the court, cannot be found by the serving officer. In such cases, the
serving officer can leave one of the copies of the summons with an adult male member of the family of the
person who has been summoned. The important point to note over here is that the adult male family member (to
whom the summons is delivered) must reside with the person who has been summoned. Furthermore, a servant
is not considered a family member for the delivery of summons under this section.

In the case of Hemendra Nath v. Archana (1971 CrLJ 817), it was observed that before effecting service on
Adult Male Family Member (under Section 64), it must first be shown that proper efforts were made and due
diligence was exercised by the serving officer for delivering the summons to the summoned person.

Section 65 – CHASPA Service This section provides provisions for a special scenario, where after following
the procedure laid down under Sections 62, 63& 64, the service of summons could not be affected. Section 65
of CrPC provides that if service through modes mentioned under Ss. 62, 63, and 64 fails, then the serving
officer must affix one of the copies of the summons to some visible part of the house of the person who has
been summoned to appear in the court. This mode of servicing of summons is called CHASPA service.

In the case of Beni Madhab v. Jadu Nath [(1925) 31 CWN 148], it was held that the procedure mentioned
under Section 65 cannot be used unless service under Sections 62, 63, or 64 could not be affected even after
proper efforts.

Section 66 – Service on Government Servant This section provides the procedure for effecting service on a
Government Servant. In these cases, the Court has to send the summons to the head of the department of the
summoned person. Then, the head of the department affects the service by following the procedure laid down

40
under Section 62. After effecting service, the head of the department puts his signature on the 2nd copy of the
summons and then returns it to the Court.

Section 67 – Service outside local jurisdiction of Court This section provides that if a summoned person
resides outside the local jurisdiction of a court, then the court has to send the summons to the Magistrate, in
whose jurisdiction the summoned person resides. That magistrate then affects the service of summons.

Section 68 – Proof of service when serving officer not available This section provides for a situation where
the serving officer (who claims to have served the summons) might not be available at the hearing of the case.
In such a situation, Section 68 provides that an affidavit made before a magistrate, stating that the summons has
been served, along with a signed 2nd copy of the summons shall be evidence enough to declare that the service
of summons has been successful. Section 69 – Service on witness by post This section provides that, while
issuing summons to a witness, the Court may (in addition to other forms of service)direct a copy of the
summons to be served through Registered Post addressed to the residence of the witness, or his place of
business or employment. In this case, if the witness refuses to accept the summons and the postal employee
gives an acknowledgment regarding that, then the court can anyway declare that the summons has been
properly served.

Warrant of Arrest (Sections 70 to 81)

Section 70 – Form of warrant of arrest

This section provides the Form of Warrant. It states that the warrant must be:

This section provides the Form of Warrant. It states that the warrant must be:

i. in writing
ii. signed by the presiding officer of the court, and must bear the sear of the court
iii. Furthermore, this section states that the Warrant of Arrest stays in force until & unless it has been
cancelled by the court that issued it, or until it has been executed, This was upheld inKing-Emperor v.
Binda Ahir (1928 7 Pat 478).

Section 71 – Bailable Warrants

This section provides the provisions for issuing a ‘BailableWarrant’ It states that a court while issuing a
warrant, may specify that if the person (against whom the warrant has been issued) gives sufficient sureties for
his appearance in the court, then the warrant officer must release that person from custody. The officer has to
then forward the surety bond to the court which had issued the warrant.

Section 72–Warranted to whom directed

It provides that a warrant must be directed: (i) ordinarily to one or more police officers, or (ii) If immediate
execution of the warrant is necessary & no police officer is immediately available, to any other person or
persons. When a warrant is directed to more than one person or police officer, it can be executed by any of
them.

Section 73 – Warranted may be directed to any person

This section provides that a Chief Judicial Magistrate (CJM) or 1st Class Judicial Magistrate (JMIC)can direct a
warrant to any person for the arrest of: (i) Any escaped convict, or (ii) Proclaimed offender, or (iii) Any person
accused of a non-bailable offence and is evading arrest.

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Section 74 – Warrant directed to a police officer

This section says that the police officer to whom a warrant is directed can endorse the name of another police
officer on the warrant. After the endorsement, other police officers can also affect the warrant.

Section 75–Notification of substance of warrant to the arrested person

While arresting the person against whom a warrant has been issued, the arresting officer/person must notify the
substance of the warrant or show the warrant to the person who is being arrested.

Section 76–Person arrested to be brought before Court without delay This section provides that after the
arrest of the person against whom a warrant was issued, that person must be brought before the court that issued
the warrant as quickly as shall be practicable. The Section lays down a limit of 24 hours from the time of arrest
(excluding the time needed during the transport)

Section 77–Where warrant may be executed This section says that a warrant of arrest can be executed all
around India by the person to whom it is directed.

Section 78 – Warrant forwarded for execution outside Court’s Jurisdiction

If the court has the knowledge that the warrant (that has been issued by it) is to be executed outside the local
jurisdiction of that court, then the court canforward it to the Executive Magistrate or DSP or Commissioner of
Police within whose jurisdiction the warrant is to be executed.

Section 80 - Procedure on the arrest of the person against whom warrant is issued

After the arrest of a person under Section 79, such person has to be taken to the Executive Magistrate or DSP or
Commissioner within whose jurisdiction he has been arrested, unless the court that issued the warrant is within
30 km of the place of arrest.

Section 81 – Procedure by Magistrate before whom such arrested person is brought Under Section 80

once an arrested person has been taken to the Executive Magistrate or DSP or Commissioner, such officer has
to send that arrested person to the court that issued the warrant after ensuring that the right person has been
arrested, except if the offense for which the person has been arrested is a bailable one or if a bailable warrant
was issued under Section 71, and the arrested person is ready to provide surety bonds.

Section 82–Proclamation for person absconding

This section states that if in the opinion of the court, a person against whom a warrant has been issued, has
absconded or is concealing himself so that the warrant cannot be executed, then the court can publish a written
proclamation mandating such person to appear at a specified place & time. Such specified time cannot be less
than 30 days from the date of the issuance of the proclamation. This proclamation has to be:

(i) Publicly read in the town or village where the person against whom the proclamation has been issued
resides.

(ii) Affixed on some visible part of the house or village where such person resides ordinarily.

(iii) Affixed at some visible part of the courthouse.

In its discretion, the court can even direct a copy of the proclamation to be published in a daily newspaper that
circulates in the area where such a person resides. In cases where a proclamation has been issued against a

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person who is accused of an offence punishable under Section 302, 304, 367, 382, 392 to 400, 402, 436, 449,
459 or 460 of the IPC and the said person does not appear on the date & time specified in the proclamation,
then the court can pronounce him as a proclaimed offender.

In the case of M.S.R. Gundappa v. State of Karnataka (1977 Cr LJ NOC 187), it was held that a person
who had gone abroad even before the issue of the warrant of arrest cannot be said to be absconding or
concealing himself with the intention to disrupt the execution of that warrant.

Section 83 – Attachment of property of person absconding

The court can order attachment of the property of the person against whom a proclamation has been issued
under Section 82. Such attachment can be made even simultaneously with the issuance of proclamation under
Section 82 if the court is of the view that such a person is about to dispose of his property. This section
mentions the procedure for such attachment in detail, with respect to the movable as well as the immovable
property.

The object of Section 83 was clarified in the case of Dayanand Kalu v. State of Haryana (AIR 1976 Punj
190).

The court observed that the object of this section is not to punish the absconder but to compel his appearance.
So, if the property has not been confiscated or disposed of, the title continues to vest in the owner and therefore,
in his/her heirs.

Section 84 – Claim & Objections to attachment This section provides that a claim and/or objection can be
filed by a 3rd party regarding the property that has been ordered to be attached under Section 83. Such claim
and/or objection must be based on the ground that the claimant and/or objector has an interest in the party that
is being attached. So, this section protects the interests of 3rd parties who might get aggrieved by the orders of
attachment.

Section 85 – Release, sale, and restoration of attached property

The court must release the property from attachment if the proclaimed absconder appears at the place specified
in the proclamation at the specified time. Otherwise, if the person does not appear, then the property will be at
the disposal of the State Government. It can be sold after 6 months of the date of attachment, once all the
claims& objections on such property have been resolved. If within two years from the date of attachment, the
proclaimed person appears voluntarily or is arrested and brought before the court that ordered the attachment of
his property. Then, upon satisfaction that such person had reasonable cause for not appearing at the place &
time specified in the proclamation, the court must declare that the net proceeds of the sale of his property shall
be given to him.

Section 86- This section provides that an appeal can be made against an order of the court rejecting the
application for restoration of attached property.

Other rules regarding Processes (87 to 90) Section 87 – Issue of warrant in addition to the summons

This section provides power to any court to issue a warrant in cases where it originally has the power to issue
the summons. According to this section, a Warrant of arrest can be issued if the person to whom the summons
was issued has either failed to appear after receiving the summons or in the opinion of the court, the person has
absconded and will not obey the summons.

Section 88 – Power to take bond for appearance

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It provides that for ensuring whose appearance a summons or a warrant has been issued, when any personis
present in the Court, the presiding officer of such court can ask him to execute a bond (with or without sureties)
for his appearance in the court later on.

Section 89 – Arrest on breach of bond This section provides that if a person, who has been given a bond for
an appearance in the court, breaches such bond, then the presiding officer of the court can issue a warrant for
that person’s arrest.

Section 90 It states that the provisions laid down under Chapter VI will apply to every summon and/or warrant
of arrest issued under the Code of Criminal Procedure.

Conclusion In this way, Chapter VI of the Code of Criminal Procedure provides detailed provisions relating to
the processes that can be used to compel the appearance of persons in the courts. The courts have been given
such wide powers to ensure that the business of the courtrooms is not disturbed by the non-appearance of
witnesses or accused persons. An attempt to maintain a balance has also been made by enacting provisions for
Bailable Warrants and by allowing the courts to restore attached properties.

11.256 NON-APPEARANCE OR DEATH OF COMPLAINANT

Section 256 – Non-appearance or death of complainant

If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or
any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the
Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he
thinks it proper to adjourn the hearing of the case to some other day:Provided that where the complainant is
represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that
the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance
and proceed with the case.

The provisions of Sub-Section (1) shall, so far as may be, apply also to cases where the non-appearance of the
complainant is due to his death.

Provisions regarding compounding of offences and compel production of things under crpc?

Introduction

‘Interest reipublicae ut sit finis litium’, a Latin legal maxim, means that it is in the State’s best interest for
litigation to come to a close. For a long time, various matters have been pending before the courts of law. The
law gave the criminal justice system a powerful instrument that, when used, can significantly reduce the time it
takes to conclude a case. Such a provision has been laid down in Section 320 of the Criminal Procedure
Code, 1973, entailing the compoundable offence.

What is compounding of an offence

If there is a settlement between the accused and the crime victim, it may be prudent in some cases to permit the
compounding of offences and to end the legal proceedings. Sometimes, the public prosecutor or the
complainant may decide it is preferable to drop the case; the court may then approve this withdrawal, ending
the criminal trial. The Criminal Procedure Code permits stopping the proceedings in specific situations, subject
to certain restrictions if the magistrate himself deems it desirable. In specific circumstances, the non-appearance
or death of the complainant may mandate the closure of the proceedings; and, subject to specific exceptions, the
death of the accused person himself may result in the abatement of the case. For some compelling reasons, it

44
may be necessary to grant the accused person a conditional pardon for his claimed involvement in the crime.
The prosecution of the accused individual would have to be dropped in the event that such a pardon was
granted.

To compound means “to settle a matter by a money payment, in lieu of other liability.”In criminal law, the
victim has the capacity to compound the offence. Section 320 of the Code of Criminal Procedure, 1973,
provides legal provisions for the compounding of offences. The purpose of Section 320 of the Code is to
promote amicable relations between the parties in order to restore peace.

Constituents of Section 320 CrPC

Section 320(1) – Compounding without the court’s permission

The law provides for the compounding of offences without the court’s permission under Section 320(1) of the
Criminal Procedure Code. These offences are punishable by certain sections of the Indian Penal Code, 1860,
which may be compounded by the individuals.

Section 320(2) – Court’s permission is required before compounding an offence

Section 320(3) It states that if an offence is compoundable in nature, as outlined by this section, then aiding or
abetting the commission of such an offence, or an attempt to do so, or where the accused is held liable under
Section 34 or Section 149 of the Indian Penal Code, is likewise compoundable in nature. In other words, if a
person has attempted to conduct a compoundable offence or assisted in the execution of a compoundable
offence, the attempt or assistance is also compoundable in character. This is only accurate for offences for
which aiding and abetting and attempting to commit are offences in and of themselves. For instance, if person
‘A’ has uttered words with deliberate intent to wound the religious feelings of another person, it is a
compoundable offence, and the parties might reach an agreement among themselves. Similarly, if ‘A’ has
attempted to commit theft, or abetted/helped another person to commit the offence of theft, then this attempt
and abetment are also compoundable in nature.

Section 320(4) This sub-section states the circumstances in which the victim is a minor, of unsound mind, or
deceased. This provision asserts that when a victim is a minor (18 years) or of unsound mind, a guardian
representing such a person can compound the offence on their behalf. However, before a guardian may
compound an offence on behalf of a minor, the court must grant approval. This provision further indicates that
if the individual who had the authority to compound the offence is deceased as defined in the Code of Civil
Procedure, 1908 (5 of 1908), a legal representative of that person may compound an offence on his or her
behalf if prior authorization is obtained from the court.

Section 320(5) It states that when the accused is on trial for a compoundable offence or when the accused has
been convicted by a court and an appeal against the conviction is pending, compounding of such an offence is
not permitted at that stage without the permission of the court. It makes no difference whether the offence is
classified as class 1 or class 2 as entailed under Section 320(1) and (2).

Section 320(6) It allows the High Court, under Section 401 of the CrPC, and the Sessions Court, under
Section 399 of the CrPC, to grant permission to compound offences, provided the individual requesting the
permission is competent to do so. Sections 401 and 399 of the CrPC entail the High Court’s and Sessions
Court’s respective revisionary powers.

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Section 320(7) It lays down that if the accused is liable either to additional punishment or to a punishment of a
different kind for any previous conviction shall not be permitted to compound an offence.

Section 320(8)

This Section discusses the consequences of compounding an offence. The outcome of compounding an offence
is that the accused is acquitted. It makes no difference whether the FIR was filed or whether the trial had begun;
as long as the offence was compounded with the court’s approval, the offender is exonerated of all accusations.
Hence, it has been deduced in the case of Yesudas v. Sub-Inspector of Police, Kalamassery (2007) that the
expression ‘accused’ under Section 320(8) and ‘prosecution’ under Section 320(2) of the Code used cannot lead
to the conclusion by the court that composition can only be a post-cognizable event.

Section 320(9) This Section states that no offence would be considered as compounded except as entailed
under this Section. Furthermore, it has been stated in the case of Gurcharan Singh Bhawani v. State (2002) that
offences not compoundable under Section 320(9) cannot be dealt with under Section 482 of the Code.

What are non-compoundable offences

Non-compoundable offences are those that cannot be compounded, but can only be quashed. The rationale for
this is that the nature of the offence is so heinous and unlawful that the accused cannot be let off the hook. The
notion of the complainant entering into a compromise does not come up in this situation because, in general, it
is the ‘state,’ or the police, who brought the case. These are more significant and heinous offences that damage
society as a whole rather than just an individual. The reason for not allowing such offences to be compounded
is that getting away with grave offences would set a negative precedent in society. Non-compoundable offences
are against public policy, and hence settlement is not permitted by a regular court. All offences that are not
specified in the list under Section 320 of the CrPC are non-compoundable. Even the court lacks the jurisdiction
and capacity to compound such an offence. A full trial is held, which concludes with the offender’s acquittal or
conviction depending on the evidence presented.

Some of the examples of non-compoundable offences – Where the court’s permission is required:

 Voluntarily causing hurt by dangerous weapons or means – Section 326

 Fraudulent execution of a deed of transfer containing a false statement of consideration – Section 423
 Wrongfully confining a person for three days or more – Section 343
 Assault or criminal force on a woman with the intent to outrage her modesty – Section 352

Difference between compoundable and non-compoundable offences.

Nature of crime : The nature of the offence is not as serious in the instance of a compoundable offence. While
the nature of the offence is serious in the non-compoundable offence. For example, criminal breach of trust,
voluntarily causing grievous hurt, etc. are compoundable offences, whereas assault or criminal force on a
woman with intent to outrage per modesty, dishonest misappropriation of property, etc. are non-compoundable
offences.

Withdrawal of charges : Charges brought against the accused for a compoundable offence may be dropped
or withdrawn. However, charges against the accused cannot be dropped while they are pending for a non-
compoundable offence.

Affected parties : A private person is the only one who is impacted by a compoundable offence. In contrast, a
non-compoundable offence has an impact on both private individuals and society as a whole.

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Compoundability : In a compoundable offence, a settlement may be reached with the permission of the court
as entailed under Section 320(1) of the CrPC, or without the court’s approval as mentioned under Section 320
(2) of the CrPC. In contrast, a non-compoundable offence may only be quashed; it cannot be compounded as
the court does not have the power to allow for settlement of these offences.

12PRODUCTION OF THINGS UNDER CRPC

Introduction

The first step taken towards securing production of such things and documents is issuance of Summon to
produce. In case the summons to produce are not complied with, then more coercive method of search and
seizure can be used. The Code also empowers the Court to issue general search of any place for the purposes of
inquiry or trial. Such search may lead to encroachment upon someone’s right therefore it shall only be
permitted in the larger interests of the society. A balance has to be necessary stuck between the interest of the
society and the individuals. Such search or seizure shall only be resorted to under the authority of law.

Procuring evidence from and for foreign investigating agencies

At its inception, the Criminal Procedure Code had no provisions pertaining obtaining evidence from the foreign
investigating agencies when the trial was going in India. However, by way of an amendment, the Code has been
added with Section 166-A & S.166-B, which provide for letters of request to and from the foreign investigating
agencies regarding obtaining relevant evidence.

Summons to Produce

Sec. 91 – Summons to Produce document or other thing.

Scope & Application

 S.91 enables the Court or the Police Officer in charge of the Police Station to issue summon to produce
a document or a thing for assistance in a trial, investigation or trial.
 The sine qua non of issuing a summon u/s. 91 is the necessity to obtain such documents or things in the
larger interest of Society.
 Power of the Court u/s. 91 for summoning and production of documents is one of the absolute
discretion.
 The only condition for exercising the discretion u/s. 91 is that the Court must be of the opinion that
production of document is necessary or desirable.

‘Reason to believe’

 The Court must have a reason to believe the production of documents is necessary in the interest of
justice.
 The application for summoning production of documents can only be rejected by assigning some
justified reasons to it.
 The wording of S.91 gives vide powers to the Court to summon documents and things.

‘Document or other thing’

 The word thing refers to a physical object or a material thing and does not refer to an abstract thing.
 On such documents can be summoned which would have some bearing upon the facts and
circumstances of the case.

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  Therefore, the Officer or the Court summoning the documents must ensure whether there is a prime
facie case for supposing that the documents are relevant.

Whether Summon of Production can be issued to an Accused Person

 The language of S.91 is wide enough to include an accused within the those to whom a summon can be
issued for producing documents in his control.
 However, such practice would not be conformity with the constitutional mandate in this regard which is
governed by Article 20(3).
 Such production of documents at the instance of the accused would amount to self-incrimination and it
would make the investigation unfair qua the accused.
 The Court in plethora of cases have taken the view that on a close consideration of section 91, it
becomes clear that it should not be used against the accused as it would amount to self-incrimination
and unnecessary hardship to the accused.
 Such act would amount to testimonial compulsion.

Compliance & Non – Compliance

 Any person who is required to produce a document or a thing shall be deemed to have complied with
such summons if:
 He brings them to the Court; or
 Sends them through somebody instead of attending the Court personally.
 If a person fails to comply with the summons without any reasonable excuse he will expose himself to
penal consequences contemplated by Sec. 349 of the Code.

Summoning records in possession of the Prosecution

 To claim such documents in possession of the prosecution is within the rights of the accused.
 As contemplated by a joint reading of S.91, 207, 243 and 173.

Case Law – Surendra Mohan v. K.P. Mani

Personal inconvenience that may be caused due to production of document, is not a ground to curtail the power
granted u/s. 91.

B. – Search Warrant

Meaning

 A written authority given to the police officer or other authorized person;

 By a magistrate or a court;
 For search of any place either generally or for specified things or documents or for persons wrongfully
confined or detained.
 A search carried out on basis of a search warrant is a coercive method, as it invades the privacy of a
person’s residence/home.
 Therefore, a search warrant shall be executed with full care and circumspection.

Scope

Sec. 93 provides for three circumstances and the remaining three are provided by the successive sections i.e.,
94, 95 and 97.

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  Such six circumstances wherein the Court may issue a search warrant in the following cases:
 Noncompliance of summons u/s. 91;
 When such document is not known to the Court to be in the possession of the person;
 When such document is necessary for inquiry, trial or other proceedings or for general inspection or
search;
 Search of place u/s. 94;
 Search of persons u/s. 95;
 Compel restoration of abducted females u/s. 98.

Constitutional Validity of Search Warrants

Fundamental rights always outweigh the legal rights; therefore, any search procedure shall only be carried
where there is absolute necessity to do so as it breaches the right to privacy of an individual, which is
guaranteed under article 21. The provision regarding search warrants have been questioned when it comes to
summoning the accused for production of a document or title in his possession. Therefore, the Courts have held
that such production would lead to self-incrimination and violation of Article 20(3) of the Constitution.
However, search of premises occupied by the accused does not amount to self-incrimination, thus it is not
violative of Article 20(3).

Sec. 93 – when a search warrant may be issued.

Scope & Application.

 S.93 not only applies when the inquiry is pending, but also when an inquiry is about to be made.
 The search warrant may be general or restricted in its scope as to place or part thereof.

Three cases in which search warrant can be issued u/s. 93.

 Where the Court has a reason to believe that the person summoned to produce a document or thing will
not produce a document or thing;
 Where the document or thing is not known to be in the possession of any person;
 Where a general search or inspection is necessary.
 Reasons for allowing search shall be recorded.
 There must be sufficient/ judicious cause or reason to allow search under a warrant;
 The Court authorizing such search must record such reasons in writing;
 This step ensures that the provision is not misused or abused.
 While issuing a search warrant, if reasons are not recorded, the search is illegal, as it vitiates the search.

General Search Warrant

 A general search warrant can be issued only in the case where a document or a thing is not known to the
Court to be in the possession of any person.
 In case it is known where the thing lays or in whose possession it is, then a general search warrant
cannot be issued.

Passive Submission

 A passive submission to search cannot be termed as compulsion on the accused to submit to search;
 If anything is recovered during such search which may provide incriminating evidence against the
accused cannot be held to be violative of Article 20(3).

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Sec. 94 – Search of place

Application of Sec. 94 (Objectionable articles)

section 94 applies to the following objectionable articles:

1. Counterfeit coins;
2. Counterfeit currency notes;
3. Counterfeit stamps;
4. Forged documents;
5. False seals;
6. Obscene material (u/s. 292, IPC)
7. Instruments used is production of anything mentioned from (1) to (6).

Who can exercise the power u/s. 94

District Magistrate; or Sub Divisional Magistrate; or Magistrate of the First Class

The persons mentioned from (a) to (c) may authorize a person above the rank of a constable to carry out search.

Requirements

The magistrate should have information regarding such objectionable material. He shall conduct an inquiry as
he thinks necessary. The inquiry must disclose a reason to believe that the place is used for deposit of any
objectionable material.

Powers and Duties of the Police Officer

Power to enter the premises, Carry out search, Take possession of such objectionable material, Take into
custody and carry before a Magistrate such person found in the place where such objectionable material was
found. To convey the property to the Magistrate.

Sec. 97 – Search of Persons

Scope & Application

 This section comes to the rescue of persons who are wrongfully confined.
 The provisions of S.97 are in para materia to the writ of habeas corpus.
 Therefore, a person wrongfully confined can be rescued with the intervention of Police by virtue of
provisions of Sec. 97.

Sec. 98 – Power to compel restoration of abducted females

Scope & Application

Sec. 98 only applies to:

 A woman; or
 Female child below the age of 18;
 Who has been abducted or unlawfully detained for an unlawful purpose.
 The exclusion of male children u/s. 98 shows that it has been framed with some definite purpose of
safeguarding the interests of the female members of our society who more vulnerable to abduction for
unlawful purposes.

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  The provisions of Sec. 98 cannot be used by one parent even if he is the legal guardian, to obtain the
custody of his minor children from the other parent.

Sec. 95 – Power to declare certain publications forfeited, and to issue search warrants for the same.

 If any newspaper, document or book, contains anything which leads to an offence u/s. 124-A or 153-A
or153-B or 292 or 293 or 294 or 295-A of IPC;
 The State Government, by way of a notification may declare that such publication shall be forfeited to
the State Government;
 The State Government is obliged to state the grounds of opinion on basis of which the such forfeiture
must take place.
 The work that is under scrutiny shall be viewed as a whole.
 Scholarly works on history and religion cannot be said to promote enmity among people and as such
this provision is not attracted.
 This section does not violate the guarantees contained under Article 19(1)(a) of the Constitution.

Sec. 96 – Application to the High Court to set aside declaration of forfeiture.

 Any person having interest in such newspaper, book or document that has been forfeited by the order of
State Government may file an application u/s. 96.
 Such application shall be filed within two months of publication of the notification by the State
Government.
 Such application shall be heard by a special bench of the High Court containing three or more judges.
 A copy of the impugned newspaper, document or book shall be given in as evidence as a proof of its
contents.

100 – Person in charge of closed place to allow search.

Object & Scope

 To provide a right to free ingress in cases where closed premises are to be searched.
 To ensure that searches are carried out in free and fair manner in presence of two independent witnesses.
 To provide a list of things which are recovered after such search is made.
 Sec. 100 culls out a provision by way of which the occupant of the place is permitted to witness the
entire search procedure.
 The entire purpose of such exercise is to make sure that no planting of articles is done by the police.

Sec. 102 – Power of Police officer to seize certain property.

Meaning of ‘Seize’

The word ‘seize’ means taking physical possession as in case of taking actual possession of movable property.
Therefore, seizing the lockers and bank accounts of a person is not seizure in terms of Section 102.

Scope

 Sec. 102 is very wide in its scope and ambit and it includes any offence under IPC or any special statute.
 For instance, police officer has power to seize animals on suspicion of an offence committed under
Prevention of Cruelty to Animals Act, 1960.
 However, there must be an occasion for the Police Officer to seize any property u/s. 102, and such
occasion may arise in the following cases:

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  If the property is stolen; or
 It is suspected to be stolen; or
 Such property has a direct link with the commission of crime.

Report of Seizure

 The Police Officer may report such seizure to his senior if his subordinate to him in a Police station.
 It is mandatory for the Police officer to forward a report of seizure to the Magistrate.

Leaving the property on executing a bond – Procedure

In the following cases the property so seized may be left with any person on executing a bond to produce the
property at a given time and date before the Court:

1. When the property cannot be conveniently transported to the Court; or

2. When there is difficulty in securing proper accommodation for the custody of the property; or
3. Where continued retention of the property in police custody may not be useful for the propose of
investigation.

13. PLEA BARGAINING?

Introduction:-

The famous saying “Justice delayed is justice denied” holds utmost significance when the concept of Plea
bargaining is discussed. The number of cases pending in the courts is shocking but at the same time, it has been
normalized by people. These astonishing figures are no more astonishing because people have started accepting
this as their fate. The concept of plea bargaining was not there in criminal law since its inception.

Meaning of Plea Bargaining

Plea bargaining is a pretrial negotiation between the accused and the prosecution where the accused agrees to
plead guilty in exchange for certain concessions by the prosecution. It is a bargain where a defendant pleads
guilty to a lesser charge and the prosecutors in return drop more serious charges. It is not available for all types
of crime e.g. a person cannot claim plea bargaining after committing heinous crimes or for the crimes which are
punishable with death or life imprisonment.

History of Plea Bargaining

In the Jury System, the need for plea bargaining was not felt because there was no legal representation. Later
on, in 1960 legal representation was allowed and the need for Plea Bargaining was felt. Although the traces of
the origin of the concept of Plea Bargaining is in American legal history. This concept has been used since the
19th century. Judges used this bargaining to encourage confessions.

Criminal Procedure Code and Plea Bargaining

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of Plea
Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea bargaining for cases:

1. Where the maximum punishment is imprisonment for 7 years;

2. Where the offenses don’t affect the socio-economic condition of the country;
3. When the offenses are not committed against a woman or a child below 14 are excluded.

52
The 154th Report of the Law Commission was first to recommend the ‘plea bargaining’ in Indian Criminal
Justice System. It defined Plea Bargaining as an alternative method which should be introduced to deal with
huge arrears of criminal cases in Indian courts.

Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament and finally it
became an enforceable Indian law from enforceable from July 5, 2006. It sought to amend the Indian Penal
Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1892 to improve
upon the existing Criminal Justice System in the country, which is inundate with a plethora of criminal cases
and overabundant delay in their disposal on the one hand and very low rate of conviction in cases involving
serious crimes on the other. The Criminal Law (Amendment) Bill, 2003 focused on following key issues of the
criminal justice system:-

(i) Witnesses turning hostile

(ii) Plea-bargaining

(iii) Compounding the offense under Section 498A, IPC (Husband or relative of husband of a woman
subjecting her to cruelty) and

(iv) Evidence of scientific experts in cases relating to fake currency notes.

Finally, it introduced Chapter XXIA Section 265A to 265L and brought the concept of plea bargaining in India.
The following are provisions which it added:-

Section 265-A (Application of Chapter) the plea bargaining shall be available to the accused who is charged
with any offense other than offenses punishable with death or imprisonment or for life or of an imprisonment
for a term exceeding to seven years. Section 265 A (2) of the Code gives the power to notify the offenses to the
Central Government.

The Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying the offenses affecting
the socio-economic condition of the country.

Section 265-B (Application for Plea Bargaining) A person accused of an offense may file the application of
plea bargaining in trails which are pending. The application for plea bargaining is to be filed by the accused
containing brief details about the case relating to which such application is filed. It includes the offences to
which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has
voluntarily preferred the application, the plea bargaining the nature and extent of the punishment provided
under the law for the offence, the plea bargaining in his case that he has not previously been convicted by a
court in a case in which he had been charged with the same offence. The court will thereafter issue the notice to
the public prosecutor concerned, investigating officer of the case, the victim of the case and the accused of the
date fixed for the plea bargaining. When the parties appear, the court shall examine the accused in-camera
wherein the other parties in the case shall not be present, with the motive to satisfy itself that the accused has
filed the application voluntarily.

Section 265-C (Guidelines for Mutually satisfactory disposition) It lays down the procedure to be followed by
the court in mutually satisfactory disposition. In a case instituted on a police report, the court shall issue the
notice to the public prosecutor concerned, investigating officer of the case, and the victim of the case and the
accused to participate in the meeting to work out a satisfactory disposition of the case. In a complaint case, the
Court shall issue a notice to the accused and the victim of the case.

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Section 265-D (Report of the mutually satisfactory disposition) This provision talks about the preparation of
the report of mutually satisfactory disposition and submission of the same. Two situations may arise here
namely

If in a meeting under section 265-C, a satisfactory disposition of the case has been worked out, the report of
such disposition is to be prepared by the court. It shall be signed by the presiding officer of the Courts and all
other persons who participated in the meeting. If no such disposition has been worked out, the Court shall
record such observation and proceed further in accordance with the provisions of this Code from the stage the
application under sub-section (1) of section 265-B has been filed in such case.

Section 265-E (Disposal of the case) prescribes the procedure to be followed in disposing of the cases when a
satisfactory disposition of the case is worked out. After completion of proceedings under Section 265-D, by
preparing a report signed by the presiding officer of the Court and parties in the meeting, the Court has to hear
the parties on the quantum of the punishment or accused entitlement of release on probation of good conduct or
after admonition. Court can either release the accused on probation under the provisions of Section 360 of the
Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in force or punish the
accused, passing the sentence. While punishing the accused, the Court, at its discretion, can pass sentence of
minimum punishment, if the law provides such minimum punishment for the offenses committed by the
accused or if such minimum punishment is not provided, can pass a sentence of one-fourth of the punishment
provided for such offense. ”

Section 265-F (Judgment of the Court) talks about the pronouncement of judgment in terms of mutually
satisfactory disposition.

Section 265-G (Finality of Judgment) says that no appeal shall be against such judgment but Special Leave
Petition (Article 136) or writ petition (under Article 226 or 227) can be filed.

Section 265-H (Power of the Court in Plea Bargaining) talks about the powers of the court in plea
bargaining. These powers include powers in respect of bail, the trial of offenses and other matters relating to the
disposal of a case in such court under Criminal Procedure Code.

Section 265-I (Period of detention undergone by the accused to be set off against the sentence of
imprisonment) says that Section 428 of CrPC is applicable for setting off the period of detention undergone by
the accused against the sentence of imprisonment imposed under this chapter.

265-J (Savings) talks about the provisions of the chapter which shall have effect notwithstanding anything
inconsistent therewith contained in any other provisions of the Code and nothing in such other provisions shall
be construed to contain the meaning of any provision of chapter XXI-A

Section 265-K (Statement of the accused to be used) specifies that the statements or facts stated by the accused
in an application under section 265-B shall not be used for any other purpose except for the purpose as
mentioned in the chapter.

Section 265-L (Non-application of the chapter) makes it clear that this chapter will not be applicable in case
of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act,
2000.

Types of Plea Bargaining

Plea Bargaining is generally of three types namely:-

54
 1. Sentence bargaining;
2. Charge bargaining;
3. Fact bargaining.

Case laws

In Murlidhar Meghraj Loya vs State of Maharashtra (AIR 1976 SC 1929), The Hon’ble Supreme Court
criticized the concept of Plea Bargaining and said that it intrudes upon the society’s interests.

Thippaswamy vs State of Karnataka, [1983] 1 SCC 194, the Court said that inducing or leading an accused
to plead guilty under a promise or assurance would be violative of Article 21 of the Constitution. The Court
also stated that “In such cases, the Court of appeal or revision should set aside the conviction and sentence of
the accused and remand the case to the trial court so that the accused can, if he so wishes defend himself against
the charge and if he is found guilty, proper sentence can be passed against him”.

Conclusion

The concept of plea bargaining is not entirely new in India. Indian has already recognized it when it got its
constitution in 1950. Article 20(3) of Indian constitution prohibits self-incrimination. People accuse plea
bargaining of violatory of the said article. But with the passage of time the considering the encumbrance on the
courts, the Indian court has felt the need of Plea bargaining in Indian legal system. When a change is brought it
is hard to accept it initially but society needs to grow so is our legal system.

14.CLASSIFY VARIOUS CRIMINAL COURTS AND STATE THE POWERS OF

EACH OF THE COURTS PROVIDED UNDER CRPC?
Introduction

Indian Judiciary is one of the most efficient Judicial systems in the world. The Judiciary derives its powers
from the Constitution of India. The existence of Courts is required to check the misuse of the powers conferred
by the Legislature or the Executive. The Indian Judiciary is the guardian of the Constitution of India, along with
being a custodian of the Fundamental Rights of the citizens. The Judiciary is well established with quite a
lengthy and complex hierarchy of courts. The judicial system has been established in such a way so that it
caters the need of each and every person of the country. The Judicial system in India is in the form of a
pyramid, with the Supreme Court being at the top of the hierarchy. The hierarchy has been created in a manner
that it is possible for a person even from a remote area to approach the courts to get their disputes resolved. The
system is well equipped to deal with issues of the Union as well as State laws.

Hierarchy of Criminal Courts

The hierarchy of the Criminal Courts in India is as follows

The Supreme Court of India – The Supreme Court Of India, being the apex court of India, was established
under Article 124 of Part V and Chapter IV of the Constitution of India.

The High Courts of India– The high courts are at the second level of the hierarchy. They are governed by
Article 141 of the Constitution Of India and are bound by the judgement of the Apex Court.

Lower Courts of India have been classified as follows.

 Metropolitan Courts
 Sessions Court
55
  Chief Metropolitan Magistrate
 First Class Metropolitan Magistrate

District Courts

 Sessions Court
 First Class Judicial Magistrate
 Second Class Judicial Magistrate
 Executive Magistrate

Constitution of Criminal Courts in India

The Sessions Judge– Section 9 of the CrPc talks about the establishment of the Sessions Court. The State
Government establishes the Sessions Court which has to be presided by a Judge appointed by the High Court.
The High Court appoints Additional as well as Assistant Sessions Judges. The Court of Sessions ordinarily sits
at such place or places as ordered by the High Court. But in any particular case, if the Court of Session is of the
opinion that it will have to cater to the convenience of the parties and witnesses, it shall preside its sittings at
any other place, after the consent of the prosecution and the accused. According to section 10 of the CrPC, the
assistant sessions judges are answerable to the sessions judge.

The Additional/ Assistant Sessions Judge- These are appointed by the High Court of a particular state. They
are responsible for cases relating to murders, theft, dacoity, pick-pocketing and other such cases in case of
absence of the Sessions Judge.

The Judicial Magistrate– In every district, which is not a metropolitan area, there shall be as many as Judicial
Magistrates of first class and of second class. The presiding officers shall be appointed by the High Courts.
Every Judicial Magistrate shall be subordinate to the Sessions Judge.

Chief Judicial Magistrate- Except for the Metropolitan area, the Judicial Magistrate of the first class shall be
appointed as the Chief Judicial Magistrate. Only the Judicial Magistrate of First Class may be designated as
Additional Chief Judicial Magistrate.

Metropolitan Magistrate- They are established in Metropolitan areas. The High Courts have the power to
appoint the presiding officers. The Metropolitan Magistrate shall be appointed as the Chief Metropolitan
Magistrate. The Metropolitan Magistrate shall work under the instructions of the Sessions Judge.

Executive Magistrate- According to section 20 in every district and in every metropolitan area, an Executive
Magistrate shall be appointed by the State Government and one of them becomes District Magistrate.

Powers of Criminal Courts

1. The Apex Court

The Supreme Court is the ultimate court, at the top of the Judicial system. It has the supreme judicial authority
in our country.

Federal Court– Article 131 gives the power of original jurisdiction to the Supreme Court, to resolve the
dispute arising between the Centre and the States or between two States.

Interpretation of the Constitution- Only the Apex Court has the power to settle a question based on any issue
related to the Constitution.

Power Of Judicial Review (Article 137)- All the laws enacted are subjected to scrutiny by the Judiciary.
56
Court of Appeal – The apex court is the highest court for appeal in India. It has the power to hear appeals from
all the cases lying in the various High Courts and subordinate courts of our country. A certificate of the grant is
to be provided according to Article 132(1), 133(1) and 134 of the Constitution with respect to any judgment,
decree or final order of all cases of the High Court involving the question of law. Appeals to the Supreme Court
can be made under the following categories:-

 Constitutional Matters
 Civil Matters
 Criminal Matters
 Special Leave Petition

2.The High Courts

Original Jurisdiction – In some issues, the case can be directly filed in the High Courts. This is known as the
original jurisdiction of the High Court. E.g., In matters related to fundamental rights, Marriage and Divorce
cases.

Appellate Jurisdiction- The High Court is the Appellate Court for the cases coming up from the trial court.

Supervisory Jurisdiction- This refers to the power of general superintendence of the High Court over the
matters of all the subordinate courts.

The powers of the various courts have been highlighted in the Constitution of India. Apart from these courts,
the power and functions of the subordinate criminal courts have been provided under the Code Of Criminal
Procedure, 1973, as mentioned under section 6.

 Court of Session
 First Class Judicial Magistrate and, a metropolitan magistrate in any metropolitan area
 Second Class Judicial Magistrate
 Executive Magistrates

The power of the various subordinate courts is mentioned from section 26-35, under the Code of Criminal
Procedure, which has been described below.

Section 26 mentions the list of Courts which are eligible to try offences – According to Section 26, any offence
mentioned under the Indian Penal Code may be tried by:

 the High Court

 the Court of Session
 any other Court as specified in the First Schedule of the Code of Criminal Procedure.

Although it has to be ensured that any offence committed under section 376, section 376A, section 376B,
section 376C, section 376D and also section 376E of the Indian Penal Code, be tried by a woman judge.

3. The Sessions Court

The State Government establishes the Sessions Court which has to be presided by a Judge appointed by the
High Court. The High Court appoints Additional as well as Assistant Sessions Judges. The Court of Sessions
ordinarily sits at such place or places as ordered by the High Court.

4. The Magistrate Court

The Magistrate judges are usually appointed by the High Court.

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The jurisdiction in case of Juveniles (Section 27)– Any person who is below the age of sixteen years, who is a
juvenile is exempted from the death penalty and punishment for imprisonment for life. The Chief Judicial
Magistrate, or any other Court specially empowered under the Children Act, 1960 (60 of 1960) or any other law
for the time being in force which provides for the treatment, training and rehabilitation of youthful offenders,
are eligible for trying such cases.

Miscellaneous Powers

Mode of Conferring Powers – Section 32 states that the High Court or the State Governments have the power
by virtue of an order to empower people by their titles.

Withdrawal of Powers- According to Section 33, the High Court or the State Government, have the power to
withdraw the powers conferred by them under this code.

Powers of Judges and Magistrate exercisable by their successors-in-office- According to Section 35, subject
to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or
performed by their successors-in-chief.

Sentences passed by the Magistrates (Section 29) –

The Court of Chief Judicial Magistrate is authorised to pass any sentence approved by law except for death
sentence, life imprisonment or imprisonment for more than seven years.

The first class Magistrate is eligible to pass a sentence of imprisonment for a term of not more than three years,
or fine not exceeding ten thousand rupees or both.

The Second Class Magistrate may pass a sentence of imprisonment for a term not more than one year, or fine or
both. The fine imposed cannot exceed five thousand rupees.

The Chief Metropolitan Magistrate has the powers of that of a Chief Judicial Magistrate as well as that of a
Metropolitan Magistrate, in addition to the powers of the First Class Magistrate.

Conclusion

The Constitution of India holds the absolute authority and value in India. Hence, it becomes necessary to
provide safeguards for its protection and therefore, the courts have been vested with various powers to keep a
check and to ensure that no authority misuses its powers and encroaches upon others domain. The courtrooms
are the places where people can take their grievances and get their disputes resolved upon the failure of other
systems of the Government. The hierarchy of the Courts has been developed in such a manner that it becomes
easy for everyone who is living in this country to knock the doors of the courts whenever a dispute arises. It
provides a platform for the citizens for appealing to higher courts, in case they feel that justice has been denied
to them by the lower courts.

15.PROCEDURE OF INVESTIGATION :-
Introduction

An investigation is an important segment of criminal procedure. The first step after a crime is committed or
information received by a police officer about the commission of an offence is “investigation.” The purpose is
to identify the offender and proceed him for trial so as to serve him with punishment as per the provisions of the
Code. Section 156 of the Code of Criminal Procedure confers powers on police officers to investigate
cognizable cases. In Non Cognizable cases, the police officer has no authority to investigate without warrant
58
and has to obtain a warrant under Section 155 (2) of the Code. The term “investigation” has been defined in
section 2(h) of the Code. Chapter XII (Sections 154 to 176) of the Code deals with information to police and
their powers to investigate.

Meaning and Definition

The term ‘investigation’ has been defined in Section 2(h) of the Code of Criminal procedure, Investigation
includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by
any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. [1]

The investigation of an offence consists of:

 Proceeding to the spot.

 Ascertainment of facts and circumstances of the case.
 Discovery and arrest of the suspect.
 Collection of evidence which may include:
o Examination of persons concerned and reducing their statement to writing.
o Search and seizure of places and things respectively considered necessary.
 Formation of opinion as to whether there is a case for trial, and taking necessary steps accordingly. [2]

Procedure of Investigation

The cognizable offence has been defined in Section 2(C) of the Code, wherein a Police officer can arrest
without warrant. The offence is of serious nature and is a public wrong, where the prosecution is done at the
discretion of the state.

Non Cognizable offence and case have been defined in Section 2 (l) of the Code, wherein the police cannot
arrest without warrant. The offence is less serious in nature and the prosecution is done at the initiative of the
parties.

Information to the Police Officer

Section 154 of the code talks about when information is given as a cognizable offence. The information must
be given by the informant to the officer in charge of a police station in writing or must be reduced into writing
by the officer in charge of the police station. The written information has to be read over to the informant and
be signed by him, which is called “First Information Report.” When the information is given by a woman
against whom any of the offences under Sections 326-A, 326-B, 354, 354-A to 354-D, 376, 376-A to 376-E or
509 IPC is alleged to have been committed or attempted, such statement shall be recorded by a woman police
officer. After the information has been received by the police officer, he shall start his investigation, provided
he has reasons to suspect that a cognizable offence has been committed..

Power of Police to Investigate

Section 156 of the code empowers the officer in charge of a police station to investigate a case in his territorial
jurisdiction without the order of the Magistrate if the offence is cognizable in nature. The officer may also
initiate an investigation on the orders of the Magistrate empowered under Section 190.

Cases consisting of both Cognizable and Non-Cognizable Offences

According to Section 155(4), when two or more offences are there in a case, of which at least one is of
cognizable nature, and other of non-cognizable nature, then the entire case has to be dealt as a cognizable case,
and the investigating officer will have all the powers and authority as he has in investigating a cognizable case.
59
Procedure of Investigation

Section 157 of the Code lays down the procedure of investigation to be followed by the police, for collection of
evidence. The investigation of a cognizable case begins when a police officer in charge of a police station has
reason to suspect the commission of a cognizable offence on the basis of FIR or any other information so
received. It requires that prompt intimation of the FIR be sent to the Magistrate. The officer shall then proceed
in person to the spot for investigation of facts and circumstances, or shall depute one of his subordinate officers
for the same, and if required, measures for the discovery and arrest of the person shall be taken.

When the information received by the police officer is not of serious nature, the officer need not proceed in
person or depute some subordinate officer to investigate on the spot. And if no sufficient ground exists for
entering on an investigation, he shall not investigate the case. And shall state in its report for not complying
with the requirements of this section, and notify the informant that he will not investigate the case or cause it to
be investigated. He shall then send this report to the Magistrate empowered to take cognizance of such offence.

Sending a Report to the Magistrate (Section 158)

A report is sent to the Magistrate which is called the police report. It is sent by the superior police officer, so as
to make the Magistrate aware that a particular case is being investigated by a police officer. The main objective
of sending a report is to enable the Magistrate to control the investigation and give directions if required under
Section 159 of the Code.

The report should be sent to the Magistrate without any delay. In Swati Ram v. State of Rajasthan, it was held
that mere delay in sending the report does not throw away the prosecution case in its entirety.

At different stages of an investigation, different reports are to be submitted by the police to the Magistrate.
These reports are:

Section 157 of the CrPC requires the officer in charge of the police station to submit a report to the Magistrate,
called a preliminary report.

Section 168 of the CrPC requires a subordinate officer to submit a report to the officer in charge of the police
station.

Section 173 of the CrPC requires that a final report is to be submitted to the Magistrate as after the
investigation gets over.

Order of Investigation by the Magistrate

The Magistrate, under Section 159, has been empowered, if he feels necessary, after receiving the report to
direct investigation, or to conduct himself or direct a subordinate Magistrate to hold a preliminary inquiry. And
as held by the Supreme Court, the Magistrate has no power to stop the investigation after it has started. [3]

Attendance of Witnesses

The police officer making the investigation is empowered under Section 160 to require the attendance of any
person as a witness who is acquainted with the facts and circumstances of the case. The above-mentioned
section also provides that no male person or woman who is under the age of fifteen years shall be required to
attend any place other than the one in which the male person or women resides. The State Government shall
make rules for the payment of reasonable expenses incurred by persons for attending any place other than their
residence.

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Examination of Witnesses

Any police officer who is in charge of the investigation or any other officer who is acting on the request of an
officer in charge shall and is empowered to examine a witness or person who is acquainted or aware of the facts
and circumstances of the case put before him. Section 161 of the Code confers powers on police to examine
witnesses. The statements of witnesses are important as they can make a person guilty or innocent. The persons
who are being investigated are expected and bound to answer truly all the questions relating to such cases put
before them. They are not bound to truly answer the questions which would expose them to a criminal charge or
any other charge. After the examination, the police officer making the investigation shall reduce the number of
statements given by the person in the course of the examination. And if done so, he shall keep a separate record
of the same. He is not bound to reduce the statements into writing but it is preferred that he does so.

Statements to the Police not to be Signed

The statements made by the witnesses during examination need not be signed by him. Neither should be used at
any inquiry or trial. The statements made by the witness can be used in the court only to contradict him, and not
corroborate him. If the witness is brought from the prosecution side, any part of his statement if proved may be
used by the accused and can be used by the prosecution only with the Court’s permission, to contradict him.
That is, statements made under Section 161 can be used to contradict him.

However, an exception to the above section is: If any statement falls within the provision of Section 32(1) of
the Indian Evidence Act, or if any statement affects the provisions of Section 27 of the Evidence Act.

Recording of Confessions and Statements

Any magistrate whether metropolitan or judicial, if he has jurisdiction or not in the case, is empowered under
Section 164 to record any statement or confession made to him in the course of the investigation. But a police
officer on whom powers of a magistrate have been conferred for the time being is not empowered to record the
same.

Recording of Confession When Magistrate has no Jurisdiction

A Magistrate who records statements and confession when he does not have the jurisdiction to do so, he shall
forward it to the competent Magistrate who has to inquire into the case or by whom the trial is to be done.

Admissibility of Evidence

The confession recorded under section 164 can be used as substantive evidence, without being formally proved.
Record of such confession is admissible as evidence. Entire confession must be brought on record. The Court
must carefully weigh it with other evidence. The Court may reject part of it.. Where the confession was found
rejected, the convictions based on them could not be sustained.

In Balak Ram v. The State of U.P., it was held that evidence of witness cannot be discarded merely because
their statement was recorded under section 164. Their evidence must be approached with caution.

Search by Police Officer

A police officer is empowered under Section 165 of the Code to search for any place which he has reasonable
grounds to believe that contains something necessary with respect to the investigation he is authorized to make.
61
The grounds for issuing a warrant for search are provided in Section 93(1) of the Code The search is required to
be noted in a diary which is prescribed for this purpose, by the state government.

Procedure of Search

A police officer has to record in writing his reasons for the search, the place to be searched and the thing that
has to be searched in that place, after which he proceeds in person. If the police officer is unable to do the
search himself, then he may, in writing, order his subordinate officer to conduct the search, directing him to the
place to be searched and the thing to be searched for. And the subordinate officer can then conduct the search
on the basis of the written order given to him. The officer should make a record of the search done and send a
report of the same to the nearest Magistrate who can further furnish it to the owner/occupier of the place
searched, free of cost, on application.

When Investigation is to be Done Outside India

When the investigating officer or any of his superior officer has reasons to believe that necessary evidence may
be available in a place or country outside India, any criminal court shall issue a letter of request to the authority
of that country or place requesting to examine orally the person who is supposed to be aware of the facts and
circumstances of the case and direct him to produce all the requisite documents in his possession relating to the
case being investigated and also require to forward all the documents and evidence to the court issuing such
letter. The provision is given under section 166.

Procedure when Investigation cannot be Completed within 24 Hours

Section 167 deals with the procedure when investigation cannot be completed within 24 hours. The purpose of
this section is to ensure liberal democratic ideology. The object is to protect the accused from atrocities of the
police and to give the opportunity to the Magistrate to decide the question of further custody, to facilitate the
investigation, and no detention without trial. For this purpose, it has been provided that the accused or arrested
person cannot be detained for more than 24 hours. Section 167 is attracted in the following circumstances:

When the accused is arrested without a warrant and is detained by the police officer in his custody.

More than 24 hours needed for an investigation.

There are grounds to believe that accusation or information against him is well-founded.

The officer in charge of a police station or the investigating officer not below the rank of sub-inspector
forwards the accused for remand before the Magistrate.

Power to Summon Persons

This section empowers the police to summon witnesses at the inquest to testify the injuries which the
investigating officer has found on the body of the deceased person. But it is not at all necessary for him to
record the statements of the witnesses or get the inquest report signed by them. The person examined at an
inquest is bound to answer truly all the questions except those which would be incriminating him. Refusal to
answer questions is punishable under Section 179 IPC and deliberately giving a false answer is punishable
under Section 193 of IPC. The inquest report is not substantive evidence but may be used for corroborating the
evidence given by the police officer making the inquest report.

Conclusion

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An investigation is an extremely thorough process in criminal law and is done in a procedure established by
law.

16.PROVISIONS RELATING TO DISPOSAL OF PROPERTY PENDING TRIAL AND

AT THE CONCLUSION OF TRIAL ?
Introduction

When we talk about disposal of property, what comes in our mind is transferring of the control and ownership
to others or by different means like selling off, destruction, confiscation, in regards to the property. Chapter
XXXIV of Criminal Procedure Code 1973 (CrPC), outlines the concept of disposal of property under Sections
451- 459.

What do you mean by disposal of property

Disposal is defined as the process which is used by the court for decommission and disposal of an assets due to
ageing or some changes in performance and the capacity requirement of the property. Decision to dispose of or
divest a property or an asset requires thorough examination and economic appraisal. In general, we dispose of
property through transfer, sale, or by means of other ways but in the criminal law, property can be disposed of
in accordance with the provisions laid down under CrPC.

Analysis of provisions dealing with disposal of property under CrPC

Section 451 – order for custody and disposal of property pending trial in certain case

According to Section 451 , the court has the power to make such an order which fits according to the case and
subject to speedy and natural decay, or otherwise expedient to do so in relation to property of any kind or
document which is produced before the court or is in custody during inquiry or trial. After recording all the
necessary evidence, the court gives the order in regards to the property to be sold or disposed of.

In the case of Manoj Kumar Sharma v. Sadhan Roy (1993), a truck purchased under hire purchase
agreement was seized because the purchaser was not paying instalment and he had transferred the truck to a
third party. It was held that the financier being the real owner is entitled to the custody of the truck seized and it
would be injudicious to give custody to a person in whose name the vehicle is registered.

Section 452 – order for disposal of property at conclusion of trial

In this section when the inquiry or trial in any criminal court is concluded, order for disposal of property is
made. Proceeding may have concluded either in conviction, acquittal or discharge of the accused. What is
necessary for application of this action is that the property in dispute must have either been produced before it
or is in the custody of the court. This section deals with the disposal of property regarding which an offence has
been committed. The court under this section cannot decide any claim to manage any property or any title to the
property, but shall dispose of the property on the basis of possession.

In Suleman Issa v. State of Bombay (1954), it was observed that although the power of the high court under
this section no doubt extends to confiscation of property in the custody of the court, it is not every case in which
the court must necessarily pass an order of confiscation irrespective of the circumstance of the case.

Section 453 – Payment to innocent purchaser of money found on accused

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This section talks about the person who is otherwise innocent but has been convicted in the case of theft or
receiving stolen property, receiving payment as a consequence of fabricated accusation.

Section 454 – Appeal against order under Section 452 or Section 453

Section 454 idealises the concept of appeal that may be given birth by the aggrieved party who stands
dissatisfied with the orders passed either under Section 452 or Section 453. Upon such appeal, directions stating
stay, modification or alteration of the order causing prejudice to the appellant be made. Such powers can also be
exercised by a Court of Appeal.

Section 455 – Destruction of libellous and other matter

Section 455 talks about competent court ordering destruction of copies of all such things which are related to
the convictions made in accordance with Sections 292, 293, 501 or 502 of the Indian Penal Code, 1860. Clause
2 of this provision also states that following the direction given out in Clause 1, courts may ask for disposal of
necessary matters in connection to conviction made under Sections 272, 273, 274, or 275 of the Indian Penal
Code, 1860.

Section 456 – Power to restore possession of immovable property.

If a person has been wrongfully dispossessed by use of force, possession must be restored under Section 456,
to whomsoever it belongs. An order under Section 456 not only binds the accused but also binds any other
person including the legal representative of the accused who may be in possession of such property. It is to be
noted that possession could be restored only by a competent court.

Section 457 – Procedure in case of insolvency or death of surety or when a bond is forfeited

As per Section 457, criminal courts have been vested with the jurisdiction to provide custody of seized
property/articles at the investigation stage, when those seized property are not produced before the court. The
provision lays down the procedure that needs to be followed by the police officials following the seizing of a
property.

Section 458 – Procedure where no claimant appears within six months

When it comes to Section 458, the court has been given the competency to direct the appropriate state
government to dispose of property that remains unclaimed for a period of 6 months by its owner.

Section 459 – Power to sell perishable property

According to this section , when the value to goods is less than Rs. 500 and the goods are coming within the
ambit of perishable property which is subject to natural and speedy decay and the magistrate finds that the sale
of the property is better for the owner then he may direct the same sale. The provision aims to prevent property
from getting wasted.

Conclusion

As we come to the end of this article, it is ideal to state that the provisions surrounding the concept of disposal
of property remains relevant for time immemorial as they have clearly laid down the entire process involved in
the same alongside the duties vested on police authorities and the judiciary.

17.PUBLIC NUISANCE
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Introduction

Section 133 of the Criminal Procedure Code, 1973 is a condition order to remove nuisance. This provision is
usually used in urgent cases where public nuisance needs to be removed. Nuisance, in simple terms, refers to
any physical inconvenience or discomfort that interferes with the ordinary comfort of a human being. It is the
basic duty of our government to ensure that law and order is maintained at all times. This directly leads to the
protection of property, life, and even religious beliefs of the people by the State. Proceedings under the
Criminal Procedure Code are directed to protect the public at large. It does not serve to protect people against
private disputes. Therefore, for the Criminal Procedure Code, 1973 to function, a wide section of society must
be involved. Sections 133 to 144A under Chapter X of the CrPC are devoted entirely to regulating public
nuisance.

Public nuisance vs. private nuisance

In order to understand the essential ingredients of this provision, it is first important to understand the
difference between public nuisance and private nuisance. Public nuisance is defined under Section 268 of the
Indian Penal Code, 1860. Accordingly, when any offence is committed against the public that causes an injury,
harm, or even annoyance to a larger public who occupy a common area, it is termed “public nuisance.”
Therefore, it is a crime against society and not just against an individual or a group of people. For instance,
polluting water streams, obstruction of highways, and storing explosives are examples of public nuisance.
Private nuisance, on the other hand, does not affect the public at large but only affects a few individuals.

Section 133 CrPC and its meaning

According to the provision, a District Magistrate, a Sub-Divisional Magistrate or even any other Executive
Magistrate as specified by the State Government is empowered to do the following provided sufficient evidence
has been presented:

 That any nuisance causing any obstruction should be removed from any public place, channel or river
that lawfully belongs to the public.
 That conducting a trade, occupation, or possession of certain merchandise has a direct negative impact
on the physical comfort of the public and, in consequence, the carrying out of such a trade, occupation
or possession of such merchandise must be prohibited.
 That the construction of any property or the disposal of substances in connection with such construction
is likely to result in an explosion and therefore must be stopped or prevented.
 That any building, tree, or structure is likely to fall and cause damage, and therefore the repair, removal,
or support of such a building, tree or structure becomes necessary.
 That any dangerous animal must be confined or disposed of as the case may be.
 That any well, excavation or tank that causes any obstruction to the public shall be accordingly removed
to prevent any danger to the public.

Therefore, as per Section 133 CrPC, a magistrate can take action if any information regarding any nuisance is
received through either a police report or any other credible source. It is also interesting to note that an order
made under this provision cannot be challenged before a Civil Court and is therefore considered to be a
rigorous remedy against public nuisance. Moreover, the provision also clarifies that a “public place” includes
property that belongs to the State, camping grounds, or even grounds that are left unused for sanitary or
recreational activities.

Remedies under Section 133 CrPC

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A Magistrate on receiving such information can direct a conditional order with the following remedies-

 To immediately remove the interference or disturbance within a reasonable time period.

 To either stop the construction of such a building or completely dispose of such a building.
 To remove or repair the building or the trees, tents or structures.
 To fence the pits, tanks or excavations.
 To eliminate or dismantle the animal causing any danger to the public.
 To stop or control the functioning of any trade/activity by either ordering the removal of goods or
services or managing the storage of such goods in a prescribed manner.

Punishment under Section 133 CrPC

Section 268 to 294A of the Indian Penal Code, 1860 provides for the punishment for offences pertaining to
public nuisance. The offence of public nuisance is punishable except for the offences laid down in Section 290
of the Indian Penal Code, 1860. Under this provision, the fine can be extended up to Rs. 200. The offence under
this Section is bailable, non-cognizable and non-compoundable.

Important case laws

In the case of Ram Autar v. State of U.P (1962), the Supreme Court clarified that Section 133(1)(b) CrPC can
only be used when the trade/occupation is causing an imminent danger to the health and physical comfort of the
public. Therefore, the noise caused due to the auctioning of vegetables on private property will not constitute an
offence under this Section since there was no danger to the health or physical comfort of the locality or
community.

Further, the Supreme Court in the case of M/s. Nagarjuna Paper Mills Ltd. v. Sub-Divisional Magistrate
and Revenue Divisional Officer(1987) held that a Magistrate could not make an order to remove pollutants
from water discharged due to industrial waste on account of preventing water pollution. This is because other
laws, such as the Water (Prevention and Control of Pollution) Act, 1974, are exhaustive and were enacted to
specifically deal with such issues. Further, while the remedies provided under Section 133 CrPC are remedial,
the remedies given under the Act are preventive. Therefore, the powers of a Sub Divisional Magistrate to make
an order under Section 133 CrPC are taken away.

Conclusion

Section 133 CrPC attempts to protect the community from public nuisance. It must be appreciated that the
provision is rigorous as it clearly states that an order made by the Magistrate cannot be challenged before the
civil court. Further, the Courts from time to time have removed ambiguities regarding the scope, nature as well
as applicability of this provision. It is important that the provision is used fairly and for the right reasons. It is
noteworthy that the courts have always ensured that the provision serves its purpose.

18.WHAT ARE THE CONTENTS OF CHARGE ?

Introduction

What happens when the accused is not informed to him/her under which head he is charged against? In such a
circumstance, the accused trial will lead to delay injustice and also the accused will be delayed in preparing his
defence. So, it is essential that as soon as the accused is charged for an offence, he must be informed of his
charge. One of the basic requirements of a fair trial in criminal cases is to give precise information to the
accused as to the accusation against him. This “charge” is then to be read and explained to the accused person.

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Charge

In simple terms, 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.

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

Form and content of a charge

Section 211 of Cr.PC constitutes essentials elements of the contents of the charge:

1. The charge form shall state the offence for which the accused is charged.
2. The charge form shall specify the exact offence name for which the accused is charged.
3. In case there is no specific name given under any law for the offence which the accused is charged with,
then the definition of the offence must be clearly stated in the charged form and informed to the
accused.
4. The law and provisions of the law to be mentioned in the charge form.
5. The charge shall be written in the language of the court.
6. The accused shall be informed about his previous allegations which would expose him to enhanced
punishments if found guilty for the offence charged.

In the case of Court in its motion v Shankroo (1982), the court held that mere mentioning of the Section under
which the accused is charged, without mentioning the substance of the charge amounts to a serious breach of
procedure.

In Dal Chand v State (1981), the court held that defect in charge vitiates the conviction.

Section 212 of Cr.PC asserts the charge form shall contain:

1. The offence for which the accused is charged and the particulars like the time, place and the person
against whom the offence is committed and giving to the accused the precise and clear notice of matter
for which he is charged.
2. The exact time need not be mentioned in the charge form when the accused is charged with criminal
breach of trust or dishonest misappropriation of money or any other movable property, it is sufficient if
the gross sum is specified and the dates on which such alleged offence have been committed.
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In Ranchhod Lal v. State of Madhya Pradesh (1964), it was held that failure to mention the particulars
precisely due to the nature of the information may not invalidate the proceedings.

Section 213 of Cr.PC asserts When the nature of the case is such that the particulars mentioned in Section 211
and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall
contain such particulars of how the alleged offence is committed as will be sufficient for that purpose.

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.

Joinder of charges

In the case of K. Satwant Singh v. State Of Punjab (1960), sections of joinder of charges are not compelling.
They only permit the joint trial of charges under certain circumstances, and the courts may consider the same in
the interest of the administration of justice after thoroughly studying the facts and circumstances of each case.

Exceptions to the basic rule

Exception 1

Section 219 of Cr.PC asserts when a person is accused of an offence of more than one, but not exceeding three
of the same kind, and the offence is committed within twelve months then the accused may be charged and tried
at one trial for all the offences committed. Offences are said to be of the same kind when they are punishable
with the same amount of punishment under the same Section of Indian Penal Code or any special law or local
laws. The proviso to Section 219 of Cr.PC states when the accused is punishable under Section 379 of IPC, and
it is said to be the offence of the same kind as an offence punishable under Section 380 of IPC.

Exception 2

Section 220(1) of Cr.PC When the accused commits several offences in the same transactions, then he may be
tried jointly and it is immaterial whether the offence is of the same kind or not, or whether the number exceeds
three or not, and whether the offence is committed within one year or not.

Mohinder Singh v. The State of Punjab (1998): In this case, it was held that the court may or may not try all
the offences together in one trial.

Exception 3

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Section 220(2) of Cr.PC When the accused is charged with one or more offences of criminal breach of trust or
dishonest misappropriation of property the accused may be charged with and tried at one trial for every such
offence.

Exception 4

Section 220(3) of Cr.PC When the accused is charged with an offence which is falling under two or more
separate definitions of law, then the accused may be charged with and tried at one trial for each of such
offences.

Exception 5

Section 220(4) of Cr.PC When the accused commits several acts and one of which constitutes an offence and
when it is combined constitutes a different offence, the accused person may be tried at one trial for the offence
constituted by such acts when combined and for any offence constituted by any one or more of such acts.

Example: A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately
charged with and convicted of an offence under Section 323, 392 and 394 of IPC.

Conclusion

In a criminal trial, the charge is the foundation of the accusation and every care must be taken to see that it is
not only properly framed but the evidence is only tendered concerning the matters put in a charge and not the
other matters.

19.WHICH CASES CAN BE TRIED SUMMARILY? WHICH SENTENCE CAN BE

PASSED IN CASE OF CONVICTION IN SUMMARY TRIAL?
The Code of Criminal Procedure, 1973 is the law that governs procedural aspects. It provides a mechanism for
conducting trials for the offences punishable under the substantive law, i.e, Indian Penal Code, 1860 and other
criminal statutes. The word ‘trial’ has not been defined in the Code.

The stage of a trial begins after the ‘framing of charges.’ The nature of a trial is determined on the basis of
gravity and seriousness of the offence, jurisdiction and the substantive law applicable to it. The purpose of
having different procedures of trial is speedy disposal of cases and thereby reducing the pendency of cases.

Summary Trial

In the adversarial legal system, the parties are represented by their advocates before an impartial person, who
attempts to determine the truth and pass judgment accordingly.

The word ‘trial’ has not been defined in the Code of Criminal Procedure, 1973 per se. According to the Black’s
Law Dictionary, a trial is defined as a judicial examination according to the law of the land, over a cause which
could be either civil or criminal before a court that has jurisdiction.

A Trial is a procedure where the Court adjudicates after hearing the case from both sides. It gives a fair
opportunity to examine, re-examine and cross-examine the witnesses produced in the court. The judge delivers
a judgment on the basis of the merits of the case. It is essential that the trial is fair, prudent and without any
undue influence.

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There are three kinds of trials primarily – warrant, summons and summary. Summary Trials are mentioned in
Chapter X Powers.

In this type of trial, only the offences which fall into the small/petty category are tried. Complex cases are
reserved for warrant or summons trial. To determine whether a case should be tried summarily, the facts stated
in the complaint form the primary basis. The objective of summary trials is the expeditious disposal of cases to
lessen the burden on the judiciary. The trial gives a fair opportunity to people for procuring justice in less time.

The power to try a case summarily is laid down under Section 260 of the Code of Criminal Procedure,
1973.

The provision bestows power to any Chief Judicial Magistrate, Metropolitan Magistrate or Magistrate of the
first class empowered by the High Court to try the following offences summarily:

1. Offences which are not punishable with death, imprisonment for life or imprisonment for more than two
years.
2. The offence of theft under Section 379, 380 or 381 of the Indian Penal Code, 1860 if the value of the
stolen property is not more than 2000 rupees.
3. An offence where a person has received or retained a stolen property worth not more than 2000 rupees,
under Section 411 of the Indian Penal Code, 1860
4. An offence where a person has assisted in concealing or disposing of stolen property, not worth more
than 2000 rupees, under Section 414 of the Indian Penal Code, 1860
5. Offences covered under Section 454 and Section 456 of the Indian Penal Code, 1860
6. If a person insults with the intention of provoking a breach of peace under Section 504 of the Indian
Penal Code, 1860
7. In the case of criminal intimidation punishable with imprisonment up to two years or fine or both, under
Section 506 of the Indian Penal Code, 1860.
8. The abetment of any of the above-mentioned offences
9. If an attempt is made to commit any of the aforementioned offences and if such an attempt is a
punishable offence
10. If an act is committed which constitutes an offence, for which a complaint can be filed under Section 20
of the Cattle Trespass Act, 1871

If the Magistrate feels at any point of the process of trial, that the nature of the case is not fit to be tried
summarily then he has the power to recall any witness who may have been examined. After this, he can proceed
for rehearing of the case, according to the procedure prescribed in this Code. I of the Code of Criminal
Procedure,1973. In this trial, the cases are disposed of speedily as the procedure is simplified and the recording
of such cases are done summarily.

In this type of trial, only the offences which fall into the small/petty category are tried. Complex cases are
reserved for warrant or summons trial. To determine whether a case should be tried summarily, the facts stated
in the complaint form the primary basis. The objective of summary trials is the expeditious disposal of cases to
lessen the burden on the judiciary. The trial gives a fair opportunity to people for procuring justice in less time.

Judgment in cases tried summarily

Section 264 of the Code of Criminal Procedure, 1973 lays down how a judgment should be in cases which are
tried summarily.

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The Magistrate has the duty to record the substance of the evidence along with a judgment containing a brief
statement of the reasons for such finding, in all summarily tried cases where the accused does not plead guilty.

Under Section 326(3) of the Code of Criminal Procedure, 1973 the use of pre-recorded evidence by a successor
judge is barred in the instance when the trial has to be conducted summarily, according to Section 262 to 265 of
the Code

The new Magistrate delivered a judgment on the basis of evidence which was recorded by his predecessor. An
appeal was filed that the new Magistrate should have conducted a de novo trial as contemplated under Section
326(3) as the predecessor had conducted the case as a summary trial. As this was not done, it was contended
that the entire proceeding was vitiated. The Sessions Court then quashed the conviction. Therefore, this revision
application was filed. It was held by the Court that the present case was not tried summarily. It was, in fact,
tried as a summons case. Therefore, the impugned judgment was quashed.

Language of record and judgment

The provision governing this heading is under Section 265 of the Code of Criminal Procedure, 1973.

All the records and judgments are to be written in the language of the concerned Court. The High Court can
bestow the power upon any Magistrate who is empowered to try offences summarily, to prepare the above-
mentioned record or judgment or both. This can be done through an officer appointed for the purpose by the
Chief Judicial Magistrate as well. Such record or judgment prepared has to be signed by the Magistrate.

Conclusion

In India, there are two twin-laws which govern the criminal procedure followed in the country. The substantive
law is covered by the Indian Penal Code, 1860 along with other criminal acts and the procedural law is covered
by the Code of Criminal Procedure, 1973.

The primary aim of any criminal justice system is to ensure that the citizens have the opportunity for a free and
fair trial. It is well known that the pendency of cases is extremely high in India and the judiciary is
overburdened. Trials take years to complete which is a continuous and tedious process. Therefore, it has been
divided into three categories according to the gravity of the offences.

SHORT NOTES
1.REFERENCE

Reference and revision under CrPC have been discussed in Chapter XXX from sections 395 to 405. Section 395
and section 396 of the Criminal Procedure Code deal with reference. And sections 397 to 405 discuss revision.
We have already covered revision in a separate post. So, in this law note, let us focus on understanding what is
reference under CrPC.

Reference – Meaning under CrPC

There is no statutory definition of reference provided in the Criminal Procedure Code. Reference is a matter
between two courts where the lower court seeks the opinion of the High Court regarding an act, ordinance or
regulation.

Grounds for Reference under CrPC

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Before sending a case for reference to the High Court, the lower court shall satisfy itself that:

1. The case pending before it involves the question as to the validity of an Act, ordinance or regulation or
any provision contained in any Act, ordinance or regulation.
2. The determination of such a question is necessary for the disposal of the case.
3. The lower court is of the opinion that such Act, ordinance, regulation or provision is invalid or
inoperative by the High Court or Supreme Court.

Then the lower court shall state its opinion and reason for the same and refer the same to High Court for its
decision.

Residuary Provision
Section 395(2) of the Criminal Procedure Code states that the Court of Session or Metropolitan Magistrate may
refer for the decision of High Court on any question of law arising in a case pending before it to which
provision of section 395(1) of the Criminal Procedure Code does not apply.
Section 395(1) of the Criminal Procedure Code requires every subordinate court to refer the question as to
validity to the High Court. Section 395(2) of the Criminal Procedure Code provides discretion only to a Court
of Session or a Metropolitan Magistrate to refer for the decision of the High Court for any question that arose in
the hearing of the case before such court or magistrate.
In Emperor vs Maula Fuzla Karim, the court held that reference under section 395(2) of the Criminal Procedure
Code could be made only on a question of law, not on a question of fact.
Procedure for Disposal of the Case
Where a question has been referred to High Court, the High Court shall pass order thereon.
The copies of such order shall be then sent to the lower court by whom reference was made.
Such lower court shall then dispose of the case in the light of the reference order given by the High Court.
According to section 395(3) of the Criminal Procedure Code, when the case is pending for reference in the
High Court, the court may either commit the accused to jail or release him on bail.
According to section 396(2) of the Criminal Procedure Code, the High Court may direct by whom the cost of
reference will be paid.

2.INQUEST

Introduction
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.
Inquest report
The term ‘inquest’ has not been outrightly defined in the Code. The meaning of inquest is to seek legal or
judicial inquiry to ascertain the facts. According to the Black’s Law Dictionary, the term ‘inquest’ means an
inquiry conducted by the medical officers or sometimes with the help of a jury into the manner of death of a
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person, who has died under suspicious circumstances or has died in prison. The provisions relating to the
inquest report are covered under Chapter XII of the Code.
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.
Relevant provisions under the code
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:
 A person has committed suicide;
 A person has been killed by another;
 A person has been killed by an animal;
 A person has been killed by machinery;
 A person has been killed by an accident;
 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.
Under Section 174(4), the Magistrates have been listed down who are empowered to conduct inquests.
1. Any District Magistrate;
2. Any Sub-Divisional Magistrate;
3. Any other Executive Magistrate
These Magistrates should be empowered to function in this capacity by, either the State Government or the
District Magistrate.
Under Section 175 of the Code, the police officer who is investigating may, by an order in writing, summon
two or more persons as mentioned above for the purpose of conducting the said investigation. This shall include
any person who appears to be acquainted with the facts of the case. All such persons who are summoned are
bound to attend and truly answer all questions asked. They can choose not to answer such questions which
would have a tendency to expose them to a criminal charge or a penalty or forfeiture. Under clause 2 of the
provision, it is mentioned that if the facts do not disclose a cognizable offence to which Section 170 of the Code
applies, then such persons would not be required to attend a Magistrate’s Court.
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Inquest by Magistrate
Section 176 of the Code of Criminal Procedure, 1973 deals with an inquiry by the Magistrate into the cause of
death.
This section is read in consonance with Section 174, with special emphasis on Section 174(3)(i) and Section
174(3)(ii). If the case referred to is of the nature of these aforementioned clauses or in any other case mentioned
in Section 174(1) of the Code, then the Magistrate who is empowered to hold an inquiry into the cause of death
shall have all the powers to conduct it, which he would have in holding an inquiry into the offence. The
Magistrate can hold such an inquiry instead of or in addition to the investigation held by the police officer.
Under 176(1A), the Judicial Magistrate or the Metropolitan Magistrate within whose jurisdictional area the
offence has been committed are empowered to conduct the inquiry, in the following cases.
1. Where any person has died or disappeared;
2. When rape is alleged to have been committed on any woman.
This inquiry by the Magistrate is held in addition to the inquiry or investigation held by the police.
Under Section 176(2) of the Code, the Magistrate who holds such an inquiry is bound to record the evidence
taken by him in connection therewith, according to the circumstances of the case.
Under Section 176(3) of the Code, in cases where the dead body has already been interred (placing a corpse in a
grave/tomb, with funeral rites), the Magistrate to discover the cause of the death can order for the body to be
disinterred and examined.
Under Section 176(4) of the Code, the Magistrate who holds an inquiry under this section should, wherever
practicable, inform the relatives of the deceased person (whose names and addresses are known) and is bound
to allow them to remain present at the inquiry. According to the explanation of this section, relatives ‘mean’
parents, children, brothers, sisters and spouse.
Under Section 176(5) of the Code, the Magistrate (Judicial or Metropolitan or Executive) or the police officer
who is conducting the inquiry or investigation, under 176(1A) of the Code of Criminal Procedure, 1973 are
bound to send the body of the deceased for examination to the nearest civil surgeon or any other qualified
medical person appointed by the State Government. If it is not possible for them to do, then the reasons for not
being able to do are to be recorded in writing.
The proceedings under this section are judicial proceedings and the High Court can exercise its jurisdiction over
it by the virtue of Section 397 and Section 401 or under Section 482 of the Code.
Scope of an inquest report
The scope of an inquest report has been discussed in several case laws. Some of the landmark judgments are
mentioned below:
In the case of Tehseen Poonawalla vs. Union of India (2018), the Supreme Court has discussed the scope of
Section 174 of the Code of Criminal Procedure.
In Pedda Narayana vs. State of Andhra Pradesh (1975), the Apex Court held that the scope of an inquiry
under Section 174 of the CrPC is limited in nature. It is only to ascertain whether a person has died under
suspicious circumstances or unnatural death and the apparent cause of death. This above principle was
reiterated in Amar Singh vs. Balwinder Singh (2003), wherein the Court observed that the section does not
contemplate that the manner in which the incident took place or the names of the accused should be mentioned
in the inquest report.
The basic purpose of holding an inquest is to determine the apparent cause of death. This view has been upheld
in a catena of cases such as Khujji @ Surendra Tiwari vs. State of Madhya Pradesh (1991), Radha Mohan
Singh Alias Lal Saheb vs. State of UP (2006).
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Conclusion
The scope of an inquest report is extremely limited in its orientation. A recent discussion on this topic is to
include the cases of ‘missing persons’ in this provision. The provisions lay down only the preliminary
investigation or the ‘first impression’ of the body. The question related to the details as to how the deceased
was assaulted or who was the accused or under what circumstances he was assaulted are topics which fall
outside the scope of Section 174 of the Code.

3.POWER OF HIGH COURT TO TRANSFER CASES AND APPEALS

The mandatory procedure for pursuing a case is outlined in the Code of Criminal Procedure, 1973. Chapter
XXXI of this Code specifically covers the transfer of cases under CrPC (Section 406 to 411). The primary
objective of introducing these provisions is to ensure justice is delivered to people, and to facilitate this, the
right to appeal is also provided.
The growing backlog of pending cases and appeals has led to delayed justice and created dissatisfaction within
the judicial system. Certain provisions have been implemented to transfer criminal cases from one court to
another to tackle this issue.
It’s important to note that the right to appeal in the Supreme Court is only available in exceptional
circumstances, as the original court of criminal appeal is typically the High Court, according to the Code of
Criminal Procedure.
Meaning of Transfer of Cases under CrPC
Transfer of cases under the Code of Criminal Procedure (CrPC) refers to moving a criminal case or appeal from
one court to another within the same jurisdiction or to a different jurisdiction. The CrPC contains provisions
that empower higher judicial authorities to transfer cases and appeals under specific circumstances to ensure a
fair trial, uphold the principles of justice and promote the convenience of the parties involved in the litigation.
The nature of the trial or the relief granted to the parties involved remains unchanged when a case is transferred.
The power to transfer of cases in CrPC is granted to various authorities, including the Supreme Court, High
Courts, Sessions Judges, Chief Judicial Magistrates, and Executive Magistrates, depending on the level and
nature of the case. The reasons for such transfers could be related to jurisdictional issues or concerns about the
court’s composition.
The principle of delivering justice fairly and transparently is always upheld throughout the judicial system. The
judiciary is the cornerstone of ensuring justice and has consistently maintained a strict stance on the impartiality
of trial procedures. Both the civil and criminal codes of procedure offer valid justifications for transferring
cases between courts.
Section 406 to 411 of the Criminal Procedure Code of 1973 deals with the transfer of cases
Types of Transfer of Cases under the Criminal Procedure Code, 1973
Under the Code of Criminal Procedure, there are six types of transfers of cases:
 The Supreme Court can transfer cases from one state to another state.
 A state’s High Court can transfer cases from one court to another with equal or superior jurisdiction or
even transfer a case to itself.
 The Sessions Judge can transfer cases from one court in their Sessions Division to another.
 The Sessions Judge can withdraw cases from Additional Sessions Judges, Assistant Sessions Judges, or
the Chief Judicial Magistrate.
 The Chief Judicial Magistrate can withdraw cases from any magistrate under their command.
 Executive magistrates, including district and sub-district magistrates, can dismiss cases.
Section 407 – Power of High Court to Transfer Cases and Appeals

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Section 407 of the Criminal Procedure Code confers the power on High Courts to transfer cases and appeals.
The circumstances under which the High Court may order the transfer of a case or appeal are as follows:
 When the High Court is satisfied that the right to a fair and impartial hearing guaranteed under Article
21 of the Constitution of India cannot be ensured if subordinate courts try the case.
 When there are extraordinary difficulties related to the questions involved in the case pending before the
court.
 When the transfer of the appeal or case is necessary due to any provision under the Criminal Procedure
Code.
 When the transfer order is for the general convenience of the parties or witnesses involved in the
lawsuit.
The High Court can issue the following orders once it is satisfied with the above grounds:
 Directing the prosecution to be made in any court subordinate to or subordinated to, it under sections
177 and 185 of the Code, but no trial shall take place except in a court having jurisdiction over the case.
 Transferring a particular case or appeal pending before any criminal court to another criminal court
having jurisdiction over the High Court.
 Placing a particular case before the Sessions Court for trial.
 Transferring a particular case or appeal to itself (the High Court) for adjudication.
The authority to exercise the power of transfer by the High Court falls under the following instances:
 When the lower court submits a report requesting the transfer of the appeal or case.
 When an interested party applies before the High Court seeking the transfer of a case or appeal.
 The High Court may exercise its discretion to transfer the case or appeal if it is satisfied that it is in the
interest of justice.
 However, while transferring the case, the High Court should consider that no application for transferring
a case from one criminal court to another shall be entertained if it is made to the Sessions Court of
another Sessions Division and has already been rejected.
When the High Court exercises its power to transfer cases and appeals, it does so under the following
circumstances:
 When it believes that a fair, just, and impartial trial cannot be conducted in the current court.
 When the case involves questions of unusual difficulty.
 When specific provisions of the Criminal Procedure Code mandate the transfer.
 When it is necessary for the convenience of the parties and witnesses.
 When it serves the ends of justice.
However, in the case of Baljit Singh & Anr. v. State of Jammu and Kashmir & Ors., the Supreme Court
rejected the plea to transfer criminal cases from Jammu to Srinagar, as most of the witnesses were from
Srinagar and the court found no need for the transfer since all the witnesses from Jammu were already
examined.
A case or appeal can be transferred under this section:
 From one Criminal Court to another Criminal Court subordinate to the High Court or within its
jurisdiction.
 To a Sessions Court for trial.
 The High Court itself may try the case.
In the case of Pal Singh & Anr. v. Central Bureau of Investigation & Ors., the Supreme Court stated that a
criminal case or appeal may be transferred from one district court to another within the same jurisdiction. There
is no provision for inter-state transfer of cases in CrPC. Additionally, when a case is in its final stages of trial,
and most witnesses have already been examined, a transfer may not be appropriate.

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Transfer applications can be made by affidavits or confirmation:
 By the report of the lower court.
 By an interested party.
 The High Court may also initiate the transfer on its own.
In the case of Nirmal Singh v. the State of Haryana, the Supreme Court set aside the order of the Punjab and
Haryana High Court, transferring the criminal case to Chandigarh based on the Sessions Judge of Ambala’s
decision. The reasons for the transfer were not given, and many accused argued that engaging legal counsel in
Chandigarh would incur additional costs.
If a case is to be moved from one criminal court to another within the same Sessions division, the transfer
application can be filed in the High Court only if the Sessions Judge has already rejected it.
The High Court oversees the proceedings to ensure a smooth case transfer or appeal transfer.
Conclusion
The transfer of criminal cases under CrPC is a crucial mechanism designed to uphold the principles of justice
and ensure a fair and impartial trial. Various provisions within the CrPC empower higher judicial authorities to
transfer cases and appeals when compelling reasons exist. The process aims to address issues such as
jurisdictional conflicts, local biases, the convenience of parties and witnesses, and the complexity of the case.
The Supreme Court, High Courts, Sessions Judges, Chief Judicial Magistrates, and Executive Magistrates
possess the authority can transfers cases under CrPC. The transfer of criminal cases must be based on specific
circumstances and recorded. By recording the reasons for the transfer, transparency is maintained, and the
transfer is executed in a just and fair manner.
Ultimately, the transfer of cases under CrPC seeks to streamline the judicial process and provide a suitable
forum for the resolution of disputes, ensuring that justice is upheld for all parties involved.

4.SPECIAL POWERS OF HIGH COURT AND SESSIONS REGARDING BAIL

Introduction
Bail is a fundamental component of any criminal justice system that ensures the accused will receive an
equitable and fair trial. If someone is being held for a crime they didn’t commit, they have the right to request
bail, and the police officer is required to present them in court. A person is released on bail if they agree to
appear in court as instructed or summoned by the court to answer the charge.
The Criminal Procedure Code,1973 does not define bail. According to Wharton’s Law Lexicon, bail is defined
as “releasing a person who has been arrested or imprisoned on security being taken for his appearance on a day
and at a certain place.”
Special powers of High Courts and Courts of Sessions regarding bail
The High Court and Sessions Court have some special powers under Section 439 of the Criminal Procedure
Code, 1973, when it comes to bailing out someone who has been accused of an offence and is in custody. Only
the High Court and the Sessions Court have jurisdiction under this section; if a Magistrate refuses to grant bail
to an accused person, the High Court or the Court of Session may grant bail in appropriate cases.
Section 439 CrPC
According to Section 439 (1) (a), the High Court or Court of Session may direct the release on bail of any
person who is in custody and has been charged with an offence, and if the crime is of the kind listed in
subsection (3) of Section 437, the court may impose any necessary conditions for the purposes mentioned in
that subsection.

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Under Section 439(1) (b), the High Court or the Court of Sessions can set aside or modify any condition
imposed by a magistrate when releasing an accused on bail.
However, before granting bail to a person accused of an offence that is exclusively triable by the Court of
Session or that, though not so triable, is punishable with life imprisonment, the High Court or Court of Session
shall give notice to the public prosecutor, unless it is of the opinion, for a reason to be recorded in writing, that
such notice is not practicable.
According to Section 439 (2), the High Court or Court of Session may direct that any person who has been
released on bail under this Chapter be arrested and commit him to custody.
Amendment to Section 439 CrPC
The Criminal Procedure Code was amended in 2018, and the following provisions were added to Section 439.
1. After the first proviso, another provision was added to subsection (1), which states that “the high court
and the session court shall, before granting bail to a person accused of an offence triable under sub-
section (3) of Sections 376, 376AB, 376DA, and 376DB of the Indian Penal Code, give notice of the
applicant for bail to the public prosecutor within a period of 15 days from the date of receipt of such
notice.”
2. Following sub-section (1), a new sub-section (1A) was added, which states that the presence of the
informant or any person authorised by him is required at the time of hearing the application for bail of
the person under sub-section (3) of Sections 376, 376A, 376DA, and 376DB of the Indian Penal Code.
Scope of Section 439 CrPC
The marginal note of Section 439 clearly shows that the section has used the term “special power,” which in a
sense means special or greater, implying that these courts, specifically the High Court and the Court of
Sessions, have greater power to grant and cancel bail. They have the power to modify the conditions and
impose any other condition on bail granted by a magistrate under Section 437. The marginal note to Section
439 also demonstrates that the bail provision grants concurrent jurisdiction. However, this does not imply that
the accused can file an application in both courts at the same time. So, in most cases, an application should be
made first to the session court and then to the High Court if the Court of Sessions rejects it.
The powers given in section 439 are unrestricted by any limitation other than that which controls all
discretionary powers vested in a court. Though the discretion granted by Section 439 is unrestricted in some
ways and broad enough to allow bail in the case of a non-bailable offence of the worst kind, it must be
exercised judicially in accordance with well-established principles.
Grant or refusal of bail
The provisions of the Criminal Procedure Code give the criminal court’s discretionary jurisdiction to grant bail
to accused pending trials or appeals convictions. Because the jurisdiction is discretionary, it must be exercised
with great care and caution, balancing an individual’s valuable right to liberty with the interests of society as a
whole. The granting of bail under Section 439 of the Criminal Procedure Code is a matter of judicial discretion.
The court’s discretion in granting or refusing bail, like any other discretion vested in it as a judicial institution,
is not unstructured. The courts are required to state the reasons for granting or refusing bail, which may be in
brief .
Cancellation of bail
According to subsection (2) of Section 439, the High Court or Court of Session has the power to cancel any bail
that has been granted by it or another criminal court in accordance with Chapter XXXIII, re-arrest him and
place him in custody. Cancellation of bail shouldn’t be done frequently. If it appears to the superior court that
the court granting bail acted without using its judgement or on irrelevant information, or if the court neglected
to take into account any statutory prohibition against granting bail, an order for cancellation of bail may be

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issued. The court must consider all pertinent factors when deciding whether to deny a bail cancellation
application.
Grounds for cancellation of bail
The section gives the court the power and discretion to cancel the bail, but it makes no suggestions regarding
when or how the discretion is to be exercised.
In Public Prosecutor v. George Williams (1951), the Madras High Court listed five instances where a person
granted bail may have the bail cancelled and be recommitted to jail:
 Committing the same offence for which they are facing charges or have already been found guilty while
free on bail, proving they are completely unfit to be out on bail.
 If he obstructs the investigation, as he will if he prevents a search for the corpus delicti or other
incriminating evidence in locations under his control while out on bail.
 If he tampers with the evidence by coercing prosecution witnesses, altering the crime scene to erase
signs of the crime, etc.
 If he flees the country, goes underground, or goes beyond the control of his sureties; and
 If he engages in acts of violence against law enforcement, witnesses for the prosecution, and those who
have or are attempting to bring charges against him.
Conclusion
Section 439 of the Criminal Procedure Code grants the High Court or Court of Session special powers
regarding bail. Even if a Magistrate denies bail, the High Court or Court of Session may grant it in appropriate
circumstances. The granting of bail under Section 439 of the Criminal Procedure Code is at the discretion of the
judge. As a result, the court’s discretion in granting or refusing bail, like that of any other judicial institution,
must be exercised with great care and caution.

5.POWERS AND JURISDICTION OF METROPOLITAN MAGISTRATE

Introduction
‘Metropolitan Magistrate’ is a term coined with the help of ‘metropolitan area’ defined under Section 8 of the
Code of Criminal Procedure, 1973. According to the said provision, any area in the State comprising a city or
town whose population exceeds one million shall be a metropolitan area for the purpose of the Code of 1973.
As we have gathered some knowledge about ‘metropolitan area’, we can swiftly move to Section 3 (1), (2) and
(3) of the aforementioned Code which gives clarity to the term ‘Magistrate’ used exhaustively in the Code. As
per the said provision, any class of magistrate in relation to a metropolitan area will be termed as a
‘Metropolitan Magistrate’. While a ‘Metropolitan Magistrate’ can sink in the skin of a first class Judicial
Magistrate, it can very well fit in the dress of a second class Judicial Magistrate as well.
Metropolitan Magistrate under the Code of Criminal Procedure, 1973
Section 6 of the Code of Criminal Procedure, 1973 classifies criminal courts into four major groups namely:
 Courts of Session;
 Judicial Magistrate of first class/ Metropolitan Magistrate;
 Judicial Magistrate of the second class;
 Executive Magistrate.
Section 19 of the aforementioned Code further clarifies the subordination of the Metropolitan Magistrate. It
provides that while the Chief Metropolitan Magistrate and every Additional Metropolitan Magistrate will be
subordinate to the Session Judge, every Metropolitan Magistrate will be subordinate to the Chief Metropolitan
Magistrate. Although, Section 19(3) vests powers on the Chief Metropolitan Magistrate to regulate the activities
of a Metropolitan Magistrate, the former cannot curtail the statutory powers granted to the latter by the Code.

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Section 17 of the aforementioned Code deals with Chief Metropolitan Magistrate and the Additional Chief
Metropolitan Magistrate. The High Court is equipped with the responsibility of appointing both the mentioned
Metropolitan Magistrates. The Additional Chief Metropolitan Magistrate as provided by Section 17(2) will be
empowered with all or any of the powers vested on a Chief Metropolitan Magistrate under the Criminal
Procedure Code, 1973 or any other law which is in force as per the High Court’s direction.
Section 18 of the Code of Criminal Procedure, 1973 lays down the provision for Special Metropolitan
Magistrates.
Powers vested on Metropolitan Magistrates
As we have already discussed previously, a Metropolitan Magistrate can wear on its sleeves, responsibilities
alongside powers of all other magistrates with respect to a metropolitan area. The different kinds of powers that
a Metropolitan Magistrate can exercise have been elaborately presented hereunder.
Combined powers of first-class and second class Judicial Magistrate
The quantity of punishment that various types of magistrates are permitted to inflict is set forth in Section 29 of
the Code of Criminal Procedure, 1973. The first-class Magistrate can only impose a sentence of up to three
years. They can, however, try such instances, and if they believe the accused merits a more severe penalty than
they can deliver, they can resort to Section 325 of the Code to refer the matter to the Chief Judicial Magistrate
(Chief Metropolitan Magistrate with respect to a metropolitan area). This was the observation by the Karnataka
High Court in the case of Shivaraj veerappa Purad and Another etc. v/s State of Karnataka and Another etc.
(1977). It’s also worth noting that the Chief Judicial Magistrate’s powers aren’t transferable to other magistrates
who preside over the Children’s Court.
Section 29(4) specifies that while on one hand a Chief Metropolitan Magistrate will be conferred with the
powers of a Chief Judicial Magistrate, on the other, a Metropolitan Magistrate will be vested with the powers of
a first-class Magistrate. Thus,
1. The quantum of punishment that a Chief Metropolitan Magistrate can pass is any sentence except the
death sentence, sent for the imprisonment of life and imprisonment exceeding seven years.
2. A Metropolitan Magistrate may pass a sentence which:
 In case of imprisonment, should not exceed three years;
 In case of fine, should not exceed ten thousand rupees.
Section 9(5)
The Chief Metropolitan Magistrate steps in the shoes of a Session Judge under Section 9(5) of the Code of 1973
when the office of a Session Judge is vacant. Where the office of the Sessions Judge is vacant, the High Court
may make arrangements for the disposal of any urgent application made or pending before such Court of
Session by an Additional or Assistant Sessions Judge, or, if there is no Additional or Assistant Sessions Judge,
by a Chief Judicial Magistrate, in the sessions division and each such Judge or Magistrate shall have
jurisdiction to deal with any such application.
Section 190
Section 190 of the Code of Criminal Procedure, 1973 empowers the Magistrate of the first and second class to
take cognizance of the offence which are specified in the said provision. Further, Section 190(2) of the Code
vests the power of appointing a Magistrate of the second class to take cognizance of the offences as specified in
clause (1) rests solely on the Chief Judicial Magistrate.
Section 192
Making over of cases to subordinate magistrates after taking cognizance of an offence, for the purpose of
carrying out inquiry or trial, is another significant power vested on a Chief Judicial Magistrate under Section
192 of the Code of 1973. The requirements of this section are designed to distribute work among magistrates
when there is more than one at a location. This section allows matters to be transferred to a subordinate
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magistrate who is qualified to conduct the investigation or trial. A superior magistrate can withdraw or recall
any matter that they have transferred to a subordinate magistrate under Section 410. No notification to the
accused is required under this provision. However, under Section 410, the Magistrate is required to keep a
record of his reasoning.
Section 260
Section 260(1) of the Code of Criminal Procedure, 1973 vests power to try summarily to any Chief Judicial
Magistrate, any Metropolitan Magistrate, and any Magistrate of the first class who is specifically empowered
by the High Court. A summary trial indicates a quick conclusion. A summary case is one that can be tried and
decided on the spot. The goal of a summary trial is to have a record that is sufficient for the purposes of justice
but not so extensive that it stymies case resolution. In general, it will apply to offences that do not carry a
sentence of more than two years in prison. It will also apply in circumstances of certain offences listed in sub-
sections (ii) to (ix) of clause (1). It is the discretionary power of the Magistrate to try a case summarily
depending on the facts of the case.
Section 325
Section 325 of the Code deals with the procedure to be resorted to when a magistrate cannot pass a sentence
sufficiently. When a Magistrate with jurisdiction over the offence under trial finds the accused guilty of that
offence but believes they are not competent to pass punishment of an appropriate description or sufficiently
severe to meet the needs of justice, they must submit the entire proceedings to the Chief Judicial Magistrate, to
whom they may be subordinate. Along with the subordinate magistrate’s procedures, the accused must be
transferred to the superior magistrate for ultimate disposition.
Section 410
Withdrawal of cases from the Judicial Magistrate by the Chief Judicial Magistrate is provided under Section
410 of the Code. Any Chief Judicial Magistrate may remove any case from, or recall any case that they have
entrusted to, any magistrate subordinate to them, and may investigate or try the matter himself, or refer it to any
other magistrate competent to investigate or try it.
Judgment by a Metropolitan Magistrate
Section 355 of the Code of Criminal Procedure, 1973 lays down the provision for a judgment delivered by a
Metropolitan Magistrate. The items that a Metropolitan Magistrate shall record are:
1. The serial number of the case;
2. The date of the commission of the offence;
3. The name of the complainant (if any);
4. The name of the accused person, and his parentage and residence;
5. The offence complained of or proved;
6. The plea of the accused and his examination (if any);
7. The final order;
8. The date of such order;
9. In all cases in which an appeal lies from the final order either under Section 373 or under sub-section (3)
of Section 374, a brief statement of the reasons for the decision.
This section specifies that the Metropolitan Magistrate does not need to write a detailed decision as required by
Section 354 of the Code, but simply needs to record the specifics given out in this Section. Clause I, on the
other hand, requires the Metropolitan Magistrate to provide a concise description of the grounds for their
judgment in all situations where an appeal is pending.

Conclusion
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A Metropolitan Magistrate with respect to a metropolitan area functions efficiently under the designation of a
Judicial Magistrate of first class, a Judicial Magistrate of second class, and a Chief Judicial Magistrate. While
we have a proverb which goes as ‘jack of all trades, master of none’, when it comes to a Metropolitan
Magistrate, the proverb can be turned around to be read as, ‘jack of all trades, master of all’.

6.PROSECUTORS

Introduction
A Public Prosecutor is considered as the agent of the state to represent the interest of common people in the
criminal justice system. The prosecution of the accused is the duty of the state but not individually the duty of
the aggrieved party. They are appointed in almost all countries. The Public Prosecutor is defined in Section 24
of Cr.P.C. They serve as the basic principle of Rule of Law i.e. auld alteram partem (no person shall be
condemned unheard).
Meaning
Section 2(u) of the Code of Criminal Procedure defines Public Prosecutor.
“A person who is appointed under Section 24 of CrPC and it also includes any person who is acting under the
directions of Public Prosecutor.”
Functions
The functions of the Public Prosecutor differ according to their designation.
 Public Prosecutor- supervise the function exercised by the Additional Public Prosecutor in Session
Court and High Court.
 Chief Prosecutor- supervise the functions exercised by Assistant Public Prosecutor in Metropolitan
Magistrate Court.
 Additional Prosecutor- conduct criminal proceedings in the Session Court.
 Assistant Public Prosecutor- they examine the charge sheet prepared by agencies and submit the
acquittal or discharge. They also are responsible for the evaluation of evidence and filing revisions
petitions. They also conduct the criminal proceedings in the Court of Metropolitan Magistrate.
 Director of Prosecution- it is the head office. They exercise the overall control and supervision of
officers of Directorate. They also look after the Account Branches.
The objective of establishing a Directorate of Public Prosecutors is to supervise and scrutinise the functions
relating to various prosecution agencies at Assistant Session level and Session level except at High Court.
Reasons for the Appointment of Public Prosecutor
Whenever any crime is committed against a group or individual, it is assumed that it has been committed
against society. It is the duty of the state to provide justice to any group of society or person who is affected by
the crime. In India, it is necessary that the criminal justice system should function within the limits of the Indian
Constitution, which means that it is necessary for the Public Prosecutor to act in accordance with the principles
of:
 Equality before law
 Protection against double jeopardy
 Protection against self-incrimination
 Protection against ex-post law
 Right to life and personal liberty except procedure established by law
 Presumption of innocence until proven guilty
 Arrest and detention must be in accordance with the provisions of Cr.P.C.
 Equal protection of laws
 Speedy trial

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  Prohibition of discrimination
 Right of accused to remain silent
Conclusion
A Public Prosecutor is an officer of the court helping in the administration of justice. It is clear from the fact
that the main duty of the Public Prosecutor is to help the court in finding the facts of the case. The Public
Prosecutor must be impartial, fair and honest. He must act on the directions of the judge. He should not believe
in the conviction of accused by hook or crook. The guiding principles of any public prosecution must be equity,
justice and good conscience.

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