CHAP.

(1) - MAINTENANCE

,Q-1 Explain the provisions relating to maintenance of wives, children

t4d parents as per Cr'P.C./ 1973.

Q-2 Who can claim maintenance? What are the provisions of

maintenance for a divorced Muslim wife?
Q.3 Who are entitled to get maintenance U/Sec. 125 of Cr.P.C. and
how?
SYNOPSIS

(1) Scope
(2) Applicability of ChaPter IX
(3) object
(4) Nature of Proceeding
(5) InterimMaintenariceAllowance
(6) Maximum Limit of Awarding Maintenance
(7) competent Court or Magistrate
(8) cohclusion
. (1) Scope
Sections 125 to 128 of Cr.P.C., 1973 explains about the order for
' maintenance of wives, children and parents.

Section 125 Cr.P.C. provides for the maintenance of wives, children

(legitimate & illegltimate) and parents.
Section 126 deals with the jurisdrction of the court where a petition can be
fiied explair]s in Section 126.
Section 127 explains about the alteration of the maintenance order.
Se.Lon I2B Cr.P.C. prov,des aboul tne enforcement of order of
maintenance issued by the lvlagistrate.

This Chapter is very important. In general rule Code

Criminal of
Procedure, 1973 is a procedural law. But, in some chapters the substantive Law
i.e. rights have been incorporated to it.
Provided Chapter IX, Section 125 to 128 is one ot those chapters.

(2) Applicability of chapter IX

The provisions of Seclion 125 are applicable to all the persons of all the
, religions (Hindu, l4uslim, Christian, Parsee, etc.) and have no any concern with
the personal laws of the parties.

Gadade k,d, oisrict tt sesion coun. Larul Page 1

 UntiL 1986, all the wives belonglng to all religjons u/ere enLrtled to clalm
maintenance U/Sec. 125 of Cr.P.C. But, after "Shah Bano's Case", "The [luslim
Women's Protection of Rights on Di\./orce, 1986" has been enacted, by \.r'hich the
l'4uslirr wives have been exempted from the purvie!1 of the Section 125.

Ncw, present position is that except Nluslim wife, all the v\iives belonging
to other rellgions are enLitled to maintenance.
(3) object
This provlsion is a measure ior social justice & specially enacted to protect
women, children, and also old & infirm poor parents and falls within the
const;tutional sweep of Article 15(3) reinforced by Article 39.
This Chapter provides a speedy & effective remedy For the persons who
d-e.ldrvinf.
This section gives effect to the natural & fundamental duty oF a man to
maintain his wife, children and parents so lonq as they are unable to maintain
thernselves-

This section provides a speedy remedy against starvation for a deserted

wiFe or chiid or parents.
It may also be said that, these provistons a.e aims at preventin!] the
s[arvation leading for the commission ot crirne by the starved persons. Thus, by
way of this slmple, speedy relieF the legislature intended to ensure Lhat rhe
neglected lvife, children & the parents should not become the beggars due Lo
the starvation.
(4) Nature of Proceeding
The proceeding U/Sec. 125 are summary in nature.
A section 125 to 128 glves a speedy, effect,ve and inexpensive remedy
against the persons who neglects or reFusal to maintain their dependants.
(5) Interim Maintenance Allowance
(Code of Criminal Procedure (Amendment) Act, 2OO1)

Statement of objects appended to stated thus,

Ithas been observed that on applicant/petitioner, after filing applicatioli in
a coLrrt U/Sec. 125 of Ci.P.C., 1973, has to wait for several years for getling
relief from the court. It is, thereFore, felt necessary that express provislons
should be made in the said Code for interim maintenance allowance to the
aqqrieveo oerson unde- sa'o Sectron 125 of Lhe Code.
qc-ordr.gly, duflng tl-e pendency of tl-e oroceedtngs, ['1e \lagrsrraLe rav.
order payment of interim maintenance allowance and such .expenses of Lhe
proceedings as the N4agistrale considers reasonable. to the aggrieved person.

Gadade k.d, oisuict & s6si6 coun. L6rur. Page 2

 Further this section explains that, an application for the interim
maintenance allowance as far as possible be disposed off within 60 days from
the date of servlce oF the notice.

An interirn maintenance can be granted even on the basis of an alfidavrt.

lSuresh Vs. Lalita, 2002 Cr.L.l. 380 (Raj.)l
An order of interim maintenance was set aside where the decree of
restitution of conjugal rights was granted to the husband but the wife refused to
join him wlthout assigning any reasons [Renu Vs. Hiralal, 2002 Cr.L..]. 25991
(6) Maximum Limit of Awarding Maintenance
As per Amendment Act of 2001, there is no any maxlm lirnit of awarding
maintenance to a person.

A Magistrate of the first class may, upon proof of such neglect or refusal.
order/grant a monthly maintenance allowance to a lvife, children or father or
mcther, as such Magistrate thinks Fit.
However, in the year oF 1999 the State of Maharashtra Amended Section
125 cf Cr.P.C. and substituted Lhe words, "Not exceeding Rs-1500/ ' For the
worcjs, "Not exceeding Rs.500/ ."

So, the N4aximLJrn Limit of granting the ma ntenance to each person

entitled for maintenance is Rs.1500,/-.
(7) Competent Court or Magistrate
It may also be noted that the exercise of the powers to granL
maintenance rs of a ludicial naiure. Only the ludlcial l'lagistrate oF Firsl Class
have been empowered to deal with the maiters of m:intenance.

B) conclusion
f

Gadade k.d, otsrrict a session coud, Lrllr. Page 3

 CHAP. (2) - ORDER FOR MAINTENANCE OF WIVES, CHILDREN
AND PARENTS

SYNOPSIS

(1) Meaning of Maintenance

(2) conditions for Application of Sec. 125
(3) Persons entitled to claim maintenan€e
(4) Important Points
(5) Procedure (Section 126)
(6) Conclusion
(1) MeaninE of Maintenance
. "Maintenance" means to supply the necessaries of life for a person.

In Arunchala Vs. Anandayammal. [(1933) 56 Mad.913l,{he I'tadras

High Court held that, -

However, the word is not to be narrowly interpreted. The High Court had
held that "maintenance" must include the minimum amount for educa.tion of a
child, the provision has to be made for the child's developing mind & conscience.

(2) Conditions for Application of Sec. 125 or Interpretation of the

iP€c,72s
The condiiions l'or applicatlon ot the Section 125 must be reqLr red to be
fu fi led sucn as -

l. Any Person
The words 'any person" used in Seciion 125, includes a Hindu, [,]uslim,
Chr;stidn, Parqee, el,

An order rnade under this section can be enforced against a person even if
he resides outside the jurisdiction of the court.

The words "Any Person" inctLtde only father, or son or husband but does
not includes a daughter or mother or wife. IRajkumari Vs. yashodas Devi 1978
C 1..1. 600 (PLnJ.)l
However, a married daughter is includes "any person" lvljaya Vs_
Kashirao, 1987 Cr.t.). 577/AlR 1987 SC 11001.

2. Sufficient Means

An order under thls section can be passed only if a Person "having

sulFjcient means", neglecrs to maintain his wife or child or old parents.

Gadade k.d, oisrrcts session co!n. Latu, Page 4

 But, the expression 'means' used in thls sectlon does not signify only
. visible means such as real property or deFinite employrnent

, lf a ..an is healihy & able bodied he must be heid to possess the means
to suppori his wjfe, children and parents and he cannot be permitted to deny his
otfigjilon on the ground that he is a mere boy and is Lrnemployed' The words
" "suiicient means" should not be confined to the actual pecuniary resources but
include his earning caPacitY

lnsolvency of the husband was not concluslve to such determination His

capacity to work & earn is material. [Tarak Shaw Vs' N4into Shaw, 1984' Cr'Li'
206 (cal. )l

3. Neglects or Refuses to Maintain

An order under this section can be passed only if a person willfully
neqlects or refuses to maintain his wife or child, or parents'

A negiect or refllsal .to marntaln may be by words or by conduct lt may

be eloress o molred.

N l3) Persons entitled to claim maintenance

\1 tindel section 125 of cr.P.C. the follolving persons are entitled to claim
- the maintenance.
a, Wife
-
i) The expression "wite"', includes only a legitimate w'le or legally wedded
wife. [Yamunaba] Vs. Ananrrao, 1988 Cr'L 1 7931
ii) lf, the.efore, a marriage proveC ilLeqal cannot give a wiFe any right to
mar.1fer a4ce.

iii) The second r'!ife is not entitled to get mainLenance'

iv) The section applies only to an abandoned wiFe and not to abandoned
mistress. L14adhavan Vs. f4unir (1955) Ivlad 457l

v) it is clear that U/Sec. 125 'wife' include a woman who has been
divorced by, or has obtained divorce From her husband, is still to be considered
as wife so long as she rernains unmarried she mLlst be unable to maintain
hersell.

However, valid marriage condition precedent to the cla m of

is a
maintenance. IRamcharan Singh Vs. Sushila Devl, 1996 Cr'L'J 4405 (Ra.j')]

i. Second wife and her children

Where the.ccuser's lirst wife was alive and the marriage was in
existence, it was held by the court that the second '!ife is not entitled to get
maintenance U/Sec 125. But, the payment of maintenao'e to the children of
-

Gadade k-d, Dlshcta session cou,t. Laru.. Page 5

the second marr age \,vas held vall.l. IKhemchand Om prakash Sharma Vs. State
oF Gujrat, (2000) 3 SCC 7531

However, her iltegitimate child was held entifled to maintenance

ii. Valid Marriage

The-val,dity of the marriage U/Sec. 125 is condition precedent for the
purpose of SecUon 125.

DeFinition of "wife" cannot it.tclude the wife of the nullity of marriage.

to Sertio. 125 of Cr.p.C_,

According the wife is enti ect tor the
maintenance under the follou/ing circumstances,

i) If she is unable to rnain[ain herselF -

In ability of the vvife to maintain herself is a condition precedent to

granting.maintenance to.her U/Sec. 125. If she can maintain herself with her
own rncome, lhen lhe lv"g,t-ate md,i ror g dnl her anylhing as the pcwer to
grant matntenance is disaretionary.

ii) The husband having sufficient means.

iii) The husband has neglects or r,6lused to maintain her.
iv) IF she has noi remarrjed aiter the divorce.

Under the fo lowing circurlstances the wiFe is not entifled to claim

rnaintenan..
;) It '/i!ni meoar.
'he hJs s.,'
ii) If she, withoLrt sufficient reasons refusecl to lve wlth her husband_
,ti) It both tl-e t d.t:S dre ttving seoarately by mJtJal corsenr.

iv) Il sne remarfles, aiter the oivorce.

v) If she is living in adultery, she is not entitied for rraintenance.
iii- Referred Case Laws on Section 125 of Cr.p.C.
(A) Dev Narayan Halder Vs. Anushree Halder (AIR 2OO3 SC 3174)

. In this case, the Supreme Court heid that, the wrfe leaving/ieft her
matrimon al home without any reasonable ground, hence not enti ed for
mdintenarce
(B) Saraswati Vs. Madhavan, (AIR 1961 Ker- Zg7)

Gadade k.d, oisttr a sesiio. courr. L.tur. pag;6--

 In this case the Kerala High Court held that, No maintenance can be
qranted as husband & wife living separately by m!tual consent'

. (C) Smt. Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav (AIR
1988 SC 644)
' In this case, the question was involved whether a second wife is entitled
to claim maintenance?
in
The SC held that, the marriage of a woman with a man having a spouse
existence is null & voicl U/Sec. 5 of the Hindu lvlarriage Act, 1955, and such
woman is not legally wedded wife. So, she is not entitled to claim maintenance
U/Sec. 125. Even though the children from such marriage are entitled to claim
the mainte.lance.
b. children
Section 125 provides that any person, having sufFicient means' neglects
orrefusedtomaintainhischildren,unabletomain[ainitself,is]iableLopaythe
maintenance to h!s children

i. Legitimate or illegitimate minor child

A minor child, iF unable to malntain itself, is entitled for maintenance- It is
.immateria]\^Jhethersuchamjnorchildislegitimateor.llegitimateoryrhetl]er
married or unmarried.

' ii, Major child, but physically handicapped

A legitimate or illeqitimate child who has attained majority, but lvhere
such child ls, by reason ol ary physical or mental abnormality or injLlry unable
to maintain hersell is en[it]ed for maintenance U/Sec 125 of Cr'P C'
iii. A minor married girl
A minor married girl may be entitted to claim maintenance from her
. father, if her husband ii not having of sufficient means it means unable to
mdinLain her.

iv. A married daughter who has attained majority

However, a marrred daughter is not entrtled for maintenance U/9ec 725,
1f she has attained the majority. In such cases the responsibility of maintenance
lies on her husband and .ot on the father.

V. CASE LAWS

The court held that

tlhere the woman was not legally marriecj, her son
born of the relationship, thouqh illegitimate, was held to be entitled to
-ndintendnce.

>
Gadade k.d, District & session coun. Labr. Page 7
i
I

I
 2, Noor Saba Khatoon Vs, Mohd. Quasim [AIR 1997 SC 3280]
The SC gave the judgment that a Muslim husband may p ea exemption
fror. Section 125 of Cr.P.C. relatlng to his wife, but not to his chiidren, and he js
liable to maintain the children of the divorced wife-

3. Chhaya Vs. K.G. Channappa Gowda, [1993 Cr.L.]. 767 (Kar.)l

An unmarried woanan had sexual intercourse with a man, resulting in the
birth of a gjrl. Maintenance was claimed on her behalf from the rnan.
The court observed that the girl held to be entitled to maintenance from
alleged father.

c. Father or Mother (Parents)

Sectlon 125 of Cr.P.C. for the imposes an obligation on a person, having
sLrfflclent means, to malntain his iather or mother.

Thus, as per sec.125, an old poor father or mother, unable r.aintain

hirnse f or herselF, is entitled to clarm maintenance from his/her son.
(4) Im porta nt lroints
i) The S.C. has held that the word his' in clause (d) includes both male &
female children. Therelore, a married daughier is liable to maintain her parents.
ri) The expression, 'father or mother" will include adopfive Father or
mother.
.
lii) The Karnataka High CoLtrt has held that a step-mother was ,oititled to
maintenance \,vhen she proved that she was iving alone &due to old age was
unable to maifiraln herse f. lUllappa Vs. cangabai, 2003 Cr.L.l. 2566 (t<a,=.)l

lv) The S-C. ruled that a childless step mother collld clairn marnienance
from her step-sons provided she was widow of her husband and incapable to
rd ntain 5erseif.
CASE LAWS - Vaijaya Manohar Arbat Vs. Kashirao Rajaram Sawai [1997
Cr.L.J- 977)
The S.C. has held that the daughter whether married or unmarred,
having suFficient Tneans,rrr/ou d also be iable to maintain the parents.

v) "Mother' also includes adoptive rnother.

An adoptive mother has been awarded maintenaoce aqainst the adopted
son. IBaban Vs. Parvatibai, 1978 Cr.L.]. 1436 (Bom.)l
v ) A tather t. enlitlpo Lo mJtnLenance, :f he ts unable to ma.nla n n.mse,.

Gadade k.d, D,sl,ici & session co!n. Lar. Page B

 vii) To maintain the parents jt is a statutory obligation and a person
cannot plead that his parents had failed to fulfil their parental obligations in
respect of hjm during his minority.
-
: l9) Procedure (Section 126)
' Proceedings U/Sec. 125 may be filed against any person in any district.

o Whe-e ho rc., o

b. where he or his wife res,des, or

c. where he last resided with his wife, or as the case may be, with the
mother of the illegitimate child, or

d. where they last resided together.

This section deals with the territorial lurisdiction.

. i- rmportant points
1. An applicotion Uiisec- 125 sho!td be made by the applicant before the
J!dicial I\4agistrate ot First Class.

_ 2. No period of limitation has been prescribed for fillng an applicatjon for

maintenance.

- 3. All evidence in such proceeclings shall be taken in the presence o[ the

person against whom an order for the maintenance is to be made.

(6) Conctusion

Gadade k.d, o*tr a session cour\ Lalui Page.9

--
 CHAP. (3) - "ARREST" OF PERSONS

Q.1 Discuss the provisions in respect of "Arrest of Persons" as laid

down under Cr.P.C., 1973.
Q.2 Explain the meaning of Arrest. Discuss the circumstances in which
the arrest of persons becomes necessary.
Q-3 Elaborate the procedure of "Arrest" and its kinds as per Cr.P.C,,
L973.
SYNOPSIS
(1) Scope
(2) Meaning of'Arrest'
(3) Arrest of a person might be necessary
( ,1) Kinds of Arrest
(5) Arrest how made or Procedure of Arrdst
(6) Additional Powers for effe.ting arrest
(7) Some Important Points
(8) Riqhts of arrestcd person
(9) conclusion
(1) Scope
Section 41 to 60 of Cr.P.C. explains the provis,ons regarding to the
Arre,( o'Pe'so4S".

Thls Chapter provrdes for the 'Arresl urthoLrt warrant', procedure of

arrest/ and right of arresLed person, and !/hat are the legal consequences of the
non-compliance ot lhe ruleS relating to the arrest.

(2) Meaning of'lrrest'

'Arrest' means the deprivation oF a person of his liberty by legal authority
or at least by apparent legal authority.

For instance - When a police officer apprehends a pick-pocket, he is arresting

the pick pocket/ but when a dacoit apprehends a person with a view to extract
. Tansom, the dacoit is not arresliog that person, but wrongfully confining that
oerson.

Secondly, every compulsion or physical restraint is not arrest, but when

the restraint is tota & deprivation of liberty ls cornplete, that woutd amount to
aarest-

Kaiser Otmar Vs. State of T.N. [1981 Mad LW (Cri.) (Mad. HC)]
The IYadras High CoLrrt held that "Preventing a person from maLng his
movements & frorn moving according to his wiil, in pursuance of any legal
aul"rorily amoJat to arrett oF 5.lch Derson.''

Gadade k.d, Disrricr s. sess on courr LarL, Page 10

 In a free society, a law does not permits the detention of any person
without legal sanction. The right of personai liberty is a basic human right
recognized by the United Nations in its Universal Declaratioir of Human Rights as
' well as our Constitution recognizes it as a fundamental rights

Article 21 provides - "No person shall deprived of his life or personal liberty
- except according to procedure established by law."

Further, the procedLlre contemplated by this Article must be "rlght & iust
and fair" and not arbitrary, fanciful or oppressive.

It means, the arrest of a person must be made n accordance with the

procedure established by lav,r. Other\'!ise if an arrest without fair procedure
amolrnts to il!egal arrest or unlawful defentjon.

(3) arrest of a person might be necessary under the followinE

circumstances'
i. For securing attendance of an accused at trial
Under Cr.P.C., an arrest is the most effective method of securlng the
attendance of accused person at the tirne of his trial. As a General rule, a trial
should be conducLed in the presence of accused. Hence, his attendance becomes
necessary. If his attendance is not likely to be ensured by issuing a notjce or
- summons to him, probably his arrest & detention is the only effective method oi
qe.uflng -rs oresence at the trial.
' ii. As a preventive or precautionary measure
If there is imminent danger of the commission oF a serious crime, then
arrest of the person $/ho intendinq lo comrnit such a crime may become
necessary as a preventive measure (section 151).

There may be other circumstances where it i5 necessary as a

precautionary nleasure to arrest a habtua, offender or ex-convict, or a person
found under suspicious circumstances.
iii. For obtaining correct name & address
Where a person, on being asked by a Police orficer, refused to give hls
name & address, then under such circumstances, it would be proper on the part
of a poljce officer to arrest such a person with a view to ascertain his correct
nam-o & aclalress.

iv. For removing obstruction to police

Whoever obstructs a police oFFicer in the execution of his duty would be
and should be liable to be arrested then and there by such a police officer' This
is essent;al for the eFfect ve discharge of police duties

v. For retaking a person escaped from custody

. A person who has escape from lawful custody should be arrested forthwith
by the police

Gadade k.d, Disr,icr & session coun, L,tur Page 1'l

(4) Kinds of Arrest
For the purpose of the Crjminal Procedure Code, 1973, the arrest is oF t!^,/o
tYPeq;

A. Arrest urith warrant, and

B. Arrest !!ithout warrant.

A- Arrest With Warant

Basically, the lvlagistrate is empowered to make an arrest declsion on the
information generally obtained Frorn a poljce or the complajnant.
i. Form of warrant of arrest
If the magistrate makes an decision to arrest he would issue a i^/arranf of
arrest". A warrant of arrest is a written document/order signed, selled and
issued by a magistrate and addressed to a police officer or some other person
specially named & commanding him to arrest the accused person named in it.

ii. Important points

a- In non-cognizable offence
In case oF non-cognizable olfence, a police oFficer is reqLrlred to obtain ,'a
warrant of arrest" from a magistrate for the pLlrpose to arresl a person. He
cannot be arrested without a warrant.
It means, rn the non,cognizable offences, the police oFlcer shoLttd obtain
"warrant of arrest", then he can arrest accused.

b. In summons case
If, the case is a summons case a summons shall be issued to the accused
person in the first instance for his attendance in .ourt; if after issuing of
summons, an accused does not appear in the court, then the lvlagls[rate can
issue (bailable) "warrant of arrest" with a view to bring the accused before the
(oLrrt.

c. In warrant cases
ll
the aase is a warrant case a lvidgistrare 1dy .scrte J !!ar-a-t oi a.resl
instead of a summons. for the purpose to bring the accused before the coLtrt
'lre lYagistra[e is having d,scretionary powers.

B- Arrest Without Warra nt

[But made according to some legal provision permitting such arrest]
. . Following provisions are relating to the
,'airest without warrant,,.

4r
OuO"a" na, *,*, *.".
 other words we can say that under the foilowing circumstances
lIn a
person can be arrested without warrant.]

I. Arrest by the police officer

Under the follo!!lng circurnstances, the police ofFicer can arrest a person
wlthout obtarning a 'warrant of arrest'.
a. When police may arrest without warrant (Sec'41)
Any police officer may without an order from a Maqistrate and withoLrt a
v\drIanl, a'reSf an/ oa-son : -
\4ihen any person has been concerned in any cognizable offence, or
i)
agalnst whom a reasonable complaint has been made, or credible informatlon
his been received, or a reasonabl.e sLlspicion exists, of having his concern in the
con'nrlssioir of a cognizable offence.

ii) IF the person has in his possession any implement of house-breakinq

w'!ho rl 'awr u. e" _u5e;

iii) If such person has been proclaimed as an offender by the State

Governmenl;

iv) The person in whose possession the stolen property is found;

v) Any person \,!ho obstructs a polrce offlcer while in the execution of his
dJt y:

,r'A_v' pe son who 5os escdped from law[.]l L(15(odv;

vli) Any perscn who is reasonably suspected of being a deserter From any
of the Armed Forces oF the Union;
viii) Any released convict committing a breach of any rule made under
Section 356(5);
ix) Who has been concerned in any act committed outside of India, which
if committed in India, would have been punishable as an offence, for which he
is, under any law relating to extradition, liable to be arrested in Indla;
x) Fcr!hoge arrest any requisition, whether w,-itten or oral has been
received from another police otficer.

b. /\rrest on refusal to give name & residence (sec.42)

i) According to Sec- 42, when any person who, in the presence of a police
officer, has committed or has been accused oF committ ng a non-cognizable
offence, reFuses, on demand of such officer, to give his name & residence or
give his false name & residence, he may be arrested by such officer in order to
knoi^/ his name & residenae;

Gadade k.d, Disl.icl& sessioncourl. Latu' Page 13

 ii) When the arue name & residence oF such person have b.en
ascertained, he shall be released on his exbcuting a bond, with or wlthout
s!reties, to appear ltefore a rnagistrate if so required.

IL Arrest by private person and procedure on such arrest (Sec. 43)

Any priva[e person may arrest without a warTant, any person,
a. Any person who, in his presence, commits a non-bailabe & cognizable
ofFence; or
b. any procla imed offender.
And after the arrest without unnecessary delay, he shall handover sllch
arrested person to a police oFficer. or if necessary take the arrested person in
custody to the nearest police station.
III. Arrest by the Magistrate (Sec.44)
As per Sec. 44, when any olFence is committed il-r the presence of a
I\4aqistrate, \,hether Executive (or) Judicial, \,!ithin his local jurisdiction, re may
himself arrest or order any person to arrest that the offender/person and
subject to the condrtions of Bail, send the offender in custoCy.
(5) Arrest how made or procedure of Arrest
i) As per Sec. 46, ln order to making an arrest, the potjce offrcer or other
persoi making the arrest shall actually touch or confine the body of the person
to be arrested, unless there is a submission to the custody by words or action;
ii) if
sLrch person forcibly resists to arrest him, or attempts to evade/avoid
the arrest, th:tn such police officer or other person may use all means necessary
to effp.l tl .. aire.rj
iri,, however. rt should be noted that, notning ln tnts section gives a ghl
to cause the death of a person who is not accused of an offence punishable \,.rith
death or with imprisonment for life;
It is to be not,-d that, mere utterance ot words or gesture or flickering of
eves does not amount to aarest.

Actual seizure or touch of a person,s body with a view to arresLing is

necesSary

(6) Additional powers for effecting arrest

The Code gives the following powers For eFfecting on arrest -
i- Power to use force
-he Derso''t makil.g a: arrest may rlse all necessary force ior
ellecttnq tie
arrest, if the person to be arrested resists or tries/attempt to escape the ar.est

Gadade k.d, osrricr & sessoncoun. Larlr page 14

ii. Power to sear€h a place (Sec. 47)
Section 4,/ empowers rhe po'ce olr'Ler or Jny' olher person a.lr.1g Jndor a
rJvarrant of arr'est, to enter any place in search oF the person for maklng an
arrest. An occupier of a house ls under a legal duty to afford to the pollce all the
facilities to search the house for the purpose oi making arrest. The owner of
premises shall not object the police officer and shall allow him to search the
premises.

iii. Power to pursue (Sec. 48)

A police officer may, for the purpose of arresting without warrant any
person whom he is authorized to arrest, pursue such a person into any place in
India.

iv. Power to obtain assistance

A po!ice officer can ask any person to assist him in arresung of or
preventing the escape of a.y other person whorn Lhe police ofiicer is authorized
to arrest. The person to whom asked to assist s under a legal obligation to give
assistance to the police off,cer.

v. Power to require sub-ordinate officer tc arrest (Sec- 55)

Any oificer in charqe ol a police station or any police officer making an
invesligation of any offence, can take assistance of any sub-ordinate officer for
the purpose of making an arrest without warrani. Such sub-ordinale oFFicer is
-nder a duly to arresl.
(7) Some Important Points
For effecting an drrc,L:

i) The procedure of arrest must be right, lust & Fair. It shall comply \,!ith
the provisions of Art. 21 & 22 of lndian Constitution.
ia) The judicial officer shall not be arrested without the prior order or
permissron or directions of the District & Sessions ludge or oF the Chief lustice
oi High Court-
iir) lhe SJpreme CourL.u,eo rhdL
'no lvoman may be arrested aftef sunset and before sunrise except, in
exceptional circumstances. "

The Bombay High Court gave directions that

"The r.ale police officer should not arrest a woman without the presence
of " rady constable.'

A wor.an should be arrested only by the woman/lady police officer.

Gadade k.d, DisrdcrEsesson Courr. Latur. Page 15

 iv) Where a person is arrested by police with or u/rthout warrant, une5s
the pclice has also obiained orders from Lhe I\4a9istra[e, the person so arrested
shail not be handcuffed. lIn Citizens for Democracy Vs. State oFAssarn, (1995)
( SLL .41]

(8) Riqhts of arrested person

The Following are the rights of arrested person.

1. Right to be informed of the grounds of arrest (Sec, 50(1))

This is a precious right of the arrested person and has been recognized by
the Constitution UlArl. 22 as one oF the Fundamental Rights.
According to Sec. 50(1), "Every police officer or other person arresting
any person with or without u/arrant shall forthwith communicate to the airested
person Full particulars oF the offence for which he is arrested or other grounds ol
such arrest. '

The rights to be informed of the grounds of arrest is a preciou< riqht of

the ar!-ested person. IUdayabhan Shuki Vs. State of U.P., 1999 Cri.L.]. 274 (All
H.c.)l
2. Right to be informed of right to bail (Sec. 50(2))
As per Sec. 50(2), "Every police officer arresting without a warrant any
person other than a person accused of a non bailable offlence, is requried to
inForm the person arrested that he is entitled to be released on bai and that he
may arrange for sureties on his behalf."

3, Right to be produced before a Magistrate without delay

ln case of every arrest, whether the arrest has been made.riLh cr,riithout
a vlarrant- It is necessary that the arrested person is require.l, without
unnecessaTy delay, to'produce before the 14agistrate or collrt having luris.lictlon
ir the case.

4. Right of not being detained for more than 24 hours without judicial
scrutiny
A,tt- lt(7) of India. ConstituLioc .

The riqht has also been incorporated in the Constitlition as one oF the
iL'rda're4tal ri9\ts.
Here again, whether the arrest is wilhout warranI or under a warrant, Lhe
arrested person must be brought before the f4agtstra[e or court within 24 hours.

Att..22(2) of the Constitution provrdes, "Every person who rs arrested &

detained ifi custody shall be produced beFore the nearest N,laqistrate within a
period of 24 hours of such arrest excusing the time necessary for journey from
the place of arrest to the court of the lvtagistrate and no such person shall be

Gadade k.d, D,sbicr & s6sio. coun, Laiur Page 16

detained in custody beyond the said period without the authority of a

lYagi5r'"1e.'

5. Right to consult a legal practitioner

Roth the Constitution of India and the provisions of the Code recoqnlre
the right of every arrested person to consult a legal practitioner of his choice
The right begins from the moment oF arrest.

6. Right of an arrest indigent person to free legal aid and to be informed

about it.
An airested indigent person is entitled to the free legal aid This right ol
an indigent accused/a;ested person is mentioned ulArt 2T of the ConstitLrtion'
tne Su"preme Court has held that - "The state is under a constitution rnandate
to p.ovide free legal aid to an indigent accused person, and thls constituiional
obligatlon to provide legal aid arises when the accused is produced before LhP
Magistrate for the first time."

7, Right to be examined by a Medical Practitioner

If any arrested person requests the Magistrate to condLrct the Nledicalis
examination of his body, then on st-lch demand/request, the lvlaEistra:e
required to direct the examination of his body by a registered Medlcai
Practitioner.

(9) conclusion

Gadade k.d, Dsl,ici e session coLrr,li,tu. Page 17

 CHAP, (4) _ ANTICIPATORY BAIL

SYNOPSIS
(1) Introduction
(2) Important Points
(3) Conclus;on
(1) Introduction
Anticipatory Bail means a bail given in advance.
Section 438 of the Cr.p.C., 1973 provides an explains about the
Anticipatory Bail.

The provisions to grant Anticipatory Bail is a new one. Thrs is a new

provision made cn the recommend.Uon of the Law Commission Uncjer the Old
Code there was no specific provision For grant of'Anticipatory Bail,.

The.LaW Commission observed -. l,The necessity tor granting anrrc paiory

.bail. arises mainly because sometimes infiuen[ial persons iy to i;plicate their
rivals in false cases for the purpose of disgracing Lhem or ior other purposes by
getting them detarned in lail lor some day.,'AparL trorn [alse cases, ,,!here there
are reasonable grounds for ho dlng that a person accused of an offence is not
likely to abscond, or otherwise rntsLlse his liberty while on b.rll.
The section applies to a I non ba able otfences and not merely Lo oFFences
punishable with death or imprisonment for liie. lt,s appl cabilily is also not
confined to offences exctLrsively [riagle by fhe CoLrrl of Sessions. Tlre provisron is
not applicable to bdilable oFfe.1(es.

The 41rt Report oi lhe Law Commlssion recommended for the tirst time
inclusion oF a provision for anticrp.rLory bail Sec on 4lS conternplates an
application by a person on an apprehension oF arrest jn regard to the
commission of a non bailable offence. The object is to re ieve a person from
unnecessary harassment or disgrace and it is granted when the courl is o[herwise
convinced that there is no like ihood of mjsuse of the libedy granted since he would
neither abscond nor taken such step as to avoid due procesi of law.

(2) Important points

1 Ju risdiction
Only the Htgh CoJrt a^d t1e Cou-t of Sesso. are e-npowerecl o g-drt a
Anticipatory Bail. The person can appty for anticipaLoiy bail direc y to the High
Court. There is no bar & rule ihat first to apply to Court oi Session and then to
the H_igh Court. 1t depends upon the wil & convenience oF the aggrieved person,
vJho fears epprelreading arreqt.

2. Condition

Gadade k.d, oistia a s"*""c-r,. t*r- Page 18

 If once the application for Anticipatory Bail is rejected by the Court of
Session, the peTson cannot apply to the High Court'vice versa'.

But, in'Arun Madan Vs. State, 1993 Cr.L-1,, 1493 (Del.)', the S.C.
held that, A person after unsuccessfully moving the court of session for
anticipatory bail can again approach the High Court for the same purpose and
under the same section. A fresh application tor anticipatory bail under Sec 438
aFter rejection of the prayer for regular bail, is not maintainable.

3. Power exercise of judicial discretion

Granting the Anticlpatory Bail is purely depended upon the discretlon of
the court. The power of antic,patory baal has to be exercised sparingly and in
exceptional cases. The powers, in fact, required to be exercised property.

At the stage of granting the anticipatory bail, the court is required

normally to consider following factors,
1. The na[ure of seriousness of the accusation.
2. Severity of the oftences,
3. Nature oF the evidence collected and the character of behavior of the
accused,
4. Chances oF the accused absconding and no[ being a,/ai]ab e Curlng the
trial,
5. Possibility of repetition of such crime,
6. Chances of the accused of tampering with the evidence & witnesses,
and
7. Last but not least Iarger interest oF the people and Lhe state.
When power U/Sec. 438 is exercised $rithout glving reasons or on
irrelevant considerations, it is illegal & liable to be set aside. Bail should noi be
granted without due application of mind to the facts ot the case.

4. Opportunity to State
Before granting Anticipatory bail, reasonable & fair opportunity of being
heaid should be given to the state authorities.
But, where anticipatory bail was granted without affording opportunity of
hearing to the state authorlties, the order was held liable to be set aside. IState
oi Assam Vs. R.f. Kflshnd K r.-lar, qlR L99B SC t44l
5. Reasons to be recorded
It is obligatory on the court to record reasons For the exercise ot its
jurlsdiction under Sec. 438 of Cr.P.C.

Where antic:patory bal wa< granled by the 1'rg1 CoLrrL,. a dowrv oedlh
case without a statement of reason, the S.C. set it aside and said that the Hlgh
Court must give reason for the exercise of its jurisdiction. IRaghuvir Saran
Agarwal Vs. State of U-P. (1998) 8 SCC 6171

Gadade k.d, oisrrrct & sossion coun, Laiur. Page 19

6. Bailable offence
Where the olfence was bai abe and the maximum puiishment was
imprisonment for two years, an application for antjcipatory bai was heLLt to be
not maintainable. IE. l'1ai aiah Vs. State oF A p. 2003 Cr.L.J. NOC 15] (Ap)l
7. Interim anticipatory
lnterim anticipatory bail can be granted by the High Courl even in the
absence oF records oF the case.
8. Scheduled Caste Matters
The provision ot Anticipatory Bail U/Sec. 438 ts not avallabLe to persons
accused of offences under the Scheduled CasLes and Scheduled Tribes
(Prevention of Atrocities) Act, 1939. It is speciftcally excluded by section tB oF
the Act, 1989.
9. Conditions in Bail
The High Court or the CourL oF Sessron may rmpose such condjtions in its
old<' oLco d 'a Lo tl'e FdcLS Of Lhe p.rl,cu., Lase aS,t may tl-io. fit, . .l.r n9,-

, a. a co.dition that the pe son shirll make himseli available For

interrogation by a police officer as and !\/hen required;
b. a conditlon thal the person sha I nol, directly or ind reclly, rneke any
inducement, threat or promise to any person acquainted with the lacts of the
ca se.

c. a condition that the person shalJ not eav'e India without the Drevous
permission of the court.

d. such olher condilion as nrry be i,rp\_,!ed under sub.sec. (j) oi Sec.

43f .

(3) Conclusion

Gadade k.d, Dtsktcra scssion court. Lalur page 20

 if once the apPlicaton for Anticipatory Bail is rejected by the Court of
Session, the person cannot apply to the High Court'vice versa''

But, in 'Arun Madan vs. State, 1993 Cr'L'l', 1493 (Del')', the S C'
held thal, A person after unsuccessfully moving the court of session for
anticipatory bail can again approach the High Court for the same purpose and
438
unO"i tf,e iame section A fresh application for anticipatory bail under Sec'
atter rejection of the prayer tor reqular bail, is not maintainable'
3. Power exercise of judicial discretion
Granting the Anticpatory Bail is purely depended upon the discretion of
the court. The power of an[]cipatory bail has to be exercised sparingly and in
exceptional cases. The powers, in fact, required to be exercised property'

At the stage of grantinq the anticipatory bail, the court is required

normally to consider following factors,
1. The nalure of seriousness oF the accusation'
2. Sevet:tY ot rne ol-ercF1,
3. Nature-of the evidence collected and the character of behavior of the
accused,
zl. Chances ol'the accLrsecl absconding and not being a'/ailable clLlrlnq the
trial,
5. Poss!bility of repetition oF such crime,
6. Chances of the accused of tampering with the evidence & witnesses'
and
7. Last but not least larger interest of the people and the state'
When po!Jer U/Sec. 438 is exercised !'/ithoL't glving reascns or on
irrelevant considera[ions, it ]s illegal & liable to be set aside' Ball shotr d noi be
granted without due application of n'lind to the facts oF the case'

4, opportunity to state
Before granting Antlclpatory bail, reasonable & fair opportunity of being
heaid should be given to the state authorities.
But, where anticipatory bail was granted without affording opportunity of
hearing to the state authorities, the order was held liable to be set aslde IState
oF Assam Vs. R.K. Krishna Kumar, AIR 1998 SC 1441

5. Reasons to be recorded
It is obligatory on the court to record reasons For the exercise of lts
lurlsalciion unO6t sec. 438 of Cr.P.C.
Where anticipatory ball was granted by the High Court a dowry death
'n
case without a staiement of reason, the S.C. set it aside and said that the Hlgh
Court must give reason for the exercise of its jurisdiction [Raghuvir Saran
Agarwal Vs. State oF U-P. (1998) B SCC 6171

I
1

I
Gadade k.d, oistiaa session cou.t, La!u. Page 19
I

I
 CHAP. (5) - FAIR TRIAL

Q,1 Discuss principal features of Fair Trial.

Q.2 Describe principal features of Fair Trial'

SYNOPSIS
(1) Introd uction
(2) Effects of non-compliance with the rules of Fair-Trial or
consequences of non-observance of the Principles of Fair Trial
(3) Concept of Fair Trial
(4) Conclusion
(1) Introduction
The term 'Fair' has several meanings, which means, reasonable, honcst,
clear, equitable, just, etc.
Itis often said that ".lustlce should nol only be done, but lt shoLrl.i appear
LO have been oone.

ThLrs by a Fair Trial only, "lusUce is done, and also it appeers to have
been done." The concept of Falr Trial has permeated every nook & corrler ol Lire
Crimlnal Procedure Code- The maior objective of the Code being to provide For
Fair Trial in the adminisiration of Criminal Justice, while draftlng th. Co.le ci
Criminal Procedure, 1973, the parliarnent has taken spirit of the Constitution oF
lndla. Especialiy, Article 14, 19, 20, 21& 22, have influenced the cortstrucl:on of
the Code of 1973.
The primary object of Crimlnal ProcedLlre Code is to ensure a Fair Trial to
every person accused of any crime. The malor altributes of Fair Crimin.l Tral
are enshrined in Article 1O and 11 ol the Universal Declaration of l-l\,man I'l'9hts,
.I948. l.1ese Artrcles provideq :

Art. 10 -"Everyone is entitled ln Full eqirallty fo Fair & publrc hearing by

an independent & impartial tribunal, in the determinaiion of his righLs &
obligations of any criminal charge against him."
Art. 11 "Everyone charged $rith u p"nul ofi.n." has the righl to be
presumed lnnocent until proved gullty according to la\,v in a public trial at which
he has had all the guarantees necessary for his defence."

The fairness or reasonableness includes the Principles of Natural lustice. A

person accused of any offence should not be punished unless he has breen grven
a Fair Trial and his guilt has been proved in such trial.
(2). Effects of non-compliance with the :rules of Fair-Trial. or
Consequences of non-observance of the Principles of Fair Trial

Gadade kd. oisrdct&sesion coud, L.tur. Page 2'l

 i) A whole trial wiil be void simply because the provisions oi Fair Trial have
not beel [ully cornplied ,^, rl ;
ii) The Supreme Court h--ld that Failure oi observe/comply with the
princip es of Fa,r Trial would vitiate the trial and liable for settrng a5 cle of the
conviction & sentence by the appellaLe coLrrt. IRam Chandar Vs. State of
trdrydnal

(3) Concept of Fair Trial

The concept of Fair Tria ncludes the fo lo!"rinq rnaior attributes;

L- Adversary System

'The Adversary System'can be reasonably-considered as an essentially

irnportant component of the concept of Fair Trial.

The system of criminal trial envisaged by the Code is the adversary

syslern based on the accusatorial rnethod. In this system, the prcsecutor
representing the state accuses the detenddnt (the accused person) of the
commission of some crime; and the la!i/ requires him to prove his case beyond
reascnaDle doubt. On the other hand, the law also provides fair opportunity to
the accused person to deFend himself. The judge, more or less, is to r/vork as an
umpire belween them.

In this system oF crimlnal tria, the state employing competent counsel

who/to prosecute lhe accused, who, in turn, will engage/employ eqLtally
competent legal practitioner to challenge the evidence oF the prosecution.
Therefore, the adversary sysLern provides equa legal rights & opportunjties to
both the parties to present their respective cases before the court.

2. Presu mptlon of Innocence

It is a RLlle of La\^/ evolved tn the Coanmoo Lav,/. presumpiion of
innccdnce is one of the well settled principres of Fair Trial.

In Babu Singh Vs. State of Punjab (1964) 1 Cri.L.l. 566 & K.M,
Nanavati Vs. State of Maharashtra. (AIR 1962 SC 605) - "The principle
that the accused person is presumed to be innocent until & Llnless his guilt is
proved beyond reasonable doubt, is of cardinal importance in the Administration
of Criminal Justice."
- The burden of pr-oving the guilt of the accused is upon the prosecution
and until & unless it proves the guLlt Deyond reasonable doubt, the courts
cannot record a linding of the guilt of the accused.

"Every crlrninaL trial beings with the presumption of innocence in iavour of

the accused, and Lhe provislons of the Code are so Framed thal a criminal trial
shou d begin \rlth and be throLlghout governed by this essential presumption."

a, Beyond Reasonable Doubt

Gadade k.d, D sr'ic$, session c.r.r Larur Page 22

 The prosecution must prove his case beyond reasonable doubt. The
standard of proof of "Beyond Reasonable Doubt' s seen as "one oF the corner
stones of the pr-esumption of innocence'.

b. Benefit of Dou bt
Where the prosecLrtjon fails to prove the offence "Beyond Reasonable
Doubt", the coult rnay acqLrit the accused on the qround of "Benefit of Doubt'

Thus, a5 mentioned earlier, the principle of "PresumpLion of innocence" is

undoubtedly an essential attribute of Fair Trial.

3. Independent, Impartial & competent ludges

The most indispensible condition tor a Fair Crinlinaj Trial is to have an
lndependent, impartial and competentjudges to conduct the trial.

a, Separation of Judiciary from the executive

ln order io ensure the independent Functlonrnq of the ludlciary, the Cocle
has provided for the separation of the judiciary frcrn the execulive: The ludiciary
must free frorr al suspicion of execLrt ve inFluence or control Hence, tili
appointments oF the Sessions ludges. & Judlcla Nlaqlstra[es are ma.le by tr]e
State Govt. in consultation with the High Court. The judge or magistrate,
thenafter, vrorks only under lhe direct control & supeivislon of the lligh CoLirt
and not of the Govt.

Hence, n order to have Fair Trjal it is necessary that the judge or

magistrate must not be ln any manner coxneaLeC \,viLh Lh-- proseaut;on or
interested in the prosecution.
b. .rudge or Magistrate not to be personally interesie.l in the case
"Nemo debet esse judex in propria caLrsa". It means, No man ought to be
a judge n his own (duqe.

The essence of this Maxim has been incorporated in Sec. 479 of the Code.
According lo I h's Secfion.

'No ludge or IVlagistrate shall, except wlLh the perrnission of the higher
.appellate court, try any case, in whrch he rs a partv or per5onally lnterested."

Hence, in order to have a FairTrial it is essential,/necessaty that the ludge

or magistrate must not be in any manner connected with the prosecution or
interested in the prosecution.
The anothe. important condrtion for Farr Tflal rs that the judge or
magistrate should be impartial and unbiased.

It is primary principle of our law lhat "no man shall be judge in hls own
cdse.

Gadade k.d, Disrdcr & se$ron court. Latli Page 23

c, Competent judges made available through hierarchy of courts
The rules in this connection provides that only persons with sound
knowledge of law and wlth requisite experience & quaifications are to be
appointed to these posts.
to have a Fair Trial and quick trials, speedy disposals,
Hence, in order
there should be competenl & experienced judges rnade avaiLable through
hierarchy of courts.

E.g. luvenile offenders or juveniLe delinquents, are not crlm nal and
therefore their cases should be handled with great care & understan.lif;.g by
experienced & qualified judges.

d. Qualifications of ludges & Magistrates

For Fair Trial it is of prime importance that the judges & magistrates
should be persons of integrity & character with the necessijy ability 81 sound
knowledge of law.

4, Court to be open or Public hearing in an open court

Public trial in open coLlrt is undoubtedLy essential ior the lre.ri[hy,
objective and fair administration of justlce.
Fair Jrial also requires public hearing in an open .ourt. Section 327 makes
provision for open court generally access b e to the members of the plrblic

It means that - it is necessary that - "The place in which any .rmina

.olrrt is held for the plrrpose of tr,/ing any offence, shall b3 .n open .curt to
\,!hich the p!blic generally may have access."

lt
means that other accused, parties, advocates, general p!rlic are
entiteld to see the cour[ proceedingS.
Kehar Singh Vs. State (Delhi Admn.) (19a8 SCC (Cri,) 711
Question of Law - The appellant conteded that the trial was not conducted in
open court, and was conducted in Tahari lail, within the four walls, not allowinq
io open public, and it was not a Fair Trial, as the place ot trial was not an open
courl ,

The S.C. observed that - jail is not prohibited place lor trial of crirninal
cases. Nor the jail trial can be redarded as an illegitimate trial. There can be tfla
rn jain premises for reason of securjly to the partres, witnesses and for oLher
valid reasons. The court pointed out that in this case everyone who wants to go
& attend the tr'al has a riqht to go & attend the trial.

5- Audi Alteram Parl.em - Fair Trial

The princile of "audi alteram partem", which rnadates that "No one shall
be condemned unheard, is a part of the Principles oF l\atirral .lustice.

Gadade k-d, Disrid & se$io. Coun, Larur. Page 24

 Fair Trial inc!!des, [he Principles of Natural Justice.

A Fair Trial requies that, 'A Fair opportirnity of being heard" should be
giiven to
o both the parties
pa i.e.
i a.cused & the prosecution.

And, non-observance of this golden principle u/ould result into the

violation oF Articles 14 & 21 of the Constitution.

Maneka Gandhi Vs. Union of India (AIR 1974 SC 13a9)

In has been held by the S.C. that

a) 'Fairness & reasonbleness' U/Art. 14 & 21 implles 'the Principles ot
NatJra'lrsl,co'.
b) Before taking any decislon, an authority or court or tribunal requies
that a fair opportunity of being heard shouid be given to both the partiesi

Itmears that,'No person shall b'e troubled or penalised for the offence,
unless he has given a Fair opportunity of being heard.

6- Venue of the trial

As we already discussed that The inquiry or trial of criminal case must
be conducted in open court. The prodLlction oF evidence, exarninaiion, ci-oss
examination, arquments, etc. muSt be conducted in the open court Lastly, lhe
coLrrt must pronounce judgB'rent, orders, etc in the open
ers, etc. pen court berore the
accused. It is called pLrblic Conducting the criminal trial in the open court
trial'l'. Conductinq
blic trial'. cou
and pLrblic ls one of the principles of the Faar Trial.
Ii venue of lhe trial i.e. the place oF inquiry or trial is highly inconvenient
to the accused person and caLrses various impediments in the deFence
p.eparation, then lhe tria at such place cannoi be considered as Fair Triai.

The place oF the tr,al should be convenient both to the prosecution and to
the defence. We can say tht it would be conveneinl both to the partles il the
trial is co.ducted by a court within whose local jurisdiction the crima was
committed. Trial at any other distant place would generally mean hardship to
' the parties in the production of evidence.
7. Right of accused to know of the accusation
A Fair Trial implies that it shoLrld be fair both to the prosecution as well as
. the accLrsed person. Therefore, this right of accused have been recognized by
the Code wlth a view to rnake the trial fair to the accused Derson.

Fair Triai requies that the accusd person is given adequate opportunity to
defend himself. Such opporLunity will have little meaning, if the accused is not
imformed of the accusations against him.

I Thereiore, the Code provides that. "When an accused person is brought

before the court for trial, the particulars of the offence of which he is accused
.hall :tdled Lo h m.

Gadade k.d, Disr,icr & session courr. L.tur Page 25

 In cases of serious oFfences, the court is required to frarne in writing a
formal charge and then tc read and explain Lhe charge to the accused person.
8. The accused person to be tried in his presence
One of the essential important attribLrled of the Fair Trial is that - 'the
trial cf criminal case should be conducted in the presence of the accused
person. "

The general rule is that - in a criminal trial the court should not proceed
ex-parte against the accused. This rule is for lhe protection of the interests of
the accused. The personal attend a nce/ p resence of the accused at his tria would
enable him to understand properly the prosecution case & help in making of
preparations For his defence.

A criminal trial in the absence oF the accLlsed is unLhinkable. A triaL and a

decision behind the back of the accused person is not permitted by the Code.

9. Evidence to be taken to presence of accused

As seen earlier, Fair Trial requires lhat the particulars of the ofFence have
to be explained lo [he accused oerson and that the trial is to take p]ace in his
presence. ThereFore, A Fair Tral should also require that the evidence in the
trial to be taken ln the presence oF the accused person.
According to Sec. 273, "All ev dence iaken in the course, of trlal or other
proceeding shall be taken in the presence of lhe accused person". Hence, it is a
rule ol Fair Trial.

This secticn makes rl rnanda:ory/imperative that all the evidence r.usi be

taken in the presence of the accused. Faii!te to do so would vitiate the trial, and
the Facl that no oblection \,iras taken by the accused is immaterial. IRa.n SrnEh
Vs. Ciown, (1951) 52 Cri.L.i. 991 & lRam Shankar Vs. State oF Bih.rr, 1975
Crr...J. 1aO 2 rPdrdna ) l
Further it is provided that U/Sec. 278 that - Whenever the law requires
the evidence of a witness to be read over to him after its comp 3tion, the
reading shall be done in the presence of the accused, or of his pleader.

Further, provided that - Il any evrdence is given in a lanquage not

understood by the accused person, and he is present in colr.t;n person, it shal
be interpreted in open court in a anquage understooC by hirri (Sec.279)

Non-compliance with Sec. 279 wrll be considered as a mere irregularity,

not vitiating the trial if there was no prejudice or injuslice caused to the accLrsed
person. [Shivnarayan Vs. State of tvladras, AIR 1967 SC 986]

10. Right of accused person to cross-examine prosecution witnesses

In the criminel trial, the accused has a right to cross examine the
p-osecJLron !vrt.esses. It rs a part & pa.cel o' fd'r Tr;al. fa;r & adequate

Gadade k.d, Distdct e sesion C@n- Laur Page 26

opportunity shouid be given to the ac.used person to cross exarninP the
p,urec JLro-r w;t nes5eq.

Evidence given by witnesses may become more reliable if given on oath

and tested by cross examination

Sukanrai vs. State of Rajasthan, AIR 1967 Raj,267

clenies the accused person the right to cross
"A criminal trial which
examine prosecution witnesses is based on weak foundation, and cannot be
considered as a Fair Trial."

11. Right to produce evidence in defence

It is one of the requirement of.lustice & Fair Trial, that theevidence
accused
person should/shall be given a reasonable opportunity to Lead/produ'e
in defence-
Though the burde. of proving the guili is eniirely on the prosecutlon and
though the law does not required the accLrsed person to lead evidenie to prove
his innocence-

Habeed Mohammad vs. State of Hyderabad, AIR 1954 SC 51

"But. yet a criminal trial in which the accused is not permlLfed to give
evidence io disprove the prosecution case, oT to prove any special defence
avallable to him, cannot be considered as lust & Fair Trial The reftrs:rL \rr Lh1)Lrt
any leqal iustification by a I\4agjstrate to issLle pro.ess to the witnesses named
by the accused person was held enough to vitia[e the trial"'
12, Right of the accused person to have an cxpeditious trial (Speedy Trial)
"lustice delayed is justice denied" A criminal trial which requires
Lrnreasonable long time is not a Fui. Trial. The accused persons have a riqht io
slleedy trials & quick disposals. This right of Lhe accused has been recognlzed by
Sec. 309(I) of Cr. P. C.

llussainara Khatoon (IV) vs. state of Bihar [(1940) 1 Scc 98]

The S.C. dectared that, "speedy trial" is an essential ingredient of
'reasonable, fair & just' procedure guaranteed by Art 21 and that it is the
constitutional obtigation of the state to provide speedy trial to the accused'
"speedy trial" is Jfundamental rights of the accused person, enshrined in Art'
21 of the Constitution-
Hence, in order to have a fair trial, the criminal cases/trials should be
tonducted speedily & expedltious. It is one of the cardinal principle of fair trial'
13. Fair opportunity to prepare for his defence
Fair trial requires that the accused person should get adequate & fair
opportunity to prepare for his defence.

!
Gadade k.d, o"r.ia a sNion cou . Larur. Page 27
 The courl must, before tl-re .ommenccment cf the trial, give the accused,
adequate tlme & faciiities for the prepara[]on of the Cefence.

14. Supply of copies to the accused

ln a crlminal tria, the Magistrate requires, taking cognizance of the

offence, to sirpply to the accused copres of certain documents llke - police
report, F.1.R., charqe sheet/ statements recor.led by the police during
investigation, et!. 1t ls necessary to the accused for the better preparation of his
defence.

15. Right to be defended by a Lawyer

It is one or the fL!ndamental rights enshrined in our ConstitUr:i.n. Art.
22(1) provides that, 'Nc person who is arresled shal be denied th.r rlght to
consult and to be (leFended by a legal practitioner of his choice. The right ol the
accused to.have a couosel of his choice ls fundamental & essential to Fair Trial."

FLrrlher the Code h.:rs als.r specilically recognized Lhe right oF a person
against \,vhom proceedinlls are instituted to be defended by a counsel.

Therefore, the accLrsed rnust get reasonab e opportunity to engage his

lalvyer ot his chorce ior the purpose of his deFence.

16, Legal aid at siate expense

If the rght to coLLnse is essentia to Fair Trial, it is equally important to
see that ihe acclsed has the necessary means lo enqaqe a lawyer For his
d efe nce.

If the accusid is an indigent & poor person, then the right to i;'ee legal
Services is a constLLrtional Fundamental righl oF an indigent accuseci person.
Further in addition, under Art. 39(A) it is Lhe constitutional duty of the state to
prov ide free legal ard in oider to secure justice, to the poor & indigent accused
person.

lHussainara Khatoon (1V) Vs. Hodr€ Secretary, state of Bihar/ (1980)1

scc 981

The S,C. after observing Art..39(A) and earjier case "Maneka Gandhi Vs.
Union of India" has observed as follows -

"The right to 'ree legal servicei is, Lherefore, clearly an essential

ingredient of 'reasonable, fair & just' procedure for a person accused of an
- offence and it rnust be held implicit in the Article 21 of the Constitution. This is a
constitutional right of every Accused person who is unable to engage a lawyer &
secure legal services on aicount of reason such as - poverty, indigence, etc",

.-.......-.-....-Ls.-p--k.Pas.vs,..Uni.an -Territory of Arunachal Pradesh, (1986) 2 scc 401l

Gadade k.d, osr,icr a session coun. Latlr Page 28

 has ceen held by the S.C. that unless refused, failure to provide free
It
legal aid io an indiqent acclrsed u/ould vitiate the trial, and liable to set aside the
conviclion o& s3ntence.

17. Right of pre-sentence hearing

As a general rule, the trial court Uudge) should, after recording the
conviction, hear the accused on the question of sentence/ and then pass
sentence on him according to law.

It is a rule of natural lustice, that an adequate opportunity

should be
qiven to the accused to prodLlce materlal & make sLrbmissions in regard to the
sentence to be imposed on him.

lAllaudin Mian vs. State of Sihar (1989( 3 scc 5l & [Santa Sirigh vs.
State of Punjab, 1976 ScC (cri.) 5a6l
'A serltencing decision taken withoul Following the requirements of Sec.
235(2) is likely to be slruck do\/n as violaii'/e oF the rules of iatural justice. I\on
compliance with the reqLrirement of Sec. 235(2) cannot be describecl as a mere
irregularitl,,in the coLrrre oi the trial ano as such deFaai,lf non-coil'irLiance li n'ri
cLrrab e '

(4) Con clusion

Gadade k.d, oistricr s sessioo court. Lahr.

 CHAP. (6) - FIRST INFORMATION REPORT (F,I.R.)

Q.1 Write a detailed note on F.I-R_ and its eyidentiary value.

Q.2 Write a detailed note on ,'First Ioformation Report,' & evaluate its
evidentiary value.
SYNOPSIS
(1) Scope
(2) Meaning
(3) object
(4) fngredients of Section 154
(5) Other Important points
-(6) Message by telephone etc.
(7) Entry in "General Diary',
(a) Reiusal by the police officer to regisi-er the F.I.R.
(9) Police duty to record information
(10) No time prescribed for todging F,LR.
(1:t)Pubiic Documeilt
( 1l) WritPetition for direction for registration of F.I.R.
(13) J u risdiction
(14) Conclusion
( 1) Scope
."Section 154" of the Criminal procedure Code,
1973 lays clown ihe legal
provisiqns aboLrt the "F.l-R.,, in cognizabte offences. Section 1-55 explains aboul
the F.I.R, in non-cognizable offences. The i:.I.R. is a p.e-trial process.
(2) Meaning
The information given by an inlormant ol. aoapla,nun, to a poi:ce officer
and reduced to writing as required by this sechon js known as rhe r,First
.Information Report" is not mentjoned in the Criminal procedure Code. It is an
important document and may be puvused in evidence to support or conLraclict
the- evidenc€ oF the person who gave the information.i The expression
"information" means something in the nature of a complainti? accusation, tr at
least.information relating to the commission of a cognizable offence, given with
an object to keep the police machinery in motion in oider to i;veetigate a
crime".
This is inFormation first in point of Ume. on ihe basls of wh,ch the
investrgation starts (commences),

The expression "The First InFormation Report" has not been defined in the
Code of Criminat Procedure, 1973.

(3) object

Gadade k.d, oisr,icr & sesron cou,r. Laru page 30

 i) The principat oblect cf the F i.R. from the point of view of the informant
is to s;t the criminal la\rr' in motion and requiring the police to start investigation
relating to the cognizable cffencc
ii) Another oblect from the polnt of view of the investigating authorities is
to obt;in informaton about the alleged criminal activity as to dble to take
suitable steps lvhich are necessary to arrest & prosecute the accused'
iii) The F.l.R. in a crimjnal case is extremely vital & valuable piece of
evidenc; for the purpose oi corroborating the oral evidence given at the trial
(4) Ingredient of Section 1s4
Any person can qiven information to the police relating to the commrssion
of a cognizable offence, and Section 154 of the Code provides for the manner in
which such information ls to be re.orded'
i) The information is to be qiven to an officer in charge of a police station
having jurisdicfion for investrgating [he case
Under Section 154 of the Code, the lnformation mLrst relate
il) to the
commisslon of a cognlzable case.

aii) It is an informat on cl offence first ln point of tlme

iv) The investiqation starts lmmediately after re'ording the F 1'R'
v) The information may be given by orally or in writlng'
vl) Every inFor,'nation relat nl to the cornmissron ot a cognizable ofteice' it
given orally to an officer in-cha'ge of police station, shall be reduceC to writing
by the officer himseli or under hls direcllon
vii) The intorma[ion, ]F given in writlng, or if reduced to wri[inE' shali be
signed bY the ln[orna'1l
viii).The inForn-ration as taken down in writing shall be read-over to the
com plaint or informant.

ix) A copy of the information as recorded under sub-sec 1 shall be given

(5) Other Important Points

i) F.tr.R. can be Lodg edl registe red by any person, need not to be lodged by
only victim.
ii) Damodar vs. state of Rajasthan, (2003 Sc 98 (Crimes) - ln thrs
case, t'he Srlpreme Court held that, any telephonic information abolrt the
. commission oi a cognizable offence can be considered as "F I R'"'

, iii) F.I.R. can be loiiged even against unknown person'

i
Gadade kd, oi.tiat sessioD courl. LBtur' Page 31
 iv) F.l.R. is a document yr'hich sets (keep) the criminal law in motion, It
has been he d by lhe court thal: it is neither necessafy nor possible to give the
details of the commission of an offence while lodging the F.l.R. F.l R. s rriere a
report, need not to record minor details of the case/offence. IlYani Vs. State of
Kerala, 1987 Cr.L.J. 1965 (Ker.)l
. v) l-he F.l.R. should mention lhe general description, names of accused,
place of occurrence, names of witnesses, informant etc.

(6) Message by telephone etc,

Can a [elephonic message be considered as F-I.R.?

Mauji Ram Vs. State of H.P,, 1994 Cr.L.l- 3662 (Hp),

"Where a telephonic message was given by a villager alrout the
commission of murder (cognizable oftence) to the oFFicer-in-charge of the police
stalicn, who got lI redLrced to,,.iriting and recorded it by him in the polici] .r-Jtion
diary, the informalion disclosing names oF the accLrsed, deceased and tlr. place
of occurrence, the High Court he d that lt is lhe inForrnation wiahin the r .:anLng
of this section which is popularly known as '[he F]rst inFormation report'as which
s nerther vagLre nor.ryptic bLrt clear.
(7) Entry in "General Diary"
According to Sec 154(1), "The substance oF the ,nrormotion re ating to
cognizab e offence is/shall be then to be entered/recorded by the police-olFicer
in a book to be kept by hi.n in the prescribed form.'
Thjs book is called "Station Diary" or 'Genera, Diaryl'-
(B) Refusal by the police officer to register the F.I.R.
Sub section 3 ol Lhe sec. 154 says that - "lt any ofiicer,in .hlr9e of
police station refused to receive/record the inFormatio.n about lhe comnrt:sion of
a cognizable oifence from an informant then he can send the substance of
inFormation, ln writinq and by post to t6e SLlpenntendent of police concerned,
who if satislieci that such information discloses the commission of a cognizabLe
cfFence, shall either investigate.the case himself or direcl an investigation to be
made by any officer sub-ordinate to him.'

Haresh Mahadev Kamble Vs. State of Maharashtra, [2OO2 Cr.L.J. 1297

(Bom.)l
'The Bombay High Court held that Station diary entry about rape of the
victim by 5 or 6 person, u/ithoul mentioning names or descriptions of those
persons, place of [h? incldent and the circumstances preceding and alter the
rape etc. coLl d not be called as F.l.R "

(9) Police duty to record information

:
Lallan Chaudhary Vs. State of Bihar (2OO7) 1 SCC (Cri.) 684

D'siicr Session Coun LaUr Page 32

 The S.C. held that Section 154 casts a statutory duty upon the officer in
charge of police station to register the case, dlsclosing about the cognlzable
offence and thenafter start investigatlons, genuineness or credibility of the
lnformatlon is not a condition precedent for registration of a case. The police
officer cannot refuse to register the case on the ground that it is either not
reliable or credlble-
Refusal to record an F.l.R. on the qround that the place of crime does not
fall within the territorial jurisdictjon of the pollce station, amounts to dereliction
of duty.
(10) No time prescribed for lodging F.I.R.
Gurudev Singh Vs. State of Rajasthan, 2OO3 Cri,L-1, 552 (Raj,)-The
Rajasthan Hlgh Court held that Law has not fixed any tirne limir for lodging
F.l.R. and therefore, the entire prosecution case shouid not be thrown
overboard merely on the ground of delayed F.I.R.
( 11) Public Document
In layat Bhai Lalu Bhai Patel Vs. State of Gujarat, (1992 Cri.L,l,
2377 (Cuj.)-"The Flrstlnformafion Report rs a public document and an accused
is entitled to h.ve its certil'ied copy. The denial of a copy $/ill be ag.irrsi iire
Principles of Naiural lustice and violalive cf Art. 21 of the Constitlrtion".
(12) Writ Petition for direction for registration of F.I.R,
In K. Karunakaran Vs. Siate of Kerala, (2OOO) 3 SCC 761 (SC)-"A
Writ Petition was filed for direction to the SLate Govt. to reqister a case of
corruption against the then ChieF Minister of the State. The petition was heid to
be ma in Lainable".

(13) itrrisdictioj:
The F.1.R. can be lodged at a police station, even though place oF ofien€e
does not come within the jurisdiction of that police station.

The otficer-in-charge oF police station having a statLrtory duiy to

record/register the F.l.R., though the place of offence is outside of the ten-itorial
jurisdiction and the officer should forward the F.l.R. to the propbr police station.
The S.C. also made this observation that, "the wrong police stalion cannot
refuse lo register lhe case and make investigation on the ground oF not havrng
fer r rto'r?, JLr rsd'ct,on."

(Satvinder Kaur Vs. State of Delhi, (ArR 1999 SC Bs96))

(14) Conclusion

Gadade k.d, Dist,ictS Sss6ncou,l. Latur. Page 33

 cHAp. (7) - JUVENTLE JUSTTCE ACT, 1986

(1) Preamble
"An Act to consoliclate & amend the law relating to juvenile an conflict with
protection, by providing proper care, protection and treatment/ and by adoptlng
a child friendly approach ln the adludication and disposition oF matters ln the
best interest of children and for Lheir ultirnate rehabilitation through various
institutions established Ltnder this enactment"-

(2) History
The present law which qoverns the juveniles who are in conFlict with law
and children.who are ln need of care & protection in called "luvenile Justice
(Care & Protection of Children) Act. 2000.

This lav,' has replaced the e.rlrcr lav! gcverning juveniles and which was
known as 'Juven',e lucrice Act, LgEo'.

However, the Juvenlle lustice (Care & Protection of Children) Act, 2000 is
primarily designed to !l \/e eFfect to the provisicns of the Llt! convention on the
RaqhG of the Chilcl, 1969 ratified by Indja in December, 1992. The convention
laid s[ress on social re inteqration of child vict]m5, to the extent possible,
without resorting to jLrdicial proceedings.
(3) object
The object of tlre leqislation is,

i) to lai, down the basic principles For a.lministering jLls.ice tc a jLivenlle or

the chilo 1 Br l.

ii) to establish 'luvenile lusLice Board" ior the adjudicaiion &.lisposal of

maLters in the best interest oF child,-en.

iii) to establish "Child Welfare Committee" and 'VarioLrs Homes' in each

district for proper care, protection & rehahilltation of childrens who are in need
of care & protection.
(4) Short title, extent and commencement
i) this Act may be called "Th; luvent e lustice (Care & Protection) of
Children Act, 2000"

ii) It extends to the whole of India except the State of lammu & Kashmir'
iil) It shall come inio force on such date as the Central Govt may, by
notification in the otticial gazette, appoint.

Gadade k.d, oisticr & sessioncoun. Laor Page 34

 (A) JUVENILE JUSTICE BOARD
Q. 1 Write a detailerl note on "fuven:le.lustice Board" & its functions
as per fuvenile Justice Act, 2OOO.

SYNOPSIS

(1) Scope
(2) Section 4 ot the Act
(3) constitution of Juvenile .rustice Board
(4) Term of the Members
(5) Termination
(6) Procedure, etc. in relation to Board (Se€tion 5)
(7) Powers of .luvenile Justice Board (Section 6)
(8) Procedure to be followed by a Magistrate not empowered under
the Act (Section 7)
(9) Procedure to be followed when "Claim of iuvenility" is raised
before any court (Section 7-A)
(10) "INQUIRY' proceedings By the Juvenile lustice Board (sec.14)
( 11) conclusion

( l) Scope
Section 2(c) of the Act of 200C deflnes "Board" means a luveni e lLrstice
' Board constituted under section 4.

Section 4 to 6 of Chapter II of the Juvenile lustice (Care & Protec[]on of

' Children) Act, 20OO lay down the provisions relating [o establishment, procedure
& powers of the "Juvenile lustice Board".

' 'A Juvenile .lustice Board' is equal to a Court".

(2) Section 4 of the Act
Section 4 lays down that nolwithstandlng anylhing contained in the Code
of Criminal Proced ure, 1973
"The SLate Govt. may, within a period of one year from the date of
commencement of the luvenile lustice (Care & Protectron oi Chlldren)
Amendrneni Act, 2006, by notification in official gazette, constitute for every
district, one or more luvenile Justice Boards for exercising the powers and
discharging the duties conFerred or imposed on such Boards rn relating to
juveniles in conflict with law under this Act.'

(3) Constitution of Juvenile Justice Board

Under the Act the state Govt. is empowered to constitute a Board for a
district or a group ol district which state may specify by a notification. These
Boards shall exercrse the powers & discharge all such dutes, which are
' conferred "pon ll'er..

i
Gadade k.d, D uricr & session co!n. Larur Page 35
 i) A Board shall consist of a Metropohlan Magrstrate' or a 'ludlcial
l'4agistrate of the First Class" as the case may; and

ii) Tow social rvorkers of whom at least one shall be a woman, torming a
Bench and every such Bench shall have the powers conierred by the Code ol
Criminal ProcedLrre , 19f3, o. a lYetropolitan Magistrate or as the case may be -
Condition - a. ludicial Magistraie of the First Class or The f4agistrate of the
Board shali be desigoated as the principal Magistrate.

Condition - The Law provides that - "Nc Magistrate shall be appointed as a

member oF the Board unless he has special knowledge or training in child
psychology or child welfa re. "

It means that only such Nlagistrates can be appointed as the rnernbers of

the Board who have special knowledge or lraining in child psychology or child
welfare.
Condition - b. "No social worker shall be appointed as a member of the Board
unless he has been actively involved in health, education, or welfare activities
pertaining to children for at least seven years-"
F!rther, only such of ihe soclal workers will be nomlna[ed ]n ahe Board
who have been aciively involved in health, education or \ueliare activilies of the
children for at least 7 years.
(4) Term of the t4embers
Section 4(l) provides for lhe term of offace of the mer.bers.

"The term of oftic.r oF the members ol [he BcarC and llie rnanncr in which
Such member may resign shal be such as may be prescalbed".

(5) Tcjrmination
ihe appornlmerl ol ary m,jmber of tne Bodro md) termina[ed after
oe
holding an inquiry, by the state Govt. on the grounds speciFied in the Act itself
if,

i) he has been Found guilty of misuse of power vested under this Act.

ii) he has been convicLed of arl offence involv]ng moral turpitude, and
such conviction has been reversed or he has nol been granted fLr I pardon in
_eqpecl of SLch olfe'rce,

iii) he fails to attend the p,oceedrngs of the Board for conseculive three
months wlthout any valid reason or he fails to atterld less than three fourth of
the sitLing rn a year
(6) Procedure, etc. in relation to Boa;il (Section 5)

Gadade k.d, oist,icr s sessim cou . Lalur. Page 36

 1) Section 5lays dovln that The Board constituted U/Sec.4 shall meet
al such times & observe such rules of proce.lure for its day to day working as
may be prescribed by the state.
2) A child jn .onFict with aw may be produced before an individual
mernber of fhe Board, if/when the Board is not sitting.

3) A Board may act notwithstandinq ln the absence of any member of the

Board; and no order made by the Board shall be invalid by reason only of the
absence of any member during any stage of proceedings.

PROVIDED that there shall be at least two members including the princlpal
lvlagistrate, present at the time of finaJ disposaL of the case. (Hourever, it is
essential that at the time oF final disposal of case, two members including the
principal Maqistrate musi be present.)

4) It is also provides that - in case oF difference oF opinion, the malority

opinion shall prevall, but where there ,s no such majoritv, the opinion of the
principal Magistrate shall prevail (Sec. 5(4))
(7) Powers of luvenile Justice Board ( Section 6)
Section 6 lays down that -
i) Where a Board has been constitute.l for any dis[r]ct o. a grolip oF
disfricts, such Board shall, notwithstanding anything contained in any other law
for thc time being in iorce but save as other',!ise expressly provided in this Aci,
have power to deal exclusivey wrth all proceedings under this Act relating to
juvenile in conflict \Jith law.
11) The powers conferred on Lhe Boarcl by or urrder thrs Aat rney also be
exercised by the High Cour! and the Court oF Session, when the proceeding
aomes before them ln appeal, revision or otherlvise.

(8) Procedure to be followed by a Magistrate not empowered under the

Act (Section 7)
Section T lays down that when any Magistrate not ernpowered to exercise
the powers of the Board under thls Act is of the opinion that a person brought
before him under any ot the provlsjons of this Act (other than for the purpose of
givinq evidence), is a jLVenile or the child, he shall without any delay record
sLlch opinion and fcrward the jLrveniLe or the child and the record oF the
proceeding lo the Competent Authority having jurisdiction over the proceeding-

(9) Procedure to be fotlowed when "Claim of luvenility" is raised before

any court (Section 7-A)
Section 7(A) has been newly inserted in the Act of 2000 by the luvenile
lustice (Care & PrbtectionoF Children) Amendment Act, 2006.

Accordinq to Sec. 7(A), whenever a claim of juvenility is raised before any

court oT a.court is of opinion that an accused peTson was a juvenile on the date

Gadade k.d, Dst crs ssiion court, Latui Page 37

ot.ommlssion of the ofrence, the court shall make an lnquiry, take such
evldence as may be necessary (bui not an affldavit) so as to determine the age
of such person, and shall record a tlnding, "Whether the person is a juvenile or a
cnild or not. stating his age as nearly as may be

If the court finds a person to be a iuvenile on the date of commission of

the offence under sub sec.(1), it shall forward the lLrvenile to the Board for
passing appropriate order, and the sentence if any, passed by a corrrt shall be
deemed [o have no effect

(1O) "INQUIRY" proceedings By the Juvenile lustice Board (Sec'14)

Se.tion 14 to 22 of the Act of 2O0O lay down the detail provisions relating
to "lnqLriry proteedinq by.luvenile lustice Board".
Inquiry by Board regarding juvenile
Section 14 lays down that 'r,'here 3 lLrvenile haviirg been charged \^ril:h the
otfence is produced before the luvenlle Justice Board, the Board shall hold the
inquiry in accordance with the provisions of this Act anC may make sLrch order in
relation to the juvenrle as it deems Fit.
An inquiry under this sccLicn sl'lall be completed within a period of lour
months from the daie of its corirmencement, unLess the period is extended by
the Juvenlle lustice Board having regard to the circumstances of the case & in
special cases afler recording the re.19ons in wrifing For such extensioa.

The Act a so prescribes a time limit during which an inquiry is to be

completed. It provides that the inquiry is to be cornp eted within a period of 4
months from thc dale oF its cir:imencement. Howevei, the Board can extend
tfie period ol 4 rNCrltlis aF[er rea.J:ding the re-sorls in writing lor such ex:ensicn'
(11) Conclu sion
(B) :9ArL OF IUVEi!1Lr
SYNOPSIS
(1) Power to grant bail to juvenile
izl o.oe.s that may be passed regarding iuvenile by the Board (sec'
15)
(3) order that may not be passed againstjuvenile by the Board (Sec 16)
(4) Conclusion
(1) Power to grant bail to juvenile
The law empowers "the Board' to grant bail to juveniles, and the
p'ocedure which the Board has to tollow.

Se.tion 12 of the Act of 2000 laYS down that when any person accused of
a bailabe or non-bailable ofFence, and apiarently a juvenile, is arrested or
detained or appears or is brought before a ".luvenile Justice Board". Such person

Gadade kd, Disln.r & se$ion cou( Lalm Page 38

shall, notwithstanding anything contained in the Cr.P.C. 1973 or in any other
a\,v for the t,me being in force, be rclcased on bail wth or without.surety or
placed under the supervision of a Probation Officer or under the care of any fit
institution or person.
!Vhen such juvenile in conFlict \'^Jith law is not released on bail by the
luvenlle lustice Board, ;t shall, instead of comrnitting him to prison, make an
order sending him to an "Observation Home" or a "a place of satety" for such
period during the pendency of the inquiry regardinq him.

(2) Orders that may be passed reqarding Juvenile by the Board (Sec. 15)

The law empowers the Board to pass any order authorized by the law, rf
the Board is satisfied on inquiry lhat a juvenile has committed an offence.
Sectlon 15 lays down that !vhere a luvenile Justice Board is satlsfieA on
inqLriry that a juvenile has committed an ofFence, then, notwilhstanding
anything to the contrary contained in any other law for the time being in force,
The Board may, it it so thinks Fit,

a) allow the juvenile Lo go hbnre afler aCvice or adrnonitiol] Follov,inq

approprlate inquiry against and counselin!1 to ihe parent or the guardian & the
j uve n i1e;

b) direct the juvenile to partlcipate in group counseling & sirnilar

a cr iv rt'e s;

c) order the juvenile to perforrn communiiy service,

d) order the parent of the.luvenile or tl're juvenile himseil to pay a fine, if
he is over Fourteen years of aqe & earns money;

e) djrect the juvenile to be released on probatjon of good conduct and

placed under the care of any parent, guardian or o[her fit person, as the
luvenile Justice Board may require, for the good behavior & well-being oF the
JUVenile for any oeflod noL exceedrng lhree years;

f) direct the juvenile to be released on probation of good conduct & placed

under the care of any fit institution for the good behavior & well-being oi the
luvenile for any period not exceeding three yearsi
g) make an order directrng the juvenile to be sent to a "Special Home" for
a period of three years.
The Board shall abtain the socral investigation report on juveniJe either
through a probation officer or a recognized voluntary organization, and shall
taken into consideration the findings of su(h repcrt beFore passing an order.
(3) Order that may not be passed against juvenile by the Board (Sec- 16)

Gadade k.d, oisrrcr & session co!,! Lahr- Page 39

 The law debars/prohibits that "no iuvenile in conflict with law shall be
sentences to death or life imprlsonment or committed to prlson in default of
payment of fine or furnishing security.

The luveniLe lustice Board is not empowered io impose/pass fhe follo\^ring

sentences against the luvenile in conflict with la!\/ such as-

a) death sentence; or
b) lire imprisonment; or
c) imprisonment in default of payment of fine, etc.
{4) Conclusion

(c) PowER
SYNOPSIS

(1) Introduction
. -in cohfidentialPraceedings(PrivateHearing/rn-cameraProceeding)
(3) Special Procedure of the Juvenile lustice Board
(4) conclusion
(1) Introduction
A'Juvenile in conllicL with law" is dea]t wilh by the juvenile lustice Board'
While the "Chiid in nee.l of care" is to be proceeded by the Child Welfare
Committee, Chlldren Home and ShelLer Home to look after the interest oF the
child.

Section 4 of the Act provides For the Constitution of luvenile Justi'e Board
For the inquir)- a .l hearlnq in the case of a juveni e in conflict \'!ith law'

The Section also lays do!'rn the qualifications For appoiniment, reinoval,
etc. of the memDers o' Ll-e Bod, J.

The proceciule in relation to the working oF the luvenile lustice Board is

conlained in Seclion 5 o' lhP AcL.

1. Power to discharge the juvenile after admonition

Where after holding an lnquiry or hearing in the case of a juvenile in
conflict with law. the luvenlle lustice Board Finds that the offence is not of a
serious nature it rnay order d scharge oF the luvenile after admonition

2, Power to order the release of Juvenile on probation

The luvenile Justlce Board rnay order the release of juvenile in confllct
with law on probation of good conduct & piaced him under the care of his
parents, quardian or any other. proper person. Having reqard to the
circumstances qf the case, the Board may also direct the juvenile to enter into a
. bond, w'Lh or wrLhLLrL sJlet.e5.

Gadade k.d, oisrict& session cou,l. Laru, Page 40

 But, the pericd oF sLlch order oF released on orobation shall not exceed 3
years.

- 3. Orders that may not be passed against Juvenites

Section 16 of the Act prohibits the luven le Justice Board from making
- certain orders agarnst the luvenile who is foLtnd guilty oF an offence. The
following orders cannot be made by the Board :-

i) an order aurarding death sentence; or

ji) an order awarding the sentence of imprisonment for life; or

iii) an order imprisonment in default ot payment oF fine; or

iv) an order for imprisonment in default of fLlrnishing securily;
(2) Confidential Proceedings (private Hearing/In-camera proceeding)
The proceedings of the luvenjle lustice Board being of a conFide;rtia
nature, their pLrblication is strictly prohibited n the interesL of the juvenile

(3) Special Procedure of the luvenile lustice Board

The procedure Followe.l ln the pro.eeding agatns[ Juvenile oFfender L]..1.-:r
' the luvenile lustice Act, 2000, difFers from that of an ordinary criminal trjal,
and. thererore, it can be righ y termed as special procedure,, ln vi€rr,,/ oF the
. rollow ng (oaside-dlrons

i) The proceedings cannot be initiated on a complaint from a citiren or the

polrce;

ii) fhe I ea-irg rs irfo-md. & st clly cont oent Jt.

iii) The luveaile offendeI vvhiie Ltnder dEtention, is kept I Sepa,afe

ObservaL'on lorre;
juvenile in conflict with law is usually condLrcte.J by Lady
iv) The trial oF
Magistrate spec,ally deputed for the purpose;

v) The procedure followed in the trial of juvenile ln conflict with law being
informal, he has no riqht to engage the servjces oF a lawyer in the casej
vi) No appeal liesaga nst the order oi acqul al made by the Juveniie
lustice Board in respect of a juvenile alleged to have cbmmitted an offence.

An appeal shall, however, lie agalnst the order of the Boar.j to the
Sessions Court within a period of 30 days whose decjsion shall be final & there is
no provision for second appeal.
- (4) Conclusion
- (D) KrNDS OF HOMES

Gadade k.d, Disr,icl & sessioncourl Larur Page 41

Q. 1 What are the different kinds of Homes constituted under .luvenile
Justice Act, 2OOO?

SYNOpSTS

(1) Introduction
(2') Meaning
(3) Object of Homes
(4) Different Kinds of Homes
(5) Conclusion
(1) Introd uction
The most significanl legislation in the area of juvenile delinqLlency is the
Juvenile lustlce (Care & Protection of Children) Act, 2000.
The luvenile lustice Act, 1986 was repealed and a new legislation enacteci
\^rith a view to ccnsolidale & amend the larr re!ating to juveniles and to -Capt a
chi d friendly approach and For their rehabilitation. It come into force oil ApriL
tr,2001.
The object oF the Act/legislarion is to amend the law relating to jrrveni es
ilr conflict ,,1,ith law & children in eed of care & protection, by providng for
pioper care, protec[ion & [reatment.
The another significant object of the legisltion is to make rehabi!ilation of
chrldren who are in need of care & protection th.ough various instltutions
estab ished under this law.

The luveniles are gorLrplcal into two groups, one those who are in aonflict
\rith and lhose lrho are ln need of care & protection. Under tlle iuvenile
la!",/
Justice Act, 2000 separate provsions have been laid down tor children ill need
foi care & protection. They are dealt with. by ihe "Child welfare comml[te.'.
(2) 14eani nq

means a child - a) who is homeless;

A 'child in need of care & protectron"
b) who lives wilh a person who had committed juvenile injustice;
c) !r'ho is mentally, physically or terminally ill;

' d)L<'.tencc.
\^/ho is lound without settled place or without any ostensible rneans of
''
r\ who nas a parenl or guardr'la. un lt or ilcapacilaled to exercice contro'over
the child;
f) who is likelV to be inducted lnto druq abuse;
g ) who is a victim oi armed conflic[, cival commotion or Datural calamity;

Gadade k.d, DErdcr & sess o co!n. larur Page 42

h) who does not have parent and no oae is \,villing to take care of or vlhose
parents have abandoned him or who ls rnissing and run away child and whose
parents cannot be found alter reasonable inquii-y;etc.

This Act aims to rnakc rehabilrtation of the children in need of care &
protection through/by establishing/setting up various institutions or homes. Like
as Observation Home, Special Home, Shelter Home, Chlldren's llor.]e,
Certified Schools, Borstals Schools, etc.

(3) Object of these Hornes

i) The ultimate aim & oblec[ive of establishment oF these institutions is
protection & restoration of children who are deprived of the family atmosphere &
are leading a shelter less life.

il) To make (provide) rehabilitatlon and social relntegration ofjuveniles in

conflict with law & neglected chiidren.

iji) To look al[er lhe interesl oi ch ]d \,vho is destituLe.

iv) To provlde for rehabllitation of the juveniles whose gLlilt has been
Fjrovide.'

v) To provide education, train n9 i.e. vocaLional training to the jLlveniies in

these Homes.

(4) Different Kinds of Homes

This Act lays down the provislons relatinq to difFerent kinds of Homes.
Such as - Chjldren Home, Special Home, Shelter Home, etc.

A) Observation Home (Section B)

Section 8 of the Acl provrde:, lor tne es[ablishment oF "Observation F]o.ne"
Io, Lhe 'empora-y ,qqrp1lr- oi L'.. lrv,'t.- rn confl,Lr r. th ldw ourir q n I ,.,. &
trial of his case-
i. Establishment
i) The state Govt. may establish & maintain either by itself or under an
agreement with voluntary organlzattons, 'Observation Homes" in every district
or a grolrp of distric[s, as may be reqLrired for the temporary reception of any
juvenile in conflrct with law during the pendency oF any jnquiry regarding them
under this Act.

ii) Where the sta[e Govt. is of opinion that any instituticn other than a
home established or maintained under sub-sec. (i), is fit for the iemporary
reception of juvenile in conFlicl wilh law, jt may certify such institution as an
Observation Home for the purpose of this Act.

iii) The state qovt. may, by rules made under this Act, provide for the
management of observation homes, includjng the standards & vaiious types of

Gadade k.d, osl,ici 6 sesion courr. Latur Page 43

services to be provldes by them for rehabilitaIion & social integration oF a
luve nile.

ii, Points
Durinq the penclency ot inquiry or hearing, the juvenile in conflict with law
is placed in 'Observation Home' in rihich iuveniles are kept in three separate
groups according to age i e. 7 to 12 years, 12 16 years and.16 18 years
cr
iiving due consideration to their physical & menlal condition and the degree
gravity of the offence committed by them.
The jLrveniLes who need only short term custody during inquiry or trial are
kept in an Observation Homes. This institution is also used for the custody of
under trial children & .lLrveniles in conflict with law about whorn inqir ry ls
pend in g.

B) Special Homes
Section 9 makes provision for Specia Homes" for juveniles 'tho are
foLrnd guilty of an offence.

i. object
The obje.t of SPecial Homes is to provide for r€habllitation of th: luvenile
whose guilt has been Proved.

The luvenile SPecial Homes are classilied in diiFere$t categories

in
according to their age, gravity & nature oF the offence, physical & mental health
condition, etc- and are kept separately
ii. Esta blish ment
i) Any state-Govt. may establish & maintain either by itself or Lnler an
agreement \,!!th voLuntary organizations, specia homes in every diifir'l or a
g;oup of district, as may be required for recePtion and rehabil'tation oi lLvenlle
in conflict with law under this Act

ii) The state Govt. may, by rules made under this Act, provide For the
management of special homes, including the standards & various types of
servic-es to be provided by them which are necessary lor re-soclalization cF a
juvenile.

iii) Where the state Govt. is oF opinion that any institution other than a
home estabiished or maintained under sub-sec (1), is fit for the recepiion of
juvenile in conFlict with law to be sent under this Act, it may certify such
institution as a special home for the purposes of this Act
iv) The rules made under sub-sec. 2 may also provLde ior the
classificition 7 separation ofjuvenile in conflict with law on the basis oF aqe &
fhe nature of offences committed by them & his mental & physical status
i ii. Purpose
,I
Grdade k.d, *r"," courr. LatU[ Page 44
"essio,
 The lLrvenile Justice Act, 2000 also provides for setting up Special Homes
for cusLody of delinquent juveniles
, Basis arnenities such as accommodation, medical care, education &
vocational lraining are available to delinquent juveniles in these Homes-
' C) children's Homes (section 34)
Section 34 of the Act provides for the establishment of "Children's Home"
for the reception of child in need of care & protection.
i. Establishment
i) The state Govt. rnay establish & maintain either by itself or in
association with the voluntary organizations, "Children's Home" in every distiict
or group of district, as the case may be, For the reception of child in need ot
care & protection during the pendency of an inquiry; and subsequently for their
care, treatment, education, training, development & rehabilitation.

ii) The slale qcvt. may, by rules made under this Act, provide tor the
management oF Chridren's Homes lncluding the standards & the natu[e of
services to 6e provides by them.

;i. Inspection ( sqcii.n 35)

The state Govt. may appolnt inspection committee for the Children's
Homes for ihe sirie, a disirict and city as the cas! rnay be, for such perioc as
. n-tay be prescribed.

iii. Social auditing (Section 36)

The Central Govt. or state govL. may monitor & evalLrate the fLinclicrioq
of Lhe children's homes aI such period and throuqh such persons & institLrt]ons
as may be specifi.r:i b.,, '.hat Govt. These Homes n-ray be rnspecfed period c. ly
by the lnspectiorr CcmIn ltees appointed by the state Govi.
iv. Purpbses
i)Restoratioo of and protection to a child shall be the prime objective of
anV Child ren's Home.

i ) I he -eceprion of child rn nepo ot carp & orotsecrron.

iii) The ultimate airn & objective of establishment of Children's Home is

protection & restoration oF children who are deprived of the family atmosphere &
are leadlng a shelter less life.

In Sheela Barse Vs. Union of India, AIR 19a6 SC 1775 (or) Sheeta
Barse Vs. State of Maharashtra, AIR 1943 SC 37a,
The S.C. has directed that children in Children's Home should not be
subjected tc beggar i.e.."work without wages" and they should be paid adequate
' remuneTation for the work taken from lhem.

Gadade k.d, Dsrricl& Sess o'j courl Laru, Page 45

D) Shelter Homes (section 37)
In addition to the Observation Homes (for under trial luveniles) and
nf 2000 also
cnitOren's iome (for iuvenile found guilty of an offence)' lh"-ltt dpstitute
p'..lio"tlor- of 'sheltlr Homes' under Sect 37 for &
"t*t,ishment
shelter less children.
is to ensL-rre protection 7
The main oblect of providing Shelter Homes
restoration of destitute & neglected children

i. Establishment
i) The state Govt. may recoqnize, reputed and capable voluntarv
oroanizations & provide them assistance to set up and administer
as many
Shllter Homes ofjJVen'tes or ch'ldren as -naY be reqL:'ed'
ii) The Shelter Homes rererred ln sub sec (1) shall function
as drop in-
centres,forthechildrenintheneedofUrgentsUpportwhohaveS"qn^,1r,ghtto
(1) ol Se'' 32
such persons through such persons as ari referred lo in sub-sec
as may
iii) As iar as possible, the Shelter Ha'ies shall have such facilitles
be prescribed bY the rules.

E) certified schools
The Certified Schools are a modified fo'm of the nineteenth 'l:nlury'
ilC]uent
ReformatoriesorlndUstrialschoolsforhomeless,destiiLltean.ldei
children.TheseSchoolsarenoWrUnunderthestatetutelageForcater]nq[othe
needs oF delinqllent chlldren of different age, sex & reiigion'

The purpose of these approved Schools is to prolide trainin-c i:) those

prcbalion' fhe schools are open
iuveniles who are unFit for release on irq The
inatitutiont where young offenclers are educate'l & trained For norrraL li'/
duration of stay and tr;ining ln a Certified School varies accordinq
io rirrnale's
requirement depending on the discretion of the School Aon-rinlstrator'

This normally Tanges frorn a mlnirnum of 6 months to a maxin'lrrn of 3

y"urr. if,"i" schools f,rovide training facilities For inmates to rnal'r'
in
them
some
piofi.l"nt in different irades. So that they can engage themselves
useful oacupation.

F) Borstals sahools or Borstal system in India

i, History
A ;'Borstal' ls yet another correctional institution for the long term
to borsta
treatrnent of lru.nit" oifenders. The term "Borstal" owes its origin into a
,rrrig"-i" in'gtunO, *nu." "Rochester Prison was first converted
reformdtory fo. ools rn 1902.

ii. Object
Borstal institution prepares the offender For normal life
in society by
providing him facilities for industrial traininq and disciplined life
. t- |
Gadade k.d, oi"r,icr a se$ion coun Lahri Page 46
 It is lnstitution meant for salvation of young olfenders under state
tutelage. Adequate faciiities icr work, education, and recreation are available io
inmates in every Borstal and all possible efforts are made to make the place
homely. Borstals provide for a phased training programme to inmates.
iii. Borstal system in India
Borstals have been established in India in a large number.

These institutlons provide for adequate educational & vocational training

to young offenders who are cornmitted by the luveniles Court
There are at present a number of Borstals & Relormatories functioning
throughout lndia. Particularly, the states of Guiarat, IYaharashtra & Tamil Nadu
l-lave done a commendable work in the direction of encouraginq BorsLa system
through a well planned strategy- The states ot A.P., U.P. & Madhya Pradesil
have also adopted a system of Borstal institutlons.
(5) Conclusion
The provisions of the luvenile.lustice (Care & Proteclicn oi ChilCr.:-r) Act,
2000 cLearly indicate that the object is to Save the juvenile iri conflict with law or
child from the rigors ot criminal law procedure & ardLrors ccuit i;'iai. rh€
procedure of inquiry and proceedings under the Act is informai Sc th.t th.
luvenile has not to undergo [he process of normal crirninal iriai uvh]c'rl nvci'"-i
arrest, proseclrtion, lrjal, defence, burden of proof, conviction, etc- Therefor4,
lhe provisions of di[feient llomes are intended to preveni priscn lL:-.!,on of
juveniles in ccnilict with law.

Gadade k.d, osrd.t&session coud. Lalur Page 47

 CHAP, (B) - THE PROBATION OF OFFENDERS ACT, 1958

(A) APPOINTMENT, POWERS & DUTIES OF "DISTRICT

PROBATION OFFICER.
Q. 1 Discuss the appointment. powers & duties of "District Probation
offi cer. "
SYNOPSIS
(L) lntroduction
(2) Pre-sentenceReport
(3) Appointment of Probation Officer (Sec.13)
(4) Duties of Probation officer (Sec.14)
(5) Major functions of the Probation Officer
(6) Important Points
(7) Conclusion
(1) Introduction
Scope - (section 13 to 16) of the Probation of OfFenders Aci, i958 ex!.lejns the
provisions regarding the appointment & duties of the "Probation Otficer".

Definition - Section 2(b) of the Probation of Offende.s Act, 1958 defines-

"Probation Officer" means an officer appointed to be a, "Probation Officer" under

section 13 of the Act.'
The Probation Ofiicers employed in correctional servicus piay a v;ldi role in
bringing about.the rehabilitation & reformation of offenders and rnaki g them
usefLil mernbers of soc ety.

He is a key-person in probation system who a5slsi the lud.le in

determlning that whether a person, who founds guill, is to be released on
probation or nol?
(2) Pre-sentence Report
The Probatlon Office is said to be a "Linch-pin" in the operatlon of Lhe
prcbation system.
The pre-sentence report of the probation ofFicer is the fundamental
document for the guidance of Lhe court whether to grant the beneflt of
probation to the accused or oot?

The object of the pre-sentence report as provlded in sect on 7 of [he Act ]s

to appraise the court about the character of the offender. exhibit his
surrounding and ante.iederts and throw light on the background which
promoted hi r to aorntn t t.1e ofFen(e, and give information about the otiender's
conduct in general & chances of his rehabilitation on beinq released on
probation. .

Gadade k.d, oislricl & s6ion colr| Larur. Page 48

(3) appointment of Probatioir officer (sec.13)
Section 13(1) lays down that a probatlon offlcer under thls Act shall be-

a. A person appointed to be a
probation officer by the state Govt. or
recognized as such by the state Govt.; or

b. A person provided For this pLlrpose by a society recognized in th's behaLf

by the state Govt.; or

c. lnany exceptional case, any other person who, in the opinion ot the
Court, is fit to act as a Probation Officer in the special circumstance of the
case.

2. A coLrrt which passes an order under (5ec. 4) or the District Magrstrate of

the District in which the offender for the tlme being resides may, ar any
time, appoint any probation officer in the place oi Lhe irerson 'r'rLn"r' in
the supervision order,
(4) Duties of Probation officer (sec.14)
5. 14 of the Probation of OfFenders Act, 1958 prescribes tlte foilot,'ing
duties of probation officer, who shall have to, -

(a)inqLrire, in accordance with any dii-ectlon5 of a coLlr:, in:o the

circumstances or home surroundings of any person accused of an olience, lvifh
a view to assist the court in determining the mosf suitable method of dealrrE
with him & submit reports to the cour[;
SLrpervise probationers & other persons placed under hLs 5
(b) rp.rv s on
and, where necessary, endeavor to find them suitab e employment,
(c) Advise & assist oFfenders in the payment oF compcnsaticn of costs
oroered by tne coL rt:

(d) Advise & assist, in such cases & in slrch manner as may be pr'oscribe(I,
person who have been released U/Sec. 4, and

(e) Perform such other duties as may be prescribed.

(5) Major functions of the Probation Officer
t. Investigation & surveillance -
An inquiry into the life history & antecedents ot ihe delinquent is
necessary for the purpose of securing information about his FamiLy backgroLrnd,
character of delinquent, social & personal problems leading to his delinquent
' etc.

Proper investigation & surveillance wlll enabie/help the court in granting

probation to the accused.

Gadade k.d, oiil,ict s session coud Latui Page 49

2. The another important functions of the Probation Officer
Reporting lo the appropriale ludicial or administrative authorities about
the behavior of delinquent in day to day life (or) which constitutes violation of
la w.

3. Guidance Technique
The Probation Officer renders assistance & guidance to the delinquent to
find out appropriate empioyment.

4. Cou nseling Technique

The Probation OFficer utjlizes this technaqLre in solving the p:rsonal
problems of the probaiioners & rendering them necessary advice in tlmes oF
-eed

(6) Im portd nt Points

A. control over the Probation officei -
A Probalion OFticer, in the exercise ol hls dLrtles under thrs A.t, shall be
subject to the confrol f the "Districl lvlagistrate" of lhat dislrict in \nrhicil Lhe
offender for the time being resides.

B, Probation officers to be public servant (Sec. 15)

. S. 15 of the Act say that, "Every Probation OfFicer & every other officer
appointed in pursuance of this Act, shall be deemed lo be 'Public !,r.vant"
wlthin the meaning of Section 21 oF the Indian Penal Code, 1&60.

C. S. 16 - Protection of action taken in good faith

(7) conclusion
(B) ADMONITION AND BOND OF GOOD CONDUCT
Q. 1 Admonition and Bond of Good Conduct.
Q. 2 Admonition & Bond of good behavior.
SYNOPSIS

(1) Orrgin and concept of Probation

(2) scope of the Probation of offenders Act, 1958
(3) Competent courts to make order under the Act
(4) Objects of Section 3 & 4 of the Act
(5) Power of court to release certain offenders after admonition
( sec.3 )
(6) conclusion

Gadade k.d, Disrri.l& session courr Latur .Page 50

(1) Oriqin and concept of probation
Originally, the concept of probation js based on the theory of
"Reformation and rehabilitation" OR Correctional lvlethods,'.

In this system, the offender has given a chance in reform hirnself rather
than sending to him in prison It airns at rehabi ltation of offenders by returning
them to society during a period of supervision rather than by sending them into
the unnatural & socially unhealthy atmosphere of prisons
The term, "Probation" is derived from the Latin word "probare,,, which
means to test or "to prove", etymologically, probatlon means, I prove my
'r'/o
rth'.
It generally said that great ideas often have modest beginning, this is
as
true with the origin of probation as well. The or !in of proDaiion syste.jl car 5e
traced in Arnerica & England. In America the system oF probation began frorn
"Johan Augustus", a shoe-maker of Boston in 1841.

(2) Scope of the Probation of Offenders Act, 1958

The Probation of OFfenders Act, 1953 contains elaborate pro!isrons
relating to probation ol offenders which a.e made applicabie th:cLrqh.,ji ti-re
coLrntry.

Thus it would be seen that the provisions oF the probation of OfFenders Act
are not confined to juveniles alone, bLrt ex[end to adl]lts also.

Again, the provisions of the Act are noI only confined io oFiences
committed under the Indian PenaL Code, 1860, bUt they extend to cliences
under other laws. Such as - the Prevention of Corruption Act, i9.l/; the
Prevention of Food Adulteration AcL, 1954; the Cus[orns Act, 1962; Njarcotic
Drugs & Psychotropic Substances Ac[, 1985 etc.

(3) Competent Courts to make order under the Act

a) The Court, by which the person is found guilty of havinq comm;[ted an
offence, is empowered to release such offender on probation of good ccnduct
U/Sec. 4 or release him after due admonition (U/Sec.3)

bi (Sec. 11) ofthe Probation of Offenders Act, 1958 !^/idens the scope of
probation by adding an enabling provislon regardinq the comOetence of the
courts to make order under the Act in appeal & revision and po\,ver of the
appellate & revisional courts in this regard

The Higher Courts have been empo\,vered to grant probaUon in

appropriate cases, which was denied to [he ac.used by the L;wer Cour[
(They may also cancel probation granted by the trial court, wheie it is
expedient in order to prevent the misuse oF probation.)
(4) Objects of Section 3 & 4 of the Act
l

Gadade k,d, Disliici & sesidl co(r Lah'. Pag;51

 a) The main purpose is to stop conversion o[ youthful offenders into
hardened criminals by releasing in the open society'

b) To relorm & rehabilltate the criminals, rather than sendinq him into
prison.

c) The sole intention of the legislature is passing prolat:n, laws

is to be
would not
given persons of a particular type, u thunt" of reformation which they
qet if sent to Prison
(5) Power of Court to release certain offenders after admonition (sec'3)
Sec. 3 of the Probation of Offenders Act, 1958 empowers the
court'
after due
insteal of sentenci.g the offender to any punishr'ent, to release him
ad mo n ition.

i. Plain reading of Sec, 3 of the act

"When any person is found guilty of having committed .on offence
punishable undei Sec. 379 or Sec. 38"0 or Sec' 381 o!- Sec' 404 or
Se'' 420 of
punishable \^rith irnprisonment foi
lne lndian Penal .Code; 1860 or any orFence or any other
nc,t more than t[/o years, or with Fine or "vith boih, under Lhe
1PC
i;;, previous conviction is proved against hlm and the court bv which
";J;" iJ found guilty, is oF opinion the case
ii,.'p"il" including the ndtLrre of the
offun.. e, the chara-cter cF the oFtender, it is expedlent so to do' then'
in force'
;otwithstanding anylhing con[ained in any oLher la\'v for the ti'ne being
oF sentencing him to any pLrnlshment'. releasinq
him
tt,e .ou.t may,-lnsieaaing
'
a" pa"t-tia" of good conduct Lrnder section 4 release him aFter due
admonition. "

ii. Conditions U/Sec.3

1, Age of the offender -
It is one of the condrtlons precedent that the ol'lenJ€r strot ld be b':low the
age of 2l Years.

2. offences punishable not more than two years -

The provisions of Sec 3 is only applicable to such ofrerlces which are
punishabie'with imprisonment for not more lhan Lwo years' or with rinP or with
both.
3, No previous conviction -
one of the conditions Precedent to'avail the bertbfit of the Act' 1958no
is
that the offender shculd not have been previously convicted lt means that -
frerious conviction.s proved against hir.n:
4, The offences which are covered bi the Act, 1958 -
(i) Sec. 379 IPC - Punishment for theft'
--- ftipsee-'oao"Fe"" "- " 'Ihef'L'io' dwelling house, etc'

t'
EGa.t.oG***lG* Page52
 (iii) Sec. 381 IPC - Theft by clerk or servant of property in
possession of master.
(iv) Sec. 404 IPC - Dishonest misappropriation of property.
(v) Sec..120 IPC Cheating & dishonestly inducing delivery of
property.

(vi) Any offence under IPC or under any other law punishable wlth
irnprisonment for not more than two years; or with flne; or with both.

5. The Court must give regard to

The couri mLlst take into consideration the follow,ng Facts before making
an order l)/Sec. 3 oF the Act, such as

a) Circurnstances of the case,

b) he' a(ure ol Lhe olre.](e,
c) The character of the offender and
.J) socio-economic factors which promoted him to commit the offence,
e) Family history and personal, social & economic factors of the oifender,
and
f) Chances ol his rehabilitation on being reieased on probation.

6. Competent Court to make an order U/Sec. 3

Sec. 3 provides the power to make an o.der U/Sec. 3 of the Act.

"The Court, by which the person is found guilty oF having ccmnritted .rn offence,
is empowered to reiease him on probalion of good conduct U/Sec. 4, af[er dL]e
admonition, instead of sentencinq the orfender to any plrnlshment.'

7, Not application to hardened & trabitual ottenders

The Sec. 3 & 4 of the Act is not rreant for hard.ned & habLLLral oflen.iers
who are beyond redemption ancl are incorriqible.
(6) conclusion
Thus, after broad discussion, the sole intention of the legisla:ure in
passing p.obation laws is to give persons ol a particular lype, a chafce oF
reformation Which they would not get if sent to prison. The type of persons who
are in the contemplation oF the legislature under the probation laws are those
who are not hardened or dangerous criminals, bllt those who have commltted
offences under some rnomentary weakness oi character or some tempting
srtuatio n.

Gadade kd, Dhtdct& Session cou Latur. Page 53

 CHAP. (9) - CHARGE

Q.1 What is meant by charge? can charge be altered? Discuss.

Q.2 Define Charge with reference to its contents and importance.
Q.3 what are the contents of charge and how it can be altered under
Cr,P,C,, f973?

Q,4 Explain the meaning & importance of Charge in a Criminal Trial.

SYNOPSIS'
(1) scope
(2) Meaning
(3) Importance
(4) Duty of the Court
(5) Framing of Charge only in !.rarrant cases
(6) Form & contents of cha.rge
(7) Effects of errors or ontission in charge
(a) The court may alter Charge
(9) Procedure of alteration
(1o) Con clusio n

( 1) Scope
lhe provisrons regarding to lhe'CHARGE aTe contained i|,l sectlon! ILL to
224 and 464. Sectlon 211 [o 21.i dea s with "U/hat the Charge should cc.tain?"

Section 215 and 464 menton [he effect; of Llie errors in siniiog the
offence or other particulars in lhe charge; Section 216 and 217 mentlon the
power of the Court to al(er [he charge and the proceliure lo be-lol o.r.:r] after
sLrch alteration and Trorn sections 218 to 224 deals with rhe 'l-r Jrder oF
c rarges,
(l) Meaning
One basic requirement oF a fair trial ln cnmrnal cases rs to grve peruse
information to the accused about Lhe accusation or alleqation made aqainst him.
This is vitally importanI to the accused an the preparation oi his deFence.
In alI tria]s under the Code the accused is informed about the accusation in the
beginning or startlng of the cdse/trial.
In case of seTious ofFences the Code requires that the assLrsatlons are to
be formulated & reduced to wri[inq w]th qreat precision & clarily. This'Charge' is
then to be read & explained to the accused person.
The puroo,e o'tne Cna.ge is Lo te'l or Lo orve notice or nlrn.tr.on _o lhe
accused person, as preclsely & clearly, regarding rhe accusation (offence) wlth
which is charged by the prosecution

Gadade k,d, Disr,icr & session courr Lar!,. Page 54

 ln Dal Chand Vs. State, 19a2 Cri.L.l 7477 -
The charge shou d clear
& unambiguous defect in the charEe vitiates the conviction E'/ery care must be
taken to see that it is properly & precisely framed.
(3) Importance I Object
The provis;ons relatlng to "Charges" are intended to provjde that "the
charge' shall give the accusei:l fulL notice of the ofFence charged against hlm'
The Charqe will enable the accLrsed to p.epare his defence properly'

The accused will not be able to go on defence unless the accused has the
accurate knowledge about the accusation made against him.

(4) Duty of the Court

The sections deaL ngs r'/ith ti're charge .lo not menlicn 'Who is tc fr!me
tl're charge?" The provisions dealing "/ith different types cf trials howevei
provide t[at it is always the duty of Lhe court to frame the charqe precisely &
.rromb buously.
Thus, the duty of the framing of the charges and the a ieraticri or
moditications in lhe charges have been entrusted [o the Courts.

(5) Framing of Charqe only in llrarrant cases

In summons cases no Forrnal charge need to be framed (Sec' 251)
BuL, according rc Sec.211, every charge shall contaln the follc'r'/lng
pa.ticula-s;

Part A - The charge should l)e { lear & specific-

i) Every charqe under this Code sh. I stale the oFlence with which the
accused is charged.

ii) If the law which creates the offence gives it any specific name, the
offence may be described in the charge by that name only.

iii) If the law which creates the offence give it any specifjc narne, so much
of the definition of the offen.e must be states/mentioned in the charge as to
give the accused notice of the matter with which he is charged.

iv) The law and section ot the aw about the orfence shall be mentioned in
the charge.
e.9. according to this rule, the law ancl the section under which the
offence is puoishable mL\r be nF'rl oneoia the c5drqe.

v) The charge shall written in the language of the court.

I
I
Gadade k.d, Disl,icl E session co!,I Latur Page 55
 vr) 1f the accused, having been previously convicted For any offence, is
liable, by reason oF such prevlous convictlon, to enhanced punishment, or tc a
punishrnent of different klnd, thenafter the fact, date and place of the previorjs
conviction shall be stated,/mentioned rn the charge

And if such statement has been omitted, the cotrrt may add it at any time
before sentence is passed (Sec. 211(7))

B- Particulars of an offence (Sec' 212)

According to Sec. 212 requires thaL - "The charge shall contain the
particulars as to time, date and place of the alleged offeoce, and the person
against whom, or the thing (if any) in respect ot which the oftence was
corimifted."
C. Manner of committing an offence (Sec. 213)
When manner of committing offence be stated?

When the nature of the case ls such that the p<irticulais mentioned in Sec'
2!1 and 212 do not give the accused suFficient notice of the matter wth which
he is charged, then in whrch manner the alleged oflence was commiitFd shc'uld
be mentioned in the charge.

e.q. i) A is accused of cheating B'at a given time & place The charge must
srate the firanner ln which'A'cheated'B'.

ii) 'A' is accused of obstrllct'ng B, a publ c servant, rn the drscharge of his

plblic dlties at a given [ime & place. The .rarge shou d state the manner in
!,.,hich'A'obstructed'B' in the.l scharg. of his dLties
Pdrt II - Section 21-S & 464
a- Effects of errors or omissions in charge

Sec. 215 & 464 rnention the effects of errors or omission in the charge

i) No finding, sentence or order by a courl oi competent jurisdiction shall

be invalid merely on the ground oF any error, omission or irregularity in the
charge unless the accused was mislead or niisgLrided by such er.or or omission
and t has resulted into failure oiJUstice.

ii) The mere omission or defect in the charge is no ground for setting
aside a ( on /rctro_.

ln case of "Yashwant, (!926) 2A Born'L'R' 497" - fhe Court cbserved

that - unless the irregularity or error or defect in the charqe has misled or
misguided the accused and has not resulted rnto a failure ot justice, a conviction
cannor be sel asrde.

iji) The omission or error in the charge shall be material, if due to vihlch
the prejudice is caused to lhe accused & resulted in[o FailLrre ofjustice ln such
circumitjnces, ihe whole trial wili be vjtiated by the appellate court.

Gadade k.d, Disr,icr & sesiion coun. rarur Page 56

 b. Court may alter charge (or/and) Procedure of alteration (Section 216)

Section 216 & 217 of the Code empowers the court to aLter the charge &
mention the procedure to be followed after such alteration.
It lays down that any court may alter or add to any charge at any time
before judgment is pronounced.

(6) Conditions,/ Requ irements for alteration of charge

1) Any court may alter or add to any charge at any time before the
ludgment is pronounced.
2) Every such alteration or addiuon shall be read & also explained to the
accused.

3) If the alteration or addition is such that proceeding immediately with

the trial is likely, in the opinion of the court, to prejLrdice lhe accused or the
prosecutor as aforesaid, then the courL may d rect or SLarL:. nc,v i;lai.

4) Before making an alteration in the charge, a court sho,-r d oriiain a

sanction from the proseaut,on. :

5) Altera[ion or addition may be done even at the appel]itc staEe belore

the pronouncement of the judgment of appeal. ISurinder Kum.i- Vs. :ii.ite oF
H.P., 2003 Cri.L.l. 2900 (HP)l

6) But, the curt must exercise a sound & wise discretjon in so doing. (at
the time of alteration) [In l4athura Thak!r, (1901) 6 C\IJN 72]
7) The coL.rrt should treaI the added or altared charge as l-ha origlra c']nrc..

B) If the court \,t/ishes to alter the charge it should do so before concluding

the trial, and should give the acci]socl a fair opportuni.y oi rnaklrig,/pii:lircinq
such defence as he thinks fit, to the erient ol alteralon, orher\^rsi [he Lrial is
vitiated. Un 'Cnetto K.rlwar, (1921) 49 Cal. 555l
c. Recall of witnesses, when charge is altered (Sec, 217)
. Section 217 lays down that

l) Whenever a charge is alLers or added to by the court aFier the

commencernent of the trial, the prosecuior and the accused person has a right
to recall, re-summon and examine, with reFerence to such alteration or additio,r.
ary wilne5s who may have oeen exa-rineo.
ri) Srrrilarly the prosecution i-]as a -rghl ro r-call (l-,s owr \!,Lnes'-e\) ol
defence witnesses & to examine thern alter the alteraLron oF the charge.

, iii) The court may/ however, deny such rlght, for reasons to be recorded
in $/riting, if it is of opinion that the purpose is only ot delay or vexation or
defeating the ends of justice.

Gadade k.d, oishr.r & sessioncoj1 rard Page 57

 iv) In Koumal, (7929( 52 All 455; and Moosa Abdul Rahiman Vs'
State o; Kerala, 1942 Cri'L.J. 1384 (Ker.) No duty is !aid on the colrrl to ask
the accused, after ihe charge has been altered, to state whether be wishes to
have any ot the witnesses racalled or re-examined and whether he wishes l:o call
any further witnesses

(7) conclusion
! ! !!-
CHAP. (10) - rRrAL BEFolEl_qeuBf !r sEslleN

Q,1 Discuss the provision of "Trial before court of Session"'

-
Q,2 Express the provisions relating ''Trial before Court of Session"'

Q-3 Explain the procedure of trial before a court of sessions'

SYNOPSlS

(1) Scope
(2) Introduction
(3) Establishment of CoBrt of session
(4) Power of session Court
(5) Trial before a Court oi Session (Procedure)
(6) Conclusion
( 1) scope
A section 225 to 217 of the Code lays down the provlsions relat;ng io the
"Trial before a Ccurt ot Slss'..'. OLrt of these sectrons 226 to 236 prcvides
certain 'substanLi\.?e riqhis' to lire accused in the triaL before Court ot Session
( 2) Introduction
Ordinarily, the Coilr[ of Session is situated in the Districi ]lead Q-arter'

The Court of Session deals with only warrant cases i'e the cases "Which
are so serious in nature" e.g. murder, dacoity, dowry death, etc'

Some of the cases/offences defined in IPC triable only by a Court of

Sessron aae gtveir as -o,lo,r5 :-

a. Olfences agai!-1st the state Chap -VI, Sec. 121 lo 128 & 130 1PC;

b. Sec. 111 IPC, abetting mutiny or attempting to seduce an officer,

soldies, sailor or alrman from his allegiance or duty;

c. Sec lqzl of lPC; Glving or fabrlcating fa se evidence wilh intent to

cause any person to be convicted of a capital sentence;

d. Sec. 201 IPC; causing disappearance of evidence of an offence

committed, or qivinq fa s€ information touching ii to screen the orfender, if a
capitdl offence;

Gadade k.d, oisrrida sessio.cou,r Larrtr Page 58

 e. Sec. 302 of IPC - l4urder
f - Dowry Death
Sec. 304(B) IPC

g. Sec. 376 of IPC Rape

h. Sec.395 oflPC Dacoity, etc.

A Court ol Session cannot directly take cognizance of any ofFence, even
thouqh it is excllrsively triable by such court. A competent lvlagistrate may take
cognizance of sllch an offence and then commit the case to the Court oF Session
for trial. After the committal of the case to it, Lhen only the court of session
starts trial according to the provisions of Sec. 225 to 237 of Ct.P.C., 19f3.
The only exception where a CoLtrt of Session can directly take cogni:an.e
of an offence is in case of defamaiion oF high dignitaries and pubiic servants
under certain clrcumsrances mentioned in Sec. 199 (2),(3),(4),(5).

Warrant cases are ntore serioLrs than Sunlmons cases; and tire ilial oF
more serious warrant cases aie conducted by a CoLlrt ot Session; while the not
so serious warrant cases are triable by Magistra[es. Where an offence is tria'D e
by a Court of Session or by a lvlagistrate, is proviaed in Column 6 of the First
Schedure of Cr. D.C., I973

(3) Establishment of Court of Session

' Section 9 oF Cr.P.C. empolvers the state Govi. Lo esLablish a'Coiit cF
' Session" for every Sessions Divislon.

(4) Powers of Session Court

Section 28 provides that A Sessrons ludge ci ACditional Sesslons .lLrdge
may pass,
a) Any sentence auihqrized by law;

b) Sentence of imprisonment for liFe; or

c) but, death sentence, subiect to confirmaticn by the High Court.
(5) Trial before a court of Session (Procedure)
1. Trial to be conducted by a public prosecutor (sec. 225)

Section 225 says that - "In every trlal before a Court of Session, the
prosecution shall be conducted by a public prosecutor.

Public prosecutor rneans any person appointed under Sec. 24 of Cr.P C.

means, the prosecution side shall be condLtcted by the public prosecutor

It
on behalf of the state.
2, opening.of prosecution case (sec. 226)

Gadade k.d, Dsr ct s seseon courl. Laru,. Page 59

 When the accused appears or is brought before the court under the
commitnrent of the case, the proseclrtor shall open his case by describing the
charge imposed on the accLlsed, and also stating about the evidence by which
the prosecL-rtor iniends to prove the gLrilt of the accused.
The Maglstrate Lrho cornrnits the case to the Court of Session for trial,
shall send the records, docLlments, charge-sheet, and artjcles, if any, to lt.

Thus, the public prosecutor shall open his case by examining the
w itnesses.

3. Discharge of Accused (Sec. 227)

Section 227 explalns abgut the discharge of accused before fra.ning oF
charge in a trial before the Court of Session.
1f, alter considering the police report/ the record of the case and the
documents s,-rbrni[Led on behdlt of the prosecution and after the hearir] of the
accused (making such examlnation, if any, oF the accused) and proseculron rn
this behalf, the ludge comes [o lhe conclusion that - "there is not sLrlficienl
groL-rnd for proceeding against the accused, then he shall discharge the accused
and also record fhe reasons For doing so.'

The .o'-irt is requrred to state/rnention reasons For discha Ein!l the

accuSed.

4. Framing of Charge (Sec. 228)

SecL on 228 of this Code expiains about the framing oF the charge.

if, aFter conslderina the F.1.R., Police Report, and records of the case and
the docurnents submitled and after heanng the accused & prosecution, the
ludge ls of oplnion that there is !lround for the presumption that [he accused
has committed an offence, whicl't

a) is not exclusively triable by the Court of Sesslon, he may, Frame a

charge against the accused and, by order, transfer the case For trial to the Chief
Judicial lvlagjstrate or any other ludicial lvlagistrate of the First Ciass.

b) is exclusively triable by the Couft of Session, then he shall frame lhe

charge in !vririnq against the accused.

i) Affer framing of the charge, [he charge shall be read-over and a]so
e.pldined 5tlliL entlv to lhe d.cused oerson n hlS own langudge.
ii) It is mandatory duty on the court.
iii) Non -com p iance wtth
the provisions of this section and if any preludice
is caused lo the accrrsed, thin it !/ill vitiate the trial.

And the accLrsed shall be asked 'When he pleads quilty of the otience
charged or claims io be tried i.e. to go on defence.

Gadade k.d" Disrrict & sessoncoLrL Lalur. Page 60

 5. Conviction on the Plea of quilty (Sec. 229)
If the accused pleads guilty, the Judge shall record the plea and may, in
. his discretion, convict the accused thereon.
-. i) The plea should be c ear and not to be amblguous or vaglle.
ii) This section also says that The accused should plead the guilty by his
own mouth and not through his counsel or pleader un Sursing, (1904) 6
Bom.L.R.861l
iii) Any admission made by his pleader is not blnding on him.
6. Date for prosecution evidence (Sec. 23O)
If the accused refused to plead guilty or does not plead or claims to be
tried, the ludge shall tix a date for ihe examination of wrtnesses.
AnC, the ludge, on ihe appllcatlorr of the prosecLltion, ma)/ issue the
s'-rmmons For compelling the aftendance of any witness or for the prodLrction of
rn,/ docurre.1r o- other lhina.

) The deposition of witnesses shoLrld be reco.ded in presen.e of the

accLlsed person.
' ii) deposition which is made by the witness shal be slgned by the ludge
- and witness in his presence.
iai) Read out the deposition to the yriiness in the presence..of the acclrsed.

7. Evidence for prosecution (Sec. 231)

i) On the date so fixed For [he prosecution evi.]ence, the Ccurt shall take
aii such evidence produced in s!ppori oF the prosecution.

ii) The Judge may permit the cross-examination ol airy sLrch prosecuiron
witness, after the examination in chief.
iii) The examination oF any !!itnesses shall be reduced in writ,ng by the
judge or by any officer oF the court under the direction of judge.
8. Acquittal of accused after the hearing of parties (Sec- 232)
Section 232 says Lhat - IF, after taking the evidence for the prosecution,
examining the accused (Sec. 113), and hearing the prosecution & defence, the
Judge considers that there is no evidence which shows that the accused had
ccmmitted the offence, then the .ludge shall record (or) pass an order of
dcquittdl.

9. Evidence for the defence (or) Evidence of defence witness (Sec, 233)
IF the accused is not acquitted under Section 232, then he shall be called
- to produce his defence evidence in his supporL.

Gadade k.d, Disl,id & sesion coud Larr Page 61

 CHAP. (11) - CONSTITUTION OF CRIMINAL COURTS

SYNOPSIS
(1) Scope
(2) Introduction
(3) Provisions
(4) Subordination of Judicial Magistrates (Sec. 15)
(5) Courts of Metropolitan Magistrates (Sec. 16)
(6) Chief Metropolitan Magistrate and Additional Chief Metropolitan
Magistrate (Sec- 17)
(7) Subordination of Metropolitan Magistrates (Sec. 19)
(8) Sentences which the Courts may pass (Sec. 28, 29 & 30)
(9) Sentence of imprisonment in defautt of fine (Sec. 30)
( 1O) Conclusion
( 1) Scope
The Hierarchy, Constitution of Cr,minal CourLs and their powers &
functions have been explaihed ln.Chapter-ll, from Sections 6 to 23, and
Seclions 26 Lo f5 ays down the provisions of the "Povrer of Lhe CoLrrts '.
(2) Introduct ion
The Criminal Adrninistration of Justice is admin stered through the vrrious
criminal courts according to the provisions of the Criminal procedure Code.
The object of the Criminal Courts is to administer the justice and to
punish the culprits & \,vrongdoers For prevailing the peace in the country.

The Supreme Court of lndia and a High Court For ea.h state have been
created by the constitution, and their, jurisdictions & powers - includjng ihose in
respect oF criminal matters are well defined in the Consl.itution Ltself. Un,ter the
lndran Constitution, the Supreme Court has been empor.rered to deai with
certain criminal matters (U/Art. 132, 134 & 136).
In addition, the Criminal Procedure Code makes provision of appeal to the
S.C. under certain circumstances.

On the other hand, this Code of 1973 further provides for the ConstiLution
of other Criminal Courts to deal with the Criminal matters. Its objects are fair &
speedy trial. convenience to the parties.

Further provided that these Criminal Courts constituted under this Code
shall exercise its powers under the supervision of the High Court of each state.
(3) Provisions
1. classes of Criminal Courts (Sec. 5)

Gadade k.d, oistricls session coud. Lalur Paqe 64

 Besides the High Courts and the Courts constituted under any law, there
shall be, in every state, the following classes of criminal courts, namely
i. court of session (sec. 9)
i) The state govt. shall establish a Courl of Sesslon for every sesslons
divisio n j

Every Court of Session shall be presjded over by

ii) a ludge, to be
appointed by the lliqh Court;

iii) The Court oF Session shall ordinarily hold its sitting at such place or
places as the High Court may, by notification, specify;

i!. Additional Sessions .ludge

The Hiqh Court may also appoint Additional Sessions ludges & Assistant
Sessions .ludges to exercise jurisdiction in a Court of Session High judgements
and ofdeii woulal be tlrose of the Couri of Sessions.
iii. Assistant Sessions Judges (Sec. 1())
subordination of Assistant sessions .ludges The High Court may
aLso appoinl AssistanL Sessions ludges to exercise jurisdicLion in a Co'-lrt oi
Sessioo.

Anci al Assistant Sessions Judges shall be subordinate to the Sessions

JLrdge in whose Court they exercise lurisdiction

In the event ol absence ot Sessron ludge, or [he sessrons judqe is Lrnable

tc act, ihen the Assistant Session ludge may ex'ircise the polvers oF the Sessiorr
JUdge.

iv- Courts of ludicial lllagistrates

Section 11 provides that each session division shall consist oi the
following courts of .ludicial Magistrates, Such as -

a, Chief Judicial Magistrates

Section 12 says that In every drstrict (not being a metropolitan area),
the High Court shall appoint a .ludicial ivlagrstrate of the First Class to be lhe
ChieiJudicial Magistrate. He is head o[ the magistracy in the district. His main
fLrnction \/ould be to guide, supervise, and control other.ludicial Magistrates in
the diStrill. l.e woJrd J.so rJy imporld-ll cases.
b. Additional chief ludicial Magistrate (sec. 12)
The Hrgh Court may appoint any ludicial l\4agistrate of the First Class to
be an Additional ChlefJudicial lvla 9 istrate,. a nd such Magistrate shall have all or
any oF the powers of a ChieF ludicial Magistrate as the High Court may drrect.

c. Judicial Magistrates of First class

Gadade k-d, Dslicl s session Courl Larur Page 65

 i) In every district (not being a metropolitan area) the state govt shall
establish as many courts cf lud.ral Magrstrates of the Frrst Class aFter
consultatjon with the High Court, by notifi.ation.
ii) The presiding officers of such courts shall be appointed by the High
Cou rt.

Special Courts of l.M,F.C.

Sec. 11 provided that, the state Govt. may, after consutation wiih fhe
High Court, establish, for any local area, one or more special courts of iudicia
magistrates of lhe first class, to try any particular case or particular class of
cases.

d. .ludicial Magistrates of the Second class

i) In
every district, the state Govt. shall establish as many courts of
JLrdicial Magistr.tes of the Second Class, affer consultation with the lli:j I CcrJrt,
by notification.
ii) The presiding officers of such coLrrts shail be appoinled by the High
C oL' rL

(4) subordination of ludicial Magistrates (sec. 15)

According to Section 15,
i) Every Chief Judicial 14agistrate shall be subordinate to lhe Sessrons
I udg ej and
ri) Every other ludicial I\4agistra[e shall. subject to the general c..trol ot
Lhe Sessions Judge, be sub ordinate to the Ch,ef ludicial I'4agistrate.

(5) Couris of Metropo,.itan Magistrates (Sec, 16)

i) In every Metropolitan area, the state Govt. shall establish, at such
places, as many courts of Dletropolitan Magistrates, after the consultation wiLh
the High Court by notification.
ii) The presiding office.s of such courts shall be appoinled by the High
Cour1.

(6) chief Metropolitan Magistrate and additional chief Metropolitan

Magistrate (Sec. 17)
As per Section 17,

i) Ihe Hlgh Court shall in relation to every metropolitar area withln i[s
ocal jurisdiction, appoint a lvletropolitan Magistrate to be the ChjeF Metropoliian
[4agistrate for such metropolitan area.
ii) The High Court may appoint any l4etropolitan Magistrate to be an
Additional Chief I\4eiropolitan lvlagistrate.

Gadade k,d, o slricr& sesion coon. Lalu, Page 66

 And such lYagistrate shall have all the powers ot a Chief Iqetropolitan
14aqistrate under this Code.

' (7') subordination of Metropolitan Magistrates (sec' f9)

'
o. per section 19

i) The Chief Metropolltan [4agistrate and every Additional Chief

l4etropolitan l'4aqistrate shall be subordinate to the Sessions ludge; and
Every other Metropolitan I\4agistraLe shall, subject to the general
ii)
control of the sessions iudqe, be subordlnate to the Chief l'4etropolitan
Magistrate.
(B) Sentences which the courts may pass (sec' 2a, 29 & 30)
a) SLrpreme Courr or Fliqh Collrt, may pass any senten'e authorizo'l by
1.rw.

b) A Sessions Judge or an Additional Sessions judge may pass -

i) any sentence authorized bY law;

" ii) but death sentence passed by any such judge shall be subject to
- confirmation by the High Court-
c) An Assistant Sesslons lLrdge may pass any sentence authorized by law
except a sentence of death or oF imprisonment For life or of imprisonment for a
term exceeding ten years i e imPrisonment upto 10 years and/or fine'
d) A Chjef ludicial Magistrate or a Chief Me[ropolitan Magistrate may pass
a,,y s"ntenau authorized by law except a sentence of cjeath or oF in)pristilin"'t
ior life or oF imprisonment for a term exceeding seven years i e irrpriscnr'r]'nt
Lrpto 7 years-

e) A Judicial Magistra[e of the First Class or a IYetropolitan Maglstrate rnay

pass a ientence of imprisonment for a term not exceediog three years, or oF Fine
not exceeding Rs. 50,000/- or of both as amended
A Judicial Magtsr'a c o' second C'ass a 5enLence ol ln'p-lso.lmeit lor
ll
a terrn not 6xceeding one year, cr fine not exceeding Rs'10,000 (as amended)
c " both.

(9) sentence of imprisonment in default of fine (sec' 30)

Sec. 30 provides that - The Court oF a F4agistrate may award such term of
irnprisonment in default of payment-ot fine as is authorized by law'
' (1O) Section 29 saYs that

Gadade k.d, District& sasion cour, Laror' Page 67

 the Court of a ChieF Metropolitan lvlaEistrate shall have the poh/ers of Lhe
Court of a Chief ludlcial IYagistrate, and ihe lvletropolitan t4agistrate shall have
the powers of the ludicial Magistrate of First Class.

( 11) Conclusion

Gadade k,d. ci:lict & Sessio. cou1. r aru.

 !
cnap. (12) - PROVTSTONS AS TO BArL & BONDS
-
Q.1 Write a detailed noted on 'Anticipatory Bail"
Q.2 Explain fully the provisions about the bail and its kinds as per the
Cr,P.C., 1973.

Q.3 Explain the provisions of bail, specially anticipatory bail as laid

down under cr.P.c., 1973-
Q.4 what is Anticipatory Bail? Under which circumstances bail can be
granted to Accused?
SYNOPSIS

(1) Scope
(2) O.bject and Meaning of Bail
isi Caiegories of Bail or In what cases bail to be taken
(4) Conclusion
(1) Scope
Provisions as regards to the'BAIL'and'BONDS'are explained in SecLiols
436 to 450 of Cr.P.C- 1973 Out of which, Section 436, provides for- Barl n
bailable ofFences. Section 437 deals with the Bail in non-bailable oFiences'
Section43BspeaksforlhedirectionforgrantoFbaiItopersoilai]piehencljil!]
arrest i.e. Antlcipatory Bail. Section 439 lays down the provisions regarding to
the "Speci;l pov\iers of High Court or Court of Session regarding B'ril'
This chapter also provides for the grollnds for cancellation ol Bail (by a
Session Court or by the High Court).

( 2) object and Meaning ot Bail

There is no definition of bail provided in the Cocje of 1973' Eut- our
"Bail"'
Supreme Court from time to time has been tried to define the expression
rn val'oJS cases came before it

l-lowever, 'Bail' has been defined in the Law Lexicon as security for rhe
appearance of the accused person, on giving which he is released pendlng trial
or in,/esL.gation.
In Moti Ram Vs. State of M.P' (1978) 4 SCC 47 - 'Bail' h3s been
defined in Black's Law Dictionary as "to procure the released of a person Fron]
Legal custody, by undertaking that he shall appear at the time & pla'e
de;ignated and sutmit himselF to the jurisdiction and judgment of the Courr'
lne object oF arres[ & detent.o,] oi tne accu<eLl oe-son 'n orira-;ly to
secure his app"urance ut the tl;e of trial and to ensure that in case he is found
guilty he is available to receive the sentence. If his presence at the trial could be
ieasonably ensured by granting him a bail, then there is no necessity to arrest &

Gadade k.d, oidnd & session cdri L,ru. Page 69

detain the accused durinE the pendency of the crirninal proceedings. Otherwise,
it would be unjust & unFair to deprive the accused of his llberty & it is against
the Art. 21 of the Constitution.
If the accused person is not released on bail, it would mean that though
he is presumed to be innocent tiil the guilt is proved beyond reasonable c'oubt,
he would be subjected to the psychological & physical deprivations of jall iie.
The jailed accused loses his job & is prevented from contributing erfectively to
the preparation of his defence. Equally important, the burden of his detention
frequently falls heav,ly on the innocent members of his family.
N4ainly, the principal aim of granting a bail is to give effects to the
fundamental right i.e. right to life & personal liberty guaranteed U/Art. 21 oF the
Constitution, and as well as to ensure the presence of the accused at r: time of
trial- Because, his presence is necessary in criminal lrial.
Its aims to give effects to [he principle of "presumption of an rnnocence
until the guilt is proved".
Its aims to give/afford to the accused fair opportLrnlty to prepare his
defence effectively.

(3) Categories of Bail or In what cases bail to be taken

(i) Bail in bailable offences or cases other than those of non-baitable
offences
Section 436 of Cr.P.C. provides that - "In case of bailable oftence, it is a
matter of right of accused person to release on bail either by the poli.. .fficer or
by the court" with or withoLlt sureties.
In Raghunandan Pershad, (19O4) 32 Cal. aO, 83 - The C-lcut[ta H]gh
Court rules that - This section is imperative, and Lnaier its provtj,:.,irt the
Magistrate is bcund to release the person on bail.
In Bhramar Vs. State of Orissa, 19a1 Cri.L.l. L057 (Ori.) Bail
means released of a person from legai custody, it presupposes thal ;.e is in
custody, person who is under no such restrainl (custody) cannot be granted
b.r rl.

i. Section 436 provides that -

(i) When any person nol accused of a nor baildole offe.rce 's ariq5 .6 6|-
detained by an officer-in-charge of a police station, or appears or is brought
before a court, and is prepared at any time while in the custody oF such ol'ficer
or at any siage of the proceeding before such ccurt to give bail, such person
shall be released on bJ l, as a maLter ol flg1-t,
(ii) The power to graht lrail given by Sec. 436 of the Code vesis in the
Court as well as Lo r1e officer-r. c1a-9e of police sLaLiol

Gadade k.d, Dist,icr &.sesion courr. Lahr,. Page 70

 Further- provided that Such officer or court, if he or it thinks fit'
(iii)
*uy, unj shall, if such person is lndigent and is unable to furnish surety, instead
of #ting oait from such person, discharge him on his execllting a personal bond
hotrf ,.ret:e'for Fli oppeardnLe
"1r'

ii. Excessive amount & unnecessary condition cannot be imposed

In Moti Ram Vs. State of Madhya Pradesh, AIR 1978 SC 1594 - The
Supreme Court helcl that - too high amount of bond and un.recessary inhibitive
condition ought not to be imposed while granting bail'
i ii, Appeal
Though there ls no specific provision for appeal aqainst the orders
refusing tolrant bail under Sec 436(1), the High Court or CoLirt of Sesslon can
be mo,7ed u/se,- a)9'.at bdil.

iv. Recording of reasons in case of refusal to grant a bait

In Dharmu Naik Vs. Rabindranath Acharya, 197a Cri'L'l' a64 (orj )

- Moreover, refusal to grant bail in contravention ofSec 436 withoLrt recordi''g
,"u.ons, *ill make the detention illegal and the -police officer caLrsrnq su'h
detention may be held gullty of !vrongful confinement U/1ec' 342 oi th{l l?C
v- consequences of Failure to comply with conditions of bail (436(2))
FLrrther thls section provides that - "Where a person grante'l bail h:i
failed to comply with the condjtions of the bail-bond as regard the time & place
of attendance, ihe court may refuse to release him on bail, (even if lhe oFi'lr-rcc
is bailable) when on a subsequent occasion in the same case he appears beFore
l.le COUrL OI 'O'OLg'rL'" "J-LodY.
itmeans, in SLlch case the accused person cannot claim to he releaseC on
bail as a matter of right. He loses the right provides U/Sec' 436(1)'
Sub-sec. (2) of S 436 makes a provision that - "A person \'1rho a5s'cnds
or has broken tire condition of his bail-bond when he was released on ball in a
bailable case on a previous occasion, shall not, as of right, be enlitle'i Lo 5':il
when brouqht to court on any subsequent date even though the otfence may be
bailable".

(ii) when Bail may be taken in case of non-bailable offence (sec 437)
Sec. 437 deals with ihe Bail in non-bailable offence.

To release on Bail is a matter of right, if the offence is bailable But, in

case of non-bailable offence, bail is a matter of discretion The accllsed person
cannot claim to be released on bail as a right' In non-bailable cases' [he
accused may be released on bail it is a matter of dlscretion of the court'

it is provides that - the discretion is to be exercised accordlng to the

guidelines provides by law. li is not to be used in an arbitrary manner-

'

Gadadd k.d, oistrict & session coun, Larlr Page 71

 Thus, section '+37 runes as follows -
"When any person accused of, or suspected of, the commission of any
non-bailable offence is arrested or detained by an oFficer-in charge ol'a poiice
station oT appears or is brought before a courl other than the Hiqh CoLrrt or
Court oF Session, ne may be released on bail.
This section gives, the court or a police officer in charge of police station,
powers to reiease; an accused on bail in a non-bailable case, unless there
appear reasonable grounds that the accused has been guilty of'an oFfence
punishable with dcaLh or with jmprlsonrrlent for life.

a. Right to be released on bail, if investigations are not completed

within the prescribed numbers of days (Sec. 167)
If detentton of the accused peason becomeS necessary for lhe completicn
of the investigation, then [he Magistrate rnay authorize the detention oF the
accrsed perso-n otherurise than in custody oF the police Bui, the tota peirod ol
detention ln Such a case shall not exceed 90 daYS - where the investigatlon
relates to an offence puni5hable $/ith death, imprisonrnent for liie or
imprisonment for a term of i0 years or more; and
Such period of deLention shall not exceed 60 days where the invesfigation :
relates lo any other offence.
Section 167 sa)-s that -
"Cn expiry of this period of 90 days or 60 days as the.ase may he, the
accused person shall be released on bail if he is prepa.ed to and does Flri nish
bai "

This provision is applicable lrrespective oi the fact that $rhether the

offp ,ce rq non oa;lao e.
In Bahu.bhai Parshottamdas Vs. State of Guiarat, 1982 cri'L-i 284
(Guj.) - The right conferred on the accused to be released on bail (U/Sec 167)
uft". SO aays or 60 days, as the case may be, must be considered to be an
absolute right, subject to the cancellation of the bail if the requirements oF Sec'
43l(5) are saLrsfied.
In Mahesh Chand Vs. State of Rajasthan, 19a5 Cri'L'l' 3O1 (Raj')
lf it is not possible to complete the investigation within a period of 60 days or 90
days, as the case may be, then even in serious & thastly. types of crmes the
accused will be entitied to be released on ba l.

b. No reasonabte qrounds for believing the accused guilty of a non-

bailable offence but sufficient grounds for further enquiry (sec' 437(2))
When there are no reasonabe grounds to bel eve Lhat fhe acclrsed vlas
involved in the comrnission of a non-bailable ofFence, !he accused shall be
released on bail.

Gadade k.d, Dist.ict A Session Courl. Latur. Page 72

Sec. 437(2) says that
"if it appears to such officer or court at any stage of the investigation,
inqlriry or trial, as the case may be, that there are not reasonable grounds for
believing that the accused has committed a non-bailable offence, buL that there
dre suiFicient grounds for further inquiry lnto his aileged guilt, then, the
according to Sec.437(2)/ the accused shall be rele-sed on bail, or, at the
discretion of such officer or court, on the execution by him of a bond without
sureties for his appearance before a court"

c, Trial not concluded within 60 days

Section 437(6) says that
'lf, in any case triable by a Magistrate, lhe tnal of a person accused of
any non bailable offence is not concluded within a perlod oFsixty da'y's from the
first date fixed for taking evidence in the case, such person shall, if he is in
custody during lhe whole oF the said period, be releascd on b.il to tire
>atrsfdLLro_1 of the lvlagiStrdte.'

Furthe provided that - If the court refuses to grant baiL U/Sec. 437(6),
then the f4aqlstrate should record special reasons in writinq for so doi.9.
d, Released on bail after conclusion of the trial, but before the jucig:rign:
is delivered
Section 437(7) says that -
"if, at any time after the concluslon of the trial o[ a person accused oi a
non-bailable offence and before judgment is delivered, the CoLrrt is oi the
opinion thaI Lhere are reasonable gro!nds for believ]ng Lhai [he ac.use.] ls nor
guilty of any such offence, it shall release the acc!sed, if he is in custody, ol1 the
executlon by him of a bond withoLrt sureties for his appearance Io hear
jLrdgment de,ivered.'

e. No bail in case of offence punishable with death or imprisonnrent for Iiie

i) Sec. 437 says that - "A person under arrest or deLention shall not :). sc
released on bail, if there appears reasonable grounds for believing tlrat he has
been guilty of an offence punishable with death or irnprisonment for life"

ii) However, the Court may direct that any person under the age of 16
years, or ahy woman or any s,ck or infirm person accused of s!ch an oFFence be
released on bail.

rii) If may be noted that the power to grant bail under this proviso (Sec.
437(1)(i)) has been given to the court and not to any police ofFicer.
iv) Here again the court releasing any person on bail under first provlso to
Sec. 437(1) will have to record in writing ats reasons for so doing.

f. Habitual offender ot' person previously convicted of serious offence

not to be released on bail (Sec. 437(1)(ii) provides that

Gadade k.d, oistricr e se$i@ cou , Latur. Page 73

 'lf any person !^,/ho had been previously convicted of an ofFence
punishable w th death, imprisonment for life or imprisonment for seven years or
rnore, or he had been previously convlcted on two or more occasions of a non
bailable & cognizable offence, and is arrested or detained for any nori bal able
offence, then he shall not be re eased on bail"

9, An opportunity of hearing to the Putllic Prosecutor, before granting

bail (sec. 437)
Provded also that "No person shall be released on bail by the Cour[
Dnde. tfi5 set Dns 437t.))l)) &! ) vtithaut gjving an opportvnity of hearing lD
the public prosecutor, if the offence alleged to have been cornmitted by him is
plrnishable with death, imprisonment For life, or imprisonment for seven years
or more"
h. Recordinq oF reasons in wrltinq

Sec. 437 (4) says that

"An ofFicer or a .ourt releasing any person on bail under sub s.r.. (1) or
(2) of Sec. 437, shall record in writing his or its special reasons.
i. Conditional bail in certain cases
a
This section 437 empowers the court to impose conditions while qran[inq
a bail io a person.

A court can impose any condi[ion, as rt thiDks necessary, in the interest of

lustlce
e.9. i) that such person shall attend (appear) the court in accord..ce with
the conditions of bond;
ii) A rrerson will not 9o abroad.
iii) That, a person have to ensure the court that he will not intervene in
the investigatior or destroy the evidences.
iv) That such person shall not directly or indirectly make any
lnducement or threat to any witness or tamper with the evidence.
FLrrther/ it is to be noted that - "The power to impose conditions has been given
to the Court and not to any police officer."
j. Discretion in granting bail in cases of non-bailable offences, how to be
exercised
Whether or not ihe accused to be released on bail in non-bailable cases in
total discretionary pcwers of the court. The court may or may not released him
on bai . Bail can only be a matter of discretion if the offence is non bailable.

Gadade k.d, Disr cl& session coun, Latur- Page74

 i) The scope of discretion varies as per the gravity of the crime. As the
gravity of the offence increases, the discretion to release the offender on bail
gets narrowed down.

ii) As between the police officers and the judicial officers, wider discretion
to qrant bail has been given to judicial officers.

iii) Amongst the judicial officers & courts, a High Court or aCourL of
Session has far wider discretion than that of qiven to other courts & the Courts
of t\4agistrates.

'Discretion", means sound discretion guided by law. It must be governed

by rule, not by humour, it must not be arbitrary, vagLre and fancifuL, but leqal &
regular". The discretion to grant bail in cases oF non-bailable offences has to be
exercised according to certain rules and princ Dles as laid dolvn by the Code and
judicial decisions.

However, the co!rrt can for their g,Jidance, look to the Follo!uing
circLrmstances -
i)The enormity of the charge;
ii) Gravity of the offence;
iii) The severity ot Lhe punishment;
iv) The nature of the evidence in support oi the ..cu5aLIJr, (av.iiabls)
v) The danger of the accused persons'abscondisg if he is released on bi il;
vi) The danger of witnesses being ta|npare.l ',!iLh;
v.') Tre cnan.e oF de<lro!''ng Lhe evidence':
viii) The protracted nature oF the trial;

ix) Opportunity to the applicant for preparation of hls defence and access tc hls
counsel;

x) The health, age and sex of the accused;

xi) The nature & gravity of the circumstances in which the oFfence is conrmitiedj
xii) The position & status oF the accused can be another crlteria For grantinq a
bd rl;

xiii) The probability of accused commiiting more offences ri released on bail, etc
xiv) Habitual offender is not to be released on baili
r
I
xv) The previous convictions & the criminal record oF the accused person and
also the chances of the repetition of [he offences by the accused person are also
to be taken into account.while deciding the question of baii.

Gadade k.d, Di'r'ict& sesston colrr. Larur Page 75

xvi) Chance of obstructing in the investiqatlon;
xvii) While the protracted nature of the triai, delay and the long detention oF the
accused were considered in favour of grantinq bail by some ccurt, etc.

(4) conclusion

-a

Gadade k.d, Dnicl &session courr. L.iu. Page 76