KLE LAW ACADEMY BELAGAVI

(Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College,
Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law
College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai)

STUDY MATERIAL
for

CRIMINAL LAW II
Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi

Compiled by
Mr. Harsh Pratap, Asst. Prof.

KLE Society’s Law College, Bengaluru

This study material is intended to be used as supplementary material to the online classes and
recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation
for their examinations. Utmost care has been taken to ensure the accuracy of the content.
However, it is stressed that this material is not meant to be used as a replacement for textbooks
or commentaries on the subject. This is a compilation and the authors take no credit for the
originality of the content. Acknowledgement, wherever due, has been provided.
 CODE OF CRIMINAL PROCEDURE

MEANING OF PROCEDURE

FUNCTIONARIES UNDER THE CODE

The Police
Public Prosecutors
Public Prosecutors and additional public prosecutors for High Court
Public Prosecutors and Additional Public Prosecutors for districts
Assistant Public Prosecutors
Role of the Prosecutor
Court
The Defence Counsel

FIRST INFORMATION REPORT

Object
Essential Conditions of F.I.R.
Information in Cognizable Cases [S.154]
What Information is Considered in an F.I.R?
Information received in the following cases is not considered as FIR:
Evidentiary Value of FIR
Delay in Filing FIR

CONFESSION

Scope and relevance of statements under section 164 of CrPC

Types of confessions: Inculpatory and Exculpatory confessions

From of confession

Who can record confession statements?

Object of recording 164 statements

Procedural safeguards
Evidentiary value of 164 statements

REMAND

Police custody
Judicial Custody
Section 167

COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATE

Cognizance on Complainant and Issues of Process

Meaning of Cognizance
Examination of Complainant
Inquiry or Investigation for further scrutiny of the complainant
Dismissal of Complaint
Issuing a summons or warrant
Power to Dispense With the Personal Attendance Of The Accused
Special Summons in Cases of Petty Offences
Supply to the accused of copies of statements and other documents
Commitment of the Case to Court of Session
Consolidation of Cases

TRIAL UNDER CRPC

Warrant Case
Sessions case
Summons case
FEATURES OF FAIR TRIAL

Presumption of Innocence
Independent, Impartial and Competent Judge
Expeditious Trial
Hearing Should be in Open Court
Knowledge of Accusation and Providing Adequate Opportunity to Accused
Trial in Presence of the Accused
Evidence to be Taken in Presence of Accused
Cross-Examination of Prosecution Witnesses
Prohibition of Double Jeopardy
Legal Aid

ARREST

Types of Arrest
Arrest by Warrant
Arrest Without Warrant
Arrest on Refusal to Give Name and Residence
Procedure of Arrest by a Private Person
Arrest by Magistrate
Procedure of Arrest
Additional powers for effecting arrest search of place
Pursuit of offenders
Power, on escape, to pursue and retake
Post arrest procedures
Medical examination of accused

RIGHTS OF AN ARRESTED PERSON

Right to be informed of the grounds of arrest

Right to be released on bail
Right to be produced before a magistrate
Protection against arrest and detention
Right to consult a legal practitioner
Right to free legal aid
Right to be examined by a medical practitioner
 PROCESS TO COMPEL APPEARANCE

The process to compel the appearance

Summons
Warrant
The process to compel the production of things
Proclamation of offender and attachment of properties
The warrant in lieu of summons

LIMITATION ON TAKING COGNIZANCE

Introduction
Limits To Take The Cognizance Of Offences
Section 467
Section 468
Non- Applicability of Section 468

FRAMING OF CHARGES

Purpose of Charge Framing

Contents of Charge
Particulars as to Time, Place and Person
Effect of Error
When Court Can Alter or Amend Charge
Basic Rule as to Charge and Trial of Charge
Exceptions to the Basic Rule
Trial of Three Offences of the Same Kind Within a Year
Trial for More Than One Offence
When it is Doubtful What Offence has been Committed
Persons Who may be Charged Jointly

JUDGMENT
Object and Scope
Form and contents of the judgment under Section 353
Language and contents of judgment
 VICTIM COMPENSATION

MAINTENANCE

Introduction
Who may claim maintenance?
Wife
Children
Parents
Conditions
Procedure: S.126
Amount of Maintenance
Alteration and Cancellation S.127
Enforcement S.128
Mode of enforcement

SECURITY FOR KEEPING PEACE AND GOOD BEHAVIOUR

Section 106– Security for keeping the peace on conviction

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

TRANSFER OF CASES UNDER CRPC

Transfer of cases and appeals by SC

Grounds for transfer of appeal and cases
Transfer of cases and appeals by HC
Orders that the High Court can pass
Stay of proceeding to the subordinate court
Where the application is dismissed by the High Court
Transfer of cases and appeals by the sessions judge
Withdrawal of cases and appeals by Sessions Judges
Withdrawal of cases by Judicial Magistrates
Making over or withdrawal of cases by Executive Magistrates

SUSPENSION AND REMISSION OF SENTENCES

Constitutional provisions
Suspension or remission of sentences
Commutation of sentence
Restriction on powers of remission or commutation in certain cases

PLEA BARGANING

Plea Bargaining in India

Section 265-A (Application of Chapter)
Section 265-B (Application for Plea Bargaining)
Section 265-C (Guidelines for Mutually satisfactory disposition)
Section 265-D (Report of the mutually satisfactory disposition)
Section 265-E (Disposal of the case)
Section 265-F (Judgment of the Court)
Section 265-G (Finality of Judgment)
Section 265-I (Period of detention undergone by the accused to be set off against the
sentence of imprisonment)
Benefits of Plea Bargaining

COMPOUNDING OF OFFENCES

Compoundable Offences
Non-Compoundable Offences
Compoundable offences
Compounding without the permission of the Court:
Court permission is required before compounding –
Other provision governing Compounding of Offences
Effect of Compounding of an Offence
Prohibition Regarding Compounding of Offences
 REHABILITATION OF JUVENILES

Introduction
Aftercare care organisations
Sponsorship
Foster care
Adoption
Prevention, dealing, treatment, rehabilitation and reintegration of juvenile delinquents
Prevention
Dealing
Treatment
Rehabilitation and Reintegration

PROBATION OFFICER

Introduction
Who is a Probation Officer
Responsibilities of Probation Officer
Duties of Probation Officer
Analysis and monitoring
Supervision and counselling
Link to the Court
Decision making
Probationer rehabilitation and after care
Appointment of Probation Officer

CHILD WELFARE COMMITTEE

Powers
Functions and Responsibilities

JUVENILE JUSTICE BOARD

Constitution
Composition of Bench under Juvenile Justice Act, 2015
Powers granted to Juvenile Justice Board
Eligibility Criteria for Selection as Member of Juvenile Justice Board
Functions
 INTRODUCTORY AND PRE-TRIAL PROCESS

MEANING OF PROCEDURE

Criminal law is one of the most important branches of law because it deals with the most
serious offences and it helps to protect the society from falling into the state of anarchy. It
consists of two branches- procedural and substantive law.

Procedural law provides machinery for the implementation of substantive criminal law.
Substantive law provides a different kind of offences and the punishment which is imposed
on the offenders. If there is no procedural law, the substantive laws are of no use because no
one will be able to know the way how the offenders will be prosecuted and they will be let
off. Thus, both the law are complementary with each other.

The main objective of criminal procedure is to provide a full and fair trial to the accused by
taking into consideration the principles of natural justice.

FUNCTIONARIES UNDER THE CODE

There are various functionaries under the Code of Criminal Procedure,1973 who help to
regulate the various provisions of the code. The functionaries are essential for the proper
functioning of the code. The various functionaries mentioned under the code are as follows-

1. The Police

The Police Officer is an important authority who is the backbone of criminal law in India.
They are responsible for maintaining the law and order of the country. The police officers
have various powers and functions that help to prevent various crimes happening in our
country. There is no definition of the term “Police” in the Code of Criminal Procedure but the
term is defined in the Police Act of 1861.
2. Public Prosecutors

Section 24 of the Code of Criminal Procedure deals with the Public Prosecutor. The main
function of the office of Public Prosecutor is to administer justice and to secure the public
purpose entrusted with him. The Public Prosecutor is an independent statutory authority and
is not a part of any investigating agency.

It is mandatory to appoint a Public Prosecutor in all the cases when the prosecution is against
the State. The relationship between the Public Prosecutor and the Government is that of a
counsel and a client. The Public Prosecutor shall never be partial to either the accused or
prosecution.

There are various classes of Public Prosecutor like,

1. Public Prosecutors appointed by the State Government and the Central

Government;
2. Additional Public Prosecutors appointed by the State Government;
3. Special Public Prosecutors appointed by the Central Government;
4. Special Public Prosecutors appointed by the State Government.

Public Prosecutors and additional public prosecutors for High Court

Section 24(1) of the Code of Criminal Procedure provides powers to the Central Government
or State Government to appoint a Public Prosecutor for every High Court. They can also
appoint one or more Additional Public Prosecutors. The appropriate Government can appoint
the Public Prosecutors after consultation with the High Court. The eligibility of the person to
be appointed as a Public Prosecutor is that he should be practising as an Advocate for not less
than seven years.

Public Prosecutors and Additional Public Prosecutors for districts

Section 24 provides various rules regarding the appointment of Public Prosecutors and
Additional Public Prosecutors for districts. The Central Government can appoint one or more
Public Prosecutors for conducting cases in any district or local area. The State Government
can also appoint one or more Additional Public Prosecutors for the district. The Public
Prosecutor or Additional Public Prosecutor appointed for a district can also be appointed for
another district in certain cases. The District Magistrate will prepare a panel of names of
persons who are eligible to be appointed as a Public Prosecutor or Additional Public
Prosecutor. This list is prepared after consulting the Sessions Judge.

Assistant Public Prosecutors

Section 25 of the Code of Criminal Procedure deals with the appointment of Assistant Public
Prosecutors. The State Government has to appoint one or more Assistant Public Prosecutors
for conducting prosecutions in different districts. The Assistant Public Prosecutors have no
right to practise as advocates or defend the accused in criminal cases. Their only work is to
conduct prosecutions on behalf of the State. The Assistant Public Prosecutors are full-time
Government servants.

Role of the Prosecutors

The Public Prosecutors are appointed to conduct any prosecution, appeal or any other
proceedings on behalf of the Central Government or State Government. The Public
Prosecutor is bound to satisfy himself that there is a justification to seek an order of remand
to judicial custody and to assist the Court.

3. Court

The Courts are another important functionary under the Code of Criminal Procedure. There
are various classes of Criminal Court like,

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

The Code of Criminal Procedure has clearly differentiated the various functions of the court
and has dedicated various powers to various classes of Courts in Chapter three of the Code of
Criminal Procedure. Section 26 of this code mentions that the High Court, the Court of
Session or any other Court as specified in the First Schedule of the Code of Criminal
Procedure is eligible to try offences provided under the Indian Penal Code. Section
28, Section 29 and Section 30 deals with the various kinds of sentences that can be passed by
different Courts which helps the procedure of trial and also the powers between the Courts
get distributed properly. The Courts govern the entire process of trial and acts as a regulating
authority.

4. The Defence Counsel

Section 303 of the Criminal Procedure Code provides this right to appoint a defence counsel
of their choice. The right guaranteed under this Section is indispensable as it guarantees a fair
trial.
 FIRST INFORMATION REPORT

The term ‘First Information Report’ has not been defined in the Code of Criminal Procedure.
The report first recorded by the police relating to the commission of a cognizable case is the
First Information Report giving information on the cognizable crime.

This is the information on the basis of which investigation begins. The FIR must be in
writing.

Object

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

Essential Conditions of F.I.R.

In Moni Mohan v. Emperor AIR 1931 Cal, it was decided that the essential conditions of
F.I.R. are:

1. It must be a piece of information.

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

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

Information in Cognizable Cases [S.154]

Since the information received u/s 154 is termed as FIR, it is important to know the
provisions relating to the procedure for recording information in respect of cognizable cases
u/s/ 154.

 If the information is given orally to an officer in charge of a police station, it has to

be reduced in writing by the concerned police officer. It should be then read over
to the informant, and then signed by him. The information thus received has to be
recorded in a book authorised by the state government regarding the same.
 A copy of the information recorded is to be given to the informant, free of cost.
 If the officer in charge refuses to record the information, the person may send such
information, the aggrieved person may send, the substance of such information to
the Superintendent of Police and the Superintendent of Police if satisfied about the
commission of the cognizable offence, shall either investigate the case himself or
direct an investigation to be made by the subordinate police officer. Such police
officer shall exercise all the powers of an officer in charge of the police station in
the concerning offence.

When the information is given by a woman against whom any of the offences under sections
326 – A, 326-B, 354, 354-A to 354-D, 376, 376-A to 376-E or 509 IPC is alleged to have
been committed or attempted, such statement shall be recorded by a woman police officer or
any woman officer.

What Information is Considered in an F.I.R?

Only information relating to the commission of a cognizable offence can be termed as an

FIR. It is not necessary that the information must set out every detail of the case. It need not
state the name of the accused also. What is necessary is that it must disclose information
regarding the commission of a cognizable offence.

Information received in the following cases is not considered as FIR:

1. Information received after commencement of the investigation.

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

Evidentiary Value of FIR

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

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

If the accused himself lodges the FIR, it cannot be used for corroboration or contradiction
because the accused cannot be a prosecution witness, and he would very rarely offer himself
to be a defence witness u/s 315 of the Code.

Delay in Filing FIR

The object of early filing of F.I.R. to the police as soon as possible, in respect of the
commission of the offence is to obtain and receive fresh information regarding the
circumstances and facts which tend to result in the commission of the offence. The FIR shall
have better corroborative value if it is recorded and taken before the informant’s memory
fades and before he starts to forget the facts. Thus, if there is a delay in lodging FIR and the
delay is unreasonable and unexplained, it is likely to create scope for suspicion or
introduction of a concocted story by the prosecution. It is the duty of the prosecution to
explain the delay in lodging FIR. If satisfactorily explained, it does not lose its evidentiary
value. However, mere delay in lodging FIR is not fatal to the prosecution case.

CONFESSION

Scope and relevance of statements under section 164 of CrPC

Confession means a formal statement admitting that one is guilty of a crime. Confession is
not defined in the Evidence Act. Confession includes admission, but an admission is not
confession. A confession either admit in terms of the offence or at any rate substantially all
the facts which constitute the offence. If a statement falls short of such a plenary
acknowledgment of guilt, it would not be a confession even though the statement is of some
incriminating fact which taken along with other evidence tends to prove the guilt of the
accused. Such a statement is only an admission but not a confession. The person making it
states something against himself, therefore, it should be made in surroundings, which are free
from suspicion. Otherwise, it violates the constitutional guarantee under Article 20(3) so that
person accused of an offence shall be compelled to be a witness against himself. A direct
acknowledgement of guilt should be regarded as confession.

In case of Pakala Narayana Swami Vs emperor AIR 1939 P.C. 47 the question before the
court was whether statements from which the guilt of an accused can be inferred amounts to a
confession or not. it was held that “A confession must either admit in terms the offence, or at
any rate substantially all the facts which constitute the offence. An admission of a gravely
incriminating fact, even a conclusively incriminating fact, is not in itself a confession, for
example, an admission that the accused is the owner of and was in recent possession of the
knife or revolver which caused death with no explanation of any other man’s possession”

Types of confessions: Inculpatory and Exculpatory confessions

The confession to something wrong or which involves the accused of the guilt is inculpatory
confession. And, the confession which absolves the accused of any guilt is exculpatory
confession.

From of confession
A confession may occur in any form it may be made to the court itself, when it will be known
as judicial confession or to anybody outside the court, in which case it is called an extra
judicial confession. It may even consist of conservation to oneself, which may be produced in
evidence of overheard by another. In Pakala Narayan Swami v. Emperor, where the accused
admitted his guilt before the police and, later on, refused to identify accused before
Magistrate and during trial, the court held that it won’t amount to confession as there was no
direct admission of guilt by him.

In case Sahoo Vs state of UP AIR 1966 SC 40 the accused who was charged with the murder
of his daughter in law with whom he was always quarrelling was seen on the day of murder
going out of the home, saying words to the effect “I have finished her and with her the daily
quarrels.” the statement was held to be a confession relevant in evidence, for it is not
necessary for the relevancy of a confession that it should be communicated to some other
person.

Who can record confession statements?

Section 164 of the code gives power to the Metropolitan Magistrate or judicial magistrate to
record confession and statements during the course of investigation under chapter 12 or under
any law for the time being in force, or at any time afterwards before the commencement of
the inquiry or trial. The magistrate may record confession or statement made to him. But
before doing so he is enjoined by sub section (2) thereto to explain to the person making it
that he is not bound to make confession and that, if he does so it may be used as evidence
against him.

In case Kartar Singh Vs state of Punjab, 1994 Crl.L.J. 3139 it was observed what section
164(2) of the code requires as amplified by rule 32 of Criminal Rules of Practice, is that as
soon as the accused intending to make confession is produced and before he is told he would
be allowed time for reflection, the magistrate should explain him that it is not intended to
make him an approver and that, he is not bound to make confession and warn him that, if he
does so, anything said by him will be taken down and thereafter be used as evidence against
him as evidence in relation to his complicity in the offence at the trial, that is to follow.
Compliance of sub- section (2) being mandatory and imperative, its noncompliance renders
the confession inadmissible in evidence. Such defect cannot be cured under section 463 of the
CrPC.

Object of recording 164 statements

A question may arise as to why there is need to record the statement under section 164 of the
code in addition to statement recorded under section 162 of the Code. The object of recording
of statements of witnesses under section 164 of the Code is twofold;

(1) to deter witnesses from changing their versions subsequently and

(2) to get over the immunity from the prosecution in regard to information given by the
witnesses under section 162 of the code. The other reason of recording statement of witnesses
under section 164 of 17 the code is to minimize the chances of changing the versions by the
witnesses at the trial under the fear of being involved in perjury.

The object behind it that when during the course of investigation police records the
statements under section 162 of the Code they cannot administer oath to the person making
statement and cannot obtained his signature, but under section 164 of the Code, a magistrate
recording statement of a person can administer oath to him and obtain his signature over the
statement Certainly if a person makes and signs a statement then naturally he comes under
moral obligation and chances of his turning hostile will be reduced. . But the evidence of
witness whose statement is recorded under section 164 of the Code must be approached with
caution.

Procedural safeguards

The Indian Constitution provides immunity to an accused against self-incrimination under

Article 20(3) – ‘No person accused of an offence shall be compelled to be a witness against
himself’. It is based on the legal maxim “nemo teneteur prodre accussare seipsum”, which
means “No man is obliged to be a witness against himself.”

Confession is a self-incriminating statement and it has to be given voluntarily. Thus, section

164 contains various procedural safeguard to insure voluntary character of the confession.

The magistrate shall record the confession in the manner provided in section 281 for
recording the examination of the accused persons. It shall not only be signed by Magistrate,
but also by the accused himself. The magistrate shall also append a memorandum at the foot
of the record as laid down in the sub section (4). if he has no jurisdiction to inquire or try the
offence, he shall forward the confession so recorded to the magistrate by whom the case is to
be inquired into or tried. The provisions of the section 164 of the criminal Procedural Code
and rules and guidelines framed by the Honourable High Court in this behalf providing for
procedural safeguards etc, must be complied with not only in form, but also in essence. When
a confession is not recorded by the magistrate in the manner prescribed by the section 164 of
Criminal Procedure Code, then it is not admissible in evidence.

Evidentiary value of 164 statements

Evidentiary value of statement recorded under section 164 CrPC is that, the statement cannot
be treated as substantive evidence when the maker does not depose of such facts on oath
during trial. before acting on a confession made before a judicial magistrate in terms of
section 164, the court must be satisfied first that the procedural requirements laid down in sub
section (2) to (4) are complied with. These are salutary safeguards to ensure that the
confession is made voluntarily by the accused after being apprised of the implications of
making such confession. The endeavour of court should be to apply its mind to the question
whether the accused was free from threat duress or inducement at the time of making
confession. Parmananda Vs state of Assam (2004(2) ALD Crl 657

The confession would not be ordinarily considered the basic for conviction. However, it is
admissible, and conviction may also be based upon it if it is found truthful and voluntary and
in a given case some corroboration is necessary. Confession which is not retracted even at the
stage of trial and even accepted by the accused in the statement under section 313 CrPC can
be fully relied upon. So, the conviction based thereon together with other circumstantial
evidence is sustainable. The accused in his statement under section 313 CrPC or during cross-
examination never suggested that his statement under section 164 CrPC is false. Allegation of
presence of police officers at the time of recording the confession was without any material.
Requirement of section 164(2) CrPC have been complied with. Such a confession statement
was fit to be accepted.
 REMAND

Police custody

Police custody means that the physical custody of the accused is with the Police, the accused
is lodged in a lock-up of a police station.

After an FIR is lodged for a cognizable offense (provides punishment for more than three
years), the accused is arrested by the police to prevent the tampering of evidence or
influencing the witnesses.

Under Section 57 CrPC the police officer cannot keep the accused for more than 24 hours,
irrespective of whether the investigation is complete or not. The accused is produced before
the concerned Magistrate within 24 hours of the arrest, the police seek his remand to police
custody in order to complete the investigation expeditiously, the police decides for how long
the accused must be kept in custody, which cannot exceed a period of 15 days.

Judicial Custody

Judicial custody is there in case of serious offenses, where the Court may accede on the
request of the police to remand the accused in judicial custody after the police custody period
expires, that is to prevent the tampering of evidence or witnesses.

It is mandatory in criminal cases to file a charge sheet within 90 days. If there is failure in the
filing of a charge-sheet within 90 days, the bail is normally granted to the accused. But, in
case if heinous offenses, like rape or murder, the accused is generally kept in a judicial
custody (that is kept in jail under the custody of the court) for a longer duration despite the
filing of a charge sheet, in order to not influence the process of trial.

The judicial custody may be for a period of 60 days for all other crimes, if the Court finds it
convincing that sufficient reason exists, following which the suspect or accused may be
released on bail.

Section 167

Section 167 of CrPC governs the provisions for holding a person in custody for the purpose
of proceeding further with the investigation. Section 167 of CrPC allows a person to be held
in police custody on the orders of a Magistrate for a period of 15 days.

A Judicial Magistrate may remand a person for a period of 15 days to any form of custody.
An executive Magistrate may order to extend the period of custody for up to 7 days.

A person may be held in police custody or judicial custody. Police custody may extend up to
a period of 15 days from the date the custody begins, whereas the judicial custody may
extend to a period of 90 days for the crimes which entails life imprisonment or death
punishment or imprisonment for a term of not less than ten years and 60 days for crimes
where the imprisonment is for less than ten years, if the Magistrate is convinced that there are
sufficient existing reasons, following which the suspect or accused must be released on bail.
The Magistrate has the authority to remand the person into police custody or judicial custody.

The detaining authority may be changed during the pendency of detention, provided that a
total time period of custody does not exceed 15 days. If a person is transferred from police
custody to judicial custody, then the number of days the person has served in police custody
are deducted from the total time that is remanded to judicial custody.
 COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATE

Cognizance on Complainant and Issues of Process

The Complaint is defined in Section 2(d) of the Code as any allegation made verbally or in
writing to a Magistrate, to take action under this Criminal Procedure Code, that some
person, whether known or unknown, has committed an offence, but it does not include a
police report or statement.

Meaning of Cognizance

The word ‘Cognizance’ has not been defined in the procedural law but the meaning of
cognizance is derived from the number of precedents and judicial pronouncements. The
dictionary meaning of cognizance is “taking account of ”, “taking note of“, “to gain
knowledge about”, “to have knowledge regarding something “. If we see the legal meaning of
cognizance, it is the power or authority of the court or the “taking judicial notice by court of
law having jurisdiction on an action, matter or a cause for the purpose of deciding whether
there is any ground for the initiation of proceedings and deciding of the matter or cause
judicially”.

Section 190 of the Code of Criminal Procedure provides the condition to take cognizance of
offences by magistrates.

According to this section, the Magistrate can take cognizance when:

1. After receiving a police complaint;

 2. After receiving complaints of facts which constitutes any offence;
3. After receiving information from any person other than a police officer, or upon
his own knowledge, that such offence has been committed;
4. The Chief Judicial Magistrate can empower any Magistrate of the second class to
take cognizance of offences which are within his competence to conduct an
inquiry or a trial.

The Magistrate can scrutinize the complaint and examine it completely before issuing a
process.

Examination of Complainant

Section 200 of the Code of Criminal Procedure deals with the examination of the
complainant. The magistrate after taking cognizance of an offence has to examine the
complainant and witnesses present. This examination has to be done upon oath. The
magistrate also has the duty to note down the relevant information found in such
examination. The substance of such examination should be given in writing and that has to be
signed by the complainant and the witnesses. The magistrate need not conduct this
examination when:

1. If the complaint is made by a public servant who is acting or purporting to act in

the discharge of his official duties or a Court;
2. If the Magistrate makes over the case for enquiry or trial to another Magistrate
under Section 192.

Inquiry or Investigation for further scrutiny of the complainant

Section 202 of the act provides further scrutiny of the complainant. The issuance of the
process can be postponed if the Magistrate feels there is a need for further investigation. The
Magistrate will decide whether there is a proper ground for conducting the proceeding. The
scope of enquiry under this section is restricted to the ascertainment of truth or falsehood
made out in the complaint.

Dismissal of Complaint
Section 203 provides power to the Magistrate to dismiss a complaint. The Magistrate can
dismiss the complaint if he is of the opinion that there are no sufficient grounds for
conducting the proceedings. The Magistrate comes to this conclusion after conducting an
appropriate inquiry or investigation under Section 202. The Magistrate can also dismiss the
complaint if the processing fee is not paid properly and this ground of dismissal is mentioned
in Section 204. In the case of Chimanlal v Datar Singh 1998 CrLJ 267, it was said that the
dismissal of a complaint is not proper if the Magistrate has failed to examine material witness
under Section 202. The Magistrate can dismiss the complaint or can refuse the issue of the
process when:

1. The Magistrate finds out no offence has been committed after the complaint is
reduced to writing according to Section 200;
2. If the Magistrate distrusts the statements made by the complainant;
3. If the Magistrate feels that there is a need to conduct further investigation, then he
can delay the issue of process.

Issuing a summons or warrant

Section 204 of this act provides the Magistrate power to issue a process if it is found that
there are sufficient grounds for carrying out the proceeding. The Magistrate can issue a
summons if it’s a summons case. A warrant is issued in case of a warrant case. The
Magistrate can also issue summons to the accused in order to make him appear before the
Magistrate concerned within a certain date.

No summons or warrants can be issued against the accused until a list of the prosecution
witness has been provided. This section will not affect the provisions provided in Section
87 of the act. Section 87 enables the Magistrate to issue a warrant of arrest whenever it is
necessary under this section.

Power to Dispense With the Personal Attendance Of The Accused

Section 205 provides the Magistrate powers to dispense the personal attendance of the
accused in certain situations. The Magistrate can dispense the personal attendance of the
accused and permit him to appear by his pleader if there are proper reasons. The Magistrate
can also direct the personal attendance of the accused in any stage of the investigation if it is
necessary. The exemption from personal appearance cannot be claimed as a right but it is
completely under the discretion of the court after applying relevant judicial principles. The
Magistrate considers various factors to dispense attendance like:

1. Social status.
2. Customs and practice.
3. The distance at which the accused resides.
4. The necessity of personal attendance with regards to the offence and the stages of
the trail.

Special Summons in Cases of Petty Offences

The Magistrate can issue some special summons in cases of petty offences according
to Section 206 (2) For the purposes of this section,” petty offence” means any offence
punishable only with a fine not exceeding one thousand rupees, but does not include any
offence so punishable under the Motor Vehicles Act, 1939 or under any other law which
provides for convicting the accused person in his absence on a plea of guilty. When a
Magistrate takes cognizance of petty offences the case can be summarily dismissed according
to Section 260, but sometimes the Magistrate will send the summons for the person to appear
in person or by pleader when it is needed. The reason for such a decision has to be recorded.

Supply to the accused of copies of statements and other documents

It is essential to supply relevant documents to the accused so that they can understand the
procedure followed and the status of the case. The documents supplied might also be used for
future reference whenever necessary. The main need behind providing such documents is to
avoid prejudice during the trial. The non-supply of materials by the Magistrate that is
provided in Section 207 can be successfully used for setting aside a conviction.

Where the proceeding is instituted on a police report

Section 207 provides that the Magistrate has to provide certain copies of documents to the
person accused when the proceedings are instituted on a police report. The documents must
be provided free of cost. The necessary documents that have to be provided are:
 1. The police report;
2. The First Information Report (FIR) which is recorded under Section 154;
3. The statements which are recorded Sub-section (3) of Section 161 of all persons
whom the prosecution proposes to examine as its witnesses;
4. The confessions and statements that are recorded under Section 164 if available;
5. Any other relevant document which is forwarded to the Magistrate with the police
report.

Where the proceeding is in respect of an offence exclusively triable by the Court of Session

The court has to provide certain documents to the accused when the offence is triable
exclusively by the Court of Session according to Section 208. These documents should be
provided when the case is not instituted based on the police reports. The documents are:

1. The statements recorded under Section 200 or Section 202 after the investigation
by Magistrates;
2. Any documents that are produced before the Magistrate on which the prosecution
proposes to rely;
3. The statements and confessions that are recorded under Section 161 or Section 164
if available.

Commitment of the Case to Court of Session

Section 209 deals with the commitment of the case to the Court of Session. According to this
section if a Magistrate feels that if the offence is triable exclusively by the Court of Session
after instituting a case, then,

1. The Magistrate can commit the case to the Court of Session;

2. The accused can be remanded in custody until the proceedings are subject to the
other provisions relating to bail;
3. The Magistrate can send evidence and other relevant evidence to the concerned
court to carry out the proceedings;
4. The Magistrate can also notify the Public Prosecutor of the commitment of the
case to the Court of Session.
Consolidation of Cases

Section 210 deals with the procedures to be followed when there is a consolidation of cases
instituted on a police report and on a complaint. The Magistrate can stay the proceedings of
any inquiry or trial and call for a report on the matter from the police officer conducting the
investigation if it is done in the same subject of inquiry. If the police report does not relate to
any accused in the case or if the Magistrate does not take cognizance of any offence on the
police report, he shall proceed with the inquiry or trial, which was stayed by him, according
to other provisions in the code. If a report is made by the investigating police officer
according to Section 173 and based on such report cognizance of any offence is taken by the
Magistrate against any person who is accused, then the Magistrate shall inquire into or try
together both the complaint case and the case arising out of the police report as if both the
cases were instituted on a police report.
 TRIAL UNDER CRPC

The trial is the pivotal point of a Criminal case. Sec 190 of the CrPC provides for the
conditions that need to be fulfilled before proceedings can be initiated by the Magistrate (it
specifically empowers a Magistrate to take cognizance of a case). It is the exclusive power of
the Magistrate under Sec 204 of the CrPC to refer or reject a case from entering the stage of
trial. ‘Trial’ is the judicial adjudication of a person’s guilt or innocence. Under the CrPC,
criminal trials have been categorized into four divisions having different procedures, called
Session, warrant, summons and summary trials.

Sec 225-237 deal with warrant cases by a court of Session.

Sec 238-250 deal with warrant cases by magistrates.

Sections 251-259 provides procedure for trial of summons cases by magistrates.

Sections 260-265 make provisions relating to summary trials.

Warrant Case: A warrant case relates to offences punishable with death, imprisonment for life
or imprisonment for a term exceeding two years. The CrPC provides for two types of
procedure for the trial of warrant cases triable by a magistrate, viz., those instituted upon a
police report and those instituted upon complaint or on own information of magistrate.

In respect of cases instituted on police report, it provides for the magistrate to discharge the
accused upon consideration of the police report and documents sent with it. In respect of the
cases instituted otherwise than on police report, the magistrate hears the prosecution and
takes the evidence. If there is no case, the accused is discharged. If the accused is not
discharged, the magistrate holds regular trial after framing the charge, etc.

Sessions case: In respect of offences punishable with death, life imprisonment or

imprisonment for a term exceeding seven years, the trial is conducted in a Sessions court after
being committed or forwarded to the court by a magistrate.

Summons case: A summons case consists of all cases relating to offences punishable with
imprisonment not exceeding two years. In respect of summons cases, there is no need to
frame a charge. The court gives substance of the accusation, which is called “notice”, to the
accused when the person appears in pursuance to the summons. The court has the power to
convert a summons case into a warrant case, if the magistrate thinks that it is in the interest of
justice.

Summary case: The high court may empower magistrates of first class to try certain offences
in a summary way. Second class magistrates can summarily try an offence only if punishable
only with a fine or imprisonment for a term not exceeding six months. In a summary trial, no
sentence of imprisonment for a term exceeding three months can be passed in any conviction.
The particulars of the summary trial are entered in the record of the court. In every case tried
summarily in which the accused does not plead guilty, the magistrate records the substance of
the evidence and a judgment containing a brief statement of the reasons for the finding.

FEATURES OF FAIR TRIAL

The Indian Judiciary has explained the need and importance of the concept of Fair Trial in a
number of cases. In the landmark case of Zahira Habibullah Sheikh and ors vs. State of
Gujarat, the Supreme Court has defined fair trial as a trial before an impartial Judge, a fair
prosecutor and atmosphere of judicial calm. The SC said that a denial of a fair trial is as much
injustice to the accused as is to the victim and the society.

Following are the principles of a fair trial-

1. Presumption of innocence
2. Independent, impartial and competent judge
3. Expeditious trial
 4. Hearing should be in open court
5. Knowledge of accusation and adequate opportunity
6. Trial in presence of accused
7. Evidence to be taken in presence of accused
8. Cross-examination of prosecution witnesses
9. Prohibition of double jeopardy
10. Legal aid

Presumption of Innocence

This is the cardinal importance of the Indian Criminal Justice System. Under this principle
each and every accused is presumed to be innocent unless proved guilty of a crime beyond
reasonable doubts. The burden of proving the accused guilty is on the prosecution. It came
from a Latin maxim ‘eiincumbit probation qui dicit, non qui negate’ which means the
burden of proof is one that who asserts, and not on the one who denies.

Independent, Impartial and Competent Judge

Impartiality refers to the conduct of the Judges who are supposed to conduct the trial and give
the decision of acquittal or conviction without any biases towards the accused or the victim.
Section 479 of the Code of Criminal Procedure, 1973 prohibits the trial of a criminal case by
a judge who is either party to the suit or is personally interested in the case.

The apex court in the case of Shyam Singh v. State of Rajasthan has held that the real test is
whether there exists any circumstance according to which a litigant could reasonably
apprehend that a bias attributable to a judicial officer must have operated against him in the
final decision of the case and not that a bias has actually affected the judgment.

Expeditious Trial
‘Justice delayed is Justice denied’ is popularly used in many of the courtroom dramas, which
is actually a well-settled principle of criminal jurisprudence. Expeditious trial refers to the
right of speedy trial of an accused. This principle was considered under the concept of a fair
trial to avoid unnecessary harassment of the accused. The apex court in the landmark case
of Husianara Khatoon v. State of Bihar, 1979 held that speedy trial is an essential ingredient
of Article 21 of the Constitution of India and it is the constitutional duty of the state to set up
such procedure which would ensure speedy trial of the accused.

Section 309(1) of Cr.PC has provided that all the trials and the proceedings shall be held as
expeditiously as possible unless the court finds the adjournment of the same beyond the
following day to be necessary for reasons to be recorded.

Hearing Should be in Open Court

The Right to open court is another principle of a fair trial. It is said openness of a court brings
more fairness to the trial. The right to open court is not just of the accused but is also a right
of the public. Sec-327(1) of Cr.PC provides for a trial in an open court. According to this
section open court refers to a place to which the general public may have access. This section
also gives the presiding judge discretion to deny the conduct of a criminal trial in an open
court.

Knowledge of Accusation and Providing Adequate Opportunity to Accused

One of the vital principles of a fair trial is that one should be given an adequate opportunity to
defend himself. It is possible only if the accused is aware of the charges framed against him.
Therefore sec-211 of the Cr.PC provides for the right of the accused to have a precise and
specific accusation.

Trial in Presence of the Accused

One of the principles of a fair trial is that the criminal courts shall not proceed ex parte
against the accused person. The presence of the accused is necessary for assisting him to
prepare his defence. A criminal trial in the absence of the accused is not supported by the
principles of natural justice.
Evidence to be Taken in Presence of Accused

Sec-273 of Cr.PC provides that all evidence to be taken in the presence of the accused or his
pleader when he is represented by one. Also, the court does not provide for the mandatory
attendance of the accused as sec-317 of the code provides the Magistrate with the power to
dispense the attendance of the accused if his personal attendance is not mandatory in the
interest of justice.

Cross-Examination of Prosecution Witnesses

In order to check the credibility of the witnesses, their cross-examination is necessary. The
prosecution should inform the court in advance of the witnesses he intends to bring. This is
based on the underlying principle of giving equal and fair chance to both the parties by means
of interrogation of witnesses. The accused should not be denied to examine the prosecution of
witnesses.

In the landmark case of Badri v. State of Rajasthan, 1976 the apex court held that where a
prosecution witness was not allowed to be cross-examined on a material point with reference
to his earlier statement made before the police, his evidence stands untested by cross-
examination and cannot be accepted as validating his previous statement.

Prohibition of Double Jeopardy

This concept of double jeopardy is based on the doctrine of autrefois acquit and autrefios
convict which means that if a person is tried and acquitted or convicted of an offence he
cannot be tried again for the same offence or on the same facts for any other offence. The
prohibition against jeopardy is also a Constitutional right recognized under Article 20(2) of
the Indian Constitution which provides that no person shall be prosecuted and punished for
the same offence more than once.

Sec-300 of Cr.PC is also embodied with the rule that once a person is convicted or acquitted
with an offence he should not be tried with the same offence or with the same facts for any
other offence.

Legal Aid
Every single person whether innocent or accused has the right to legal aid. This right is also a
constitutional right embodied in Article 22(1) of the Indian Constitution. The right to counsel
is one of the fundamental rights according to the supreme law in India. In the case of Khatri
v. State of Bihar, it was held that the accused is entitled to free legal counsel not only at the
stage of trial but also when he is first produced before the Magistrate and also when
remanded.

Article 39A has also been introduced by the 42nd Amendment in 1976 in Indian Constitution
to provide free legal aid to the persons who cannot afford a lawyer for his defence.
Sections 303 and 304 of Cr.PC also provide for the right to legal aid through a counsel to
every accused.

ARREST

Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an
offence. It is done because a person is apprehended for doing something wrong. After
arresting a person further procedure like interrogation and investigation is done. It is part of
the Criminal Justice System. In an action of arrest, the person is physically detained by the
concerned authority.

Types of Arrest

The term Arrest has been defined neither in the CrPC nor IPC (Indian Penal Code,1860). The
definition has not been provided even in any enactments dealing with Criminal Offences. The
only indication of what does an arrest constitute can be made out of Section 46 of
CrPC which deals with ‘How an arrest is made’.

If broadly characterized arrest is of two types-

1. Arrest made in pursuance with a warrant issued by the magistrate.

2. Arrest made without any warrant but within the established legal provisions.
Another type of arrest is Private Arrest in which a person is arrested by another person. But it
is allowed only in case a person commits a non-bailable offence in another person’s presence
or is apprehended of committing a crime against a person or his property.

Arrest by Warrant

The police cannot make such kind of arrest without a warrant. The warrant is issued by a
Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or
detention of the person or capture or seizure of an individual’s property. Section 41(1) of
CrPC 1973 explains when can a person be arrested without any warrant. Section 41(2) of
CrPC 1973 states that subject to the condition in Section 42, a person cannot be arrested
without a warrant and an order of the magistrate in case of non-cognizable offence and where
a complaint is made. The procedures to be followed while arresting a person find its mention
in Section 46 of the Code.

Arrest Without Warrant

41. When police may arrest without warrant.

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest
any person-
(a) who has been concerned in any cognizable offence, or against whom a reasonable
complaint has been made, or credible information has been received, or a reasonable
suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which
excuse shall lie on such person, any implement of house- breaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the
State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be
stolen property and who may reasonably be suspected of having committed an offence
with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of
the Union; or
 (g) who has been concerned in, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion exists, of
his having been concerned in, any act committed at any place out of India which, if
committed in India, would have been punishable as an offence, and for which he is,
under any law relating to extradition, or otherwise, liable to be apprehended or
detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-
section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifies the person to be arrested
and the offence or other cause for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested without a warrant by the officer
who issued the requisition.

Arrest on Refusal to Give Name and Residence

Section 42 of CrPC states the course of action in case of arrest on refusal to give name and
residence.

Section 42(1) provides that when a person has committed a non-cognizable offence refuses to
give his name or address or gives a false name and address on the demand of the officer, he
may be arrested by such officer to ascertain his correct name or residence.

Procedure of Arrest by a Private Person

The procedure of arrest by a private person is expressly provided in Section 43 of the

Criminal Procedural Code.

Section 43(1) states that a private person can arrest another person who commits a non-
bailable offence or any proclaimed offender and without wasting any unnecessary time can
be taken to a police officer and in the absence of the officer the accused has to be taken to the
nearest police station.
Arrest by Magistrate

Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1)
of CrPC when an offence is committed in the presence of a magistrate within his local
jurisdiction, he has the power to arrest that person himself or order any person for arrest and
subject to the conditions relating to bail, commit the accused to custody.

Procedure of Arrest

There is no complete code which provides the procedure as a whole. Still, Section 46
explains how arrest is made.

It is the only place that gives the meaning of arrest. Section 46(1) provides that in an action of
arrest the police officer or the person making the arrest shall actually touch or confine the
body of the person arrested. In the case of women, her submission to the custody of an oral
intimation of arrest shall be presumed and unless the police officer is female, she shall not be
touched by the police officer at the time of time. But in exceptional situations, contrary to
what is mentioned can be done.

According to Section 46(2), the police are authorised to use reasonable amount or means of
force to effect the arrest in cases where the person being arrested forcibly resists or attempts
to evade arrest.

Section 46(3) does not give the right to cause the death of the person who is not accused of an
offence. The punishment in such cases is death or imprisonment for life.

Section 46(4) says that except in certain conditions a woman cannot be arrested after sunset
and before sunrise and where such exceptional conditions exist, the woman police officer by
making a written report can obtain the prior permission of the Judicial Magistrate with the
local jurisdiction to make an arrest.

Additional powers for effecting arrest search of place

Section 47 of CrPC provides for the search of place entered by place sought to be entered. It
further provides that the person having the warrant has the duty to enter the premises of the
person being arrested. If the person is not able to easily ingress the premises or is not allowed
to enter, then they have the authority to break open the door. It is done to take the person by
surprise.

But if there is any female occupying the premises then the person arrested has to give notice
to that female to withdraw and shall afford every reasonable facility for withdrawing and they
may break the apartment.

Pursuit of offenders

Pursuit is the action of pursuing someone or something. In this case, it basically talks about
the offenders. Section 48 authorizes the police officers to pursue offenders in any place in
India whom he is authorised to do so without a warrant.

Power, on escape, to pursue and retake

Section 60 of CrPC– If there is a person who is in the lawful custody of the police tries to
escape or is rescued, may be immediately pursued and arrested in any place in India.

Post arrest procedures

Firstly, according to Section 50(1) of CrPC, it is the duty of the police officer or any person
arrested without warrant to inform the person arrested about the grounds of the offence for
the arrest.

Secondly, in the case where the arrest is made under a warrant, the police officer
under Section 75 CrPC is required to inform the person arrested about the substance of arrest
and if required to show the order. If it is not done the arrest will become unlawful.

Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show
before the magistrate without unnecessary delay (usually within 24 hours). It is also
mentioned that the person arrested cannot be taken to any place other than the police station
before presenting before the magistrate. This is provided in Article 22 with Section
56 and Section 76 of the CrPC.

Apart from this, the police officer always has to bear the clear, visible and proper
identification of his name which may facilitate his easy identification. As soon as the arrest is
made a memo should be prepared which is to be attested by at least one witness and
countersigned by the person arrested.

The arrested person also has the right to consult an advocate of his choice during
interrogation under section 41D and Section 303 of CrPC. Apart from these, there are many
other rights and procedures mentioned in the further part of the article.

Medical examination of accused

Section 52(1) provides that when a person who is arrested for a charge of the offence of such
a nature that there are reasonable grounds for believing that such examination will produce
evidence related to the commission of the offence. It is lawful for a registered medical
practitioner under the request of the police officer, not below the rank of sub-inspector to
carry about an examination with the use of reasonable force. But this force cannot be too
much.

Section 52(2) provides that when the examination is done of a female, it should only be done
by a female or under the supervision of a female registered medical practitioner.

Section 53A discusses the method of medical examination of a person accused of rape.
 RIGHTS OF AN ARRESTED PERSON

The Constitution of India has laid down some basic rights for the accused at the time of the
arrest. Rights like Right to be informed, right to be presented before a magistrate within 24
hours, right to consult a legal practitioner of choice finds a place in Article 22 as well in
CrPC.

Right to be informed of the grounds of arrest

Article 22 of the Constitution expressly provides Protection to an accused against arrest and
detention

Article 22(1) says that no person who has been arrested shall be detained in custody without
being informed of the grounds of arrest and nor shall be denied the right to be consulted and
defended by a lawyer of choice.

Section 50(1) CrPC also mentions that every police officer or any other person arrested
without a warrant has the duty to inform all the particulars of the offence to the accused
forthwith (immediately).
The rules originating from the decisions such as Joginder Singh v. State of U.P. and D.K.
Basu v. State of West Bengal have been enacted in Section 50-A making it obligatory on the
part of the police officer not only to inform the friend or relative of the arrested person about
his arrest etc. but also to make an entry in a register maintained by the police in the police
station. The magistrate who is observing such arrest is also under an obligation to satisfy
himself about the compliance of the police of all the procedures in this regard.

Right to be released on bail

Section 50(2) CrPC provides that “where a police officer arrests any person other than a
person accused of a non-bailable offence without warrant, he has the duty to inform the
arrested person that he is entitled to be released on bail and he may arrange for sureties on his
behalf.”

Right to be produced before a magistrate

Article 22(2) of the Constitution provides that every person who is arrested should be
presented before the nearest Magistrate within 24 hours of such arrest, excluding the time of
journey from the place of arrest to the place of magistrate. No person will be detained in
custody of the police beyond the said period without the authority of the magistrate.

Section 56 and 57 of CrPC also provides for the same. If the person arrested is not presented
before the Magistrate within the reasonable time and without a just reason, the arrest will be
unlawful.

Protection against arrest and detention

Article 22(1) talks about the duty to inform the accused of the grounds of arrest and to
consult a lawyer of choice. Article 22(2) makes it mandatory for the police officer to present
the person arrested before a magistrate within twenty-four hours and cannot be detained
beyond the said period.
Article 22(4) provides that no person can be detained beyond the period of three months
except on the recommendation of the Advisory Board. The person detained should be
communicated the reason for detention as soon as possible and give him the earliest
opportunity to make a representation against the order.

Right to consult a legal practitioner

Article 22(1) and Section 41D CrPC gives the accused the right to be consulted and defended
by a legal practitioner of choice.

Right to free legal aid

Article 39A (Directive Principles of State Policy) provides that it is the duty of the state to
provide justice on easily accessible terms so that every citizen can easily approach the courts
to enforce their rights. It ensures to provide justice based on equal opportunity through free
legal aid or legislation favouring people who cannot access justice because of economic
conditions or any other difficulty. For this, institutions like Legal Service Authorities are
established at National, state and district levels.

Hussainara Khatoon v. State of Bihar

In the case of Hussainara Khatoon vs. State of Bihar, a Public Interest Litigation (PIL) was
filed in the name of Hussainara Khatoon, a prisoner in a jail in the Supreme Court. The Court
held that if an accused is not able to afford the legal services he has the right to free legal aid
at the cost of the state. It is one of the duties of the state to provide a legal system which
promotes justice on the basis of equal opportunity for all citizens who are denied access to
justice because of economic conditions or other disabilities. Therefore, they must arrange for
free legal services for the individuals.

Right to be examined by a medical practitioner

Section 54(1) CrPC gives a right to the accused to proceed with a medical examination of his
full body in case this examination will afford evidence which can disprove the commission of
an offence or crime on him or prove the commission by any other person at the time when he
is presented before the magistrate or at any time during the detention. It can happen with the
permission of the magistrate but if he thinks it is done just to cause a delay, he has the power
to cancel it.

Joginder Kumar v. State of UP

A petition was filed under Article 32 by a young lawyer. The Supreme Court held that it is
the right of an accused to be informed of the grounds of his offence, informed someone of his
arrest and to consult a lawyer are inherent in Article 21 and Article 22 of the Constitution. It
was also held that a police officer cannot arrest just because he has the power to do so. It
should exhibit a clear justification for every arrest. Since there is some amount of harm
caused to the reputation of a person when he is put behind bars. Therefore, every arrest
should happen after reasonable satisfaction and the minimum level of investigation as to the
genuineness and bona fides of a complaint. Apart from these certain guidelines, were also
provided that needed to be necessarily followed at the time of the arrest. This case law is
taken into consideration for looking for rules apart from those mentioned in CrPC.

PROCESS TO COMPEL APPEARANCE

The process to compel the appearance

The basic requirement for the progress of the trial in crime is the appearance of the accused
that have been defined under Chapter VI of The Criminal Procedure Code that deals with
aspects of the process.

Summons

The most basic and mildest form of the process is the summons which may be issued in order
to make the document or a thing appear. Summons are issued in duplicate under the seal of
the court that is required to be solved by the police officer of the court or any public servant
to someone personally.

Summons include the clear and specific title of the suit and place and includes date and time
whenever a search appearance of a person or a thing is required.
A brief description of the charged offences is provided in the summons.

The power to issue a summons in the hands of the police which directs a person to be present
for some investigations. Whenever corporation services are to be served, a summon is
presented to the secretary or principal officer of that corporation address to the chief officer
of the company. Summons can also be issued on banking sectors.

Whenever it happens that a person summoned on a specific day or not found the person’s
adult family male member are served the summons again who is required to sign the receipt
whenever that person is found. but in cases where summons cannot be served according to
the above-mentioned procedure the person serving the summon shall appoint one of the
summonses to be a part of the house.

Whenever a person to be given to someone is in any government service the court is required
to send someone to the head of the office under which such person has been employed.
Whenever the court does not have a jurisdiction to send the summon it may send it to the
magistrate under whose jurisdiction the summon can be sent to the person where he
ordinarily resides.

Whenever someone is sent to the witness it must be sent by registered post.

Warrant

Whenever a person fails to appear for or whenever you think feels to appear before the court
on the said date through the issue of summons they may be issued a warrant of arrest
directly.

Unless and until the court which issues such warrant cancels it or unless the warrant has been
executed the warrant of arrest shall remain in force.

The essential requirements of a valid warrant are:

 The warrant should be in a prescribed form and in writing.

 It should include the name and designation of the person who is executing it.
  It must provide the full name and description of the person to be arrested.
 It must include the offences that are charged against the person to whom the
warrant is issued.
 It must be sealed.
 It must be signed by the officer of the court.

A bailable warrant may be issued to a person where there is the involvement of offence
related to a minor case.

A warrant should always be directed to the person in charge of a police station. It can also be
directed by the court if there has been furnished mint of sufficient surety and security by the
person that his attendance may be taken and he may be released on bail. Such warrants are
called bailable warrants.

Execution of warrant can happen at any place in India by the way of a court which can send
the warrant to the superintendent of the police residing in that area and having jurisdiction
over that area.

Whenever there are reasons to believe that a person against whom the warrant has been
issued is concealing himself, proclamation can be issued by the court which can be published
in the manner which has been directed by the court including in the newspapers and other
direct attachment of property. A receiver office property can also be appointed by the court.
Whenever a proclaimed person appears the attachment can be cancelled and if the court has
few reasons to believe the abscondment of the person or the person has not obeyed or will not
obey their summons the warrant of arrest may be issued.

The controlling officers of the area where the police have sent the summons or warrant are
required to know the position of the summons and warrants.

The process to compel the production of things

For the purpose of investigation and prosecution, the process of comparing the production of
documents or a thing is necessary. it is because unless and until the document or a thing that
is required to be presented before the court is presented the trial may be delayed.
Whenever a requirement is thereby the court or any officer in charge of the police station of
the production of any document of thing that is necessary for the investigation trial enquiry or
any other proceedings of the quote then someone may be issued or written order by an officer
may be directed towards a person in whose position the document writing lies and require
him to be present with the document or produced it any which ways.

Another important mechanism in the Criminal Procedure Code for production of things or
documents is the search warrant. This warrant is issued only when there are reasonable
grounds for the court to believe that the person to whom it is to be issued will not or may not
produce a particular document or thing. These warrants include a particular place or a part to
be searched.

According to Section 97 of Criminal Procedure Code, the court has the power to direct the
search of the places where suspension regarding stolen property and forged documents are
present and prove that process if any persons are found to be wrongfully seizing documents
for a thing he may be called upon by the court.

The power to seize property is also in the hands of the police officer. The property has to be a
list or suspected to have been stolen or suspicious of some offences. Magistrate under the
jurisdiction has to be informed of such seizure.

Proclamation of offender and attachment of properties

Whenever a warrant has been issued against a person who has been absconding or concealing
himself, and because of that search warrant cannot be executed or written notice can be
published by the court for the person to appear at a specified place and within a specified
time that is not less than 30 days from the date of publishing such notice. After the issuance
of such proclamation if the person again fails to be present at the specified place and time and
he is avoiding himself from being arrested the court can issue an order to attach his properties
in order to compel the appearance of the person.

The warrant in lieu of summons

Whenever any summons is issued to a person he is bound by the bond to appear before the
court. Even after this if it does not appear the presiding officer can issue a warrant for the
person to be arrested and to be produced before the court.

LIMITATION ON TAKING COGNIZANCE

Introduction

Provisions relating to limitations for taking the cognizance of an offence are prescribed
in Chapter XXXVI (from Section 467 to 473) of the Code.

Limits to Take the Cognizance of Offences

It is well-established fact that the power vested on Magistrate to take the Cognizance of
offence is not an absolute power and is subjected to the limitations which have been provided
in the Chapter XXXVI (section 467 to 473) of the Act itself.

Section 467
This section is inserted with the purpose of determining the limitations and scope that exists
with regard to the specified period of taking cognizance of an offence as provided under
Section 468.

For the purpose of this chapter, “period of limitation” is prescribed as the period specified for
taking the cognizance of offence as specified in Section 468 unless the context otherwise
requires.

Section 468: Bar to take the Cognizance of an offence

 No Court shall take the cognizance of an offence after the expiry of the prescribed
period as specified in subsection (2)
 The period of limitation shall be:

Offence punishable with Period of Limitation

Fine only 6 months

Imprisonment not exceeding 1 year 1 year

Imprisonment:

Minimum of 1 year
3 years

Maximum of 3 years

In computing the period of limitation for the offence when two offences are tried together;
the period of limitation shall be determined in pursuance of the offence which is punishable
with the more severe punishment or the most severe punishment.

Non- Applicability of Section 468

Section 469: Beginning of period of limitation

The period of limitation commences from the following points:

1. On the day when the offence was committed

2. When the person aggrieved by the act had no knowledge regarding the commission
the offence or the police officer; it begins on the day when it comes to the knowledge
of the aggrieved party or police making an investigation into the case whichever is
earlier.
3. When the person who has committed an act is unknown or not being identified, the
first date on which the accused was known either to the aggrieved person or to the
police officer making an investigation into the case whichever is earlier.

Section 470: Exclusion of Time in certain cases

This section provides the period which shall not be included in computing the period of
limitation.

The period of limitation that is to be excluded in computing the period of limitation is

explained below:

 The time during which such person is prosecuting another prosecution with due
diligence whether it is a court of Appeal, or in the Court of the first instance
against the offender.

In the case where the institution of proceeding is stayed by the order or injunction, the time
shall exclude:

1. The period during the continuance of such order or injunction.

2. The day on which it was made or was issued.
3. The day on which it was withdrawn.

In a case where the notice of prosecution of offence is given or the previous consent or the
sanction of the Government is mandatory under this law or any other law for the time being
in force the time during which: -

1. The period of notice or;

 2. The period for obtaining the consent or sanction of the Government shall be
excluded.
3. It also specifies that the time which is required for taking the sanction or the
permission from the Government or any other authority -The date on which the
application was made for taking the consent or sanction and;

The date on which the permission or the consent was granted shall be excluded.

 In computing the period of limitation such period is to be excluded

1. The time during which the offender is absent from India or from any territory
which is outside from India but is under the administration of Central Government.
2. The time during which the offender has avoided arrest either by concealing
himself or either by absconding.

Section 471: Exclusion of date on which court is closed:

The day when the Court is closed is excluded from being accredited to the specified period of
limitation.

It is a rule that in the case when the period of limitation expires on the day of the closure of
court proceedings the cognizance of an offence is taken when the court reopens.

When the court closes on normal working hours for a particular period it is presumed that the
Court has been closed for the same day.

Section 472: When the offence continues:

When the offences continue or are in the process of happening; fresh limitation begins to run
at every moment, the offence is replicated throughout the full term that it continues.
 FRAMING OF CHARGES

Purpose of Charge Framing

The initial requirement under the code for a free and fair trial is to inform the accused
precisely and accurately, of the offence he is charged him so as to give him a fair opportunity
to prepare his defence.

Contents of Charge

Section 211 and 212 of the Code prescribe the forms and contents of the charge. However,
when the nature of the case is such that the offence in question cannot be described properly
by the particulars as mentioned in the aforesaid sections, so as to give the accused sufficient
notice of the offence with which he is charged, then the manner in which the offence was
committed by the accused shall also be contained in the particulars of the charge.

According to Section 211 of the Criminal Procedure Code, every charge under the code shall
include the following:

 The offence with which the accused is charged;

 If any law gives the offence any specific name, then the description of that charge
by that name only;
 The definition of the offence, under the law that does not give any specific name to
the offence, so as to give notice of the matter to the accused of which he is
charged;
 The law and the section of the law against which the offence is said to have been
committed.

Particulars as to Time, Place and Person

According to Section 212 of the Code, in order to give sufficient notice of the matter to the
accused of which he is charged, then the charge shall contain the following components:

 Time and place of the alleged offence;

 The person (if any) against whom the offence was committed;
 The thing (if any) in respect of which the offence was committed by the accused.

It should be noted that in case an offence is committed which is of the nature of the criminal
breach of trust or dishonest misappropriation when the exact amount in question cannot be
determined, then, in the said charge it shall be sufficient to specify the gross sum of money or
movable property, as the case may be, in respect of which the offence was committed.

Effect of Error

According to Section 215 of the Code, any error in stating the offence or any error in stating
the particulars required to be mentioned in the charge shall not be material at any stage of the
case. In addition, any omission to state such offence or the particulars of the charge shall be
immaterial. However, if such error or such omission has misled the accused or if it has
occasioned the failure of justice, then such error or omission shall be considered material.

In order to understand the provisions in case of an error in charge Section 215 and 216 must
be read with Section 464 of the Code.

When Court Can Alter or Amend Charge

Section 216 states the conditions under which the Court can alter or amend or add to any
charge:

 Before the judgement is pronounced, the Court can alter or amend any charge;
 Such alteration or addition has to be read and explained to the accused;
 If in the opinion of the Court, the addition or alteration to the charge does not
prejudice the accused in his defence or the prosecutor in the conduct of his case,
then the Court may alter or amend the charge and proceed with the trial according
to its discretion;
 But if the Court is of the opinion that the alteration or addition to the charge is
likely to prejudice the accused or the prosecutor as aforesaid, then following the
alteration or amendment, the Court may, at its discretion either direct a new trial or
adjourn the trial for such period as it may consider necessary;
 If the previous sanction is necessary to be obtained for the prosecution of the
offence stated in the altered or added charge, then the Court shall not proceed with
the case until such sanction is obtained.

Basic Rule as to Charge and Trial of Charge

Section 218 to Section 224 of the Code deal with the Joinder of charges (which means that in
certain cases more than one accused may be tried for the charge of the same offence).

Section 218 of the Code deals with the basic rule as to the trial of the accused. Sections 219,
220, 221 and 223 of the Code deals with the exceptions to the basic rule. Section
222 provides for the circumstances under which the accused can be convicted of an offence
he was not charged with at the beginning of the trial. Section 224 deals with the withdrawal
of remaining charges when one of the several charges has received a conviction.

Section 218 of the Code states that for every offence the person is accused of, there shall be a
separate charge and each of that charges shall be tried by the Magistrate separately. However,
if the accused person desires and requests the Magistrate in writing and the Magistrate is of
the opinion that such a person would not be prejudiced in the case, the Magistrate may try
together all the charges or any number of charges as he may deem fit.

Exceptions to the Basic Rule

Trial of Three Offences of the Same Kind Within a Year

Section 219 of the Code states that when a person has committed more than one offence of
the same kind within a span of twelve months from the first to the last offence, whether in
respect of the same person or not, he may be charged with or tried at one trial for any number
of offences, which shall not exceed three.

Trial for More Than One Offence

 According to Section 220 of the Code, when the series of acts are such that they
are so connected that they form part of the same transaction and more than one
offence is committed by such series of acts, then the accused may be charged with
and tried for every such offence in one trial.;
 In case the person is charged with one or more offences of criminal breach of trust
or dishonest misappropriation of property as provided in sub-section (2) of Section
212 or in sub-section (1) of Section 219 of the Code, and when the person is
accused of committing one or more offences of falsification of accounts for the
purpose of facilitating or concealing the commission of that offence, then he may
 be charged with every such offence and may be tried for all such charges at one
trial;
 If the acts mentioned above constitute an offence falling within two or more
separate definitions of any law for the time being in force then the accused person
may be charged with such offences and tried for them at one trial;
 In case of several acts when either one act by itself or more than one of those acts
by themselves constituting an offence, combine together to constitute a separate
offence, then the person accused of them may be charged with the offence
constituted by such acts combined or for any offence constituted by one of those
acts or more than one of those acts.

When it is Doubtful What Offence has been Committed

Section 221 of the Code states that if a single act or series of acts is of such a nature that it is
doubtful which of several offences such acts shall constitute, the accused may be charged
with all or any of such offences and any number of those charges may be tried at once.

If such a case arises when the accused is charged with one offence but the evidence shows
that he committed a different offence for which he might be charged with under the
provisions of sub-section (1), then he may be convicted of the charge of offence of which the
evidence shows to have been committed, even though he was not charged with it at the
beginning of the trial.

Persons Who may be Charged Jointly

Section 223 of the Code provides a list of persons who may be charged jointly. It includes the
persons accused of:

 The same offence committed in the course of the same transaction;

 An offence of abetment of, or attempt to commit an offence;
 More than one offence within the meaning of Section 219;
 Different offences committed in the course of the same transaction;
  an offence which includes theft, extortion, cheating, or criminal misappropriation,
and persons accused of receiving or retaining, or assisting in the disposal or
concealment of, property possession of which is alleged to have been transferred
by any such offence committed by the first-named persons, or of abetment of or
attempting to commit any such last-named offence;
 An offence under sections 411 and 414 of the Indian Penal Code or either of those
sections in respect of stolen property the possession of which has been transferred
by such offence;
 any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to
counterfeit coin and persons accused of any other offence under the said Chapter
relating to the same coin, or of abetment of or attempting to commit any such
offence; and the provisions contained in the former part of this Chapter shall, so
far as may be, apply to all such charges.

However, when a number of persons are charged with separate charges and they do not fall
within the categories of any persons mentioned in section 223, they may apply in writing to
the Magistrate or the Court of Sessions, as the case may be, and the Magistrate or the Court
of Sessions upon satisfaction that the case would not be prejudiced may try all such persons
together.

The provisions regarding the exceptions to the basic rule as mentioned in Section 219, 220,
221 and 223 are only enabling in nature. It is the discretion of the court whether to apply
these exceptions and try the charges jointly or not.

JUDGMENT

Object and Scope

Chapter XXVII of the CrPC, 1973, deals with Judgement. However, there is no definition of
“judgement” present in the Code, but it is to be understood as the final order of the Court.

Form and contents of the judgment under Section 353

 1. Section 353 The judgment in every trial in any Criminal Court or original jurisdiction
shall be pronounced in open Court by the presiding officer immediately after the
termination of the trial.
2. Notice of the judgement should be given by-
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the substance
of the judgment in a language which is understood by the accused or his
pleader.
3. Then the presiding officer shall cause it to be taken down in short-hand, sign the
transcript and every page of the judgment as soon as it is made ready, and write on the
judgment the date of the delivery of the judgment in the open court.
4. After the judgment is pronounced the whole judgment or a copy shall be immediately
made available for the perusal of the parties or their pleaders free of cost.
5. If the accused is in custody, he shall be brought up to hear the judgment pronounced.
6. If the accused is not in custody, he shall be required by the Court to attend to hear the
judgment pronounced, except where his personal attendance during the trial has been
dispensed with and the sentence is one of fine only or he is acquitted.
7. No judgment delivered by any Criminal Court shall be deemed to be invalid by reason
only of the absence of any party or his pleader on the day or from the place notified
for the delivery thereof, or of any omission to serve, or defect in serving, on the
parties or their pleaders, or any of them, the notice of such day and place.

Language and contents of judgment

1. Under Section 354, of CrPC, it is stated that every judgement should be:
a. In the language of the Court.
b. Shall contain the points of determination and the reason for the same.

2. The offence should be specified and the reason for the same should be given for the
same. The offence so committed must be mentioned in the IPC or any other law under
which the crime is committed and the punishment is given.
3. If the offender is acquitted, the offence for which he was acquitted, the reason for the
same and it must be specified that a person is now a free man.
 4. If the judgment is passed under the IPC and the judge is not certain as to under which
Section the offence is committed or under which part of the Section, the judge should
specify the same in the judgement and should pass orders in both the alternate
situations.
5. The judgement shall furnish a proper reason for the conviction if it is a sentence for a
term of life imprisonment and in case of death sentence the special reason has to be
given.

VICTIM COMPENSATION

Under Section 357A of the CrPC, every State Government has to coordinate with the Central
Government and prepare a scheme for providing funds for the purpose of compensation to the
victim or his dependents who have suffered loss or injury as a result of the crime and also
require rehabilitation.
Whenever a recommendation is made by the Court for compensation, the District Legal
Service Authority or the State Legal Service Authority will decide the quantum of
compensation to be awarded under the scheme.
The State or the District Legal Services Authority, as the case may be, to alleviate the
suffering of the victim, may order for immediate first-aid facility or medical benefits to be
made available free of cost on the certificate of the police officer not below the rank of the
officer in charge of the police station or a Magistrate of the area concerned, or any other
interim relief as the appropriate authority deems fit.
Moreover, under Section 357B The compensation payable by the State Government under
Section 357A shall be in addition to the fine to the victim under Section
326A, 376AB, 376D, 376DA, 376DB of the IPC.
In Section 357C, all hospitals, private or public, whether run by the Central Government,
State Government, local bodies or any other person, shall immediately, provide the first-aid
or medical treatment, free of cost, to the victims of any offence mentioned under Section
326A, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or Section 376E of the IPC,
and shall immediately inform the police regarding the incident.

MAINTENANCE

Introduction

The term maintenance has not been defined by the Code of Criminal Procedure, 1973.
Section 125 to Section 128 of the Code has made provisions for maintenance of wives,
children and parents.
Section 125 is a substantive provision conferring a right of maintenance on certain persons
even though the Code is a procedural law.

Nature and Scope

1. According to Section 125 if any person having sufficient means neglects or refuses to
maintain his wife, children or parents who are unable to maintain themselves, a Judicial
Magistrate First Class may order such person to pay maintenance to them.
2. Section 125 serves a social purpose preventing starvation, destitution and vagrancy of
dependants.
3. The word maintenance has liberal interpretation and includes appropriate food clothing and
shelter and other basic necessities.
4. Under section 125, the Magistrate is conferred with preventive Jurisdiction and not
punitive or penal.

Constitutional basis of the provisions relating to maintenance

i. Article 15(3) of the Constitution states that nothing shall prevent state from making laws
for women and children and therefore section 125 is enacted.
ii. According to Article 39 of the Constitution, men and women equally have the right to an
adequate-livelihood.
iii. Section 125 safeguards the rights of women and children and parents which are weaker
sections of the society and therefore cannot be said to be arbitrary to Article 14.

Who may claim maintenance?

Under Section 125 following persons can claim maintenance :

1.Wife
i. Any person’s wife who is unable to maintain herself can claim maintenance from such
person even if she is a minor.
ii. Only a legally married wife can get maintenance and second wife or mistress cannot get
maintenance.
iii. A wife who has been divorced and has not remarried is entitled to maintenance.

2.Children
i. Legitimate or illegitimate minor child, whether married or not, unable to maintain itself can
claim maintenance under Section 125. A minor is a person who has not attained the age of
majority under the Indian Majority Act.
ii. The liability of a father will continue to maintain his married minor daughter till she attains
the age of majority, if her husband is a minor too.
iv. A child is not entitled to claim maintenance after attaining majority unless it is unable to
maintain itself by reason of any physical or mental disability. If the child is a married
daughter, it is her husband’s responsibility to maintain her.
v. Right of the child to claim maintenance from the father is independent from the right of the
mother. Therefore, a child is entitled to claim maintenance even if the mother is not entitled.

3.Parents
i. A person has to maintain his father or mother, unable to maintain himself or herself.
ii.Such parents include step-father and step-mother or adoptive mother.
iii. A married daughter may also be held responsible for maintaining her parents. Married
daughter can also be liable to maintain her parents.

Conditions
i. For being entitled for maintenance under section 125, the applicant must be unable to
maintain himself/herself.
ii. The respondent against whom maintenance is claimed must have sufficient means to
maintain the applicant.
iii. A wife claiming maintenance:
a. must not be living in adultery
b. must not have refused to live with her husband without sufficient reasons.
c. must not be living separately by mutual consent.

Procedure: S.126

1. Proceedings may be initiated against a person in any district based on:

i. his residence
ii. his or his wife’s residence
iii. where he last resided with mother of illegitimate child
2. Evidence has to be recorded by the Magistrate in the presence of bot the parties or in the
presence of their pleaders.
3. According to proviso of section 126, if a person is willingly avoiding service or willingly
neglecting to attend the court then the Magistrate can pass an ex-parte order.
4. Such an ex-parte order can be challenged within 3 months by showing good cause for not
appearing.

Amount of Maintenance

1. Prior to the Amendment Act of 2001, amount of maintenance was fixed at Rs. 500 but such
limit was subsequently removed.
2. Considering the facts and circumstances of the case the Magistrate may grant any amount
of Maintenance.
3. The amount of maintenance may be calculated from wither the date of the order or from
the date of maintenance.
4. The Magistrate may pass an order for granting interim maintenance.

Alteration and Cancellation S.127

i. Maintenance once granted may be altered or cancelled according to the facts and
circumstances of each case. Few grounds of alteration and cancellation are as follows-
a. wife is living adultery
b. wife refuses to live with husband without sufficient cause
c. mutual consent
d. divorce
e. remarriage, etc.

Enforcement S.128

Order of maintenance, against whom it is granted, may be supplied with a copy thereof free
of cost. Such an order may be enforced by a Magistrate anywhere in India where the person
against whom such an order is made resides.

Mode of enforcement

1. Warrant for levying amount:

A Magistrate may issue warrant for levying such dues of maintenance as if it were a fine and
can sentence such a person to imprisonment which may be up to one month. Property of a
person may be attached by a Magistrate in case of non-payment.
2. Limitation
An application to issue warrant must be made within one year from the date on which
maintenance became due.

SECURITY FOR KEEPING PEACE AND GOOD BEHAVIOUR

Chapter 8 of the criminal procedure code discusses the provisions related to the security for
keeping the peace and for good behaviour. In the essence of the code, here security refers to
furnishing guarantee to the satisfaction of the Court that a certain conduct is mandatory to be
maintained for a certain period by a certain person concerning a certain thing. This procedure
takes place in the shape of a bond to be executed by such person from whom security is
demanded. It may occur with sureties or without sureties.
A) Section 106– Security for keeping the peace on conviction.
B) Section 107– Security for keeping the peace in other cases.
C) Section 108-Security for good behaviour from persons disseminating seditious matters.
D) Section 109– Security for good behaviour from suspected persons.
E) Section 110– Security for good behaviour from habitual offenders.

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

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

2. The offences in connection with which security can be taken under the section are:-
a. Except an offence punishable under section 153 A or section 153 B or section 154,
any offence punishable under chapter VIII of the Indian Penal Code,
b. Offences consisting of, or including assault or using criminal force or committing
mischief;
c. Offences of criminal intimidation
d. Any other offence which caused or was intended or known to be likely to cause a
breach of peace.

Section 107 OF CrPC – Security for keeping the peace in other cases

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

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

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

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

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

(a) Any matter the publication of which is punishable under section 124A or section
153A or section 153B or section 295A of the Indian Penal Code (45 of 1860), or

(b) Any matter concerning a Judge who acts or purports to act in the discharge of his
official duties which amounts to criminal intimidation or defamation under the Indian
Penal Code.

(ii) In any case is making, producing, publishing or keeping for sale, imports, exports,
conveying, selling, letting to hire, distributing, publicly exhibiting or in any other manner is
putting in circulation any obscene matter such as is referred to in section 292 of the Indian
Penal Code ( 45 of 1860 ), and the magistrate opines that there is sufficient ground for
proceeding, then he may, in the manner provided, require such person to show cause why he
should not be ordered to execute a bond, with or without sureties, with regard to his good
behaviour for such period, not exceeding one year, as the Magistrate thinks fit.
Section 109 of CrPC– Security for good behaviour from suspected persons:

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

SECTION 110 of CrPC – Security for good behaviour from habitual offenders:

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

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

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

TRANSFER OF CASES UNDER CRPC

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

Transfer of cases and appeals by SC

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

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

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

The application under Section 406 of the Code is made by the interested party should always
be in the form of motion supported by an affidavit or affirmation, except in the cases where
the applicant is the advocate general or attorney general of the country.

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

Grounds for transfer of appeal and cases

 To uphold the spirit of justice

 Recommendations made by the superior judicial officers
 Upon request by the trial court
 Lack of complete jurisdiction
 Differences between the party and the judicial officer
 Infringement of principles of natural justice

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

Transfer of cases and appeals by HC

Section 407 of the Code of Criminal Procedure empowers the High Courts to transfer cases
and appeals.
The High Court has the authority to transfer the cases when it is satisfied that:

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

The High Court on being satisfied with the presence of the above-mentioned grounds can
order any of the following:

 The offence which is inquired into or tried by any Court subordinate to it be

inquired by any other court which is inclusively under both Section
177 and Section 185 of the Code is not qualified but is otherwise competent to
inquire into or try offences like the ones which are in question;
 Where a particular case or appeal is pending before any criminal court which is
subordinate to it to any other criminal court which is having equal or superior
jurisdiction in comparison to the High Court;
 The particular case be laid down before the court of Sessions for hearing;
 The particular case or appeal be laid down before the High Court itself.

At whose instance the powers of transfer are exercised

The High Court exercises its power of transfer of cases at the following instances:

 When the lower court submits the report for transfer of an appeal or case to the
High Court;
 Where the interested party lays before the High Court, an application requesting
the transfer of a case or appeal;
 The High Court in its own discretion can transfer a case or appeal if it is satisfied
with the fact that it would be in the best interest of the parties to the suit.

Stay of proceeding to the subordinate court

Section 407(6) of the Code contains provisions relating to the stay of proceedings which are
going on in any subordinate court. The provision states that where the application for the
transfer of cases from any subordinate court is lying before the High Court. The High Court,
may if it deems fit in the interest of justice, stay the proceedings in the subordinate court on
such terms which it finds appropriate. However, if such an order is made by the High Court,
it should not have any impact on the sessions court’s power to remand which is guaranteed to
it by Section 309 of the Code.

Where the application is dismissed by the High Court

Subsection 7 of Section 407 of the Code contains provisions regarding the cases where the
High Court dismisses the application made to it under subsection 2 of Section 407 of the
Code. If the High Court finds that the application for the transfer of appeal or case was
vexatious and frivolous, it may order the applicant to pay a compensation of an amount not
exceeding one thousand rupees to any person who had opposed the application made by the
applicant. The court in such cases decided the compensation keeping in view, the facts and
circumstances of the case.

Transfer of cases and appeals by the sessions judge

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

 Section 408(1) provides that whenever a Sessions Judge finds it expedient to

transfer a case to meet the ends of justice. He has the authority of transferring such
cases from one criminal court to another criminal court within his session’s
division;
 Section 408(2) provides the instances on which the Sessions court can transfer the
cases. The Section provides that the authority to transfer the cases with the
Sessions Court can be exercised by it at the instance of the report in this regard
submitted to it by the lower court, application in this regard submitted by the
interested party or the court may exercise the power at its own discretion;

Withdrawal of cases and appeals by Sessions Judges

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

Withdrawal of cases by Judicial Magistrates

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

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

Making over or withdrawal of cases by Executive Magistrates

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

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

Remission in basic terms means to reduce the duration of the term of the sentence.
Suspension, on the other hand, means to postpone the sentence without changing its duration.
The above two do not interfere with the nature of the sentence. Commutation, in contrast,
changes the nature of the punishment and turns it into a less severe one.

Constitutional provisions

Under Article 72, the President has the power to pardons, reprieves, respites or remission of
punishment or to suspend remit or commute the sentence of any person convicted of any
offence:

 In cases where the punishment is given by the court-martial. The Governor’s

power to remit, suspend or commute the sentence under the laws of the State, shall
be given precedence.
 In cases where the power of executive extends.
 In cases where the punishment is a death sentence.

Similarly, under Article 161 of the Constitution of India, these powers are conferred on the
Governor of the States. The Governor can pardon, reprieve, respite a punishment or suspend,
remit or commute the sentence, which is given on the basis of the laws prevalent in the State,
to which the executive power of the State extends.

Suspension or remission of sentences

The suspension is the stay or postponement of the execution of the sentence. In remission, the
duration of the sentence is reduced, without changing the nature of the sentence. Remission
and suspension differ to a large extent. In remission, the nature of the sentence is remained
untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone.
For example, a person sentenced for a term of two years, his sentence is now reduced to one
year. The effect of the remission is that the prisoner is given a certain date on which he shall
be released and the eyes of the law he would be a free man. However, in case of breach of
any of the condition of remission, it will be cancelled and the offender has to serve the entire
term for which he was originally sentenced.

The procedure followed is given under Section 432 of CrPC. The government would ask the
opinion of the court which gave such a sentence. The court would revert with proper records.
The government can grant or reject the application for remission and suspension if in its view
all the conditions necessary for such a grant are not fulfilled. the offender may if at large, be
arrested by any police officer without a warrant and is to undergo the unexpired portion of the
sentence. The power of remission is wholly an executive action. There is no law as such to
question the legality of this action, but the government should use this power fairly and not in
an arbitrary manner. However, the court must consider the limitation provided under Section
433A of the CrPC, 1973. The power of remission and suspension should not in any way
interfere with the conviction of the court, it should affect the execution of the sentence.

Commutation of sentence

In contrast to Suspension and Remission, which only affect the duration of the punishment
without interfering with the nature of the punishment, Commutation, on the other hand,
changes the nature of the punishment and converts it into a less severe form of punishment.

There is nothing to restrict the government to commutate a sentence, even if it is as low as a

fine. Under Section 433 of the CrPC, the appropriate government gets the power to
commutate the sentence in an appropriate case. Various sentences are eligible for
commutation, one of them is death sentence i.e. mercy plea.

 Death sentence to any other punishment provided in the IPC.

 Imprisonment for life to any other imprisonment not exceeding fourteen years or
fine.
 Sentence of rigorous imprisonment for simpler imprisonment which the person has
been sentenced or a fine.
 Sentence for a simple sentence to a fine.
Section 433 of the CrPC gives the power to the government to commutate the death sentence
to a simpler sentence.

Restriction on powers of remission or commutation in certain cases

Section 433A of the CrPC puts a restriction on the power of the President and the Governor
that they can’t commutate the death sentence to less than 14 years of life imprisonment. In
absence of any order under Section 51 of the IPC or Section 433A of the CrPC, the convicts
are not released even after the expiry of 14 years of imprisonment.

Moreover, remission can be granted under Section 432 of the CrPC in case of a definite term
of sentence. The power is to grant “additional” term of imprisonment which is over and
above the remission granted to convict under the jail manual or statutory rules. In case of an
indefinite sentence, like that of life imprisonment, may remit or suspend the sentence of the
person but not on the basis that such imprisonment is arbitrary or on the assumption that it is
for twenty years.
 PLEA BARGANING

Plea Bargaining in India

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

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

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

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

Section 265-B (Application for Plea Bargaining)

A person accused of an offense may file the application of plea bargaining in trails which are
pending.

The application for plea bargaining is to be filed by the accused containing brief details about
the case relating to which such application is filed. It includes the offences to which the case
relates and shall be accompanied by an affidavit sworn by the accused stating therein that he
has voluntarily preferred the application, the plea bargaining the nature and extent of the
punishment provided under the law for the offence, the plea bargaining in his case that he has
not previously been convicted by a court in a case in which he had been charged with the
same offence.
The court will thereafter issue the notice to the public prosecutor concerned, investigating
officer of the case, the victim of the case and the accused of the date fixed for the plea
bargaining.

When the parties appear, the court shall examine the accused in-camera wherein the other
parties in the case shall not be present, with the motive to satisfy itself that the accused has
filed the application voluntarily.

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

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

If in a meeting under section 265-C, a satisfactory disposition of the case has been worked
out, the report of such disposition is to be prepared by the court. It shall be signed by the
presiding officer of the Courts and all other persons who participated in the meeting.

If no such disposition has been worked out, the Court shall record such observation and
proceed further in accordance with the provisions of this Code from the stage the application
under sub-section (1) of section 265-B has been filed in such case.

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

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

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

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

Benefits of Plea Bargaining

1. Fast disposal of cases

2. Less serious offenses on one’s record
3. A hassle-free approach
4. It avoids publicity
 COMPOUNDING OF OFFENCES

To compound means “to settle a matter by a money payment, in lieu of other liability.” In
criminal law, the power to compound the offence is at the discretion of the victim. Object of
Section 320 of the Code is to promote friendliness between the parties so that peace between
them is restored.
Compounding of Offences means to establish a compromise between two parties, where the
complainant agrees to have the charges dropped against the accused. On this basis offences
are divided into 2 categories:

 Compoundable Offences

 Non-Compoundable Offences

Compoundable offences

These are less serious in nature and are of two different types as mentioned under S. 320 in
two different tables:
1. Compounding without the permission of the Court– Examples of these offences include
adultery, causing hurt, defamation criminal trespass.
2. Court permission is required before compounding – Examples of such offences are
theft, voluntarily causing grievous hurt, assault on a woman with intention to outrage her
modesty, dishonest misappropriation of property amongst others, criminal breach of trust.

Compounding without the permission of the Court:

Few examples of such offences are:

Offence Section of the Person by whom offence may be

 I.P.C. compounded
applicable

1. Uttering words, etc. with deliberate

The person whose religious feelings are
intent to wound the religious feelings of 298
intended to be wounded
person

2. Causing hurt 323, 334 The person to whom the hurt is caused

3. Wrongfully restraining confining any

341, 342 The person restrained or confined
person

The person assaulted or to whom criminal

4. Assault or use of criminal force 352, 355, 358
force is used

5. Mischief, when the only loss or

The person to whom the loss or damage is
damage caused is loss or damage to a 426, 427
caused
private person

The person in possession of the property

6. Criminal trespass 447
trespassed upon

The person in possession of the property

7. House-trespass 448
trespassed upon

Court permission is required before compounding –

Few examples of such offences are:

Offence Section of the Person by whom offence may be

I.P.C. compounded
 applicable

1. Voluntarily causing grievous hurt 325 The person to whom hurt is caused

2. Voluntarily causing grievous hurt on grave

335 The person to whom hurt is caused
and sudden provocation

3. Causing hurt by doing an act so rashly and

negligently as to endanger human life or the 337 The person to whom hurt is caused
personal safety of others

4. Causing grievous hurt by doing an act so

rashly and negligently as to endanger human 338 The person to whom hurt is caused
life or the personal safety of others

5. Wrongfully confining a person for three

343 The person confined
days or more

6. Wrongfully confining for ten or more days 344 The person confined

7. Wrongfully confining a person in secret 346 The person confined

8. Assault or criminal force to woman with The woman assaulted to whom the
354
intent to outrage her modesty criminal force was used

Other provision governing Compounding of Offences

The general rule embodied under sub section (3) provides that when any offence is
compoundable under Section 320 of the Code, the abetment of such offence or an attempt to
commit such offence (when such attempt is itself an offence) may be compounded in like
manner.
As per Sub Section (5) of Section 320, when the accused has been committed for trial or
when he has been convicted and an appeal is pending, no composition for the offence shall be
allowed without the leave of the Court to which he is committed or, as the case may be,
before which the appeal is to be heard. Application for compounding the offence shall be
made before the same court before which the trial is proceeding.

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

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

Effect of Compounding of an Offence

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

Prohibition Regarding Compounding Of Offences

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

Introduction

Juvenile or Children are a conflict with law referred to children under the age of 18 years and
suspected or accused of committing a crime or be part of illegal activity. Children in conflict
with law cannot be arrested by a police officer and can only be apprehended. Only minors
between the age of 16-18 years committed heinous crimes can be treated and tried as adults.
The child in conflict with law cannot be tried in criminal courts and should be produced
before the Juvenile Justice Board Chaired by a Magistrate and two social worker members.

While the juveniles held accountable for their violation of the law and kept in juvenile homes
or other relevant correctional facilities for public safety, the primary aim is to rehabilitate
them. The rehabilitative process includes psychological assessment of the crime committed
by the juvenile and the environment, causing it to happen, therapeutic guidance, skill
development, involving them in yoga and other mind developing activities.

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

Aftercare care organisations

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

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

After-Care Organisations are set to achieve the principal objective of allowing children as
well as juveniles to adapt to society. At the after-care organizations, the children and
juveniles are motivated to stay in mainstream society from their past life in the institutional
homes.

In the aftercare program children and juveniles are also provided access to social, legal and
medical services and also with appropriate financial support. Regular educational and
vocational training opportunities are provided to children and juveniles at the aftercare
organization for helping them to become financially independent and in turn, to generate their
income.

Sponsorship

It is the financial help given for child care organisations, foster families, individuals or
individual groups to meet the expenses of the juveniles’ rehabilitation programs. It may be a
government aid or by a non -governmental organisation (NGO) or by individuals.

Foster care

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

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

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

Adoption benefits the orphans, homeless children and destitute youngsters as well as
childless couples. Adoption makes life meaningful for lone single adults too as they gain a
parent-child relationship.

Prevention, dealing, treatment, rehabilitation and reintegration of juvenile delinquents

Prevention

It is the first step towards the curbing delinquency. Delinquency is an evolutionary process as
the child starts his delinquent acts at an early stage which is evident in the form of petty
stealing, neglecting studies and gradually developing other notorious tendencies. Observing
such behaviours, teachers and family members should counsel such children.

Also, the prevention of delinquency includes averting delinquent behaviour by taking action
in terms of individual and environmental adjustments. It includes curing the factors
responsible for juvenile delinquency like improving family bonds, the better adjustment in
schools, provision of educational and recreational activities.

Dealing

Police and Courts are the two major components of the criminal justice system. Police have a
more significant role to play in cases related to juveniles delinquents. Even the statutory
provisions provide for the active participation of police in cases concerning juveniles. For
these juvenile police units with special training must be set up who will help in discovering
delinquents and pre-delinquents.

Treatment

Modification of delinquent behaviour is one of the basic purposes of correctional institutions.

The Juvenile Justice (Care and Protection for Children) Act, 2000 gives special attention to
the children who are in a situation of social maladjustment. The Act provides for the
constitution of the Board.
The State Government has been authorized to constitute for a district or a group of districts
one or more Juvenile Boards for exercising the powers and discharging the duties, conferred
or imposed on such Boards in relation to Juveniles in conflict with the law under this act. The
Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as
the case may be, and two social workers of whom at least one shall be a woman;

In case of the child in need of care and protection, the State Governments have been
empowered to constitute a Child Welfare Committees (Section 29, the Juvenile Justice (Care
and Protection of Children) Act, 2000) for every district. The Committee shall have the final
authority to dispose of cases for the care, protection, treatment, development, and
rehabilitation of the children as well as to provide for their basic needs and protection of
human rights.

Rehabilitation and Reintegration

Social reintegration of children shall be carried out alternatively by adoption, foster care,
sponsorship, and sending the child to an after-care organization (Section 40, the Juvenile
Justice (Care and Protection of Children) Act, 2000). The foster care may be used for
temporary placement of those infants who are ultimately to be given for adoption. After-care
organisations (Section 44, the Juvenile Justice (Care and Protection of Children) Act, 2000)
are set up for the purpose of taking care of juveniles or the children after they leave special
homes, children homes and for the purpose of enabling them to lead an honest, industrious
and useful life.
 PROBATION OFFICER

Introduction

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

Who is a Probation Officer

A probation official is a court officer who regularly meets people sentenced to a supervised
probation period. Generally, these people are perpetrators and lower-level criminals. The
majority of the offenders placed on probation are first time offenders. Many that are on
probation live in our neighbourhoods, stay home, are working or participating in an
educational program, and raise their children.

Responsibilities of Probation Officer

A probation officer will need to meet, on a monthly or sometimes weekly basis, their client.
Based on an assessment of risk/needs, the probation officer may decide the degree of
supervision that a person requires (minimum, medium or maximum). It helps to determine
how much assistance a person requires.

Duties of Probation Officer

Pursuant to the Offenders Probation Act 1958 – Section 14 Gives details concerning the
duties of probation officers which are as follows-
 1. Investigate the circumstances or domestic environment of any person accused of
an offence with the intention, in accordance with any direction of the Court, to
help the Court to determine and report the most appropriately advised approach to
his dealing with it;
2. Supervising probationers and other persons under his supervision and seeking
suitable employment where necessary;
3. Counselling and supporting victims in the payment by the Court of penalties or
costs;
4. Advice and assist persons released pursuant to Section 4 in such situations and
manner as may be prescribed;
5. Perform the other duties prescribed as may be.

Analysis and monitoring

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

Supervision and counselling

Continuous monitoring of the work of the probationer is not necessary or feasible.

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

The probation officer must establish a relationship with the offender and create faith in him in
the mind of the offender during the probationary period. He must also construct and give him
the confidence in the offender in deciding his own course. The probation officer must stand
by him in order to provide him with appropriate guidance and suggestions and information,
which will enable him in cooperating with the probation officer to carry out rehabilitation
programs.

Link to the Court

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

Decision making

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

Probationer rehabilitation and after care

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

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

Appointment of Probation Officer

Section 13 of the Probation of Offenders Act states about the appointment of Probation
Officer:
1. A person appointed by or recognized as a probation officer by the Government of
the State.
2. A person to whom a company recognized on behalf of the State Government has
made provision for this reason.
3. Any other person who, according to a court, is fit to act, under the particular
circumstances of the case, as a probation officer in an exceptional case.
 CHILD WELFARE COMMITTEE

The Child Welfare Committee is an autonomous body declared as a competent authority to

deal with children in need of care and protection. Section 27 of Chapter V of the Juvenile
Justice (Care and Protection of Children) Act, 2015 talks about the Child Welfare Committee.

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

The Child Welfare Committee functions as a bench guided by the powers that are conferred
in the Code of Criminal Procedure, 1973.

Powers

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

 The Committee has the full authority of disposing of cases for the care, protection
and treatment of the children.
 The Committee can also dispose of cases that are for the development,
rehabilitation and protection of children that are in need, and also to provide for
the basic need and protection that is needed by the children.
 When a Committee is constituted for any particular area, then it has the power to
exclusively deal with all proceedings that are being held under the provisions of
this Act that are related to children in terms of need of care and protection.
 While exercising the given powers curtailed under this Act, the Committee is
barred from performing any act which would go against anything contained in any
other law that is in force at that time.
Functions and Responsibilities

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

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

The Juvenile Justice Board is an institutional body constituted under Section 4 of the JJ Act,
2015. One or more than one Juvenile Justice Board(s) are established by the State
Government for each district. The Board exercises its powers and discharges functions
relating to the ‘child in conflict with law’ as has been defined under Section 2(13) of this Act.

Constitution
The constitution of the Board has been defined in Section 4(2) of the Act.

Composition of Bench under Juvenile Justice Act, 2015

1. Metropolitan Magistrate or Judicial Magistrate First Class (Principal Magistrate herein)

[not being Chief Metropolitan Magistrate or Chief Judicial Magistrate]
-Experience Required: 3 years.
2. Two social workers (one being a woman)
-Experience Required: Active involvement for 7 years in health, education or welfare
activities pertaining to children; OR
-A practising professional with a degree in child psychology, psychiatry, sociology or law.

Powers granted to Juvenile Justice Board

The Bench shall have all the powers conferred by the Code of Criminal Procedure, 1973 on a
Metropolitan Magistrate or a Judicial Magistrate First Class.

Eligibility Criteria for Selection as Member of Juvenile Justice Board

Under Section 4(4) of the Act, the eligibility criteria for selection as a Board member has
been listed down. It has been defined in a negative manner.

The person will not be eligible if they:

 Have any past record of violation of human rights or child rights;

 Were convicted of an offence which involved the ground of moral turpitude + such
conviction has not been reversed or has not been granted pardon;
 Were removed or dismissed from the services of:
 o Either the Central Government or the State Government
o An undertaking/ corporation owned or controlled by the Central Government or
the State Government

 Have ever indulged in the acts of:

o Child abuse
o Child labour
o Any other violation of human rights or immoral act

Functions

Children who are alleged or found to be in conflict with law are produced before a Juvenile
Justice Board. On the basis of nature of offence, specific need for supervision or intervention,
circumstances as brought out in the social investigation report and past conduct of the child,
the Juvenile Justice Board may:

(a) allow the child to go home after advice or admonition by following appropriate inquiry
and counselling to such child and to his parents or the guardian;

(b) direct the child to participate in group counselling and similar activities;

(c) order the child to perform community service under the supervision of an organisation or
institution, or a specified person, persons or group of persons identified by the Board;

(d) order the child or parents or the guardian of the child to pay fine: Provided that, in case
the child is working, it may be ensured that the provisions of any labour law for the time
being in force are not violated;

(e) direct the child to be released on probation of good conduct and placed under the care of
any parent, guardian or fit person, on such parent, guardian or fit person executing a bond,
with or without surety, as the Board may require, for the good behaviour and child’s well-
being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and placed under the care and
supervision of any fit facility for ensuring the good behaviour and child’s well-being for any
period not exceeding three years;

(g) direct the child to be sent to a special home, for such period, not exceeding three years, as
it thinks fit, for providing reformative services including education, skill development,
counselling, behaviour modification therapy, and psychiatric support during the period of
stay in the special home.