B.A.LL.B.

Vth year

Criminal Procedure Code :

CLASSIFICATION OF COURTS :

Criminal Courts play an important role in administration of criminal justice.

ChapterIIdealswiththeconstitutionofcriminalcourts.Therearefourclassesof
criminal courts apart from High Court and SupremeCourt.
Classification of Courts: - Sec. 6 of the code classifies criminal courts as
follows: -
1) Supreme Court: - It is the highest court of judicature in our country. It is
empoweredtopassanysentenceincludinglifeimprisonmentanddeathsentence. It is
empowered to hear appeals from various High Courts in the country. It is head
by the Chief Justice of India.
2) HighCourt:-Itisthehighestcourtofjudicatureatstatelevel.Itisheadedby the
Chief Justice of the state located at state capital generally it can pass any
sentence including life imprisonment and deathsentence.
It has over all superintendence over the courts of sessions and magistrates in the
state. Its powers include appeal, reference, revision and transfer of suits.
Court of Session: -
1) District Session Judge: - The state government shall establish a court of
session for every session division for each district. It is headed by District
Sessions Judge appointed by the HighCourt.
2) Additional Session Judge:
3) Assistant SessionJudge:
The High Court may also appoint Additional Session Judge and Assistant
Session Judge to exercise jurisdiction in the Court of Session.
An Assistant Session Judge is subordinate to sessions judge (Sec. 9)

Powers: - The Sessions Judge and Additional session Judge are empowered to
pass any sentence including life imprisonmentand death sentenceand
finewithout any limit. The life imprisonment and death sentence is subject to
confirmation by the High Court.
The Assistant Sessions Judge is empowered to pass sentence upto 10 yrs
imprisonment and fine without limit.
4) CourtsofJudicialMagistrate:-AccordingtoSec.11ofthecodethestatein
consultation with the High Court establishes the courts of Judicial Magistrate.
They are classified as follows:
a) Chief Judicial Magistrate or Additional Chief Judicial Magistrate: - In
every district, a Judicial Magistrate of First class is appointed by the High Court
to be the Chief Judicial Magistrate. Chief Judicial Magistrate is subordinate to
session judge. Chief Judicial Magistrate is authorized to make rules for the
distribution of business among Judicial Magistrate FirstClass.
He is empowered to pass sentence upto 7 yrs and fine without limit.
b) FirstClassMagistrate(JudicialMagistrateorSpecialJudicialMagistrate of
First Class): - The state in consultation with High Court, may establish as many
as the courts of judicial magistrates of First class and secondclass.
Thefirstclassmagistratecanpasssentenceupto3yrsandfineuptoRs.5000/-or 10000/-
c) Second Class Magistrate: - He can pass sentence of imprisonment upto 1 yr
and fine upto Rs. 1000/- or5000/-
5) Courts of Metropolitan Magistrates: - The state govt can declare any town
orcityasmetropolitanareaifthepopulationexceedsonemillion(10Lakhs).The
Judicial Magistrate appointed in Metropolitan area are called Metropolitan
Magistrates.
One of them may be appointed as the Chief Metropolitan Magistrate Sec. 16.

a) Chief Metropolitan Magistrate or Additional chief Metropolitan

Magistrate: - His powers are equal to that of Chief Judicial Magistrate or
Additional Chief Judicial Magistrate i.e. imprisonment upto 7 yrs and fine
without limit (Sec17)
b) Metropolitan Magistrates and Special Metropolitan Magistrate: - A
retired government servant may be appointed as special metropolitanmagistrate.
Thepowersaresimilartothatofjudicialmagistrateorspecialjudicialmagistrate
i.e upto 3 yrs imprisonment and fine upto Rs. 5000/- or 10000/- (Sec. 18)
c) Executive Magistrates: - In every districts and every metropolitan area, the
stategovernmentisempoweredtoappointasmanypersonsasitthinksfitittobe
executive magistrates. One of them is appointed as the District Magistrate.
Third it may also appoint any Executive magistrate to be an Additional District
Magistrate.
The state government may also appoint special Executive Magistrate, for
performing particular function of executive magistrate.
The code adopted the separation of judiciary from the executive. The
judicial magistrate and metropolitan Magistrates are under the control of High
Court. While the executive magistrate (District Collector Sub Collector and
Tahsildar) are kept under the control of state government. Sec. 20)
COGNIZABLE AND NON- COGNIZABLE OFFENCES :

Cognizable offence Sec. 2(c): - Cognizable offence means an offence for which
apoliceofficermayinaccordancewiththeFirstscheduleorunderanyotherlaw for the
time being in force, arrest withoutwarrant.
Non cognizable offence Sec. 2(l): - A non cognizable offence is one, for which
a police officer has no authority to arrest without warrant.
Non–cognizableoffencesaremoretrivialandlessseriousthancognizable
offences.
In cognizable offences police can arrest without warrant because the
offender might escape by the time the police obtains a warrant.
A case cannot be partly cognizable and partly non – cognizable.
In non – cognizable offences police officer cannot investigate into it without the
authority of Magistrate.
As shown in the First schedule of the code, all offences punishable with
three yrs and above come within the purview of cognizable offences. While the
offence punishable with less than 3 yrs fall under the category of differences
between the cognizable and non-cognizable offences. However, this rule is
subject to certain exceptions.
Distinction between Cognizable and Non – Cognizable Offences: -
Cognizable Offence Non – Cognizable Offence
1) Cognizable offence is one, in 1) Non – Cognizable offence is one, in
respect of which a police officer can respectofwhichapoliceofficerhasno
arrest without warrant. authority to arrest withoutwarrant.
 2) It is more serious in nature. 2) It is less serious in nature.Offences
Offences punishable with punishable with imprisonment forless
imprisonment for 3 yrs anabove than 3 yrs would fall underthis
would come under this category. category.
3) The police officer can investigate 3) The police officer cannot
the case without obtaining any orders investigate the case withoutobtaining
or direction from the magistrate. orders from the magistrate.
4) Non bailable 4) Bailable

Summons case and Warrant case: -

Warrant case (Sec 2(x)): - Warrant case means ‘a case relating to an offence,
punishable with death, imprisonment for life or imprisonment for a term
exceeding two years.
Summonscase(Sec2(w)):-Summonscasemeans‘acaserelatingtoanoffence and
not being warrantcase.
Distinction between Summons case and Warrant case: -
Summons case Warrant case
1) Summons case is less serious in 1) Warrant case is more serious in
nature. nature.
2) Summons is addressed to the person 2) Warrant is addressed to the police
summoned. officer.
3) Generally there is no participation 3) Warrant cases contemplate
of police machinery. participation of police machinery.
4) Offences punishable upto twoyears 4) Offences punishable with
imprisonment come within this imprisonment exceeding 2 yrs
category. including life imprisonment and death
sentence come within this category.
 5) Formal charge need not be framed 5) Framing of charge is necessary
6) There is no stage of discharge of 6) There can be discharge of accused.
accused.
7) The complaint can withdraw the 7) Such withdrawal is not allowed
case with the permission of the court. except in case of compoundable
offences.
8) Summons trial can be converted 8) Warrant trial cannot be converted
into warrant trial. into summons trial.

Bailable offence and Non - bailable

Thecodewithreferencetobail,categorizedcertainoffences,intotwocategories
namely –
1) Bailable offenceand
2) Non - bailableoffence,
1) Bailable offence:-
Bailable offence is one in respect of which a person arrested is entitled to
be released on bail from the custody or detention.
Sec.2(a)defines"bailableoffence"meansanoffencewhichisshownasbailable in the
First Schedule, or which is made bailable by any other law for the time being
inforce;
Generallytheoffencespunishablewithlessthanthreeyearsimprisonment
arebailable.
Sec.436ofthecodeconfersontheaccused,righttobailinbailableoffences.The court
may grant bail against reasonablesecurity.
2) Non – bailable offences:-
AccordingtoSec.2(a)ofthecode,theotheroffenceswhicharenotshown as
bailable under the First schedule are called “Non bailableoffences”
Non – bailable offences are more serious, when compared to the bailable
offences.
Generally the offences for which punishment is 3 yrs imprisonment or
more, are non bailable. However this rule is subject to certain exceptions.
Distinction between Bailable and Non – Bailable offences: -
Bailable Offence (Sec. 2(a)) Non – Bailable offence Sec. 2(l)
1) The accused is entitled to be 1) The accused may not be released on
released on bail. bail.
2) The accused has a right to be 2) The accused has no right to be
released on bail. released on bail. However the person
accused of non bailable offence may
be released on bail, subject to judicial
discretion.
3) It is less serious is nature. 3) It is more serious in nature.
4) Generally, offences punishable with 4) Generally the offences punishable
imprisonment for less than 3 yrs are with imprisonment for 3 yrs or more
bailable. are non bailable.
5) A person to be accused of bailable 5) A person to be accused of non –
offence cannot apply for anticipatory bailable offence can apply for
bail. anticipatory bail.

Compoundable and Non-compoundable Offences:

Criminal offences can also be classified as compoundable and non-

compounable offences

Compoundable offences are those offences where, the complainant (one

who has filed the case, i.e. the victim), enter into a compromise, and agrees to
have the charges dropped against the accused. However, such a compromise,
 should be a "Bonafide," and not for any consideration to which the
complainant is not entitled to.

Section 320 of the Cr.P.C looks at compounding of offences.

Compoundable offences are less serious criminal offences and are of two
different types mentioned in tables in Section 320 of the Cr.P.C, as follows:
1. Court permission is not required before compounding – Examples of these
offences include adultery, causing hurt, defamation criminaltrespass.
2. Court permission is required before compounding – Examples of such
offences are theft, criminal breach of trust, voluntarily causing grievous hurt,
assault on a woman with intention to outrage her modesty, dishonest
misappropriation of property amongstothers.

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

Meaning and Purpose: - The expression Arrest literally means deprivation of

personal liberty by a legal authority. It means apprehension of a person by legal
authority resulting in deprivation of his personal liberty. It ensures presence of
the accused at a trial.

Arrest of a person may be necessary in certain circumstances: -

1) For securing attendance of an accused at trial.
2) As a preventive or precautionarymeasure.
3) For obtaining correct name andaddress.
4) For removing obstruction topolice.
5) For retaking a person escaped fromcustody.

The code provides for two types of Arrest: -

1) Arrest withWarrant
2) Arrest withoutWarrant

1) ArrestwithWarrant:-AwarrantforarrestmaybeissuedbyaMagistrate after
taking cognizance of an offence whether cognizable or non
cognizable.Thepurposeofwarrantistocausetheaccusedtoappearbefore
thecourt.Themagistrateissueswarrant,whenhehasreasontobelievethat the
accused has absconded or would not obey thesummons.
2) Arrest without Warrant: - Arrest without warrant can be made under the
following instances–
A) Arrest without warrant bypolice
B) Arrest by a privateperson
C) Arrest by a Magistrate

A) Arrest without warrant by police:-

Sec 41 of the code empowers a police officer to arrest a person without a
warrant under the following circumstances:-
i) Any person actually concerned or reasonably suspected to be concerned in a
cognizableoffence.
ii) Any person who is in possession without lawful excuse of any implement of
house breakingor
iii) Anypersonwhohasbeenproclaimedasanoffendereitherunderthiscodeor by
order of the state governmentor
iv) Any person in whose possession anything is found which may reasonably be
suspected to be stolen propertyor
v) Any person obstructing a police officer in the discharge of his duties or any
person who has escaped or attempts to escape from lawfulcustody.
vi) Any person, who is deserter from any of the Armed Forces of theUnion.
vii) AnypersonwhoisconcernedinanyactcommittedatanyplaceoutsideIndia,
which if committed in India would be punishable as an offence and for which he
is liable to be apprehended or detained in custody in India under the law of
extradition or
viii) Any released convict committing a breach of any rule made u/s.365(5).
ix) Anypersonforwhosearrestanyrequisition(whetherwrittenororal)hasbeen
received from another police officer for the arrest of thatperson.
x) If a person, in the presence of police officer is accused of committing a non
cognizable offence and refuses to give his name and address. (Sec42)
xi) Any person who is a robber, thief, house-breaker, habitual receiver of stolen
property, habitual kidnapper or abductor under this clause the arrest of such
person can only be made by officer-in-charge of a policestation.

B) Arrest by Private Person:-

A private person may arrest any person –
a) If he commits a non-bailable and cognizable offenceor
b) If he is a proclaimedoffender.
He shall without any delay make over such person to a police officer or nearest
police station.
If the police officer has reason to believe that such person falls under any of the
clauses of Sec. 41 the police officer must re-arrest him.
If there is no sufficient reason to believe that he has committed any offence, such
person is to be released forthwith.
If private person keeps the arrested person in his own custody, he would
be guilty of the offence of wrongful confinement u/s 342 of IPC.

C) Arrest by Magistrate:-
Any Magistrate, whether judicial or executive may arrest a person within
his jurisdiction: -
a) Any person who commits an offence in hispresence.
b) Any person for whose arrest, he is competent to issue awarrant.

Caselaw: - Swami Harharnand Saraswati v/s The Jailer Dist Jail Banaras:
Held: - A Magistrate arresting a person u/s 44(1) of the code should not try the
case himself. The person so arrested by the magistrate shall be produced within
24 hours before another magistrate, otherwise the arrest becomes illegal.
Protection of members of the Armed Forces from Arrest Sec. 45: - No
member of the Armed forces in India can be arrested for anything done or
purported to be done by him in the discharge of his official duties, his arrest
requires the consent of central government.

Arrest how made Sec. 46: - If the person to be arrested submits to the custody
by word or by action, he can be taken into the custody, otherwise, the police
officermaytouchorconfinehisbody.Ifheresistorattemptstoevadearrest,the police
officer may use force. He cannot be killed unless he is charged with an offence
punishable with death or imprisonment forlife.

Other provisions regarding Arrest: -

Powertosearchaplace(Sec47):-Policeofficercanenterandsearchtheplace entered
by the offender. He can break any door or window for entering in the
sameifrequired.Ifthereisanyoccupancyofpardanashinlady,thepoliceofficer must
give notice to the lady to withdraw therefrom before entering in that premises.
Power to pursue (Sec. 48): - A police officer may for the purpose of arresting
withoutwarrantanypersonwhomheisauthorizedtoarrest,pursuesuchaperson into
any place inIndia.
Sec. 49: - The person arrested is not to be subjected to any more restraint than is
necessary for preventing his escape.

Sec. 50: - The person arrested should be informed of the grounds of arrest. If
personisarrestedforbailableoffencepoliceofficermustinformtohimthatheis
entitled to be release don furnishingbail.
Sec 51: - After making arrest police officer may search such person and all
articles except wearing must be placed in safe custody and a receipt should be
issued.
Search of female should be made only by another female with strict regard to
decency.
SeizureofoffensiveweaponsSec52:-Ifthearrestedpersonisinpossessionof any
offensive weapons, they should be seized and delivered to thecourt.
Medical examination of accused (Sec 53): - If the medical examination of
arrested is required to be done, may be done by the police officer not below the
rank of PSI.
Ifthepersontobeexaminedisfemale,examinationcanbemadebyorunderthe
supervision of a female registered medicalpractitioner.
Sec 56/57: - After arrest police officer must without any unnecessary delay
produce the arrested person before magistrate i.e maximum within 24 hours
journey period from the place of arrest to magistrate’s court is excluded for the
purpose of computing this period of 24 hours.
Sec 59: - Arrested person cannot be discharged by police officer except on his
own bond, or his own bail or order of the magistrate.
Sec.60:-Ifarrestedpersonescapesfromlawfulcustody,thepersonfromwhose
custodyheescapes,canimmediatelypursueandarresthiminanyplaceinIndia.

Rights of Arrested Persons: -

a) Right of the accused to know the grounds of his arrest. (Art 22(1), Sec.50,
55 and 75 Cr. P.C):
As per Section 50(1) of Cr.P.C., where a person arrested without warrant
is entitled to know the full particulars of offence for which he is being arrested
and where a person is arrested with warrant, he must be notified the particulars
of such warrant, or even show such warrant if needed. Sec. 75 of Cr.P.C.

b) Right of the accused to know the information relating to the release on

bail. Sec50(2):
 Anypersonwhoisarrestedwithoutawarrantandisaccusedofabailable
offence has to be informed by the police officer that he is entitled to be released
on bail on payment of the suretyamount.

c) Right of the accused to be taken before a Magistrate without delay. (Sec

56 and76):
Irrespective of the fact, that whether the arrest was made with or without
a warrant, the person who is making such arrest has to bring the arrested person
before a judicial officer without any unnecessary delay. By Sec 56 and 76 of the
code, an accused has to be produced before a magistrate within the 24 hrs.

d) Right of the accused not to be detained for more than 24 hours without
judicial scrutiny (Art. 22(2) and Sec.57)

e) Rightoftheaccusedtoconsultalegalpractitionerofhischoice.(Art.22(1) and
Sec. 303):
This has been enshrined as a fundamental right in Article 22(1) of the
Constitution of India, which cannot be denied in any case. Section 50(3) of the
Code also lays down that the person against whom proceedings are initiated has
a right to be defended by a pleader of his choice.

f) Right of the accused to be examined by a medicalpractitioner.

Section 54 of Cr.P.C. enumerates this right. If requested by the arrested
personsotododirectthe examinationofthebodyofsuchpersonbyaregistered
medical practitioner unless the Magistrate considers that the request is made for
the purpose of vexation or delay or for defeating the ends of justice.
g) Right of the accused person to get free legal aid and to be informed about
that (Art. 21 and Sec.304)
A duty is imposed on all magistrates and courts to inform the indigent
accused of his right to get free legal aid.It is clear that unless refused, failure to
provide free legal aid to an indigent accused would vitiate the trial entailing
setting aside of the conviction and sentence.

h ) Right to free, fair and speedy trial:

Asjusticedelayedisjusticedenied,theconceptofspeedyandexpeditious trial
was introduced by which the accused person is given fair and impartial
justicequickly.

I ) Presumption of Innocence:
In Blackstone’s famous words, "it is better that ten guilty persons escape
thanthatoneinnocentsuffer".Theessenceofcriminaltrialliesinthattheaccused is to
be presume innocent until a charge is proved against him without any
reasonabledoubt.
j)Right to privacy and protection against unlawful searches:
The police officials cannot violate the privacy of the accused on a mere
presumptionofanoffence.Thepropertyofanaccusedcannotbesearchedbythe police
without a searchwarrant.
K)Right to be present during trial:
Section 273 of the Code provides that all evidence and statements must
be recorded in presence of the accused or his criminal lawyer.
l) Right to get Copies ofDocuments:

The accused has the right to receive copies of all the documents filed by the
prosecutor in relation to the case.

m) Right to be present at the trial: The accused person has the right to be
present during his trial and have testimony presented in front ofhim.

n) Right to cross-examination: The accused has the right to be cross-examined

by the prosecutor to prove hisinnocence.

o) Right to Appeal: The rights of arrested persons include the right to filean
appeal against his conviction in a highercourt.

p) Right to Humane Treatment in Prison: The accused has a right to have all
his human rights when in prison and be subjected to humane treatment by the
prison authorities.

Cases
In, Nandini Sathpathy v. P.L.Dani 1978 SCR (3) 608,wherein it was held that
no one can forcibly extract statements from the accused and that the accused has
the right to keep silent during the course of interrogation (investigation).

In, D.K. Basu v. State of W.B (1997) 1 SCC 416,the Supreme Court, in this
case, issued some guidelines which were required to be mandatorily followed in
all cases of arrest or detention which include, the arresting authority should bear
accurate, visible, and clear identification along with their name tags with their
designation, the memo be signed by the arrestee and family member, the family
or the friend must be told about the arrest of the accused, The arrestee may be
permitted to meet his lawyer during interrogation, though not throughout the
interrogation and many other.

Information in cognizable cases (FIR) ( S. 154)

Every person who is aware of the commission of an offence or of the

intentionofanyotherpersontocommitanoffencehasadutytoinformthesame
tothepoliceofficer.ThenthepoliceofficerrecordstherepotanditiscalledFirst
Information Report.

First Information Report is not defined in the code. Every information

relating to cognizable offence is FIR

It is information related to the commission of a cognizable offence given

tothepoliceorallyorinwriting,inordertoputthepoliceinmotiontoinvestigate
thematter.

Object of FIR: - The object of FIR is to obtain information about the alleged
criminalactivitysoastobeabletotakeappropriatestepsfortracingandtobring the
guilty person behind thebars.

Formalities or Essentials requirements of FIR: - According to Sec. 154 the

following requirements are to be compiled with in respect of FIR.

i) It is an information given to policeofficer.

ii) It must relate to commission of cognizableoffence.

iii) It is an information first in timeand

iv) It is an information which forms basis for investigation.

If the informant gives information orally the police officer shall

reduce it in writing and read over the contents to the informant. The information
should be signed by the person giving it. The police officer should enter its
substance in a book meant for the purpose.

If the police officer receives information in writing he should see that it is

signed by the informant. He has to record its substance in a book meant for the
purpose.

1. Every information relating to the commission of a cognizable offence, if

given orally to an officer in charge of a police station, shall be reduced to
writing by him or under his direction, and be read over to the informant;
andeverysuchinformation,whethergiveninwritingorreducedtowriting as
aforesaid, shall be signed by the person giving it, and the substance
thereof shall be entered in a book to be kept by such officer in such form
astheStateGovernmentmayprescribeinthisbehalf.

Provided that if the information is given by the woman against whom an

offence under section 326A, section 326B, section 354, section 354A,
section 354B, section 354C, section 354D, section 376, section 376A,
section2376AB, section 376B, section 376C, section 376D, section
376DA, section 376DB, section 376E or section 509 of the Indian Penal
Code is alleged to have been committed or attempted, then such
information shall be recorded, by a woman police officer or any woman
officer;1

Provided further that—

1. in the event that the person against whom an offence under section
354, section 354A, section 354B, section 354C, section 354D,
section 376, section 376A, section2376AB, section 376B, section
376C, section 376D,
section 376DA, section 376DB, section 376E or section 509 ofthe
 Indian Penal Code is alleged to have been committed or attempted,
is temporarily or permanently mentally or physically disabled, then
such information shall be recorded by a police officer, at the
residence of the person seeking to report such offence or at a
convenient place of such person’s choice, in the presence of an
interpreter or a special educator, as the case may be;

2. the recording of such information shall be videographed;

3. thepoliceofficershallgetthestatementofthepersonrecordedbya
Judicial Magistrate under clause (a) of sub-section (5A) of section
164 as soon aspossible.1

2. AcopyoftheinformationasrecordedunderSub-Section(1)shallbegiven
forthwith, free of cost, to theinformant.

3. Any person, aggrieved by a refusal on the part of an officer in charge of a

police station to record the information referred to in Sub-Section (1) may
send the substance of such information, in writing and by post, to the
SuperintendentofPoliceconcernedwho,ifsatisfiedthatsuchinformation
discloses the commission of a cognizable offence, shall either investigate
thecasehimselfordirectaninvestigationtobemadebyanypoliceofficer
subordinate to him, in the manner provided by this Code, and such officer
shall have all the powers of an officer in charge of the police station in
relation to thatoffence.
Information as to non-cognizable cases and investigation of such cases
(Section 155 –)

1. Wheninformationisgiventoanofficerinchargeofapolicestationofthe
commissionwithinthelimitsofsuchstationofanon-cognizableoffence,heshall
enterorcausetobeenteredthesubstanceoftheinformation inabooktobekept
bysuchofficerinsuchformastheStateGovernmentmayprescribeinthisbehalf, and
refer, the informant to theMagistrate.

2. Nopoliceofficershallinvestigateanon-cognizablecasewithouttheorder of a
Magistrate having power to try such case or commit the case fortrial.

3. Any police officer receiving such order may exercise the same powers in
respect of the investigation (except the power to arrest without warrant) as an
officer in charge of a police station may exercise in a cognizablecase.

4. Where a case relates to two or more offences of which at least one is

cognizable, the case shall be deemed to be a cognizable case, notwithstanding
that the other offences arenon-cognizable.

INVESTIGATION:

A person accused of an offence is tried under three stages namely

Investigation, Inquiry and Trial. Section 2(h) and 2(g) of the code defines
investigation and inquiry, respectively. But the code has not defined Trial.
Sec 2(h) investigation" includes all the proceedings under this Code for the
collectionofevidenceconductedbyapoliceofficerorbyanyperson(otherthan a
Magistrate) who is authorized by a Magistrate in thisbehalf;

No oath shall be administered to the person examined or interrogated during

investigation.

Object: - The main object of the investigation is to collect the evidence for the
purpose of any inquiry or trial.

In non – cognizable case, investigation commences with the order of the

magistrate u/s 155 of Cr PC.

Whenacognizableoffencesuspected,investigationcommenceswhenthepolice
officer has sent his report to the magistrate concerned u/s 157 of the code or has
received an order from him to investigate into theoffence.

It is the statutory power of the police to investigate into cognizable cases.

Broadly speaking, the investigation of an offence consists of –

1) Proceeding to the place ofoffence.

2) Ascertainment of the facts and circumstances of thecase.

3) Discovery and arrest of the suspectedoffender.

4) Collection of evidence relating to the commission of offence which may

consist of –

a) The examination of various persons (including the accused) and the reduction
of their statements into writing if the police officer making the investigation
thinks fit.

b) The search of places or seizure of things considered necessary for the

investigation ortrial.
5) Formationofopinionastowhetheronthematerialcollected,thereisacaseto
placetheaccusedbeforeamagistratefortrialandifsotakingthenecessarysteps for the
same by filing of a charge sheet (challan) u/s173.

Police when to investigate: -

The principal agency for carrying out investigation of offences is the police and
the police can proceed to investigate –

a) On the information received from any person as to the commission of any

cognizable offence (Sec157(1))

b) Even without any such information, but if they have reason to suspect the
commission of any cognizable offence. (Sec157(1))

c) On receiving any order from any judicial magistrate empowered to take

cognizance of any offence u/ s190 (Sec156(3))

If a competent judicial magistrate considers it as desirable that a non cognizable

offenceinaparticularcaseshouldbeinvestigatedintobypolice,hecanorderthe police
to doso.

Power of police officer to seize certain property (Section 102)

1. Any police officer may seize any property which may be alleged or
suspectedtohavebeenstolen,orwhichmaybefoundundercircumstances
which create suspicion of the Commission of anyoffence.

2. Such police officer, if subordinate to the officer in charge of a police

station, shall forthwith report the seizure to thatofficer.

3. EverypoliceofficeractingunderSub-Section(1)shallforthwithreportthe
seizuretotheMagistratehavingjurisdictionandwherethepropertyseized
 is such that it cannot be, conveniently transported to the Court or where
there is difficulty in securing proper accommodation for the custody of
such property, or where the continued retention of the property in police
custody may not be considered necessary for the purpose of investigation,
he may give custody thereof to any person on his executing a bond
undertakingtoproducethepropertybeforetheCourtasandwhenrequired
andtogiveeffecttothefurtherordersoftheCourtastothedisposalofthe same.

Provided that where the property seized under Sub-Section (1) is subject to
speedy and natural decay and if the person entitled to the possession of such
property is unknown or absent and the value of such property is less than five
hundred rupees, it may forthwith be sold by auction under the orders of the
Superintendent of Police and the provisions of sections 457 and 458 shall, as
nearly as may be practicable, apply to the net proceeds of such sale.

When search-warrant may be issued:

A search warrant is a written order issued by a competent Magistrate or a

Court directing a police officer or other person to take search of any place either
generallyorforspecifieddocumentsorthingsorforpersonswrongfullydetained.
Since a search involves invasion of the sanctity and privacy of individuals, the
CourtortheMagistrateshouldexerciseutmostcareandcautionwhileusingtheir
powertoissueasearchwarrant.TheMagistrateisrequiredtorecordreasons
beforeissueofasearchwarrant.Anillegalorderofsearchandseizureshallvitiate the
seizure of thearticles.

Section93(1)(c)ofCrP.C.comprehendsasituationwheretheCourtmayissue a
search warrant before proceedings of any kind are initiated and, in view of an
enquiry about to be made, when the Magistrate considers that the purpose of an
inquiry, trial or other proceeding under the Code will be served by a general
searchorinspectiontosearch,seizeandproducethedocumentsmentionedinthe list.

When such a general search warrant is issued, in execution of it the

premiseseveninpossessionoftheaccusedcanbesearchedanddocumentsfound
thereincanbeseizedirrespectiveofthefactthatthedocumentsmaycontainsome
statement made by the accused upon his personal knowledge and when proved
may have any tendency to incriminate the accused, though it may not have even
the remotest tendency to compel the accused to incriminatehimself.

Clause (b) of Section 93 (1) refers to a specific situation when there is a definite
allegation to recover certain document or thing from a particular place or
premises but the Court is unaware of the fact whether that document or thing or
the place is in possession of a particular person.

The Supreme Court in V. S. Kuttan Pillai v. Ramkrishnan and another,

made it abundantly clear that the constitutional immunity against self-
incrimination extends to any incriminatory evidence which the accused may be
compelled to give, but it does not extend to cover such situation as where
evidence which may have tendency to incriminate the accused is being collected
without in any manner compelling him or asking him to be a party to the
collection of evidence.
 Searchofthepremisesoccupiedbytheaccusedwithouttheaccusedbeing
compelled to be a party to such search would not be violative of constitutional
guarantee enshrined in Article 20 (3) of the Constitution. The Court in its
concluding remarks held that there is no doubt that issuance of a search warrant
is a serious matter and Court should not dispose it of in a mechanicalway.

The Code provides six circumstances under which a search warrant may
be issued and three of them are mentioned in sub-sections (1) (a), (b) and (c) of
this section.

The issue of a search warrant whether general or special under Section 93

is an integral step in the investigation, of a case. The search and seizure being
only a temporary interference with the right of a person to hold the premises
searched, it is a reasonable restriction and, therefore, it is not per se considered
unconstitutional under Article 20 (3) of the Constitution

TheSupremeCourtinM.P.Sharmav.Stateobservedthatasearchbyitself
isnotarestrictionontherighttoholdandenjoypropertyasitisonlyatemporary
interference with the right to hold in premises searched and the articles seized.
Therefore, it cannot be said that it is violative of Article 19 (1) (f) of the
Constitution.

Sub-section (2) does not make it mandatory to specify the place to be

searched in the warrant. A direction to search any house which the officer thinks
necessary will not render the warrant illegal merely for this reason.

The final order of disposal of documents seized in execution of a search

warrant is to be made by the Court. Therefore, an application for this purpose
should be made to the concerned Court.
A person aggrieved by a search warrant issued against him may seek recourse to
any of the remedies stated below:

(1) HemayfileawritpetitionunderArticle226oftheConstitutionforquashing of the

illegal search warrant and for the restoration of the articles or documents seized
during thesearch.

(2) HemayfilearevisionpetitionunderSection401,Cr.P.C.ifitcanbeshown
thattheMagistratedidnotapplyhismindjudiciallyandissuedsearchwarrantin a
routine manner and arbitraryfashion

(3) He can sue the person who had executed the illegal search warrant for
actionable trespass and claim damages againsthim.

Procedure by police upon seizure of property ( Section 457)

Thesectionisapplicabletocaseswhereseizureofthepropertyisreported by
police officer to the Magistrate and such property is not produced before a Court
during an inquiry or trial. Thus the Magistrate can act under this section
onlywhentheseizureofthepropertyisreportedtohim.Heisempoweredtopass
anorderinrelationtosuchpropertyineitherofthethreewaysasstatedbelow:—

(i) He may order disposal of the property; or (ii) Deliver it to the person
entitled to its possession subject to condition, as he deems fit; or (iii) In the
absence of person entitled, he may order for its custody and its production.The
Court should exercise discretion in this regard keeping in view the interests of
justice and prospective necessity of the production of property seized at the time
of inquiry or trial. If the Court forms an opinion that the seized property would
notbeneededinanymannerinanystageoftheinquiryortrial,itmayreleasethe
propertyinfavouroftheclaimantonfurnishingadequatesecurity.Thissection
comesintoplaywhenapoliceofficerseizesarticlesfoundduringtakingasearch of a
person arrested or seizes any property which may be alleged or suspected to
have been stolen and found in circumstances creating suspicion of the
commission of any offence. The police are required to report about such seizure
to the Magistrate or an interested party may also bring it to the notice of the
Magistrate requesting for the restoration of the seized property to him. In these
situations the Magistrate acts under Section457.

It is not necessary that the Magistrate to whom the seizure has been
reported by the Police or a private party should have jurisdiction to hold inquiry
or trial in the case in which that property is involved as that property is not
required to be produced before the Magistrate.

In fact, this reporting of seized property to the Magistrate by the Police or the
interested person refers to the stage of investigation of the case when inquiry or
trial has not yet commenced. Therefore, if the Magistrate is of the opinion that
the said property may be required to be produced at the time of inquiry or trial,
then he may order for its custody and production when required. But before
making such order, the party who is affected thereby should be given an
opportunity to be heard.

Generally, when no offence is proved and the proceedings are dropped by

the Court, the property is returned to the person from whom it was recovered or
seized.ButwheretheCourtformsanopinionthatthepropertyhasbeenobtained
bysuchpersonbymeansofanyoffence,itmaynotorderdeliveryoftheproperty to him
but decide about its disposal on merits of thecase.

The order of the Magistrate under Section 457 relates only to the
possession of the property and not the ownership of it. The Court has to exercise
its judicial discretion to ensure that the property is returned to the rightful
possessor, if it is not required to be produced before the Court at the time of
inquiry or trial whenever it begins.

Once the property is seized by the Police under the circumstances

mentioned above, irrespective of the fact whether the investigation by the police
discloses an offence or not, the disposal of the property can only be ordered by
the Court, and police have no power to order disposal of the seized property
without an order of a judicial Magistrate under this section.

Before returning the property to the person from whose possession it was
seized or recovered or to any other rightful possessor thereof, the Court has to
ensure that two conditions are fulfilled, namely, (1) it must have been seized by
the police; and (2) it is not required to be produced before the Court at the time
ofinquiryortrial.Ifthepropertyislikelytoberequiredforproductionbeforethe Court
in inquiry or trial, then it may bewithheld.

Theprovisionsofthissectionhavenoapplicationincaseofseizurebythe
officials of the forest department or the Excise or Customs department. Thus the
seizure of a truck and a trolley by the Forest Ranger under the Wild Life
Protection Act could not be said to be a seizure by the police within the meaning
of Section 457 and, therefore, an application under this section is not
maintainable.

Likewise, since the seizure by customs official cannot be said to be a

seizure by the police, therefore, the Magistrate has no power under Section 457
to order release of the property seized by the customs officials.

IncaseswheretheMagistratehasnopowertoholdinquiryortrialundertheCode but
only has the power to commit the case to the Court of Session, he will have no
jurisdiction to pass an order of disposal of the seized property under Section 457
of Cr.P.C.
 In Moosakoya v. State of Kerala, the validity of confiscation of vehicle
whichwasusedforillegaltransportationofsandwaschallenged.TheHighCourt held
that the District Collector was not vested with the power to confiscate a vehicle,
hence vehicle seized was liable to be returned to the owner if he remits the
amount fixed by the DistrictCollector.

The Orissa High Court in Guru Charan Singh v. State of Orissa, held that
onreportofPoliceOfficerofseizureofpropertytoMagistratehavingjurisdiction to try
the offence, the Magistrate could release the seized property in interim custody
of the owner under Section 457 of the Code of CriminalProcedure.

PROCESS TO COMPEL APPEARANCE

There are 4 ways or processes to compel a person to appear in court viz:

A) Summons (Sec61-69)

B) Warrant of Arrest (Sec.70-81)

C) Proclamation and Attachment (Sec.82-86)

D) Other processes (Sec.87-89)

Summons: - A summons is a form of a process issued by a court, calling upon a

person to appear before a magistrate.

Form of Summons: - Summons shall be in writing, in duplicate, and must be

signed by the presiding officer of the court. It bears the seal of the court. It is to
be noted that a summons should be clear and specific in its terms, as to the
descriptionofcourt,theplace,dateandtimeatwhichthepersonsummonedisto attend.
 Summons may be served by a police officer or an officer of a court or a
publicservant.Itmaybeservedtoapersonconcernedi.eanaccused,orawitness or the
Head of the Institution / Organization, where the person summoned is
employed.

Procedure for Service of Summons: -

Personal Service (Sec 62): - Summons shall be served as far as possible,

personallytothepersonsummonedbydeliveringhimthefirstcopyandshallget the
acknowledgement by obtaining his signature on the back of theduplicate.

Service of Summons on corporate bodies and societies (Sec 63): - Service of

summons on corporation or society may be effected by serving it on –

a) TheSecretary

b) Local Manager

c) Other PrincipalOfficer

d) Service by letter sent by registered post to the chief officer of corporation in

India.

Service on member of the family (Sec. 64): - If the person summoned is not
found it may be served to an adult male member of the family. It is necessary to
establish that all necessary efforts are made to find the person summoned.

Substituted Summons (Sec 65): - Service when other method fails:

In case, it is not possible to serve summons under above means Sec. 65 of the
code provides for substituted service. If the summons could not be served in
personaduplicatecopyofthesummonsistobeaffixedtosomeconspicuouspart of the
house. (Dooretc)
Serviceofsummonsonpublicservant(Sec66):-Incasethepersonsummoned is a
public servant, it is to be served to the Head of Department. The Head of
Departmentshallseethatitispersonally,servedtohimandtheduplicatecopyof the
summons duly signed by the HOD must be returned to thecourt.

Service of summons outside the limits of jurisdiction (Sec. 67): - When the
courtservesummonedoutsideitsjurisdictionshouldbeservedinduplicatetothe
magistrate of the local jurisdiction, where the person summonedresides.

Serviceofsummonsonwitnessesbypost(Sec69): -Wheresummonsisserved to
witness, a copy of the same should be sent simultaneously to his residential
address by the registeredpost.

B) Warrant of Arrest (Sec 70-81): - Ordinarily a warrant is issued only in

serious cases and after a duly served summons is disobeyed or if the accusedhas
willfully avoided the service ofsummons.

Warrantmeansawrittenorderofacourtaddressedtooneormorepoliceofficers
directing to arrest a person whose name and address is given with the offence
charged, for the purpose of producing him before the court on a specified date
and time.

Requirements of a Valid Warrant: -

i) It must be inwriting.

ii) It must be signed by the presiding officer of the court issuing thewarrant.

iii) It must bear the seal of thecourt.

iv) it must contain the description of the person to be arrested with sufficient
certainty so as to identify himclearly.

v) It must clearly specify theoffence.

vi) It must also name the person who is to execute suchwarrant.

A warrant of arrest is normally to be directed, to one or more police

officers, but if no police officer is immediately available, a warrant of arrest can
be directed to any other person.

Power to direct security to be taken (Sec 71): -

Any court issuing a warrant for the arrest of any person may in its
discretion direct by endorsement on the warrant that, if such person executes a
bondwithsufficientsuretiesforhisattendancebeforethecourtataspecifiedtime and
thereafter until otherwise directed by the court, the officer to whom the warrant
is directed, shall take such security and shall release such a person from
thecustody.

Sec 73 empowers the CJM or Magistrate of First Class to direct a warrant to any
person within his local jurisdiction for the arrest of –

i) Any escaped convicts–

ii) Proclaimed of offenderor

iii) Any person accused of a non – bailable offence, who is avoidingarrest.

Notification of substance of Arrest (Sec 75): -

ThePoliceofficertowhomwarrantisaddressedshallnotifythesubstance of the
warrant to the person to be arrested, and shall show it to him ifnecessary.
Person arrested to be brought before Magistrate without delay (Sec 76): -
Afterarrestismade,thepersonarrestedshouldbepresentedbeforethemagistrate
within 24 hours. The journey period from place of arrest to the court is excluded
for the purpose of computing 24hours.

Where warrant may be executed (Sec. 77): - The warrant may be executed
anywhere in India.

Warrant forwarded for executed outside Jurisdiction: -

Wherewarrantistobeexecutedoutsidethejurisdiction,suchwarrantmay
beforwardedbyposttotheconcernedExecutiveMagistrateorSuperintendentof
Police or Commissioner of police so as to cause execution of thatwarrant.

Difference between Summons and Warrant: -

1) Summons is an order to a person to appear before thecourt.

Warrant is an order to a police officer to arrest and produce the person.

2) Absconding for avoiding the service of warrant ispunishable.

But absconding for avoiding the service of summons is not punishable.

3) The provisions relating to substituted service of summons are peculiar to the

case of summons and do not apply towarrant.

C) Proclamation and Attachment (Sec 82-86): - When the Summons served

and warrant issued could not serve the purpose of making / compelling the
appearanceofthepersonaccusedofanoffence,thecourtmayresorttofurther
stepofproceedingu/s82&83andissueproclamationandattachpropertyofthe
accused.

Proclamation (Sec. 82): -

ThewordProclamationliterallymeansannouncement.Whereapersonis
accused of an offence absconds or conceals himself, the court resorts tocompel

his appearance before the court by the process called ‘Proclamation’. The word
‘abscond’ means ‘to hide himself’.

The court may publish a written proclamation requiring him to appear at a

specifiedplaceandatspecifiedtime,whichshouldnotbelessthan30daysfrom the date
of publishing theproclamation.

Such a proclamation is to be published as follows: -

i) It must be publicly read in some conspicuous place of the town in which such
person ordinarilyresides.

ii) It must be affixed to some conspicuous part of the house whose such person
ordinarily resides.

iii) A copy of the proclamation must also be affixed to some conspicuous part of
thecourt.

iv) If the court so directs, a copy of the proclamation is also to be published in a

daily newspaper.

The proclamation which does not mention the time within which the abscondent
should remain present himself, proclamation is void.
Attachment of Property (Sec 83-85): - At any time after the issue of the
proclamation, the court may issue an order of attachment of any property,
movable or immovable, of the proclaimed offender. Such an order of attachment
can also be issued simultaneously with the proclamation in the following two
cases:

i) If such a person about to dispose of the whole or any part of his propertyor

ii) If such person is about to remove the whole or any part of his property from
the local jurisdiction ofcourt.

If the property ordered to be attached is a movable property, the attachment shall

be made –

a) by seizure or

b) by the appointment of receiveror

c) by an order in writing prohibiting the delivery of such property to the

proclaimed person or to any one on hisbehalf.

If property ordered to be attached is immovable, attachment to be made through

collector and in all other cases –

a) by taking possessionor

b) by the appointment of a receiveror

c) by an order in writing the payment of rent on delivery of property to the

proclaimed person or to any one on his behalfor

d) any manner as court thinksfit.

 If the property ordered to be attached consists of live stock, or is of a
perishable nature the court may order immediate sale thereof.

If the proclaimed offender appears within the time specified in proclamation, the
court releases the property from attachment.

Ifhedoesnotappear,thepropertyremainsatthedisposalofthestategovernment and
may be sold after six months after the date ofattachment.

The sale proceeds must be kept in deposit for two years.

search-warrant

Legal provisions regarding when search-warrant may be issued under section 93

of the Code of Criminal Procedure, 1973.

(1) (a) Where any Court has reason to believe that a person to whom a summons
ororderunderSection91orarequisitionundersub-section(1)ofSection92has
been,ormightbe,addressed,willnotorwouldnotproducethedocumentorthing
asrequiredbysuchsummonsorrequisition;or(b)Wheresuchdocumentorthing is not
known to the Court to be in the possession of any person;or

(c) When the Court considers that the purposes of any inquiry, trial or other
proceeding under this Code will be served by a general search or inspection, it
may issue a search-warrant, and the person, to whom such warrant is directed,
may search or inspect in accordance therewith and the provisions hereinafter
contained.

(2) The Court may, if it thinks fit, specify in the warrant the particular place or
part thereof to which only the search or inspection shall extend; and the person
charged with the execution of such warrant shall then search or inspect only the
place or part sospecified.

(3) Nothing contained in this Section shall authorize any Magistrate other than a
District Magistrate or Chief Judicial Magistrate to grant a warrant to search fora
document,parcelorotherthinginthecustodyofthepostalortelegraphauthority. A
search-warrant under Section 93 can be issued only in threecases:

(i) WheretheCourthasreasontobelievethatthepersonsummonedtoproducea
document or thing will not produceit;

(ii) Where the document or thing is not known to be in the possession of any
person;

(iii) Where a general inspection or search isnecessary.

Search-warrant should be issued on petition using the Form No. 10 in Schedule

II of the Code. The Magistrate may amend the warrant dispensing with the
production of the articles before him.

The warrant must:

(a) Be in writing,and

(b) Contain all the matters that the law requires it to be statedtherein.

The Court issuing the search warrant under Section 93(1)(a) must have reasonto
believe that the person against whom the search warrant is issued is not likely to
producethedocumentorthinginhispossessioninpursuanceofameresummons or
order under Section 91 or a requisition under Section 92(1). The Magistrate
should give reasons for exercising his discretion in granting the issue of search-
warrant.

The search under Section 93 must be for some specific article or thing or
document and not for stolen property. The law does not authorize for search of
anything but specified articles which have been or can be made the subject of
summons or warrant to produce. A general search-warrant can only be issued if
the Court considers that the purpose of any enquiry, trial or other proceeding of
the Code would be served by such search. General search warrant cannot be

issued when the person, in whose possession a thing lay, is known andthe
place where the things lay is alsoknown.

Magistrate should not issue search-warrant on mere asking of a party.

Instead, he must conduct necessary enquiry, apply his judicial mind and satisfy
himself objectively about its necessity and record reasons in support of his
satisfaction.

A search warrant issued under section 93 should ordinarily be directed to

one or more police officers. The Court may also issue search-warrant under
section93toanyotherpersonifitsimmediateexecutionisnecessaryifnopolice officer
is immediatelyavailable.

The power of search given by this Section includes also the power to take
possession of the document or thing. When documents or things seized by virtue
of a search-warrant are brought before the magistrate, he would have power to
allow the parties inspection thereof in Court.

Where the person against whom a search warrant is issued prays for the
stay thereof and offers to produce the document or thing before the court
wheneverrequired,themagistratehasjurisdictiontostayexecutionofthewarrant
conditionally on the execution of abond.

A search in contravention with the provisions of section 93 is clearly

illegal.ApetitionunderArticle226oftheConstitutionwouldlieforquashingan illegal
search-warrant and for returning seized document orthing.

A revision also lies against an order of illegal search-warrant. A person

aggrieved by an illegal search has also remedy in a civil court for an actionable
trespass. A suit for damage in such circumstance lies against those who have
executed an illegal search-warrant.

Anissuanceofsearch-warrantisaseriousmatteranditwouldbeadvisable not to
dispose of an application for search-warrant in a mechanical way. A clear
application of mind by the Magistrate must be discernible in the order granting
thesearch-warrant.

CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS.

SECTION 190.Cognizance of offences by Magistrates.

Thewordcognizanceisofgreatimportanceandhastobeunderstoodwell as a
student and as a professional in the field of law whether in the capacity of a
lawyerorajudgebecausethistermformstheveryessenceoftheentireprovision of law.
The word cognizance is defined in the Wharton’s Law Lexicon, 14thedition, as
‘the hearing of a thing judicially’. It has been held that the cognizance therefore
has a reference to the hearing and to the determination of the case in connection
with the commission of an offence and not merely to a
magistrate’slearningthatsomeoffencehasbeencommittedandhisorderingthat the
matter be investigated. The criminal proceedings are not instituted until the
magistrate has taken cognizance of an offence alleged under one or other of the
clauses of sub section (1) of this section. The mere presentation of a challan by
the police under section 173 in a magistrates court or the mere presentation of a
complaint by a private individual does not constitute the institution of criminal
proceedings. Thus the power to take cognizance on a complaint is not unguided.
The magistrate verifies the complaint; he can refer it to the police investigation,
he can take evidence himself. The section authorizes the magistrate to take
cognizance under any one of the three clauses. But for taking cognizance the
magistraterequiressomethingmore.Themagistratemustapplyhismindtothe
facts of the case and decide on a course of action in furtherance of such
application of mind for the purpose of further proceedings with the matter in
accordance with the subsequent provisions of the code. Thus, it also has to be
kept in mind that cognizance and commencement of the proceedings are not

synonymousintheirconnotation.Cognizanceissomethingpriorto,anddoesnot
necessarilymean,thecommencementofthejudicialproceedingsagainstanyone.
Theexpression‘totakecognizance’hasnotbeendefinedinthecodenordoesthe code
prescribe any special form of taking cognizance. The word cognizance is
however used in the code to indicate the point when the magistrate takes judicial
notice of an offence. It is a word of indefinite import and is perhaps not always
used in exactly the same sense. Thus, it would mean applying one’s mind to the
facts stated in the report and then proceeding further in the matter under the
relevant provisions of the code. In its broad and literal sense it means taking
notice of an offence and would include the intention of initiating judicial
proceedings against the offender in respect of that offence or taking steps to see
whetherthereisanybasisforinitiatingjudicialproceedings.Atthestageoftaking
cognizancethemagistratehassimplytobesatisfywhethertheallegationsagainst the
accused prima facie make out a case for trial or not and nothing beyond that. On
receiving a complaint the magistrate may come to a conclusion that there is no
ground for proceeding with the case and in that case the complaint is to be
dismissed under section 203. If however he finds that there is a case for
proceedingwiththecomplainthetakescognizanceunderthissectionButifheis unable
to come to either of these conclusions he may either order an enquiry
undersection202oraninvestigationundersection156(3).Section191:Thewords “
shall ......is entitled” are mandatory and a magistrate cannot refuse to comply
with them. Silence on the part of the accused to take any objection as to the trial
byamagistratetakingcognizanceofthecaseagainsthimunderclausecinthe
face of the obligation imposed on the magistrate by law to inform the accused of
hisrighttoobjecttothetrailbysuchmagistrate,cannotprejudicehim,andthere cannot
be any waiver of his rights in such a case. The accused, if he elects to be tried
by another court, must signify his election before any evidence istaken.

Section 192:This section deals with the transfer of cases by magistrates, as

section 407 deals with transfers by high court, section 406 with transfers by
supremecourtandsection408and409withtransfersbysessionjudges.Thechief
judicial magistrate may transfer cases to magistrates subordinate to him. The
jurisdiction under this section may be exercised by a chief metropolitan
magistrate or a magistrate in respect of cases of which cognizance was taken by
theirpredecessors.Thetermsofthesectiondonotrequiretheorderoftransferto be in
writing. Subsection 1 refers to the cases in which the cognizance has been taken
by the chief judicial magistrate himself, whereas subsection 2 empowers
thechiefjudicialmagistratetoauthorizeanyfirstclassmagistratewhohastaken
cognizance to transfer cases to a specifiedmagistrate.

Section193:Section193ofthecodecompletelybarsthetakingofcognizanceof any
offence by the court of sessions as a court of original jurisdiction without
commitment in absence of any express provision to the contrary in the code or
any law for the time being in force. The section is in a way a disabling one.
Though the section is to be strictly interpreted, it is subject to the exception
contained in the words “ except otherwise expressly provided in the court”.
Section 195:This section speaks that no court shall take cognizance of any
offence under the mentioned sections of the IPC except on complaint in writing
ofthepublicservantconcerned.Thissectionisoneofthesectionswhichprohibits
acourtfromtakingcognizanceofcertainoffencesunlessanduntilacomplaint
has been made by some particular authority or person. This section creates an
absolutebaragainstthecourttakingcognizanceofthecasesexceptinthemanner
provided by the section. As the section bars the jurisdiction of the magistrate to
takecognizance,ifhedoestakecognizanceagainsttheprovisionsofthissection,
thecognizancewouldbeillegalandwithoutjurisdiction.Theobjectofthesection

is to safeguard against the irresponsible and reckless prosecutions by private

individualsinrespectoftheoffenceswhichrelatetotheadministrationofjustice and
contempt of lawful authority. It is to minimize the possibility of needless
harassment by rash, baseless or vexatious prosecution. As per sub section 1 (b),
theoffencemusthavebeencommitted“inorinrelationto,anyproceedinginany court”.
These words are of very general and wide import and cover proceedings in
contemplation before a criminal court.

Section 196: This section is again a disenabling section and not enabling.
Cognizance of offences under sub section 1 can only be taken on a complaint
sanctioned by the government. The object of the sanction is to prevent
unauthorized person from intruding in state affairs by instituting state
prosecution. Thus prior sanction of the government is necessary. Thus sanction
after filing of the complaint does not fulfill the requirements of this section. In
absence of sanction, the prosecution is illegal. Subsection 2 only applies to a
prosecution for conspiracy punishable under section 120-B of the IPC.

Section 197:Public servant must be one who is removable from his office either
by the government or with the sanctionof the government. No court shall take
cognizanceofanoffencecommittedbyapublicservantexceptwiththeprevious
sanctionofthecentral/stategovernmentwherethepersonisorwasatthetimeof
the commission of the offence employed, in connection with the affairs of the
union.

It was held in state of Orissa vs ganesh chander jew (2004 CrLJ 2011 S C)
that the expression ‘no court shall take cognizance of such offence except with
theprevioussanction’usedinsection197(1)ofthecodemakesprotectiontothe public
servant mandatory. Further the words ‘no’ and ‘shall’ bars thevery

cognizance of the complaint by any court without obtaining previous sanction of

the central or state government, as the case may be. It was further held that the
useofexpression‘officialduty’impliesthatactoromissionmusthavebeendone by the
public servant in the course of his service and it should have been done in
dischargeofhisduties.Thissectiondoesnotextenditsprotectioncovertoevery act or
omission done by a public servant in service but restricts its scope of operation
to only those acts or omissions which are done by a public servant in
dischargeofofficialduties.Furthertheexpression‘whoisorwas’showsthatthe
sanction is required even in cases where a retires public servant is sought to be
prosecuted. The object of the section is primarily to guard against vexatious
proceedingsagainstpublicservantssothattheydotheirworkwithdedicationand
fearlessly. Thus before such criminal proceedings are launched against public
servants, it has been considered proper that the well-considered opinion of a
superior authority is obtained. Thus, before this section is invoked the following
conditions must besatisfied:

a) The person accused of an offence is or was a publicservant,

b) The accused must be a person removable from his duty only with the sanction
of the state government or of the central government according to whether the
personisemployedinconnectionofhisaffairsofthestateorcentralgovernment,
c) Hemustbeaccusedofanoffenceallegedtohavebeencommittedbyhimwhile acting
or purporting to act in the discharge of his officialduties,

d) Heisorwasemployed,atthetimeofthecommissionoftheallegedoffence,in
connection with the affairs of the union or state, as the case may be. If these
conditions are not fulfilled, the case will not attract the protection which is
afforded by thissection.

Section198:Thussectionlikesections193,195and197regulatesthecompetence of
the court and bars its jurisdiction in certain cases. What this section does is to
prohibit cognizance except upon complaint made by the person aggrieved with
certain exceptions. Thus a complaint by a person other than the one aggrieved
may be made only with the permission of the court. Section 198-A:A court can
takecognizanceofanoffenceundersection498-AIPConapolicereportoffacts which
constitute an offence. At the same time the relative of the married woman
asenumeratedinsection198-AC.r.P.C.canalsofileacomplaintinregardtothe offence
under section 489-A IPC. To eradicate the evil of dowry demands and
theconsequentharassmenttothemarriedwomen,theparliamentenactedthisact under
which the husband or relative of the husband is punishable with imprisonment
upto 3 years in case cruelty was caused to the marriedwoman.

Section 199:

Provisionsofthissectionaremandatoryandprovidethatacomplaintcanonlybe made
by the aggrieved person. Therefore, if the magistrate takes cognizance of
theoffenceofdefamationoncomplaintfiledbyonewhoisnottheaggrieved,the trail
and the conviction will be illegal. Sub section 2 is to save a public servant
fromtheembarrassmentofaprivateprosecutioninrespectofadefamatory
statement made against him in the discharge of his public duties. It is aimed to
protect the high dignitaries set out in the section.

COMPLAINT

Complaint: - When an offence is committed or to be committed, any member

of the public, in the interest of justice, has a duty to –

1) Report the matter to the policeor

2) May file a complain with the magistrateor

3) May doboth.

If the report is made to the police it is called FIR and the person who has given
the report is called ‘Informant’. In case the matter is complained with the
magistrate it is called ‘Complaint’ and the person, who lodged the complaint is
called ‘Complainant’.

The code has not defined FIR but Sec. 154 of the code lays down the procedure
for recording FIR. Sec. 2(d) of the code defines complaint.

Sec 2(d): - "Complaint" means any allegation made orally or in writing to a

Magistrate, with a view to his taking action under this Code, that some person,
whether known or unknown, has committed an offence, but does not include a
police report.

Just as plaint is filed in a civil court, complaint is lodged to institute criminal

proceedings against the accused.

Distinction between Complaint and FIR: -

Complaint FIR
 1) It is defined u/s 2(d) of this code. 1) It is not defined under this code.

2) It is an allegation made orally or 2) It is information given to a police

in writing made to a magistrate as officer as to the commission of an
the commission of an offence. offence.

3) The person lodging the complaint 3) The person giving FIR need not
must take oath. (complainant) take oath (informant)

4) The complaint is liable for 4) The informant is not liable for

prosecution in the event, the prosecution if the information by him
complaint is found false. is found false.

5) Complaint itself is substantial 5) FIR is not substantial evidence.

evidence.

6) It refers to both cognizable and 6) It refers only to cognizable offence.

non cognizable offence

Complaints to Magistrates (Sec 200-203): -

Sec. 200 –

i) The magistrate must examine on oath the complainant, and his witnesses, if
any at sufficient length, to satisfy himself as to the veracity of the complaint or
as to any point on which it is silent or on which there may be anydoubt.

Object: - Is to find out whether the allegations make out a prima facie case to
enable him to issue a process.

ii) If the magistrate finds no prima facie reason the distress the complainantand
the fact constitute an offence under the law he must issue a processforthwith.

iii) If he distrust the complainant altogether or if no offence is made out hemust

dismiss the complaint.
iv) If however, his distrust is not sufficiently strong the warrant action uponit,
he can postpone the issue of process, pending further inquiry u/s202.

If the complaint is made to any magistrate who is not competent to take

cognizance of the offence, he must –

a) If the complaint is in writing, return for presentation to the proper courtwith

an endorsement to thateffect,

b) If the complaint is not in writing direct the complainant to go to theproper

court.

Sec. 202: - The Magistrate may also postpone the issue of process against the
accused and either inquire into the case himself or direct an investigation to be
made by a police officer u/s 156(3) or any other person as he may think fit, for
the purpose of deciding whether or not there is a sufficient ground for
proceeding in the matter.

No such direction for investigation can be made –

When the offence complained of is exclusively triable by the court of sessions

or

Sec 203: - After considering the statements of the complainant and witnesses
after inquiry or investigation the magistrate is of the opinion that there is no
sufficient ground for proceeding further in the matter, he must dismiss the
complaint and must also briefly record his reasons for doing so.

Court may dismiss the complaint if the dispute is of civil nature and it is dressed
up in criminal garments.
CHARGE

Theterm‘Charge’literallymeansaccusation.Forthepurposeoftrialprocedures under
the code it signifies a formal accusation in writing against a person that he
committed anoffence.

It consists of a notification to the accused of an offence, which he is alleged to

have committed and which he is required to plead.

Thepurposeofchargeistotelltheaccusedaspreciselyandconciselyaspossible about
the matter with which he ischarged.

The object of charge is to warn the accused of the case which he has to answer.

Form and contents of a charge: -

Sec.211–214ofthecodedealswiththeprovisionsrelatingtoformandcontents of the
charge as stated below:-

1) The charge must contain the offence with which the accused ischarged.

2) If the law gives the offence any specific name, the offence may be described
bythatnameonly.Foreg.If‘A’isaccusedofmurder,thechargemaystatethat: A
committed murder without reference to the definition of thosecrimes.

3) If the offence charged has no name its description should bemade.

4) The law and section of the law against which the offence is said to be
committed shall be mentioned in thecharge.

For eg. If he commits murder, he is charged with murder u/s 300 of IPC.

5) The charge shall be written in the language of thecourt.

6) If prosecution is intended to prove previous conviction for enhance

punishment, the fact, date and place of previous conviction is also stated in the
charge.
7) It must contain the particulars as to time and place of the allegedoffence.

EffectsofErrorsinthecharge(DefectiveCharge):-Anerrorinchargewhich
misleadstotheaccusedandresultedintofailureofjustice,itissaidthatchargeis
defective.

When the accused did not take any objection to the defect in the form of the
chargeattheearliestpossibleoccasionandnoprotestwasmadeonbehalf,itwas held
that the irregularity had not occasioned any failure ofjustice.

Sec. 464 provides for a retrial of the accused when a charge contains a material
error which has occasioned a failure of justice.

Alteration and Addition to the charge: - Sec. 216 Court has power to alter or
add to any charge at any time before the judgement is pronounced.

However every such alteration or addition must be read and explained to the
accused.

Afteralterationoradditionofcharge,courtmayrecallorre-summonanywitness
whohasalreadybeenexaminedorcallanyfurtherwitnesseswhoarematerialto that
context.

Joinder of Charges Sec. 218-224: - Joinder of charges means merger of two or

morecharges.Thirdlyjoinderofoffendermeansmergeroftwoormoreoffenders to be
triedtogether.

Joinder of charges: - Where different offences are committed by the same

person, he may be charged with and tried at one trial for each such offence. In
otherwordswhenapersonaccusedofdifferentcharges(viz.robbery,murderetc) is
tried simultaneously for all the charges in a single trial, it is called Joinder of
Charges. It is an exception to the BasicRule.

BasicRule(Sec.218(1)):-Whenapersonisaccusedofdifferentoffences,there shall
be a separate charge and each charge shall be trieddifferently.
Exceptions: - Strict compliance to the above basic rules results in certain
problems viz. multiplicity of proceedings, waster of time, energy and money to
accusedetc.thecodeprovidesforcertainexceptionstotheaboveruleasfollows:
-

1) At the desire of the accused (Sec 223): - The accused may apply in writing
that different charges against him may be tried at one trial. All such chargesmay
be tried jointly if the magistrate thinksfit.

2) Three offences of same kind (Sec. 219): - When a person is accused ofmore
offencesthanoneofthesamekindcommittedwithinoneyear,whetherinrespect of the
same person or different person, he may be charged with and tried at one trial
for any number of hem not exceedingthree.

3) Different offences in the same transaction (Sec. 220(1): - If a person is

accusedofdifferentoffencesinthesametransaction,hemaybetriedatonetrial.

For eg. ‘A’ causes hurt ‘B’ while committing theft.

4) Offences of criminal breach of trust and allied offences: - Where a person

is charged with one or more offences of criminal beach of trust or dishonest,
misappropriation of property, he may be charged with one or more offences of
falsification of accounts committed for canceling of facilitating the commission
of such offence.

5) Same Act falling under different offences: - Single act may constitute
different offences. For eg. ‘A’ strikes wrongfully ‘B’ with a cane. He maybe
charged with two offences namely hurt u/s 323 and assault u/s 352 of IPC. He
may be tried jointly for the offences. Sec. 220(3)

Acts forming an offence also constitute different offences when taken

separately. Sec. 220(4): - An act which constitutes one offence may constitute
different offences under different circumstances. for eg. A commits robbery on
B, and in doing so voluntarily causes hurt to him. A may be charged separately
with and tried at one trial of offences u/s 394 and 323 of IPC.

When it is doubtful to identify which of the offences has been committed: -

Apersonisaccusedofanact,butitisnotpossibletoidentifywhethersuchactis theft or
criminal breach of trust, or cheating etc, then he may be charged with all the
offences and may be triedjointly.

Joinder of persons Sec 223: - Joinder of person / offenders means merger of two
/ more persons to be tried together.

According to Sec. 223, the following persons may be charged and tried together.

a) Persons accused of the same offence committed in course of the same

transaction.

b) Personsaccusedofanoffenceandpersonsaccusedofabetment,oranattempt to
commit suchoffence.

c) Personsaccusedofcommittingjointlymorethanoneoffencesofthesameking
(within the meaning of Sec. 219 committed by them jointly) within 12months.

d) Persons accused of different offences committed in the course of the same

transaction.
e) Persons accused of theft, extortion, cheating etc and persons accused of
receiving retaining, disposing of stoleproperty.

f) Personsaccusedofoffencesrelatingtocounterfeitcoinandpersonsaccusedof
attempt or abetment for thesame.

TRIALS

SUMMONS TRIALS (SEC 251 - 259)

Summons cases are less serious in nature than warrant cases. So the trial
procedure in such cases is no as elaborate as in warrant cases. The procedure
contains the following stages: -

1) Explain the substance of accusation (Sec 251):-

In a summons case, when the accused appears or is brought before the

magistrate, the particulars of accusation shall be stated to him.

It is not necessary to frame a charge. The court, then asks the accused to plead
guilty or claim to be tried.

2) Conviction on plea of guilty (Sec. 252):-

If the accused pleads guilty, the magistrate has to record his plea and may
convict him. If the number of accused persons is more than one, the plea of each
accused should be separately recorded on in own words after the accusation is
read over to him.

3) Conviction in the absence of accused in petty cases (Sec 253):-

Whereasummonshasbeenissuedu/s206andtheaccuseddesirestoplead guilty
to the charge without appearing before the magistrate, he shall transmitto
the magistrate, by post or by messenger, a letter containing his plea and also the
amount of fine specified in the summons.

The magistrate may, is his discretion, convict the accused in his absence,
on his plea of guilty and sentence him to pay the fine specified in the summons,
and the amount transmitted by the accused shall be adjusted towards that fine,or
where a pleader authorized by the accused in this behalf of the accused, the
magistrate shall record the plea, as nearly as possible in the words used by the
pleaderandmay,inhisdiscretion,convicttheaccusedonsuchpleaandsentence him
asforesaid.

4) Hearing of the prosecution and defence or procedure when not convicted

(Sec 254): - If the accused does not plead guilty, the magistrate does not convict
and hear –

a) Prosecution evidence and

b) Evidence produced for defence and may summon the appearance ofwitnesses
ifnecessary.

If the magistrate does not convict the accused u/s 252 / 253 the magistrate shall
proceed to hear the accused and take all such evidence as he produces in his
defence.

The magistrate if he thinks fit, on the application of the prosecution of the

accused, issue a summons to any witness directing him to attend or to produce
any document or other thing.

The magistrate may, before summoning any witness on such application,

require that the reasonable expenses of the witness incurred in attending for the
purpose of the trial be deposited in court.
5) Acquittal or Conviction (Sec 255): - If the magistrate after taking the entire
evidence finds the accused not guilty, he shall record an order or acquittal. If the
magistrate finds that accused guilty, he is required to pass a sentence on him
according tolaw.

Butafterconsideringthecharacteroftheoffenderandnatureoftheoffence and
the circumstances of the case, the magistrate may instead of passing the
sentence, decide to release the offender after admonition or on probation on his
conduct u/s 360 or under the probation of offenders Act1958.

6) Non – appearance or death of complainant (Sec 256):-

Thecomplainantshallappearbeforethecourt/magistrateonthedatefixed for
his appearance. If he fails to appear, the accused should be acquitted. In case of
death of the complainant, the accused may be acquitted or the hearing may be
adjourned.

Provided that where the complainant is represented by a pleader or by the

officer conducting the prosecution or where the magistrate is of opinion that the
personal attendance of the complainant is not necessary, the magistrate may
dispense with his attendance and proceed with the case.

7) Withdrawal of complaint (Sec 257):-

A magistrate has a discretionary power to allow withdrawal of complaint.

The complainant may be permitted to withdraw his complaint at any time before
a final order is passed and shall thereon acquit the accused against whom the
complaint is so withdrawn.

8) Power to stop proceedings in certain cases (Sec 258):-

 In any summons case institute otherwise than upon complainant, a
magistrate of First Class or with the previous sanction of the Chief Judicial

Magistrate,anyotherJudicialMagistrate,mayforreasonstoberecordedbyhim,
stoptheproceedingsatanystagewithoutpronouncinganyjudgementandwhere such
stoppage of proceedings is made after the evidence of one principal witnesses
has been recorded, pronounce a judgement of acquittal an in any other case,
release the accused, and such release shall have the effect ofdischarge.

9) Conversion of summons case into warrant case (Sec 259): - Sec. 259
empowers the magistrate to convert a summons case into a warrant case–

i) If the offence is punishable with imprisonment for more than six monthsand

ii) Ifheisoftheopinionthatitwouldbeintheinterestofjusticetotrysuchcase in
accordance with procedure for trial of warrantcases.

10) Compensationforwrongfulaccusation:-Thecompensationu/s250ofthe code

is applicable to summons casesalso.

WARRANT TRIAL

The provisions dealing with the trial of warrant cases by magistrates can be
divided into three categories.

A) Cases instituted on a policereport.

B) Cases instituted otherwise than on a police reportand

C) Provisions which are commonly applicable to all warrant cases whether

instituted on a police report or otherwise–

A) Trial of Warrant cases instituted on a police report (Sec 238 - 243):-

1) Supply of copies to the accused (Sec 238):-

When the accused person is brought before the court or appears before it
on his own, it is the responsibility of the magistrate to see that every document
like FIR statement of persons recorded during investigation etc is given to the
accused.

2) Discharge of Accused (Sec 239):-

Afterhearingfromthebothsidesifthemagistrateconsiderstheaccusation
against the accused is groundless, he shall discharge the accused and record
reasons for sodoing.

3) Framing of charge (Sec 240(1)):-

Thenthemagistrateshallframechargeinwriting,ifheisoftheopinionthat there
is ground for presuming that the accused has committed theoffence.

4) Explaining the charge to the accused (Sec. 240(2):-

The contents of the charge are to be read over and explained to the
accused. He shall be asked whether he pleads guilty or to be tried.

5) Conviction on plea of guilty (Sec241):-

If the accused pleads guilty the magistrate shall record plea and convict
him.

6) Finding date for examination of witnesses (Sec 242(1)):-

If the accused does not plead or refuses to plead or claims to be tied, the
magistrate shall fix a date for examination of witnesses.
 The magistrate may, on the application of the prosecution issue summons
to any of its witnesses, directing him to attend or to produce any document or
thing (Sec. 242(2).

7) Evidence for prosecution (Sec 242):-

Onthedatefixedforexaminationofthewitnessesthemagistrateshalltake
evidence produced by the prosecution. The magistrate may permit the cross –
examination of any witness to be deferred until any other witness has been
examined or recall any witness for further cross – examination. The magistrate
shall record theevidence.

a) Examination of witnesses

b) Record ofEvidence

8) Steps to follow the prosecution evidence:-

After the completion of prosecution evidence two important steps have to

be followed.

i) Theprosecutionmustbeallowedtosubmitoralargumentsandamemorandum of
arguments (Sec.314)

ii) The Magistrate has to examine the accused by putting some questions as per
Sec.313.

9) Evidence for Defences (Sec 243)

a) Examination of witnesses:-
 After completion of above steps, the accused shall then called upon to
enter his defence.

The magistrate is to issue process, if so desired by the accused, for

compellingtheattendanceofanywitnessforthepurposeofexaminationorcross
– examination or the production of any document or other thing. The magistrate
shall issue such process unless he considers that such application should be
refused on the ground that it is made for the purpose of vexation or delay or for
defeating the ends ofjustice.

b) Written Statement:-

If the accused files any written statement, the magistrate shall record the
same.

c) Record of Evidence:-

The evidence for the defence shall be recorded (as it was in case of trial
before Court of Session).

Arguments by parties / Advocates: -

Afterrecordingevidenceofboththeparties,thecourtshallproceedtohear the
court shall proceed to hear the arguments of the parties which shall refer to
facts, question of facts, and question oflaw.

Judgement for Acquittal or Conviction (Sec. 248): -

If the Magistrate finds the accused not guilty he shall record an order of
acquittal and if the accused is found guilty, he is convicted according to law.

B) Cases instituted otherwise than police report:-

1) Preliminary hearing of prosecution case (Sec 244):-

 When the warrant case is instituted otherwise than on a police report, and
the accused person brought before the court, the magistrate has to take all
evidence produced by the prosecution in support of its case.

2) Discharge of the accused:-

After going through the evidence submitted by the prosecution, if the

magistrate comes to the conclusion that no case has been made out against the
accusedwhichwouldwarranthisconviction,themagistratehastodischargethat
accusedperson.Indoingsothemagistratehastoexercisehisdiscretioncarefully and
record reasons for thedecision.

3) Framing of charge (Sec. 246(1):-

After going through the evidence submitted by the prosecution if the

magistrate comes to the conclusion that there is a prima facie case and he is
competent to try and punish the accuse for it, the magistrate shall frame a charge
against the accused.

4) Explaining the charge and plea of the accused (Sec. 246):-

Afterframingthecharge,thechargeshallthenbereadandexplainedtothe
accused and he shall be asked whether he pleads guilty or has any defence to
make.

5) Conviction on plea of guilty (Sec. 246):-

If the accused pleads guilty, the magistrate shall record the plea and may
in his discretion convict him thereon.

6) Choice of accused to recall prosecution witnesses (Sec. 246 (4 & 5):-

 Iftheaccusedrefusestopleadordoesnotpleadguiltyorclaimstobetried he may
be given an opportunity to cross examine prosecution witness and witnesses
name by him may berecalled.

7) Evidence for prosecution (Sec. 246(6):-

After completion of the procedure contemplated in point No. 5, the

evidence of the remaining witnesses for the prosecution shall be taken.

8) Evidence for the defence (Sec. 247):-

Later, the accused is called upon to produce his defence witness. If the
accused puts in any written statement the magistrate shall file it with record.

9) Acquittal or conviction (Sec 248):-

After hearing both the sides, if the magistrate finds the accused not guilty,
he shall record an order of acquittal and if the accused is found guilty he is
convicted to law.

C) Common provisions regarding conclusion of Trial:-

1) Acquittal / Conviction (Sec. 248):-

In every case, where the charge has been framed, if the magistrate finds
theaccusednotguiltyheshallrecordanorderofacquittal.Ifhefindstheaccused guilty,
passes sentence according tolaw.

2) Previous Conviction (Sec 249):-

 Wheretheaccuseddoesnotadmitpreviousconvictionthemagistrateafter
convicting the accused, takes evidence in respect of alleged previousconviction.

3) Compensation for accusation without reasonable cause (Sec 250):-

Sec. 250 empowers the magistrate to award compensation to the accused.

Where accusation is made without reasonable cause, the magistrate may acquit
or discharge him and may also order such person making the accusation to pay
compensation.

The amount of compensation shall not exceed the fine, which the magistrate is
empowered toimpose.

In case of default, such person has to undergo simple imprisonment for a period
not exceeding 30days.

Sessions Trial: Sn.225 to 237 Cr.P.C.

(i)SessionsCourt:TheSessionsCourtisthehighestcourtintheDistrictandhas
jurisdiction to conduct trials of offences including murder (302), culpable
Homicide not amounting to murder Sn.304 etc. as per the First Schedule to
Cr.P.C.Theseoffencesspecifiedtherein[intheSchedule]aretriableexclusively
bytheSessionsCourt.(ii)Committingtheaccused:Inacaseinitiatedonapolice report,
if the offence is one triable by the Sessions, theMagistrate

(a) ShouldcommittheaccusedtotheSessions(Noelaboratepreliminaryenquiry
isnecessary).
(b) He may remand him to custody or release him onbail.

(c) He should send all the record and documents and exhibits to thatcourt.

(d) He should notify the Public Prosecutor of the commitment of the case to the
Sessions. All the necessary documents (copies) are to be given to theaccused.

(iii) Opening of Sessions:

The trial is conducted by the Public Prosecutor. He opens the case by

readingoutthechargeandstatingbywhatevidenceheproposestoprovetheguilt of the
accused. The Judge, on consideration of the records and documents and hearing
the prosecutor and the accused, may discharge if there are no sufficient grounds.
He records his reasons for thedischarge.

(iv) Framing ofcharges:

If he finds that there are sufficient grounds he frames the charges, reads
and explains to the accused and asks him whether he pleads guilty or claims a
trial. If he pleads guilty, he may be convicted.

(v) Examination ofwitnesses:

If he does not please guilty or refuses to plead, the Judge fixes a date for
examination of witnesses. The witnesses may be examined in chief and cross-
examined. Their depositions are recorded. If after the prosecution evidence,
examination of the accused and hearing the prosecution and the defence, the
Judgeconsidersthatthereisnoevidence,herecordshisreasonsandacquitshim.

(vi) Defence: If not acquitted as above, he calls on the accused to enter his
defence.TheJudgefilesthewrittenstatement,ifany,putforwardbytheaccused.
He issues summons to his witnesses etc. The witnesses are examined and cross
examined. Their depositions are recorded.

(vii) Arguments: The public Prosecutor sums up his case and the defence gives
itsreply.Ifthedefenceputforwardanypointoflaw,theprosecutoranswerswith the
permission of thecourt.

(viii) Judgment:

After hearing the arguments, and the points of law, the Judge delivers the
judgement.

In case of conviction , he hears the accused on the sentence and passes the
sentence on him.

(ix) Appeal:

Appeals are allowed from the sessions to the High Court, within the period of
limitation. In case of death penalty: 30 days ; in case of any other penalty: 60
days.

SUMMARY TRIAL

Summary Trial means ‘Speedy Trial’ or without any delay of formal proceedings
i.e. in an informal manner. It should be restricted to simple cases and where
exhaustive evidence is not required.

1) Magistrate authorized to conduct summary trial (Sec. 260):-

Sec. 260(1) of the code empowers the following magistrate to try summarily:
- a) Any chief judicial magistrate

b) Any metropolitanmagistrate
c) Any of First Class specifically empowered in this behalf by the HighCourt.

d) Any magistrate of the Second Class empowered by the High Court in this
behalfmaytrysummarilyanyoffencepunishablewithfineorwithimprisonment for a
term not exceeding six months with or without fine and any abetment of or
attempt to commit any such offence.

2) Offences triable summarily (Sec. 260(2): -

i) Offencesnotpunishablewithdeath,imprisonmentforlifeorimprisonmentfor a
term exceeding twoyears.

ii) Theft, u/s 379, 380 and 381 of the IPC, where the value of the property stolen
does not exceed Rs.2000/-

iii) Receiving or retaining stolen property u/s 411 of the IPC, where the value of
such property does not exceed Rs.2000/-

iv) Assistingintheconcealmentordisposalofstolenpropertyu/s414oftheIPC, where

the value of such property does not exceed Rs.2000/-

v) Offences u/s 454 and 456 of theIPC.

vi) Insult with intent to provoke a breach of peace u/s 504 and criminal
intimidation u/s 506 of theIPC.

vii) Abetment of any forgoingoffences.

viii) Any attempt to commit any of the forgoing offences when such attempt is
anoffence.

ix) Any offences constituted by act in respect of which a complain may be made
u/s 20 of the cattle Trespass Act1871

Procedure for Summary Trial (Sec 262(1): -

 Normally the procedure followed in summary trial is summons case
procedure subject to the special provisions made in this behalf.

Punishment Sec. 262(2): -

The punishment under summary trial shall not exceed 3 months

imprisonment.

Record in summary Trials (Sec. 263): -

In the record prepared by the magistrate while conducting the summary

trial the following particulars must be present: -

i) Serial number of thecase,

ii) Date of commission of theoffence,

iii) Date of the report or thecomplaint,

iv) The name of thecomplainant,

v) The name, parentage and residence of theaccused.

vi) The offence complained of and the offence (if any) proved, and in cases
coming u/ c/ (2) or (3) or (4) of sub section (1) of Sec 260, the value of property
in respect of which the offence has beencommitted.

vii) The plea of the accused and hisexamination.

viii) Thefinding.

ix) The sentence or finalorder.

x) The date on which proceedingterminated.

The record of a summary trial is kept in the form prescribed by the state
government.Inasummarytrial,aformalchargeisnotframednoristheevidence of the
witnesses recorded. The magistrate must himself write these particulars in the
Register. He cannot depute that duty to hisclerk.

6) Judgement (Sec. 264):-

In every case tried summarily in which the accused does not plead guilty,
the magistrate shall record the substance of the evidence and a judgement
containing a brief statement of the reasons for thefinding.

7) Language of Record and Judgement (Sec 265):-

Every such record and Judgement shall be written in the language of the
court.Noappealliesfromasummarytrialifonlysentenceoffinenotexceeding Rs.
200/- has been awarded. But a revision application would however lie to the
High Court for trials conducted under summarytrials

BAIL

The term bail has not been defined in the code. It has been defined in the
Law Lexicon as – “Security for appearance of the accused person, on giving
which he is released pending trial or investigation.”

If put in ordinary language bail is nothing but procuring the release of a

person from legal custody by undertaking that he shall appear when and where
required by the court.

In simple words bail is a process by which a person arrested is released

from custody /detention.
Serious consequences will follow if a person is kept continuously in detention.

These consequences are: -

i) Accused person is forced to undergo both physical and psychological

deprivation by jaillife,

ii) Accused person would not be in a position to prepare his defenceeffectively,

iii) Even though he is kept in detention, in reality his innocent family members
are the real sufferers.

iv) Unless and until the trial is complete, we cannot say whether the accused is
an innocent or a culprit. It is universally accepted that a real culprit may escape
from the criminal liability, but an innocent must not bepunished.

Keeping in this mind, the bail provisions have been included in the Cr. PC

Thecodewithreferencetobail,categorizedcertainoffences,intotwocategories
namely –

1) Bailable offenceand

2) Non - bailableoffence,

1) Bailable offence:-

Bailable offence is one in respect of which a person arrested is entitled to

be released on bail from the custody or detention.

Sec.2(a)defines"bailableoffence"meansanoffencewhichisshownasbailable in the
First Schedule, or which is made bailable by any other law for the time being
inforce;

Generallytheoffencespunishablewithlessthanthreeyearsimprisonment
arebailable.
Sec.436ofthecodeconfersontheaccused,righttobailinbailableoffences.The court
may grant bail against reasonablesecurity.

2) Non – bailable offences:-

According to Sec. 2(a) of the code, the other offences which are not shown
as bailable under the First schedule are called “Non bailable offences”

Non – bailable offences are more serious, when compared to the bailable
offences.

Generally the offences for which punishment is 3 yrs imprisonment or more, are
non bailable. However this rule is subject to certain exceptions.

Distinction between Bailable and Non – Bailable offences: -

Bailable Offence (Sec. 2(a)) Non – Bailable offence Sec. 2(l)

1) The accused is entitled to be 1) The accused may not be released on

released onbail. bail.

2) The accused has a right to be 2) The accused has no right to be

released on bail. released on bail. However the person
accused of non bailable offence may
be released on bail, subject to judicial
discretion.
3) It is less serious is nature. 3) It is more serious in nature.

4)Generally,offencespunishablewith 4) Generally the offences punishable

imprisonment for less than 3 yrs are with imprisonment for 3 yrs or more
bailable. are non bailable.

5) A person to be accused of bailable 5) A person to be accused of non –

offence cannot apply for anticipatory bailable offence can apply for
bail. anticipatory bail.

Whether Release on Bail is mandatory: - It is mandatory in following

circumstances.

1) Not accused of Non-bailable offence (Sec. 436(1):-

Wherethepersonarrested/detainedwithoutwarrantisnotaccusedofa non–
bailableoffenceandispreparedtogivebail,theauthorityisrequired to release
him on bail. He may be released on bond withoutsureties.
2) Investigation Incomplete (Sec 167): -
Thepersonarrestedcannotbedetainedformorethan24hours.Within 24
hours he should be presented before the magistrate. The detention can be
extended beyond 24 hours for the purpose of investigation after obtaining
a special order from the magistrate. However, the period shall not exceed
90 days in case of investigation relating to an offence punishable with life
imprisonment or death sentence, imprisonment in a term of not less than
10 years and 60 days in case of otheroffence.
Iftheinvestigationisnotcompletedwithintheprescribedperiodof60or90days as
above, the person detained shall be released onbail.

3) No ground to believe to be Non – bailable (Sec 437(2)):-

A person may be arrested without warrant under suspicion of committing a

non bailable offence. But there is reasonable ground to believe at any stage of
investigation or inquiry or trial that the accused had committed a non bailable
offence. In such situation the accused shall be released on bail against a bond
without sureties.

4) Trial incomplete within 60 days (Sec. 437(b):-

Where the trial by a magistrate is not concluded within 60 days in respect

of a person accused of non – bailable offence (from the first date for taking
evidence) such person, subject to the satisfaction of magistrate shall be released
on bail.

5) No ground to believe guilt after Trial, but before the Judgement (Sec
437(7)):-

If after conclusion of trial, but before judgement, there is no reasonable

ground to believe the guilt, the accused shall be released on bail on execution of
a bond.

Anticipatory Bail (Sec 438): -

Anticipatorybailisanorderbythecourtdirectingtheauthoritiestorelease a
person on bail in the event of his arrest. When anticipatory bail is granted, the
person is arrested but released immediately the next moment. This is so because
that there is no question of release on bail unless a person isarrested.
Sec. 438 – Analysis: -

1) HighCourtortheCourtofSessionhasgotthepowertograntanticipatorybail.

2) Whenanapplicationisbadebyapersonwhohasreasontobelievethathemay be
arrested and that too in respect of the non bailable offence, anticipatory bail can
be granted. It means this is granted only in the case of non bailable offences and
that too when arrest isapprehended.

3) The object of anticipatory bail is to see that influential persons will not
implicate their rivals in false cases.

4) Granting the anticipatory bail the court must be satisfied that the person
seeking this bail is not likely to abscond or misuse hisliberty.

5) Anticipatory bail is an order issued by the court to release the person in the
event of hisarrest.

6) Anticipatory bail becomes operative only on arrest of theperson.

7) There must be a reasonable belief of arrest for a non - bailableoffence.

High Court or Court of Session may impose condition while granting

anticipatory bail: -

These conditions are: -

a) Person must make himself available for interrogation by police when and
whererequired.

b) Thepersonshallnotmakeanyinducement,threatorpromisetoanypersonfor
dissuading him from disclosing facts of the case to the court or to thepolice.

c) Without taking permission from the court, person should not leaveIndia.

Distinction between Ordinary order of Bail and Anticipatory Bail: -

 Ordinary order of bail is granted after arrest and means release from the
custodyofpolicewhereasanticipatorybailisgrantedinanticipationofarrestand
therefore effective at the very moment of arrest. The provisions of Sec. 438
cannot be invoked after the arrest of theaccused.

Howthediscretioningrantingbailhastobeexercisedincaseofnonbailable
offences (Sec.437):-

It is well settled law that granting of bail is a discretionary power of the

court in non bailable offences. Granting the bail is the rule and refusal of it is an
exemption.

I) Way of exercising discretion by the Court: - Certain circumstances have to

be taken into account for making a decision relating to the grant of bail. These
circumstances are:-

a) The seriousness of thecharge.

b) The nature ofaccusation.

c) The punishment and itsseverity.

d) The evidence supporting theaccusation.

e) The circumstances in which the crime wascommitted.

f) The status of the accused vis-à-vis the victim and thewitnesses.

g) The danger of witnesses being tamperedwith.

h) The chance of accusedabsconding.

i) The capacity of the accused committing moreoffences.

j) Opportunity to the applicant for preparation of his defence, and access to his
counsel.
k) The health, age and sex of the accusedperson.

II) No bail in case of an offence that attracts death penalty or imprisonment

for life as punishment (Sec. 437): - When the person is accused of committing
an offence punishable with death penalty or imprisonment for life, generallybail
isnotgranted.Butheretheremustbeeverypossibilityofaccusedcommittingthe above
mentioned grave offence, mere possibility is notenough.

Buttherearecertaincategoriesofpersonexemptedfromthisprovision.Theyare:
–

a) Children below the age of 16yrs

b) Women,

c) Sick and infirmpersons.

III) Habitual offender or person previously convicted of serious offence

should not be released on bail (Sec. 437):-

If a person is convicted previously of an offence punishable with death,

imprisonmentforlifeorimprisonmentfor7yrsormoreofifthatpersonhasbeen
convicted on two or more occasions for a non bailable and cognizable offence
and the same person is accused of or suspected to have committed any non
bailable offence and brought before the court he should not be released onbail.

IV) Bail with conditions (Sec. 437):-

Even though a case is considered to be fit for granting bail, the court may
impose certain conditions.

The power to impose conditions can be exercised by the court –

a) When the offence is punishable with imprisonment upto 7 yrs ormore

b) Where the offence is one under the below given chapters of IPC–

i) Offences againststate.

ii) Offences against humanbody.

iii) Offences againstproperty.

c) Where the offence is one of Abetment to, or conspiracy to or Attempt to

commit any of the offences mentioned in the above given chapters ofIPC.

Execution, suspension, remission and commutation

of sentences
Suspension means to take or withdraw the sentence for the time being.
After a person is found guilty, the execution is stayed for a temporary period in
suspension. It is the temporary postponement of the sentence. Remissionimplies
reducing the period of sentence without changing its character. Commutation
denotes the substitution of a form of punishment for a lighterone.

Section 413 – Execution of order passed under section 368

When in a case submitted to the High Court for the confirmation of a

sentenceofdeath,theCourtofSessionreceivestheorderofconfirmationorother
orderoftheHighCourtthereon,itshallcausesuchordertobecarriedintoeffect by
issuing a warrant or taking such other steps as may benecessary.

Section 414 – Execution of sentence of death passed by High Court

When a sentence of death is passed by the High Court in appeal or in

revision, the Court of Session shall, on receiving the order of the High Court,
cause the sentence to be carried into effect by issuing a warrant
Section 415 – Postponement of execution of sentence of death in case of
appeal to Supreme Court

1. WhereapersonissentencedtodeathbytheHighCourtandanappealfrom
itsjudgmentliestotheSupremeCourtundersub-clausea)orsub-clause
b) of clause (1) of Article 134 of the Constitution, the High Court shall
ordertheexecutionofthesentencetobepostponeduntiltheperiodallowed for
preferring such appeal has expired, or if an appeal is preferred within that
period, until such appeal is disposedof.

2. Where a sentence of death is passed or confirmed by the High Court, and

the person sentenced makes an application to the High Court for the grant
of a certificate under Article 132 or under sub-clause c) of clause (1) of
Article134oftheConstitution,theHighCourtshallordertheexecutionof the
sentence to be postponed until such application is disposed of by the
HighCourt,orifacertificateisgrantedonsuchapplicationuntiltheperiod
allowed for preferring an appeal to the Supreme Court on such certificate
hasexpired.

3. Where a sentence of death is passed or confirmed by the High Court, and

the High Court is satisfied that the person sentenced intends to present a
petitiontotheSupremeCourtforthegrantofspecialleavetoappealunder
Article136oftheConstitution,theHighCourtshallordertheexecutionof the
sentence to be postponed for such period as it considers sufficient to
enable him to present suchpetition.

Section 416 – Postponement of capital sentence on pregnant woman

If a woman sentenced to death is found to be pregnant, the High Court shall
commute the sentence to imprisonment for life.

Section 417 – Power to appoint place of imprisonment

1. Except when otherwise provided by any law for the time being in force,
the State Government may direct in what place any person liable to be
imprisoned or committed to custody under this Code shall beconfined.

2. If any person liable to be imprisoned or committed to custody under this

Code is in confinement in a civil jail the Court of Magistrate ordering the
imprisonment or committal may direct that the person be removed to a
criminaljail.

3. WhenapersonisremovedtoacriminaljailunderSub-Section(2),heshall, on
being released therefrom, be sent back to the civil jail, unlesseither

1. three years have elapsed since he was removed to the criminal jail,
in which case he shall be deemed to have been released from the
civiljailundersection58oftheCodeofCivilProcedure,1908(5of 1908)
or section 23 of the Provincial Insolvency Act, 1920 (5 of 1920), as
the case may be;or

2. the Court which ordered his imprisonment in the civil jail has
certifiedtotheofficerinchargeofthecriminaljailthatheisentitled
tobereleasedundersection58oftheCodeofCivilProcedure,1908 (5 of
1908) or under section 23 of the Provincial Insolvency Act, 1920
(5 of 1920), as the case maybe.

Section 418 – Execution of sentence of imprisonment

1. Where the accused is sentenced to imprisonment for life or to

imprisonment for a term in cases other than those provided for bysection
 413, the Court passing the sentence shall forthwith forward a warrant to
the jail or other place in which he is, or is to be, confined, and, unless the
accused is already confined in such jail or other place, shall forward him
to such jail or other place, with the warrant:
Provided that where the accused is sentenced to imprisonment till the
rising of the Court, it shall not be necessary to prepare or forward a
warrant to a jail and the accused may be confined in such place as the
Court may direct.

2. Where the accused is not present in Court when he is sentenced to such

imprisonment as is mentioned in Sub-Section (1), the Court shall issuea

warrantforhisarrestforthepurposeofforwardinghimtothejailorother place
in which he is to be confined; and in such case, the sentence shall
commence on the date of hisarrest.

Section 424 – Suspension of execution of sentence of imprisonment

1. When an offender has been sentenced to fine only and to imprisonment in

default of payment of the fine and the fine is not paid forthwith, the Court
may

1. orderthatthefineshallbepayableeitherinfullyonorbeforeadate not
more than thirty days from the date of the order, or in two or three
instalments, of which the first shall be payable on or before a date
not more than thirty days from the date of the order and the other or
others at an interval or at intervals, as the case may be, of not more
than thirtydays;

2. suspend the execution of the sentence of imprisonment and release

theoffender,ontheexecutionbytheoffenderofabond,withor
 without sureties, as the Court thinks fit, conditioned for his
appearance before the Court on the dateor dates on or before which
payment of the fine or the instalment thereof, as the case may be, is
tobemade;andiftheamountofthefineorofanyinstalment,asthe case
may be, is not realised on or before the latest date on which it is
payable under the order, the Court may direct the sentence of
imprisonment to be carried into execution atonce.

2. The provisions of Sub-Section (1) shall be applicable also in any case in

which an order for the payment of money has been made on non-recovery
of which imprisonment may be awarded and the money is notpaid

forthwith; and, if the person against whom the order has been made, on being
requiredtoenterintoabondsuchasisreferredtointhatSub-Section,failsto do so,
the Court may at once pass sentence ofimprisonment.

Section 432 – Power to suspend or remit sentences

When any person has been sentenced to punishment for an offence, the
appropriate Government may, at any lime, without conditions or upon any
conditions which the person sentenced accepts, suspend the execution of his
sentence or remit the whole or any part of the punishment to which he has been
sentenced.

Whenever an application is made to the appropriate Government for the

suspension or remission of a sentence, the appropriate Government may require
the presiding Judge of the Court before or by which the conviction was had or
confirmed,tostatehisopinionastowhethertheapplicationshouldbegrantedor
refused,togetherwithhisreasonsforsuchopinionandalsotoforwardwiththe
statement of such opinion a certified copy of the record of the trial or of such
record thereof as exists.

If any condition on which a sentence has been suspended or remitted is,in

the opinion of the appropriate Government, not fulfilled, the appropriate
Government may cancel the suspension or remission, and thereupon the person
in whose favour the sentence has been suspended or remitted may, if at large, be
arrested by any police officer, without warrant and remanded to undergo the
unexpired portion of the sentence.

The condition on which a sentence is suspended or remitted under this section

maybeonetobefulfilledbythepersoninwhosefavourthesentenceissuspended or
remitted, or one independent of hiswill.

The appropriate Government may, by general rules or special orders, give

directionsastothesuspensionofsentencesandtheconditionsonwhichpetitions
should be presented and dealtwith:

Provided that in the case of any sentence (other than a sentence of fine) passed
on a male person above the age of eighteen years, no such petition by the person
sentenced or by any other person on his behalf shall be entertained, unless the
person sentenced is in jail, and, where such petition is made by the person
sentenced, it is presented through the officer in charge of the jail; or

wheresuchpetitionismadebyanyotherperson,itcontainsadeclarationthatthe person
sentenced is injail.

The provisions of the above Sub-Sections shall also apply to any order
passed by a Criminal Court under any section of this Code or of any other law
which restricts the liberty of any person or imposes any liability upon him or his
properly.

In this section and in section 433, the expression “appropriate Government”

means,incaseswherethesentenceisforanoffenceagainst,ortheorderreferred to in
Sub-Section (6) is passed under, any law relating to a matter to which the
executive power of the Union extends, the CentralGovernment;

inothercasestheGovernmentoftheStatewithinwhichtheoffenderissentenced or the
said order ispassed.

Section 433 – Power to commute sentence

The appropriate Government may, without the consent of the person sentenced
commute

1. asentenceofdeath,foranyotherpunishmentprovidedbytheIndianPenal Code
(45 of1860);

2. a sentence of imprisonment for life, for imprisonment for a term not

exceeding fourteen years or forfine;

3. asentenceofrigorousimprisonmentforsimpleimprisonmentforanyterm to
which that person might have been sentenced, or forfine;

4. a sentence of simple imprisonment, forfine.

Section433A–Restrictiononpowersofremissionorcommutationincertain cases
Notwithstanding anything contained in section 432, where a sentence of
imprisonment for life is imposed on conviction of a person for an offence for
which death is one of the punishment provided by laws or where a sentence of
death imposed on a person has been commuted under section 433 into one of
imprisonmentforlife,suchpersonshallnotbereleasedfromprisonunlesshehad
served at least fourteen years ofimprisonment.

Confirmation by High Court

Court of session after passing a death sentence shall submit the
proceedings to the High Court, and the sentence shall not be executed unless it
is confirmed by the High Court. The court passing the sentence shall then
commit the convicted person to jail custody under a warrant.

Enquiry and Additional Evidence

The High Court while dealing with confirmation may order further inquiry
be made into, or additional evidence taken upon, any point bearing upon, any
point bearing upon the guilty or innocence of the convicted person.

No order for confirmation

No order for confirmation shall be made until the period allowed for
preferring an appeal has expired, or if any appeal is presented within such
period, until such appeal is disposed of.
In every case so submitted, the confirmation of the sentence, or any new
sentence or order passed by the High Court, shall when such court consists of
two or more judges , be made, passed and signed by at least two of them.

Copy of Order Sent to Court of Session

In cases submitted by the court of session to the High Court for the
confirmation of a sentence of death, the proper officer of the High Court shall
,without delay, after the order of confirmation or other order has been made by
the High Court, send a copy of the order under the seal of the High Court and
attested with his official signature, to the court of session.

Where a person is sentenced to death and an appeal from its judgment lies
the execution of the sentence will be postponed until the period allowed for
preferring such appeal has expired, or if an appeal is preferred within that
period, until such appeal is disposed of.

Judgment :
Meaning of Judgement::

After hearing both the sides, the final verdict or order that is passed by theJudge
or bench of Judges is known as Judgement. The judgement is the final respond
decision of court as to the guilt or innocence of the accused where the accused is
foundguilty,thejudgementwouldalsoincludeanorderrequiringtheaccusedto
undergo the prescribed punishment ortreatment

Case: In Surendra Singh vs. the State of U.P., A.I.R. 1954 SCR 330, The
SupremeCourtdefinedthetermfinalverdictorfinaldecisiongivenbytheCourt to the
parties and deliver in the open court by pronouncingit.

Section 353

It is a written legal document which helps to resolve the dispute in a suit

andfinalizingtherightsandliabilitiesoftheindividual.Judgmentisafinalorder,
verdict or decision given by the judge or magistrate on the ground of decree. A
decree is an integral part of the judgment which is given by the judge. It should
be precise and clear containing names of the parties, amount of money, deadline
etc. Judgment is given in every trial in Criminal Court falling under its
jurisdiction.ItshouldbepronouncedintheopencourtbythePresidingauthority
just after the termination of the trial procedure and notice should be served to
each party and to its assigned leaders.

Purpose of Judgement:

• To determine whether the person is guilty orinnocent–

After considering all the facts, evidence and laws, courts take the final
decision in a particular matter to set the position of the individual person
whether he is guilty or innocent.

• For determining the rights and liabilities of theparties–

Determination of rights and liabilities is the main work of the court and at
the end.

• For the development of legal jurisprudence– When the court has heard
all the facts and evidence from both the sides, certain new principles can
be introduced which will affect the matter and help in the development of
laws in variousfield.

• To serve as a Precedent– In Common Law, the doctrine of precedent

depends upon a good, relevant and honest judgment. In the future, these
kinds of cases rely upon thejurisprudence.

• Provide accountability to judicial officers– Court of law is known as a

temple for justice and the Judges are considered as God for giving justice.
There is always an eye on the work and credibility of judges and
magistrates. Delivering good judgments helps the public trust the
Judiciary.

• The reason should be communicated to the parties– Both the parties

along with their lawyers will be communicated will all the reasons onthe
 resulting judgment of the case. Even if they lose the case, they will be
informedonwhatgroundstheylostthecase.Propercommunicationshould
bemaintained.

Provide a reasonable ground for an appeal in court– If either of the parties is

not satisfied with the final decision, they can appeal to the higher court.

354. Language and contents of judgment.

(1) Everyjudgment

(a) shall be written in the language of theCourt;

(b) shall contain the point or points for determination, the decision thereon and
the reasons for thedecision;

(c) shallspecifytheoffence(ifany)ofwhich,andthesectionoftheIndianPenal Code

(45 of 1860 ) or other law under which, the accused is convicted and the
punishment to which he issentenced;

(d) ifitbeajudgmentofacquittal,shallstatetheoffenceofwhichtheaccusedis
acquitted and direct that he be set atliberty.

(2) When the conviction is under the Indian Penal Code (45 of 1860 ), and it is
doubtful under which of two sections, or under which Of two parts of the same
section,ofthatCodetheoffencefalls,theCourtshalldistinctlyexpressthesame, and
pass judgment in thealternative.

(3) When the conviction is for an offence punishable with death or, in the
alternative,withimprisonmentforlifeorimprisonmentforatermofyears,the
judgment shall state the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence.

(4) When the conviction is for an offence punishable with imprisonment for a
term of one year or more, but the Court imposes a sentence of imprisonment for
a term of less than three months, it shall record its reasons for awarding such
sentence, unless the sentence is one of imprisonment till the rising of the Court
or unless the case was tried summarily under the provisions of thisCode.

(5) When any person is sentenced to death, the sentence shall direct that he be
hanged by the neck till he isdead.

(6) Every order under section 117 or sub- section (2) of section 138 and every
final order made under section 125, section 145 or section 147 shall contain the
point or points for determination, the decision thereon and the reasons for the
decision.

In Ram Bali vs. the State of U.P., (2004) 6 SCC 533, it was observed that
languageandcontentmustalsobeself-containedanditmustreflectthatthecourt has
applied evidence and facts while forming thejudgment.

Compensation and cost:

Section 357 – Order to pay compensation

1. When a Court imposes a sentence of fine or a sentence (including a

sentenceofdeath)ofwhichfineformsapart,theCourtmay,whenpassing
judgment order the whole or any part of the fine recovered to beapplied-

1. in defraying the expenses properly incurred in theprosecution;

 2. in the payment to any person of compensation for any loss orinjury
caused by the offence, when compensation is, in the opinion of the
Court, recoverable by such person in a CivilCourt;

3. when any person is convicted of any offence for having caused the
deathofanotherpersonorofhavingabettedthecommissionofsuch an
offence, in paying compensation to the persons who are, under the
Fatal Accidents Act, 1855 (13 of 1855), entitled to recover
damages from the person sentenced for the loss resulting to them
from suchdeath;

4. when any person is convicted of any offence which includes theft,

criminal misappropriation, criminal breach of trust, or cheating, or
of having dishonestly received or retained, or of having voluntarily
assisted in disposing of, stolen property knowing or having reason
to believe the same to be stolen in compensating any bona fide
purchaser of such property for the loss of the same if such property
is restored to the possession of the person entitledthereto.

2. Ifthefineisimposedinacasewhichissubjecttoappeal,nosuchpayment shall be
made before the period allowed for presenting the appeal has elapsed, or
if an appeal be presented, before the decision of theappeal.

3. When a Court imposes a sentence, of which fine does not form a part, the
Court may, when passing judgment order the accused person to pay, by
way of compensation such amount as may be specified in the order to the
person who has suffered any loss or injury by reason of the act for which
the accused person has been sosentenced.

4. AnorderunderthissectionmayalsobemadebyanAppellateCourtorby
theHighCourtorCourtofSessionwhenexercisingitspowersofrevision.
 5. Atthetimeofawardingcompensationinanysubsequentcivilsuitrelating to the
same matter, the Court shall take into account any sum paid or recovered
as compensation under thissection.

• OrdertoPayCompensation–Whenacourtimposesasentenceorafine, then
while passing the judgment, the court can order to recover the whole or
partial amount by calculating the whole expenses incurred in the
prosecution process.

Whenapersonfaceslossesorinjuriesbecauseoftheoffencecommitted,then under
the civil court he can recover the Compensationamount.

When a person is convicted for causing death or abetting another person to

committhesameact,hewillbeliabletopaycompensationunder“FatalAccident Act,
1855” to the family of the person whodied.

Whenanypersonisconvictedforcausingtheft,misappropriation,cheatingor
breach of trust or stealing property, he will be liable to pay the compensation
amount to the bonafide purchaser of that property and the property possession is
restored to the entitledperson.

If a fine is imposed in a case which is subject to appeal then the payment

should not be done until the period of appealing is over. If appealed, then the
person must wait until the appeal decision is made.

Ifthereisnofinebeingimposedinthesentence,thecourtcanseparatelyorder the
defendant to compensate for the losses or injuriesincurred.

ThepowertooptforrevisionunderthissectioniswiththeAppellateandThe High
Court. While awarding the compensation, it should be seen that in any
subsequent civil suit of the same matter the amount is paid or recovered as
compensation.
Section 357

• Victim Compensationscheme–

In every State, coordination and consultation with the Central government

schemeshouldbemadetoprovidefundingtothesufferedpersonandtheir
families. Facilities of rehabilitation must also beprovided.

Whenever an order is made by the court, the quantum of amount for

compensation will be decided by the District and State Legal Service Authority.

Duringtheendofthetrial,ifthecourtthinksthattheamountisnotenough for
rehabilitation facilities, the court can make recommendations for compensation.
When the victim is identified but the accused person is not still found and no
trial is taken place, the victim or his family members can write an
applicationtotheDistrictandStatelegalAuthorityforgrantingthecompensation
amount. After completing the inquiry process within 2 months, the amount of
compensation can be granted. Immediate free of cost first aid and medical
facilitiesshouldbeprovidedtothevictimbytheDistrictorStateLegalAuthority by the
order of a police officer not below the rank of an officer incharge.

Section 357 B

• Compensation payable by the StateGovernment–

Section357Ashallbeinadditiontothepaymentoffinetothevictimunder
Section 326A, 376AB, Section 376D, 376DA, 376DB of the Indian Penal
Code.

Section 357 C

• Treatment ofVictim–
 All hospitals whether private or public, should provide medical and first
aidfacilitiestothevictimwhofallsunderSection326A,376,376A,376B,
376C,376D,376DA,376DBand376DEoftheIPCandshouldinformthe police
about the incident as soon aspossible.

Section 358

• Compensation to the person for groundlessarrested–

If any person who is arrested without any reasonable grounds and the
magistrategivesadecisionthatthereisnotsufficientgroundforarrestthen
hewillreceivecompensationamountfromthepersonwhocausesthearrest for
loss of time and money. Compensation amount should not exceed Rs.
1000/- and if the number of arrested persons is more than one, the
magistrate will award each of them personally the compensation amount
but it should not exceed Rs.1000/-

All such amount can be recovered under fine and if a person fails to pay the
specifiedamountthenhewillbesenttoimprisonmentfornotmorethan30days period.

Section 359

• Order to pay Compensation in Non cognizableoffence–

Whenever any non-cognizable offence has been committed, the court can
order the accused person to pay the amount of fine imposed on him for
committing the offence and addition to it the amount incurred in
 prosecution process to the aggrieved person like the travelling expenses,
courtfeesandfeesofwitnessandleadersetc.Hewillsufferimprisonment for
not more than 30 days for not paying theamount.

Power of revision is with the Appellate Court, High Court or Court of Session

APPEAL
Appeal can be defined as the transference of a case from an inferior court
to the higher court in the hope of reversing or modifying the decision of the
former. It is taking of the case to a superior court with a view to ascertaining
whether the judgement of the lower court is sustainable or not.

AccordingtoBlacksLawDictionaryanAppealisacomplainttoasuperior
courtofaninjusticedoneorerrorcommittedbyinferiorone,whosejudgmentor
decision of court above is called upon to correct orreverse.

1) No appeal in petty cases (Sec 376): -

There shall be no appeal by a convicted person in the following cases –

a) Wheretheonlysentenceisoneofimprisonmentupto6monthsoroffineupto Rs.
1000/- or of both, and is passed by the HighCourt.

b) Where only sentence one of imprisonment upto 3 months or of fine upto Rs.
200/- or of both, and are passed by a court of session, or ascourt of metropolitan
magistrate.

c) Where the only sentence is one of fine upto Rs. 100/- and is passed by the
Judicial Magistrate FirstClass.
d) WheretheonlysentenceisoneoffineuptoRs.200/-andispassedinsummary trial by
a Chief Judicial Magistrate, a Metropolitan Magistrate or a Judicial Magistrate
First Class specially empowered by High Court.

Even in the above cases an appeal may be brought if any other punishment is
combined with any sentence.

However, the sentence is not appealable in the following cases merely on the
ground –

i) That the convict is ordered to furnish security to keeppeace,

ii) That more than one sentence of fine is passed in the case, if the total amount
of fine does not exceed the amount allowed as nonappealable.

No Appeal from conviction on plea of guilty (Sec. 375): -

Where an accused person has pleaded guilty and has convicted on such
plea, there shall be no appeal –

i) If the conviction is by the HighCourt.

ii) If the conviction is by Court of Session, Metropolitan Magistrate and

Magistrate of First Class and Second Class, except as to the extent of legality of
sentence.

The reason behind enacting this section is that a plea of guilty is a waiver
of the right of appeal against the legality of conviction.

Appeal to superior courts: - This can be divided into three categories –

1) Appeal to the Supreme Court:-

 Appeal can be preferred to the Supreme Court in the following
circumstances -

a) Any person convicted by High Court in extra-ordinary original jurisdiction

may appeal to the Supreme Court Sec.374(1).

b) Where the High Court has on appeal reversed an order of acquittal and
sentencedanaccusedpersontodeathortolifeimprisonmentortoimprisonment for a
term of 10 yrs or more, the accused may appeal to the SupremeCourt.

c) According to Art. 132 of the constitution, an appeal shall lie to the Supreme
Court against the decision of High Court, if the High Court certifies that he case
involves a substantial question of law as to the interpretation of theconstitution.

FurtherifsuchcertificateisrefusedbytheHighCourt,theSupremeCourt may,
in a fit case, grant special leave to appeal from suchdecision.

d) AccordingtoArt.134(1)oftheconstitution,anappealshalllietotheSupreme Court
from any decision of a High Court if the High Court–

i) has withdrawn for trial before itself any case from any court subordinate to its
authorityandhasinsuchtrialconvictedtheaccusedpersonandsentenceshimto
deathor

ii) Certifies that the case is a fit one for appeal to the SupremeCourt.

3) Appeal to the High Court: -

Any person convicted or trial held by –

a) A session judge or additional sessionjudge.

b) Any other court in which a sentence of imprisonment for a term exceeding 7

yrs has been passed against him, may appeal to HighCourt.

3) Appeal to the Court of Session: -

Any person –

i) Convicted on a trial held by a metropolitan magistrate or Assistant Sessions

Judge or Judicial Magistrate First Class or Magistrate of SecondClass.

ii) In respect of whom an order has been made or sentence has been passed u/s
360(3) by any magistrate, may appeal to the Court ofSession.

Sec. 378 of Cr. PC deals with finding of appeals by the state against the order of
acquittal.

Section 395 in The Code Of Criminal Procedure, 1973

395. Reference to High Court.

Where any Court is satisfied that a case pending before it involves a

questionastothevalidityofanyAct,OrdinanceorRegulationorofanyprovision
contained in an Act, Ordinance or Regulation, the determination of which is
necessaryforthedisposalofthecase,andisofopinionthatsuchAct,Ordinance,
Regulationorprovisionisinvalidorinoperative,buthasnotbeensodeclaredby the
High Court to which that Court is subordinate or by the Supreme Court, the
Court shall state a case setting out its opinion and the reasons therefor, and refer
the same for the decision of the High Court. Explanation.- In this section,"
Regulation" means any Regulation as defined in the General Clauses Act, 1897
(10 of 1897 ), or in the General Clauses Act of aState.

A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit

in any case pending before it or him to which the provisions of sub- section (1)
donotapply,referforthedecisionoftheHighCourtanyquestionoflawarising in the
hearing of suchcase.

(3) Any Court making a reference to the High Court may, pending the decision
of the High Court thereon, either commit the accused, to jail or release him on
bail to appear when called upon.

S. 396 Disposal of case according to decision of High Court.

(1) When a question has been so referred, the High Court shall pass such order
thereonasitthinksfit,andshallcauseacopyofsuchordertobesenttotheCourt by which
the reference was made, which shall dispose of the case conformably to the
saidorder.

(2) TheHighCourtmaydirectbywhomthecostsofsuchreferenceshallbepaid.

397. Calling for records to exercise powers ofrevision.

TheHighCourtoranySessionsJudgemaycallforandexaminetherecord
ofanyproceedingbeforeanyinferiorCriminalCourtsituatewithinitsorhislocal
jurisdiction for the purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order,- recorded or passed, and
as to the regularity of any proceedings of such inferior Court, and may, when
calling for such record, direct that the execution of any sentence or order be
suspended,andiftheaccusedisinconfinement,thathebereleasedonbailoron his own
bond pending the examination of the record. Explanation.- All Magistrates
whether Executive or Judicial, and whether exercising original or
appellatejurisdiction,shallbedeemedtobeinferiortotheSessionsJudgeforthe
purposes of this sub- section and of section398.

Thepowersofrevisionconferredbysub-section(1)shallnotbeexercised in
relation to any interlocutory order passed in any appeal, inquiry, trial or other
proceeding.
 If an application under this section has been made by any person either to
theHighCourtortotheSessionsJudge,nofurtherapplicationbythesameperson shall
be entertained by the other ofthem.

398. Power to orderinquiry.

On examining any record under section 397 or otherwise, the High Court
or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by
any of the Magistrate subordinate to him to make, and the Chief Judicial
Magistrate may himself make or direct any subordinate Magistrate to make,

furtherinquiryintoanycomplaintwhichhasbeendismissedundersection 203
or sub- section (4) of section 204, or into the case of any person accused of an
offence who has been discharged: Provided that no Court shall make any
direction under this section for inquiry into the case of any person who has been
dischargedunlesssuchpersonhashadanopportunityofshowingcausewhysuch
direction should not bemade.

399. Sessions Judge' s powers ofrevision.

(1) In the case of any proceeding the record of which has been called for by
himself, the Sessions judge may exercise all or any of the powers which may be
exercised by the High Court under sub- section (1) of section401.

(2) Where any proceeding by way of revision is commenced before a Sessions

Judge under sub- section (1), the provisions of sub- sections (2), (3), (4) and (5)
ofsection401shall,sofarasmaybe,applytosuchproceedingandreferencesin the said
sub- sections to the High Court shall be construed as references to the Sessions
Judge.

(3) Whereanyapplicationforrevisionismadebyoronbehalfofanpersonbefore
theSessionsJudge,thedecisionoftheSessionsJudgethereoninrelationtosuch
personshallbefinalandnofurtherproceedingbyWayofrevisionattheinstance of
such person shall be entertained by the High Court or any otherCourt.

400. Power of Additional Sessons Judge. An Additional Sessions Judge shall

have and may exercise all the powers of a Sessions Judge under this Chapter in
respect of any case which may be transferred to him by or under any general or
special order of the SessionsJudge.

401. High Court' s Powers ofrevisions.

(1) Inthecaseofanyproceedingtherecordofwhichhasbeencalledfor byitself

orWhichotherwisecomestoitsknowledge,theHighCourtmay,initsdiscretion,
exercise any of the powers conferred on a Court of Appeal by sections 386, 389,
390 and 391 or on a Court of Session by section 307 and, when the Judges
composing the Court of revision are equally divided in opinion, the case shall be
disposed of in the manner provided by section392.

(2) No order under this section shall be made to the prejudice of the accused or
otherpersonunlesshehashadanopportunityofbeingheardeitherpersonallyor by
pleader in his owndefence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert
a finding of acquittal into one ofconviction.

(4) WhereunderthisCodeanappealliesandnoappealisbrought,noproceeding
bywayofrevisionshallbeentertainedattheinstanceofthepartywhocouldhave
appealed.

(5) WhereunderthisCodetanappealliesbutanapplicationforrevisionhasbeen made

to the High Court by any person and the High Court Is satisfied that such
application was made under the erroneous belief that no appeal lies thereto and
that it is necessary in the interests ofjustice
so to do, the High Court may treat the application for revision as a petition of
appeal and deal with the same accordingly.

402. Powers of High Court to withdraw or tranfer revisioncases.

(1) Whenever one or more persons convicted at the same trial makes or
make application to a High Court for revision and any other person convicted at
the same trial makes an application to the Sessions Judge for revision, the High
Court shall decide, having regard to the general convenience of the parties and
the importance of the questions involved, which of the two Courts shouldfinally
dispose of the applications for revision and when the High Court decides that all
theapplicationsforrevisionshouldbedisposedofbyitself,theHighCourtshall direct
that the applications for revision pending before the Sessions Judge be
transferred to itself and where the High Court decides that it is not necessary for
it to dispose of the applications for revision, it shall direct that the applications
for revision made to it be transferred to the SessionsJudge.

(2) Whenever any application for revision is transferred to the High Court, that
Courtshalldealwiththesameasifitwereanapplicationdulymadebeforeitself.

(3) WheneveranyapplicationforrevisionistransferredtotheSessionJudge,that
Judge shall deal with the same as if it were an application duly made before
himself.

(4) Where an application for revision is transferred by the High Court to the
Sessions Judge, no further application for revision shall lie to the High Courtor
to any other Court at the instance of the person or persons whose applications for
revision have been disposed of by the Session Judge.

403. Option of Court to hearparties.

Nopartyhasanyrighttobeheardeitherpersonallyorbypleaderbeforeany Court
exercising its powers of revision; but the Court may, if it thinks fit, when
exercising such powers, hear any party either personally or bypleader.

404. Statement by Metropolitan Magistrate of ground of his decision to be

considered by High Court. When the record of any trial held by a Metropolitan
MagistrateiscalledforbytheHighCourtorCourtofSessionundersection397, the
Magistrate may submit with the record a statement setting forth the grounds of
his decision or order and any facts which he thinks material to the issue; and
theCourtshallconsidersuchstatementbeforeoverrulingorsettingasidethesaid
decision ororder.

405. High Courts' order to be certified to lowerCourt.

When a case is revised under this Chapter by the High Court or aSessions
Judge, it or he shall, in the manner provided by section 388, certify its decision
orordertotheCourtbywhichthefinding,sentenceororderrevisedwasrecorded or
passed, and the Court to which the decision or order is so certified shall
thereupon make such orders as are conformable to the decision so certified; and,
if necessary, the record shall be amended in accordancetherewith
MAINTENANCE OF WIVES, CHILDREN AND PARENTS

It is the duty of every person to maintain his wife, children and aged
parents, when they are unable to maintain themselves.

Sec 125 to 128 of the Cr. PC lay down the provisions relating to the maintenance
of dependent wives, children and parents.

Object:-Toenablediscardedwives,helplessanddesertedchildrenanddestitute
parents to secure much neededrelief.

Sec 125 runs as follows: - If any person having sufficient means neglects or
refuses to maintain –

a) his wife, unable to maintain herselfor

b) his legitimate or illegitimate minor child, whether married or not, unable to

maintain itselfor

c) his legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is by reason of any physical or mental
abnormality or injury unable to maintain itselfor

d) His father or mother, unable to maintain himself orherself.

A magistrate of the First class may an order against such a person ordering him
tomakeamonthlyallowanceforthemaintenanceofsuchchild,fatherormother as the
case may be at any rate not exceeding Rs. 1500/- per month in thewhole.

In the case of the minor female daughter who is married, if the magistrate is
satisfiedthatthehusbandofsuchminorchildisnotpossessedofsufficientmeans,

anordercanbemadeagainstthefatherofthechildtomakesuchallowanceuntil she
attains the age ofmajority.
Explanation: -

a) Minor means a person who under the provisions of the Indian Majority Act
1875 is deemed not to have attained hismajority.

b) Wife includes a woman who has been divorced by or has obtained a divorce
from her husband, and has notremarried.

Magistrateshouldawardmaintenancenotfromthedateoforderbutfromthedate
ofapplication.

Non compliance of maintenance order:-

Anypersonfailstocomplywithorderwithoutsufficientcausetodosothe
magistratemayforeverybreachofsuchissuewarrantforlevyingtheamountdue as
provided for levying fine and may in addition, sentence, such person for
imprisonment upto one month or until payment whichever is earlier. But such
warrant cannot be issued after expiry of the period of one year from the date on
which the amount in question becamedue.

Ground of wife’s refusal to live with her husband: -

If such person offers to maintain his wife on condition of her living with
him,andsherefusestolivewithhim,suchmagistratemayconsideranygrounds of
refusal stated by her and may make an order if he is satisfied that there is just
ground for doing i.e.–

i) If a husband remarried or kept amistress

ii) Kept amistress

iii) Cruelty

iv) If husband is suffering from venerealdisease.

Wife is not entitled to maintenance: -

a) If she is living in adulteryor

b) If she refuse to live with her husband without any sufficient reasonor

c) If the husband and wife are living separately by mutualconsent.

Application of Sec. 125 of Cr. PC to Muslim Woman: -

The code of criminal procedure is a territorial law and is applicable to all

irrespective of their religion.

Caselaw: Mohammad Ahmed Khan v/s Shah Banu Begum AIR 1985 SC
945:-

Facts:-MohammadAhmedKhangotmarriedtoShahBanoBegum45yrsafter the
marriage Ahmed Khan divorced Shah Bano Begum by pronouncing triple talak.
Shah Banu filed a petition against her husband for maintenance u/s 125 of
Cr.PC.

Judgement: - The trial court and MP High Court upheld the petition by the
Muslimwoman,ShahBanoformaintenanceonthegroundthatSec.125ofCr.PC is
applicable to all including the Muslimwomen.

Ahmed Khan preferred an appeal before the SC contending that he had no

obligationtopaymaintenance,beyondtheIddatperiod.ButtheSCdidnotadmit his
contention and upheld the maintenance to ShahBano.

Issue / Principle: - The issue involved in the instant case is whether Sec. 125 of
Cr.PC is applicable to Muslim women also?

Sec 125 Cr.PC is a general provision and is applicable to all irrespective of the
religion and hence the SC in the instant case upheld the maintenance to the
Muslim woman.
However the leader of Muslim religion criticized that the SC through 125
interferedinMuslimpersonallawanddemandedtoamendSec.125fromCr.PC.
later,Muslimwomen(ProtectionofRightsandDivorce)Act1986waspassedto
remove the above conflict. The divorced Muslim wife’s claims are now to be
governed by the Act. The Act overrules Shah Bano’s decision by SC. The Act
also was subject to criticism as bad law. However, same HC allowed Muslim
woman to invoke maintenance u/s 125 as the Muslim spouses could opt to be
governed by Sec. 125 Cr.PC as provided for in theAct.

Effect: - The Muslim woman (Protection of Right on Divorce) Act 1986 allows
a Muslim woman to invoke relief u/s 125 Cr.PC only if the husband consents to
it.

As a consequence of the Act, the claim for maintenance was not entertained /
allowedinMohammadUmarKhanv/sGulshanBegum1992Cr.LJ899MP:
-OnthegroundthattherewasnoconsentbythehusbandtobegovernedbySec. 125 Cr.
PC

Appeal: - No appeal lies against the order of maintenance.

Alteration in Allowance Sec. 127: - Upon a proof of any change in

circumstances of the person receiving or paying the monthly allowance the
magistrate may make any alteration in the allowance as he may deem fit. If
divorcee remarried after the date of order, magistrate may

Transfer of Criminal Case

Parties or witnesses can submit an application for the transfer of a criminal

case under Cr.PC if they feel insecure, threaten or inconvenient. The principle
whichislaiddowninsection177ofthecodeofcriminalprocedureisverymuch clear.

Thateveryoffenseshallordinarilybeinquiredintoandtriedbyacourtwithinthe
locallimitsofwhosejurisdictionitwascommitted.Butthisisnotahardandfast
rule.Becausepartiescanalsofileanapplicationforthetransferofacriminalcase from
court to another court, district to another district or province to another
province.

Court has the absolute authority to transfer criminal case from one district to
another. Mere allegation is not a ground for the transfer of case, some concrete
proof has to be given in court.

Transfer of Criminal Case

There are three modes of transfer of a case under Cr.PC. Only three provisions
relatingtothetransferofthecasecanbefoundincriminallaw.Thesemodesare as
under:

1. Transfer of Criminal Case Through HighCourt

2. Transfer of Criminal Case By ProvincialGovernment

3. Transfer By SessionCourt

1. Transfer Through HighCourt

Section 526 of the criminal procedure code explains the procedure

Grounds For transfer Of Criminal Case

There are five grounds of transfer that a party can take if the parties suspect that
a fair justice will not be served.
 1. That a fair or impartial inquiry or trial cannot be had in any subordinate
criminal court

2. That a place where the offense took place is far away from the place of
court and the court wants to view theoccurrence

3. Adifficultquestionoflawhasarisenwhichcannotbedecidedbythelower court

4. The convenience of the party orwitness

5. That it is expedient forjustice

if any of the above-ground exists in any case than the high court can order
that;

• Any particular case or class of case or appeal be transferred from one

subordinate court toanother

• Any particular case is tried byitself

• Anyaccusedpersoncanbesenttoanothersessioncourtortoitselffortrail

Transfer Of Case To The High Court

When any case is withdrawn from any of its subordinate courts and is tried by
itself. Then the high court must adopt the same rules and procedures which the
lower court has adopted.

Mods For Application Of Transfer

There are three mods to file a transfer petition in criminal cases;

1. Application by the lowercourt

2. Application by any interestedparty

3. Suo Motuorder
1. Application By LowerCourt

Whenanymatterarisestodetermineanydifficultquestionoflaw.Thenthelower
courtalwaysconsultswiththehighcourtandforthispurpose,theymakeareport. High
court while considering the importance of this report can transfer criminal cases
from one court to another or toitself.

2. Application By Any InterestedParty

Application for transfer can be filed by any party mentioning the grounds in it
which are explained above. If the party show mistrust towards the presiding
officer of the court or there is a danger to his life or fair trial cannot be held than
he can submit this application and upon this high court can transfer the case.

3. Suo MotuOrder

The high court has the discretion to transfer case Suo Motu even without having
any application to transfer.

Transfer Application By Advocate General

When the applicant is an advocate general who wants to transfer the criminal
case,thanhisapplicationmustbesupportedbyaffidavitorconfirmation.Except
advocate general this requirement is not mandatory for otherapplicants.

Application By Accused person

Whentheapplicationisfiledbytheaccusedpersonthanhighcourtmayorderthe accuse
to furnish bonds with or without sureties in the court. If his application is
rejected than the amount of bonds will be awarded to the opposingparty.

Notice To The Public Prosecutor By The Accused Person

Ineveryapplicationoftransferfiledbytheaccused,priornoticeshallbegivenin
writingtothepublicprosecutoralongwiththecopyofgroundsonwhichtransfer
ofthecaseissought.Thecourtcanmakenoorderunlessthe24hoursareelapsed of
giving notice to the publicprosecutor.

Payment Of Compensation Upon Rejection Of Application

Whenanapplicationisfiledundersection526andwhilerejectingthisapplication the
high court thinks that this application was filled to waste the time of court or it
was frivolous and vexatious. Then the High Court can impose fine on the
applicantwhichwillbepaidtotheopposingparty.Themaximumamountoffine cannot
exceed five hundredrupees.

No Adjournment or Judgement Is pronounced

Duringthetrial,ifanypartyintimatestothepresidingofficerofthecourtthathe wants to
file an application to transfer the case. No adjournment will be granted to the
intended applicant. And also no judgment will be pronounced unless this
application has been decided by the highcourt.

Application of Transfer In Appeal

When after the conviction an appeal has been preferred and before arguing on
this appeal the appellant intimates to the high court that he wants to file an
application under this section. the court while accepting the wishes of the
appellantcanorderhimtofurnishbondwithoutsuretiesofrupees500.Thecourt
fixesatimeunderwhichtheintendedpartywillfileanapplication,otherwise,his bond
will befortified.

2. Transfer of Criminal Case By ProvincialGovernment

Section 527 of the Criminal Procedure Code states that, If the provincial
government thinks that by transfer of case it will promote the ends of justice or
tendtothegeneralconvenienceofpartiesorwitnesses.ThenGovernmentcando so by
making a notification in the official gazette and by this can orderthat
 1. A particular case or appeal be transferred from one high court to another
high court

2. From one criminal court subordinate to the high court to another criminal
court equal or superior-subordinate court of another highcourt.

Consent of Other Provincial Government

ButThisorderoftransfercannotbemadeunlessthegovernmentofthatprovince gave
consent. In this way, the case can be transferred from one high court to another
highcourt.

3. Transfer Of Criminal Case By SessionCourt

Section 528 of Cr.P.C gives power to the session judge to transfer or withdraw
the case from his subordinate courts. Session judge while withdrawing the case
from its subordinate can transfer it to another additional session judge before the
trial commences or appeal is argued.

4. Transfer Of Criminal Case ByMagistrate

Anymagistratetowhomcognizanceisgivenundersection192(2)canrecallthe case
and give it to another magistrate to start aninquiry.

Whilemakingsuchtransferthemagistratehastorecordthereasoninwritingfor doing.

Security for keeping the peace and for good behavior:

ChapterVIIIoftheCr.P.C.dealswiththepreventiveprovisionstopreventbreach of
the peace ortranquility.

The objective is to prevent any potential danger to the public.

 Security for keeping the peace, and security for good behavior are inter
alia two such provisions which are made in public interest to preserve public
order.

Security for keeping the peace:

There are two provisions:

(i) On conviction: (Sn. 106) If the sessions court, or the first class magistrate is
of the opinion, that the convicted accused should execute a bond for keeping the
peace, it may, at any time of passing sentence, order him to execute such abond.
This may be with or withoutsureties.

The maximum duration is 3 years. But, if the conviction is set aside, the
bond becomes void.

The offences for which the accused is convicted may be:

i) Those affecting the publictranquility

ii) Assault

iii) Criminal intimidation iv) breach of the peaceor

v) abatement of these offences.

ii) In other cases (Sn.107):

When the executive magistrate is informed that any person is likely to

commitabreachofthepeaceorpublictranquilityoranywrongfulact,tothatend such
magistrate may issue a show cause notice to such a person, as to why he
shouldnotbeorderedtoexecuteabond.Themaximumperiodofthebondisone year.
 Theordermustbeinwritingsettingforththesubstanceoftheinformation,
amount of bond, the period and the nature of sureties required. The magistrate
inquires into the truth of the information as in summons cases. This must be
completedwithin6months.Ifhefindsproofheorderstoexecuteabond,heasks the
order to do so. If he finds no evidence, he may discharge theaccused.

Ifafterexecutingthebond,forkeepinggoodbehavior,thepersoncommits an
offence or attempts or abets, then there is a breach of thebond.

The magistrate, on holding an enquiry may refuse to accept the sureties and
demand for new sureties or commit the person to prison. ii) Security for good
behavior (Sn. 108, 109 & 110)

The security for the good behavior of a person can be taken from the
following classes of persons: a) Sn.108:

Persons disseminating seditious matter, (Sn.l24A, I.P.C.), promoting enmity

between classes (SN. 153A, IPC), out ranging religious feelings (Sn.295,1.P.C)
etc.,

b) Sec. 109: Suspected person who is trying to concealhimself.

c) Sec.110:

Habitual robber, house-breaker, thief, forger, receiver of stolen

property, habitual offender under any law relating to offences in adulteration of

Drugs,profiteering,hoardingetc.,orapersonwhoisdesperateanddangerousto
thecommunity.

The magistrate may issue an order to show cause why he should not be
orderedtoexecuteabondwithorwithoutsureties.Theperiodofthebondisone year
under Sns.108 & 109 and it is 3 years under Sn.110. The order must be in
writing,andmustsetforththesubstanceoftheinformation,theamountofbond,
thenatureofthesuretiesetc.Themagistrateconductsaninquiry,and,ifhefinds
proof, he may order the accused person to execute the bond. If there is no proof
he discharges the accused.

Limitation for taking cognizance of certain offences

Section 467 – Definitions

For the purposes of this Chapter, unless the context otherwise, requires,
period of limitation means the period specified in section 468 for taking
cognizance of an offence.

Section 468 – Bar to taking cognizance after lapse of the period of limitation

1. No Court, shall take cognizance of an offence of the category specifiedin

Sub-Section (2), after the expiry of the period oflimitation.

2. The period of limitation shallbe-

1. six months, if the offence is punishable with fineonly;

2. one year, if the offence is punishable with imprisonment for a term

not exceeding oneyear;

3. threeyears,iftheoffenceispunishablewithimprisonmentforaterm
exceeding one year but not exceeding threeyears.

3. For the purposes of this section, the period of limitation, in relation to

offences which may be tried together, shall be determined with reference
to the offence which is punishable with the more severe punishment or, as
the case may be, the most severepunishment.

Section 469 – Commencement of the period of limitation

1. The period of limitation, in relation to an offence, shallcommence,

 1. on the date of the offence;or

2. where the commission of the offence was not known to the person
aggrieved by the offence or to any police officer, the first day on
whichsuchoffencecomestotheknowledgeofsuchpersonortoany
police officer, whichever is earlier;or

3. whereitisnotknownbywhomtheoffencewascommitted,thefirst day
on which the identity of the offender is known to the person
aggrieved by the offence or to the police officer making
investigation into the offence, whichever isearlier.

2. In computing the said period, the day from which such period is to be
computed shall beexcluded

Section 470 – Exclusion of time in certain cases

In computing the period of limitation, the time during which any person
has been prosecuting with due diligence another prosecution, whether in a Court
of first instance or in a Court of appeal or revision, against the offender, shall be
excluded:

Provided that no such exclusion shall be made unless the prosecution

relates to the same facts and is prosecuted in good faith in a Court which from
defect of jurisdiction or other cause of a like nature, is unable to entertain it.

Where the institution of the prosecution in respect of an offence has been stayed
by an injunction or order, then, in computing the period of limitation, the period
of the continuance of the injunction or order, the day on which it was issued or
made, and the day on which it was withdrawn, shall be excluded.
 Wherenoticeofprosecutionforanoffencehasbeengiven,orwhere,under any
law for the time being in force, the previous consent or sanction of the
Government or any other authority is required for the institution of any
prosecutionforanoffence,than,incomputingtheperiodoflimitation,theperiod
ofsuchnoticeor,asthecasemaybe,thetimerequiredforobtainingsuchconsent or
sanction shall beexcluded.

Section 471 – Exclusion of date on which Court is closed

Where the period of limitation expires on a day when the Court is closed,
the Court may take cognizance on the day on which the Court reopens.
Explanation – A Court shall be deemed to be closed on any day within the
meaningofthissection,if,duringitsnormalworkinghours,itremainsclosedon
thatday.

Section 472 – Continuing offence

In the case of a continuing offence, a fresh period of limitation shall begin

to run at every moment of the time during which the offence continues.

Section 473 – Extension of period of limitation in certain cases

Notwithstanding anything contained in the foregoing provisions of this

Chapter, any Court may make cognizance of an offence after the expiry of the
period of limitations, if it is satisfied on the facts and in the circumstances of the
case that the delay has been properly explained or that it is necessary so to do in
the interests of justice.

Plea Bargaining (Section 265 of CrPc)

Legal provisions regarding plea bargaining under section 265 of the Code of
Criminal Procedure, 1973.
1. Application of the Chapter ‘plea bargaining’

Section 265-A of the Code of Criminal Procedure provides:

Legal provisions regarding plea bargaining under section 265 of the Code of
Criminal Procedure, 1973.

(1) This Chapter shall apply in respect of an accused againstwhom:

(a) The report has been forwarded by the officer in charge of the police station
under Section 173 alleging therein that an offence appears to have been
committed by him other than an offence for which the punishment of death or of
imprisonment for life or of imprisonment for a term exceeding seven years has
been provided under the law for the time being in force;or

(b) A Magistrate has taken cognizance of an offence on complaint, other than an

offence for which the punishment of death or of imprisonment for life or of
imprisonmentforatermexceedingsevenyears,hasbeenprovidedunderthelaw for
the time being in force, and after examining complaint and witnesses under
Section 200, issued the process under Section204;

But does not apply where such offence affects the socio-economic condition of
the country or has been committed against a woman, or a child below the age of
fourteen years is for the purposes of sub-section (1), the Central Government
shall, by notification, determine the offences under the law for the time being in

force which shall be the offences affecting the socio-economic condition of the
country.

(2) Application for pleabargaining:

Section 265-B of the Code of Criminal Procedure Code provides:

(1) Apersonaccusedofanoffencemayfileapplicationforpleabargaininginthe Court
in which such offence is pending fortrial.

(2) The application under sub-section (1) shall contain a brief description of the
case relating to which the application is filed including the offence to which the
caserelatesandshallbeaccompaniedbyanaffidavitswornbytheaccusedstating
thereinthathehasvoluntarilypreferred,afterunderstandingthenatureandextent of
punishment provided under the law for the offence, the plea bargaining in his
case and that he has not previously been convicted by a Court in a case in which
he had been charged with the sameoffence.

(3) After receiving the application under sub-section (1), the Court shall issue
noticetothePublicProsecutororthecomplainantofthecase,asthecasemaybe, and to
the accused to appear on the date fixed for thecase.

(4) When the Public Prosecutor or the complainant of the case, as the case may
be,andtheaccusedappearonthedatefixedundersub-section(3),theCourtshall
examine the accused in camera, where the other party in the case shall not be
present, to satisfy itself the accused has filed the application voluntarily and
where:

(a) The Court is satisfied that the application has been filed by the accused
voluntarily, it shall provide time to the Public Prosecutor or the complainant of
the case, as the case may be, and the accused to work out a mutually satisfactory
dispositionofthecasewhichmayincludegivingtothevictimbytheaccusedthe
compensation and other expenses during the case and thereafter fix the date for
further hearing of thecase;

(b) TheCourtfindsthattheapplicationhasbeenfiledinvoluntarilybytheaccused or he
has previously been convicted by a Court in a case in which he had been
chargedwiththesameoffence,itshallproceedfurtherinaccordancewiththe
provisionsofthisCodefromthestagesuchapplicationhasbeenfiledundersub- section
(1).

(3) Guidelines for mutually satisfactorydisposition:

AccordingtoSection265-CoftheCodeofCriminalProcedure,inworkingouta
mutually satisfactory disposition under clause (a) of sub-section (4) of Section
265-B, the Court shall follow the following procedure,namely:

(a) Inacaseinstitutedonapolicereport,theCourtshallissuenoticetothePublic
Prosecutor, the police officer who has investigated the case, the accused and the
victim of the case to participate in the meeting to work out a satisfactory
disposition of thecase:

Provided that throughout such process of working out a satisfactory disposition

of the case, it shall be the duty of the Court to ensure that the entire process is
completed voluntarily by the parties participating in the meeting:

Providedfurtherthattheaccusedifhesodesires,mayparticipateinsuchmeeting with
his pleader, if any, engaged in thecase;

(b) Inacaseinstitutedotherwisethanonpolicereport,theCourtshallissuenotice
totheaccusedandthevictimofthecasetoparticipateinameetingtoworkouta
satisfactory disposition of thecase

Provided that it shall be the duty of the Court to ensure, throughout such process
of working out a satisfactory disposition of the case, that it is completed,
voluntarily by the parties participating in the meeting:

Provided further that if the victim of the case or the accused, as the case may be,
so desires, he may participate in such meeting with his pleader engaged in the
case.
(4) Reportofthemutuallysatisfactorydispositiontobesubmittedbeforethe
Court:

As per Section 265-D of the Code of Criminal Procedure, wherein a

meeting under Section 265-C, a satisfactory disposition of the case has been
worked out, the Court shall prepare a report of such disposition which shall be
signedbythepresidingofficerofthecourtandallotherpersonswhoparticipated in the
meeting and if no such disposition has been worked out, the Court shall
recordsuchobservationandproceedfurtherinaccordancewiththeprovisionsof this
Code from the stage the application under sub-section (1) of Section 265-B has
filed in such case.

(5) Disposal of theCase:

According to Section 265-E of the Code of Criminal Procedure, where a

satisfactorydispositionofthecasehasbeenworkedoutunderSection265-D,the Court
shall dispose of the case in the following manner,namely:

(a) The Court shall award the compensation to the victim in accordance with the
disposition under Section 265-D and hear the parties on the quantum of the
punishment, releasing of the accused on probation of good conduct or after
admonition under Section 360 or for dealing with the accused underthe

provisionsoftheProbationofOffendersAct,1958(20of1958)areanyother law
for the time being in force and follow the procedure specified in the succeeding
clauses for imposing the punishment on theaccused;

(b) After hearing the parties under clause (a), if the Court is of the view that
Section 360 or the provisions of the Probation of Offenders Act, 1958 (20 of
1958) or any other law for the time being in force are attracted in the case ofthe
accused, it may release the accused on probation or provide the benefit of any
such law, as the case may be;

(c) After hearing the parties under clause (b), if the Court finds that minimum
punishment has been provided under the law for the offence committed by the
accused, it may sentence the accused to half of such minimumpunishment;

(d) In case after hearing the parties under clause (b), the Court finds that the
offence committed by the accused is not covered under clause (b) or clause (c),
then, it may sentence the accused to one-fourth of the punishment provided or
extendable, as the case may be, for suchoffence.

(6) Judgment of theCourt:

As per Section 265-F of the Code of Criminal Procedure, the Court shall
deliver its judgment in terms of Section 265-E in the open Court and the same
shall be signed by the presiding officer of the Court.

(7) Finality of thejudgment:

According to Section 265-G of the Code of Criminal Procedure, the

judgmentdeliveredbytheCourtunderSection265-Gshallbefinalandnoappeal
(except the special leave petition under Article 136 and writ petition under
Articles 226 and 227 of the Constitution) shall lie in any Court against such
judgment

(8) Power of the Court in pleabargaining:

As per Section 265-H of the Code of Criminal Procedure, a Court shall

have, for the purposes of discharging its functions under this Chapter, all the
powers vested in respect of bail, trial of offence and other matters relating to the
disposal of a case in such Court under this Code.
(9) Period of detention undergone by the accused to be set off against the
sentence ofimprisonment:

Section 265-1 of the Code of Criminal Procedure provides that the

provisions of Section 428 shall apply, for setting off the period of detention
undergone by the accused against the sentence of imprisonment imposed under
this Chapter, in the same manner as they apply in respect of the imprisonment
under other provisions of this Code.

(10) Savings:

AspertheSection265-JoftheCodeofCriminalProcedure,theprovisions of
this Chapter shall have effect notwithstanding anything inconsistent therewith
contained in any other provisions of this Code and nothing in such other
provisions shall be construed to constrain the meaning of any provision of this
Chapter.

Explanation:

For the purpose of this Chapter, the expression “Public Prosecutor” has the
meaning assigned to it under clause (u) of Section 2 and includes an Assistant
Public Prosecutor appointed under Section 25.

(11) Statement of accused not to beused:

According to Section 265-K of the Code of Criminal Procedure,

notwithstanding anything contained in any law for the time being in force, the
statements or facts stated by an accused in an application for plea bargaining file
under Section 265-B shall not be used for any other purpose except for the
purpose of this Chapter.

(12) Non-application of theChapter:

Section 265-L of the Code of Criminal Procedure provides that nothing in

this Chapter shall apply to any Juvenile or Child as defined in sub-clause (k) of
Section2oftheJuvenileJustice(CareandProtectionofChildren)Act,2000(56
of2007).

PROBATION OF OFFENDERS ACT 1958

ThetermProbationisderivedfromtheLatinword‘Probate’whichmeans ‘to
test’ or to‘prove’.

When a person convicted of an offence, as a special case by virtue of age

orotherreasonisnotsenttoprisonbutiskeptunderthesupervision/observation for the
purpose of correcting him as a good citizen, he is said to have been kept on
probation. The official, who supervises is called ‘ProbationOfficer’.

Probation means the conditional supervision of a sentence by the court in

selected cases, especially of young offenders, who are not sent to prisons but are
released on probation, on agreeing to abide by certain conditions.

Earlier, probation was designed only for child offenders (Juvenile

delinquent).Nowitcanbeextendedtoadelinquentofanyage(General)upto21 years.
Definition: - Probation may be defined as a method of dealing with specially
selected offenders and consists of conditional suspension of punishment while
the offender is placed under personal supervision and is given individualized
treatment.

Object: - The main object of probation is to save some selected types of

offenders, from rigorous imprisonment.

The sole intention of the legislature in passing probation laws is to give

persons of a particular type a chance of reformation, which they would not get if
senttoprison.Thetypeofpersonswhoareinthecontemplationofthelegislature under
the probation laws are those who are not hardened or dangerous criminals but
those who have committed offences under some monetary weakness of
character of some temptingsituation.

By passing the offender on probation the court saves him from the stigma
ofjaillifeandalsofromthecontaminatinginfluenceofhardenedprisoninmates.

It helps in eliminating overcrowding in jails by keeping many offenders

away from then under probation programmes.

It aims at rehabilitation of offender by returning them to society during a

periodofsupervisionratherthanbysendingthemintotheunnaturalandsocially
unhealthy atmosphere of prisons. The offender is allowed to remain in the
community and develop as a normal human being in his own natural
surroundings.

Short note: -
Power of Court to release certain offenders on probation of good conduct
Sec 4: -

1) When any person is found guilty of having committed an offence not

punishablewithdeathorimprisonmentforlifeandthecourtbywhichtheperson is
found guilty of opinion that, having regard to the circumstances of the case
includingthenatureoftheoffenceandthecharacteroftheoffenderitisexpedient to
release him on probation of good conduct, then the court may insteadof

sentencing him at once to any punishment direct that he be released on his

enteringintoabond,withorwithoutsuretiestoappearandreceivesentencewhen
called upon during such period, not exceeding 3 years, as the court may direct
and in the meantime to keep the peace and be of goodbehaviour.

2) The court shall not direct such release of an offender unless it is satisfied that
offender or his surety, if any has a fixed place of abode or regular occupation in
the place over which the court exercised jurisdiction or in which the offender is
likely to live during the period of which he enter into thebond.

Before making any order the court shall take into consideration the report
of probation officer.

3) When an order is made, the court may, if it is of opinion that in the interest of
the offender and of the public it is expedient so to do, in addition pass a
supervision order directing, that the offender shall remain under the supervision
of a probation officer in the order during such period, not being less than one
year,asmaybespecifiedtherein,andmayinsuchsupervisionorderimposesuch
conditions as it deems necessary for due supervision of theoffender.
4) The court making a supervision order shall require the offender, before he is
released, to enter into a bond, with or without sureties to observe the conditions
specified in such order and such additional conditions with respect to residence,
abstention from intoxicants, or any other matter as the court may, having regard
to the particular circumstances, consider fit to impose for preventing and
repetitionofthesameoffenceoracommissionofotheroffencesbytheoffender.

The court making a supervision order shall explain to the offender the terms and
conditionsoftheorderandshallforthwithfurnishacopyofthesupervisionorder to
each of the offender, the sureties and the probation officerconcerned.

Powers of Court to release certain offenders after admonition: - U/s 3 of

Probation of Offenders act 1958 the court is empowered to release certain
offenders after admonition.

When any person is found guilty of having committed an offence punishable u/s

Sec 379: - punishment for theft

Sec 380: - theft in dwelling house etc

Sec 381: - theft by clerk / servant of property in possession of master.

Sec404:-Dishonestmisappropriationofpropertypossessedbydeceasedperson as
the time of hisdeath.

Sec 420: - Cheating and dishonestly inducing delivery of property, of the IPC or
any offence punishable with imprisonment for not, more than 2 yrs, or with fine
or with both, under IPC or any other law, and no previous conviction is proved
against him and the court by which the person is found guilty is of opinion that,
havingregardtothecircumstancesofthecaseincludingthenatureoftheoffence
and the character of the offender it is expedient to do then the court may, instead
of sentencing him on probation of good conduct u/s 4 release him after due
admonition.

Thus when the court is of the opinion after taking the consideration the
relevantfactors,thedirectsentenceisnotrequiredbutmerewarningissufficient to
suppress crime, the magistrate can issue order of admonition and release the
offender.

Variations of conditions of probation (Sec 8): -

1) Ifontheapplicationofaprobationofficer,anycourtwhichpassesanorderu/s
4inrespectofanoffenderisofopinionthatintheinterestoftheoffenderandthe
publicitisexpedientornecessarytovarytheconditionsofthebondenteredinto by the
offender, it may at any time during the period when the bond is effective,
varythebondbyextendingordiminishingthedurationthereof,sohowever,that it shall
not exceed 3 yrs from the date of the original order or by altering the conditions
thereof or by inserting additional conditionstherein.

Providedthatnosuchvariationshallbemadewithoutgivingtheoffenderandthe surety
or sureties mentioned in the bond an opportunity of beingheard.

2) Ifanysuretyrefusestocontenttoanyvariationproposedtobemade,thecourt may
require the offender to enter into a fresh bond and if the offender refuses or fails
to do so, the court may sentence him for the offence of which he was found
guilty.
3) The court which passes an order u/s 4 in respect of an offender may, if it is
satisfied on an application made by the probation officer, that the conduct of the
offender has been such as to make it unnecessary that he should be kept any
longer under supervision, discharge the bond or bonds entered into byhim.

Report of probation officer to be confidential (Sec. 7): - The report of the

probationofficerisofprimaryimportanceandanaidtothecourt,formakingthe
decision regarding the release on probation. An ideal report shouldgive

information regarding family history and personal, social and economic factors
of the offender and a plant for correctional treatment of the offender if the
recommendation is for grant of probation.

Inshorttheprobationofficerhastoevaluatethepersonalityoftheoffender. The
court has to make decision after taking into consideration the probation officer’s
report and nature and circumstances of theoffence.

The report of probation officer shall be treated as confidential.

Providedthatthecourtmay,ifitthinksfit,communicatethesubstancethereofto the
offender and may give an opportunity of producing such evidence as may be
relevant to the matter stated in thereport.

Power of Court to require released offender to pay compensation and cost

(Sec 5): -

1) The court directing the release of an offender u/s 3 or 4 may if it thinks fit,
make at the same time a further order directing him to pay–
a) Such compensation as the court thinks reasonable for loss or injury caused to
any person by commission of the offenceand

b) Such cost of the proceedings as the court thinksreasonable.

2) The amount ordered to be paid may be recovered as a fine in accordance with

the provisions of Sec. 386 and 387 of thecode.

3) Acivilcourttryingaysuit,risingoutofthesamematterforwhichtheoffender is
prosecuted, shall take into account any amount paid or recovered as
compensation in awardingdamages.

Restrictions on imprisonment of offender under 21 years of age (Sec 6):-

1) When any person under 21 years of age is found guilty of having committed
an offence punishable with imprisonment (but now with imprisonment for life),
the court by which the person is found guilty shall not sentence him to
imprisonmentunlessitissatisfiedthat,havingregardtothecircumstancesofthe case
including the nature of the offence and the character to deal with him u/s 3
or4,andifthecourtpassesanysentenceofimprisonmentontheoffenderitshall record
its reasons for doingso.

2) For the purpose of satisfying itself whether it would not be desirable to deal
u/s3or4withtheoffenderu/s6(1)thecourtshallcalforareportfromprobation officer
and consider the report and any other information available to it relating to the
character and physical and mental condition of theoffender.
Importance of probation in Reformation of the offender: -

1) Themodern,therapeuticapproachtowardscriminalsisnottopunishthembut to
give an opportunity to reform themselves in future. Probation is one of the
important mode of thistype.

2) The major objective of probation is to rehabilitation. The offender as well as

to protect the society from his criminaleffort.

3) Whenever an offender is kept under probation, he saved from the society of

those hardened and dangerous criminals with whose company he other wise had
to live during his detention in jail. It will also save himself from many other evil
and learning badhabits.

4) The personality of the offender is protected from contaminating influence of

the prison life, only through theprobation.

5) Thereleasedoffendergetsnormalsociallifeandrelationshipandemployment
duringprobation.

6) Probation helps in reducing the unnecessary crowds injails.

7) The Probationers are given various professional training during the period of
probation and as such they are made competent to do various works, for their
feeding after release.
8) The feeling of self confidence and self reliance are created in the offender
throughvariouspsychologicalmethods.Ithelpsinmakingtheircharactersound.

9) The strict discipline and supervision over the probationers, during the period
of probation, make them disciplined andobedient.

Critical appreciation: Probation as a Corrective Measure: -

1) There are some critics who look probation as a form of leniency towards the
offender.

2) There are certain pitfalls in the system keeping in view the increasing crime
rateanditsfrighteningdimensions,undueemphasisonindividualoffenderatthe cost
of societies insecurity can hardly be appreciated as sound penalpolicy.

Admitting all young offenders and first offender to probation regardless of their
personality, mental attitude might lead to recidivism because many of them may
not respond adorably treatment.

Sec 4 of the Act, which is key section of the Act, does not make supervision ofa
personreleasedonprobationmandatorywhenthecourtordersreleaseofaperson
on probation on his entering into a bond with or without sureties. This is not
according to probation philosophy.

Though Sec. 6 of the Act requires the court to take into consideration the
probation officers report when decision will deliver but many times court gives
decisionwithouttakingintoconsiderationofthereportofprobationofficer.This is
against the spirit of the philosophy ofprobation.

Sec3criticizedonthegroundthatitdoesnotrequirethecourttocallforareport from the

probation officer and thus the court is not in a position to possess the
information to decide the issue of character of the offender and other relevant
factor.

Judicial Trend: -

Caselaw: - In Musa Khan v/s State of Maharashtra 1997: - The Supreme

CourtpointedoutthatthoughtheprovisionsofSec.6oftheActweremandatory, the
court did not appear to make wise use of the provision, which was necessary to
protect our younger generation from becoming professional criminals and a
menace to thesociety.

Caselaw: - Devki Alais kalu v/s State of Haryana 1979: - Where the offender
found guilty of abducing a teenager girl of 17 years and forcing to sexual
submission with commercial object, the Supreme Court held that the provisions
of Probation Offender’s Act could not be extended, this a abominable culprit.
Caselaw: - Dhansukh Chhotalal v/s State of Gujarat 1990 Cr LJ 73: - The
accused was 58 years old, a teacher by profession and his carrier was without
blemish.GujaratHighCourtheldthathewasentitledtobenefitofProbationand order
of conviction should not affect hisservice.

Caselaw: - Sunil Kumar Parida v/s State of Orrisa 1993 Cr. LJ 544: - The
accused was released on admonition and appellate court held that conviction
should not affect his service.

Juvenile Justice (Care And Protection Of Children)

Act,2000

Definitions.-

''advisory board'' means a Central or a State advisory board or adistrict and city level
advisory board, as the case may be,constituted under section 62;
''begging'' means-
soliciting or receiving alms in a public place or entering intoany private premises for
the purpose of soliciting or receiving alms,whether under any pretence;
exposing or exhibiting with the object of obtaining or extortingalms, any sore, wound,
injury, deformity or disease, whether ofhimself or of any other person or of an animal;
''Board'' means a Juvenile Justice Board constituted under section4;

''child in need of care and protection'' means a child-

who is found without any home or settled place or abode andwithout any ostensible
means of subsistence,
who resides with a person (whether a guardian of the child ornot) and such person-
has threatened to kill or injure the child and there is areasonable likelihood of the
threat being carried out, or has killed, abused or neglected some other child or
children andthere is a reasonable likelihood of the child in question beingkilled,
abused or neglected by that person,who is mentally or physically challenged or ill
children orchildren suffering from terminal diseases or incurable diseases havingno
one to support or look after,who has a parent or guardian and such parent or
guardian is unfitor incapacitated to exercise control over the child,
who does not have parent and no one is willing to take care of orwhose parents have
abandoned him or who is missing and run away childand whose parents cannot be
found after reasonable inquiry,
who is being or is likely to be grossly abused, tortured orexploited for the purpose of
sexual abuse or illegal acts,who is found vulnerable and is likely to be inducted into
drugabuse or trafficking,
who is being or is likely to be abused for unconscionablegains,
who is victim of any armed conflict, civil commotion or naturalcalamity;
"children's home" means an institution established by a StateGovernment or by
voluntary organisation and certified by thatGovernment under section 34;
"Committee" means a Child Welfare Committee constituted undersection 29;
"competent authority" means in relation to children in need ofcare and protection a
Committee and in relation to juveniles inconflict with law a Board;
"fit institution" means a governmental or a registerednon-governmental organisation
or a voluntary organisation prepared toown the responsibility of a child and such
organisation is found fitby the competent authority;
"fit person" means a person, being a social worker or any otherperson, who is
prepared to own the responsibility of a child and isfound fit by the competent
authority to receive and take care of thechild; "guardian", in relation to a child,
means his natural guardian orany other person having the actual charge or control
over the childand recognised by the competent authority as a guardian in course
ofproceedings before that authority; "juvenile" or "child" means a person who hasnot
completedeighteenth year ofage;
"juvenile in conflict with law" means a juvenile who is alleged tohave committed an
offence; "local authority" means Panchayats at the village and ZilaParishad at the
district level and shall also include a MunicipalCommittee or Corporation or a
Cantonment Board or such other bodylegally entitled to function as local authority by
the Gove nment; "narcotic drug" and "psychotropic substance" shall have
themeanings respectively assigned to them in the Narcotic Drugs andPsychotropic
Substances Act, 1985 (61 of 1985);"observation home" means a home established
by a State Governmentor by a voluntary organisation and certified by that State
Governmentunder section 8 as an observation home for the juvenile in conflictwith
law; "offence" means an offence punishable under any law for the timebeing in force;
"place of safety" means any place or institution (not being apolice lock-up or jail), the
person incharge of which is willingtemporarily to receive and take care of the juvenile
and which, in theopinion of the competent authority, may be a place o safety for
thejuvenile; "prescribed" means prescribed by rules made under this Act;
"probation officer" means an officer appointed by the StateGovernment as a
probation officer under the Probation of OffendersAct, 1958 (20 of 1958);
"public place" shall have the meaning assigned to it in theImmoral Traffic
(Prevention) Act, 1956 (104 of 1956);
"shelter home" means a home or a drop-in-centre set up undersection 37; "special
home" means an institution established by a StateGovernment or by a voluntary
organisation and certified by thatGovernment under section 9; "special juvenile
police unit" means a unit of the police force ofa State designated for handling of
juveniles or children under section63;
"State Government", in relation to a Union territory, means theAdministrator of that
Union territory appointed by the President underarticle 239 of the Constitution
all words and expressions used but not defined in this Act anddefined in the Code of
Criminal Procedure, 1973 (2 of 1974), shallhave the meanings respectively assigned
to them in that Code.
Continuation of inquiry in respect of juvenile who has ceased tobe a juvenile.-
Where an inquiry has been initiated against a juvenilein conflict with law or a child in
need of care and protection andduring the course of such inquiry the juvenile or the
child ceases tobe such, then, notwithstanding anything contained in this Act or inany
other law for the time being in force, the inquiry may becontinued and orders may be
made in respect of such person as if suchperson had continued to be a juven le or a
child.

JUVENILE IN CONFLICT WITH LAW

. Juvenile Justice Board.- (1) Notwithstanding anything contained inthe Code of

Criminal Procedure, 1973 (2 of 1974), the State Governmentmay, by notification in
the Official Gazette, constitute for adistrict or a group of districts specified in the n
tification, one ormore Juvenile Justice Boards for exercising the powers and
dischargingthe duties conferred or imposed on such Boards in relation tojuveniles in
conflict with law under thisAct.
A Board shall consist of a Metropolitan Magistrate or a JudicialMagistrate of the first
class, as the case may be, and two socialworkers of whom at least one shall be a
woman, forming a Bench andevery such Bench shall have the powers conferred by
he Code ofCriminal Procedure, 1973 (2 of 1974), on a Metropolitan Magistrate or,as
the case may be, a Judicial Magistrate of the first class and theMagistrate on the
Board shall be designated as the principalMagistrate.
No Magistrate shall be appointed as a member of the Board unlesshe has special
knowledge or training in child psychology or childwelfare and no social worker shall
be appointed as a member of theBoard unless he has been actively involved in
health education, orwelfare activities pertaining to children for at least seven years.
The term of office of the members of the Board and the manner inwhich such
member may resign shall be such as may be prescribed.
(5) The appointment of any member of the Board may be terminated afterholding
inquiry, by the State Government, if-
he has been found guilty of misuse of power vested under this Act,
he has been convicted of an offence involving moral turpitude,and such conviction
has not been reversed or he has not been grantedfull pardon in respect of such
offence,he fails to attend the proceedings of the Board for consecutivethree months
without any valid reason or he fails to attend less thanthree-fourth of the sittings in a
year.

5 . Procedure, etc., in relation to Board.- (1) The Board shall meet atsuch times
and shall observe such rules of procedure in regard to thetransaction of businessat
its meetings, as may be prescribed.
A child in conflict with law may be produced before an individualmember of the
Board, when the Board is not sitting.A Board may act notwithstanding the absence
of any member of theBoard, and no order made by the Board shall be invalid by
reason onlyof the absence of any member during any stage of
proceedings:Provided that there shall be at least two members including theprincipal
Magistrate present at the time of final disposal of thecase.In the event of any
difference of opinion among the members of theBoard in the interim or final
disposition, the opinion of the majorityshall prevail, but where there is no such
majority, the opinion of theprincipal Magistrate shallprevail.

6 . Powers of Juvenile Justice Board.- (1) Where a Board has beenconstituted for
any district or a group of districts, such Boardshall, notwithstanding anything
contained in any other law for thetime being in force but save as otherwise
expressly provid d in thisAct, have power to deal exclusively with all proceedings
under thisAct relating to juvenile in conflict withlaw.

(2) The powers conferred on the Board by or under this Act may also beexercised by
the High Court and the Court of Session, when theproceeding comes before them in
appeal, revision or otherwise.

7 . Procedure to be followed by a Magistrate not empowered under theAct.-

Procedure to be followed by a Magistrate not empowered under theAct.-(1) When
any Magistrate not empowered to exercise the powers of aBoard under this Act is of
the opinion that a person brought beforehim under any of the provisions of this Act
(ot er than for thepurpose of giving evidence), is a juvenile or the child, he
shallwithout any delay record such opinion and forward the juvenile or thechild and
the record of the proceeding to the competent authorityhaving jurisdiction over the
proceedng.
(2)Thecompetentauthoritytowhichtheproceedingisforwardedundersub-section(1)shall
hold the inquiry as if the juvenile or the childhad originally been brought beforeit.

8 .Observationhomes.-
(1)AnyStateGovernmentmayestablishandmaintaineitherbyitself or under an
agreement with voluntaryorganisations, observation homes in every district or a
group ofdistricts, as may be required for the temporary reception of nyjuvenile in
conflict with law during the pendency of any inquiryregarding them under this
Act.Where the State Government is of opinion that any institutionother than a home
established or maintained under sub-section (1), isfit for the temporary reception of
juvenile in conflict with lawduring the pendency of any inquiry regarding them un er
this Act, itmay certify such institution as an observation home for the purposesof this
Act.The State Government may, by rules made under this Act, providefor the
management of observation homes, including the standards andvarious types of
services to be provided by them for rehabilitationand socialintegration
of a juvenile, and the cir umstances underwhich, and the manner in which, the
certification
ofanobservationhomemaybegrantedorwithdrawn.Everyjuvenilewhoisnotplacedunder
the charge of parent orguardian and is sent to an observation home shall be initially
kept ina reception unit of the observation home for preliminary inquiries,care and
classification for juveniles according o his age group, suchas seven to twelve years,
twelve to sixteen years and sixteen toeighteen years, giving due considerations to
physical and mentalstatus and degree of the offence committed, for further induction
intoobservationhome.

9 . Special homes.- (1) Any State Government may establish and maintaineither by
itself or under an agreement with voluntary organisations,special homes in every
district or a group of districts, as may berequired for reception and rehabilitation of ju
enile in conflict withlaw under this Act.Where the State Government is of opinion that
any institutionother than a home established or maintained under sub-section (1),
isfit for the reception of juvenile in conflict with law to be sentthere under this Act, it
may certify such institutio as a special homefor the purposes of this Act. The State
Government may, by rules made under this Act, providefor the management of
special homes, including the standards andvarious types of
servicestobeprovidedbythemwhicharenecessaryforre-socialisationofajuvenile,andthe
circumst nces under which,and the manner in which, the certification of a special
home may begranted or withdrawn. The rules made under sub-section (3) may also
provide for theclassification and separation of juvenile in conflict with law on thebasis
of age and the nature of offences committed by them and hismental and
physicalstatus.

10 . Apprehension of juvenile in conflict with law.- (1) As soon as ajuvenile in

conflict with
lawisapprehendedbypolice,heshallbeplacedunderthechargeofthespecialjuvenilepolic
e unit or thedesignated police officer who shall immediately rep rt the matter to
amember of theBoard.
(2) The State Government may make rules consistent with this Act,- to provide for
persons through whom (including registeredvoluntary organisations) any juvenile in
conflict with law
maybeproducedbeforetheBoard;toprovidethemannerinwhichsuchjuvenilemaybesent
to anobservationhome.
. Control of custodian over juvenile.- Any person in whose charge ajuvenile is
placed in pursuance of this Act shall, while the order isin force have the control over
the juvenile as he would have if hewere his parents, and shall be responsible for h s
maintenance, andthe juvenile shall continue in his charge for the period stated
bycompetent authority, notwithstanding that he is claimed by his parentsor any other
person.

. Bail of juvenile.- (1) When any person accused of a bailable ornon-bailable

offence, and apparently a juvenile, is arrested ordetained or appears or is brought
before a Board, such person shall,notwithstanding anything contained in the Code of
Crim nal Procedure,1973 (2 of 1974) or in any other law for the time being in force,
bereleased on bail with or without surety but he shall not be soreleased if there
appear reasonable grounds for believing that
therelease is likely to bring him into asso iation with any knowncriminal or expose him
to moral, physical or psychological danger orthat his release would defeat the ends of
justice. When such person having been arrested is not released on bailunder sub-
section (1) by the officer incharge of the police station,such officer shall cause him to
be kept only in an observation home inthe prescribed manner until he can be brought
efore a Board.
When such person is not released on bail under sub-section (1) bythe Board it shall,
instead of committing him to prison, make an ordersending him to an observation
home or a place
ofsafetyforsuchperiodduringthependencyoftheinquiryregardnghimasmaybespecified
in theorder.

13 . Information to parent, guardian or probation officer.- Where ajuvenile is

arrested, the officer incharge of the police station orthe special juvenile police unit to
which the juvenile is broughtshall, as soon as may be after the arrest,inform-

the parent or guardian of the juvenile, if he can be found of sucharrest and direct him
to be present at the Board before which thejuvenile will appear; and

the probation officer of such arrest to enable him to obtaininformation regarding the
antecedents and family background of thejuvenile and other material circumstances
likelyto be of assistanceto the Board for making theinquiry.

14 . Inquiry by Board regarding juvenile.- Where a juvenile having beencharged

with the offence is produced before a Board, the Board shallhold the inquiry in
accordance with the provisions of this Act and maymake such order in relation to the
juvenile s it deemsfit:

Providedthataninquiryunderthissectionshallbecompletedwithinaperiodoffourmonths
fromthedateofitscommencement,unlesstheperiodisextendedbytheBoardhavingregard
to the circumstances ofthe case and in special cases after recordin the reasons in
writingfor such extension.
15 . Order that may be passed regarding juvenile.- (1) Where a Board issatisfied
on inquiry that a juvenile has committed an offence, then,notwithstanding anything to
the contrary contained in any other lawfor the time being in force, the Board may, if t
thinks so fit,- allow the juvenile to go home after advice or admonition
followingappropriate inquiry against and counselling to the parent or theguardian and
thejuvenile;
direct the juvenile to participate in group counselling andsimilar activities; order the
juvenile to perform community service;
order the parent of the juvenile or the juvenile himself to pay afine, if he is over
fourteen years of age and earns money;
direct the juvenile to be released on probation of good conductand placed under the
care of any parent, guardian or other fit person,on such parent, guardian or other fit
person executing a bond, with orwithout surety, as the Board may require, fo the
good behaviour
andwell-being of the juvenile for any period not exceeding three years; direct the
juvenile to be released on probation of good conductand placed under the care of
any fit institution for the goodbehaviour and well-being of the juvenile for any period
not exceedingthree years;
makeanorderdirectingthejuveniletobesenttoaspecialhome,-inthecaseofjuvenile,over
seventeenyearsbutlessthaneighteenyearsofageforaperiodofnotlessthantwoyears;in
case of any other juvenile for the period until he ceases tobe ajuvenile:
Provided that the Board may, if it is satisfied that having regard tothe nature of the
offence and the circumstances of the case it isexpedient so to do, for reasons to be
recorded, reduce the period ofstay to such period as it thinks fit.
The Board shall obtain the social investigation report on juvenileeither through a
probation officer or a recognised voluntaryorganisation or otherwise, and shall take
into consideration thefindings of such report before passing an order.

Where an order under clause (d), clause (e) or clause (f) ofsub-section (1) is made,
the Board may, if it is of opinion that inthe interests of the juvenile and of the public, it
is expedient so todo, in addition make an order that the juvenile i conflict with
lawshall remain under the
supervisionofaprobationofficernamedintheorderduringsuchperiod,notexceedingthree
years as may bespecified therein, and may in such supervision order impose
suchconditions as it deems necessary for he due supervision of thejuvenile in conflict
withlaw:

Provided that if at any time afterwards it appears to the Board onreceiving a report
from the probation officer or otherwise, that thejuvenile in conflict with law has not
been of good behaviour duringthe period of supervision or that the fit institut on
under whose carethe juvenile was placed is no longer able or willing to ensure
thegood behaviour and well-being of the juvenile it may, after makingsuch inquiry as
it deems fit, order the juvenile in conflict with lawto be sent to a special home.

(4) The Board shall while making a supervision order under sub-section(3), explain to
the juvenile and the parent, guardian or other fitperson or fit institution, as the case
may be,
underwhosecarethejuvenilehasbeenplaced,thetermsandconditiosoftheorderandshall
forthwith furnish one copy of the supervision order to thejuvenile, the parent,
guardian or other fit person or fit institution,as the case may be, the sureties, if any,
and the probation officer.

16 . Order that may not be passed against juvenile.- (1)Notwithstanding anything

to the
contrarycontainedinanyotherlawforthetimebeinginforce,nojuvenileinconflictwithlaw
shallbesentencedtodeathorlifeimprisonment,orcommittedtoprionindefaultofpayment
of fine or in default of furnishingsecurity:

Provided that where a juvenile who has attained the age of sixteenyears has
committed an
offenceandtheBoardissatisfiedthattheoffencecommittedisofsoseriousinnatureorthat
his conduct andbehaviour have been such that it would not be in hi interest or in
theinterest of other juvenile in a special home to send him to suchspecial home and
that none of the other measures provided under thisAct is suitable or sufficient, the
Board may order the
juvenileinconflictwithlawtobekeptinuchplaceofsafetyandinsuchmannerasitthinksfit and
shall report the case for the order of theStateGovernment.
(2) On receipt of a report from a Board under sub-section (1), theState Government
may make such arrangement in respect of the juvenileas it deems proper and may
order such
juveniletobekeptunderprotectivecustodyatsuchplaceandonsuchconditiosasitthinksfit:
Provided that the period of detention so ordered shall not exceed themaximum
period of imprisonment to which the juvenile could have beensentenced for the
offencecommitted.

. Proceeding under Chapter VIII of the Code of Criminal Procedurenot

competent against juvenile.- Notwithstanding anything to thecontrary contained in
the Code of Criminal Procedure, 1973 (2 of 1974)no proceeding shall be instituted
and no order shal be passed againstthe juvenile under Chapter VIII of the said Code.
. No joint proceeding of juvenile and person not a juvenile.- (1)Notwithstanding
anything contained in section 223 of the Code ofCriminal Procedure, 1973 (2 of
1974) or in any other law for the timeoffence together with a person who is not a
juvenile. being in force,no juvenile shall be charged with or tried for any
(2) If a juvenile is accused of an offence for which under section 223of the Code of
Criminal Procedure, 1973 (2 of 1974) or any other lawfor the time being in force,
such juvenile and any person who is not ajuvenile would, but for the prohibition co
tained in sub-section (1),have been charged and tried together, the Board taking
cognizance ofthat offence shall direct separate trials of the juvenile and theother
person.

19 . Removal of disqualification attaching to conviction.- (1)Notwithstanding

anything
containedinanyotherlaw,ajuvenilewhohascommittedanoffenceandhasbeendealtwith
undertheprovisionsofthisActshallnotsufferdisqualification,ifany,ttachingtoaconviction
of an offence under suchlaw.
(2) The Board shall make an order directing that the relevant recordsof such
conviction shall be removed after the expiry of the period ofappeal or a reasonable
period as prescribed under the rules, as thecase may be.
. Special provision in respect of pending cases.- Notwithstandinganything
contained in this Act, all proceedings in respect of ajuvenile pending in any court in
any area on the date on which thisAct comes into force in that area, shall be
continued n that court asif this Act had not been passed and if the court finds that
thejuvenile has committed an offence, it shall
recordsuchfindingandinsteadofpassinganysentenceinrespectofthejuvenile,forwardthe
juvenile to the Board which sha l pass orders in respect of thatjuvenile in accordance
with the provisions of this Act as if it hadbeen satisfied on inquiry under this Act that
a juvenile has committedtheoffence.
. Prohibition of publication of name, etc., of juvenile involved inany proceeding
under the
Act.- (1) No report in any newspaper,magazine, news-sheet or visual media of any
inquiry
regardingajuvenileinconflictwithlawunderthisActshalldisclosthename,addressorschool
or any other particulars calculated to lead to theidentification of the juvenile nor shall
any picture of any suchjuvenile bepublished:
Provided that for reasons to be recorded in writing the authorityholding the inquiry
may permit such disclosure, if in its opinion suchdisclosure is in the interest of the
juvenile.
(2) Any person contravening the provisions of sub-section (1) shall bepunishable with
fine, which may extend to one thousand rupees.
22 . Provision in respect of escaped juvenile.- Notwithstandinganything to the
contrary contained in any other law for the time beingin force, any police officer may
take charge without warrant of ajuvenile in conflict with law who has escaped from a
sp cial home oran observation home or from the care of a person under whom he
wasplaced under this Act, and shall be sent back to the special home orthe
observation home or that person, as the case may be; and noproceeding shall be
instituted in respec of the juvenile by reason ofsuch escape, but the special home, or
the observation home or theperson may, after giving the information to the Board
which passed theorder in respect of the juvenile, take such steps in respect of
thejuvenile as may be eemed necessary under the provisions of this Act.
. Punishment for cruelty to juvenile or child.- Whoever, having theactual charge of
or control over, a juvenile or the child, assaults,abandons, exposes or wilfully
neglects the juvenile or causes orprocures him to be assaulted, abandoned,
exposed o neglected in amanner likely to cause such juvenile or the child
unnecessary mentalor physical suffering shall be punishable with imprisonment for
a termwhich may extend to six months, or fine, or with both.

. Employment of juvenile or child for begging.- (1) Whoever, employsor uses

any juvenile or the child for the purpose or causes anyjuvenile to beg shall be
punishable with imprisonment for a term whichmay extend to three years and shall
also be li ble to fine.
(2) Whoever, having the actual charge of, or control over, a juvenileor the child
abets the commission of the offence punishable undersub-section (1), shall be
punishable with imprisonment for a termwhich may extend to one year and shall
also be lia le to fine.
. Penalty for giving intoxicating drug or psychotropic substance tojuvenile or
child.- Penalty for giving intoxicating drug or psychotropic substance tojuvenile or
child.- Whoever gives, or causes to be given, to anyjuvenile or the child any
intoxicating liquor in a public place or anynarcotic drug or psychotropic substance
except up n the order of dulyqualified medical practitioner or in case of sickness
shall bepunishable with imprisonment for a term which may extend to threeyears
and shall also be liable to fine.

. Exploitation of juvenile or child employee.- Whoever ostensiblyprocures a

juvenile or the child for the purpose of any hazardousemployment keeps him in
bondage and withholds his earnings or usessuch earning for his own purposes shall
be punishable withimprisonment for a term which may extend to three years and
shall alsobe liable tofine.
. Special offences.- The offences punishable under sections 23, 24,25 and
26 shall be cognizable.
. Alternative punishment.- Where an act or omission constitute anoffence
punishable under this Act and also under any other Central orState Act, then,
notwithstandinganything contained in any law for thetime being in force, the offender
found g ilty of suchoffences
shallbe liable to punishment only under such Act as provides for punishmentwhich is
greater in degree.

CHILD IN NEED OF CARE AND PROTECTION

. Child Welfare Committee.- (1) The State Government may, bynotification in

Official Gazette, constitute for every district orgroup of districts, specified in the
notification, one or more ChildWelfare Committees for exercising the powers and
dischar e the dutiesconferred on such Committees in relation to child in need of care
andprotection under this Act.

(2) The Committee shall consist of a Chairperson and four othermembers as the
State Government may think fit to appoint, of whom atleast one shall be a woman
and another, an expert on mattersconcerning children.

The qualifications of the Chairperson and the members, and thetenure for which they
may be appointed shall be such as may beprescribed.
The appointment of any member of the Committee may be terminated,after holding
inquiry, by the State Government, if-he has been found guilty of misuse of power
vested under this Act;

he has been convicted of an offence involving moral turpitude,and such conviction

has not been reversed or he has not been grantedfull pardon in respect of such
offence;
he fails to attend the proceedings of the Committee forconsecutive three months
without any valid reason or he fails toattend less than three-fourth of the sittings in a
year.
(5) The Committee shall function as a Bench of Magistrates and shallhave the
powers conferred by the Code of Criminal Procedure, 1973 (2of 1974) on a
Metropolitan Magistrate or, as the case may be, aJudicial Magistrate of the first
class.

30 . Procedure, etc., in relation to Committee.- (1) The Committeeshall meet at

such times and shall observe such rules of procedure inregard to the transation of
business at its meetings, as maybeprescribed.
A child in need of care and protection may be produced before anindividual member
for being placed in safe custody or otherwise whenthe Committee is not in session.
In the event of any difference of opinion among the members of theCommittee at the
time of any interim decision, the opinion of themajority shall prevail but where there
is no such majority the opinionof the Chairperson shall prevail.
Subject to the provisions of sub-section (1), the Committee mayact, notwithstanding
the absence of any member of the Committee, andno order made by the Committee
shall be invalid by reason only of theabsence of any member during any stage of the
proceeding.

31 . Powers of Committee.- (1) The Committee shall have the finalauthority to

dispose of cases for the care, protection, treatment,development and rehabilitation
of the children as well as to providefor their basic needs and protection of human
right.

(2) Where a Committee has been constituted for any area, suchCommittee shall,
notwithstanding anything contained in any other lawfor the time being in force but
save as otherwise expressly providedin this Act, have the power to deal exclusively
wi h all proceedingsunder this Act relating to children in need of care and protection.

32 . Production before Committee.- (1) Any child in need of careandprotection

may be produced before the Committee by one of thefollowingpersons-
(i) any police officer or special juvenile police unit or a designatedpolice officer;

any public servant;childline, a registered voluntary organisation or by such

othervoluntary organisation or an agency as may be recognised by the
StateGovernment; any social worker or a public spirited citizen authorised by theState
Government; or by the child himself.
(2) The State Government may make rules consistent with this Act toprovide for the
manner of making the report to the police and to theCommittee and the manner of
sending and entrusting the child tochildren's home pending the inquiry.

33 . Inquiry.- (1) On receipt of a report under section 32, theCommittee or any police
officer or special juvenile police unit or thedesignated police officer shall hold an
inquiry in the prescribedor agency as mentioned in sub-section (1) of section 32,
may pass anorder to send the child to the children's home for speedy inquiry by
asocial worker or child welfare officer. manner and the Committee, onits own or on
the report of any personThe inquiry under this section shall be completed within
fourmonths of the receipt of the order or within such shorter period asmay be fixed
by the Committee:Provided that the time for the submission of the inquiry report may
beextended by such period as the Committee may, having regard to
thecircumstances and for the reasons recorded in writing,determine.
After the completion of the inquiry if the Committee is of theopinion that the said child
has no family or ostensible support, itmay allow the child to remain in the children's
home or shelter hometill suitable rehabilitation is found for him or t ll he attains theage
of eighteen years.
34 . Children's homes.- (1) The State Government may establish andmaintain
either by itself or in association with the voluntaryorganisations, children's homes, in
every districtor
group ofdistricts, as the case may be, for the reception of child in ne d ofcare and
protection
during the pendency of any inquiry andsubsequently for their care, treatment,
education, training,development and rehabilitation.
(2) The State Government may, by rules made under this Act, providefor the
management of children's homes including the standards and thenature of
services to be provided by them, and the circumstances underwhich, and the
manner in which, the certific tion of a children's homeor recognition to a voluntary
organisation may be granted orwithdrawn. 35 . Inspection.- (1) The State
Government may appoint inspectioncommittees for the children's homes
(hereinafter referred to as theinspection committees) for the State, a district and
city, as the casemay be, for such period and for such purposes as ma be
prescribed.
(2) The inspection committee of a State, district or of a city shallconsist of such
number of representatives from the State Government,local authority, Committee,
voluntary organisations and such othermedical experts and social workers as may
be pres ribed.
. Social auditing.- The Central Government or State Government maymonitor and
evaluate the functioning of the Children's homes at suchperiod and through such
persons and institutions as may be specifiedby that Government.
. Shelter homes.- (1) The State Government may recognise, reputedand capable
voluntary organisations and provide them assistance to setup and administer as
many shelter homes for juveniles or children asmay be required.
The shelter homes referred in sub-section (1) shall function asdrop-in-centres for
the children in the need of urgent support whohave been brought to such homes
through such persons as are referredto in sub-section (1) of section 32.
As far as possible, the shelter homes shall have such facilitiesas may be prescribed
bythe rules.
38 . Transfer.- (1) If during the inquiry it is found that the childhails from the place
outside the jurisdiction of the Committee, theCommittee shall order the transfer of
the child to the competentchild. authority having jurisdiction over the place of reside
ce of the Such juvenile or the child shall be escorted by the staff of thehome in which
he is lodged originally.The State Government may make rules to provide for the
travellingallowance to be paid to the child.
39 . Restoration.- (1) Restoration of and protection to a child shallbe the prime
objective of any children's home or the shelterhome.
The children's home or a shelter home, as the case may be, shalltake such steps as
are considered necessary for the restoration of andprotection to a child deprived of
his family environment temporarilyor permanently where such child is under the are
and protection of achildren's home or a shelter home, as the case may be.
The Committee shall have the powers to restore any child in needof care and
protection to his parent, guardian, fit person or fitinstitution, as the case may be, and
give them suitable directions.

Explanation.-For the purposes of this section "restoration of child"means restoration

to-
parents;
adopted
parents;
fosterparents.

REHABILITATION AND SOCIAL REINTEGRATION

. Process of rehabilitation and social reintegration.- Therehabilitation and social

reintegration of a child shall begin duringthe stay of the child in a children's home or
special home and therehabilitation and social reintegration of children shall be
carriedout alternatively by (i) adoption, (ii) foster care, (iii)sponsorship, and (iv)
sending the child to an after-care organisation.
. Adoption.- (1) The primary responsibility for providing care andprotection to children
shall be that of his family.
Adoption shall be resorted to for the rehabilitation of suchchildren as are orphaned,
abandoned, neglected and abused throughinstitutional and non-institutional
methods.In keeping with the provisions of the various guidelines foradoption issued
from time to time by the State Government, the Boardshall be empowered to give
children in adoption and carry out suchinvestigations as are required for giving
children in adoption inaccordance with the guidelines issued by the State
Government fromtime to time in this regard.The children's homes or the State
Government run institutions fororphans shall be recognised as an adoption
agencies both for scrutinyand placement of such children for adoption in
accordance with theguidelines issued under sub-section (3).

No child shall be offered for adoption- until two members of the Committee declare
the child legally freefor placement in the case of abandoned children, till the two
months period for reconsideration by the parent isover in the case of surrendered
children, and without his consent in the case of a child who can understand
andexpress his consent.The Board may allow a child to be given in adoption-
to a single parent, and to parents to adopt a child of same sex irrespecitve of the
numberof living biological sons or daughters.
42 . Foster care.- (1) The foster care may be used for temporaryplacement of
those infants who are ultimately to be givenforadoption.
(2) In foster care, the child may be placed in another family for ashort or extended
periodof time, depending upon the circumstanceswhere the child's own parent
usually visit regularly and eventuallyafter the rehabilitation, where the children may
re urn to theirownhomes.
(3) The State Government may make rules for the purposes of carryingout the
schemeof foster care programme ofchildren.
43 . Sponsorship.- (1) The sponsorship programme may providesupplementary
support to families, to children's homes and to specialhomes to meet medical,
nutritional,educational
and other needs of thechildren with a view to improving their quality of lif .
(2) The State Government may make rules for the purposes of carryingout various
schemes of sponsorship of children, such as individual toindividual sponsorship,
group sponsorship or community sponsorship.

44 . After-care organization.- The State Government may, by rules madeunder

this Act, provide-
for the establishment or recognition of after-care organisationsand the functions
that may be performed by them under this Act;
for a scheme of after-care programme to be followed by suchafter-care
organisations for the purpose of taking care of juvenilesor the children after they
leave special homes, children homes and forthe purpose of enabling them to lead
an honest, i dustrious and usefullife;
for the preparation or submission of a report by the probationofficer or any other
officer appointed by that Government in respectof each juvenile or the child prior to
his discharge from a specialhome, children's home, regarding the necessity and
nature ofafter-care of such juvenile or of a child, the period of suchafter-care,
supervision thereof and for the submission of report bythe probation officer or any
other officer appointed for the purpose,on the progress of each juvenile or the chil ;
for the standards and the nature of services to be maintained bysuch
after-care organisations;
for such other matters as may be necessary for the purpose ofcarrying out the
scheme of after-care programme for the juvenile orthe child:
Provided that any rule made under this section shall not provide forsuch juvenile or
child to stay in the after-care organisation for morethan three years:
Provided further that a juvenile or child over seventeen years of agebut less than
eighteen years of age would stay in the after-careorganisation till he attains the age
of twenty years.
. Linkages and co-ordination.- The State Government may make rulesto ensure
effective linkages between various governmental,non-governmental, corporate
and other community agencies forfacilitating the rehabilitation and social
reintegration of the ch ld.