CRPC Notes

Contents
Module 1 - Judgement.........................................................................................................................3
Things To Be Considered In A Judgement................................................................................................3
Deliverance Of Judgement......................................................................................................................4
Compensations And Costs.......................................................................................................................5
Successful Complainant To Get Costs In Non-Cognizable Cases Under Section 359................................7
Compensation For Wrongful Arrests Under Section 358.........................................................................7
Module 2 - Summary Trials...................................................................................................................8
Judgement In Summary Trials.................................................................................................................8
Evidences.................................................................................................................................................9
Records In Summary Trials......................................................................................................................9
Language Of Judgement And Record.......................................................................................................9
Summary Trials Against Government Servants........................................................................................9
Module 3 – Appeal, Review And Revision.............................................................................................9
Sections Dealing With Appeal................................................................................................................10
No Right To Appeal................................................................................................................................10
Other Forms Of Appeals........................................................................................................................11
Who Hears The Appeal And Form Of Appeals.......................................................................................13
Powers Of The Appellate Court.............................................................................................................13
Reference Powers..................................................................................................................................15
Revisionary Powers................................................................................................................................16
Module 4 – Juvenile Delinquency.......................................................................................................17
Who Is A Juvenile...................................................................................................................................17
Delinquency...........................................................................................................................................17
Causes Of Juvenile Delinquency............................................................................................................18
Constitutional Provisions And Safeguards For Juveniles In India...........................................................19
Statutory Provisions Under The IPC And CRPC......................................................................................20
Development of laws relating to Juveniles in India...............................................................................20
The Children’s Act 1960.........................................................................................................................21
Juvenile Justice Act 1986.......................................................................................................................21
Juvenile Justice Act 2000.......................................................................................................................21
Juvenile Justice Act 2015.......................................................................................................................23

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 Justice Verma Committee Report..........................................................................................................26
Issues Faced With The Juvenile Justice Act............................................................................................26
Recommendations.................................................................................................................................27
Important Cases....................................................................................................................................27
Module 5 – Probation And Admonition..............................................................................................28
Merits Of Probation...............................................................................................................................29
Section 360 Of The CRPC.......................................................................................................................29
Admonition............................................................................................................................................30
Probation Of Offenders Act...................................................................................................................30
Section 3 – Offenses And Admonition...............................................................................................31
Section 4 – Powers of the Court........................................................................................................31
Section 5 - Compensation..................................................................................................................32
Section 6 – Special Reasons...............................................................................................................32
Section 7 – Report of The Probation Officer......................................................................................32
Section 8 – Power To Vary Bond Conditions......................................................................................33
Section 9 – Failure to observe conditions..........................................................................................33
Section 11 – Courts which are competent.........................................................................................33
Section 12 – Protection from Disqualification...................................................................................34
Section 13 – Probation Officer...........................................................................................................34
Section 14 – Duties Of The Probation Officer....................................................................................34
Benefits To The Probation Officer......................................................................................................34
Module 6 – Transfer Of Criminal Cases...............................................................................................35
Transfer By The Supreme Court.............................................................................................................35
Grounds For Transfer Of Cases..............................................................................................................35
Transfer Of Cases And Appeals By The High Court................................................................................36
Orders Passed By The High Court..........................................................................................................36
Exercise of Power By The High Court.....................................................................................................36
Procedure..............................................................................................................................................36
Transfer Of Cases By The Sessions Judge...............................................................................................37
Withdrawal Of Cases And Appeals By Sessions Judges..........................................................................37
Withdrawal Of Cases By Judicial Magistrates........................................................................................37
Making Over Or Withdrawal Of Cases By Executive Magistrates..........................................................38
Module 7 – Reforms Under Criminal Law............................................................................................38

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 Major Reforms Undertaken...................................................................................................................38
Recommendations.................................................................................................................................39

Module 1 - Judgement
 The judgement in any case be it civil or criminal is a very important element of court
proceedings.
 The judgment is a final verdict that is given by a judge in a court of law to the parties in a
case, giving the decisions of the court, after hearing all sides in the case and examining the
evidences.
 A faulty judgement can render the justice system obsolete. The judgment is a cornerstone of
justice. Thus it is essential the judgement be rendered in line of rule of law and principles of
natural justice.
 There is no exact definition of judgment in the CRPC, however it refers to any statement
made by the judge along with decree or order, as per the CPC.
 In Surendra Nath Singh V. State Of Uttar Pradesh the court here established the meaning
of “judgement”. It stated that the judgment was a formal decision taken by courts
proclaimed to all parties and the world at large, in an open court.
 With respect to criminal offenses, the judgement includes the decision taken by the court as
to the guilt or innocence of the accused, with a final adjudication and the sentencing of the
accused (if guilty) or the acquittal of the accused (if innocent).
 When a judgment is given, the reasons behind the judgment must be given, before the
sentencing. The reasons must be recorded in writing.
Things To Be Considered In A Judgement
 In a criminal judgment the following needs to be considered:
o The offense for which the accused was convicted
o The charges against the accused
o Examination of evidences and findings by the court
o Reasons of findings by the court
o Determination as to guilt or acquittal of the accused
o Order of sentencing with reasons if found guilty with punishment for each offense
o Order of acquittal if found innocent
o Particulars required for a Court of Appeal
 A judgment is always pronounced after the conclusion of the trial. Any statements
pronounced before the trial does not constitute as part of the judgment. Any orders passed
before the conclusion of a trial are not part of the judgment. (Dwarka Nath Mundal V. Beni
Mahdav)
 The judgement is only said to be delivered when
o It is written
o It is signed
o It is dated.

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 Form and Content of Judgement
 Section 353 of the CRPC addresses when and how will the judgement be delivered. It
stipulates that the judgment is to be delivered after the conclusion of the trial. The judgment
is to be written and signed by the presiding officer of the court.
 The judgment is to be delivered/pronounced in an open court in any trial involving a court of
original jurisdiction.
 The judgment may be
o Delivered to the accused and the pleaders
o Read out in its entirety
o Read out partially, with an emphasis on the operative clause of the judgment.
 Uttam Chand V. State of Rajasthan – Held by the court that any judgment after handing
over of the charge of transfer is not a valid judgment.
 Section 354 of the CRPC addresses the flow of the judgment and its constituents. It
stipulates that the judgement should be:
o In the language of the court
o It must contain the points of law for determination
o It must contain information and description of the charges and the offense specified.
o Where the offense under the IPC is prescribed, the Section corresponding to the
offense must be given.
o Where the accused is acquitted, an order of acquittal must follow
o Where the accused is guilty, an order of sentencing must follow.
o Where the accused is sentenced to life imprisonment or death, the court must give a
proper reasoning in the judgement. This also applies where imprisonment is for a
number of years. Reasons as to sentence are to be given on grounds of special
circumstances
o If the judgment is passed under the IPC and the judge is not certain as to under
which Section the offence is committed or under which part of the Section, the
judge should specify the same in the judgment and should pass orders in both
the alternate situations.
 Section 355 of the CRPC provides a quicker shorter method of delivering the judgment.
However here the judgement is given by the Metropolitan Magistrate. Instead of following
the procedures given in Section 354, the judgement can be delivered with the following:
o Case serial number
o Date of offense
o Name of complainant
o Name of accused person
o Offense in question
o Plea of the accused
o Final orders and dates
o Where there is an appeal from the order, the reasons for the same.

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 Compensations And Costs
 Compensation and costs form an important part of criminal law. Compensation involves
giving some form of monetary remuneration by the offender to other affected parties as a
result of suffering endured from an offense.
 Generally, compensation exists in the following ways
o Fines – as decided by the courts, and as prescribed in the statute
o Orders for compensation to be demanded by the courts, paid by the accused found
guilty.
 Section 358 – The court can order compensation to be given to a person who has been falsely
arrested. The compensation is recovered as a fine, and is given to compensate for the loss of
time, money of the affected person.
 Section 357 of the CRPC addresses compensation.
o Under it, if the judgement is of conviction, the accused may be ordered by the court to
pay compensation over the sentence or fine, awarded to them.
o The offender themselves may be asked to pay the compensation
o The compensation to be paid may be done either wholly or in part.
o The fine may be a part of the sentence, or independent of the sentence of the offense.
 The compensation in general is for the following persons
o The victim / family of the victim
o Expenses of prosecution
o Medical expenses (if any)
o Fines – prescribed by the court or the statute.
o To the bona fide purchaser – in cases of offenses of criminal breach of trust,
misappropriation, fraud, etc.
 Queen V. Gour Churn Dass - Any order of compensation u/s 357 must be passed by court
while passing judgment i.e. in presence of parties and not afterwards.
 Hari Kishan and State of Haryana V. Sukhbir Singh - Power to award compensation is
not ancillary to other sentences but it is in addition thereto. This power was intended to re-
assure victim that his rights haven’t been forgotten in the criminal justice system. It is a
method of responding appropriately to crime as well as reconciling the victim with the
offender.
 Sarwan Singh V. State of Punjab - The court elaborated on the following to be considered
while awarding compensation:
o Nature of crime
o Injury suffered
o Justness of claim for compensation
o The capacity of accused to pay
o Other relevant circumstances in fixing the amount of fine or compensation

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 Section 357A – added in the 2008 Criminal Law Amendment Act, so as to provide
compensation for victims of a crime, and their dependents.
o It calls for greater cooperation between central and state governments towards
providing adequate compensation for victims and their dependents in cases of
offenses committed.
o The compensation scheme is to be given for providing aid in rehabilitation,
compensation for losses or injuries suffered.
o The quantum of compensation to be paid to the victim is to be decided by the district
legal services authority, taking into account
 The offense
 Nature of the victim – age, socio-economic status, gender.
 Dependents of the victim
 Injuries suffered.
o The compensation scheme also includes compensation for medical expenses in lieu of
treatments to be given to the victim.
o The trial courts can order for compensation under Section 357A in two cases
 Where the compensation under Section 357 is not enough for rehabilitation.
 Where the offender has been acquitted but the victim needs to be rehabilitated.
o Where the offender cannot be found, the victim or their dependents can apply to the
District Legal Services Authority, or the State Legal Services Authority for granting
of compensation under Section 357A
o Where such an application has been made, the DLSA or the SLSA needs to complete
an inquiry into the compensation application, within a period of 2 months.
o The DSLA / SLSA may choose to provide free medical aid to the victim after
completion of inquiry of the application.
 Such grant may only be possible after consent of the magistrate, and any
police officer not below the rank of head of police station, or rank of officer.
 Section 357B – It provides that in addition to the fine specified in the IPC, compensation is
to be given by the offender to the victims in case of the following offenses under the IPC.
o Section 326A- . Voluntarily causing grievous hurt by use of acid, etc
o Section 376AB- Punishment for rape on woman under twelve years of age
o Section 376D- Gang rape.
o Section 376DA- Punishment for gang rape on woman under sixteen years of age

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 o Section 376DB- Punishment for gang rape on woman under twelve years of age
 Section 357C – It provides for the treatment of victims. It stipulates that all hospitals whether
public or private are to provide treatment free of cost to victims of offenses.
o The public hospital refers to any hospital run by the Central or State government,
local bodies or any other persons connected with the government.
o Along with treatment of the victim, the hospital is required to inform the police of the
victim, nature of injuries, and suspected offenses.
o In the case of the following offenses under the IPC, the police have to be informed of
the same expeditiously
 Section 376A- Punishment for causing death or resulting in persistent vegetative
state of victim.
 Section 376AB- . Punishment for rape on woman under twelve years of age
 Section 376B- Sexual intercourse by husband upon his wife during separation.
 Section 376C - Sexual intercourse by a person in authority
 Section 376D- Gang rape.
 Section 376DA- Punishment for gang rape on woman under sixteen years of age
 Section 376DB- Punishment for gang rape on woman under twelve years of age

Successful Complainant To Get Costs In Non-Cognizable Cases Under Section 359

 Section 359 stipulates that where the offender has been convicted of a non-cognizable
offense, then along with the sentence, the court may order the payment of expenses borne
by the complainant to be paid by the offender.
 Such expenses include fees of witnesses and pleader fees.
 The payment can either be ordered to be made in full or in installments.
 Where there is a default in payments, the Magistrate can order imprisonment for not more
than 30 days.
Compensation For Wrongful Arrests Under Section 358
 Section 358 of the CRPC stipulates that where the person compels the police to arrest
another individual, and the magistrate believes that there is no ground for arrest,
compensation may be awarded.
 The amount of compensation is to be not more than 1,000 rupees paid by the party
causing the arrest. The compensation is a fine upon the party causing the arrest, for
causing loss of time, expense and the depriving of liberty for the affected party.
 Where more than 1 person is wrongfully arrested, the court may order that each person
wrongfully arrested is to be given compensation not exceeding 100 rupees as the
magistrate deems fit.

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  If the party causing the arrest fails to pay the compensation, then the magistrate may
sentence said party for imprisonment of up to 30 days, unless the compensation is paid.

Module 2 - Summary Trials

 Section 260 of the CRPC addresses the aspect of Summary Trial. It stipulates that the
following persons may conduct a summary trial.
o Chief Judicial Magistrate
o Metropolitan Magistrate
o Any Magistrate of the first class specially empowered in this behalf by the High
Court under Section 260 or Section 261.
 The following offenses may be tried by way of summary trial
o Offenses not punishable with death, or life imprisonment, or imprisonment of a term
exceeding 2 years. Only offenses with a punishment of up to 2 years of imprisonment
can be tired summarily.
o Theft under Section 379, 380, 381 of the IPC, where the value of property stolen
does not exceed 2,000 rupees.
o Receiving or retaining stolen properties under Section 441 of the IPC where the
value of property does not exceed 2000 rupees
o Any offense under Section 454 and 456 of the IPC
o Any insult with an intent to provoke a breach of peace under Section 504 and
criminal intimidation, punishment which may extent to 2 years imprisonment with
fine or both, under Section 506 of the IPC
o Abetment of foregoing offenses
o Attempt to commit foregoing offenses where such attempt is an offense
o Any offense constituted by an Act in respect of which a complaint may be made
under Section 20 of the Cattle Trespass Act 1871
 The Magistrates may recall any witness if he is of the opinion that the case should not be
tried summarily.
 Section 261 of the CRPC provides for Summary Trial by Magistrate of the Second
Class
o The High Court may give the power to a Magistrate of the Second Class to summarily
try an offense punishable with fine or imprisonment of a term not exceeding 6
months, or for abetment of, or any attempt to commit such offense.
 Section 262 of the CRPC provides for the procedure for summary trials.
o The procedure specified in the CRPC is to be followed for summary trials.
o No sentence of imprisonment for a term exceeding 3 months of imprisonment can be
passed in case of any conviction. The punishment can be imprisonment of no more
than 3 months.
 The procedure followed for summon cases has to be followed for summary cases as well.
The exception in summary trials is, that a sentence exceeding the duration of three
months cannot be passed in case of conviction under this Chapter.

The procedure for a summons case can be briefly stated as follows:

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  For a criminal procedure to begin, the first step is to file an FIR or a complaint. This is
investigated upon by the police and evidence is collected. At the end of the investigation,
a charge sheet is filed by the police. This is also called the pre-trial stage.
 The accused person is then taken before the Magistrate who orally reads the particulars of
the offences to the accused. In summons and summary trials, a formal charge is not
written down.
 The Magistrate after stating the particulars of the offence committed asks the accused if
he pleads guilty or not. If the accused person pleads guilty, the Magistrate makes a record
of the statement of the accused and then proceeds for conviction.
 If the accused does not plead guilty, the trial begins. The prosecution and the defence are
given an equal opportunity to put their case forward. The Judge may then decide the
acquittal or the conviction of the accused.
 In summary cases, the difference lies at this juncture. If the Judge delivers a judgment of
conviction of the accused – the maximum sentence that can be passed for imprisonment
is three months.

Judgement In Summary Trials

 Where the accused pleads not guilty, the trial proceedings are conducted for the case.
 No sentence of imprisonment more than 3 months can be passed in case of conviction in a
summary trial as under Section 262(2) of the CRPC.
 Where the sentence passed is not appealable, the particulars required under Section 263 of
the Code may be recorded.
 In appealable cases, however, the Court must record the substance of the evidence and also
the particulars mentioned in Section 263. The court must before passing sentence also record
judgment in the case under Section 264 of the CRPC.
 For pronouncement of judgement, Section 264 of the CRPC is followed. The Magistrate is
to record the following:
o Content of evidence
o Explaining the reasons as to why such a finding was found by the Magistrate.
Other rules must be in the same manner as that of a judgment under Section 353 and Section
354 of the CRPC.
Evidences
 Where the order of the Magistrate is final in a summary trial, no evidence needs to be
recorded. However, the magistrate must still enter the particulars under Section 263 in
Register No. 17, column 7 to 14 by himself.
 Where a sentence is passed which is appealable, the substance of the evidence, in addition to
the particulars mentioned in Section 263, should be recorded.
Records In Summary Trials
 The judge is to make the following records in the case of the summary trials.
o Serial number of the case
o The date on which the offense was committed
o The date the complaint was filed and name of complainant

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 o The name, address and parentage of the accused
o The violation and the value of the property stolen
o The plea of the accused and if he is investigated, so that too
o The Magistrate’s findings
o The judgment or final order of the magistrate
o The date the legal action ends i.e. proceedings terminated
Language Of Judgement And Record
 The language of the judgement is the language of the court.
 The High Court can authorize the Magistrate who is trying the offense summarily to prepare
the record with the help of an officer appointed for this purpose by the Chief Judicial
Magistrate.
 Such a record shall be signed by such Magistrate.
Summary Trials Against Government Servants
In cases against government servants, summary trials as a rule should not be adopted by the
judiciary.

Module 3 – Appeal, Review And Revision

 The criminal justice system affects directly the rights under Article 21 of Indian Constitution
 Moreover, there is a need of a method of correction of error or solution to human frailty
 Hence, the concept of appeals keeps importance in the legal system.
 Appeal not defined under CRPC however it has been defined under Black’s Law Dictionary.
 Black’s law dictionary defines appeal to be a complaint or grievance to a superior court for
reconsideration or review of a decision, verdict or sentence of a lower court.
 Under CRPC, Appeal is given under Chapter XXXIX from Section 372 - 394
 Initially the provisions talked only about the right of appeal of accused persons. The same
can be seen from the existing provisions too.
 Later in 2009 by amendment, the right to appeal of a victim too was recognized under CRPC
 In addition to the CRPC, Article 132, 134 and 136 of the Constitution also talks about the
Right to Appeal.
 The right to appeal is a procedural and substantive right. However it is not an inherent right
as it is subject to statutory limitations. The rationale behind such limitations is that the courts
trying a case are competent enough and that there is a presumption of fair conducting of the
trial by the concerned court.
Sections Dealing With Appeal
 Section 372 of the CRPC provides that no right to appeal exists except as provided by the
CRPC or any other law for the time being in force.
o It stipulates that the victims of a crime have the right to file an appeal in the case of:
 Judgement of acquittal of the accused.
 Conviction of a lesser offense
 Inadequate compensation
 Any person falling under the definition of victim as under Section 2(wa) of the CRPC may
file an appeal.

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 Satya Pal Singh V. State Of Madhya Pradesh: It was held by the court that the father of
the deceased had a locus standi to file an appeal on grounds that he fell under the definition
of victim of an offense.
 Section 373 of the CRPC deals with appeals from cases requiring security or rejection of
surety.
o It is read with Section 11 and Section 121 of the CRPC
o Appeals under Section 373 lies to the Courts of Session. However no appeal would
lie to the Court of Sessions, if the proceedings were already initiated under Section
122 of the CRPC.
 Section 374 deals with appeals arising out of conviction. Here the accused person found
guilty has the right to appeal. The appeal exists for the following courts.
o The appeal lies to the Supreme Court from the High Court.
o The appeal lies to the high Court from the Court of Sessions.
o The appeals lie to the Sessions court in cases of:
 Appeal from other Magistrate or Assistant Sessions Judge
 Appeals Under Section 325 of the CRPC
 Appeals from sentence passed under Section 360 of the CRPC
 Arun Kumar V. State Of UP – The Supreme Court has held that if the High Court’s find
the decision of the Session Court of acquittal wrong, and may lead to the miscarriage of
justice, the High Court can reverse the acquittal of the accused and convict him.
 The basic duties in appeal can be seen as determining the validity of the acquittal of an
accused in line with the principles of justice.
 While disposing off application from sentences of lower courts, the appellate court has to
give its reasons for rejection and must not reject it summarily.
 An appeal from the order of acquittal of the accused must be filed within the limitation
period prescribed under Section 114 of the Limitation Act.
No Right To Appeal
 Via Section 375 and 376 of the CRPC a person loses the right to appeal
 Section 375 of CRPC mandates that where the accused pleads guilty for an offense and is
convicted by any court, he cannot file an appeal. The right to appeal only exists when there is
a question of the legality of the offense, or the extent of the sentence.
 Section 376 of the CRPC mandates that the right to appeal is not maintainable in
certain cases. They are:
o Where a High Court passes only a sentence of imprisonment for a term not exceeding
six months or of fine not exceeding one thousand rupees, or of both
o Where a Court of Session or a Metropolitan Magistrate passes only a sentence of
imprisonment for a term not exceeding three months or of fine not exceeding two
hundred rupees, or of both
o Where a Magistrate of the first class passes only a sentence of fine not exceeding one
hundred rupees.
o Where, in a case tried summarily, a Magistrate empowered to act under Section 260
passes only a sentence of fine not exceeding two hundred rupees.
o However, appeal may be brought against such sentence if any other punishment
is combined with it.
o The right to appeal is unavailable on following grounds:

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  The person convicted is ordered to furnish security to keep the peace
 A direction for imprisonment in default of payment of fine is included in the
sentence
 More than one sentence of fine is passed in the case, if the total amount of fine
imposed does not exceed the amount hereinbefore specified in respect of the
case
Other Forms Of Appeals
 Section 377 addresses the appeal for an enhancement of sentence. It stipulates that both
the Central and State Government(s) are eligible to appeal against the inadequacy of sentence
awarded by the court.
o A direction may be made to the Public Prosecutor to file the appeal
o If the sentence is inadequate resulting in failure of justice, the appellate court must
pass a speaking order for enhancing the sentence.
 Bachan Singh V. State Of Punjab – The Supreme Court held that the High Courts can
exercise suo moto revisionary powers and jurisdiction to enhance sentence in appropriate
cases.
 Section 378 of the CRPC addresses appeals against an order of acquittal. The appeal may
be made by any of the following:
o By District Magistrate with direction to the Public Prosecutor with relation to
Cognizable and Non-bailable cases to the Court of Sessions.
o By the State Government with appeal to the High Courts from the orders of any court
including courts of first instance or appellate courts, not falling under Section 378(a)
under appeal from Court of Sessions in the Revisional Jurisdiction.
o By the Central Government, if the accused was charged under a Central Act.
o In cases of complaint, if the application against acquittal was made by the
complainant to the Hight Court, a special leave to appeal can be granted by the High
Court for appeals to the High Courts.
 The limitation period of special leaves to appeal stands as follows:
 6 months for public servants
 60 days for any other person.
 Where the appeal for special leave has been rejected, no appeal for acquittal
can lie in any court.
 No appeal may lie to the High Courts except with leave of the High Courts.
 Chadrappa V. State Of Karnataka –
o It was held by the court that an appellate court has the full power to review, re-
appreciate or reconsider the evidences upon which the order of acquittal was founded.
o The CRPC places no limitations, restrictions or conditions on the exercise of such
powers before an appellate court on the evidence before it may reach its own
conclusions.
o The conclusions lie on both questions of fact and questions of law.
o Where the court is an appellate court, said court muse bear in mind that in case of
acquittal there is a double presumption in favor of the accused.
 Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person shall be

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 presumed to be innocent unless he is proved guilty by a competent court of
law.
 Secondly, the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the trial court.
 If two reasonable conclusions are possible on the basis of the evidence
on record, the appellate court should not disturb the finding of
acquittal recorded by the trial court.”
 Surajpal Singh V. State - Appeal against an order of acquittal is an extraordinary remedy.
In exercising this power the High Court should give proper weight and consideration to
“Very substantial and compelling reasons”.
o Very substantial and compelling reasons” exist when:
 The trial court’s conclusion with regard to the facts is palpably wrong;
 The trial court’s decision was based on an incorrect view of law;
 The trial court’s judgment is likely to result in “grave miscarriage of justice”;
 The entire approach of the trial court in dealing with the evidence was
patently illegal;
 The trial court’s judgment was manifestly unjust and unreasonable;
 The trial court has ignored the evidence or misread the material evidence or
has ignored material documents like dying declarations/ report of the Ballistic
expert, etc
o List is illustrative and not exhaustive
 Dhanna V. State Of Madhya Pradesh - Appellate Court in appeals against acquittals has to
proceed more cautiously and only if there is absolute assurance of the guilt of the accused,
upon the evidence on record, that the order of acquittal is liable to be interfered with or
disturbed.
o As there is a general presumption in favour of the innocence of the person accused in
criminal cases and that presumption is only strengthened by the acquittal
 Section 379 of CRPC addresses appeals against the conviction
o Where in a case of acquittal, the High Courts have convicted the accused person and
sentenced them to death, life imprisonment, or imprisonment for 10 years or more,
then said accused has the right to appeal to the Supreme Court.
 Section 380 stipulates that if more than 1 persons are convicted of an offense, the right
to appeal exists to others in the offense as well.
Who Hears The Appeal And Form Of Appeals
 Section 381 mandates that the Appeals before the Court of Sessions would be heard by the
Sessions Judge or Additional Sessions Judge.
o An appeal from the decision of the Judicial Magistrate 2 nd Class would be heard by
the Chief Judicial Magistrate, or the Additional Sessions Judge.
o The Sessions Judge or the High Court can make over or direct the case to other
judges, and they can hear only those appeals.
 Section 382 stipulates that the appeal must be in the form of a petition. It must be
accompanied by the judgment of the lower court against which the appeal is preferred.
o State of Uttar Pradesh V. Tobit – Held that a copy of the judgement refers to a
certified copy of the judgement.

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 Section 383 stipulates that if the appellant is in jail, then he can present his appeal along with
documents to the officer in charge of the jail. The officer in charge is then in obligation to
forward the documents to the proper appellate court.
 Section 384 stipulates that if the appellate court after looking at petition and judgment feels
no sufficient grounds are there for appeal it may dismiss the appeal summarily. Provided that
a reasonable opportunity to be heard to appellant
o Before dismissing, court may call for records of the case
o If court dismissing appeal is the Court of Sessions or the Chief Judicial Magistrate,
there is a need to record reasons
o If appeal dismissed summarily under Section 383 and another appeal is pending under
Section 382 then court may, in interest of justice hear and dispose the second appeal
as well
 Bolin V. Jagdish – Held by the Supreme Court that the Appellate Court’s power to dismiss
an appeal must be exercised sparingly and with great circumspection.
 Section 385 addresses the procedure where the appeal is not dismissed summarily.
o A notice of time and place of appeal must be given to:
 The accused or his pleader
 State government officer
 Complainant
 If under Section 377 and Section 378, then the notice is to be given to the
accused with the grounds of appeal.
o The court has the right to call for records if said records are not available. No records
would be needed and an appeal can be disposed, if the appeal is only with respect to
the extent of legality of the sentence, or where the only grounds of appeal are alleged
severity of the sentence
Powers Of The Appellate Court
 Section 386 addresses the powers of the Appellate Court
o After hearing the appeal and looking at the available records, if no sufficient grounds
of appeal are available, the court can dismiss the appeal.
o If the appeal is against acquittal, a reverse order can be given by the court, or an order
for further investigation.
o If appeal against conviction the court has the following powers:
 Reverse finding or sentence
 Acquit accused
 Re-trial by any subordinate court of competent jurisdiction
 Alter finding, but maintain sentence
 With or without altering the finding, alter the nature or the extent of the
sentence
o If appeal for enhancement of sentence the powers of the court are the same as
conviction
o Where the appeal is from any other order the court may alter or reverse that order.
o Also, court may make any amendment or any consequential or incidental order that
may be just or proper
o No enhancement of sentence, unless the accused has had an opportunity of showing
cause against such enhancement

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 o Gul Zaman V. Emperor – Held that the power possessed by appellate court is of
alteration or reversal of the order of the lower court and should be exercised very
carefully keeping interest of justice in mind
 Section 387 addresses the Judgments of Subordinate Appellate Courts
o Under Section 387, the same rules as given under Chapter 27 of the CRPC are
applicable.
o The presence of the accused is not necessary, unless the Appellate Court directs to do
so.
 Section 388 mandates that a certified copy of the order of the appellate court is to be
sent to the lower court.
 Section 389 of the CRPC addresses the suspension of sentences during the pendency of
appeal, or the granting of bail to the accused.
o In appeal against conviction, sentence of accused can be suspended and can be
released on bail or bond
o if sentence is of death, Life imprisonment or imprisonment of 10 years or more an
opportunity given to the Public Prosecutor for showing cause against the release, in
writing
o The Public Prosecutor can also file an application for cancellation of bail, later at any
stage after bail has been granted
o These powers can be exercised by the High Court as well even when case is filed in
any court subordinate to it
o When the first instance court is satisfied that an appeal will be filed against conviction
and in the following two cases, the court can grant bail to convicted person to file
appeal and get an order to this effect from the appellate court, unless the court finds
special reason for refusing bail
o Moreover, sentence of imprisonment shall, so long as he is so released on bail, shall
be deemed to be suspended in 2 cases.
o These two cases are:
 where such person, being on bail, is sentenced to imprisonment for a term not
exceeding three years, or
 where the offence of which such person has been convicted is a bailable one,
and he is on bail
 When the appellant is ultimately sentenced to imprisonment for a term or to
imprisonment for life, the time during which he is so released shall be
excluded in computing the term for which he is so sentenced
 Section 390 addresses the arrest of the accused in appeal from acquittal. It stipulates that in
cases of appeal under Section 378 of the CRPC, the High Court may issue a warrant of arrest
for the accused.
 Section 391 addresses the powers to order for additional evidences by the Appellate Court to
subordinate courts or itself.
o After recording, the subordinate court is to send back the evidence to appellate court
o Accused parties have the right to be present when additional evidences are taken
o Evidence collected under this Section, shall be governed by the provisions of Inquiry
 Section 392 - When the opinion of judges is divided equally, then the appeal shall be laid
before another judge along with opinions presented. The opinion of the said judge will be the
verdict in the appeal.
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 Section 393 - Order of Appellate court is final
 Section 394 - Abatement of appeal on death of accused, if appeal is under Section 377 or
378.
o After death of accused, appeal can be continued against conviction by near relatives,
within 30 days of the death
o Near relatives include:
 Parent,
 spouse,
 lineal descendant,
 brother or sister
Reference Powers
 Reference under the CRPC is governed via Section 395 and Section 396.
 Section 395 addresses references to the High Court. It stipulates that where any court is
satisfied that there exists before it, the question of law, then the court in question is to state a
case for the same, setting out its opinions and reasons, and refer the same to the High Court.
o During the Pendency of the case in the High Court, the subordinate court can:
 Either commit the accused to jail
 Release the accused on bail, to appear when the he is called upon.
o Question of law includes
o Interpretation of any provision or Act, Regulation or Ordinance.
o Legality of any provision of Act, Regulation or Ordinance.
 Section 396 addresses the disposal of case by the High Court as per its decisions. It stipulates
that the High Court can pass any order as it sees fit, and send a copy of the order to the
concerned subordinate court. After passing of such order from the High Court, the lower
court can dispose of the case with conformity of the decision of the High Court. The High
Court can also decide on the question of who would bear the costs of such reference.
 State V. Narayan Nandram Sarpanch – Held that the court making reference must express
an opinion that impugned act is inoperative or invalid. Mere entertaining a doubt by the court
making reference as to validity of any act or provision is not enough.
 State Of Karnataka V. Prakash – Held that Section 395 of CRPC cannot apply to a case
where the ingredients are not satisfied on the face of it particularly when the law on the point
has been settled.
Revisionary Powers
 Section 397 addresses the exercise of revisionary powers. Revisionary powers are also
known as Parental Jurisdiction or Supervisory Jurisdiction.
o Revisionary powers are granted to the High Courts or the Sessions Judge.
o The question of revisionary powers extends to the court examining the records of
proceedings of inferior courts, for the purpose of satisfying itself of the legality,
correctness or propriety of any finding, sentence or order passed.
o They may call for or examine the records of the proceedings
o While calling for such record the court or the Judge may:
 Direct suspension of order or sentence, or
 Direct release of accused on bail or bond till the examination is complete
o The power cannot be exercised in cases of:

16
  Interlocutory order passed in appeal, trial, inquiry or any other proceeding
o If application made by any party in one of the above courts, no application can be
made to the other court
 Section 398 addresses the power to order inquiries. It stipulates that the High Court or
Sessions Judge may direct the Chief Judicial Magistrate, or any other magistrate directly or
indirectly to make inquiries into
o Complaints dismissed under Section 203 or Section 204(4)
o Provided that no direction of inquiry in case of discharge would be done without
giving a reasonable opportunity to the person who has been discharged.
 Amit Kapoor V. Ramesh Chandra - The Court held that, “the revisional jurisdiction can be
invoked where the decisions under challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based on no evidence, material evidence is
ignored or judicial discretion is exercised arbitrarily or perversely
 State Of Rajasthan V. Fatehkaran Mehdu - The court held that “the object of this
provision is to set right a patent defect or an error of jurisdiction or law or the perversity
which has crept in the proceeding.”
 Section 399 - Powers of Session Judge same as that High Courts in revision
 Section 400 - Power of Additional Session Judge to act as court of Revision
 Section 401 - Powers of the High Court as a court of revision
o All the powers it exercised as Court of Appeal
o No decision shall be given until prejudiced party given a chance of being heard
o High Court cannot convert order of acquittal into conviction
o If appeal lies and no appeal filed → cannot file revision
o If appeal can lie but under erroneous belief that no appeal lie, application of revision
is filed in the High Court
 Then, in interest of justice, High Court can hear that application as appeal
 Section 402 addresses the power of Court to withdraw or Transfer revision
o Where 2 applications exist, one in High Court and other before Session Judge, the
High Court decides on basis of, general convenience of the parties and the importance
of the questions involved
o Once such transfer is made, no further application of revision shall lie
 Section 403 - Court decides if it want to hear the parties
 Section 404 - Magistrate can along with records send a statement setting forth the grounds of
his decision or order and any facts which he thinks material to the issue
o The Court shall consider such statement before overruling or setting aside the said
decision or order
 Section 405 - HC’s order to be certified to the lower court
 Alamgir V. State of Bihar
o In respect of enhancement of sentence in revision the enhancement can be made only
if the Court is satisfied the sentence imposed by the trial Court is unduly lenient, or
that in passing the order of sentence, the trial court has manifestly failed to consider
the relevant facts

Module 4 – Juvenile Delinquency

 The aim of criminal law is to make a balance between the protection of society and the rights
of the offender
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 The aim of Juvenile laws is also to help the juvenile delinquents through restorative process
rather than penalizing them, that’s why India has an incorporated law for judicial welfare.
 Every child is given the utmost importance and opportunity to grow and develop himself or
herself
 Hence, criminal law focuses more on reformative approach than punitive approach for
juveniles.
Who Is A Juvenile
 According to Rule 4 of United Nations Standard Minimum Rules for the Administration of
Juvenile Justice,
o In those legal systems recognizing the concept of the age of criminal responsibility
for juveniles, the beginning of that age shall not be fixed at too low an age level,
bearing in mind the facts of emotional, mental and intellectual maturity.
 The United Convention on the Rights of Child defines “child” as “every human being below
the age of eighteen years unless under the law applicable to the child, majority is attained
earlier”.
 The Indian Majority Act defines a minor as any person who is below the age of 18 years.
Where the minor is a ward of the court, the age of majority stands at 21 years.
 The Juvenile Justice (Care & Protection) Act, 1986 defines “a juvenile or child, who in
case of a boy has not completed age of 16 years and in case of a girl 18 years of age”
 The Juvenile Justice (Care and Protection of Children) Act, 2000 defines “juvenile” or
“Child” as a person who has not completed eighteen years of age
 The Juvenile Justice Care and Protection Act, 2015 defined “child” “means a person who
has not completed 18 years of age
Delinquency
 Delinquency is the unwelcomed action of a child, which is socially not permitted in the
society.
 A juvenile delinquent is a scenario, which is defined as “a child acting like an adult”.
 The action of the child may seem to be very foolish but actually it’s a matter of serious
concern.
 It is believed that delinquency is considered only when the behavior of the child is harmful.
 Frederick B. Sussmann, who wrote a book on “Law of Juvenile Delinquency” presented a list
of acts or conditions included in delinquency definition as “infringement of any law or
ordinance, habitual absence, alliance with thieves, brutal or immoral persons, and
beastly beyond authority of parent or guardian”
Causes Of Juvenile Delinquency
 Juvenile delinquency takes place in different ways and it may vary in degree, frequency and
seriousness and involves different forms like theft, pick pocketing, drug addiction, sex
offences, predatory acts etc.
 When the child is ignored for their first crime then it gives them further encouragement to
commit more and more offences till they are apprehended, tried and convicted by the
authorities

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 No single cause has been attributed for the cause of Juvenile delinquency, there are
innumerable causes
 The causes of Juvenile delinquency are of three types.
o Biological
 These are related to any deformity or any biological problem a child is facing
since his childhood, which results into the commission of the crime due to:
 the irritability or
 anti-social behavior they adopt in their childhood
 The behavior people in the society in their surroundings
 Biological causes can also be a result of disorders or diseases being faced by
the child.
o Socio-Environmental
 Mobility: It is the major factor which is liable for crime causation in the
society. Nowadays communication and travel facilities have become easy due
to industrialization and urbanization which have led to the migration of
persons to new places. Chances of movement to these new places are low
offers them opportunity for crime.
 Cultural Conflicts- The urbanization and modernization have resulted in
drifting of people which has further led to the conflict between the immigrants
and the inhabitants.
 Family Background: This factor also encourages the Juvenile to commit for
offence in the society.
 Sutherland said that “the family background has greatest influence on
the criminal behavior of offender or Juvenile.” Children divert
themselves towards criminal tendencies, if they find their parents or
members of the family behaving in the similar manner
 Socio-Economic Condition- Nowadays, money is a parameter to judge a
person’s societal status. Everyone around is so busy in earning that the parents
are not been able to look after their wards which further leads a child to
indulge in illegal activities.
 Neighborhood- As the parents/guardians are busy in their own livelihood,
bad influence of neighbors also tend to destroy the genesis of a child leading
them towards crime.
 Trend of Alcoholism- it has become a fashion among the youth to start
drinking before becoming of age. This leads to a trend to commit crimes while
under influence.
 Peer Pressure- The behavior of an individual usually depends upon the peers
he surrounds himself with. Gangs act as a contributory factor towards the
commission of a crime. If a child remains with other delinquents, then he will
be more prone to the criminal activities which he could not think of alone.
 Nature of Society: The living condition of a society whether democratic,
socialist or dictatorship, also determines the prevalence of delinquent behavior
of the children in that society.

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 Cinema and Social Media- cinema and social media plays an important role
in the overall development of a person. What they watch on social media and
television they try to do in their real life also.
 Psychological makeup: The psychological makeup of the child also
conditions his behavior to a large extent. Lots of researches reveal that “a
large proportion of delinquents are pathetic minded and deficient in intellect”.
o Physiological and personal factors
 The psychology of a criminal leads to mens rea to commit criminal acts which
a delinquent intends or wants to do.
 School influences - The school plays a significant role in the upbringing of a
child; it is the school where the child has the closest relation with other
children for such a long time.
 A school is usually thought as a constructive agency but when it fails
to perform its designated functions, it may become by virtue of its
negligence, a main contributor to delinquency.
 Substance Abuse – Substance abuse creates disturbance in family and also
creates hostile atmosphere in family. This atmosphere is highly perilous to the
other child of the family.
 Other factors include adolescence insecurity, mental conflicts, intent to rebel
against the societal structure.
Constitutional Provisions And Safeguards For Juveniles In India
The Constitution of India via various important Sections, as well as the Fundamental Rights, has
placed safeguards for juveniles in the country.
 Article 15(3): Permits the State to make special provisions for children and women in favor
of their development.
 Article 23: Prohibits the traffic in human beings and forced labor
 Article 24: Forbids the employment of children below the age of 14 years in factories, mines
and other hazardous occupations
 Article 39 (e): Directs the State to safeguard the tender age of children from entering into
jobs unsuited to their age and strength forced by economic necessity.
 Article 39 (f): Directs the State to secure facilities for the healthy development of children
and to protect childhood and youth against exploitation and moral and material abandonment.
 Article 45: Requires the State to provide free and compulsory education to all children up to
age of 14 years.
 Article 47: It mandates that it is the duty of the state to raise level of nutrition and standard of
living.
 The Parliament has enacted the 86th Constitutional amendment in 2002 and made Right to
Education a fundamental right

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 Statutory Provisions Under The IPC And CRPC
Both the IPC and CRPC have addressed the aspect of juvenile offenses, and the nature of
procedure to be followed.
 Section 82 of the Indian Penal Code, it says “Nothing is an offence which is done by a child
under seven years of age. It assumes that the child does not have the mental capacity to
understand the consequences of the act committed. It assumes Doli incapax.
 Section 83 of the IPC provides for acts of a child above seven and under twelve of immature
understanding. It stipulates that no offense is committed, if said child does not have the
mental capacity to understand the nature of act committed.
 Section 27 of the CRPC, provides that any person who at the date of appearing before the
court is under 16 years of age is not punishable with death or imprisonment for life.
 Section 318 of the CRPC provides that where the accused does not understand the
proceedings (though not of unsound mind) the court can have the inquiry or trial, in case of a
court other than High Court if the proceedings result in conviction, the proceedings shall be
forwarded to the High Court with the circumstances of the case and the High Court shall
pass the order as it thinks fit
Development of laws relating to Juveniles in India
The position of law relating to juveniles in India has dated back to the colonial era. Since then, it
has consistently evolved and developed in response to changing needs of the society.
 The Apprentices Act, 1850 was the first legislation to deal with children in conflict with law
in India.
o It provided that children under the age of fifteen who were found guilty of
committing petty offences were to be placed as apprentice in a trade. It sought to
ensure that the child would get training and experience under the trade and become a
model citizen.
 In 1919, a jail committee was designated and according to the recommendations of the
committee, different legislations were enacted at different provinces.
 The first Children Act was the Madras Children Act, 1920 followed by Bengal Children
Act, 1922 and Bombay Children Act,1924. Acts were passed in all the Presidencies.
 In February 1924, a voluntary state-aided agency, the Children’s Aid Society, was formed
to implement the provisions of the Bombay Children Act in the Municipal Corporation of
Bombay.
 The first central legislation, The Children Act,1960 was enacted in 1960 post-independence,
as the model legislation which was to be followed by the states while enacting their own
legislation for children in conflict with the law.
The Children’s Act 1960
The 1960 Children’s Act was the first central legislation to be passed on juveniles post-
independence. It served as a model to be followed by other states in their own legislations.
 The Act provided for a discriminatory definition of “child” since a boy below 16 years of age
was considered to be a child as opposed to 18 years for a girl child.

21
 The Act also initiated two distinct bodies to determine matters involving “children in conflict
with law” and “children in need of care” known as the Children’s Court and Child
Welfare Board respectively.
 It prohibits imposition of death penalty, imprisonment, or use of police station or jails for
housing children under any circumstance.
 Before the 1978 amendment, it did not recognize the right to a lawyer in the proceedings in
the children’s court. However afterword’s it recognized the right to legal representation in the
children’s court.
 Even after that, there were problems as several states had several laws concerning juvenile
justice which treated a child differently in the same situation. There was no uniformity in the
legislations passed.
 Sheela Barse V. Union of India - The Supreme Court held that instead of each State
having its own Children’s’ Act different in procedure and content from the Children’s Act in
other States, it would be desirable if the Central Government initiates Parliamentary
Legislation on the subject, so that there is complete uniformity in regard to the various
provisions relating to children in the entire territory of the country.
Juvenile Justice Act 1986
 The Juvenile Justice Act 1986 was formed in the aftermath of the Sheela Barse case.
 It was the uniform act in the whole country for the protection of children in conflict with law
and children in need.
 The age of the juvenile remained the same as it was mentioned in the Children Act, 1960
 The new feature under this act was that the juveniles were divided into two broad categories:
o Delinquent Juveniles
o Neglected Juveniles
 Juveniles under both categories were to be kept in “Observation Homes” as long as their
inquiries and trials were pending.
Juvenile Justice Act 2000
 The 1986 Act did not provide the wider scope on “Delinquent Juveniles” and “Neglected
Juveniles”. Hence the Juvenile Justice Act 2000 was formed.
 The 2000 Act provided two main broad categories named as
o “child in conflict with law” and
o “child in need of care and protection”
 It lays down that the “child in conflict with law” must be kept in observation homes and
“child in need for care and protection” must be kept in the children’s home during the
pendency of their proceedings
 An important change made by the JJA, 2000 is the establishment of Children’s Court
known as Juvenile Justice Board (JJB).
o The Juvenile Justice Board constituted of a bench of one Magistrate and two social
workers.
 Juvenile Justice Board had the jurisdiction to decide the following:
o Determination of the age of a juvenile.
o Grant of bail.
22
 o To determine whether the child has committed the alleged offence or not.
o To pass the appropriate orders regarding the same.
 The decisions of the JJ Board had to be taken in view of the facts and circumstances of
the case at hand.
 International Obligations were fulfilled by the Juvenile Justice Act 2000.
o The act implemented some of the provision of CRC (Convention of the Rights of the
Child). For example:
 Article 2 and Article 6 of the Convention which talks about the
nondiscrimination on the grounds of race, color, sex and language and right to
freely express his/her own feelings. Such articles were incorporated under the
JJ Act 2000.
 Article 37(a) of the Convention provides capital punishment and long term
imprisonment shall not be imposed on the child. The JJ Act 2000 stipulates
that a child cannot be sentenced to life imprisonment or death.
 Article 40 of the CRC mandates the state to incorporate certain basic
guidelines for a child in conflict with law. The JJ Act has done the same with
the formation of the JJ Board, and establishment of homes and centers.
 Issues with the Juvenile Justice Act 2000
o The appointment of JJB consists of one magistrate and two social workers, which in
majority can even overrule the judgment of magistrate,
 The provisions are not in compliance with the legal safeguards in India by
giving such powers to the social workers (who may not have the legal
knowledge)
o There were flexible procedure for sentencing and the same maximum sentence for all
offences was given to juveniles with the exception of life imprisonment or death.
o No logical or scientific reason which shows that total and complete rehabilitation can
be achieved by a delinquent/ offender/ child in conflict with the law within a
maximum period of three years
o The Act did not deal with physical and psychological maturity of a Juvenile
o Important provisions of the Hague Convention on Protection of Children and
Cooperation in Respect of Inter-Country Adoption, 1993 failed to reflect in the Act
Juvenile Justice Act 2015
 The Juvenile Justice Act was formed in the aftermath of the 2012 Delhi Rape Case and after
recommendations of the Justice Verma Committee. The incident caused a massive review of
laws relating to juveniles, and if they could be tried as adults.
 Delhi Gang Rape case (Mukesh V. State of Delhi)
o A juvenile, who was few months less to 18 years have been sentenced to 3 years
custodial sentence, however, it was said that he was the active member in the rape
case
 As per National Crime Record Bureau, cases registered for juveniles under the age of 16-18
year are mentioned as follows:
o There were a total of 36,138 cases registered in 2014.

23
 o Of these cases, the highest pertained to riots (1,733 cases), kidnapping at rank two
(1,635 cases) and cases of rape stood third (1,488 cases)
 The JJ Act 2015 replaced the Juvenile Justice Act 2000.
 The Juvenile Justice Board composition under Section 15 of the JJ Act 2015 was changed to
include psychologists and sociologists, to decide whether a juvenile criminal in the age group
of 16–18 should tried as an adult or not. Under Section 15, the board was to decide if the
juvenile was aged 16 years and above, and if so, if the child was to be tried as an adult
in case of heinous offenses.
 Under Section 15 of the JJ Act 2015, the JJ Board determines the minor’s age. While
determining the age of the juvenile, the JJ Board has consulted Rule 12 of the Juvenile
Justice Rules 2007.
 A new clause on fair trial was added, where the special needs of the child, under the tenet of
fair trial under a child-friendly atmosphere will be looked upon under Section 19(1) of the
Act.
 The records of any conviction will be destroyed after the expiry period of appeal, except in
the case of heinous crimes as under Section 24(2) of the JJ Act.
 Important definitions were introduced under the Juvenile Justice Act 2015
o “Central Authority” means the Government department recognized as such under
the Hague Convention on Protection of Children and Cooperation in Inter-country
Adoption
o Child Welfare Officer means an officer attached to a Children’s Home, for carrying
out the directions given by the Committee or, as the case may be, the Board with such
responsibility as may be prescribed
o Children’s Home” means a Children’s Home, established or maintained, in every
district or group of districts, by the State Government, either by itself, or through a
voluntary or non-governmental organisation (Refer to S. 50)
o Section 50 stipulates that the State government is to established and maintain via
itself, or NGOs Children’s Homes which are to be registered as such. The purpose of
such homes was to aid children in need of care and protection in rehabilitation and
reintegration into society. Facilities are to be made for their treatment, education and
development.
o District Child Protection Unit” means a Child Protection Unit for a District,
established by the State Government under Section 106, which is the focal point to
ensure the implementation of this Act and other child protection measures in the
district
o “Fit facility” means a facility being run by a governmental organization or a
registered voluntary or non-governmental organization, prepared to temporarily own
the responsibility of a particular child for a specific purpose, and such facility is
recognized as fit for the said purpose, by the Committee
o “Fit person” means any person, prepared to own the responsibility of a child, for a
specific purpose, and such person is identified after inquiry made in this behalf and
recognized as fit for the said purpose, by the Committee or, as the case may be, the
Board, to receive and take care of the child
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 o “Foster care” means placement of a child, by the Committee for the purpose of
alternate care in the domestic environment of a family, other than the child’s
biological family, that has been selected, qualified, approved and supervised for
providing such care
o “Observation home” means an observation home established and maintained in
every district or group of districts by a State Government, either by itself, or through
a voluntary or non-governmental organisation, and is registered as such.
o Section 47 stipulates that State governments are to established and maintain via
itself, or NGOs Observational Homes which are to be registered as such under
Section 41. The purpose of such homes was to temporarily host children in conflict
with the law for their care and reception, during the pendency for any period of
inquiry.
o “Open shelter” means a facility for children, established and maintained by the State
Government, either by itself, or through a voluntary or non-governmental
organisation and registered as such (Refer to S. 43)
o Section 43 stipulates that State governments are to establish and maintain via itself
or NGOs as many open shelters as it deems required. Such shelters are to be
registered in the manners prescribed.
o “Place of safety” means any place or institution, not being a police lockup or jail,
established separately or attached to an observation home or a special home, as the
case may be, the person in-charge of which is willing to receive and take care of the
children alleged or found to be in conflict with law, by an order of the Board or the
Children’s Court, both during inquiry and ongoing rehabilitation after having been
found guilty for a period and purpose as specified in the order
o “Special juvenile police unit” means a unit of the police force of a district or city or,
as the case may be, any other police unit like railway police, dealing with children
and designated as such for handling children as under Section 107.
o “Special home” means an institution established by a State Government or by a
voluntary or non-governmental organisation, registered under Section 48, for housing
and providing rehabilitative services to children in conflict with law, who are found,
through inquiry, to have committed an offence and are sent to such institution by an
order of the Board
o “Specialised Adoption Agency” means an institution established by the State
Government or by a voluntary or non-governmental organisation and recognised
under Section 65, for housing orphans, abandoned and surrendered children, placed
there by order of the Committee, for the purpose of adoption
o “Child Welfare Police Officer” means an officer designated as such under sub-
Section (1) of Section 107
 The Juvenile Justice Act 2015 created a distinction of children
o Children in conflict with the law
o Children in need of care and protection

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 Under the ambit of children in need of care and protection, the following major provisions
were enacted. They included:
o Constitution of Child Welfare Committee under Section 27 of the JJ Act, 2015, in
every district by State Government
o Right to adopt. The Juvenile Justice Act 2015 provided a secular mode of adoption
apart from the personal laws.
 Under the ambit of children in conflict with the law, the following major changes and
provisions were enacted.
o A significant feature that has been incorporated into the JJ Act 2015 is offense
classification. The JJ Act classifies offenses into three types. They are:
 Petty Offenses – offenses for which the punishment prescribed is a
maximum of three years of imprisonment as defined under Section 2(45)
 Serious Offenses – offenses for which the punishment prescribed is
between three to seven years of imprisonment as defined under Section
2(54)
 Heinous Offenses – offenses for which the punishment prescribed is
greater than seven years of imprisonment as defined under Section 2(33)
o The JJ Act 2015 provided that a preliminary assessment of any child that found
committing any crime would be done for a period of three months, up from the earlier
one month. [S. 14(3)]
 The preliminary assessments had to be conducted within 4 months, extendable
to a further 2 months.
 The assessment served as a way to assess the child’s capacity to commit the
crime. It tested if the juvenile had the mental maturity to understand the nature
and consequences of the Act committed.
 The assessment could be extended by the Chief Judicial Magistrate, or Chief
Metropolitan Magistrate with reasons in writing.
o Trial of Offences would be done by the JJ Board
 Petty offence as summary proceedings
 Serious offence as a summon cases
 Heinous offence:
 The trial for heinous cases would be done where the juvenile was
below 16 years as a summon cases
 Where the juvenile was between 16-18 years the inquiry was to
conducted by the Juvenile Justice Board to determine if said juvenile
had to be tried as an adult as per Section 15 read with Section 18 of the
JJ Act. If it was deemed that the juvenile aged above 16 had the
capacity to understand the offense, he could be tried as an adult.
o Appeals against Board could be done under Section 101 within 30 days. The appeals
extended to the decision of Committee and Board

26
 Justice Verma Committee Report
 According to Justice Verma Committee report on “Amendments to Criminal Law” it was
noted that the Juvenile Justice Act 2000 has failed miserably to protect the children in the
country.
 One could not hold the child responsible for a crime before providing to him/her the basic
rights given to them by the Indian Constitution.’’
 The report looked extensively on the children’s homes and found them lacking in basic
infrastructural requirements, where they are forced to grow and becomes the prey of “sexual
offences”.
 The juvenile homes were unable to provide the basic constitutional rights which are
mentioned for the children under the Indian Constitution.
 The nutritional, emotional, mental requirements were low that they often not be able to cope
up and contribute to the society
 There was no facility for the constructive occupational training or schedule has been
formulated or are being followed.
 The report recommended the creation of a new constitutional authority akin to the
Comptroller and Auditor-General for education and non-discrimination in respect of women
and children
Issues Faced With The Juvenile Justice Act
 Section 4(2) provides child in need of care and protection is to be protected from instances of
harm or torture. However in reality, there are many instances where children have been
tortured, abused and exploited for the purpose of sexual abuse.
 According to Section 2(5) the word “aftercare” mandates that juveniles are to be provided
financial support to persons who have completed the age of 18 years but are less than 21
years of age. But the following problems could have enumerated against the proper results of
after-care institutions.
o Lack of finances
o Stigma in initialization
o Unconsciousness of society towards the after-care programs.
o Noncompliance of parents in the after-care plan.
 According to Section 16 of the Act, where a heinous offence committed by a child who has
completed the age of 16 years, the Juvenile Justice Board shall conduct the inquiry about the
physical and mental state of the child and then only the Board will decide whether to dispose
of the case or to start a trial.
 The foremost flaw with the Section is it implies an assumption that the child is guilty of an
offence and a clear infringement of Article 14 and 21 as prescribed under Part III of the
Indian Constitution, as the procedure is arbitrary and irrational. It goes against the principle
of law of innocent until proven guilty.
 The Act further recommends to adopt Judicial Waiver to try Juvenile as an Adult in so called
heinous crimes. The concept of judicial waivers and provision for imprisonment is
considered to be a gross violation of international norms of human rights

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  Currently, the application of rehabilitative measures is impacted due to unhealthy living
conditions of juvenile justice centers, with reports of lack of protection of juveniles, sexual
assault, and shortage of adequately trained staff and officers to implement effective
rehabilitation scheme
 The judiciary has taken cognizance of the issues present in juvenile homes. In the landmark
case of Sampurna Behrua V. Union of India, the apex court called upon state governments
to provide sensitization and training to staff in assisting juveniles in conflict with the law
Recommendations
 The court should approach reformative approach towards the child delinquency rather than the
punitive one. The state should try to create such an environment so as to re-integrate the
delinquent with the mainstream of the society.
 The State should not be given so much power so as to make the law regarding the Juvenile
Justice Act, rather more power should be given to the International Conventions and CRPC, so
that the purpose of the JJA should be attained.
 Every Juvenile Justice Board should work with local child welfare organizations to improve their
effectiveness in providing abused and neglected children with safe shelters
 Ensuring and enhancing the quality of the process of the juvenile correctional services would
bring about justice to juveniles in conflict with the laws
 Possibility of creating Non-Judicial Juvenile Justice System should be examined
Important Cases
 Salil Bali V. Union of India – It was held by the court that the Juvenile Act is based on
the sound principles and with consonance to the Indian Constitution. Several International
Instruments also recognizes the child rights like Beijing Rules, Riyadh Guidelines that allows
separate criminal justice systems for the juveniles
 Jayendra V. State of UP – An order was made by the High Court ordering the sentencing of
a child to imprisonment. The Supreme Court for the report by the medical in charge of the
jail to determine the age of the child. It was found that the age of the child at the time of
committing an offence was 16 years and 4 months. The sentence for imprisonment was
quashed and the juvenile was released immediately
 Bhoop Ram V. State of UP - The Supreme Court followed the decision of Jayendra V. State
of UP and it was also held that the time of the commission of an offence is sufficient to
determine the age of a person. The age of the person was to be determined based on the age
on the date of the commission of the offense.
 Raj Singh V. State of Haryana - The Supreme Court held that the age of the boy or girl
has to be determined at the time of the happening of an offence
 Ashwani Kumar Saxena V. State Of M.P, - Court held: all persons who were below the
age of 18 years on the date of commission of the offence even prior to 1st April 2001 would
be treated as juveniles even if the claim of juvenility was raised after they had attained the
age of 18 years on or before the date of commencement of the Act and were undergoing
sentence upon being convicted. The age determination inquiry has to be completed and age
be determined within thirty days from the date of making the application
 Sanjeev Kumar Gupta V. The State Of Uttar Pradesh –

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 o “In case, the Committee or the Board has reasonable grounds for doubt regarding
whether the person brought before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age determination, by seeking
evidence by obtaining —
 the date of birth certificate from the school, or the matriculation or equivalent
certificate from the concerned examination Board, if available; and in the
absence thereof;
 the birth certificate given by a corporation or a municipal authority or a
panchayat;
 and only in the absence of (i) and (ii) above, age shall be determined by an
ossification test or any other latest medical age determination test conducted
on the orders of the Committee or the Board:
 Munna V. State of UP - The apex court released certain directions regarding children in
prisons. The Supreme Court held that even if a child is found to be guilty of an offence, he
should not be mistreated. They should not lock-up their fundamental rights when they enter
in jail.
 Sanjay Suri V. Delhi Administration - The Supreme Court ordered the release of juvenile
undertrial prisoners. The judgement also highlighted that the jail authorities shall not accept
the age of the juvenile until and unless the age is specifically mentioned in the documents
supporting detention.

Module 5 – Probation And Admonition

Introduction
 Probation is a modern enlightened method to tackle the problem of criminality
 It is based on the premise that the majority of crimes are committed by situational or near
criminal instances, and offenders may be reformed and saved from becoming recidivists or
real criminals.
 Etymologically probation means 'I prove my worth'
 Derived from the Latin word probatus meaning 'tested' or 'proved'.
 The legal concept of probation is conditional suspension of sentence and it is a part of the
decision-making process of the judge at the time of sentencing.
 Thus probation is a method of penal non-institutional treatment of offenders developed as
an alternative to imprisonment out of realization that short term imprisonment is harmful and
ineffective
 Probation is a method of dealing with offenders and is a viable alternative to imprisonment. It
is an embodiment of the progressive penal policy of individualization of punishment.
 The emphasis is on the offender rather than the offence.
 It is a community based treatment which helps in the rehabilitation of the offender by
allowing him to pursue his social and financial obligations within the society.
 There is no precise definition of “Probation”

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 The Morrison committee defines probation as follows: ‘Probation is the submission of an
offender while at liberty for a specified period to the supervision of a social caseworker
who is an officer of the court”.
 In India, probation is governed by Section 360 of the CRPC, and the Probation of Offenders
Act 1958.
Merits Of Probation
The merits of probation can be seen from the view of the person on probation, and the
community.
 From the standpoint of the person on Probation
o Averts the stigma of jail life
o Chance of reformation
o Continuation of life habits that are approved by society
 From the standpoint of Community
o Prevents overcrowding in Jail
o Less expensive
o Community has interest in well adjusted individuals
Section 360 Of The CRPC
 Section 360 of the CRPC governs probation.
 Section 360 gives discretionary power to a court to release an offender on probation of good
conduct if the offender is
o a woman, or
o a person below 21 years of age, or
o a male person of 21 years of age or above who is not guilty of an offence punishable
with more than seven years imprisonment
o a first time offender
 The benefit of Section 360 is not available to offenders who have been previously convicted
or those found guilty of any offence punishable with death or imprisonment for life
 Probation only is offered to first time offenders, and after furnishing a bond with or without
sureties and receive a sentence when called upon during the probationary period.
 The probationary period cannot exceed 3 years.
 The offender shall be directed by the court to keep the peace and maintain good behavior if
he is released on probation
 Probation isn’t a right of offender but a discretion of court. The discretion has to be exercised
keeping in view not only that it is the first conviction of the accused but also:
o the circumstances in which the crime was committed,
o the age,
o character and
o antecedents of the offender

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 Dilbagh Singh V. State Of Punjab - Supreme Court has reiterated that the court has to use
the discretion given in this respect judicially and having regard to the age, character or
antecedents of the offender and to the circumstances in which the offence was committed
 Probation applies only in those cases where there is no danger or threat to the protection of
the society
 The applicability of Section 360 can also be insured by Section 361, which considerably
narrows down the discretion of court to sentence a convicted person
 Section 361 mandates that the court shall normally deal with the offenders under Section 360
or under the Probation of Offenders Act.
 However in case the court chooses to do otherwise and to pass any sentence on the offender,
that could be possible only for special reasons to be recorded in the judgment
o These reasons must show that it is impossible to reform and rehabilitate the offender
after examining the matter with due regard to the age, character and antecedents of
the offender and the circumstances in which the offence was committed
Admonition
 An admonition means a firm warning or reprimand.
 Section 360(3) stipulates that the court after taking into account the age, character, prior
history, physical and mental state of the offender. may choose to release an offender rather
than sentence him, after admonition, if he has committed the following offenses:
o Theft
o Theft in building
o Dishonest misappropriation
o Cheating
o Any offense for which the punishment is not more than 2 years with or without fine
or just fine
 Via Section 360 (4) An order may be made by any Appellate Court or by the High Court or
Court of Session when exercising its powers of revision.
 Under Section 360 (5) When an order has been made under this Section in respect of any
offender, the High Court or Court of Session may, on appeal when there is a right of
appeal to such Court, or when exercising its powers of revision, set aside such order, and in
lieu thereof pass sentence on such offender according to law.
o The High Court or Court of Session shall not under this sub-section inflict a greater
punishment than might have been inflicted by the Court by which the offender was
convicted.
Probation Of Offenders Act
 The Probation Of Offenders Act is the predominant Act governing the law revolving around
probation.
 The Act was formed in recognition of the doctrine that the object of criminal law is more to
reform the individual offender than to punish him
 Arvind Mohan Sinha V. Mulya Kumar Biswas – The Supreme Court observed that the
Probation of Offenders Act is a reformative measure and its object is to reclaim amateur
offenders who can be usefully rehabilitated in society.
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Section 3 – Offenses And Admonition
 Section 3 applies when any person is found guilty of having committed an offence
punishable under:
o Section 379,380, 404,420 of the Indian Penal Code
o In case of any offence punishable with imprisonment for not more than 2 years or
with fine or both under the Indian Penal Code or any other law
 The court has the power to release the offender after due admonition, if following conditions
are fulfilled:
o No previous conviction is proved against the person who has been charged of having
committed an offence;
o The court by which the person is found guilty is of the opinion that it is expedient to
do so;
o The court may form its opinion keeping in view the nature of the offence and
character of the offender
 If the above conditions are fulfilled the court may instead of sentencing him to any
punishment or releasing him on probation of good conduct under Section 4 of the Act release
the offender after due admonition.
 If an offence is committed under the Defence of India Rules the benefit of Section 3,4 and 6
of the Probation of Offenders Act cannot be invoked by the accused and he has to suffer the
imprisonment awarded to him by the trial court in view of the unambiguous language of
Section 1(3) of the Defence of India Act
 Superintendent Central Excise V. Bahubali – The court established a limitation as to
where the Probation of Offenders Act does not apply. It held that the Probation of Offenders
Act cannot be applied by the court where a person is found guilty of any offence specified in
Rule 126-P (2)(ii) of the Defence of India Rules relating to gold control
Section 4 – Powers of the Court
 Section 4 of the Prohibition Of Offenders Act has similar provisions to that of Section 360
of the CRPC.
 Section 4 of the Act deals with the power of the court to release certain offenders on
probation of good conduct. An offender may be released on probation if following conditions
are fulfilled:
o Any person is found guilty of having committed an offence;
o The offence so committed must not be punishable with death or imprisonment for
life;
o The court by which the person is found guilty is of the opinion that it is expedient to
release him on probation of good conduct;
 The court may form such opinion having regard to
o the circumstances of the case,
o the nature of the offence and
o the character of the offender.
 If the above conditions are fulfilled, the court may, instead of sentencing him at once to any
punishment, direct that the offender should be released on entering into a bond to appear and

32
 receive sentence when called upon during period of probation. The bond so directed may be
taken with or without securities.
 The period of probation will be such as the court may direct but it will not exceed three years
 Proviso appended to Section 4(1) is that states that an offender shall not be released on
probation of good conduct unless the court is satisfied that the offender or his surety, if any,
has a fixed place of abode or regular occupation in the place over which the court
exercises jurisdiction or in which the offender is likely to live during the period for which
he enters into the bond.
 Under Section 4(2), the Act actualizes implementation of probation sentencing by
empowering the courts to call for a report from the probation officer and consider the report
or any other information relating to the character and physical and mental condition of the
offender
 Section 4(3) of the Act further lays down that a probation order may be with or without
supervision. It gives complete discretion to the judge to either order supervisory or
nonsupervisory probation keeping in mind the offender and the public.
o In case of probation order with supervision, probation period shall not be less than
one year
Section 5 - Compensation
 Section 5 of the Act deals with the power of the court to require an offender released under
Section 3 or Section 4 of the Act to pay compensation.
 Any order for payment of compensation shall be such as the court thinks reasonable for loss
or injury caused to any person by the commission of the offence.
 The court is also empowered to order payment of such costs of the proceedings as it thinks
reasonable.
 The amount of compensation ordered to be paid under this Section may be recovered as a
fine in accordance with the provisions of Section 386 and 387 of CRPC
 Rajeshwari Prasad V. Ram Babu Gupta - The amount of compensation is purely on the
discretion of the court to grant if it thinks it is reasonable in the case
Section 6 – Special Reasons
 Where the offenders are under 21 years of age - special reasons to be recorded for not giving
judgment under Section 3 and 4 of the Act.
 Musa Khan V. State of Maharashtra – Held by the Supreme Court that the Probation of
Offenders Act is a social legislation which is meant to reform young offenders so as to
prevent them from becoming hardened criminals by providing an educative and reformative
treatment to them by the Government
Section 7 – Report of The Probation Officer
The report of a probation officer shall be treated as confidential, however the court may, if it so
thinks fit, communicate the substance thereof to the offender and may give him an opportunity of
producing such evidence as may be relevant to the matter stated in the report

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Section 8 – Power To Vary Bond Conditions
 Section 8 gives power to the court which passes an order under Section 4 in respect of an
offender to:
o Vary the conditions of any bond on the application of a probation officer if it is of the
opinion that it is expedient or necessary to do so in the interest of the offender and the
public.
 The court may vary the bond by extending or diminishing the duration of bond but the period
so extended shall not exceed three years from the date of original order.
 It may even alter the conditions or insert additional conditions in the bond.
Section 9 – Failure to observe conditions
 Section 9 deals with the power of the court in case the offender fails to observe the
conditions of bond.
 The powers under this Section can be exercised by the court which passes an order under
Section 4 of the Act.
 If the court on the basis of the report of a probation officer or otherwise has reason to believe
that the offender has failed to observe any of the conditions of the bond entered by him, it
may issue warrant of arrest or if it thinks fit, issue summons to him or his sureties.
 When the offender consequently is brought or appears before the court, the court may either
remand him to custody or release him on bail.
 The court thereafter after hearing the case, is satisfied that the offender has failed to observe
any of the conditions of the bond, it may take following action against him:
o The court may sentence him for the original offence; or
o Where the failure on the part of the offender is for the first time, then, the court may
impose upon him a penalty not exceeding fifty rupees.
 The court may do so without prejudice to the continuation in force of the bond already
entered into by the offender.
Section 11 – Courts which are competent
 Section 11 provides for the courts which are competent to make an order under the Act.
These are as follows:
o A probation order may be passed by a court which is empowered to both try and
impose a sentence on the offender. If the court cannot impose sentence, then it cannot
pass probation orders under the Act
o High court may as a court of original, appellate or revisional jurisdiction pass a
probation order;
o Appellate and revisional court when the case comes before it, may release convicted
person on probation of good conduct.
o An order releasing a person on probation is appealable. Appellate or revisional court
may set aside the order of probation but such courts cannot inflict greater punishment
that might be inflicted by the trial court.

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Section 12 – Protection from Disqualification
Section 12 protects a person from any disqualification attaching to a conviction of an offence
under any law, if after conviction, he has been dealt under Section 3 or Section 4 of the Act.
Section 13 – Probation Officer
 Section 13 deals with who is the Probation Officer. It stipulates that a probation officer shall
be:
o Any person appointed to be a probation officer by the State Government or
recognized as such by the State Government; or
o Any person provided for this purpose by a society recognized in this behalf by the
State Government; or
o In any exceptional case, any other person who, in the opinion of the court, is fit to act
as a probation officer in the special circumstances of the case.
 A court which passes an order under Section 4 or the district magistrate of the district in
which the offender for the time being resides may, at any time, appoint any probation officer
in the place of the person named in the supervision order.
 A probation officer, in the exercise of his duties under this Act, shall be subject to the control
of the district magistrate of the district in which the offender for the time being resides.
Section 14 – Duties Of The Probation Officer
 Section 14 addresses the duties of the probation officer. It stipulates that a probation officer
shall, subject to restrictions and conditions prescribed:
o Inquire, in accordance with any directions of a court, into the circumstances or home
surroundings of any person accused of an offence with a view to assist the court in
determining the most suitable method of dealing with him and submit reports to the
court;
o Supervise probationers and other persons placed under his supervision and, where
necessary, endeavor to find them suitable employment;
o Advise and assist offenders in the payment of compensation or costs ordered by the
Court;
o Advise and assist, in such cases and in such manner as may be prescribed, persons
who have been released under Section 4; and
o Perform such other duties as may be prescribed.
Benefits To The Probation Officer
 The benefits to the probation officer in discharge of his duties are as follows:
o Regulation of the activities of the offender
o The probation officer may be treated as a public servant
o The probation officer has the protection of actions taken in good faith
 No suit or legal proceedings can be placed upon the probation officer in case
of actions taken in good faith while discharging his duties.

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Module 6 – Transfer Of Criminal Cases
 Under the CRPC, certain criminal cases may be transferred from one court to another by
either the High Court or the Supreme Court.
 Chapter 31 of the Code contains the provisions related to the transfer of the criminal cases
from Section 406 to 411
 The primary reason behind the incorporation of transfer of cases is that of delivering justice
to people expeditiously and fairly. It is done to meet the ends of justice and fulfil the
principle of natural justice
 The overburden of pending cases results in justice, and as such creates unrest in the judicial
process.
Transfer By The Supreme Court
 Section 406 of the CRPC addresses the power of the Supreme Court to transfer cases. The
CRPC grants wide discretion to the apex court to transfer any case or appeal lying before the
High Court to any other High Court of any state in the country
 The application requesting the transfer of any case or appeal pending before the High Court
can be moved to the Supreme Court by any of the following persons:
o Who is under the apprehension of unfair trial by the court; or
o Who is unable to find any proper justice being served to himself; or
o Attorney General or Advocate General of India
 The application is made by the interested party and should always be in the form of motion
supported by an affidavit or affirmation. This doesn’t apply in the cases where the applicant
is the advocate general or attorney general of the country
 The power granted is merely discretionary in nature. The applicant is under no obligation to
conclusively establish that in case the transfer does not take place then fair justice will not
take place
 The power of the Supreme Court to transfer the cases and appeals also extends to the transfer
the cases from any subordinate court in the country where any matter is pending
 Sukhdev Singh Sodhi V. The Chief Justice And Judges of The PEPSU High Court – The
Supreme Court held that the that the power of transferring of cases with the Supreme Court
does not extend to transfer of any contempt proceeding which is pending before the High
Court
 Kaushalya Devi V. Mool Raj – The Supreme Court held that in cases where the application
of transfer of the case is made but the Magistrate dealing with the case opposes the
application, he must himself file an affidavit for the same. The transfer of the case in such
cases is in the complete interest of justice because in all such cases the essentials of fair and
impartial trial are already put to peril which is signified by the personal involvement of the
judge himself
Grounds For Transfer Of Cases
The following grounds exist for transferring cases
 To uphold the spirit of justice
 Recommendations made by the superior judicial officers

36
 Upon request by the trial court
 Lack of complete jurisdiction
 Differences between the party and the judicial officer
 Avoiding infringement of principles of natural justice
Transfer Of Cases And Appeals By The High Court
Section 407 of the CRPC empowers the High Court to transfer cases and appeals. The High
Court has the authority to transfer cases where it is satisfied that:
 The right to a fair and impartial trial which is guaranteed under Article 21 of the Indian
Constitution cannot be exercised by any of the party to the suit if the case is tried by any of
the courts which is subordinate to it;
 Certain questions pertaining to the present matter in the court are of unusual difficulty;
 The transfer of the appeal or the case is made inevitable by any of the provisions under the
CRPC;
 The order of transfer will be in the interest of the general convenience of the parties or
witnesses involved in the suit.
Orders Passed By The High Court
With regard to transfer of cases, the High Court may issue any of the following orders for the
same.
 Where a particular case or appeal is pending before any criminal court which is subordinate
to it to any other criminal court which is having equal or superior jurisdiction in comparison
to the High Court;
 The particular case be laid down before the Sessions Court for hearing;
 The particular case or appeal be laid down before the High Court itself
Exercise of Power By The High Court
The High Court can exercise the power of transfer in the following cases:
 Report by lower court
 Application by interested party
 Under its suo moto powers, if it is satisfied with the fact that it would be in the best interest
of the parties to the suit
The High Court while effecting the transfer must be mindful of the fact that no application of
transfer of the case from one criminal court to another is made in the same sessions division
unless an application for the transfer of the case has been made to the sessions court and the
same has been rejected by the Sessions Court.
Procedure
 Section 407(3) to Section 407(5) of the CRPC lay down the procedure to be followed by a
person making an application for transfer of cases or appeals.
 Under Section 407(3), the application for a case transfer must be made with a motion
supported by affidavit or affirmation, except in the case where the applicant is the Advocate
General of the State

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 Under Section 407(4), the High Court can direct the accused to make the application by
execute a bond with or without surety for the payment of any compensation.
 Section 407(5) provides that for every application of transfer, a notice is needed to be given
to the public prosecutor. The notice should be accompanied by the grounds on which the
application is made.
o Courts are also instructed to not make any order on the merits of the application
so submitted by the person, unless at least a time period of twenty-four hours has
elapsed between the making of such a notice and hearing of the application
 Under Section 407(6), the High Court has the power to put a stay on the proceedings in the
subordinate court, in the interests of justice, on terms that it deems appropriate. If such an
order is made, then it should not impact the power of the Sessions Court to remand cases.
 Under Section 407(7) if the High Court finds that the application for the transfer of appeal or
case was vexatious and frivolous, it may order the applicant to pay a compensation of not
more than 1000 rupees to any person who had opposed the application made by the applicant
 Section 407(9) acts as a saving clause. It stipulates that nothing contained under Section 407
of the CRPC shall have any effect on the orders which are passed by the Government of
India under Section 197 of the CRPC, restricting the courts from taking cognizance of any
case which involves the criminal charges against any public servant unless prior permission
has been obtained by the court.
Transfer Of Cases By The Sessions Judge
 The Sessions Judge is also conferred with the power to transfer cases, under Section 408 of
the CRPC.
 As per the provisions of Section 408, where to meet the ends of justice, the Sessions Judge
deems it necessary to transfer the case, he may do so from one criminal court to another
criminal court.
 The power of transfer by the Sessions Judge can be exercised at the instance of the report in
this regard submitted to it by the lower court, application in this regard submitted by the
interested party or the court may exercise the power under its own discretion.
 Section 407(3) to 407(9) may be made applicable to the Sessions Judge while making any
order in regards to the power vested on it to transfer cases.
Withdrawal Of Cases And Appeals By Sessions Judges
 Section 409 of the CRPC contains provisions regarding the power of the Sessions Court to
withdraw the cases and appeals
 The Sessions Judge not only has the power to withdraw any case or appeal, but also has the
power to recall any case or appeal transferred to the Additional Sessions Judge or Chief
Judicial Magistrate subordinate to him.
 The power of recall can be exercised at any time before hearing of the appeal or the
commencement of the trial of the case.
 After recalling the case or appeal, the Sessions Judge may choose to try or hear the appeal on
his own, or transfer the case or appeal to another court in accordance with the procedures
prescribed.

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 Withdrawal Of Cases By Judicial Magistrates
 Section 410 of the CRPC addresses the withdrawal of cases by the Judicial Magistrate.
 The Chief Judicial Magistrate has the power to transfer any case from any Magistrate
subordinate as well as the power to recall any case d earlier transferred to any Magistrate
subordinate.
 When the Chief Judicial Magistrate recalls a case, he has the authority to himself hear and try
such case or he may refer the case to any other Magistrate who is competent to hear and try
the case.
 Any Judicial Magistrate has the authority to recall any case which he had transferred to any
other Magistrate under Section 192 of the CRPC.
Making Over Or Withdrawal Of Cases By Executive Magistrates
 The Executive Magistrate has the power to make or withdraw any case. Any District
Magistrate or Sub Divisional Magistrate has the power to withdraw any case which started
before it to any magistrate subordinate to dispose of the case.
 The power is granted to withdraw or recall any case earlier transferred to the subordinate
Magistrate and dispose of the proceedings himself. He may also transfer the case for disposal
to any other competent Magistrate.

Module 7 – Reforms Under Criminal Law

The objectives of the Criminal Justice System are as follows:
 Prevent Crime and allow peaceful society
 Uphold and enforce law and protect society from any harm
 Deal with those who commit a crime
 Have legally established courts to accomplish task of imparting justice
 Provide accused fair chance to prove innocence and avoid miscarriage of justice
The justice system approaches its aims in methods involving deterrence, retribution,
incapacitation, rehabilitation and reparation. Reparations are given in the form of compensation
to victims of crimes.
Major Reforms Undertaken
 In 1983 - In camera proceedings + 498A IPC, 198A CRPC and 113A of Evidence Act
 2005 - Lot of provisions related to women and arrests such as
o No arrest after sunset and before sunrise
o Included DNA Profiling under Examination
o S. 144A + 164A + 291A + 311A + 436A + 441A of the IPC
o Increased fine in many Sections
 In 2006 - S. 195A of the CRPC
o Plea Bargaining (Ch XXIA)
o Different dates for effectiveness of different provisions of CRPC
 In 2009
o Introduction of recording of statements/confessions by audio - video electronic means
via S. 161, 164 and 275 CRPC

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 o S. 195 A CRPC and IPC
o S. 357 A - Victim Compensation Scheme
o Adjournment given only at request of parties except cases when circumstances are
beyond the control of parties
 2010 - Power of Police without warrant
 2013 - Sexual Harassment (354 A- 354D)
o S. 357B and 357C of CRPC
o Trafficking of persons - S. 370 and 370 A
o Sections under Rape (S. 376A - 376E)
o S. 166A IPC
 In 2018 - Punishments in rape and murder cases enhanced
o Rape of women
o Rape of women under 16 years of age
o Rape of women under 12 years of age
o Gang Rape of women under 16 years and under 12 years of age
o Completion of investigation within 2 months
o Disposal of appeal within 6 months
Recommendations
 Punishment in line with changing socio-economic framework
 Scheme of chapters and offences need some reworking
 Urgent need of Police reforms - as suggested in the case of Prakash Singh V. UOI (2006 SC)
 Improvement in capacity and infrastructure
 Technological scaling up
 Community crime prevention programmes
 Increase independence of prosecutors
 Improving coordination between investigation and prosecution wings
 Adjudicatory Reforms:
 Prehearing categorization of cases
 Litigation management
 Plea bargaining to be enhanced
 Promotion of writing precise and clear judgments
 Prison monitoring system
 Prison Complaints Authority
 Creation of a National Security Commission

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