Constitution of Criminal Courts

October 29, 2016 0 0

Administration of justice is the most important function of the state. For this purpose our
constitution has set up a hierarchy of courts. The Supreme Court is the apex body, followed
by 24 High Courts which have been created by the constitution of India, and their jurisdiction
and powers are well defined in the constitution itself.

Article 124 of Indian constitution says that there shall be a Supreme Court of India its
constitution powers and jurisdictions have been defined from article 124-147. The Supreme
Court is meant to be the highest court of appeal which takes up appeals against the verdict of
High Courts. There are 24 High Courts in the country which regulates the working of the
Sessions court. The Constitution, by Article 227, provides that every High Court shall so
exercise superintendence over all courts and tribunals. It further provides that the High Court
shall exercise its powers judiciously in order ensure proper working of judicial mechanism.

CLASSES OF CRIMINAL COURTS

Apart from the Supreme Court and High Courts, the following criminal courts have been
described under section 6 of Criminal Procedure Code, 1973:-

1. Court of Session
2. Judicial Magistrate of first class and, in any metropolitan area Metropolitan
Magistrates
3. Judicial Magistrate of second class; and
4. Executive Magistrates

Section 7(1) of Criminal Procedure Code 1973 states that “The State Government shall
establish a Court of Session for every session’s division. The judge of the Sessions court is
appointed by the High Court. In the hierarchy Sessions court is followed by Judicial
magistrate Class I and then judicial magistrate of Class II. In metropolitan areas it is followed
by Chief Metropolitan Magistrate and metropolitan magistrate. Executive magistrate is one of
the classes of courts only while performing judicial functions.

POWER OF COURTS TO TRY OFFENCES

Chapter III of CrPC deals with power of Courts. One of such power is to try offences.
Offences are divided into two categories:

1. those under the Indian Penal Code; and

2. those under any other law.

According to Section 26, any offence under the Indian Penal Code, 1860 may be tried by the
High Court or the Court of Session or any other Court by which such offence is shown in the
First Schedule to be triable, whereas any offence under any other law shall be tried by the
Court mentioned in that law and if not mentioned, it may be tried by the High Court or any
other Court by which such offence is shown in the First Schedule to be triable. This Section is
a general Section and is subject to the other provisions of the Code.
Power of the Court to pass sentences

Sentences which may be passed by the criminal have been mentioned under section 28 & 29
of the criminal procedure code.

1. Sentences which High Courts and Sessions Judges may pass

According to Section 28, a High Court may pass any sentence authorised by law. A Sessions
Judge or Additional Sessions Judge may pass any sentence authorised by law, but any
sentence of death passed by any such judge shall be subject to confirmation by the High
Court.

An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of
death or of imprisonment for life or of imprisonment for a term exceeding ten years. Thus,
Section 26 of the Code enumerates the types of Courts in which different offences can be
tried and then under Section 28, it spells out the limits of sentences which such Courts are
authorised to pass.

2. Sentences which Magistrates may pass

Section 29 lays down the quantum of sentence which different categories of Magistrates are
empowered to impose. The powers of individual categories of Magistrates to pass the
sentence are as under:

 The Court of a Chief Judicial Magistrate may pass any sentence authorised by law
except a sentence of death or of imprisonment for life or of imprisonment for a term
exceeding seven years.
 A Magistrate of the first class may pass a sentence of imprisonment for a term not
exceeding three years or of a fine not exceeding five thousand rupees, or of both.
 A Magistrate of the second class may pass a sentence of imprisonment for a term not
exceeding one year, or of fine not exceeding one thousand rupees, or of both.

A Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial
Magistrate and that of a Metropolitan Magistrate, and the powers of the Court of a Magistrate
of the First class.

3. Sentence of imprisonment in default of fine

Where a fine is imposed on an accused and it is not paid, the law provides that he can be
imprisoned for a term in addition to a substantive imprisonment awarded to him, if any.
Section 30 defines the limits of Magistrate’s powers to award imprisonment in default of
payment of fine.

It provides that the Court of a Magistrate may award such term of imprisonment in default of
payment of fine as is authorised by law provided the that the term:

 is not in excess of the powers of the Magistrate under Section 29; and
 where imprisonment has been awarded as part of the substantive sentence, it should
not exceed 1/4th of the term of imprisonment which the Magistrate is competent to
 inflict as punishment for the offence otherwise than as imprisonment in default of
payment of the fine.

4. Sentences in cases of conviction of several offences at one trial

Section 31 relates to the quantum of punishment which the Court is authorised to impose
where the accused is convicted of two or more offences at one trial. (1) When a person is
convicted at one trial of two or more offences, the Court may, subject to the provisions of
section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the
several punishments prescribed therefor which such Court is competent to inflict; such
punishments when consisting of imprisonment to commence the one after the expiration of
the other in such order as the Court may direct, unless the Court directs that such
punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only
of the aggregate punishment for the several offences being in excess of the punishment which
it is competent to inflict on conviction of a single offence, to send the offender for trial before
a higher Court: Provided that-

a. in no case shall such person be sentenced to imprisonment for longer period than fourteen
years;

b. the aggregate punishment shall not exceed twice the amount of punishment which the
Court is competent to inflict for a single offence.

(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive
sentences passed against him under this section shall be deemed to be a single sentence.

What is First Information Report (FIR)

The first information report means an information recorded by a police officer on duty given
either by the aggrieved person or any other person to the commission of an alleged offence.
On the basis of first information report, the police commences its investigation. Section 154
of the Code of Criminal Procedure, 1973 defines as to what amounts to first information.

The said section reads as under:-

154. Information in cognizable cases

(1) Every information relating to the commission of a cognizable offence, if given orally to an
officer-in-charge of a police station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every such information, whether given in
writing or reduced to writing as aforesaid shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by such officer in such form as the
State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section

(1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer-

in-charge of police station to record the information referred to in sub-section (1) may send
the substance of such information, in writing and by post to the Superintendent of Police
concerned, who if satisfied that such information discloses the commission of a cognizable
offence shall either investigate the case himself or direct an investigation to be made by any
police officer subordinate to him, in the manner provided by this Code, and such officer
shall have all the powers of an officer-in-charge of the police station in relation to that
offence.

The provision in section 154 regarding the reduction of oral statement to writing and
obtaining signature of the informant to it, is for the purpose of discouraging irresponsible
statement about criminal offences by fixing the informant with the responsibility for the
statement he makes.

Refusal by the informant to sign the first information is an offence punishable under section
180 of the Indian Penal Code. The absence of signatures on the first information report by
the informant, however, is not necessary to the extent that it will vitiate and nullify such
report. The first information is still admissible in evidence.

In order to constitute an FIR in terms of section 154 of the Code. of Criminal Procedure,
1973 two conditions are to be fulfiUed:-
(a) what is conveyed must be an information; and
(b) that information should relate to the commission of a cognizable offence on the face of
it.

In other words, FIR is only a complaint to set the affairs of law and order in motion and it is
only at the investigation stage that all the details can be gathered. In one of the judgments,
the Madhya Pradesh High Court observed that the report of the crime which is persuading
the police machinery towards starting investigation is FIR, subsequent reports are/were
written, they are not hit under section 161 of the Code of Criminal Procedure, 1973 and
cannot be treated as such.

Who can File an FIR?

First Information Report (FIR) can be filed by any person. He need not necessarily be the
victim or the injured or an eye-witness. First Information Report may be merely hearsay and
need not necessarily be given by the person who has first hand knowledge of the facts.

Where to File an FIR?

An FIR can be filed in the police station of the concerned area in whose jurisdiction the
offence has occurred. A first are to obtain information about the alleged criminal activity so
as to be able to take suitable steps for tracing and bringing to book the guilty person.

Its secondary though equally important object is to obtain early information of an alleged
criminal activity and to record the circumstances before the trial, lest such circumstances
are forgotten or embellished.

Why FIR should be filed promptly

This is the golden principle of law prescribed in the Code of Criminal Procedure, 1973 that
the First Information Report should always be filed promptly and without wasting any time.
Such type of report gains the maximum credibility and is always welcome and appreciated
by the courts.

According to Supreme Court the FIR recorded promptly before the time afforded to
embellish or do away with the evidence is useful. It eliminates the possible chance of giving
rise to suspicion.

Is there time duration fixed for Filing an FIR?

We have already emphasized this fact that as far as possible and practicable, every FIR
should invariably be filed promptly, expeditiously and without wasting any time. There may
be circumstances where some concession of time must be given in filing the FIR But there
must be cogent reasons for reasonable delay in filing the FIR under the compelling
circumstances. Judges with lot of wisdom and experience can use their discretion judiciously
and in the interest of justice in each and every case. However, no possible duration of time
can be fixed for applying the test of reasonableness to the lodging of an FIR as we have
already explained. It depends upon facts and circumstances of each case. The delay in
lodging the FIR as such is not fatal in law if the prosecution substantiated the factual
difficulties encountered by the persons lodging the report.

Following are the reports or statements which do not amount to be an FIR:-

1. A report or a statement recorded after the commencement of the investigation

(sections 162 and 163 of the Code of Criminal Procedure, 1973).
2. Reports not recorded immediately but after questioning of witnesses.
3. Reports recorded after several days of developments.
4. Information not about occurrence of cognizable offence but only cryptic message
in the form of an appeal for immediate help.
5. Complaint to the Magistrate.
6. Information to beat house.
7. Information to the Magistrate or police officer on phone.
8. Information received at police station prior to the lodging of an F.LR.

It was held in Damodar v. State of Rajasthan, AIR 2003 SC 4414: 2003 AIR SCW 5050:
2003 (4) RCR (Cri) 355 (SC) that if the information was conveyed to police on
telephone and DO entry was made, it will not constitute an FIR even if the
 information disclosed commission of cognizable offence.

Supreme Court Guidelines on FIR

Supreme Court has given Directions to be followed in regards to Registration of an
FIR, these directions are discussed

Evidentiary value of a First Information Report

The statements made to the police are if three categories- a) A statement which has been
recorded as an First Information Report ( herein after referred to as FIR) b) statement
recorded by the police in the course of investigation c)a statement recorded by the police
but not falling under the above (a) and (b) category.

None of the above statements can be considered as substantive evidence, that is to say, as
evidence of facts stated therein. Because it is not made during trial, it is not given on oath,
nor is it tested by cross- examination. If the person making any such statement to the police
subsequently appears and gives evidence in court at the time of trial, his former statement
could , however be used to corroborate or to contradict his testimony according to the
provisions of the Evidence Act, 1872.

Section 157 of the Evidence Act is as follows:

“In order to corroborate the testimony of a witness, any former statement made by such a
witness relating to the same fact, at or about the time when the offence took place, or
before any authority legally competent to investigate the fact may be proved.”

Further, Section 145 of the Evidence Act provides:

“A witness may be crossed-examined as to previous statements made by him in writing or

reduced into writing, and relevant to matters in question, without such writing being shown
to him, or being proved; but if it is intended to contradict him by the writing, his attention
must, before writing can be proved, be called to those parts of it which are to be used for
the purpose of contradicting him.”

These normal rules of making previous statements have been substantially modified in
respect of statements falling under category (b) above.

Further, it may be noted that if any statement made to a police amounts to a confession,
such a confession cannot be proved against a person accused of any offence. However, this
bar on proof of confession made to a police officer is partially lifted by Section 27 of the
Evidence Act which provides:

“… When any fact is deposed to as discovered in consequence of information received from

a person accused of any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.”
The FIR is not substantive evidence, but it can be used to corroborate the informant under
Section 157 of the Evidence Act, or to contradict him under Section 145 of the Act, if the
informant is called as a witness at the time of trial. Obviously, the FIR cannot be used for the
purposes of corroborating or contradicting any witness other than the one lodging the FIR.

The FIR can have better corroborative value if it is recorded before there is time and
opportunity to embellish or before the informant’s memory fails. Undue or unreasonable
delay in lodging the FIR therefore, inevitably gives rise to suspicion which puts the court on
guard to look for the possible motive and the explanation and consider its effect on the
trustworthiness or otherwise of the prosecution version. The fact that the FIR does not
contain the names of the accused or of the eyewitnesses, is normally an important
circumstance, but the omission loses its significance if the FIR is from a person other than an
eyewitness.

If the FIR is given to the police by the accused himself, it cannot possibly be used either for
corroboration or contradiction because the accused cannot be a prosecution witness, and
he would very rarely offer himself to be a defense witness under section 315 of the code.
Moreover, if the FIR is of a confessional nature it cannot be proved against the accused
informant, because according to Section 25 of the Evidence Act, no confession made to a
police officer can be proved as against a person accused of any offence. But it might become
relevant under section 8 of the Evidence Act as to his conduct. If FIR given by thee accused
person is non- confessional, it may be admissible in evidence against the accused as an
admission under section 21 of the Evidence Act, or again, as showing his conduct under
section 8 of the Evidence Act.

Though, generally speaking the content of an FIR can be used only to contradict or
corroborate the maker thereof, there may be cases where the content becomes relevant
and can be put to some other use also. Omission of important facts affecting the
probabilities of the case, are relevant in judging the veracity of the prosecution case.

The Supreme Court has observed on the said subject matter, stating that “the first
information report gives information of the commission of a cognizable crime. It may be
made by the complainant or by any other person knowing about the commission of such
offence. It is intended to set the criminal law in motion. Any information relating to the
commission of a cognizable offence is required to be reduced to writing by the officer in
charge of the police station which has to be signed by the person giving it and the substance
thereof is required to be entered into a book kept by such officer in such form as the State
Government may prescribe. It cannot be used as evidence against the person making it, if in
case, he himself is accused in the matter, neither to corroborate or contradict other
witnesses. It is not the requirement of law that the minutest details be recorded in the Fir
lodged immediately after the occurrence. The fact of the state of mental agony of the
person making who generally is the victim himself , If not dead, or the relations or associates
of the deceased victim apparent under the shock of the occurrence reported has always to
be kept in mind.”

The FIR is the first version of the incident as received by the police. The statements in the
FIR must naturally get their due weight. An FIR is not a substantive piece of evidence. The
Court has to consider other evidence for deciding whether a case should stand or fall. An
FIR, being not a substantive evidence, it can be used as a previous statement for the
purposes of either corroborating its makers or for contradicting him. The statement of a
victim of rape in cross- examination which was not there in the FIR could not be used for
contradicting her.

FIR is not an encyclopedia. It is only to set the law in motion. It need not elaborate but
should contain necessary allegations to constitute cognizable offences. As per section 154 of
the Criminal Procedure Code, stating the use of FIR, “a FIR is not a substantial piece of
evidence. It can only be used for corroborating or contradicting its maker. It cannot be used
to corroborate or contradict other witnesses…” Further," corroboration of its maker is
permissible, but the first information report cannot be used as substantive evidence or
corroborating a statement of third party…”The fact that a minute details are not mentioned
should not be taken to mean the non- existence of the fact stated. An FIR was made by close
relatives of the deceased. Its reliability was not allowed to be doubted on the ground that it
was highly improbable that a close relative would leave the victim in a hospital and would
himself go to the police station, particularly so when other relatives had also arrived at the
hospital. There was no delay in recording the FIR and sending the challanto the court.
Absence of the names of the accused in the inquest report was of no value because the
investigating officer and the officer conducting inquest were not questioned on that point.

It was held in Pandurang Chandrakant Mhatre v. State of Maharashtra, that it is fairly well
settled that first information report is not a substantive piece of evidence and it can be used
only to discredit the testimony of the maker thereof and it cannot be utilised for
contradicting or discrediting the testimony of other witnesses. Although first information
report is not expected to be encyclopaedia of events, but an information to the police to be
“first information report” under Section 154(1) must contain some essential and relevant
details of the incident. A cryptic information about commission of a cognizable offence
irrespective of the nature and details of such information may not be treated as an FIR. An
FIR recorded without any loss of time is likely to be free from embroideries, exaggerations
and without anybody intermeddling with it and polluting and adulterating the same with
lies. The purpose of, FIR is to obtain the earliest account of a cognizable offence, before
there is an opportunity for the circumstances to be forgotten and embellished. It is well
settled that FIR is not a substantive piece of evidence and can be used to corroborate or
contradict the statement of the maker thereof. It is also equally established that
trustworthiness of the prosecution story can also be judged from the FIR. Besides first
information report is relevant as it may be a part of the res gestae.

For the purpose of summoning someone mentioned in a FIR but has not been charge
sheeted, the FIR can be taken into consideration because it is evidence at that stage. Where
an FIR is registered on the basis of a written complaint submitted to the police and there
was no mention of the presence of some persons as eye- witnesses in it, it was held that the
presence of those eye-witnesses was rightly disbelieved.

As already said, the FIR is not substantive evidence; however its importance as conveying
the earliest information regarding the occurrence of a crime cannot be disputed. Moreover,
it can be used to corroborate the informant under Section 157 of Indian Evidence Act, 1872,
or contradict the witness under Section 145 of the same Act if the informant is called as a
witness in the trial.

Following circumstances have been identified as the uses of FIR, which are non-
confessional in nature, for evidentiary purposes:
1. For corroboration purposes: It cannot be ignored altogether and can be used to
corroborate the statement of the eyewitnesses.
2. For contradicting the evidence of person giving the information.
3. For proving as an admission against the informer.
4. For refreshing informer’s memory.
5. For impeaching the credit of an informer.
6. For proving informer’s conduct.
7. For establishing identity of accused, witnesses & for fixing spot time as relevant facts
under Section 9, the Indian Evidence Act, 1872

Moreover, FIR can even become substantial evidence in following circumstances:

1. During declaration when a person deposing about the cause of his death had died (that is,
a dying declaration). In such case FIR will become admissible under Section 32(1) of the
Indian Evidence Act, 1872.

2. When the injuries are being caused in the presence of Station House officer in a police
station and the injured makes a statement to the SHO saying that accused was injuring him.

3. When the informer who has written the FIR or read it, fails to recall memory those facts
but is, sure that the facts were correctly represented in FIR at the time he wrote it or read it.

Rights of Arrested Person

One of the basic tenets of our legal system is the benefit of the presumption of innocence of
the accused till he is found guilty at the end of a trial on legal evidence. In a democratic
society even the rights of the accused are sacrosanct, though accused of an offence, he does
not become a non-person. Rights of the accused include the rights of the accused at the time
of arrest, at the time of search and seizure, during the process of trial and the like.

The accused in India are afforded certain rights, the most basic of which are found in the
Indian Constitution. The general theory behind these rights is that the government has
enormous resources available to it for the prosecution of individuals, and individuals
therefore are entitled to some protection from misuse of those powers by the government. An
accused has certain rights during the course of any investigation; enquiry or trial of an
offence with which he is charged and he should be protected against arbitrary or illegal arrest.
Police have a wide powers conferred on them to arrest any person under Cognizable offence
without going to magistrate, so Court should be vigilant to see that theses powers are not
abused for lightly used for personal benefits. No arrest can be made on mere suspicion or
information. Even private person cannot follow and arrest a person on the statement of
another person, however impeachable it is.
Though the police has been given various powers for facilitating the making of arrests, the
powers are subject to certain restraints. These restraints are primarily provided for the
protection of the interests of the person to be arrested, and also of the society at large. The
imposition of the restraints can be considered, to an extent, as the recognition of the rights of
the arrested person. There are, however, some other provisions which have rather more
expressly and directly created important rights in favour of the arrested person.

In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan, it was said that
the laws of India i.e. Constitutional, Evidentiary and procedural have made elaborate
provisions for safeguarding the rights of accused with the view to protect his (accused)
dignity as a human being and giving him benefits of a just, fair and impartial trail. However
in another leading case of Meneka Gandhi v. Union of India it was interpreted that the
procedure adopted by the state must, therefore, be just, fair and reasonable.

Rights Of Arrested Person

1. Right To Silence
The ‘right to silence’ is a principle of common law and it means that normally courts or
tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors,
that a suspect or an accused is guilty merely because he has refused to respond to questions
put to him by the police or by the Court. The Justice Malimath Committee writes about the
origin of the right to silence that “it was essentially the right to refuse to answer and
incriminate oneself in the absence of a proper charge. Not initially, the right to refuse to reply
to a proper charge.” The Justice Malimath Committee’s assumption is that the right to silence
is only needed in tyrannical societies, where anyone can be arbitrarily charged. It assumes
that whenever a charge is “proper”, there is no need for protection of the accused. In this
backdrop it becomes necessary to examine the right to silence and its companion right against
self-incrimination. These are the two aspects of fair trial and therefore cannot be made a
subject matter of legislation. Right to fair trial is the basic premise of all procedural laws. The
very prescription of procedure and the evolution of procedural law have to be understood in
the historical context of the anxiety to substitute rule of men by rule of law. In law any
statement or confession made to a police officer is not admissible. Right to silence is mainly
concerned about confession. Breaking of silence by the accused can be before a magistrate
but should be voluntary and without any duress or inducement. To ensure the truthfulness and
reliability of the facts he stated the magistrate is required to take several precautions. Right to
silence and the right against self-incrimination have been watered down quite considerably by
interpretation than by legislation. The defendant if he so desires can be a witness in his trial.
His confession outside the court either to the police officer or to the magistrate is admissible.
He is encouraged to betray his colleagues in crime on promise of pardon. He is expected to
explain every adverse circumstance to the court at the conclusion of evidence with the court
having jurisdiction to draw adverse inference while appreciating the evidence against him.

The constitution of India guarantees every person right against self incrimination under
Article 20 (3) “No person accused of any offense shall be compelled to be a witness against
himself”. It is well established that the Right to Silence has been granted to the accused by
virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can
forcibly extract statements from the accused, who has the right to keep silent during the
course of interrogation (investigation). By the administration of these tests, forcible intrusion
into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the
Right to Silence. In 2010 The Supreme court made narco-analysis, brain mapping and lie
detector test as a violation of Article 20(3).
2. Right To Know The Grounds of Arrest
Firstly, according to Section 50(1) Cr.P.C. “every police officer or other person arresting any
person without warrant shall forthwith communicate to him full particulars of the offence for
which he is arrested or other grounds for such arrest.”

Secondly, when a subordinate officer is deputed by a senior police officer to arrest a person
under Section 55 Cr.P.C., such subordinate officer shall, before making the arrest, notify to
the person to be arrested the substance of the written order given by the senior police officer
specifying the offence or other cause for which the arrest is to be made. Non- compliance
with this provision will render the arrest illegal.

Thirdly, in case of arrest to be made under a warrant, Section 75 Cr.P.C. provides that “the
police officer or other person executing a warrant of arrest shall notify the substance thereof
to the person to be arrested, and if so required, shall show him the warrant.” If the substance
of the warrant is not notified, the arrest would be unlawful.

Indian constitution has also conferred on this right the status of the fundamental right. Article
22(2) of the constitution provides that “no person who is arrested shall be detained in custody
without being informed as soon as may be, of the grounds of such arrest nor shall he be
denied the right to consult, and to be defended by a legal practitioner of his choice.”

The right to be informed of the grounds of arrest is a precious right of the arrested person.
Timely information of the grounds of arrest serves him in many ways. It enables him to move
the proper court for bail, or in appropriate circumstances for a writ of habeas corpus, or to
make expeditious arrangement for his defence.

In re, Madhu Limaye the facts were: Madhu Limaye, Member of the Lok Sabha and several
other persons were arrested. Madhu Limaye addressed a petition in the form of a letter to the
Supreme Court under Article 32 mentioning that he along with his companions had been
arrested but had not been communicated the reasons or the grounds for arrest. One of the
contentions raised by Madhu Limaye was that there was a violation of the mandatory
provisions of Article 22 (1) of the Constitution. The Supreme Court observed that Article 22
(1) embodies a rule which has always been regarded as vital and fundamental for
safeguarding personal liberty in all legal systems where the Rule of Law prevails. The court
further observed that the two requirements of Clause (1) of Article 22 are meant to afford the
earliest opportunity to the arrested person to remove any mistake, misapprehension or
misunderstanding in the minds of the arresting authority and, also to know exactly what the
accusation against him is so that he can exercise the second right, namely of consulting a
legal practitioner of his choice and to be defended by him.

Whenever that is not done, the petitioner would be entitled to a writ of Habeas Corpus
directing his release. Hence, the Court held that Madhu Limaye and others were entitled to be
released on this ground alone.

It appears reasonable to accept that grounds of the arrest should be communicated to the
arrested person in the language understood by him; otherwise it would not amount to
sufficient compliance with the constitutional requirement. The words “as soon as may be” in
Article 22(1) would means as early as is reasonable in the circumstance of the case, however,
the words “forthwith” in Section 50(1) of the code creates a stricter duty on the part of the
police officer making the arrest and would mean “immediately”.

If the arrest is made by the magistrate without a warrant under Section 44, the case is covered
neither by any of the section 50, 55 and 75 nor by any other provision in the code requiring
the magistrate to communicate the grounds of arrest to the arrested person. The lacuna in the
code, however, will not create any difficulty in practice as the magistrate would still be bound
to state the grounds under Article 22(1) of the Constitution.

The rules emerging from decision such as Joginder Singh v. State of U.P. and D.K. Basu v.
State of West Bengal, have been enacted in Section 50-A making it obligatory on the part of
the police officer not only to inform the friend or relative of the arrested person about his
arrest etc. but also to make entry in a register maintained by the police. The magistrate is also
under an obligation to satisfy himself about the compliance of the police in this regard.

3. Information Regarding The Right To Be Released On Bail

Section 50(2) Cr.P.C. provides that “where a police officer arrests without warrant any person
other than a person accused of a non- bailable offence, he shall inform the person arrested
that he is entitled to be released in bail that he may arrange for sureties on his.” This will
certainly be of help to persons who may not know about their rights to be released on bail in
case of bailable offences. As a consequence, this provision may in some small measures,
improve the relations of the people with the police and reduce discontent against them.

4. Right To Be Taken Before A Magistrate Without Delay

Whether the arrest is made without warrant by a police officer, or whether the arrest is made
under a warrant by any person, the person making the arrest must bring the arrested person
before a judicial officer without unnecessary delay. It is also provided that the arrested person
should not be confined in any place other than a police station before he is taken to the
magistrate. These matters have been provided in Cr.P.C. under section 56 and 76 which are
as given below:

56. Person arrested to be taken before Magistrate or officer in charge of police station- A
police officer making an arrest without warrant shall, without unnecessary delay and subject
to the provisions herein contained as to bail, take or send the person arrested before a
Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

76. Person arrested to be brought before Court without delay- The police officer or other
person executing a warrant of arrest shall (subject to the provisions of section 71 as to
security) without unnecessary delay bring the person arrested before the Court before which
he is required by law to produce such person.

Provided that such delay shall not, in any case, exceed 24 hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate’s Cou

5. Right Of Not Being Detained For More Than 24 Hours Without Judicial Scrutiny
Whether the arrest is without warrant or under a warrant, the arrested person must be brought
before the magistrate or court within 24 hours. Section 57 provides as follows:

57. Person arrested not to be detained more than twenty-four hours- No police officer shall
detain in custody a person arrested without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period shall not, in the absence of a special
order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate’s Court.

This right has been further strengthened by its incorporation in the Constitution as a
fundamental right. Article 22(2) of the Constitution proves that “Every person who is arrested
and detained in custody shall be produced before the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time necessary for the journey from the place
of arrest to the court of the magistrate and no such person shall be detained in custody beyond
the said period without the authority of a magistrate.” In case of arrest under a warrant the
proviso to Section 76 provides a similar rule in substance.

The right to be brought before a magistrate within a period of not more than 24 hours of
arrest has been created with a view-
i. To prevent arrest and detention for the purpose of extracting confessions, or as a means of
compelling people to give information;

ii. To prevent police stations being used as though they were prisons- a purpose for which
they are unsuitable;

iii. To afford to an early recourse to a judicial officer independent of the police on all
questions of bail or discharge.

In a case of Khatri(II) v. State of Bihar, the Supreme Court has strongly urged upon the
state and its police authorities to ensure that this constitutional and legal requirement to
produce an arrested person before a Judicial Magistrate within 24 hours of the arrest be
scrupulously observed. This healthy provision enables the magistrate to keep check over the
police investigation and it is necessary that the magistrates should try to enforce this
requirement and where it is found disobeyed, come heavily upon the police.

If police officer fails to produce an arrested person before a magistrate within 24 hours of the
arrest, he shall be held guilty of wrongful detention.

In a case of Poovan v. Sub- Inspector of Police it was said that whenever a complaint is
received by a magistrate that a person is arrested within his jurisdiction but has not been
produced before him within 24 hours or a complaint has made to him that a person is being
detained within his jurisdiction beyond 24 hours of his arrest, he can and should call upon the
police officer concerned; to state whether the allegations are true and if so; on what and under
whose custody; he is being so helped. If officer denies the arrest, the magistrate can make an
inquiry into the issue and pass appropriate orders.

6. Rights at Trial
i. Right To A Fair Trial-
The Constitution under Article 14 guarantees the right to equality before the law. The Code
of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial.
This provision is designed to ensure that convictions are not obtained in secret. In some
exceptional cases the trial may be held in camera. Every accused is entitled to be informed by
the court before taking the evidence that he is entitled to have his case tried by another court
and if the accused subsequently moves such application for transfer of his case to another
court the same must be transferred. However, the accused has no right to select or determine
by which other court the case is to be tried.
ii. Right To A Speedy Trial-
The Constitution provides an accused the right to a speedy trial. Although this right is not
explicitly stated in the constitution, it has been interpreted by the Hon'ble Supreme Court of
India in the judgment of Hussainara Khatoon. This judgment mandates that an investigation
in trial should be held “as expeditiously as possible”. In all summons trials (cases where the
maximum punishment is two years imprisonment) once the accused has been arrested, the
investigation for the trial must be completed within six months or stopped on an order of the
Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there
is cause to extend the investigation

7. Right To Consult A Legal Practitioner

Article 22(1) of the Constitution provides that no person who is arrested shall be denied the
right to consult a legal practitioner of his choice. Further, as has been held by the Supreme
Court that state is under a constitutional mandate (implicit in article 21) to provide free legal
aid to an indigent accused person, and the constitutional obligation to provide free legal aid
does not arise only when the trial commences but also attaches when the accused is for the
first time produced before the magistrate, as also when remanded from time to time. It has
been held by the Supreme Court that non- compliance with this requirement and failure to
inform the accused of this right would vitiate the trial. Section 50(3) also provides that any
person against whom proceedings are instituted under the code may of right be defended by a
pleader of his choice. The right of an arrested person to consult his lawyer begins from the
moment of his arrest. The consultation with the lawyer may be in the presence of police
officer but not within his hearing.

8. Rights Of Free Legal Aid

In Khatri(II) v. State of Bihar, the Supreme Court has held that the state is under a
constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent accused
person, an and the constitutional obligation to provide free legal aid does not arise only when
the trial commences but also attaches when the accused is for the first time produced before
the magistrate, as also when remanded from time to time. However this constitutional right of
an indigent accused to get free legal aid may prove to be illusory unless he is promptly and
duly informed about it by the court when he is produced before it. The Supreme Court has
therefore cast a duty on all magistrates and courts to inform the indigent accused about his
right to get free legal aid. The apex court has gone a step further in Suk Das v. Union
Territory of Arunachal Pradesh, wherein it has been categorically laid down that this
constitutional right cannot be denied if the accused failed to apply for it. It s clear that unless
refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing
setting aside of the conviction and sentence.

9. Right To Be Examined By A Medical Practitioner

Section 54 now renumbered as Section 54(1) provides:

54. Examination of arrested person by medical practitioner at the request of the arrested
person

When a person who is arrested, whether on a charge or otherwise, alleges, at the time when
he is produced before a Magistrate or at any time during the period of his detention in
custody that the examination of his body will afford evidence which will disprove the
commission by him of any offence or which will establish the commission by any other
person of any offence against his body, the Magistrate shall, if requested by the arrested
person so to do direct the examination of the body of such person by a registered medical
practitioner unless the Magistrate considers that the request is made for the purpose of
vexation or delay or for defeating the ends of justice.

10. Right Of The Accused To Produce An Evidence

The accused even has right to produce witness in his defence in case of police report or
private defence. After the Examination and cross examination of all prosecution witness i.e.
after the completion of the prosecution case the accused shall be called upon to enter upon his
defence and any written statement put in shall be filled with the record. He may even call
further for cross examination. The judge shall go on recording the evidence of prosecution
witness till the prosecution closes its evidence.

The accused in order to test the veracity of the testimony of a prosecution witness has the
right to cross-examine him. Section 138 of Indian Evidence Act, 1872 gives accused has a
right to confront only witnesses. This right ensures that the accused has the opportunity for
cross-examination of the adverse witness. Section 33 of Indian Evidence Act tells when
witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by
issuing commission. The testimony at a formal trial is one example of prior testimonial
statements which can be used as documentary evidence in a subsequent trial.

When in the course of investigation an accused or any other person desiring to make any
statement is brought to a magistrate so that any confession or statement that he may be
deposed to make of his free will is record. Confession statements by accused to the police are
absolutely excluded under Section 25, Evidence Act.

WHAT IS ARREST?

This term “Arrest” is very common term that we pick up a lot in our day today life. Normally,
we see a person, who do or have done something against the law, get arrested. Generally, the
term “arrest” in its ordinary sense, means the apprehension or restraint or the deprivation of
one’s personal liberty. Let’s understand this term in Indian law, Criminal procedure Code,
1973 in its chapter V (section 41 to 60) deals with Arrest of a person. Ironically, Code has not
defined the term “Arrest”. Every deprivation of liberty or physical restraint is not arrest. Only
the deprivation of liberty by legal authority or at least by apparent legal authority, in a
professionally competent and adept manner amounts to arrest. Thus, we can say arrest means
‘apprehension of a person by legal authority resulting in deprivation of his liberty’. An arrest
consists of taking into custody of another person under authority empowered by law for the
purpose of holding or detaining him to answer a criminal charge and preventing the
commission of a criminal offence. However, a person against whom no accusation of crime
has been made may be arrested /detained under a statute for certain purposes like removal in
safe custody from one place to another, for example – removal of a minor girl from a brothel.
One thing to be noted that ‘custody’ and ‘arrest’ don’t have same meaning. Taking of a
person into judicial custody is followed after the arrest of the person by Magistrate on
appearance or surrender. In every arrest there is custody but not vice versa. Thus, mere taking
into custody of a person an authority empowered to arrest may not necessarily amount to
arrest. This code propose two types of arrests: (i) arrest made in pursuance of a warrant
issued by a magistrate (ii) arrest made without such a warrant but made in accidence with
some legal provision permitting such arrest.
WHO CAN ARREST?

Arrest can be made by police officer, Magistrate or any private person, like you or me can
also arrest a person but that can made only in accordance with some legal provision
permitting such arrest. The code exempts the members of Armed forces from being arrested
for anything done by them in discharge of their official duties except after obtaining the
consent of the government (Sec. 45).

Any private individual may arrest a person only when the person a proclaimed offender and
the person commits a non bailable offence and cognizable offences in his presence (sec. 43).
Any magistrate (whether Executive or judicial) may arrest a person without a warrant (sec.
44). Under section 41, Arrest by police officer can be made without warrant only in
cognizable offences (sec.2(c)) and with warrant in non- cognizable offence (sec 2 (l)).
Cognizable offences are of more serious nature as compare to non cognizable offences i.e.
Murder, kidnapping, theft, etc.

HOW ARREST IS MADE?

Sec. 46 describes the mode in which arrests are to be made (whether with or without
warrant). In making an arrest the police officer /other person making the same actually
touches or confines the body of the person to be arrested unless there be a submission to
custody by words or action. When the police arrests a person in execution of a warrant of
arrest obtained from a magistrate, the person so arrested shall not be handcuffed unless the
police have obtained orders from the Magistrate in this regard. The person making an arrest
may use ‘all means’ necessary to make arrest if person to be arrested resists or attempts to
evade the arrest. A police officer may, for the purpose of arresting without warrant any
person whom is authorized to arrest, pursue such person into any place in India (sec 48).
Arrested person shall not be subjected to unnecessary restraint and physical inconvenience
unless it’s necessary to do so to prevent his escape (sec. 49).

Juvenile Justice Act

Introduction

The problem of juvenile justice is, no doubt, one of tragic human interest so much so in fact
that it is not only confined to this country alone but cuts across national boundaries. Juvenile
delinquency laws are characterized by the denature that they prescribe many acts which are
regarded as non-criminal if indulged in by elder persons like drinking, smoking, viewing
adult films or reading adult literature, etc. The extension of the concept of juvenile
delinquency towider limits has drawn adverse criticism on the ground that it is neither
necessary nor desirable to use police and courts in private matters which can be well tackled
by family themselves.

The first legislation converning children which came in 1850 was the Apprentic Act which
provided that children in the age group of 10-18 convicted by courts were intended to be
provided with some vocational training which might help their rehabilitation. It was followed
by Reformatory Schools Act, 1897. The Indian Jail Committee (1919-1920) brought to the
fore the vital need for square trial and treatment of young offenders. Its recommendations
prompted the enactment of the Children Act in Madras in 1920. This was followed by Bengal
and Bombay Acts in 1922 and 1924 respectively. The three poineer statutes (i.e. Acts
concerning Madras, Bengal and Bombay) were extensively amended between 1948 and 1959.

In 1960 at the second United Nations Congress on the Prevention of Crime and Treatment of
offenders at London this issue was discussed and some therapeutic recommendations were
adopted.

The Central enactment, the Children Act, 1960 was passed to cater to the heads of the Union
Territories. To remove same inherent lacuane of the above mentioned Act, the Children
(Amendment) Act was passed in 1978. But the need of a uniform legislation regarding
juvenile justice for the whole country had been expressed in various fora, including
Parliament but it could not be enacted on he ground that the subject matter of such a
legislation fell in the State List of the Constitution. To bring the operations of the juvenile
justice system in the country in conformity with the UN Standard Minimum Rules for the
Administration of Juvenile Justice, Parliament seems to have exercised its power under
Article 253 of the Constitution read with Entry 14 of the Union List to make law for the
whole of India to fulfill international obligations. On 22nd August, 1986, the Juvenile Justice
Bill, 1986 was introduced in the Lok Sabha.

STATEMENT OF OBJECTS AND REASONS

A review of the working of the existing Children Acts would indicate that much greater
attention is required to be given to children who may be found in situations of social
maladjustment, delinquency or neglect. The justice system as available for adults is not
considered suitable for being applied to juvenile. It is also necessary that a uniform juvenile
justice system should be available throughout the country which should make adequate
provision for dealing with all aspects in the changing social, cultural and economic situation
in the country. There is also need for larger involvement of informal systems and community
based welfare agencies in the care, protection, treatment, development and rehabilitation of
such juveniles.

In this context, the proposed legislation aims at achieving the following objectives:-

(i) To lay down a uniform frame work for juvenile justice in the country so as to ensure that
no child under any circumstances is lodged in jail or police lock-up. This is being ensured by
establishing Juvenile Welfare Boards and Juvenile Courts;

(ii) To provide for a specialised approach towards the prevention and treatment of juvenile
delinquency in its full range in keeping with the development needs of the child found in any
situation of social maladjustment;

(iii) To spell out the machinery and infrastructure required for the care, protection, treatment,
development and rehabilitation of various categories of children coming within the purview
of the juvenile justice system. This is proposed to be achieved by establishing observation
homes, juvenile homes for neglected juveniles and special homes for delinquent juveniles;

(iv) To establish norms and standards for the administration of juvenile justice in terms of
investigation and prosecution, adjudication and disposition and care, treatment and
rehabilitation;
(v) To develop appropriate linkages and coordination between the formal system of juvenile
justice and voluntary agencies engaged in the welfare of neglected or society maladjusted
children and to specifically define the areas of their responsibilities and roles;

(vi) To constitute special offences in relation to juveniles and provide for punishments
therefore;

(vii) To bring the operation of the juvenile justice system in the country in conformity with
the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.

As its various provisions come into force in different parts of the country they would replace
the corresponding laws on the subject such as Children Act, 1960 and other State enactments
on the subject.

The Bill seeks to achieve the above objects.

Act 53 of 1986

The Juvenile Justice Bill, 1986 was passed by both Houses of Parliament. After receiving the
assent of the President it came on the Statute Book as the Juvenile Justice Act, 1986 (53 of
1986).

Chapter I – Preliminary

Section 1. Short title, extent, and commencement

(53 of 1986) (1st December, 1986)

An Act to provide for the care, protection, treatment, development and rehabilitation of
neglected or delinquent juveniles and for the adjudication of certain matters relating to and
disposition of, delinquent juveniles.

BE it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:-

(1) This Act may be called the Juvenile Justice Act, 1986.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in
the Official Gazette, appoint and different dates may be appointed for different provisions of
this Act and for different States.

Section 2. Definitions

In this Act, unless the context otherwise requires, – (a) “Begging” means -

(i) Soliciting or receiving alms in a public place or entering into any private premises for the
purpose of soliciting or receiving alms, whether under the pretence of singing, dancing,
fortune-telling, performing tricks or selling articles or otherwise ;
(ii) Exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound,
injury, deformity or disease, whether of himself or of any other person or of an animal ;

(iii) Allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms ;

(b) “Board” means a Juvenile Welfare Board constituted under section 4;

(c) “Brothel”, prostitute”, “prostitution” and “public place” shall have the meanings
respectively assigned to them in the Suppression of Immoral Traffic in Women and Girls Act,
1956 (104 of 1956) ;

(d) “Competent authority” means, in relation to neglected Juveniles, a Board and, in relation
to delinquent Juveniles, a Juvenile Court and where no such Board or Juvenile Court has been
constituted, includes any court empowered under sub-section (2) of section 7 to exercise the
powers conferred on a Board or Juvenile Court ;

(e) ‘Delinquent juvenile’ means a juvenile who has been found to have committed an offence
;

(f) “Fit person” or “fit institution” means any person or institution (not being a police station
or jail) found fit by the competent authority to receive and take care of a juvenile entrusted to
his or its care and protection on the terms and conditions specified by the competent authority

(g) ‘Guardian’ in relation to a juvenile, includes any person who, in the opinion of the
competent authority, having cognizance of any proceeding in relation to a juvenile, has, for
the time being, the actual charge of, or control over, that juvenile ;

(h) ‘Juvenile’ means a boy who has not attained the age of sixteen years or a girl who has not
attained the age of eighteen years ;

(i) “Juvenile Court” means a court constituted under section 5;

(j) “Juvenile home” means an institution established or certified by the State Government
under section 9 as a Juvenile home ;

(k) “Narcotic drug’ and ‘psychotropic substance’ shall have the meanings respectively
assigned to them in the Narcotic Drugs and psychotropic Substances Act, 1985 (61 of 1985) ;

(l) “Neglected juvenile” means a juvenile who –

(i) Is found begging ; or

(ii) Is found without having any home or settled place of abode and without any ostensible
means of subsistence and is destitute ; or

(iii) Has a parent or guardian who is unfit or incapacitated to exercise control over the
juvenile ; or
(iv) Lives in a brothel or with a prostitute or frequently goes to any place used for the purpose
of prostitution, or is found to associate with any prostitute or any other person who leads an
immoral, drunken or depraved life ; or

(v) Who is being or is likely to be abused or exploited for immoral or illegal purposes or
unconscionable gain ;

(m) “Observation homes” means any institution or place established or recognised by the
State Government under section 11 as an observation home ;

(n) “Offence” means an offence punishable under any law for the time being in force ;

Power of Court to release certain offenders on probation of good conduct (Section 4 of

Probation of Offenders Act, 1958)

Legal provisions regarding power of Court to release certain offenders on probation of good
conduct under Section 4 of Probation of Offenders Act, 1958.

(1) When any person is found guilty of having committed an offence not punishable with
death or imprisonment for life and the Court by which the person is found guilty is of opinion
that, having regard to the circumstances of the case including the nature of the offence and
the character of the offender, it is expedient to release him on probation of good conduct, then
notwithstanding anything contained in any other law for the time being in force, the Court
may, instead of sentencing him at once to any punishment, direct that he be released on his
entering into a bond, with or without sureties, to appear and receive sentence when called
upon during such period, not exceeding three years, as the Court may direct, and in the
meantime to keep the peace and be of good behaviour.

However, the Court shall not direct such release of an offender unless it 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.

(2) Before making any order under sub-section (1), the Court shall take into consideration the
report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the
interests of the offender and of the public it is expedient so to do, in addition pass a
supervision order directing that the offender shall remain under the supervision of a probation
officer named in the order during such period, not being less than one year, as may be
specified therein, and may in such supervision order impose such conditions as it deems
necessary for the due supervision of the offender.
(4) The Court making a supervision order under sub-section (3) shall require the offender,
before he is released, to enter into a bond, with or without sureties, to observe the conditions
specified in such order and such additional conditions with respect to residence, abstention
from intoxicants or any other- matter as the Court may, having regard to the particular
circumstances, consider fit to impose for preventing a repetition of the same offence or a
commission of other offences by the offender.

(5) The Court making a supervision order under sub-section (3) shall explain to the offender
the terms and conditions of the order and shall forthwith furnish one copy of the supervision
order to each of the offenders, the sureties, if any, and the probation officer concerned.

The conditions to release certain offenders under Section 4 of the Probation of Offenders Act
are:

(1) Any person is found guilty of having committed an offence;

(2) The offence committed must not be one punishable with death or imprisonment of life;

(3) The Court must opine that it is expedient to release him on probation of good conduct
instead of sentencing him to any punishment;

(4) The Court may form such opinion having regard to: (i) the circumstances of the case; (ii)
the nature of the offence; and (iii) the character of the offender; and

(5) The offender or surety must have a fixed place of abode or regular occupation in a place
situate within the jurisdiction of the Court.

The word ‘character’ is not defined in the Act. Hence, it must be given the ordinary meaning.
The dictionary meaning of ‘character’ is mental or moral nature of a person that make him
different from others.

The provision of Section 4 of the Probation of Offenders Act would have effected
notwithstanding any other law for the time being in force.

The mere fact that no earlier connection stands proved against the accused will not
necessarily imply that it is the first offence which he had in fact committed.

The provision of Section 4 vests in the Court discretion to release a person found guilty of
having committed an offence not punishable with death or imprisonment for life. It is only
when the Court forms an opinion that in a given case the offender should be released on
probation of good conduct and then the Court acts as provided in Section 11. In the case of
offenders who are above the age of 21 years, absolute discretion is given to the Court to
release them after admonition or on probation of good conduct, and in the case of offenders
below the age of 21 years an injunction is issued to the Court not to sentence them to
imprisonment and it is not desirable to deal with them under Sections 3 and 4 of the Act
where the accused is convicted of an offence punishable with imprisonment for life, benefit
cannot be given under Section 4 of the Act.

Section 4(1) of the Probation of Offenders Act does not contain any restriction that the
offender must be 21 or below that age although this restriction is found in Section 6.
In Ishar Das v. State of Punjab, the Supreme Court held that sub-section (1) of Section 4 of
the Act does not distinct between persons of the age of more than 21 years and those of the
age of less than 21 years and the sub-section is applicable to persons of all ages subject to
certain conditions which have been specified therein.

Under Section 4 of the Act, the nature of offence is the major criteria and his age would be a
relevant factor. The circumstance in which the offence is committed is a third important
consideration.

The Court, while invoking Section 4 of the Act, does not deal with conviction but it only
deals with the sentence which the offender has to undergo. Instead of sentencing the offender,
the Court releases him on probation of good conduct.

The conviction, however, remains untouched. The order of release on probation has been
made permissible by the statute with a humanist point of view in order to reform youthful
offenders and to prevent them from becoming hardened criminals.

The Court, before making any order of release on probation, shall take into consideration the
report of the probation officer concerned in relation to the case.

The Court shall pass the supervision order when an offender is released on, probation if it is
of the opinion that such order is in the interest of the offender and also in the interest of
public.

The Court shall require the offender, before he is released to enter into a bond to observe the
conditions specified in the supervision order. The bond may be required to be furnished either
with or without sureties.

The Court shall explain to the offender the terms and conditions of the order and extend
copies to the supervisor, the sureties and the probation officer concerned.

The period of probation will be such as the Court may direct but it will not exceed three
years.

The case laws of the Applicability of Section 4 of the Act are:

In Harikishan and State of Haryana v. Sukhbir Singh, the Court held that the extension of
benefit .of the release on probation is applicable where there was no previous history of
enmity between the parties and the occurrence was an outcome of a sudden flare up.

In Rajbir v. State of Haryana, the Court has held that the benefit of the provisions of Section
4 of the Act can be given to an offender where accused is a Government servant and is likely
to lose job by imprisonment.

In Mani Singh v. State of Bihar and Others, the Court has held that the benefit of probation
with conditions can be given to a Government servant where the conviction under Section
379 of the Indian Penal Code and Section 27 of the Arms Act would harm him with serious
consequences including dismissal from service.
In Keshav Sitaram v. State of Maharashtra, the Court has held that in the case of petty theft,
normally benefit under Section 360 of the Code of Civil Procedure or Sections 3 and 4 of the
Probation of Offenders Act to be given to the offender.

Case laws relating to Non-applicability of Section 4 of the Act are:

In Ahmed v. State of Rajasthan, the Court has held that any person who had indulged in
certain criminal acts resulting in explosive situation leading to communal tension cannot be
given the benefit under the Probation of Offenders Act.

In Phaul Singh v. State of Haryana, the Court has held that the benefit of the Act cannot be
given to an offender where he had committed heinous crime of rape.

In Lai Biak Sanga v. The State, the Court has held that the benefit under Section 360 of the
Criminal Procedure Code or under Section 4 of the Probation of Offenders Act cannot be
granted to an offender who smuggled large scale heroin as it is an offence against Dangerous
Drugs Act and is also a social crime.

In State of Maharashtra v. Natverlal, the Court has held that smuggling of gold affects public
revenue, public economy and also escapes detection and such person cannot be given benefit
under the Probation of Offenders Act.

In Bhagwan Das v. Inspecting Assistant Commissioner, it is held that where accused was
convicted for an offence under Section 276-CC of the Income Tax Act, he cannot be released
on probation in view of Section 292-A of the Income Tax Act.

In Shyam Pradhan v. State, it is held that where the assault is a pre-planned one on his brother
inflicting injuries, benefit of probation cannot be given to such accused.

In Ram Kumar Agarwal v. State of Orissa, it is held that where an accused is convicted for an
economic offence, he is not entitled for the benefits under the Probation of Offenders Act..

In Motty Phillipose and Another v. State of Kerala, the first accused obtained admission to
Medical College on strength of fake marks list showing it as genuine document. Second
accused abetted that offence to steal a seat for his son in medical college.

Therefore, offences were committed against society in general depriving legitimate

entitlement of others who had worked hard and genuinely scored higher marks than the first
accused. Thus, it was held that in circumstances and the nature of offence committed, Section
4 of the Probation Offenders Act cannot be applied to release the accused on probation.

Power to suspension or remission by the appropriate Government (Section 432 of CrPc)

Legal provisions regarding power to suspension or remission by the appropriate Government

under section 432 of the Code of Criminal Procedure, 1973.
Section 432 of the Code of Criminal Procedure provides the following provisions relating the
power to suspension or remission by an appropriate Government:

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

(2) Whenever an application is made to the appropriate Government for the suspension or
remission of a sentence, the appropriate Government may require the presiding judge of the
Court before or by which the conviction was had or confirmed, to state his opinion as to
whether the application should be granted or refused, together with his reasons for such
opinion and also to forward with the statement of such opinion a certified copy of the record
of the trial or of such record thereof as exists.

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

(4) The condition on which a sentence is suspended or remitted under Section 432 may be
one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or
one independent of his will.

(5) The appropriate Government may, by general rules or special orders, give directions as to
the suspension of sentences and the conditions on which persons should be presented and
dealt with.

However, in the case of any sentence (other than a sentence of fine) passed on a male person
above the age of eighteen years, no such petition by the person sentenced or by any other
person on his behalf shall be entertained, unless the person sentenced is in jail, and;

(a) Where such petition is made by that person sentenced, it is presented through the officer
in charge of the jail; or

(b) Where such petition is made by any other person, it contains a declaration that the person
sentenced is in jail.

(6) The provisions of the above sub-sections shall also apply to any order passed by a
criminal Court under any Section of this Code or of any other law, which restricts the liberty
of any person or imposed any liability upon him or his property.

(7) In Sections 432 and 433, the expression ‘appropriate Government’ means;

(a) In cases where the sentence is for an offence against, or the order referred to in sub-
section (6) is passed under any law relating to a matter to which the executive power of the
Union extends, the Central Government;
(b) In other cases, the Government of the State within which the offender is sentenced or the
said order is passed.

The powers conferred on the President of India and the Governors of States by Articles 72
and 161 of the Constitution of India to suspend, remit or commute any sentence is ordinarily
called ‘mercy jurisdiction’. The judiciary has no such ‘mercy jurisdiction’.

‘Pardon’ and ‘remission’ stand on different footings. The difference between a pardon and a
remission of sentence lies in the fact that in the case of pardon it affects both the punishment
prescribed for the offence and the guilt of the offender, in other words, a fall pardon may blot
out the guilt itself; in the case of remission, the guilt of the offender is not affected nor is the
sentence of the Court affected, except in the sense that the person concerned does not suffer
incarceration for the entire period of the sentence, but is believed from serving out a part of it.

The power to grant pardon is in essence an executive function to be exercised by the Head of
the State after taking into consideration various matters which may not be germane for
consideration before a Court of law inquiring into the offence.

The Government of India and State Governments must dispose of the petitions under
Sections 432 and 433 of the Code as expeditiously as possible and a self imposed rule should
be followed by the authorities rigorously that every such application shall be disposed of
within the period of three months from the date on which it is received.

The law governing suspension, remission and commutation of sentence is both statutory and
constitutional. The stage for the exercise of this power generally speaking is post-judicial.
The grant of remission is a matter of policy and it is for the executive branch of Government
to decide as to when, to what extent and in what manner remission is to be granted.

The Courts cannot give any direction in the matter of policy which is purely within the
executive domain of the Government. It is not the duty of the Government to give reasons in
its order of remission. The remission of sentence depends on the concept of mercy and it is
not a prisoner’s right.

The sentence will not automatically be revived when there is a breach of any condition of
suspension or remission. It is only when the Government chooses to pass an order of
cancellation of the suspension or remission that the convict is arrested and is required to serve
the unexpired portion of the sentence.

Section 389 of Cr. P.C. empowers the Court to suspend the sentence and even the conviction
but if there is no such suspension, the Competent Authority or the Government’s powers
under Section 432, Cr. P.C. are not curtailed in any manner nor there is an embargo on its
powers merely because the appeal against the conviction is pending. But when the sentence is
suspended and the convict is ordered to be released on bail, such an order prevails over the
powers of the Government under Section 432, Cr. P.C.

Provision of Appeal under Criminal Procedure Code

2 months ago 0 0

Introduction

The term “appeal” has not been defined in the code. According to the dictionary meaning, an
appeal is a complaint or grievance to a superior court for reconsideration or review of a
decision, verdict or sentence of a lower court.[1] It has been said that every human being is
fallible and a judge is not an exception. It is thus possible that even a judge may err or
commit mistake and his decision may be wrong or faulty. Article 25 of the Constitution Of
India guarantees life and liberty to every citizen, small or big, rich or poor, as one of the
Fundamental Rights. It is therefore, necessary that a person aggrieved by an order of the court
of the first instance may be able to challenge it by preferring an appeal. An appeal is a
method of correction of manly error or solution of human frailty.

Chapter XXXIX (Section 372 – 394 of Cr.PC) deals with Appeals.

A right of Appeal is not a natural or inherent right. It is a statutory right and must be
governed by the statute which grants it.[2]

SECTION 372 provides, no appeal lies except otherwise provided by the Code or by any
other law for the time being in force. Under Articles 132, 134 and 136 of the Constitution of
India, it may be possible to present an appeal to the Supreme Court against the order of
acquittal passed by the High Court.

SECTION 373 – APPLIES TO APPEALS FROM

1. Orders requiring security for keeping peace or good behavior and

2. Against order refusing to accept or rejecting to accept or rejecting a surety under s.
121.

The appeal lies to Court of Session, except, of course, in cases where under sub-s. (2) Or (4)
of S. 122, the proceedings are already laid before the Session Judge.

SECTION 374: APPEALS FROM CONVICTIONS

 Any person convicted on a trial held by a High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court.
 Any person convicted on a trial held by a Sessions Judge or an Additional Sessions
Judge or on a trial held by any other Court in which a sentence of imprisonment for
more than seven years [has been passed against him or against any other person
convicted at the same trial]; may appeal to the High Court
 Save as otherwise provided in sub-section (2), any person,
o convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions
Judge or Magistrate of the first class, or of the second class,
o sentenced under section 325, or
o in respect of whom an order has been made or a sentence has been passed
under section 360 by any Magistrate, may appeal to the Court of Session.
While disposing of appeals from the sentences of the Sessions Court under this Section, the
High Court should specify the reasons for rejection of appeal and should not reject it
summarily. This will enable the Supreme Court to know the view of the High Court, in case
the appellant moves the Supreme Court in appeal. For computing the sentence of
imprisonment for seven years for the purpose of ascertaining the appellate forum under
Section 374 (2), the sentence in default of payment of a fine is not to be added to the
substantive sentence of imprisonment.

An appeal from an order of acquittal must be filed within the period of limitation prescribed
by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period of
limitation, and for exclusion of time in computing the period of limitation, Sections 5 and 12
of the Limitation Act, 1963 would be useful.

NO RIGHT OF APPEAL

Section 375 and 376 bar appeals in certain cases, though a provision of Revision is
maintainable. Thus no appeal shall lie-

 Where a High Court passes a sentence of imprisonment not exceeding six months or
fine not exceeding one thousand rupees or both;
 Where a Court of Session or a Metropolitan Magistrate passes a sentence of
imprisonment not exceeding three months or fine not exceeding two hundred
rupees or both;
 Where a Magistrate of the First Class passes a sentence of fine not exceeding one
hundred rupees; or
 Where in a summary case, a Magistrate passes a sentence of fine not exceeding two
hundred rupees.

APPEAL FOR ENHANCEMENT OF SENTENCE

Section 377 confers right on the Government to file an appeal against the inadequacy of
sentence awarded by any court other than a High court. If the sentence appears to be
manifestly inadequate resulting in failure of justice, the appellate court can interfere with it
and can enhance the sentence. But at the same time, the high court can also exercise its
revisional jurisdiction, suo motto call for the record and enhance the sentence in appropriate
cases after giving an opportunity to the accused.[4] The appellate court must pass a speaking
order for enhancing the sentence. A bold statement that the ends of justice demanded
enhancement of sentence was held insufficient by courts.

An appeal under Section 377 must be filed by the State within a period of 60 days and the
contention of the State that it was under a mistaken belief that period of limitation is ninety
days would be no excuse for condonation of the delay.

APPEAL IN CASE OF ACQUITTAL

Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present an
appeal to the Supreme Court against the order of acquittal passed by the High Court.
An appeal from an order of acquittal must be filed within the period of limitation prescribed
by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period of
limitation, and for exclusion of time in computing the period of limitation, Sections 5 and 12
of the Limitation Act, 1963 would be useful.

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.

“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.
 This list is intended to be illustrative, not exhaustive.

The Appellate Court must always give proper weight and consideration to the findings of the
trial court. If two reasonable views can be reached – one that leads to acquittal, the other to
conviction – the High Court’s/appellate courts must rule in favour of the accused.

POWERS OF APPELLATE COURT IN APPEAL AGAINST ACQUITTAL

In Chandrappa & Others v. State of Karnataka [6], Supreme Court held:

1. An appellate court has full power to review, re-appreciate and reconsiders the
evidence upon which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on
the exercise of such power and an appellate court on the evidence before it may
reach its own conclusion, both on questions of fact and of law.
3. Various expressions, such as, “substantial and compelling reasons”, “good and
sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring
mistakes”, etc. are not intended to curtail extensive powers of an appellate court in
an appeal against acquittal. Such phraseology are more in the nature of “flourishes
of language” to emphasize reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to review the evidence and to come
to its own conclusion.
4. An appellate court, however, must bear in mind that in case of acquittal, there is
double presumption in favour of the accused. Firstly, the presumption of innocence
is available to him under the fundamental principle of criminal jurisprudence that
every person shall be 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.
5. 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.”

SECTION 379 – APPEAL AGAINST CONVICTION BY HIGH COURT IN CERTAIN CASES

Where the High Court has, on appeal, reversed an order of acquittal of an accused person and
convicted him and sentenced him to death or to imprisonment for life or to imprisonment for
a term of ten years or more, he may appeal to the Supreme Court.

An appeal to would lie to the Supreme Court as a matter of right when High Court, on appeal,

1. Reversed an order of Acquittal of an accused person and

2. Convicted and sentenced him to death or to imprisonment for life or to
imprisonment for a term of ten years or more.[8]

In other cases appeal can be filed, if the High Court certifies that the case is a fit one for
appeal to the Supreme Court. Only grave injustice manifest on record can induce the
Supreme Court to interfere with the concurrent finding of guilt of Courts below. The Court
would be slow in reversing the finding entered by the High Court unless there is a perverse
and erroneous appreciation of evidence. If the High Court, for acquitting the accused has
given certain tenable reasons, the Supreme Court would not be justified in interfering with
such acquittal.[9] The word “acquittal” doesn’t mean that the trial must have ended in a
complete acquittal but would also include the case where an accused has been acquitted of
the charge of murder and has been convicted of a lesser offense.[10]

SECTION 380- SPECIAL RIGHT OF APPEAL IN CERTAIN CASES

Notwithstanding anything contained in this Chapter, when more persons than one are
convicted in one trial, and an appealable judgment or order has been passed in respect of any
of such person, all or any of the persons convicted at such trial shall have a right of appeal.

Form of Appeal -SECTION 382 – Petition of appeal.

Every appeal shall be made in the form of a petition in writing presented by the appellant or
his pleader, and every such petition shall (unless the Court to which it is presented otherwise
directs) be accompanied by a copy of the judgment or order appealed against. A copy of the
judgment or order means a certified copy. The court has, however, discretion to dispense with
the copy of the judgment.[11]

SECTION 383 – APPEAL FROM JAIL

Where a convict is in jail and intends to challenge his conviction, he can file an appeal from
jail by presenting it to the officer in charge of the jail. It is the duty of the jail officer to
forward such appeal to an appropriate court. No Jail Appeal can be dismissed without
affording the reasonable opportunity to the appellate court of being heard.
SECTION 384 – Summary Dismissal of Appeal or Dismissal in Limine

 If upon examining the petition of appeal and copy of the judgment received under
section 382 or section 383, the Appellate Court considers that there is no sufficient
ground for interfering, it may dismiss the appeal summarily.
 DISMISSAL IN LIMINE (U/S 384)

The Appellate court’s power to dismiss an appeal must be exercised sparingly and
with great circumspection. The Apex court has dealt with cases where the summary
dismissal of criminal appeal is permissible. Even if the records of the case is
destroyed or is not available, it would justify acquittal. Bolin v. Jagdish (2005) AIR
2005 SC 1872; State v. Abhai Roy (2004)4 SCC 6

SECTION 385 – Procedure for hearing of the appeal which has been admitted and
not dismissed summarily under Section 384

The section lays down the procedure for hearing of the appeal which has been admitted and
not dismissed summarily under Section 384.

An order of the High Court setting aside the acquittal of the accused in appeal without notice
having been sent to the accused was held to be illegal. The accused must be heard and his
appearance must be ensured while disposing of the appeal.

Where the appeal is not dismissed summarily under Section 384, the Appellate Court is
bound to call for the record if such record has not already been sent by the Court and then
give a hearing to the parties However, the Court may dispose of the appeal even without
asking for the record where the appeal is only as to the legality of the sentence.

POWERS OF APPELLATE COURT

SECTION 386 Of the Code specifies powers of the appellate court. It provides that after
persuing the record and after hearing the parties, the court may dismiss the appeal, allow the
appeal or pass any other order that may appear to it be just and proper.

It includes appeal –

 Against Acquittal
 Against conviction
 For enhancement of sentence
 From other orders

Clause (d) of section 386 applies to all orders other than that of conviction, or of acquittal, or
for enhancement of sentence. The power which the appellate court possess is of alteration or
reversal of the order of the lower court.[12] According to Section 386(e) of the Code, the
appellate Court may make any amendment or any consequential or incidental order that may
be just or proper.
CONCLUSION

An appeal is a creature of statute and the power and jurisdiction of the appellate court must
be circumscribed by the words of the statute. At the same time, a court of appeal is a ‘court
of error’ and its normal function is to correct the decision appealed from if necessary, and its
jurisdiction should be co-extensive with that of the trial court. It cannot and ought not to do
something which the trial court was not competent to do.

Exceptions to the General Rule Regarding Separate Charge for Distinct Offences (Crpc,
1973, India)

The general law as to the trial of an accused person is embodied in the rule that there should
be separate charge for every distinct offence and a separate trial for every such charge.
(Section 218) The exceptions to this general rule which are provided in Sections 218 to 221
and 223, Cr.P.C. arc as under—

(i) Where the accused person, by an application in writing so desires and the Magistrate is of
opinion that such person is not likely to be prejudiced thereby, the Magistrate may try
together all or any number of the charges framed against such person. (Proviso to Section
218)

(ii) Three offences of same kind within a year may be charged together:

If any person is accused of more offences than one of the same kind committed within the
space of 12 months from the first to the last of such offence whether in respect of the same
person or not, he may be charged with, and tried at one trial for any number of them not
exceeding three. (Section 219)

(iii) Trial for more than one offence:

A person may be charged with and tried at one trial for any number of offences if in one
series of acts they are so connected together as to form the same transaction. Thus, if A
threatens B, C and D at the same time with injury to their persons with intent to cause alarm
to them.

A may be separately charged with and convicted of each of the three offences under Section
506 of the Indian Penal Code, and the separate charges may be tried at the same time. In the
same way if A has in his possession several seals knowing them to be counterfeit and
intending to sue them for the purpose of committing several forgeries punishable under
Section 466, I.PC. A may be separately charged with, and convicted of, the possession of
each seal under Section 473, I.PC. and the separate charges may be tried at the same time.
[Section 220 (1)]

(iv) When a person charged with one or more offences of criminal breach of trust or
dishonest misappropriation of property, is accused of committing for the purpose of
facilitating or concealing the commission of that offence or
those offences, one or more offences of falsification of accounts, he may be charged with,
and tried at one trial for every such offence. [Section 220(2)]

(v) Offence falling within two definitions:

If the acts alleged constitute an offence failing within two or more separate definitions of any
law in force for the time being by which offences are defined or punished, the person accused
of them may be charged with and tried at one trial for each of such offences. [Section 220
(3)]. To cite an illustration: A exposes her child with the knowledge that he is thereby likely
to cause its death. The child dies in consequence of such exposure. A may be separately
charged with and convicted of offences under Sections 317 and 304, I.P.C. at the trial.

(vi) Acts constituting one offence, but constituting when combined a different
offence:

If several acts of which one or more than one would by itself or themselves constitute an
offence, constitute when combined a different offence, the person accused of them may be
charged with, and tried at one trial for the offence constitute by such acts when combined,
and for any offence constituted by anyone, or more, of such acts [Section 220 (4)].

A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately
charged with and convicted of offences under Sections 323, 392 and 394, I.P.C. at the same
trial.

(vii) Where it is doubtful that offence has been committed:

If a single act or series of acts is of such a nature that it is doubtful which of several offences
the facts which can be proved will constitute, the accused may be charged with having
committed all or any of such offences, and any number of such charges may be tried at once;
or he may be charged in the alternative with having committed someone of the said offences.
(Section 221)

(viii) What persons may be charged jointly:

Section 223 discussed below provides for joinder of charges against more than one accused
person in the same trial and may be studied there

1.What is the Child Welfare Committee?

The Child Welfare Committee – CWC – is a body constituted by the State Government under
the JJ Act to discharge all the responsibilities in relation to children in need of care and
protection. It works along with the JJB.

The CWC consists of a Chairperson and four members, all of whom are appointed by the
State Government. Certain minimum qualifications are prescribed by the JJ Act for any
person to be appointed to the CWC. At least one member must be a woman, and one must be
an expert on matters relating to children.
2.What are the powers and procedure of the CWC?

CWC functions like a court and has the powers of a Metropolitan Magistrate/Judicial
Magistrate First Class. It has exclusive power to deal with children in need of care. Wide-
ranging functions and responsibilities are conferred on the CWC to carry out this mandate.

The CWC is required to work for at least 28 days each month and conduct visits to child-care
institutions count as sittings of the CWC. All members of the CWC don’t need to be present
every time, but at least three members must be present while finally disposing a case. If, there
is a difference of opinion between the members of the CWC, the majority opinion prevails.
But if there is no majority, the chairperson carries the deciding vote.

3.How does the CWC decide if the child does in fact need care and protection?

The CWC has to conduct an inquiry when a child appears or is brought before it.

The CWC may also direct a social investigation be conducted to help with the process. It
must try to finish the inquiry within 4 months. So, the concerned officers are required to
finish the social investigation within 15 days.

Special inquiries are made for children who might be orphans or are abandoned. The CWC
must try to trace the parents or guardians of the child immediately. This must be completed
within two months for children up to 2 years of age, and within four months for older
children.

4.What orders can the CWC pass?

The CWC can pass temporary orders while the inquiry is going on, along with final orders,
all geared to ensure the protection of a child’s welfare.

The temporary orders can be passed to ensure children have a safe place to stay during
pendency of inquiry. That order may continue even after the inquiry is complete if the CWC
thinks the child is without any support.

Once the CWC has come to the conclusion that the child is in need of care and protection, it
can pass a range of orders based on the social investigation report and the wishes of the child:

 It can send the child back to the parents or guardians with or without supervision.
 If the child does not have a family or if it's not in the interests of the child to send her
back to the family, the CWC can send the child to children’s home, ‘fit facility’ or
Specialized Adoption Agency.
 It can order a ‘fit person’ to take care of the child.
 It can send the child to a foster family.
 It can place the child under sponsored care. In certain circumstances (for example,
when the mother is a widow), the State Government can implement programmes to
help such families.
 It can pass specific orders requiring the people or institutions taking care of the
children to address medical and psychological needs.
In case of children who are abandoned or orphaned or surrendered, the CWC also has powers
to declare such children legally free for adoption . This decision must be taken by at least
three members of the CWC

Observation Home & Special Homes

Observation Homes are meant for the temporary reception of any juvenile in conflict with
law during the pendency of any inquiry against him / her.Only children in conflict with
law brought under the purview of the Indian Penal Code and other legislations are
produced before the Juvenile Justice Board constitued as per the section 4 of the Juvenile
Justice (Care and Protection of Children) Act, 2000 and Amendemnt Act 2006. The
apprehended children are normally detained under probahation up to 4 months in these
Observation Homes.

16 Observation Homes have been sanctioned and are functioning. 12 Observation Homes
have own Building. At the end of March 2013, 62 boys were in these Observation Homes.

Special Homes:

Children who are convicted under section 15 of the Juvenile Justice (Care and Protection of
Children) Act, 2000 and Amendment Act, 2006, are admitted to Special Homes for long term
rehabilitation. Four Special Homes are set up, two for boys one each attached to Observation
Home, Bangalore Urban District and Belgaum and two for Girls, one each attached to
Observation Home Davanagere and Bangalore Rural.

‘ECHO’ a voluntary organization has been recognized by the Government as Fit Institution to
run Special Home in Bangalore Urban District. At the end of March 2013, 9 Children were
there in the Special Home.