QUESTION PAPERS – CrPC

JUNE 2015

1. Explain the powers and jurisdiction of different criminal courts under the Code of
Criminal Procedure.
2. Explain the powers of Appellate court and the procedure for hearing appeals.
3. “No person shall neglect or refuse to maintain his wife, children and parents”. Discuss.
4. State the provision of the Criminal Procedure Code relating to limitation for taking
cognizance of offences and explain nature and scope of inherent powers.
5. What are the competent Authorities and Institutions for Juveniles under the Juvenile
Justice (care and protection) Act ?
6. What is the procedure for compelling the appearance of any person before the criminal
court ?
7. What is bail? When bail may be granted and when bail may not be granted in non-
bailable offences? Discuss.
8. Write short note on any two of the following :
● Joinder of charges
● First Information Report
● Irregular Proceedings
9. Solve any two of the following problems :
● A Telephonic message was received by an officer-in-charge of a police station
reporting the commission of dacoity and requesting for help. The police officer
immediately left the police station and rushed to the spot where he recorded detailed
statement of the complainant about the occurrence Will the statement be treated as
first information report ? Decide.
● M is travelling from Mumbai to Bengaluru by train. During the night, his suitcase is
stolen. The theft is discovered at Belagavi. B is caught with the stolen suitcase at
Hubballi. Where can ‘B’ be tried for theft ? Decide.
● An accused is arrested in a bailable offence and he is released on bail. During trial, he
absconds and non-bailable warrant is issued against him. The police arrests him and
produces him before the court. The defence counsel pleads for his release on bail
under section 436(1), CrPC, which provides that a person accused of a bailable
offence shall be released on bail. Whether court can release him on bail or not.
Decide.

DECEMBER 2015
 1. Discuss the constitution and powers of criminal courts.
2. Discuss the procedure to be followed by Criminal Courts in compelling appearance of a
person.
3. Discuss the provisions of Cr.P.C. relating to security for keeping peace and good
behavior.
4. Explain the powers of Appellate Court and the procedure for hearing appeals.
5. Discuss the formation and powers of Juvenile Justice Board and its efficacy.
6. Explain the provisions regarding suspension, remission and commutation of sentence
under criminal procedure code.
7. What is Anticipatory bail ? When Anticipatory bail may be granted and when
Anticipatory bail may not be granted in non-bailable offences ? Discuss.
8. Write short notes on any two of the following:
● Joinder of Charges
● Search Warrant
● Procedure in case offender fails to observe the conditions of bond.
9. Solve any two of the following:
● ‘A’ is carrying on the licenced trade of selling liquor , adjacent to Hubballi Bus
Stand. A’s servants openly soliciting public to consume liquor in a manner
causing discomfort to the public. The noise caused by selling liquor caused
discomfort to the people living in the locality and pedestrians. Executive
magistrate on receiving the information posses an order under S. 133 of Cr.Pc.
restraining ‘A’ from selling the liquor. ‘A’ challenges order. Advice.

● ‘A’ is an high ranking Police Officer outraged the modesty of an I.A.S. Lady
Officer ‘L’. A complaint was filed against ‘A’ under Sections 341, 342, 353, 354
and 509 of I.P.C. The police investigated the matter and submitted a report under
Section 173 of Cr.Pc. recommending discharge of the accused. Consequently
magistrate discharged an accused without hearing the complainant and without
quoting any reasons. ‘L’ woman I.A.S. officer wants to challenge the order.
Advice.

● A and B are jointly committed dacoity at Maharashtra and Karnataka in a span of

one year. They were arrested in Mumbai. Can they be tried jointly for the both
offences in the Mumbai Court ? Decide.

JUNE 2016
 1. What do you mean by arrest? Who can arrest? Explain rights of the arrested person.
2. Explain the procedure of trial before the court of sessions.
3. Discuss the provisions CrPC relating to security for keeping peace and good behavior.
4. Explain the procedure regarding the granting of bail in cases of bailable and non bailable
offences.
5. Explain the provisions regarding the transfer of criminal cases as provided under CrPC.
6. Explain the types of appeals in criminal cases.
7. Explain the schemes available for rehabilitation and social integration of children under
the Juvenile Justice (care and protection of children) Act, 2000.
8. Write short notes on any two of the following:
● Judgment
● Maintenance of wife
● Probation Officer
9. Solve any two of the following problems:
● ‘A’ a Tamil speaking accused is tried at Dharwad court. All witnesses deposed in
Kannada. ‘A’ wants the same to be interpreted to him in Tamil. The court rejects
his prayer. Decide.
● A police officer recorder information regarding a cognizable offence in his police
station diary on the basis of a phone call. Can it be regarded as an FIR?
● ‘X’ a police officer who is making investigation of a case has come to know that a
woman residing within limits of his police station is acquainted with facts of the
case. Can he require her to appear in the police station to give information?

DECEMBER 2016

1. Explain the procedure to be followed for the trial of warrant cases by magistrates.
2. Discuss the procedure to be followed by criminal courts in compelling the appearance of
persons.
3. “Separate charge is the rule and joinder of charge is the exception”. Comment.
4. What is FIR? Explain the procedure in recording FIR with its evidentiary value?
5. Explain the provisions of CrPC relating to reference and revision.
6. What is complaint? Explain the procedure to be followed by magistrate on receiving
complaints.
 7. Discuss the provisions of Juvenile justice (care and protection of children)Act, 2000 in
respect of the establishment and maintenance of observation home and special home.
8. Write short notes on any two of the following:
● Compoundable Offences
● Anticipatory Bail
● Admonition
9. Solve any two of the following problems:
● Satish and Shankar, accused in a non-bailable offence, are in judicial custody for
more than 3 months and the police have not filed a charge sheet against them.
Now they want to seek bail as of right. Will they succeed?
● ‘A’ is tried for causing grievous hurt to ‘B’ and convicted. ‘B’ afterwards dies.
Decide the consequences of the death of ‘B’ under CrPC.
● A court takes cognizance of an offence of murder three years after the date of the
alleged murder. Accused pleads that this is barred by limitation. Decide.

JUNE 2017
1. Examine the procedure of recording First Information Report. Discuss the evidential
value of FIR and the effect of delay in lodging the FIR.
2. Explain the procedure regarding the granting of bail in cases of bailable and non bailable
offences.
3. Discuss the provisions regarding maintenance of wife and children under CrPC.
4. What is charge? State the consequences of alteration of charge.
5. Discuss the powers of the court to release offenders after admonition and on probation of
good conduct.
6. What is arrest? State the circumstances under which a person can be arrested without
warrant.
7. What is taking cognizance of offence? Whether it is obligatory? Discuss the limitations
of the powers of the court to take cognizance of an offence.
8. Write short note any two of the following:
● Irregular proceedings
● Summary trials
● Constitution and powers of child welfare committee

DECEMBER 2017
 1. Explain the circumstances under which a police officer may arrest a person without
warrant and state the circumstances in which a private person can arrest.
2. Explain investigation, inquiry, trial and inquest.
3. Define the term ‘charge’. “For every distinct offence there is a separate charge and
separate trial”. Discuss.
4. Explain the process to compel the production of things before the criminal courts under
CrPC.
5. Who are probation officers? Explain the duties of probation officers under the probation
of offenders act.
6. Discuss briefly the release of offenders on probation or due admonition.
7. Explain the law relating to maintenance of wives, children and parents.
8. Write a short note on any two of the following:
● Juvenile Welfare Board
● Summary Trial
● First Information Report
9. Solve any two of the following problems:
● ‘A’ misappropriates the money from a company in Bangalore and runs away. He
police gets the information that he is in Sri Lanka. The executive manager issues
warrant to arrest him under sec 72(1) of CrPC. Whether this warrant can be
executed? Give reasons.
● A magistrate directs ‘B’ to execute a bond for maintaining good behavior for a
period of two years. Discuss the validity of the order.
● ‘Son’ dispossesses the ‘Father’ from the ancestral house where both the father and
son where co-owners and in respect of which partition is yet to take place. Father
lodges a complaint against the son. Whether the magistrate has the jurisdiction to
take the cognizance in the matter? Decide.

June/July 2018

1. Explain first information report and what amounts to first information and when it cannot
? State its significance.
2. Explain the provisions relating to trial before magistrate in a non bailable offences.
3. Explain the term bail and state when bail may be granted in non-bailable offences ?
4. State and explain the provisions for keeping peace and to enforce security for good
behaviour from suspected persons and habitual offenders.
5. Discuss the powers of the court to release offenders on probation of good conduct.
 6. When police can arrest a person without warrant ? State the circumstances in which a
private person can arrest and the procedure to be followed by him after such arrest.
7. “For every distinct offence there is a separate charge and tried separately”. State the
exception if any.
8. Write a short note on any two of the following :

▪ Appeals in cases of acquittals.

▪ Compounding of offences.
▪ Investigation.

9. Solve any two of the following problems :

▪ More than two years ago ‘A’ was sentenced to death but the sentence has not been
executed so far. ‘A’ moves to the court that his death sentence be commuted to
imprisonment for life as there was under delay in the execution of death sentence.
Decide.
▪ ‘A’ commits an offence in ‘Agra’ but makes a confession before the Judicial
magistrate at ‘Lucknow’, who has no power to try case, but he did not sign the
confessional statement recorded by the magistrate. Is confession is valid ? Decide.
▪ ‘A’ is an accused was charged under Section S. 19(f) of the Indian Arms Act for
possessing a revolver without a licence and was acquitted as the prosecution could
not prove that he was in possession of the revolver. In a subsequent trial of the
accused on the charge of Murder. Whether can prosecution be permitted to prove
possession of revolver and murder case against ‘A’ ? Decide.

December 2018

1. Explain the provisions relating to trial before the sessions court.

2. Discuss the procedures to be followed by criminal courts in compelling the appearance of
persons.
3. Explain the provisions relating to appeal, reference and revision.
4. What is complaint ? Explain the procedure to be followed by magistrate on receiving
complaint.
5. Discuss the provisions of Cr.P.C. relating to security for keeping peace and good
behaviour.
6. Explain the schemes available for rehabilitation and social re-integration of children
under Juvenile Justice (Care and Protection of Children) Act, 2000.
7. Discuss the powers of the court to release offender on probation of good conduct.
8. Write short note on any two of the following :

▪ Anticipatory bail
▪ Habitual offender
▪ Investigation.

9. Solve any two of the following :

 ▪ ‘A’ dishonestly uses a forged document as genuine evidence, in order to convict ‘B’ a
public servant, of an offence u/s-167 of IPC. Two offences were included in one
charge and were tried together in single trial by the magistrate and was convicted.
Decide the validity of the order.
▪ Without the order of the higher authorities, the officer of the armed force fires on the
members of unlawful assembly and caused the death of ‘D’. Now the dependent of
the decreased wants to claim compensation. Advice him.
▪ A police officer has recorded information regarding a cognisable offences in his
police station diary on the basis of a phone call. Can it be regarded as FIR ?

JUNE 2019
1. Explain constitution and powers of criminal court.
2. What are the processes to compel a person to appear before the court?
3. Explain the provisions relating to Security for keeping the peace and good behavior.
4. Explain the powers of a police officer to investigate the offence under the criminal
procedure code.
5. Define complaint and what are the procedure to be followed when magistrate has
received the complaint?
6. Explain the procedure before the court of Session
7. Explain the power of court to release the offender on probation of good conduct.
8. Write short notes on any two of the following :
● Summary trial
● Charge
● Juvenile Justice Board
9. Solve any two of the following problems :
● ‘A’ a Hindu married ‘B’ without divorcing his first wife ‘C’. ‘A’ has neglected
‘B’. Can ‘B’ claim maintenance from ‘A’?
● ‘A’ was tried for causing grievous hurt and convicted. Later on injured person
died. Can ‘A’ be tried again on the same facts for the offence of culpable
homicide?
● A magistrate convicts an accused person after complying with all the procedure
laid down under the criminal procedure code but without hearing the accused on
the sentence. Decide the legality of order of conviction.
DECEMBER 2019
1. Discuss the constitution and powers of criminal courts.
2. Explain the provisions relating to proclamation and attachment of property.
3. Discuss the powers of a magistrate in relation to removal of public nuisance.
4. Explain the procedure to be followed by a police officer when investigation could not be
completed within 24 hours.
5. State the procedure to be followed for trail of warrant case.
6. Explain the provisions of the Cr. P. C. relating to limitation for taking cognizance of
offences.
7. Narrate the schemes available for rehabilitation and social reintegration of children under
Juvenile Justice (Care and Protection of Children) Act 2000.
8. Write short notes on any two of the following :
● Breach of Bond
● Irregular Proceedings
● First Information Report
9. Solve any two of the following:
● ‘A’ is accused of a theft on one occasion and of causing grievous hurt on another
occasion. Two offences were included in one charge and were tried together in
single trial by the magistrate and ‘A’ was convicted. Decide the validity of the
order.
● ‘C’ was wounded in Mysore when he was attacked by ‘D’. Later ‘C’ dies of those
wounds in Bangalore. Can this offence be tried in Bangalore? Give reasons.
● ‘P’ is charged before the court of session and convicted of the culpable homicide
of T. Can ‘P’ afterwards be tried on the same facts for the murder of ‘T’? Give
reasons.

BAIL SEC 436-450

Introduction:

Bail according to Concise Oxford dictionary is a security for the appearance of a prisoner, on furnishing or
giving such security the accused is released on bail, pending trial. Simply stated a person will be released on
accepting his personal bond or with or without sureties by the police or concerned court. When a person is
granted bail, he is deemed to be under the custody of the court/ police. Bail is not a guarantee of complete
freedom. Every accused person must obey the conditions of bail. Every accused person is presumed to be an
innocent until his guilt is proved. Therefore, any pre-trial detention must be legal, if it is based on a false case it
amounts to violation of Article 21 of the COI. Article 3 of the Universal declaration of human rights states
“everyone has the right to life & liberty and security of person”. Article 9 of the Universal declaration of
human rights provides that no one shall be subjected to arbitrary arrest and detention. Article 22 of the COI
provides protection against arrest and detention. Therefore, bail is an instrument of security for the appearance
of a prisoner on furnishing personal bond or some other surety for his appearance during trial.

Landmark Judgement on bail: STATE OF RAJASTHAN VS. BALACHAND AIR 1977- Hon’ble justice VR
Krishna iyer declared “the grant of bail is a rule and a refusal is an exception”. This judgement alone set the ball
rolling in liberalizing the concept of bail in Indian Jurisprudence. This judgement has influenced thousands of
cases throughout the country and bought relief to many under trial prisoners who have remained in jail for
longer periods. Hon’ble Justice Krishna Iyer said that the citizens of India include a butcher, a baker, a candle
stick maker, a bonded laborer and a pavement dweller and in this regard 3 questions are raised:

1. Can a person charged with a bailable offence be released on bail on his own bond without sureties?

2. In-case the bail is granted with sureties, what should be the criteria for quantifying the amount of bail?

3. Can a surety be rejected simply because he or his estate is situated in a different district or state?

Held: It was ruled that while passing orders on bail application, what is required to be seen is, courts should be
satisfied about a prima facie case, a detailed examination of the evidence and elaborate documentation of the
merits is not necessary. Therefore, the basic principle that normal rule is bail, not jail.

A landmark judgement reported in Gudikanti Narasimhulu Vs. Public prosecutor High Court of Andhra Pradesh
1978 SC429. The judgement is mainly on “bail or jail?”. Offences Committed By The Accused Person Fall
Under 2 Categories:

a) Bailable offences

b) Non-Bailable offences

Sec 436 deals with bailable offences and Sec 437-deals with non bailable offences. Under Sec 436 if the
application is filed seeking bail in respect of a bailable offence, the bail is a matter of right and granting of bail
is automatic. When a person is not accused of a non bailable offence and is accused of bailable offence and
detained by a police officer, the police officer or court can release such person even without sureties by
obtaining personal bond. If such person has failed to comply with the condition of bail as regards to the time
& place of attendance the court may refuse or cancel bail. While ordering the amount of bail bond Sec 440
(1) states that amount of bail bond should not be excessive. There may be an indigent accused person also
arrested for committing bailable offences. Such an indigent person is entitled for free legal aid as per the
judgement in KATHARI VS. STATE OF BIHAR (1981 Vol 1 SCC 627). Therefore, under Sec 436 the power
of the court in imposing amount of the bail bond is regulated under Sec 440 (1).

Sec 437 deals with grant of bail in case of non bailable offences - The power of the court under Sec 437 of
CrPC is a discretionary power to grant or refuse bail. A person shall not be released on bail if he has been guilty
of an offence punishable with death or imprisonment for life. However, courts must verify the role played by
the accused in committing the offence. The discretion to be exercised by the court under Sec 437 must be
guided by law. The discretion means it has to be exercised based on sound judicial principles and discretion has
to be exercised legally but not arbitrarily. Therefore, a judge/court granting or refusing bail in case of non
bailable offences is required to record reasons as per the judgement in the matter of MASROOR VS. STATE
OF UP

The court while exercising its discretion under Sec 437 must consider the following factors:

 Whether the offence alleged is punishable with death or imprisonment for life.

 The criminal antecedents of the accused.

 Enormity of the charge.

 Nature of accusation.

 Nature & gravity of the offence.

 Position and status of the accused in the society.

 Danger of witnesses being tampered with.

 Chances of or likelihood of accused being absconded.

 Whether he is a habitual offender.

 His health, age & sex.

 Whether earlier application was rejected.

The court may impose strict conditions while granting bail to ensure his presence during investigation and also
during trial and also to ensure that he shall not commit any other offence. And the applicant shall not directly or
indirectly make any inducement or threat or promise on the persons acquainted with the facts of the case.
However, it is stated that the conditions imposed by the court must not be unreasonable.
Power under Sec 437 is discretionary as mentioned in NARASIMHALU VS. PUBLIC PROSECUTOR.

 Under Sec 436 Bail is a matter of right.

 Under Sec 437 bail is a discretion of the court as it is in respect of non bailable offences.

 Discretion means guided by law and should be based on sound judicial principles and should not be arbitrary
exercise of jurisdiction.

How Long Police Can Keep An Arrested Person In Custody?

As per Sec 57 of CrPC, police cannot keep any person arrested for any offence for more than 24 hours. Within
24 hours the police is legally bound to produce the arrested person before the jurisdictional magistrate under
whose jurisdiction the alleged offence has been committed. In case the police fails to produce him within the
prescribed period of 24 hours, the detention amounts to an illegal detention and remedy is provided under
Article 226 of the COI in a Writ of Habeas Corpus before the High Court. Article 22 of the COI and Sec 57 of
Crpc, mandate every police officer not to keep any arrested person in his/ their custody for more than 24 hours.
In STATE OF UP VS. RAM AVATAR CHOWDHARY, ALLAHABAD it has been stated that Sec 57 does
not empower a police officer to keep a person in custody for a minute longer than necessary for the purpose of
investigation and it does not give him an absolute right to keep a person in custody till 24 hours.

Grant of bail is a rule. Explain with decided case laws. Steps taken by SC in liberalization of bail system.

The main purpose or principal purpose of bail is to ensure that an accused person will return for trial if he’s
released after arrest. At the pre-trial stage, every accused is presumed to be innocent until the matter I finally
disposed off by a competent court. Simply because a person has been charged with an alleged offence, he does
not lose his Right to protection of life and personal liberty. Till the final disposal of the case, he has the same
right as enjoyed by any other citizen under the COI. That is why various High Courts and also the Supreme
Court of India have held in their judgements that “grant of bail is a rule and refusal is an exception”. It is further
held that the consequences of long detention of the pre-trial accused persons were very grave. In the case of
STATE OF RAJASTHAN VS BALCHAND - AIR 1977 SC247, the Supreme Court has observed that
“normal rule is bail and not jail”. Which ratio has been reiterated in the case of GUDIKANTI NARASIMHULU
VS. STATE OF AP AIR 1978. The Hon’ble Supreme Court liberalized the system of bail. Taking into
consideration the conservative approach by the subordinate judiciary in granting bail, the Supreme Court in
some of its judgements made a rigorous analysis and laid down guidelines while considering the grant of bail to
the accused persons belonging to all walks of life.

In MOTIRAM VS STATE OF MADHYA PRADESH, 1979 the Supreme Court liberalized the age-old
concept of bail, so as to make the bail provisions more responsive to the needy & the poor. In this case the
magistrate directed Moti ram, a poor mason to furnish surety for Rs.10,000. To add insult to injury the
magistrate demanded sureties from his own district. Reacting on the arbitrary approach of the magistrate the
Supreme Court has observed that it shocks ones conscience to ask a mason like the petitioner to furnish surety
for Rs.10,000, SC directed the release of Moti ram on his personal bond of Rs.1000.
In a landmark judgement of the Supreme Court reported in AIR 1979 SC1360, it is held that the accused
persons who have deep roots in the society and are not likely to abscond, should invariably be released on bail
without insisting any sureties. (HUSSAINARA KHATOON BIHAR CASE). A Malayali or a Kannadiga or a
Tamilian or a Telugu person maybe arrested in other states. How can the magistrate order for sureties from their
own states? The concept of offering surety has also been liberalized in Moti rams case.

Who Can Stand As A Surety For How Much Amount?

Any person who has the capacity, control and competence to produce the accused in case of non-appearance or
to pay the amount of surety, can be accepted by the court. The accused may be released on his personal bond or
with 3rd party sureties. Sometimes party may also file an application for furnishing cash surety under Section
445 of CRPC, on deposit of cash surety as per the conditions of bail, the accused will be released on bail. In
respect of third-party sureties, under Section 441A declaration has to be furnished by the surety furnishing
particulars with regard to number of persons to whom he stood as surety. If the personal bond as directed by the
court is not furnished by the accused or a surety is not furnished as per the condition in the bail, it amounts to
breach of condition imposed while granting bail. In such circumstances the accused will not be released from
the police or judicial custody.

Parole

Bail is generally granted at the pre-trial stage after arrest but parole is granted after passing of the sentence
while undergoing imprisonment in jail. Parole will be granted by State Government for a short period of 2-3
weeks and is granted on a promise or undertaking giving by the concerned prisoner that will not escape after
being released from jail. To release on parole, it is the discretionary power pf the state and the state must act
fairly, reasonably and uniformly.

CHARANJIT LAL VS. STATE OF DELHI

KRISHNALAL VS. STATE OF DELHI

Parole will be admissible only for sufficient causes or reasons. To see any sick or dying member in the family
or to attend a marriage of a member of the family or for any strong other reason. The period spent on parole will
not count as a part of the sentence.

FURLOUGH can be granted only in those cases where a prisoner has been sentenced to long imprisonment,
i.e. 5 years or more. But in case of parole the same will be granted irrespective of duration of imprisonment.
Furlough will be granted to a prisoner who has actually undergone 3 years of imprisonment excluding
remission. The period of furlough at the first instance may be for 3 weeks at the first instance and subsequently
of 2 weeks. To claim furlough the prisoners, conduct in jail assumes importance. The report of the officer
concerned before granting furlough, must state that his conduct in jail has been good, he has earned 3 good
conducts of remissions and further he continues to earn good remissions and maintain good conduct. He is not a
habitual offender. He is not convicted for offences like robbery with violence, dacoity etc. he is not such a
person whose presence in considered as highly dangerous to the public peace & tranquility. Based on the
report furlough maybe granted by the state government. The government may also ask the opinion of the judge
who had passed the judgment of conviction of such a prisoner. If the opinion is negative against the prisoner the
said opinion prevails over the decision of the state government in granting furlough.

Anticipatory bail- SEC 438

The necessity of granting anticipatory bail arises mainly because sometimes influential persons try to implicate
their rivals in false cases. Nowadays this tendency is increasing. In the old CrPC 1898 there was no provision
for anticipatory bail. The law commission of India in its 41 st report introduced a proposal for grant of
Anticipatory Bail in case of non bailable offences. The recommendation made by the law commission in its 41
st report has been considered in its 48 th report. The law commission by passing its bill in the 48 th report
introduced a provision for anticipatory bail.

BALCHAND JAIN VS STATE OF MADHYA PRADESH AIR 1977 SC(366), the apex court has discussed
the utility & significance of Sec 438 of CrPC and new provision has now been inserted in CrPC 1973.

As per the provision on allegation of commission of a non-bailable offence, by a person, a provision is made to
release a person on bail even before the person is arrested which is known as pre-arrest bail. The distinction
between an ordinary bail and an anticipatory bail is that the former being after the arrest release from custody of
police or court, the latter being in anticipation of arrest. Anticipatory bail is effective at the very moment of
arrest.

Following are guidelines for grant of anticipatory bail.

1. Where any person has reason to believe that he may be arrested on an accusation of having committed a non
bailable offence, he may apply for pre- arrest bail before the Sessions court or High court for a direction that the
court may if it thinks fit, direct the applicant to be released on bail in the event of his arrest. Therefore, to seek
anticipatory bail 2 important conditions to be satisfied are:

 Should be a non bailable offence

 There should be a strong and specific reason to believe that the applicant may be arrested on the ground of
having committed the non bailable offence. The applicant must also satisfy that his presence is not required for
any custodial interrogation by the police and the applicant must satisfy the court that there is no likelihood of
absconding and there is no chance of misusing his liberty and also there is no chance of causing inducement or
threat to any person acquainted with the facts of the incident.

In the application filed under Sec 438 a specific averment has to be made that there is a specific reason to
believe that the applicant may be arrested for non bailable offence.

2. Before granting anticipatory bail, it is necessary to issue notice to the prosecution. Court has to hear the
prosecution as well as the applicant before passing any orders. Operation of the bail order is not limited to a
particular period. Filing of FIR is also not a condition to seek anticipatory bail. So long as the applicant is not
arrested, he can invoke sec 438 of CrPC. Both Session court and High court have jurisdiction to grant
Anticipatory Bail. It is for the applicant to approach either the Session court or the High court.

Basic principles of Anticipatory bail:

 The offence alleged must be a non bailable offence

 Custodial interrogation of the applicant is not necessary. If necessary the applicant shall make himself
available for interrogation.

 Should be no likelihood of accused absconding.

 There should be no likelihood of accused misusing his liberty.

To find out the question of absconding the court has to consider and verify if the accused has deep links or roots
in the community. While testing this fact, following factors may be kept in mind:

1. Length of his residence in the community.

2. His employment status, history & financial condition.

3. His family ties & relationships.

4. His reputation and character.

5. His prior criminal record or involvement in any other cases.

6. The nature of offence charged & the apparent probability of conviction.

7. Identity of the responsible members of the community who are closely related/ connected with him.

8. Any other factor indicating his ties to the community.

An anticipatory bail cannot be withheld by any court as a matter of punishment (BHAGIRATH SINGH
JUDEJA VS. STATE OF GUJARAT).

It has been often noticed that due to political rivalries false cases are made against each other. After emergency
many congress leaders including Gani Gail Singh, Bansi lal and others moved to the courts for anticipatory bail.
In the matter of GURBAKSH SINGH SIBBA VS STATE OF PUNJAB AIR1980 SC 1632, the Apex court
has given a detailed judgement and also laid down certain guiding principles while dealing with an application
for anticipatory bail. Before granting anticipatory bail notice to the prosecution is a mandate. Operation of the
order under Sec 438 should not be limited to a particular period of time.

Filing of FIR is not a condition precedent to invoke Sec 438 of Crpc. Even after filing of the FIR, after filing of
charge sheet, even after the cognizance of the offence is taken or process is issued by the court, so long as the
applicant is not arrested, invoking Sec 438 is permissible. (1995 Criminal law journal 3317, 1986 Criminal Law
journal 1303, 1954 SC 724; 1977 SC 2236; 1999 SC 1480). However, the grant of anticipatory bail does not
take away the right of the police to investigate. Applicant shall make himself available for interrogation by a
police officer.

In the case of PRITAM SINGH VS. STATE OF PUNJAB, 1981 Criminal law Journal NOC (notes of cases)
159. The offence alleged against the petitioner under Sec 406, 500 & 501 of IPC and the case had been
registered at Ludhiana against the petitioner who was a resident of Delhi. Now in this case a question arises as
to which court has jurisdiction to grant anticipatory bail. The answer is petitioner can be tried at both the places,
Ludhiana as well as Delhi.

1991 (1 Crimes Vol 365) V Shekhar, police inspector Vs. State of Karnataka.

Jagdish vs State of Rajasthan 1992 (1 Crimes 1136).

SEC 439 - Sec 439 deals with powers of High Court or Session Court to grant bail. Any person accused of
an offence and in custody be released on bail under Sec 439 of CrPC. If the offence is of the nature specified in
Sec 437 (3) i.e. offence against state in Chapter 6, Offences affecting human body Chapter 16 and Offences
against property in Chapter 17, the High Court or Session Court may impose any conditions while granting bail
which is also necessary to ensure or secure the presence of the accused during trial. Before granting bail under
Sec 439 the High Court or Session Court has to direct/issue notice to the prosecution and granting or refusing of
bail must be supported by reasons. If there are no reasons to grant or refuse bail it amounts to an illegal order.

Power of H.C or Session Court to modify bail- Under Sec 439 (1)(b) - Session Court or High Court may
modify or set aside any condition imposed by a magistrate while granting bail.

 Session and HC can grant bail

 438 concurrent jurisdictions are conferred on the courts to grant bail

 439 power of session and high court to grant bail

 As contemplated under Sec 167(2) in respect of serious offences where punishment is death, imprisonment
for life charge sheet must be filed under Sec 167(2) within 90 days.

 In respect of other offences charge sheet must be filed within 60 days.

 If this condition has not been fulfilled accused will get the opportunity to seek bail.

Grounds to be kept in mind while granting or refusing bail in non-bailable offences. In STATE VS
JASPAL SINGH 1984 3SCC 555 Supreme Court has laid down the following guidelines:

1. Nature and seriousness of the offence;

2. Character of evidence;

3. Circumstances which are peculiar to the accused;

4. Reasonable apprehension of witness being tampered with;

5. Reasonable possibility of the presence of the accused not being secured at the trial;

6. The larger interest of public or state;

7. The other considerations which the judge may weigh from case to case.

Cancellation of Bail

Under Sec 439(2) High Court may commit a person who has been released on bail under Chapter 33 (Bail
granted under Sec 436, 437, 438 and 439) by any court including Session Court, to custody. The High Court
may cancel the bail and commit the person to custody. Likewise, the Supreme Court may also cancel the bail
granted by a High Court based on strong reasons irrespective of the fact that the offence is bailable or non-
bailable.

In the case of PUBLIC PROSECUTOR VS GEORGE WILLIAM, 1951 Madras Pg1942 the Madras High
Court, has laid down the following conditions for cancellation of bail. The same rule has been followed in 1978
1 SCC 118 in the matter of GURUCHARAN SINGH VS STATE OF DELHI ADMINISTRATION.

Under the following cases bail may be cancelled:

1. During the operation of the bail if the person commits the very same offence the bail gets cancelled.

2. During the bail he hampers the investigation.

3. During the bail if he tampers with the evidence or the witnesses of the prosecution.

4. If he runs away to a foreign country or goes beyond the control of his sureties.

5. If he commits acts of violence in revenge against the police and the prosecution witnesses and against the
persons those who have booked him or trying to book him.

However, it is relevant to note that cancellation of bail under Sec 437(5) or 439(2) CrPC can be ordered only on
stronger grounds mentioned above.

 Chapter 33 deals with bails 436, 437, 438 & 439.

 There is yet another provision under which an accused can claim bail under

Chapter 12 Sec 167 of Crpc, generally termed as default bail. (as a matter of right and as per the operation of
law) 167 (2) (A1) and (A2) On default committed by prosecution to file charge sheet the accused is entitled to
default bail. From the date of order of remand by the magistrate. Besides Chapter 33 i.e. Sec 436-439, there is
yet another provision which deals with concept of bail under Sec 167 of CrPC which is generally termed as
“Default bail”. In this regard Sec 167 (2) (a) (i) and also Sec 167 (2) (a) (ii) assumes importance or significance.
How long the police can keep an arrested person in custody? In such cases what is the remedy.
 As per Section 57 of CRPC, police cannot keep any person arrested for any offence for more than 24 hours. 

 Within 24 hours the police are legally bound to produce the arrested person before the jurisdictional
magistrate under who’s jurisdiction the alleged offence has been committed. 

 In case the police fail to produce him within the prescribed period of 24 hours, the detention amounts to an
illegal detention and remedy is provided under Article 226 of the Constitution of India in a writ of Habeas
Corpus before the High Court. 

 Article 22 of the Constitution of India and Section 57 of CRPC, mandate every police officer not to keep any
arrested person in his custody for more than 24 hours. In STATE OF UP V RAM AVATAR CHOUDHARY,
ALLAHABAD, 1955 pg. 38, it has been held that Section 57 does not empower a police officer to keep an
arrested person in custody a minute longer than is necessary for the purpose of investigation and it does not give
him an absolute right to keep a person in custody till 24 hours.

DEFAULT BAIL

CHAPTER 33 deals with bails – (sections 436 437 438 439). Besides chapter 33, there is another provision
which deals with bail it is 167 CrPC– default bail. On the ground that the prosecution did not file charge sheet,
the accused is entitled to bail. “no person shall be deprived of his life or personal liberty except according to the
procedure established by law”, Chapter 33 CrPC deals with various provisions as to bails and bonds, it lays
down as to when bail is the right of the accused, when bail is the discretion of the court, in what circumstances
the said discretion can be exercised, what are the terms and conditions which are required tobe observed or
fulfilled and if the conditions of bail order are not fulfilled, what powers are vested in the court to cancel the
bail.

As contemplated under Section 167 (2) clause (a)(1), the charge sheet has to be filed by the prosecution within
90 days where the investigation relates to an offence punishable with death, imprisonment for life or
imprisonment for more than 10 years.

In respect of the investigation relation to any other offence, the charge sheet is to be filed within 60 days as
contemplated under sec 167 2 clause (a) (2), on the expiry of above 90 or 60 days based on the facts and
circumstances of the offence alleged, the accused person shall be released on bail if he is prepared to furnish
sureties. Every person released on bail under this sub-section shall be so released under the provisions of
chapter 33 therefore on failure of the prosecution to file the charge sheet within the time specified, as per sec
167 (2 )(a) (i) or (a)(ii) would be an order under section 437(1) and (2)or 439(1) CrPC. On default of section
167 (2 )(a) (i) or (a)(ii), the accused will get the right of bail immediately on expiry of 90 days or 60 days. The
accused will get bail by operation of law, even if the charge sheet is filed subsequently after granting bail, the
bail never gets cancelled. Sec 167 does not empower cancellation. The computation the period of 90 days or 60
days has to be computed from the date of order of remand passed by the magistrate (judicial remand or police
remand). Computation period is not from the date of arrest by the police, it is from the date of order of remand
of magistrate. 1992 3 SCC 141 CBI NEW DELHI VS. ANUPAM J KULKARNI.
If last day, that 90 th  or 60 day is a public holiday then it is the duty of the prosecution to file the charge sheet
on 89 th  or 59 th  day as per the judgment in the matter of NARESH ALIAS NANA VS. STATE OF
MAHARASHTRA 1993 Maharashtra Law journal, pg.631. It is relevant to note that on immediate expiry of
90 days or 60 days, it is the duty of the magistrate to inform the accused that he is entitled for bail and in case of
necessity the free legal aid service shall be provided to the accused as per the law judgment in HUSSAINARA
KATHOON VS. STATE OF BIHAR AIR 1979 SC 1369.

Remand

Section 56, 57, 167 and 309 of CRPC deal with the procedure to be adopted in relation to grant of remand.  A
remand is an authorised detention or custody of a person arrested. 

The remand is of 2 types:

1. Judicial remand (Judicial custody)

2. Police remand (Police custody)

Under Sec 167 (3) if a magistrate orders detention of an accused person in the custody of the police, he has to
exercise his judicial mind and must see from the materials placed before him, whether such a course is
warranted, that means whether it’s a case for police remand. The magistrate must record reasons for entrusting
the accused to the custody of the police. The entries in the police diary is to be verified by the magistrate. He
has to pass a judicial order authorizing custody or detention. The magistrate shall bear in mind that granting a
police remand must assist the police in discovery of some evidence and to discover such evidence the custody
of the accused is necessary. Strictly speaking law does not favor detention of the accused person in police
custody, unless it is very compelling to do so. It is the duty of the magistrate to consider whether there are good
grounds/ reasonable grounds for granting remand.

The maximum period for which a magistrate can authorize the detention of the accused in police custody under
Sec 167 CrPC is 15 days. If the total period is expired the magistrate has no power to order further remand.
Even under Sec 309 (2) of CrPC if the remand is ordered it can only be a judicial remand and not the police
remand.

When the magistrate makes an order of remand under Sec 167 of CrPC he has to pass detailed order and the
order of remand also has to be in prescribed form.

Who can ask for remand?

It is only a police officer in charge of the police station or an investigating officer not below the rank of sub
inspector of police who is empowered to ask for remand under the code. A police officer cannot arrest the
accused unnecessarily and the magistrate should not authorize the detention casually and mechanically as held
in the case of ARUNESH KUMAR VS. STATE OF BIHAR.
It is also the duty of the police officer to fill up the checklist under Sec 41 (b) (d)(2). It must be furnished before
the magistrate. In the check list there must be material to show necessitating the arrest of a person. On verifying
the checklist, the magistrate before ordering the remand must apply his judicial mind.

In police remand, the accused is entitled for medical treatment, food & clothing and also if there is a
direction by the court to take the assistance of an advocate, the same facility shall be provided to the accused
during police custody. Therefore, it has to be stated that if the police officer considers that the investigation
cannot be completed within 24 hours, it is the duty of the police officer to produce the accused forthwith before
the magistrate because the detention without authority is illegal.

Sec 57 CrPC prohibits a police officer from detaining the arrested person for more than 24 hours. Exclusive of
the time necessary for journey from the place of arrest to the court of magistrate. Once an accused is produced
before the magistrate the magistrate must be prima facie satisfied with regard to the arrest of the person and
before ordering the police remand he has to ascertain and decide as to whether it is a fit case to order police
remand. The order of police remand must reflect the reasons for ordering the same and authorizing the
detention. It is relevant to note that after expiry of 15 days in police remand, it is only a judicial remand and
there cannot be any further police remand.

Bail in security proceedings: Sec 106, 107, 108, 110, 111-124

1)What is the difference between bail and anticipatory bail?

a. The legal provisions relating to bail are contained in S.436 and 437, Cr. P.C. whereas S.438 deals with
anticipatory bail.

b. The old Code had no provision for anticipatory bail and only contained provisions related to normal bail
whereas the new amended Code has provisions for both normal and anticipatory bail.

c. The judicial Magistrate or the Court are competent to grant the regular bail however  granting anticipatory
bail is done only by the High Court or Sessions Court.

d. Regular Bail is granted after arrest hence it a post arrest legal activity, whereas anticipatory bail is provided
before the actual arrest and hence it is a pre-arrest legal activity in anticipation of possibility of arrest of a
person.

2) Who may be released on Bail?

The following persons may be directed to be released on bail:

i. Any person under the age of 16.

ii. Any person above the age of 60.

iii. Any woman can be released on bail.

iv. Any sick of infirm person.

v. In cases where further inquiry is to take place.

vi. When rule of consistency needs to be followed.

vii. In cases of cross case.

Factors to be considered while granting anticipatory bail

The following factors have to be considered by the court while granting an anticipatory bail:

The accusations gravity and its nature - The antecedents of the applicant are also crucial matter. Facts such as
whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable
offence or not etc. are relevant. The applicant’s possibility of fleeing from justice. There can be possibility that
accusation has been made with the object of injuring or humiliating the applicant by having him so arrested; in
this situation either rejection the application forthwith or issuing an interim order for the grant of anticipatory
bail can be done.

Anticipatory Bail for Bailable and Non-Bailable Offence - The application for anticipatory bail can be filed
in cases of both, bailable as well as non- bailable offences usually depending upon the kind of offence in
accordance with the relevant provision of the CrP.C.  It has been stated in Section 436 that in situations when
any person, other than a person accused of a non-bailable offence has been arrested or detained without warrant
by an officer in charge of a police station, or is brought before a court, and is prepared at any time while in the
custody of such officer or at any stage of the proceeding before such Court to give bail, such a person needs to
be released on bail.

Procedure to Apply for Anticipatory Bail

The Court of Session and the High court are to be approached in order to grant anticipatory bail.  If a person is
under the apprehension that a complaint is filed against him for any of the underlying offences –

1. Criminal breach of trust (Section 406 IPC), 

2. Mischief by destroying or moving, etc., a landmark fixed by a public authority (Section 434 IPC).

3. Husband or relative of husband of a woman subjecting her to cruelty (Section 498A IPC),

4. Any other non-bailable offence.

In the above cases, a person who is going to be tried for the above offences needs to consult a criminal lawyer
who will help him in getting anticipatory bail. It is then the lawyer’s responsibility to file a vakalatnama and an
application for anticipatory bail. Subsequently, after the petition is filed, the hearing is scheduled.

Procedure of Anticipatory Bail When FIR is Filed 

In a situation where an FIR has been filed, a notice of arrest will be sent by an investigating officer. As soon as
the notice of arrest is served on the person, he shall file an application for anticipatory bail with the help of
criminal lawyer. The lawyer is then required to follow the above procedure.

Procedure of Anticipatory Bail When FIR is Not Filed

In this case, the Public Prosecutor is required to talk to the concerned police officer. Since there is no filing of
FIR it will be presumed by the public prosecutor and the court that are no available grounds for filing
anticipatory bail. In the practical working the following steps will follow:

1)The lawyer making an oral prayer for seven days pre-arrest notice in case the police formulates an intention to
arrest the accused’s family.

2) In all likelihood, the judge will grant the plea.

3) An order will be passed accordingly. This is generally called the ‘notice bail’.

4) If the bail application is rejected in the Sessions Court, one could apply to the High Court.

5) If the High Court also rejects the bail, one can apply to the Supreme Court. Cancellation of Anticipatory Bail

Under CrP.C, S.439 deals with cancellation of anticipatory bail. Though there is a specific provision in the code
for the cancellation, it is hence an implied matter that a court which has the power to grant an anticipatory bail
is also empowered to cancel bail or recall the order related to bail upon appropriate consideration of facts. It is
expected that the powers which come with anticipatory bail should not be abused in any manner as it is a special
privilege given to a person who is under reasonable apprehension of his arrest.  This inherit power to cancel
anticipatory bail can be invoked only when court opines that this is a crucial step to meet the ends of justice.
 JUVENILE JUSTICE ACT
Schemes available for rehabilitation and social integration of children under the JJ Act:

INTRODUCTION: Juvenile or Children are a conflict with law referred to children under the age of 18 years
and suspected or accused of committing a crime or be part of illegal activity. A child in conflict with law is sent
before the Juvenile Justice board, not before other courts of law. The Juvenile Justice Board consists of two
social worker members among one is women. This is to make sure the case proceedings happen in a way to
ascertain the welfare of the child. Care is taken while issuing the justice which not only contains the punishment
for the unlawful deed but to rehabilitate the child back to the society. The child in conflict with the law has the
following rights based on the Child Rights Convention, humane treatment, no corporal punishment if detained
separation from adult criminals at the correctional facility, access to legal assistance, bail and release on
recognizance, privacy, diversion, (Education, skill development, sports etc.), proportionate judgment (age
considerate Judgement), minimum possible restrictions on liberty, automatic suspension of sentence, probation
on merit, confidentiality of proceedings, right against discrimination, constitutional rights. Childcare institutions
and social welfare organisations work hand in hand with government nodal agencies to find constructive
solutions to the rehabilitation of the Juvenile. To ensure this Standard Operating Procedures (SOP) are laid
down by the Ministry of women and child development. Follow up by social workers and probation or parole
officer is done periodically to make sure the child reintegrate well into the society he/she was once barred from.

REHABILITATION: While the juveniles held accountable for their violation of the law and kept in juvenile
homes or other relevant correctional facilities for public safety, the primary aim is to rehabilitate them. The
rehabilitative process includes psychological assessment of the crime committed by the juvenile and the
environment, causing it to happen, therapeutic guidance, skill development, involving them in yoga and other
mind developing activities. Financial constraints of the government wade rehabilitation away and involvement
of social workers and non-profit organisations resulted in cost-effective multi-modal rehab programs for the
juveniles.

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

A report is submitted by the probation officer or any other officer appointed by the Government in respect of
each juvenile or the child prior to his discharge from a special home, children’s home, regarding the necessity
and nature of after-care of such juvenile or of a child, the period of such after-care, supervision thereof. (Section
44(c), the Juvenile Justice (Care and Protection of Children) Act, 2000).
SCHEMES AVAILABLE FOR REHABILITATION AND RE-INTEGRATION: The Juvenile Justice Act
provides for the rehabilitation of theto begin as soon as the child’s transfer to the care home or other
correctional facilities. The social reintegration of the child in conflict with law can be done by the following:

1. After-care care organizations - Aftercare organisations are special homes registered under the governmental
nodal agency functions for the welfare of delinquent children. The juveniles are taken care of in After Care
Organisation which is transitional homes after they leave the special homes and children’s home. Juvenile in
conflict with law and children in need of care and protection, both categories are placed in the aftercare
organizations. Aftercare organizations enable the juveniles to lead an honest and industrious life. After-Care
Organisations are set to achieve the principal objective of allowing children as well as juveniles to adapt to
society. At the after-care organizations, the children and juveniles are motivated to stay in mainstream
society from their past life in the institutional homes.

Aftercare organizations are nothing but a temporary home which is set up for a group of youths. At the
aftercare organizations, the placed youths are encouraged to learn a trade, and they also contribute towards
the running of the aftercare home. Any voluntary institution or organization designated as the after-care
organization strives to work towards preparing the children as well as juveniles to achieve self-reliance and
acquire social and life skills to integrate them fully in the community. In the aftercare program children and
juveniles are also provided access to social, legal and medical services and also with appropriate financial
support. Regular educational and vocational training opportunities are provided to children and juveniles at
the aftercare organization for helping them to become financially independent and in turn, to generate their
income.

The After Care Organisation must ensure regular follow up and support after the child or juvenile is
reintegrated in the community or society. Members of various government bodies also work together to
reintegrate the child or juvenile into the mainstream society by enabling them psychologically and
economically and also providing them with support after integration with society with constant monitoring.

At the aftercare organizations, the Juveniles are given,

1. Vocational training

2. Therapeutic training to improve psychological behaviour

3. Continuing education

4. Consensus about social values

5. Economical ability to support themselves

6. Activities for physical and mental fitness

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

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

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

● Sentenced;

● suffering from deadly diseases;

● being abroad;

● Incapacitated by other means;

4. Adoption - Adoption benefits the orphans, homeless children and destitute youngsters as well as childless
couples. Adoption makes life meaningful for lone single adults too as they gain a parent-child relationship.
Adoption empowers a powerful relationship between the child and its adopted parents even though they are
not related. Section 2(2) of the Juvenile Justice Act of 2015 states that adoption as the process through
which the adopted child is permanently separated from his/her biological parents and becomes the lawful
child of his/her adoptive parents with all the rights, privileges and responsibilities that are attached to a
biological child.

CONCLUSION: Restoration of a juvenile back to the society is very important for the reformation of the child
in conflict with the law and to make him/her into a model citizen. The government and non-governmental
organisations work together for the rehab of the juvenile. International conventions and social activists demand
child-centric activities and due diligence on the case proceedings involving juveniles. However, State
governments should allocate more funds to meet up the expenses of child welfare programs and follow up and
monitor the activities of NGOs through trained officials. More Juvenile Justice Boards should be set up for each
taluk and district and proportionately enough homes also should be established by the government.
Provisions of JJ Act in respect of establishment and maintainance of observation and special homes for
children.

OBSERVATION HOMES: Provisions for the observation home are made under section 47 of the Juvenile
Justice (care & protection of children) Act,2015. The observation homes are established by the state
government in every district or a group of districts, either by itself or through voluntary or non- governmental
organizations. The state government must register a registered institution as an observation home who is fit for
the temporary reception of the child. Registration of such an institution will be compulsory. (Rajendra Prasad
Vs. Union of India, A.I.R. 2016 N.O.C. 182 Kerala). The observation home means a home where a child who
is to have been in alleged to have been in conflict with the law, is kept temporarily during the pendency of the
inquiry.

Section 47 of the JJ Act provides Provisions relating to Observation homes:

1. The State Government shall establish and maintain in every district or a group of districts, either by itself or
through voluntary or non-governmental organisations, observation homes, which shall be registered under
section 41 of this Act, for temporary reception, care and rehabilitation of any child alleged to conflict with
the law, during the pendency of any inquiry under this Act.

2. Where the State Government believes that any registered institution other than a home established or
maintained under sub-section (1), is fit for the temporary reception of such child alleged to conflict with the
law during the pendency of any inquiry under this Act, it may register such institution as an observation
home for this Act.

3. The State Government may, by rules made under this Act, provide for the management and monitoring of
observation homes, including the standards and various types of services to be provided by them for
rehabilitation and social integration of a child alleged to conflict with the law and the circumstances under
which, and how, the registration of an observation home may be granted or withdrawn.

4. Every child alleged to conflict with the law who is not placed under the charge of parent or guardian and is
sent to an observation home shall be segregated according to the child’s age and gender, after giving due
consideration to physical and mental status of the child and degree of the offence committed.

SPECIAL HOMES: Provisions for the special homes are made under section 48 of the Act. According to it, the
special home mean such a home established by the state government either by itself or through voluntary or
non-governmental organizations in every district or a group of districts, for the rehabilitation of those children
in conflict with the law who are found to have committed an offence.

The special homes are established for the rehabilitation of that child who:

● Committed an offence, and

● Are children in conflict with the law.

Section 48 of the JJ Act provides Provisions relating to Special homes:

1. The State Government may establish and maintain either by itself or through voluntary or non-governmental
organisations, special homes, which shall be registered as such, in the manner as may be prescribed, in
every district or a group of districts, as may be required for rehabilitation of those children in conflict with
the law who are found to have committed an offence and who are placed there by an order of the Juvenile
Justice Board made under section 18.

2. The State Government may, by rules, provide for the management and monitoring of special homes,
including the standards and various types of services to be provided by them which are necessary for social
re-integration of a child, and the circumstances under which, and how, the registration of a special home
may be granted or withdrawn.

3. The rules made under sub-section (2) may also provide for the segregation and separation of children found
to conflict with the law based on age, gender, the nature of the offence committed by them and the child’s
mental and physical status.

CHILDREN HOMES: Provisions for the children homes are made under section 50 of the Act. The children
homes mean such a home established by the state government either by itself or through voluntary or non-
governmental organization in every district or a group of districts, for the placement of children in need of care
and protection for their care, treatment, education, training, development and rehabilitation. The children homes
are established for those children who require care and protection. Such homes will be registered. Registration
has been considered essential. (Rajendra Prasad versus Union of India)

Section 50 of the JJ Act provides Provisions relating to Children homes:

1. The State Government may establish and maintain, in every district or group of districts, either by itself or
through voluntary or non-governmental organisations, Children’s Homes, which shall be registered as such,
for the placement of children in need of care and protection for their care, treatment, education, training,
development and rehabilitation.

2. The State Government shall designate any Children’s Home as a home fit for children with special needs
delivering specialised services, depending on the requirement.

3. The State Government may, by rules, provide for the monitoring and management of Children’s Homes
including the standards and the nature of services to be provided by them, based on individual care plans for
each child.

PLACE OF SAFETY: Provisions for the children homes are made under section 49 of the Act. The place of
safety in a state shall be established by the state government, generally to keep such a person-

1. who is above the age of eighteen years,

2. who conflicts with the law, and is between the age of sixteen to eighteen years,

3. who has committed a heinous offence, or

 4. who is convicted?

Separate arrangement and facilities shall be provided in such place of safety for a stay of such children or
persons during the process of inquiry and children or persons convicted of committing an offence. At least one
place of safety in each state shall be established.

Formation and power of JJ Board and it’s efficiency

INTRODUCTION: The Juvenile Justice Board is an institutional body constituted under Section 4 of the JJ Act,
2015. According to the division of powers, the subject of administration of criminal justice has been included in
the State List (List II, Schedule VII) of the Indian Constitution. Therefore, one or more than one Juvenile
Justice Board(s) are established by the State Government for each district. The Board exercises its powers and
discharges functions relating to the ‘child in conflict with law’ as has been defined under Section 2(13) of this
Act.

COMPOSITION OF THE BOARD: Composition of Bench under Juvenile Justice Act, 2015

1. Metropolitan Magistrate or Judicial Magistrate First Class (Principal Magistrate herein) [not being Chief
Metropolitan Magistrate or Chief Judicial Magistrate] -Experience Required: 3 years.

2. Two social workers (one being a woman) -Experience Required: Active involvement for 7 years in health,
education or welfare activities pertaining to children; OR -A practising professional with a degree in child
psychology, psychiatry, sociology or law.

In the case of State of Himachal Pradesh vs. Happy, it was held that judgment passed by a single member of the
Juvenile Justice Board is void ab initio.

ELIGIBILITY CRITIRIA FOR SELECTION AS A MEMBER OF JJ BOARD: Under Section 4(4) of the Act,
the eligibility criteria for selection as a Board member has been listed down. It has been defined in a negative
manner.

The person will not be eligible if they:

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

● Were convicted of an offence which involved the ground of moral turpitude + such conviction has not
been reversed or has not been granted pardon;

● Were removed or dismissed from the services of: Either the Central Government or the State
Government or An undertaking/ corporation owned or controlled by the Central Government or the State
Government

● Have ever indulged in the acts of: Child abuse, Child labour or Any other violation of human rights or
immoral act
TERMINATION/DISQUALIFICATION OF MEMBERS OF THE JJ BOARD: Under Section 4(7) of the JJ
Act, 2015 – the appointment of any Board member, except the Principal Magistrate, may be terminated post an
inquiry by the State Government if they:

● were found guilty of misuse of power bestowed upon them under this Act; or

● failed to attend the Board proceedings consecutively for three months without valid reasons; or

● failed in attending less than three-fourths of the sittings in a year; or

● Have become ineligible under sub-section 4 during their tenure as a member.

POWERS OF THE JJ BOARD: The Board constituted for any district shall have the power to deal exclusively
with the proceedings under the Act:

● In the area of jurisdiction of the Board,

● In matters relating to children in conflict with the law.

These powers may be exercised by the High Court or the Children’s Court, when proceedings under Section 19
come before them or in appeal, revision or otherwise. It was held in the case of Hasham Abbas Sayyad vs.
Usman Abbas Sayyad (2007) 2 SCC 355 that an order passed by a magistrate beyond his jurisdiction would be
considered void ab initio.

When an alleged child in conflict with law is produced before the Board, it shall exercise its power to hold an
inquiry according to the provisions of this Act and may pass orders as it deems fit under Section 17 and 18 of
the JJ Act, 2015.

The Board is also empowered to inquire into heinous offences under Section 15 of the Act. Such preliminary
assessment has to be disposed of within a period of 3 months from the date of first production of the child
before the Board.

In the case of Puneet S. vs. State of Karnataka (2019 SCC OnLine Kar 1835), the Karnataka High Court held
that only the Juvenile Justice Board has the power to decide whether an offence committed by a juvenile is
heinous or not.

FUNCTIONS OF THE JJ BOARD:

1. Ensuring informed participation of the child & the parent or the guardian throughout the process.
2. Ensuring protection of the child’s rights throughout the process of arresting the child, inquiry, aftercare and
rehabilitation
3. Ensuring the availability of legal aid for the child through various legal services institutions
4. Providing a qualified interpreter or translator to the child if he/she fails to understand the language during
the course of proceedings
5. Directing Probation Officer/Child Welfare Officer/Social Worker to undertake a social investigation into the
case. Further, directing them to submit the report within 15 days from the date of the first production before
the Board.
6. Adjudicating and disposing of cases pertaining to children in conflict with the law according to the process
mentioned in Section 14
7. Transferring matters to the Committee in cases where the child is alleged to be in conflict with the law, but
is stated to be in need of care and protection at any stage
8. Disposing of the matter and passing a final order which should include an individual care plan for the
child’s rehabilitation. This also includes follow-ups by officers or an NGO.
9. Conducting inquiry for declaring that a certain person is fit for taking care of the child in conflict with the
law
10. Conducting inspection every month of residential facilities for children in conflict with the law and
recommending various measures for improvement in the quality of services provided
11. Ordering the police for registration of FIR if any offence is committed against any child in conflict with the
law
12. Conducting a regular inspection of jails meant for adults, to check if any child is lodged in such jails
13. Taking immediate measures for the transfer of a child found in jails for adults, to an observation home
14. Any other function as may be prescribed to the Board

CONCLUSION: The new legislation (JJ Act) provides a response to these factors through the procedure of
reformative justice. It acknowledges the fact that children require special care and protection instead of treating
them in the same manner which led to their engagement in criminal activities. The Juvenile Justice Board aims
to deal with such children in conflict with the law in the best possible manner so that they can be integrated into
society as a contributing member at a later stage.

PROBATION OF OFFENDERS ACT

The power of court to release the offender on probation for good conduct:
Introduction:
An accused person should be given a chance of reformation which he would lose in case he is incarcerated in
prison and associates with hardened criminals.

The object of Criminal Law is more to reform the offender than to punish him. Instead of keeping an accused
with hardened criminals in a prison, Court can order personal freedom on the promise of good behavior, and can
also order a period of supervision over an offender. This is what we generally call as ‘Probation’. Simply, it can
be understood as ‘ the conditional release of an offender on the promise of good behavior’.

Section 4 of the Probation of the Offenders Act,1958 talks about the release of the offender on the basis of good
conduct.

Meaning of Probation: The term “Probation” is derived from the Latin word “probare”, which means to
test or to prove. It is a treatment device, developed as a non-custodial alternative which is used by the
magistracy where guilt is established but it is considered that imposing of a prison sentence would do no good.
Imprisonment decreases his capacity to readjust to the normal society after the release and association with
professional delinquents often have undesired effects. It is a substitute for imprisonment, a conditional
suspension of sentence.

Object of Probation: The suspension of sentence under probation serves the dual purpose of deterrence and
reformation. It provides necessary help and guidance to the probationer in his rehabilitation and at the same
time the threat of being subjected to unexhausted sentence acts as a sufficient deterrent to keep him away from
criminality. Probation seeks to accomplish the rehabilitation of persons convicted of the crime by returning
them to society during a period of supervision rather than by sending them into the unnatural and all too often
especially unhealthful atmosphere of prisons and reformatories. Probation system is based on reformative
theory. It is a scientific approach. It is a rational approach towards the causation of crime of young offenders
and thus they can be saved from becoming habitual offenders by dumping them into jails. The probation officer
insists on the problem or need of the offender and tries to solve his problem and see that the offender becomes a
useful citizen of the society.

i) The object of probation is to bring lawbreakers and anti-social persons into willing cooperation with the
community of which he is a member, thus giving him security which he needs and social protection
against his attacks on person or property.

ii) The function of probation is to effect improvement in the character of the offender and permanent
rehabilitation and reformation of the offender.

iii) Probation involves molding of the individual’s habits in a more constructive way.

iv) It’s a substitute for imprisonment. Punishment will not serve the purpose in all cases of offenders.

v) The object is that an accused person who is convicted of a crime should be given a chance of
reformation which he would lose by being incarcerated by prison.
The important points that must be remembered for the application of this Section are:

● Section 4 of the Act is not applicable if the offender is found guilty of an offence with death or
imprisonment for life.

● The Court has to consider the circumstances of the case including the nature of the offence and the
character of the offender.

● The court may pass a supervision order to release the offender on probation of good conduct. The
supervisory period is not to be shorter than one year. The probation officer must supervise the individual
for such a span in such a situation. In the supervisory order, the name of the probation officer should be
listed.

● The Court can direct the offender to execute a bond, with or without sureties, to appear and receive
sentence when called upon during such period which should not exceed a period of three years. The
court may release the offender on good behaviour.

● The Court may put appropriate conditions in the supervision order and the court making a supervision
order explain to the offender the terms and conditions of the order. Such supervision order should
forthwith be furnished to the offender.

● Probation officer’s report is not compulsory to enforce this rule, but if the information is required on
record, the Court shall take into account the probation officer’s information before granting a probation
order for good behaviour.

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.

It is a general section under which the benefit is extended to the offenders under 21 years of age and also
offenders who are above 21 years of age. Discretion is exercised by the court while giving the benefit of
probation to the offenders above 21 years of age. No reasons are to be recorded when the benefit of probation is
granted to the offenders above 21 years of age.

Smt. Devki v. The State of Haryana– In this case, it was observed that Section 4 would not be extended to the
abominable culprit who was found guilty of abducting a teenage girl and forcing her to sexual submission with
a commercial motive.

Phul Singh v. the State of Haryana– In this case, the court held that the provision of Section 4 should not be
mistaken and applied easily in undeserving cases where a person in early twenties commits rape. The court,
thus, refused the application of probation on such heinous nature of crime and convicted the person.

Jai Narayan v. Delhi Municipality – In this case the Court has held that an offender who is convicted and
punished under the Prevention of Food Adulteration Act, 1954 cannot be entitled for the benefit of the
Probation of Offenders Act.

State of Maharashtra v. Natverlal – In this case, 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.

Who are probation officers. Explain the duties of probation officers:

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

WHO IS PROBATION OFFICER: A probation official is a court officer who regularly meets people sentenced
to a supervised probation period. Generally, these people are perpetrators and lower-level criminals. The
majority of the offenders placed on probation are first time offenders. Placing any one on probation is a way for
the court to prevent offenders from incarceration. A probation officer will need to meet, on a monthly or
sometimes weekly basis, their client. Based on an assessment of risk/needs, the probation officer may decide the
degree of supervision that a person requires (minimum, medium or maximum). It helps to determine how much
assistance a person requires. Evaluations assess how a person is engaged in a group, often referred to as their
community relations. The assessment also checks how likely another person will commit more crimes. Any
time a probation client visits his/her probation officer, a report form needs to be filled out. Lives of the
populations also shift because of unemployment, job gain, or divorce. Meeting with a client allows the
probation officer to see where additional support is required in order for the client to succeed. Therefore, when a
person starts at a maximum supervisory level (weekly meetings), this does not mean that they must remain at
this level during their probationary period. Probation officers are required to regularly revise the case plan of a
probationer.
APPOINTMENT OF A PROBATION OFFICER: Section 13 of the Probation of Offenders Act states about the
appointment of Probation Officer: A person appointed by or recognized as a probation officer by the
Government of the State. A person to whom a company recognized on behalf of the State Government has
made provision for this reason. Any other person who, according to a court, is fit to act, under the particular
circumstances of the case, as a probation officer in an exceptional case.

DUTIES OF A PROBATION OFFICER: Section 14 deals with the details concerning the duties of probation
officers that, subject to such conditions and limitations as may be imposed, a probation officer is expected to:

1. Investigate the circumstances or domestic environment of any person accused of an offence with the
intention, in accordance with any direction of the Court, to help the Court to determine and report
the most appropriately advised approach to his dealing with it;

2. Supervise probationers and other persons under his supervision and seek suitable employment where
necessary; - Normal supervisory requirements include:

● Being of good conduct;

● To comply with the orders of the supervisor;

● Information about any change of address to the supervising officer.

Based on the circumstances of the case, additional conditions can be imposed by the Court.
Examples can contain:

● Participation in a course of training;

● Hostel residence; and

● Participation in a clinic or program.

For at least six months to three years, the Court is entitled to issue a probation order.

3. Counsel and support victims in the payment by the Court of penalties or costs;

4. Advice and assist persons released pursuant to Section 4 in such situations and manner as may be
prescribed;

5. Perform the other duties prescribed as may be.

6. Analyse and monitor - To obtain information about his mistakes or achievements, a detailed review of the
life history and background history of the delinquent.
7. Pre-sentence report of the probation officer - The trial officer is expected to provide a pre-sentence report
with specific details of the prisoner requested to be released by the Court on probation, as given in Section 7
of the Probation of Offenders Act, 1958. On the basis of this report, the judge decides and orders the
sentence of the defendant to be released upon probation. The trial officer’s pre-sentence report must include
accurate and truthful details about the offender’s character, temperament, history in family and education,
job statistics, general circumstances and historical precedents. Impartiality and objectivity are the two most
important requirements of a pre-sentence statement to bear witness to the history and behaviour of the
offender. Submitting a disciplinary report on the defendant as ordered by the Court is also one of the main
tasks of a probation officer. It should include all the details of the offender as well as an evaluative summary
of the case of the offender.

8. After-care - The probation officer will try to secure the probationer for this purpose: Facilities of training,
Opportunities for jobs, Any financial support needed, and Contacts and groups such as Boy Scouts and Girl
Guides, youth programs and civic initiatives for regular citizens and co-organizations.

Discuss release of offenders on probation on due admonition:

Section 3 of the Probation of the Offenders Act,1958 deals with the power of court to release the offender
after admonition. An Admonition, in literal terms, means a firm warning or reprimand. Section 3 says how
the offender is benefited on the basis of admonition after satisfying the following conditions:

When any person is found guilty of committing an offence under Section 379 or Section 380 or Section 381
or Section 404 or Section 420 of the Indian Penal Code,1860 or any offence punishable with imprisonment
for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law

● An offender should not previously be convicted for the same offence.

● The Court considers the nature of the offence and the character of the offender.

● The Court may release the offender on probation of good conduct applying Section 4 of the Act,
instead of sentencing him.and,

● The Court may release the offender after due admonition, instead of sentencing him.

Basikesan v. The State of Orissa– In this case, a 20-year-old was found guilty of an offence under Section 380
of the Indian Penal Code,1860. It was held that the youth had committed the offence not deliberately and so the
case must be applied for Section 3 of the Probation Act and be released after admonition.
Ahmed v. The State of Rajasthan– In this case, the court said that the benefit of the Probation of the
Offenders Act does not extend to anyone who has indulged in any activity that resulted in an explosive situation
leading to communal tension.