1.

Trial Before Sessions Court

The court takes the responsible for cases relating to murders, theft, dacoity, pick-pocketing and
other such cases. Trial is an important process to determine whether the accused is guilty of an
offence. Basing on the seriousness of the offence, criminal cases are categorized under two heads
viz:

1. Summons cases; and

2. Warrant cases.

Among warrant cases, the cases which are more serious in nature are triable by the Court of
Session, while less serious cases are triable by the Courts of Magistrate. A Court of Session
cannot take cognizance of any offence, though it is triable by it. A competent Magistrate takes
cognizance of any offence and commits the case for trial by a Court of Session. Trial of Criminal
cases may be explained with reference to the following heads:

1. Trial (of Warrant-Cases) before a Court of Session.

2. Trial of Warrant-Cases by Magistrates.
3. Trial of Summons-Cases by Magistrates.
4. Summary Trials.

The code lays down the procedure for trial before a court of session as follows:

a. Parties (sec. 225): In a trial before a court of session, the prosecution shall be conducted
by a public prosecutor. The accused has a right to engage a counsel of his choice. If he
cannot afford to engage the defence counsel, the court engaged at the state expenses.
Before commencing the trial, the accused in supplied with the copies of documents like
police report, F.I.R etc.

b. Opening the case (sec. 226): The public prosecutor opens the case by describing
accusation against the accused. He states briefly by what evidence, he proposes to prove
the guilt. The prosecutor duty is not to secure a conviction but simply to lay the facts of
the case before the tribunal, which is to judge.

c. Discharge of the accused (sec. 227): After hearing from both the parties if the court
considers that there is no sufficient ground to proceed against the accused, discharges
him and records the reason for doing so. There is no scope for examination of any witness
but there is scope for both sides to argue their case in favour of framing charge or
discharge.

d. Framing of charge (sec. 228): After hearing from both the parties if the court presumes
that the accused might have committed the offences:
i) If frames a charge in writing, if the offence is exclusively triable by the Court of Session.

ii) If the offence is not triable exclusively by the session’s court, it frames charge and
transfers the case to the Chief Judicial Magistrate. It was held in Kanti Bhadra Shah &
anr v. State of West Bengal {1}while exercising power under Section 228 CrPC, the Judge
is not required to record his reasons for framing the charges against the accused.

e. Explaining the charge and enquiry about plea (sec. 228(2)): The contents of the charge
have to be explained to the accused as to enable him to plead guilty of the offence or claim
to be tried.

f. Conviction on plea of guilty (sec. 229): If the accused pleads guilty, the judge shall
record the plea and may in his discretion convict him thereon. It was held in Queen
Empress v. Bhadu {5} that the plea of guilty must be in unambiguous terms otherwise
such a plea is considered as equivalent to a plea of not guilty. Section 229 states that if an
accused pleads guilty then the Judge shall convict him as per his discretion and shall
 record the same. The Court cannot convict an accused on the basis of the plea of guilty
where the offence is of a nature in which the punishment is death or imprisonment for life
g. Date for prosecution evidence (sec. 230): If the accused refuses to plead or does not
plead or claims to be tried or is not convicted under sec. 229, the judge shall fix at date
for the examination or witness or may order for compelling appearance of any witness or
production of a thing/document.

h. Evidence for prosecution (sec.231):

It consists of two points:
i) On the date so fixed as above, the judge takes all such evidence is support of the
prosecution.
ii) The judge may in his discretion, permits the cross examination of any witness to be
deferred until any other witness have been examined or recall any witness for further
cross examination.
i. Arguments of the prosecution (sec. 314(2)): The prosecution after the close of witnesses
submits a memorandum of his oral arguments. A copy of the same if is supplied to the
opposite party.

j. Examination of the accused: It is to be made without administering oath. It is to give an

opportunity to him to explain the circumstances alleged against him by prosecution.

k. Acquittal (sec. 232): After hearing from both the parties if the judge considers that the
accused has not committed the offence, record an order acquitting the accused.

l. Entering upon defence (sec. 233): If the accused is not acquitted, he shall be called
upon to enter on his defence. The court may summon or examine at any stage any person
as court witness.

m. Arguments (sec. 234): After recording defence, the prosecutor sums up his case and the
accused or his pleader shall be entitled to reply. The prosecutor may be allowed to make
his submission in case any law point is raised by the defence.

n. Judgment of acquittal or conviction (sec. 235): After hearing arguments from both the
sides, the court delivers judgment of acquittal or conviction. On this point, the Apex Court
in Santa Singh v. State of Punjab {9} held that the Judge should first pass a sentence of
conviction or acquittal. If the accused is convicted he shall be heard on the question of
sentence and only then the Court shall proceed to pass a sentence against him.

o. Previous Conviction (sec. 236): In a case where a previous conviction is charged under
the provisions of sub Sec. (7) of Sec. 211, and the accused does not admit that he has
been previously convicted as alleged in the charge, the judge may take evidence in respect
of the alleged previously conviction and shall record a finding there on:
Provided that no such charge shall be read out by the judge not shall the accused be
asked to plead thereto nor shall the previous conviction be referred to by the prosecution
or in any evidence adduced by it unless and until the accused has been convicted under
sec. 299 or sec. 235.
2. SUMMONS CASE:
“Summon” is a document that commands a person to whom it is served to appear before the
court and to answer the complaint made against him. Summon is issued by the Magistrate to
the accused under section 204(1) (a) of Cr.P.C, 1973. “Summon case” means a case relating to
an offence, not being a warrant case[1]. Summon cases can be referred from the definition of the
warrant case i.e., offences punishable with death, imprisonment for life and imprisonment for
the terms exceeding two years called as warrant cases[2]. So summon cases are those in which
punishment will not exceed imprisonment for two years. It can be said that summon cases are
not of serious nature, so it needs to be decided speedily, without dispensing the requisites of the
fair trial. The procedure to deal with such matter provided in section 251 to 259 of Cr.P.C, 1973
which is not as serious/formal as other trials (Session trial, warrant case instituted on the police
report and warrant cases instituted otherwise than on police report).
*Procedure of summons case:

1. Explanation of the particulars of the offence Section 251

2. conviction on plea of guilty

3. Conviction on plea of guilty in absence of accused in petty cases

4. Hearing of prosecution case

5. personal examination of accused

6. hearing of the defence

7. special court to be adopted by the magistrate

8. acquittal or conviction

9. Accused can be convicted of an offence not charged

10. power of court to convert a summons case into warrant case

11. compensation for accusation without reasonable cause. S. 250

Summary Trials

`Summary Trials are mentioned in Chapter XXI of the Code of Criminal Procedure,1973. In this
type of trial, only the offences which fall into the small/petty category are tried. Complex cases
are reserved for warrant or summons trial. To determine whether a case should be tried
summarily, the facts stated in the complaint form the primary basis. The objective of summary
trials is the expeditious disposal of cases to lessen the burden on the judiciary. The trial gives a
fair opportunity to people for procuring justice in less time. The legal provisions governing
summary trials under the Code of Criminal Procedure, 1973 are Section 260 to Section 265.

Procedure
Under Section 262 of the Code of Criminal Procedure, 1973, the procedure for summary trials has
been laid down.
The procedure followed for summon cases has to be followed for summary cases as well. The
exception in summary trials is, that a sentence exceeding the duration of three months cannot be
passed in case of conviction under this Chapter.

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

For a criminal procedure to begin, the first step is to file an FIR or a complaint. This is investigated
upon by the police and evidence is collected. At the end of the investigation, a charge sheet is filed
by the police. This is also called the pre-trial stage.

The accused person is then taken before the Magistrate who orally reads the particulars of the
offences to the accused. In summons and summary trials, a formal charge is not written down.

The Magistrate after stating the particulars of the offence committed asks the accused if he pleads
guilty or not. If the accused person pleads guilty, the Magistrate makes a record of the statement
of the accused and then proceeds for conviction.

If the accused does not plead guilty, the trial begins. The prosecution and the defence are given
an equal opportunity to put their case forward. The Judge may then decide the acquittal or the
conviction of the accused.

Differences between summary cases and summons trial

1. Summary trials are less complicated in comparison to warrants and summons trials.
2. The procedure followed in summary cases is shorter and less time consuming than other
trials.
3. Summary trials deal with cases that consist of minor offences of simple nature as
opposed to serious cases which are tried in summons/warrant trials.
4. The statements of witnesses are compiled in a brief and general manner in summary
trials. Focus is placed on recording the substance of their depositions. In other trials,
the depositions of all the witnesses are recorded with minute intricacy.
5. The Magistrate does not have to frame formal charges against the accused person in
summary trials. In other trials, a formal charge has to be written down.
6. In the case of summary trials, it is not essential to record the evidence in its entirety. A
brief outline works. In other trials, it is crucial that the entire evidence is recorded
completely.

In summary cases, the difference lies at this juncture. If the Judge delivers a judgment of
conviction of the accused – the maximum sentence that can be passed for imprisonment is three
months.
3. Cognizable and non-cognizable offences (154)

Offences can be categorized into various types, but we will particularly focus on two : Cognizable
Offences and Non-cognizable Offences. Under Cr.P.C., Cognizable Offence is discussed under
Section 154. Section 2(c) of Cr.P.C. defines it to be an offence in which the police officer can
arrest the convict without a warrant and can start investigation without the due permission of
the court. These are the offences that are usually very serious and generally heinous in nature.
For example: Rape, murder, kidnapping, dowry death etc. All cognizable offences are non-
bailable due to their serious and heinous nature. Section 2(1) of Cr.P.C. defines Non-
cognizable Offence. It refers to it as an offence for which a police officer has no authority to
arrest without a warrant. These are the offences that are not serious or usually petty in nature.
For example: assault, cheating, forgery, defamation etc. Non-cognizable offences are usually
bailable because of their non serious nature.
Section 154 (FIR)
Information in cognizable cases.

 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.
 A copy of the information as recorded under sub-section (1) shall be given forthwith,
free of cost, to the informant.
 Any person aggrieved by a refusal on the part of an officer in charge of a police station
to record the information referred to in subsection (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.
With reference to the particular section, an officer can register an F.I.R. and take cognizance of
and arrest a suspect without seeking court’s prior approval. If she/he has a “reason to believe”
that a person has committed the offence and is satisfied that arrest is a necessary step. Then
within 24 hours of arrest, the officer must get the detention ratified by the concerned judicial
magistrate. Police officers also have a chance to conduct a preliminary investigation before
registering the F.I.R. to cross check the facts but the liability lies totally upon him for the same.
This is because if the Police Officer doesn’t register an F.I.R. at the moment the information is
received, and there is any mishappening because he was not sure of the serious offence like
murder taking place and someone loses his life will be a careless mistake.
Distinction between cognizable & Non-Cognizable offence
1. In case of cognizable offence, police may arrest the accused without warrant, while in case of
non-cognizable offence, police generally does not have a power to arrest without a warrant.
2. Cognizable offence is more serious in nature while non-cognizable offence is less serious in
nature. Examples of cognizable cases would be murder, dowry death, grievous hurt, theft etc.
Examples of non-cognizable offences would be keeping a lottery office, voluntarily causing hurt,
dishonest misappropriation of property.
3. Offences punishable with imprisonment for 3 years and more are cognizable, while offences
punishable with imprisonment for less than 3 years are non-cognizable, except some exceptions.
4. Police has to record information about a cognizable offence in writing as per Section 154, while
as per Section 155, Police has to enter information in register prescribed for it and refer the
informant to a magistrate.
5. In matter of cognizable offence, police may investigate the case without order or direction of
magistrate, while in non-cognizable cases police cannot investigate the case without order or
direction of magistrate.
6. In cognizable cases, FIR is lodged in a police station, while in non-cognizable case complaint is
lodged in Court of Magistrate.
 BASIS FOR
COGNIZABLE OFFENCE NON-COGNIZABLE OFFENCE
COMPARISON

Meaning Cognizable offence is one in Non-cognizable offences refers to

which the police is authorized the offences in which the police
to take cognizance of the has no authority to apprehend a
crime at its own. person for crime on its own.

Arrest Without warrant Requires warrant

Approval of Not required to begin Prior approval of court is required

Court investigation. to begin investigation.

Offence Heinous Comparatively less heinous

Includes Murder, rape, theft, Forgery, cheating, assault,

kidnapping, etc. defamation etc.

Petition FIR and complaint Complaint only.

Cognizable Non-Cognizable

It is the offence in which a police officer can It is the offence in which a police officer cannot
arrest the convict without the warrant. arrest a person without the warrant.

The police can start a preliminary investigation The police officer cannot start the investigation
without the permission of the court or without without the permission of the court.
registering the FIR.

These are heinous crimes like murder, rape, These crimes are not so serious like forgery,
dowry death etc. cheating, defamation etc.

The victim can file an FIR or make a complaint The victim can only make a complaint to the
to the magistrate. magistrate.

It is defined in the Section 2(c) of the Criminal It is defined in Section 2(I) of Criminal Procedure
Procedure Code, 1973. Code 1973.

The police officer is bound to register the FIR The police officer is not bound to register the FIR
even without the permission of Magistrate. or cannot register the FIR without prior
permission of the magistrate.

It is a non-bailable offence. It is a bailable offence.

4. First Information Report (FIR):
a. Meaning of FIR.
The letters FIR mean First Information Report. A First Information Report is a description
of the situation and the act that constitutes a cognizable offence as given to the office-in-charge
of a police station by any person. Such information is signed by the person giving the
information. It is information to the police station at first in point of time that an offence has
been committed and on the basis of which the investigation is commenced. Vague, cryptic and
indefinite telephonic information cannot be treated as FIR. If the information is given orally, it is
reduced in writing by the officer-in-charge, read over to the informant, and then signed by the
person. The substance of this information is also entered into a register which is maintained by
the officer. This is the first time when an event is brought to the attention of the police. The
objective of the FIR is to put the police in motion for investigating the occurrence of an act,
which could potentially be a cognizable offence. There cannot be two FIR’s against the same
accused in respect of the same offence. But rival versions in respect of the same episode may
take the shape of two different FIR’s and investigation can be carried on under both of them by
the same investigating agency. Registering of FIR includes only the process of entering the
substance of the information relating to the commission of cognizable offence in a book kept by
the officer-in-charge of the police station. The information may relate to the commission of either
cognizable offence or noncognizable offence. Sec. 154 deals with the cognizable offences and Sec.
155 deals with the noncognizable offences.
Sec. 154 of Cr.P.C. lays down that 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.
Sec. 154 also says that any person aggrieved by a refusal on the part of an officer-in-
charge of a police station to record the information 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, and such
officer shall have all the powers of an officer-in-charge of a police station.
Section 155 makes provisions regarding non-cognizable cases. Substance has to be
entered in a book kept for the purpose in Police Station. It further provides that no police officer
shall investigate a non-cognizable case without the order of a Magistrate having power to try
such case or commit the case for trial. Any police officer receiving such order to investigate may
exercise the same power in respect of investigation, except the power to arrest without a warrant,
as an officer-in-charge of a police station may exercise in a cognizable case. Where a case relates
to two or more offences of which at least one is cognizable, the case shall be deemed to be a
cognizable case, notwithstanding that the other offences are non-cognizable

Definition of Complaint

The term ‘complaint’ can be defined as any type of accusation excluding a police report, made
verbally to the Magistrate, to make him/her take action as per the Criminal Procedure Code,
that a person has committed an offence.

Although, a police report in a case is also considered as a complaint when after investigation it is
revealed that a non-cognizable offence is committed. In such a condition, the officer who
prepares the report is deemed as the complainant. In a civil lawsuit, a complaint is termed as a
plaint.

Any person is allowed to file a complaint, except in the case of marriage and defamation, where
only aggrieved party can complain. In a complaint, the complainant requests to penalise the
culprit appropriately.
5. Warrant cases and summons cases

Meaning of summons case: –

Summons is a document that orders a person to whom it was sent to appear before the
Court and answer the Magistrate on the complaint made against him. It is issued by the
Magistrate under Section 204 (1) (a) of Code of criminal procedure code,1973. Summon cases are
those in which punishment will not exceed imprisonment for two years. It can be said that
summon cases are not of serious nature, so it needs to be decided speedily, without dispensing
the requisites of the fair trial.

The definition of the summons case is given in 2(w) in the Code Of Criminal Procedure,
1973; the summons case means a case related to an offense which is not a case of warrant.
Procedure of summon case is defined under chapter 20 of Code of criminal procedure. Any offense,
punishable with a fine of Rs. 50 /-, then such a case is summons case

Warrants meaning
A warrant is an order issued to a certain person that orders him to apprehend the accused and to
bring him to justice. It is being executed on valid grounds only by a Magistrate. The warrant must
bear the court seal, and a court presiding officer must sign the written warrant. A warrant remains
valid until it is cancelled by the same court, whose seal it bears. The court has a right to state in
a warrant that a person can pay a certain amount of security as assurance of producing himself
before the court and thereby, avoid his arrest. If necessary, the immediate execution can be done
by a person who is not a police officer. A Magistrate can execute a warrant on any person entering
his territory and the person to whom the warrant is issued, can be anybody within his local
jurisdiction. An arrested person should be notified about the cause of his arrest, and if the need
be, the warrant can be shown to him.

Warrant can be authorised to a police officer outside the jurisdiction of the Judicial Magistrate, b
ut this must be approved by the Executive Magistrate or by a police officer who is in charge of the
police station.
5.Charge [2(b)]

Section 2(b) of the Criminal Procedure Code defines charge as any head of a charge when
the charge contains more heads than one. The legal definition mentioned in the code is not
inclusive enough for a layman to decipher. However, the definition could simply be interpreted to
mean as an “accusation”. It is the concrete accusation as recognised by the Magistrate or the
Court, based on the prima facie evidence adduced against the accused. Purpose of Charge

Under the Code of Criminal Procedure, an accused should be informed of the offence of
which he is charged. The basic purpose of the charge is to let the accused know of the offence
that he is charged with so that he can prepare his defence. The accused should be informed of
the charge against him at the very beginning. Every accused has the right to know what the
prosecution has against him. The underlying principle of the criminal law on informing the
accused of the charge against him is to provide an equal opportunity to each and every
individual to prepare his defence and avail justice. It must be noted that in case of serious
offences, the statute requires the charge to be reduced to writing precisely and clearly and must
be read to the accused and explained with precision and clarity.

Basic Rule as to Charge and Trial of Charge

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

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

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

Anticipatory bail (Section 438 Cra.P.c):

Right to life and personal liberty is an important right granted to all the citizens under
Article 21 of the Indian Constitution and it is considered as one of the precious right. Under Indian
criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure
Code 1973.

The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out
the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court
and the Court of Sessions to grant “anticipatory bail”. This provision allows a person to seek bail
in anticipation of an arrest on accusation of having committed a non-bailable offence. The very
basic purpose of insertion of this provision was that no person should be confined in any way until
and unless held guilty.

Anticipatory bail under criminal code of procedure

 Where any person has a reason to believe that he may be arrested on accusation of having
committed a non-bailable offence, he may apply to the High Court or the Court of Session for a
direction under this section that in the event of such arrest he shall be released on bail and the
court shall provide him anticipatory bail after taking into consideration the following factors,
namely

1. the nature and gravity of the accusation.

2. the antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence

3. the possibility of the applicant to flee from justice.

4. where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested, either reject the application forthwith or issue an interim
order for the grant of anticipatory bail.

Where the High court or court of session grants interim bail to the applicant then the court
forthwith a show cause notice attested with a copy of such order, served to the Public Prosecutor
and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable
opportunity of being heard when the application shall be finally heard by the Court. The presence
of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the
application and passing of final order by the Court, if on an application made to it by the Public
Prosecutor, the Court considers such presence necessary in the interest of justice.

Who is eligible to obtain anticipatory bail?

When any person has a reason to believe that there is a chance to get him arrested on false
or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be
built up against him, he has the right to move the court of Session or the High Court under Section
438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court
may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

Accused who has been declared as an absconder/proclaimed offender in terms of Section

82 of the Criminal Procedure Code and not cooperated with the investigation should not be given
an anticipatory bail.

Conditions for obtaining the anticipatory bail:

The High Court or the court of the session may include such conditions in the light of the
facts of the particular case, including:

 a condition that the person shall make himself available for interrogation by the police
officer as and when required;

 a condition that the person shall not, directly or indirectly, make any inducement, threat
or promise to any person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the court or to any police officer;

 a condition that the person shall not leave India without the previous permission of the
court.
Juvenile Justice Act, 2000
The Act changed the terminology for delinquent and neglected children to ‘child in conflict with
law’ and ‘child in need of care and protection’ respectively.

This Act provides for the establishment of the Juvenile Justice Board for giving justice to the
juvenile in conflict with the law. Board is authorized to allow the juvenile to go home after advice
and admonition [Section 15(1)(a)], direct the juvenile to participate in group counselling [Section
15(b)], to perform community service[Section 15(c)], order the parent or the juvenile himself if he
is over 14 years of age and earns money, to pay fine[Section 15(d)], direct the juvenile to be released
on probation of good conduct and placed under care[Section 15(e)], make an order, directing
juvenile to be sent to a special home[Section 15(g)], and having regard to the nature of the offence
and circumstances of the case, to reduce the period of stay in a special home[Section 15(1)].

The Act provides for the establishment of the Child Welfare Committee for disposing of the matters
of the child in conflict with the law. This Act provides for the care, protection, treatment,
development, and rehabilitation of the children as well as to provide for their basic needs and
protection of human rights [Section 31(1)]. The Act also authorizes to establish observational
homes for the temporary reception, care, protection, training, development, and rehabilitation of
the juvenile in conflict with the law during the pendency of the inquiry and shelter homes for the
children who need urgent support [Section 8, 9, 34 and 37].

The Act bars the infliction of a death sentence, life imprisonment and prison in default of fine or
furnishing security. The crucial aspect of the Act is the removal of disqualification attracting a
conviction of the offence and publication of the name, address, etc. of the juvenile in any
newspaper, magazine, etc[Section 19 and 21].

Section 23 of the Act, provides for the punishment for cruelty to juvenile or child by a person
having actual charge or control over that juvenile. Section 26 provides punishment for procuring
a juvenile or a child for the purpose of hazardous employment, keeps him in bondage and
withholds his earnings or uses such earnings for his own purpose. All these offences are cognizable
in nature.

The Act also provides for juvenile or the child welfare officer in every police station with an aptitude
and appropriate training to deal with the juvenile in coordination with police and creation of a
Special Juvenile Police Unit to upgrade the treatment of police with juvenile or children.

Salient Features of Juvenile Justice Act

1. Two Separately Categories:-

It deals Separately two Categories of children i.e, ‘Child in need of care and protection’ and
‘juvenile in conflict with law’. A Child in need of care and protection is children who due to
various reasons are found in difficult circumstances and are in danger of survival and growth.
The juvenile in conflict with the law is those juveniles who are alleged to have committed an
offence.

2.Two Separate Authority:-

Child Welfare Committee about ‘Child in need of care and protection’ and Juvenile Justice Board
is another authority concerning the ‘Juvenile in conflict with law’.

3. Board Member:-
The members of the Board have been given magisterial power.
 4. Recognition to NGO:-
The Social Workers and the representative of the NGO having prescribed qualification under the
Act can become members of the Competent Authority.

5. Special Homes:-
The Act envisages establishing observation homes and Special Homes for ‘juvenile in conflict
with law’ and For ‘Child in need of care and protection’ provision has been made to establish
Comprehensive Children’s Homes.

6. Counselling:-
The new model of dispositional alternatives like Counseling and community services has been
incorporated for the Juveniles.

7. Social Worker:-
Besides the police Social worker have a role in the production of children before the Child
Welfare Committee.

8. Personal Appearance:-
The child himself/herself can appear before the competent Authority and demand his/hers right.

9. Exemption from Jail:-

The Juvenile can not
be kept
in a
police lockup/jail.

10. Probation:-
Effect will be made to release the juvenile on bail or probation.

11. Enquiry:-
The Enquiry to be completed within four months from the date of its commencement unless the
period is extended by the JJB/CWC, else for a reason to be recorded.

12. State Government:-

The State government under section 68 of the Act is directly responsible for the implementation
of the Act.
CONSTITUTIONAL VALIDITY OF SECTION 144 OF CrPC

Constitutional Validity of Section 144 of Crpc

The action taken under the Section 144 of Crpc is anticipatory i.e. it is being utilized in order to
prevent certain actions even before they actually take place or occur. Many times the constitutional
validity of the prohibitory order under Section 144 is challenged as the power conferred under this
section tends to temporarily suspend the lawful rights of the people for the purpose of preserving
public peace and safety. Since the propriety of the prohibitory order under Section 144 is open to
challenge it cannot be said that by reason of the wide amplitude of the power which this section
confers, on the Magistrates, it places unreasonable restrictions on certain fundamental rights of
the citizens. The orders promulgated under section 144 should not be vague and disproportionate.

Article 19(2) and 19(3) empower the State Government or the Legislature to place reasonable
restrictions on fundamental rights as contained in Articles 19(1) (a) and (b) i.e. right to freely
express and to assemble peaceably without arms. This right is not absolute and can be curtailed
on the basis of reasonable restrictions in the interest of public order, sovereignty, integrity, security
of the state etc. public order has to be maintained in advance. Therefore it is competent for the
legislature to make the law permitting an appropriate authority to take anticipatory action or place
anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of
maintaining public order and to serve the interests of the society. Thus the anticipatory action of
the kind permissible under Section 144 of Crpc is not impermissible under clauses (2) and (3) of
Article 19 of the Constitution. Section 144 of Crpc when properly applied and enforced is not
deemed to be unconstitutional as offending Article 19 of the Constitution because the restrictions
are in the interest of public order and the general public[7].

PROVISIONS RELATING TO SEARCH, SEARCH WARRANTS AND

SEIZURES
Sec 91 provides for issue of summons to produce a document or other thing.
When search-warrant may be issued (Sec. 93)- (a)Where any Court has reason to believe that
a person to whom a summons or order under section 91 or a requisition under sub-section (1) of
section 92 has been, or might be, addressed, will not or would not produce the document or
thing as required by such summons or requisition, or (b) where such document or thing is not
known to the Court to be in the possession of any person, or (c) where the Court considers that
the purposes of any inquiry, trial or other proceeding under this Code will be served by a general
search or inspection, it may issue a search-warrant; and the person to whom such warrant is
directed, may search or inspect.
Only District Magistrate or Chief Judicial Magistrate is authorised to grant a warrant to
search for a document, parcel or other thing in the custody of the postal or telegraph authority.
The search under Section 93 must be for some specific article or thing or document and not for
stolen property. The law does not authorize for search of anything but specified articles which
have been or can be made the subject of summons or warrant to produce. A general search-
warrant can only be issued if the Court considers that the purpose of any enquiry, trial or other
proceeding of the Code would be served by such search. General search warrant cannot be
issued when the person, in whose possession a thing lay, is known and the place where the
things lay is also known.
The power of search given by this Section includes also the power to take possession of
the document or thing. Where the person against whom a search warrant is issued prays for the
stay thereof and offers to produce the document or thing before the court whenever required, the
magistrate has jurisdiction to stay execution of the warrant conditionally on the execution of a
bond.
Search for persons wrongfully confined (Sec. 97)- District Magistrate, or Sub-divisional
Magistrate or Magistrate of the first class may issue, a search-warrant to make a search for a
wrongfully confines person.
Power to compel restoration of abducted females (Sec.98)- Upon complaint made on oath of
the abduction or unlawful detention of a woman, or a female child under the age of eighteen
years, for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate
of the first class may make an order for the immediate restoration of such woman to her liberty,
or of such female child to her husband, parent, guardian or other person having the lawful
charge or such child.
Search by police officer (Sec. 165) – Whenever an officer-in-charge of police station or a
police officer making an investigation has reasonable grounds for believing that anything
necessary for the purposes of an investigation into any offence which he is authorised to
investigate may be found in any place within the limits of the police station of which he is in
charge, and that such thing cannot in his opinion be otherwise obtained without undue delay,
such officer may, after recording in writing the grounds of his belief and specifying in such
writing the thing for which search is to be made, search, or cause search to be made, for such
thing in any place within the limits of such station. The general provisions as to searches
contained in section 100 shall, so far as may be, apply to a search made under this section.

When officer-in-charge of police station may require another to issue search-

warrant (Sec. 166)- An officer-in-charge of a police-station or a police officer not being
below the rank of Sub-Inspector making an investigation may require an officer-in-charge
of another police station, whether in the same or a different district, to cause a search to
be made in any place, in any case in which the former officer might cause such search to
be made, within the limits of his own station.

GENERAL PRINCIPLES OF SEARCH AND SEIZURE

Persons in charge of closed place to allow search (Sec. 100)
a) Whenever any place liable to search of inspection is closed, any person residing in, or being
in charge of, such place, shall, on demand of the officer or other person executing the
warrant, and on production of the warrant, allow him free ingress thereto, and afford all
reasonable facilities for a search therein.
b) If ingress into such place cannot be so obtained, the officer or other person executing the
warrant may proceed in the manner provided by sub-section (2) of section 47.
c) Where any person in or about such place is reasonably suspected of concealing about his
person any article for which search should be made, such person may be searched and if
such person is a woman, the search shall be made by another woman with strict regard to
decency.
d) There should be two or more independent and respectable inhabitants of the locality to
attend and witness the search. The search shall be made in their presence, and a list of all
things seized in the course of such search and of the places in which they are respectively
found shall be prepared by such officer or other person and signed by such witnesses; but
no witness of search shall be required to attend the Court unless specially summoned by
it.
e) The occupant of the place searched, or some person in his behalf, shall, in every instance,
be permitted to attend during the search, and a copy of the list prepared under this section,
signed by the said witnesses, shall be delivered to such occupant or person.
f) Any person who, without reasonable cause, refuses or neglects to attend and witness a
search under this section, when called upon to do so by an order in writing delivered or
tendered to him, shall be deemed to have committed an offence under section 187 of the
Indian Penal Code. Power of police officer to seize certain property (Sec. 102)- Any
police officer may seize any property which may be alleged or suspected to have been stolen,
or which may be found under circumstances which create suspicion of the commission of
any offence.
Principles of Fair Trial

Introduction
The main aim of the Criminal Justice-System of India is to ensure fair and impartial trial of each
and every accused who has been put behind bars in the Indian territory. Our country follows the
adversary system for conducting the trial of an accused. Under this system, it is the prosecution
who has to prove the guilt of the accused beyond a reasonable doubt. The Criminal-Justice-System
of India follows some principles to ensure fair trial but still, India lags behind in the Rule of Law
Index. According to the World Justice Project(WJP), 2019 Rule of Law Index India has been ranked
68 out of 128 countries.

Principles of Fair Trial under the Adversary System

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

Following are the principles of a fair trial-

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

Presumption of innocence
This is the cardinal importance of the Indian Criminal Justice System. Under this principle each
and every accused is presumed to be innocent unless proved guilty of a crime beyond reasonable
doubts. The burden of proving the accused guilty is on the prosecution. It came from a Latin
maxim ‘eiincumbit probation qui dicit, non qui negate’ which means the burden of proof is
one that who asserts, and not on the one who denies. The presumption of innocence is present at
the beginning of all the criminal trials in an adversary system and the provisions of the criminal
codes are so framed that the presumption of innocence is taken into consideration throughout the
criminal trial.

Independent, impartial and competent Judge

The independence of judiciary means that the judiciary is not interfered by the government of India
or any political party. The independence of the judiciary is ensured by separating the three organs
of the government i.e. legislature, executive and the judiciary. Even the appointment of Session
Judges is not exclusively with the state government but they are appointed with the consultation
of High Court. This ensures that they are not under the control of any state government and
therefore ensuring their independence

Expeditious Trial
‘Justice delayed is Justice denied’ is popularly used in many of the courtroom dramas, which
is actually a well-settled principle of criminal jurisprudence. Expeditious trial refers to the right of
speedy trial of an accused. This principle was considered under the concept of a fair trial to avoid
unnecessary harassment of the accused. The apex court in the landmark case of Husianara
Khatoon v. State of Bihar, 1979 held that speedy trial is an essential ingredient of Article 21 of the
Constitution of India and it is the constitutional duty of the state to set up such procedure which
would ensure speedy trial of the accused.
Hearing should be in open court
The Right to open court is another principle of a fair trial. It is said openness of a court brings
more fairness to the trial. The right to open court is not just of the accused but is also a right of
the public. Sec-327(1) of Cr.PC provides for a trial in an open court. According to this section open
court refers to a place to which the general public may have access. This section also gives the
presiding judge discretion to deny the conduct of a criminal trial in an open court.

Knowledge of accusation and providing adequate opportunity to him

A person may or may not have knowledge of the charges he has been accused of. Therefore
according to sec-50 of Cr.PC, it is the duty of the police officer who is arresting the accused without
any warrant to provide full particulars of the offences of which the accused is charged. In case of
serious offences, the court is required to frame a formal charge in writing and then read and
explain the charge to the accused.

Trial in presence of the accused

One of the principles of a fair trial is that the criminal courts shall not proceed ex parte against
the accused person. All the proceedings of a criminal trial should be conducted in the presence of
the accused. It is also based on the major reason that every accused should be given an
opportunity to prepare his defence which is possible only if he properly understands the case from
the prosecution side.

Evidence to be taken in presence of accused

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

Cross-examination of prosecution witnesses

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

Prohibition of double jeopardy

This concept of double jeopardy is based on the doctrine of autrefois acquit and autrefios convict
which means that if a person is tried and acquitted or convicted of an offence he cannot be tried
again for the same offence or on the same facts for any other offence. The prohibition against
jeopardy is also a Constitutional right recognized under Article 20(2) of the Indian Constitution
which provides that no person shall be prosecuted and punished for the same offence more than
once.
Legal Aid
Every single person whether innocent or accused has the right to legal aid. This right is also a
constitutional right embodied in Article 22(1) of the Indian Constitution. The right to counsel is
one of the fundamental rights according to the supreme law in India. In the case of Khatri v. State
of Bihar, it was held that the accused is entitled to free legal counsel not only at the stage of trial
but also when he is first produced before the Magistrate and also when remanded.
Arrest and Rights of an Arrested person

MEANING: Arrest means apprehension of a person by legal authority so as to cause deprivation

of his liberty. Arrest is an important tool for bringing an accused before the court as well as to
prevent the happening of a crime or prevent a person suspected of doing crime from running
away from the law. Sections 41 to 44 contain basic provisions regarding arrest. There are
situations when a person may be arrested by a police officer, a magistrate or even private citizen
without a warrant. These are described in Section 41, 42, 43, and 44 as follows-
. Rights of an Arrested person
Cr.P.C. gives wide powers to the police for arresting a person. Such powers without appropriate
safeguards for the arrested person will be harmful for the society. To ensure that this power is
not used arbitrarily, several restraints have been put on it, which are actually the recognition of
the rights of a person being arrested. In order to meet the needs of "fair trial" and justice, several
provisions are given in Cr.P.C. that give specific rights to an arrested person. These rights can
be described as follows –
1. Right to know the grounds of arrest [Section 50(1)] - According this provision, 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. Even a
subordinate officer deputed by a senior police officer to arrest a person under Section 55, is duty
bound to notify the person to be arrested of the substance of the written order given by the
senior officer, which clearly specifies the offence for which he is being arrested. The same
provision exists in case of an arrest made under a warrant in Section 75. In this case, the police
officer or any person making arrest under warrant must notify the substance of the warrant to
the person being arrested and if required, must show the warrant. If the substance of the
warrant is not notified, the arrest would be unlawful. Right to be notified of grounds of arrest is
a quintessential right of the arrested person as this allows him to move the proper court for bail,
make a writ petition for habeas corpus, or make appropriate arrangements for his defence.
This right is also a fundamental right given by the Constitution in Article 22(1), which
says, "No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice." It embodies two distinct rights - the right to be
informed about the grounds of arrest and the right to consult a legal practitioner of his choice.
Supreme Court held in various cases that grounds of arrest must be communicated to the
person in the language that he understands otherwise it would not amount to sufficient
compliance of the constitutional requirement.
2. Right to be informed of the provision for bail [Section 50(2)]
Some offences that are not very serious and do not require the offender to be kept in
custody. Section 50(2) provides that where a police officer arrests any person other than a
person accused of a non-bailable offence without warrant, he shall inform the person
arrested that he is entitled to be released on bail and that he may arrange for sureties on
his behalf.
3. Right to be taken to magistrate without delay - Holding a person in custody without
first proving that the person is guilty is a violation of human rights as well as fundamental rights
as enshrined in Constitution and is completely unfair thus amounting to an injustice. At the same
time, holding a person in custody is necessary for the police to carry on their investigation. These
two are contradictory requirements and a balance must be found between them. Since police has
arrested the person, it cannot be the agency that determines whether person must be kept
confined further. This can only be decided by a competent judicial authority. This is exactly what
is embodied in Art.22(2) of Indian Constitution that gives a fundamental right to the arrested
person that he must be produced before a magistrate within 24 hours of arrest. It says, "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."
Section 57 of CrPC also contains a similar provision for a person arrested without a
warrant. It says, "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."
4. Right to consult Legal Practitioner [Art 22 (1)] - For conducting a fair trial it is absolutely
necessary that the accused person is able to consult with a legal practitioner whom he trusts.
Second part of Article 22(1) gives this fundamental right to an arrested person. It says that no
person who is arrested shall be denied the right to consult, and to be defended by, a legal
practitioner of his choice. However, this does not mean that the State must provide a legal
practitioner of the person's choice. It is up to the arrested person to contact and appoint such a
legal practitioner. The State's responsibility is only to ensure that he is not prevented from doing
so. The same right is also provided by Section 303, Cr.P.C. which says, "Any person accused of
offence before a Criminal Court or against whom proceedings are instituted under this Code, may
as a right be defended by a pleader of his choice."
5. Right to free legal aid [Art 21 and Sec. 304,Cr.P.C.] - A person who does not have the
means to hire a legal practitioner is unable to defend himself appropriately. This creates a doubt
on the fairness of the trial. Therefore, Section 304 provides that where, in a trial before the Court
of Session, the accused is not represented by a pleader, and where it appears to the Court that
the accused has not sufficient means to engage a pleader, Court shall assign a pleader for his
defense at the expense of the State. Noncompliance of this requirement or failure to inform the
accused of this right would vitiate the trial resulting into the setting aside of the conviction and
sentence.
6. Right to be informed about the right to inform of his arrest to his relative or friend
[Section 50A] – In order to ensure a fair trial and to improve people-police relationship, the
Supreme Court in Joginder Kumar v. State of U.P. (1994), formulated the rules that makes it
mandatory on the police officer to inform a friend, relative, or any other person of the accused
person's choice, about his arrest. These rules were later incorporated in Cr.P.C. under section 50A
in 2005.
7. Right to be examined by a medical practitioner [Section 54(1)] - While Section 53 allows
a police officer to get the accused examined by a registered medical practitioner, Section 54(1)
gives the accused a right to get himself examined by a registered medical practitioner. Section 54
(1) says thus, "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 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." While Section 53 is meant to aid the police in investigation, Section 54(1) is
meant for the accused to prove his innocence. This right can also be used by the accused to prove
that he was subjected to physical injury.
8. Right to be produced before a Magistrate within 24 Hors of arrest [Section 57 & 167]
Section 57 of the Cr.P.C. deals with the power of police as to how long they can keep an
offender in custody when he has been arrested without a warrant. On the other hand, Section
167, sub-section (1) and (2) of the Cr.P.C. deals with the power of police as to how long they
can keep an offender in custody with the order of Magistrate when he has been arrested
without a warrant. Section 57 of the Cr.P.C. lays down that no police officer shall detain in
custody a person arrested without a 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. Sec.167 provides
that whenever any person is arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of twenty–four hours fixed by the Sec. 57,
What is Probation?

Probation is the timeframe during which the person is not sent to prison. When an
offender receives a probation, instead of sending them to jail, the judge gives them an
opportunity to rehabilitate.
If the offenders does everything as instructed by the judge and follows all the conditions
laid down, then they will not be sent to prison to complete their sentence.
Even though the defendant is not sent to prison but they have to follow certain terms and
conditions. These could be curfew rules, participation in rehabilitation programs and carrying
out drug tests on regular intervals etc.
Probation is monitored by a probation officer. The officer keeps an eye on the progress of
the defendant and files a report with the judge. If the judge is not impressed by the progress of
the defendant, the judge may require the defendant to return to the court for final sentencing.
After the sentencing, the offender has to serve time in the prison.

What is Parole?

Parole is the period of time after which a convicted person is released from the prison.
The prisoner is released from the prison before the conclusion of the sentence. The conditions
set down in parole are almost similar to those imposed under probation.
The conditions imposed under probation could be, that offender must meet the parole
officer on schedule, conditions imposed on alcohol and drug use, remaining at same residence
and maintaining employment etc.
Parole in managed by a parole officer. The parole officer explains the terms and conditions
of the parole to the defendant and monitors his progress.
If the defendant fails to comply with the terms and conditions, then the parole officer
could report to the board which granted parole to the defendant. The board may, after reviewing
the case order the defendant to return to the prison to complete his sentence.
Main Differences Between Probation and Parole
Probation and parole are quiet similar in some ways, but only one could happen based on the
circumstances of the case. Therefore it is very important for a defendant to know the difference
between the two.

These are the main differences between probation and parole.

1. Probation is usually part of the initial sentence where the person is allowed to
spend his sentence within the community whereas parole occurs at the end of the
sentence to convert the remaining time of the sentence in to a program that
benefits the community.
2. The terms and conditions imposed in probation are tough whereas parole has fewer
limitations for the defendant.
3. The terms and conditions imposed during probation are decided by the judge
whereas the terms and conditions imposed during parole are decided by the parole
board.
4. Probation is managed by a probation officer whereas parole is managed by a parole
officer.
5. parole
The destiny
boardofdecides
a defendant
on granting
in casea of
parole
probation
to a prisoner.
is decided by a judge whereas a
6. Probation is an alternative sentences whereas parole is a privilege granted to
convectors after having served a part of their sentence subject to good behavior.
7. Probation is solely based on the decision of the judge whereas members of the
community are allowed to speak before the board responsible for making a decision
on granting parole to a defendant.
8. Probation officer deals with convicted criminals who have not gone to jail where as
parole officer deals with convicted criminals who have served a part of their
sentence.
9. A person granted probation have mixed feelings because on one hand they’ve been
convicted but on the other hand they don’t need to serve any jail time whereas a
person granted parole is happy because he or she is released from the prison.
Concept of Bail – Introduction and bonds
The concept of bail, which is a basic part of the Indian criminal jurisprudence and it is
well recognized principle among all the judicial systems of the world. Bail, in law, means
procurement of release from prison of a person awaiting trial or an appeal, by the deposit of
security to ensure his submission at the required time to legal authority. The monetary value of
the security, known also as the bail, or, more accurately, the bail bond, is set by the court
having jurisdiction over the prisoner. The security may be cash, the papers giving title to
property, or the bond of private persons of means or of a professional bondsman or bonding
company. Failure of the person released on bail to surrender himself at the appointed time
results in forfeiture of the security. Courts have greater discretion to grant or deny bail in the
case of persons under criminal arrest
The Criminal Procedure Code, 1973, does not define bail, although the terms bailable
offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: " Bailable
offence means an offence which is shown as bailable in the First Schedule or which is made
bailable by any other law for the time being enforce, and non-bailable offence means any other
offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in
criminal cases. The amount of security that is to be paid by the accused to secure his release
has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary
cap on the bond.
Bail for Bailable offences:
According to section 436 of CrPC, If the offence alleged is bailable, then, the Accused is
entitled for Bail as a matter of right, may be before Police station itself, or if forwarded to
Magistrates Court, before Magistrates court. In bailable offences bail is a right and not a favour.
In such offences there is no question of any discretion in granting bail. Bail can be claimed as of
right and there is a statutory duty imposed upon the Police Officer as well as the Court to release
a person on bail if he is prepared to give bail. Such a person can also be released on his own
bond in a fit case. It is only where the accused is unable to furnish bail then he should be kept
in detention.

Bail u/s 436-A:

There had been instances where under trial prisoners were detained in jail for periods
beyond the maximum period of imprisonment provided for the alleged offence. A new section
436A5 is inserted in the Code to provide that where an under-trial prisoner other than the
offence for which death has been prescribed as one of the punishments, has been under
detention fora period extending to one half of the maximum period of imprisonment provided for
the alleged offence, he should be released on his personal bond, with or without sureties. It is
also provided that in no case the under trial be detained beyond the maximum period of
imprisonment for which he can be convicted for the alleged offence.

Bail for non-Bailable offences:

The provisions of section 437 empower two authorities to consider the question of bail, namely
(1) a court and (2) an officer-in-charge of the police station who has arrested or detained without
warrant a person accused or suspected of the commission of a non-bailable offence. Although
this section deals with the power or discretion of a court as well as a police officer in charge of
police station to grant bail in non- bailable offences it has also laid down certain restrictions on
the power of a police officer to grant bail and certain rights of an accused person to obtain bail
when he is being tried by a Magistrate. Section 437, Criminal Procedure Code, deals with the
powers of the trial court and of the Magistrate to whom the offender is produced by the police or
the accused surrenders or appears, to grant or refuse bail to person accused of,or suspected of
the commission of any non-bailable offence.
The power to release on bail a person accused of a non-bailable offence is conferred upon
only one class of police officers, namely an officer-in-charge of the Police Station under section
437 sub-Section (I). Since the power to grant bail is permissive and not obligatory, it has to be
exercised with great caution because of the risk and stakes involved. Before exercising his power,
a station officer ought to satisfy himself that the release on bail would not prejudice the
prosecution in bringing home the guilt of the accused. In case the officer in charge admits an
accused to bail, it is mandatory for him to record the reasons or special reasons in the case diary
and preserve the bail bonds until they are discharged either by the appearance of the accused in
court or by the order of a competent court.
For the purpose of bail in non-bailable offence, the Legislature has classified them under
two heads:
(1) those which are punishable with death or imprisonment for life;
(2) those which are not so punishable.
In case of an offence punishable with death or imprisonment for life a station officer
cannot enlarge a person on bail, if there appear reasonable grounds for believing that he has
been guilty of such offence. The age or sex or sickness or infirmity of the accused cannot be
considered by a police officer for the purpose of granting bail. These matters may be taken in
view by a court only. An officer- in-charge of the police station may grant bail only when there
are no reasonable grounds for believing that the accused has committed a nonbailable offence or
when the non-bailable offence complained of is not punishable with death or life imprisonment.

What is a bail bond?

A written promise, signed by the offender or a person who gives surety of the offender presence
in the court when called upon, to pay a certain amount fixed by a court or police officer. Such
amount paid on execution of bond can be given back once the case ends with some
administrative cost deductions.

Surety on the other hand is the indemnifies who ensures the presence of the offender when
called upon by the court. It is he who pays on behalf of the offender for the bail bond when the
offender is incapable of furnishing his personal bond.

But can accused after getting bail offer a bank guarantee in place of surety bonds? Bank
guarantee is an instrument issued by a Bank in which the Bank agrees to stand guarantee
against the non-performance of some action/performance of a party. Thus, it is a third-party
guarantee which means if neither the surety not the accused himself could pay for the bond, the
bank will.

Section 441 of the Code provides that the offender so released on bail or on his own bond, needs
to sign a bond of such money as the police officer or the court deems necessary for ensuring his
presence when at the time mentioned in the bond or until any time as directed by the court.
Thus, bond provides for a surety of the presence of the offender to the court when called upon
either to answer the charge or otherwise. In case where a minor is required to execute a bond,
the police officer or the court in lieu may execute it only by surety or sureties only.[3] Bond can
contain conditions. Such conditions need to be mentioned in the bond itself while executing it.
When practically seen the execution requires certain documents such as:

1. Bail application
2. Id proof of the person executing it
3. Id proof of the surety giving guarantee for the person
4. Demand draft or cheque for the sum to be paid for the bond
5. Property papers in case a property is being charged for the purpose of furnishing the bail
bond and tax return receipts.
6. Declaration by the surety or sureties
7. Letter of undertakin
The procedure for recording confession by Magistrate

The term confession defined as a statement of a accused person in which he acknowledges that
he is guilty of committing any crime or any illegal action. It is always preferable to distinguish a
confession from any other kinds of self-incriminating actions. Since ancient time’s confession
have been used as a evidence against criminal defendants.

As per classical Indian law, also draw attention to the worthiness of confession. The Manu-smriti
which are also known as “Laws of Manu”, was based upon the ancient Hindu concept of dharma
includes the moral law and religious facts governing individual conduct. When we go through the
Chapter 11 of the Manu-smriti it warns every individual sinners of the necessity of expiating
their misdeeds and attaches a purifying effect to confession. It is a universally accepted belief
that confession is the first initiative taken by an individual in guilt toward redemption is still in
practice in India, a confession will often result in the reduction of an wrongdoer sentence.
Confession must be voluntarily & freely made by the accused person only & most important is
that he must be aware of his rights. Generally a two-prong test is used to determine whether the
confession is voluntarily made, involving factors such as subjective and objective , mostly One
part of the test generally focus upon the susceptibility of the suspect, and the second part of test
focuses upon the environment & technique used. A confession shown to be coerced does not
lead to void a conviction.

Kinds of Confession:

There are four kinds of Confession:

1) Judicial confession-

A Confession made before Magistrate or in a court due course of judicial proceeding. It is

applicable & most of the time used as an evidence, it is also recorded as per the provisions of
Section 164 of Cr.P.C.The magistrate who records a confession as per section 164, Criminal
Procedure Code, must warn the accused person who is about to confess that he may or may not
be taken as a consent. After warning the accused person he must give time to think over the
situation and then only recording of the confessions are possible. Such confession is called
judicial confession.

2) Extra-Judicial Confession- Confession which is not made before a Magistrate or any Court in
due course of judicial proceeding,it is made either to police during the investigation or into police
custody or made otherwise than to the police. Extra-Judicial confession is not relevant.

3) Retracted Confession- A confession made before the trial begins by an accused person
through which he/she admits to commit any offence but the accused person discard it at the
trial.

4) Confession by co-accused-

According to the Section 30.Consideration of proved confession affecting person making it and
others jointly under trial for the same offense

When more than one persons are tried jointly for the same offense, and a confession made by
one of them affecting himself and some other of such persons is proved, the Court may take into
consideration such confession as against such other person as well as against the person who
makes such confession.

PROCEDURE FOR RECORDING

- An accused person himself can appear before a Magistrate for recording his confession. An
accused is free to make a confession voluntarily before the Magistrate and he need not be
followed or support by the Police totally unlike in the case of a witness or victim. It is a Judge-
made law. The supplement is that before recording the confession of an accused person the
Magistrate should be satisfied and confirmed that the person who is going to confess is an
accused and investigation is in a progress against him and he is from any type of external
influence.

- At the time of recording the confession of the accused no Police or Police official shall be
present. Before proceeding towards the recording of a confession , a enquiry must be made from
the accused just to confirm the overall past situation of an accused under the custody and the
treatment he had been receiving in such custody it will help to ensure that confession made by
accused person is free from any type extraneous influence (Rabindra Kumar Paul @ Dara Singh
v. Republic of India).

- Section 24 of the Evidence Act lays down the rule that a confession made under threat ,
inducement or promise becomes irrelevant in a criminal proceeding. the Court will abstain from
proceeding on such type of confession, doesn't matter whether a confession made in front of a
Magistrate or a person other than a Police officer, confession by a person should have been made
with full knowledge of the consequences of the confession. One side to be bear in mind is that ,
as per Section 26 of the Evidence Act a confession made while in Police custody is not bad if it is
made in the immediate presence of a Magistrate.

- It is necessary to warn the accused before making any confession. As per Section 29 of the
Evidence Act, a confession which is pertinent does not become irrelevant purely because the
person was not warned that he was not bound to make a confession.

- Recording of confession is a "proceeding" within the meaning of Section 303 Cr.P.C. and hence
the accused has a right to consult a lawyer of his choice. Before recording the confession, the
Magistrate should, therefore, explain this to the accused. If the accused is poor or belongs to an
economically or socially backward class, the Magistrate should inform the accused about his
right to free legal aid under Section 304 Cr.P.C. (Nandini Satpathy v. P.L. Dani), ( Kuthu Goala
v. State of Assam)

-At least 24 hours' time should be given to the accused persom to consider whether he should
make a confession, Enquiry under Section 164(2) Cr.P.C. should not be conducted in a casual
manner ( Ayyub v. State of U.P.)

- Certifying by magistrate that he "hoped” not that he "believed", the confession made by the
accused person voluntary, would suggest a remaining doubt and hence not accepted.
[ Chandran v. State of T.N.]

- As per section 164(3) If before recording the confession an accused person appearing before the
Magistrate shows his willingness that he is not willing to make any confession, then the
Magistrate shall not authorise the detention of that accused person in police custody.

- Confession should record by the magistrate only in open Court and during Court hours U.P .
Ram Chandra v. State U.P and confession should be signed by accused and magistrate as per
section 281(5) Cr.P.C. The confession shall be recorded in the language in which the accused is
questioned or if that is not practicable, in the language of the Court as per Section 281(3)
Cr.P.C.)

- Confessional statement made by an accused person need not be recorded through cameras
But, statements of accused which also includes witnesses and non-confessional statements of
accused persons should be recorded in camera [Varghese M.U. v. CBI, Cochin]
- As per Section 164(6) Cr.P.C after recording the confession the Magistrate forward the same to
the Magistrate by whom the case is to be inquired or tired.
Sanjay Dutt vs State Of Maharashtra ... on 21 March, 2013
Sanjay Dutt was arrested for illegal possession of firearms acquired from terrorist acquaintances
that were responsible for the blasts.
What is a Probation Officer powers and functions?

A probation officer is a court officer who interacts with persons who have been sentenced to
supervised probation on a regular basis. In general, these persons are perpetrators and low-level
criminals. The vast majority of those sentenced to probation are first-time offenders. Placing
anybody on probation is a means for the court to keep criminals out of prison. Many people on
probation live in our communities, stay at home, work or participate in an educational
programme, and raise their children. The goal of the judicial system is for a person on probation
to be a responsible member of society while maintaining touch with family and community
support.

Once on probation, a person may be forced to undergo a drug or domestic violence examination
to evaluate whether treatment is required. Furthermore, persons may be required to participate
in tracking sobriety by taking breathalyzer or urine tests. Another common prerequisite is for an
individual to continue his or her education and/or employment.

Responsibilities of Probation Officer

The responsibilities of a probation officer include visiting their client on a monthly or even
weekly basis. The probation officer may select the level of supervision that a person requires
based on an evaluation of risk/needs (minimum, medium or maximum).

It aids in determining how much support is required. Evaluations look at how a person interacts
with others, often known as their community relations. The evaluation also determines the
likelihood that another individual will conduct more crimes.

A report form must be completed each time a probation client visits his or her probation officer.
Unemployment, job gains, and divorce all have an impact on people’s lives. Meeting with a client
helps the probation officer to determine where further assistance is needed for the client to
succeed.

Duties of Probation Officer

According to Section 14 of the Offenders Probation Act of 1958, a probation officer is supposed
to undertake the following duties, subject to any terms or limits that may be imposed:
 Investigate any individual accused of an offense’s circumstances or home
environment with the goal, in line with any Court instruction, to assist the Court in
determining and reporting the most suitably advised approach to his dealing with
it;
 Supervising probationers and other people under his supervision and, if required,
locating suitable jobs;
 Counseling and assisting victims in the payment of fines or fees by the Court;
 Advice and assistance to people released under Section 4 in such situations and
manner as may be required; Perform any other tasks that may be prescribed.
 According to Section 14 of the Act, a probation agent’s primary responsibilities
include investigation, monitoring and direction, counselling, and professional
control of criminal probation. As an inspiring, guiding and supporting probationer,
this probation officer facilitates the rehabilitation of the criminal as a law-abiding
member of society.

Analysis and monitoring of accused

A comprehensive study of the delinquent’s life history and background history is required to
acquire information about his faults or successes. If the criminal does not respond favourably to
the reform measures, a proper investigation would necessitate more restrictions on the
criminal’s rights. To collect as much information about his antecedents as feasible, the
probationer must be addressed psychologically, with the consequence that information is
gathered that allows the offender’s prospects of reformation during the probationary procedure
to be assessed. Monitoring is primarily a police duty, therefore advising and supporting the
research officer would be quite beneficial.

Supervision and counselling of accused

Continuous supervision of the probationer’s work is neither essential nor possible. Probation
supervision may thus only be carried out through field trips and sporadic interactions. The
Probation Officer will thoroughly comprehend and prescribe actions to overcome concerns that
may impede the offender’s re-adjustment in society. He must actively assist the probationer in
his recovery journey. The probationer is not constantly pressed or regulated.

According to Sections 14(b) and 18, the probation officer is in charge of supervising the
probationer. The probationers who have been given or granted a check by the judge, on the other
hand, have various characteristics. Both on a personal and legal level. When a court sentences
an offender, it must ensure that the criminal also has the right to rehabilitation and that he or
she is treated in accordance with regular human beings. Supervision is, therefore, one of the
strategies that can cure and rehabilitate the offender under the supervision of the probation
officer and protect society against the offender.

Link to the Court

Another important role of the probation officer is to serve as a liaison between the probation and
the Court, since the primary responsibility of the probationer under his supervision is to defend
the interest. The court may order that the probation order be modified or that the probationary
bond be exercised. When he determines that the probationer’s progress in adjusting to ordinary
life in society is satisfactory.

Pre-sentence report of the probation officer

According to Section 7 of the Probation of Offenders Act, 1958, the trial officer is expected to
produce a pre-sentence report with particular details of the prisoner asked to be released by the
Court on probation. Based on this report, the court makes a decision and orders the defendant’s
sentence to be commuted to probation. The trial officer’s pre-sentence report must contain
accurate and true information regarding the offender’s personality, temperament, family and
educational history, employment statistics, general conditions, and historical precedents.

Decision making
While making a decision on a probationer under his supervision, the probation officer should
keep in mind that his judgments are critical not only for the offender but also for the safety of
the community.

Role of Probation Officer

Probation is the most significant or successful therapeutic technique. Without the help of the
police, the probation officer cannot operate as a supervisor. It is noteworthy in terms of the
police’s role. The trial officer and the police are two State institutions with substantially similar
purposes. The entire outdoor rehab plan will fail since the motivations and goals are
incompatible, as it is apparent that police will want to help probation staff.
Search and Seizure-Sections 93-102

The term ‘search’ denotes that action of government machinery which includes looking through
or examining carefully a place, area, person, object etc. in order to find something concealed or
for the purpose of discovering evidence of a crime. Such search of a person or vehicle or
premises or of any other thing can only be done by taking proper and valid permission of law.
The act of seizing is well known as seizure. It is a forceful action in which an object or person is
suddenly taken over, grabbed, removed, or overwhelmed.
Section 91 of CrPC provides for when can the summons/orders be issued to produce documents
or other things. A court issues a summons and an officer in charge of a police station issues a
written order. It is issued whenever any court or an officer in charge of a police station considers
that the production of any document or other thing is essential or desirable for the purposes of
investigation inquiry, trial or other proceedings under this code, such court or officer may issue
a
summons or order to the person in whose possession or power such document or thing is
believed to be in possession. It requires him to attend and produce it at such time and place as
stated in the summons or orders. Sub-section (2) of Section 91 provides that the person who is
required to produce a document or thing under this section shall be deemed to have complied
with all the requirements if he causes such things to be produced instead of physically attending
it personally to produce the same. Sub-section (3) states that this section will not affect Section
123 (Evidence as to the affairs of state) and Section 124 (official communications) of the Indian
Evidence Act, 1872 or the Bankers’ Books Evidence Act, 1891. It specifically does not apply to a
letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or
telegraph authority. A person who appears in court, in regards to a summons under this section,
does not become a witness and cannot be examined thereafter.

Search warrants
As per the law dictionary and as observed in different judicial decisions, the term ‘search’, in the
simplest language, denotes an action of a government machinery to go, look through or examine
carefully a place, area, person, object etc. in order to find anything concealed or for the purpose
of discovering evidence of a crime. The search of a person or vehicle or premises etc., can only be
carried out under proper and valid authority of law. It is also well established that search should
have a nexus with the crime, it cannot be a random search.
A search warrant is a written order which is issued by a Judge/ Magistrate or a Court to a police
officer or any other person authorizing them to conduct a search of a person, location or vehicle
for evidence of a crime and confiscate illegal evidence of a crime. The court in Kalinga Tubes Ltd.
v. D. Suri and in many other cases has cautioned the police officer to use search warrant with a
little precaution and care and do not abuse their power.
Section 165 of CrPC provides for the circumstances and the way in which search is carried out
by a Police Officer. A police officer while making an investigation should have reasonable
grounds for believing that something very necessary for the purpose of investigation into an
offense which he is authorized to investigate may be found in any place within the local limits of
the police station in which he is in charge. He is also required to make a record in writing
specifying his grounds of belief and why the search was conducted within the limits of such
station.
When the search warrant is issued?

In the following circumstances and conditions a search warrant is issued by a court:

 1. Where a court has reason to believe that a person to whom summons or orders under
Section 91 and a requisition under Section 92(1) is addressed will not produce the things
or documents as required.[Section 93(1)(a)]

2. Where the thing or document in question is not known to the court to be in the possession
of any person. [Section 93(1)(b)]

Seizure:
The act of seizing is well known as a seizure. It is an action coupled with force in which an object
or person is suddenly taken over, grabbed, removed, or overwhelmed.
Search and seizure is also an essential stage in the process of effective investigation. There are
two methods in which police can affect search and seizure. One under a warrant which is issued
under any of the provisions of Sections 93, 94, 95, and 97 and the other is without a warrant
under any of the provisions of Sections 103, 165 and 166 of CrPC.the basic provisions as to
search and seizure are laid down in Section 100 of CrPC. The procedure set out in the section is
generally followed in offenses committed under the Indian Penal Code as well as in special and
local laws with a little variance. Thus, in all situations of search and seizure, the investigating
police should follow the procedures laid down under Sections 100 and 165 CrPC. Section 102
provides the power of police officers to seize certain property.
The police may have to effect search and seizure in one or more places. One at the scene of the
crime and the other at places where the persons involved in crime are hiding and places where
the incriminating articles to crime are kept or concealed.
As soon as a crime is committed at a place, the police officer arrives at the scene of the crime
and as a golden rule he should not alter with the position of the crime scene, pick up or even
touch anything without being properly described in an official note and photographed.
It is his duty to ensure that there is no interference with the crime scene. He shall also not allow
an unauthorized person to meddle in the inspection of the scene. He has to make sure that there
is not much crowd at the place of the scene as there may be a possibility of distortion of evidence
or clues. He should inquire about the person who came first to the place. He should not leave
the process of investigation solely on his subordinates, especially those who are untrained. These
are some of the precautions that a police officer has to take care of while carrying out the
process of search and investigation.
The procedure to be followed at the time of seizure is the same that is to be followed in case of a
search under Section 100 of CrPC. Section 102 authorises a police officer to seize certain
property. Sub-section (1) empowers a police officer to seize any property which is alleged or
suspected to have been stolen or which is found in such circumstances that it may create
suspicion of commission of an offence. Sub-section (2) states that a subordinate, who works
under a police officer in charge of a police station, shall report the seizure to that officer.
Subsection (3) provides that every police officer exercising his duty under sub-section (1) is
required to report the seizure to the nearest Magistrate falling within his jurisdiction and in case
the property seized is such that it cannot be taken to the court, he may give custody of that
property to any person after executing a bond undertaking to produce the property before the
court as and when is required so as to give effect to the further orders of the court regarding its
disposal.