1. What is arrest? Explain the rights of arrested person.

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Meaning of Arrest:

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“Arrest” literally means “Deprivation of personal liberty by legal authority”. An arrest

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consists of taking into custody of another person under authority empowered by law, for the

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purpose of holding or detaining him to answer a criminal charge and preventing the commission
of a criminal offence. Actual seizure or touching of the body of a person with a view to detaining

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him, as an essential ingredient of an arrest.

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For an arrest, there must be actual touch or confinement of the body of the person. Mere

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surrounding of a person by the police does not amount to his arrest. However, in case of arrest of

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a woman, unless the circumstances require otherwise or a female police officer is present, she

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should not be touched by the police officer for making the arrest. Arrest is a mode of formally
taking a person in police custody. GA
Rights of arrested person
AN

1. Right of arrested person to meet an advocate of his choice during interrogation Section
,B

41D:
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When any person is arrested and interrogated by the police, he shall be entitled to meet an
advocate of his choice during interrogation.
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2. No unnecessary restraint: Section 49:

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The person arrested shall not be subjected to more restraint than is necessary to prevent
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his escape.
CO

3. Right To Know The Grounds of Arrest

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Person arrested to be informed of grounds of arrest and of right to bail: Section 50.
EE

(1) Every police officer or other person arresting any person without warrant shall forthwith
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communicate to him full particulars of the offence for which he is arrested or other grounds for
such arrest.
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 (2) Where a police officer arrests without warrant any person other than a person accused of a

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non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail

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and that he may arrange for sureties on his behalf.

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Indian constitution has also conferred on this right the status of the fundamental right. Article

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22(2) of the constitution provides that “no person who is arrested shall be detained in custody

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without being informed as soon as may be, of the grounds of such arrest nor shall he be denied

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the right to consult, and to be defended by a legal practitioner of his choice.”

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4. Person arrested to be informed of grounds of arrest and of right to bail: Section 50:

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Person arrested to be informed of grounds of arrest and of right to bail.

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(1) Every police officer or other person arresting any person without warrant shall forthwith

LO
communicate to him full particulars of the offence for which he is arrested or other grounds for
such arrest.
GA
AN

(2) Where a police officer arrests without warrant any person other than a person accused of a
non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail
,B

and that he may arrange for sureties on his behalf.

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LA

5. Obligation of person making arrest to inform about the arrest to inform about the
arrest, etc., to a nominated person: Section 50-A:
OF

1. Every police officer or other person making any arrest under this Code shall forthwith
E

give the information regarding such arrest and place where the arrested person is being held to
EG

any of his friends, relatives or such other persons as may be disclosed or nominated by the
LL

arrested person for the purpose of giving such information.

CO

2. The police officer shall inform the arrested person of his rights under subsection (1) as
N

soon as he is brought to the police station.

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3. An entry of the fact as to who has been informed of the arrest of such person shall be
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made in a book to be kept in the police station in such form as may be prescribed in this behalf
by the State Government.
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 4. It shall be the duty of the Magistrate before whom such arrested person is produced, to

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satisfy himself that the requirements of Sub-Section (2) and Sub-Section (3) have been complied

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with in respect of such arrested person.

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

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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

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examination of his body will afford evidence which will disprove the commission by him of any

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offence or which will establish the commission by any other person of any offence against his

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body, the Magistrate shall, if requested by the arrested person so to do direct the examination of
the body of such person by a registered medical practitioner unless the Magistrate considers that
GA
the request is made for the purpose of vexation or delay or for defeating the ends of justice.
AN

7. Health and safety of arrested person: Section 55-A :

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It shall be the duty of the person having the custody of an accused to take reasonable care of the
W

health and safety of the accused.

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8. Person arrested not to be detained more than twenty-four hours: Section 57:
OF

No police officer shall detain in custody a person arrested without warrant for a longer period
E

than under all the circumstances of the case is reasonable, and such period shall not, in the
EG

absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive
LL

of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
CO

This right has been further strengthened by its incorporation in the Constitution as a fundamental
N

right. Article 22(2) of the Constitution proves that “Every person who is arrested and detained in
EE

custody shall be produced before the nearest magistrate within a period of twenty-four hours of
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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
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 the authority of a magistrate.” In case of arrest under a warrant the proviso to Section 76

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provides a similar rule in substance.

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The right to be brought before a magistrate within a period of not more than 24 hours of arrest

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has been created with a view to prevent arrest and detention for the purpose of extracting

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confessions, or as a means of compelling people to give information;

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9. Rights at Trial

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i. Right to a Fair Trial- The Constitution under Article 14 guarantees the right to equality before

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the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an

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open court trial. This provision is designed to ensure that convictions are not obtained in secret.

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In some exceptional cases the trial may be held in camera. Every accused is entitled to be
informed by the court before taking the evidence that he is entitled to have his case tried by
GA
another court and if the accused subsequently moves such application for transfer of his case to
AN

another court the same must be transferred

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ii. Right to a Speedy Trial- The Constitution provides an accused the right to a speedy trial.
W

Although this right is not explicitly stated in the constitution, it has been interpreted by the
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Hon'ble Supreme Court of India in the judgment of Hussainara Khatoon. This judgment
mandates that an investigation in trial should be held “as expeditiously as possible”. In all
OF

summons trials (cases where the maximum punishment is two years imprisonment) once the
E

accused has been arrested, the investigation for the trial must be completed within six months or
EG

stopped on an order of the Magistrate, unless the Magistrate receives and accepts, with his
LL

reasons in writing, that there is cause to extend the investigation

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10. Rights Of Free Legal Aid:

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In Khatri(II) v. State of Bihar, the Supreme Court has held that the state is under a constitutional
EE

mandate (implicit in Article 21) to provide free legal aid to an indigent accused person, an and
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the constitutional obligation to provide free legal aid does not arise only when the trial
commences but also attaches when the accused is for the first time produced before the
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magistrate, as also when remanded from time to time.

 Conclusion:

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It is the duty of the police to protect the rights of society. It must be remembered that this society

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includes all people, including the arrested. Thus, it is still the police’s duty to protect the rights of

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the arrested person. Hence, in light of the discussed provisions, a police officer must make sure

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that handcuffs are not used unnecessarily, that the accused is not harassed needlessly, that the

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arrested person is made aware of the grounds of his arrest, informed whether he is entitled to bail

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and of course, produced before a Magistrate within twenty-four hours of his arrest.

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2. Discuss the provisions of cr.p.c. relating to security for keeping peace and good

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behaviour.

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INTODUCTION:
GA
Security means furnishing guarantee to the satisfaction of the court that a certain conduct
AN

is to be maintained for a certain period by a certain person concerning a certain thing. It is in the
shape of a bond to be executed by such person from whom security is demanded. It may be with
,B

sureties or without sureties. It is a discretionary power vested by law in the court. It is not
W

repugnant to the Fundamental rights under the Constitution nor it is discriminatory in character.
LA

Security is for a certain purpose, certain objective and certain goal. It is aimed at protecting the
OF

society against person who are a potential danger to public peace and tranquility. Mainly two
kinds of securities to be taken, viz., 1) For keeping the peace (Sections 106 and 107) and 2) For
E

good behavior (Sections 108, 109 and 110).

EG
LL

SECTION 106: SECURITY FOR KEEPING THE PEACE ON CONVICTION:

CO

This section comes into operation when a person is convicted of an offence. It applies when by
reason of the conviction of a person, his past conduct leads to an apprehension for the future.
N
EE

When a Court of Session or Court of a Magistrate of the first class convicts a person of any of
AM

the following offences will order a person to execute a bond with or without sureties for keeping
the peace such period, not exceeding three years.
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 A. Offences punishable under chapter VIII of the IPC. The offences under section 153A,

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153B, Section 154 are not included.

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B. Any offence consisting of or including assault or using criminal force or mischief.

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C. An offence of criminal intimidation

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D. Any other offence which caused or was i8ntened or known to be likely to cause a breach

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of peace.
E. When an accused has been acquitted or when he has been convicted but the order for

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security has not been passed, the appellate court while convicting the accused acquitted

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or confirming the conviction may pass an order under this section.

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F. It must be remembered that a court can order under section 106 to furnish only bond to

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keeping the peace. It cannot order to furnish security for good behavior.

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GA
AN

SECTION 107:
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SECURITY FOR KEEPING THE PEACE IN OTHER CASES:

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When the Executive Magistrate receives information that any person is likely to commit a breach
LA

of the peace or disturb the public tranquility or to do any wrongful act that may probably
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occasion a breach of peace or disturb the public tranquility or to do any wrongful act that may
probably occasion a breach of the peace or disturb the public tranquility and is of the opinion that
E

there is sufficient ground for proceeding he may, in the manner herein after require such person
EG

to show cause why he should not be ordered to execute a bond with or without sureties for
LL

keeping the peace for such period, not exceeding one year.
CO
N

SECTION 108:
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SECURITY FOR GOOD BEHAVIOUR FROM PERSONS DISSEMINATING

SEDITTIOUS MATTERS:
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 When the executive magistrate receives information that there is within his local jurisdiction any

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person who with or without such jurisdiction:

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(i) either orally or in writing or in any other manner, intentionally disseminates or attempts or

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abets the dissemination of:

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Any matter the publication of which is punishable under Section 124A or Section 153A or
Section 153B or Section 295 A of IPC or

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Any matter concerning a judge acting or purporting to act in the discharge of his official duties
which amounts to criminal intimidation or defamation under the IPC.

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(ii) makes, produces, publishes or keeps for sale, imports, exports, conveys, sell, let to hire,
distributes, publicly exhibits, or in any other manner puts into circulation any obscene matter

LO
such as is referred to in Section 292 of IPC.
GA
No proceedings shall be taken under this section against the editor, proprietor, printer, or
AN

publisher of any publication registered under and in conformity with, the rules laid down in the
Press and Registration of Books Act with reference to any matter contained in such publication
,B

except by the order or under the authority of the State government or some officer empowered by
W

the State Government.

LA
OF

SECTION 109:
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EG

SECURITY FOR GOOD BEHAVIOUR FROM SUSPECTED PERSONS:

LL

This Section seeks to check and control the persons who are likely to commits offences.
CO

The conditions precedent for the application of this section, namely

N

• That the person concerned must be taking precaution to conceal his presence and
EE

• That there is reason to believe that such person is taking precaution to conceal his
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presence with a view to committing a cognizable offence. Proceedings under this section
cannot be initiated unless both these conditions are present.
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 • The Magistrate is expected to make use of them sparingly with utmost care and caution.

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It is for this reason that discretion is given to the Executive Magistrate who can accept a

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bond without sureties.

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SECTION 110:

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SECURITY FOR GOOD BEHAVIOUR FROM HABITUAL OFFENDERS:

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The main object of this section is to protect the public against hardened and habitual criminals.

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experience has shown that persons who indulge in offences of anti-social nature such as drug
trafficking, food adulteration, smuggling, hoarding, profiteering, etc deserve greater vigil and

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control than those committing offences like theft, perjury, etc. these offences have, therefore to

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be controlled by bounding over the offenders who commit such offences. These offences are

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mentioned in Section 110.
GA
The information received by the Magistrate making an order under section 110 should not be
vague and it must indicate that the person to be bound over is really a habitual offender or a
AN

dangerous or desperate criminal. Mere use of a bad name to a person in the police report will not
,B

be a sufficient ground to proceed against him under this section.

W
LA

3. What is Charge? Explain the provisions under Cr.P.C. regarding Joinder of Charges.
OF

It is one of the basic requirements of a ‘fair trial’ that the person accused of an offence
E

must be informed about the definite accusation against him before initiating criminal trial so that
EG

he may prepare for his defence. The accusations are formulated and recorded in writing clearly
LL

indicating the offence and the relevant sections of I.P.C. and any special or local enactment
CO

under which he is being tried. The ‘charge’ is then read and explained to the accused.
N

• Every charge under this Code shall state the offence with which the accused is charged.
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• If the law which creates the offence gives it any specific- name, the offence may be
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described in the charge by that name only.

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 • If the law which creates the offence does not give it any specific name, so much of the

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definition of the offence must be stated as to give the accused notice of the matter with

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which he is charged.

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• The law and section of the law against which the offence is said to have been committed

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shall be mentioned in the charge.

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• The fact that the charge is made is equivalent to a statement that every legal condition

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required by law to constitute the offence charged was fulfilled in the particular case.

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• The charge shall be written in the language of the Court.
• If the accused, having been previously convicted of any offence, is liable, by reason of

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such previous conviction, to enhanced punishment, or to punishment of a different kind,

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for a subsequent offence, and it is intended to prove such previous conviction for the

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purpose of affecting the punishment which the Court may think fit to award for the
subsequent offence, the fact, date and place of the previous conviction shall be stated in
GA
the charge; and if such statement has been omitted, the Court may add it at any time
AN

before sentence is passed.

,B

Example:
W

A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a

LA

false property- mark. The charge may state that A committed murder, or cheating, or theft, or
extortion, or adultery, or criminal intimidation, or that he used a false property- mark, without
OF

reference to the definitions of those crimes contained in the Indian Penal Code, but the sections
E

under which the offence is punishable must, in each instance, be referred to in the charge.
EG

The charge shall contain such particulars as to the time and place of the alleged offence, and the
LL

person against whom, or the thing in respect of which, it was committed, as are reasonably
CO

sufficient to give the accused notice of the matter with which he is charged.
N
EE

Joinder of Charges
AM

Section 218 to 224 deal with joinder of charges and they must be read together. They all
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deal with the same subject-matter and set out different aspects of it. Section 218 lays down two
 fundamental rules regarding framing of charges. First, there should be a separate charge for each

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distinct offence, and second, there should be a separate trial for each such charge except in four

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cases mentioned in sections 219, 220, 221, and 223 of the code. Excepting the cases falling under

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any of these four sections, any joinder of charges in the same trial will be wholly illegal and it

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will vitiate the trial.

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219. Three offences of same kind within year may be charged together.-

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A. When a person is accused of more offences than one of the same kind committed within

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the space of twelve months from the first to the last of such offences, whether in respect

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of the same person or not, he may be charged with, and tried at one trial for, any number

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of them not exceeding three.
B. Offences are of the same kind when they are punishable with the same amount of

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punishment under the same section of the Indian Penal Code or of any special or local
law:
GA
AN

220: Trial for more than one offence:

,B

This section provides another exception to the general rule regarding joinder of charges
W

as laid down in section 218 of the code. The section applies to cases in which different offences
LA

are part of one transaction. If offences are committed in the cause of the same transaction they
may be tried together, although they are more than three in number and exceeding over a span of
OF

more than a year.

E

1) If, in one series of acts so connected together as to form the same transaction, more offences
EG

than one are committed by the same person, he may be charged with, and tried at one trial for,
LL

every such offence.

CO

Example: A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a
N

constable in whose custody B was. A may be charged with, and convicted of, offences under
EE

sections 225 and 333 of the Indian Penal Code.

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2) When a person charged with one or more offences of criminal breach of trust or dishonest
misappropriation of property as provided in sub-section (2) of section 212 or in sub-section (1)
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of section 219, is accused of committing, for the purpose of facilitating or concealing the
 commission of that offence or those offences, one or more offences of falsification of accounts,

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he may be charged with, and tried at one trial for, every such offence.

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3) If the acts alleged constitute an offence falling within two or more separate definitions of any

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law in force for the time being by which offences are defined or punished, the person accused of

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them may be charged with, and tried at one trial for, each of such offences.

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Example: Where it is doubtful what offence has been committed:- A wrongfully strikes B with a

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cane. A may be separately charged with and convicted of, offences under sections 352 and 323

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of the Indian Penal Code.

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(4) If several acts, of which one or more than one would by itself or themselves constitute an

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offence, constitute when combined a different offence, the person accused of them may be

LO
charged with, and tried at one trial for the offence constituted by such acts when combined, and
for any offence constituted by any one, or more, of such acts.
GA
Example: A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be
AN

separately charged with, and convicted of, offences under sections 323, 392 and 394 of the
,B

Indian Penal Code (45 of 1860).

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Section 221: Where it is doubtful what offence has been committed:

LA

1) If a single act or series of acts is of such a nature that it is doubtful which of several offences
OF

the facts which can be proved will constitute, the accused may be charged with having
E

committed all or any of such offences , and any number of such charges may be tried at once; or
EG

he may be charged in the alternative with having committed some one of the said offences.
LL

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he
CO

committed a different offence for which he might have been charged under the provisions of sub-
section (1), he may be convicted of the offence which he is shown to have committed, although
N

he was not charged with it.

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Illustrations
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 (a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal

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breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal

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breach of trust and cheating, or he may be charged with having committed theft, or receiving

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stolen property, or criminal breach of trust or cheating.

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(b) In the case mentioned, A is only charged with theft. It appears that he committed the offence

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of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal

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breach of trust or of receiving stolen goods (as the case may be), though he was not charged with

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such offence.

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222. When offence proved included in offence charged-

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(1) When a person is charged with an offence consisting of several particulars, a combination of

LO
some only of which constitutes a complete minor offence, and such combination is proved, but
the remaining particulars are not proved, he may be convicted of the minor offence, though he
GA
was not charged with it.
AN

(2) When a person is charged with an offence and facts are proved which reduce it to a minor
,B

offence, he may be convicted of the minor offence, although he is not charged with it.
W

(3) When a person is charged with an offence, he may be convicted of an attempt to commit such
LA

offence although the attempt is not separately charged.

OF

Example: When the accused is charged of an offence of robbery under Section 392, IPC, the
E

court can convict him for the offence of theft under section 379, IPC which is a minor offence.
EG

223.What persons may be charged jointly.-

LL

The following persons may be charged and tried together, namely:-

CO

(a) persons accused of the same offence committed in the course of the same transaction;
N
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(b) persons accused of an offence and persons accused of abetment of, or attempt to commit,
AM

such offence;

(c) persons accused of more than one offence of the same kind, within the meaning of section
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219 committed by them jointly within the period of twelve months;

 (d) persons accused of different offences committed in the course of the same transaction;

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(e) persons accused of an offence which includes theft, extortion, cheating, or criminal

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misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or

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concealment of, property possession of which is alleged to have been transferred by any such

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offence committed by the first-named persons, or of abetment of or attempting to commit any

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such last-named offence;

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(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code or either of

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those sections in respect of stolen property the possession of which has been transferred by one

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offence;

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(g) Persons accused of any offence under Chapter XII of the Indian Penal Code relating to

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counterfeit coin and persons accused of any other offence under the said Chapter relating to the
same coin, or of abetment of or attempting to commit any such offence; and the provisions
GA
contained in the former part of this Chapter shall, so far as may be, apply to all such charges:
AN
,B
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OF
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EG

4. What is Judgment? Explain the form and contents of a judgment and in what manner
LL

judgment is to be delivered?
CO

Judgment is the final decision of the court, given with reason, on the question of the guilt
N

or innocence of the accused person. It also includes Court’s decision as to the punishment the
EE

guilty person has to suffer or as to the conditions subject to which the offender is to be released
AM

without being punished. Thus it is the expression of the final opinion of the judge or Magistrate
arrived at after due consideration of the evidence and of the arguments.
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 Section 353 of the Cr.P.C. lays down the provisions relating to judgment. In every criminal trial,

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when the court finds the accused guilty, it has to punish the accused in accordance with law after

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hearing him and if the accused is not found guilty then acquit him. Judgment is the final

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reasoned decision or sentence of court in a legal proceeding. The judgment in every trial in any

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Criminal court of original jurisdiction shall be pronounced in open court by the presiding officer

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immediately after the termination of the trial or at some subsequent time of which notice shall be
given to the parties or their pleaders. It is a fundamental rule of criminal jurisprudence that the

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judge or Magistrate, who hears the evidence should write the judgment. It should contain the

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points of determination, decision and the reasons for the decision. It shall be dated and signed by

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the presiding officer in open court.

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Section 354: Language and Contents of Judgment:
GA
Every judgment shall be written in the language of the court. The state Government determines
AN

the language of the court.

,B

1. Every judgment shall contain the points for determination, the decision thereon and the
W

reasons for the decision.

LA

2. Every judgment shall specify the offence if any of which and the section of the IPC or other
OF

law under which, the accused is convicted and the punishment to which he is sentenced.
E

3. If the judgment is one of acquittal, it shall state the offence of which the accused is acquitted
EG

and direct that ‘he be set at liberty’.

LL

4. When any person is sentenced to death, the sentence shall direct that ‘he be hanged by the
CO

neck till he is dead’.

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Section 355: Metropolitan Magistrate’s Judgment:

EE

According to Section 355 the judgment given by a Metropolitan Magistrate shall be in an abridge
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form giving the following particulars only:

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• The serial number of the case

 • The date of the commission of the offence

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• The name of the complainant if any

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• The name of the accused person, and his parentage and residence

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• The offence complained of or proved

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• The pleas of the accused and his examination (if any)

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• The final order

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• The date of such order in all cases in which an appeal lies from the final order either

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under section 373 or under sub-section (3) of section 374, a brief statement of reasons for
the decision.

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RE
LO
POST CONVICTION ORDERS:

GA
If the accused is charged for the conviction of the offence he normally passes the appropriate
punishment. The Act provides for different types of orders according to the circumstances of the
AN

case.
,B

i. Release on Probation for good behavior: if at the time of conviction, the court should take
W

into consideration the circumstances in which the offence is committed. The court should
LA

take regard to the age, character or antecedents of the offender, and the circumstances in
which the offence was committed, if the court convicting the accused person considers it
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expedient to release the offender in probation of good conduct, it may direct:

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ii. If the convicted person is below 21 years and the offence is not punishable with death or
EG

imprisonment;
LL

iii. If the convicted person is not under 21 years and the offence is punishable with less than
CO

7 years imprisonment and if the conviction is for the first offence he may be ordered to be
released on bail with or without sureties, for keeping peace and good behavior
N

iv. Such release is permissible if there is no previous conviction proved against the offender.
EE

v. When the person convicted is a woman of any age, or any male person under 21 years of
AM

age and the offence is not punishable with death or imprisonment;

vi. Section 360 will not affect the provisions of the probation of offenders Act 1958 and he
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may be released on admonition which is wider than section 360 of Cr.P.C.

 vii. Young offenders: According to section 6 of the Probation of Offenders Act, if the

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offender is below 21 years and the offence is not punishable with death or imprisonment,

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unless satisfied it would be desirable to release him on admonition or on probation for

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good behavior and if sentences him to imprisonment he must record reasons.

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viii. Death Sentence: Even in capital offences, the policy of law is to avoid the debatable

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death penalty, but when it is awarded it shall be done by giving special reasons. If death
sentences are passed by a session court, it is subject to confirmation from the High court.

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ix. Sentence of imprisonment: the statute generally prescribes the maximum punishment

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awardable for an offence and the court is given a liberal way to fix the sentence for

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imprisonment subject to the maximum and its powers. The powers so exercised by the

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courts depend on various factors like the magnitude of the offence, motive, age character,
circumstances, etc. if person is awarded several punishments the court shall state whether

LO
they run concurrently or consecutively.
x.
GA
Sentence of fine: when fine is imposed, the court has also to state the imprisonment in
default of payment of fine subject to the limits prescribed by law.
AN

xi. Costs and Compensation:

,B

xii. The court imposing a fine independently or as a part of a sentence passed on conviction
W

may order the whole or any part of the fine to be applied.

LA

xiii. In defraying expenses property incurred in the prosecution.

xiv. In payment of compensation or any loss or injury caused by the offence to any person,
OF

when compensation is recoverable by filing a civil suit.

E

xv. When death of another person is caused or is abetted in paying compensation under the
EG

Fatal Accidents Act.

LL

xvi. In payment of compensation to a bona fide purchaser of stolen property or property

obtained by cheating.
CO

xvii. Even if fine is not imposed as a sentence on conviction, the court may order the accused
N

to pay compensation to a person who has suffered loss or injury by the act of the accused
EE

for which he is convicted. At the time of granting compensation in a subsequent civil suit,
AM

this amount paid has to be taken into account.

xviii. The compensation is not payable is not payable before the appeal time expired or if an
-
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appeal is filed until disposal of the appeal.

 xix. Compensation for frivolous arrest:

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xx. When a person caused a police officer to arrest a person and the magistrate thinks that it

w.
is caused without sufficient cause may award compensation not exceeding Rs.100/-. If

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more persons than one are arrested the Magistrate may grant such amount to each one of

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them. If it is not paid he may be detained in prison for up to 30 days.

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5. What is bail? Explain the procedure regarding the granting of bail in cases of bailable

ww
and nonbailable offences.

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Introducation

RE
The power to release the accused on bail under sections 436 and 437 vests in the court

LO
before whom he appears or is brought. The power of the Magistrate to grant bail does not depend
GA
upon his competence to try the case but on the punishment prescribed for the alleged offence.
AN

The object of granting bail being to secure the appearance of the accused person to
answer the charge at a specified time and place, the court while considering the bail application
,B

should take into consideration the nature and gravity of the offence charged, the likelihood of
W

accused’s involvement in it.

LA

MEANING OF BAIL:
OF

There is no definite definition of bail in the Code, although the terms bailable offences and non-
E

bailable offences have been defined. According to Law Lexicon Bail has been defined as a
EG

security for the appearance of the accused on giving which he is released pending trial or
LL

investigation.
CO

In other words, bail is to procure the release of a person from legal custody, by undertaking that
N

he shall appear at the time and place designated and submit himself to the jurisdiction and
EE

judgment of the court. In fact when a person is granted bail, he is deemed to be under the custody
AM

of the court.
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 TYPES OF BAIL:

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There are three types of Bails. They are as follows:

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1. Bail in Bailable Offences (Section 436)

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2. Bail in Non Bailable Offences (Section-437)

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3. Anticipatory Bail (Section-438)

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SECTION 436: CIRCUMSTANCES FOR GRANTING BAIL IN BAILABLE

RE
OFFENCES:

LO
Bail in bailable offences is mandatory until and unless the arrestee has not complied with
formalities of the bail. GA
1. where the arrestee is not accused of non-bailable offence:
AN

It covers to all cases of persons accused of bailable offences.

,B

•
• Where a person has failed to comply with conditions of the bail as regards the time and
W

place of attendance, the court may refuse to release him on bail.

LA

• Where a person has been released on bail by the police should seek fresh bail from the
OF

court.
E

2. Where the investigation is not completed within the time prescribed:-

EG

A person arrested without a warrant cannot be detained by the police for more than 24 hours
LL

• If the police officers consider it necessary for detaining such person for a longer period
CO

for the purpose of investigation it can be done so only on special orders from the
N

magistrate under section 167.

EE

• 90 days where the investigation relates to an offence punishable with death,

AM

imprisonment for life or imprisonment for term not less than ten years and
• Sixty days where the investigation relates to any offence
-
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 • On the expiry of such periods as state above the accused person shall be released on bail

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if he is prepared to and does furnish bail

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3. Where no reasonable grounds exist for believing the accused guilt of non-bailable

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offence.

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4. Where trial before magistrate not concluded within 60 days

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5. Where no reasonable grounds exist for believing the accused guilty after conclusion of

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trial before judgment.

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RE
SESCTION 437: PROCEDURE FOR GRANTING BAIL IN NON- BAILABLE

LO
OFFENCES:
GA
Granting of bail in non-bailable offences is the discretion of the court and it not mandatory.
AN

1. The discretion has to be exercised according to the following rules and principles as laid
down by the Code and judicial decisions. Some of circumstances to be followed are as follows:
,B
W

The enormity of charge,

LA

The nature of accusation,

The severity of the punishment which the conviction will entail,
OF

The nature of the evidence in support of the accusation,

E

The nature and gravity of the circumstances in which the offence is committed,
EG

The position and status of the accused with reference to the victim and the witnesses,
LL

The danger of witnesses being tampered with,

The likelihood of accused fleeing from justice,
CO

Probability of the accused committing more offences,

N

The protracted nature of the trial,

EE

The opportunity to the applicant for preparation of his defense and access to his counsel,
AM

The health, Age and sex of the accused person, etc.,

2. No bail in case of offence punishable with death or imprisonment for life.

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 3. Bail with conditions.

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In order to ensure that such person shall attend in accordance with the conditions of the

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bond executed.

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In order to ensure that such person shall not commit an offence similar to the offence of

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which he is accused of or the commission of which he is suspected, and

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That such person shall not directly or indirectly make any inducement, threat or promise

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to any person aquatinted with the facts to the court or to any police officer or tamper with

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the evidence.

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The Supreme Court in the case of Kusum Pande v. State of Uttar Pradesh held that while

RE
granting bail under Section 437 the court must use its discretion judiciously. Though the Court
need not go into detailed examination of evidence or documents for this purpose but it must

LO
satisfy itself that there is a prima facie case against the accused.
GA
In Rajesh Ranjan Yadav alias Pappu v. C.B.I. The apex Court observed that article 21 of
AN

the Constitution guarantees personal liberty to a person which is very important but at the same
time it cannot be forgotten that maintenance of peace and security in the society is equally
,B

important. Therefore, no fundamental right is absolute and it may be reasonably fettered or

W

restricted in the larger interest of the society.

LA
OF
E
EG
LL

6. Discuss the constitution and powers of juvenile justice board?

CO

INTRODUCTI ON:
N

The Act has been enacted with a view to introduce a uniform law relating to Juvenile justice for
EE

due protection and care of children and juvenile adolescents who commit an offence. It also sets
AM

out standard norms for the investigation and trial of juvenile offenders and to establish liaison
with the institutions associated with the welfare of juveniles also enacted in the Juvenile Justice
-
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 (Care and Protection of Children Amendment Act 2000 which is in accordance with Standard

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Rules laid down by the United Nations for juveniles in conflict with law.

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MEANING OF JUVENILE:

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Section 2(k) of Juvenile Justice (Care and Protection of Children Amendment Act 2000 defines:

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a person who has not completed eighteenth year of age.

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MEANING OF JUVENILE IN CONFLICT WITH LAW:

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Section 2 (l) of the Act defines: A juvenile who is alleged to have committed an offence and has

RE
not completed eighteenth years of age as on the date of commission of such offence.

LO
GA
POWERS OF THE JUVENILE JUSTICE BOARD:
AN

Constitution:
,B

The Juvenile Justice Board has been constituted for the inquiry and hearing in the case of
W

juvenile who is in conflict with law. It also lays down the qualifications for the appointments of
LA

the members of the board and conditions for removal.

OF

The state Government within a period of one year from the date of commencement of the
Juvenile Justice (Care and Protection of Children Amendment Act 2006 has by official Gazette,
E
EG

to constitute for every district one or more Juvenile Justice Boards (JJB) for exercising the
LL

powers and discharging the duties conferred or imposed on such Boards in relation to juveniles
in conflict with law.
CO

Section 4 of the Act provides the provision for the constitution of the Board
N
EE

• The Board shall consist of Metropolitan Magistrate or a judicial Magistrate of the First
AM

Class, as the case may be, and two social workers of whom at one shall be a woman,
forming a bench and every bench shall have the powers conferred by the Code of
-
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Criminal procedure code.

 • No Magistrate shall be appointed as a member of the Board unless he has special

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knowledge or training in child psychology or child welfare and social worker shall be

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appointed as a member of the Board unless he has been actively involved in health,

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education or welfare activities pertaining to children for at least seven years.

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• The term of office of the members of the Board and the manner in which such member

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may resign shall be such as may be prescribed.

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• The appointment of any member of the Board may be terminated after holding an

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inquiry, by the State Government, if

(w
•He has found guilty of misuse of power vested under this Act.

RE
• He has been convicted of an offence involving moral turpitude, an such conviction has been
reversed or he has not been granted full pardon in respect of such offence

LO
GA
• He fails to attend the proceedings of the Board for consecutive three months without any valid
reasons or he fails to attend less than three-forth of the sittings in a year.
AN
,B

Section 5 : Procedure in relation to Board:

W
LA

• The Board shall meet at such times and shall observe such rules of procedure in regard to the
transaction of business at its meetings as may be prescribed.
OF

• A child in conflict with law may be produced before an individual member of the Board, when
E
EG

the Board is not sitting.

LL

• A Board may act notwithstanding the absence of any member of the Board and no order made
by the Board shall be invalid by reason only of the absence of any member during any stage of
CO

proceedings:
N

Provided that there shall be at least two members including the principal Magistrate present at
EE

the time of final disposal of the case

AM
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 • In the event of any difference of opinion among the members of the Board in the interim or

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final disposition, the opinion of the majority shall prevail, but where there is no such majority,

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the opinion of the principal Magistrate shall prevail.

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ee
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Section 6: Powers of Juvenile Justice Board:-

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• The main object of setting up the Juvenile Justice Board is not only to bring about reformation

ww
in the Juvenile in conflict with law but to ensure that the legal consequences of his criminal act
do not adversely affect his future life as also to prevent him from stigmatization.

(w
RE
• Where a Board has been constituted for any district such board shall not withstanding anything
contained in any other law for the time being in force but save as otherwise expressly provided in

LO
this Act, have power to deal exclusively with all the proceedings under this Act relating to
juvenile in conflict with law.
GA
AN

• The powers conferred on the Board by or under this Act may also be exercised by the High
Court and the Court of Session, when the proceedings comes before them in appeal, revision or
,B

otherwise.
W
LA

In State of Karnataka v. Harshad, the High Court held that where the Juvenile Justice Board has
been constituted under Section 4 of the Juvenile Justice Act, such Board would have exclusive
OF

power of dealing with trial of juveniles in conflict with law and would bar the jurisdiction of any
E

court including that of the sessions court or fast track Court.

EG
LL

• When a juvenile in conflict with law is found guilty of having committed an offence, instead of
CO

sentencing hi the Board may pass any order as provided in Section 15 of the Act against him so
N

that the juvenile is saved from a stigma of being called as a ‘convict’.

EE

• Section 15: Order that may be passed regarding juvenile:

AM

Order that may be passed regarding juvenile.—

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 (1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then,

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notwithstanding anything to the contrary contained in any other law for the time being in force,

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the Board may, if it so thinks fit,—

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(a) allow the juvenile to go home after advice or admonition following appropriate inquiry

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against and counselling to the parent or the guardian and the juvenile;

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(b) direct the juvenile to participate in group counselling and similar activities;

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(c) order the juvenile to perform community service;

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(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen

RE
years of age and earns money;

LO
(e) direct the juvenile to be released on probation of good conduct and placed under the care of
any parent, guardian or other fit person, on such parent, guardian or other fit person executing a
GA
bond, with or without surety, as the Board may require, for the good behaviour and well-being of
AN

the juvenile for any period not exceeding three years;

,B

(f) direct the juvenile to be released on probation of good conduct and placed under the care of
W

any fit institution for the good behaviour and well-being of the juvenile for any period not
LA

exceeding three years; 1[(g) make an order directing the juvenile to be sent to a special home for
a period of three years: Provided that the Board may, if it is satisfied that having regard to the
OF

nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be
E

recorded, reduce the period of stay to such period as it thinks fit.]

EG

(2) The Board shall obtain the social investigation report on juvenile either through a probation
LL

officer or a recognised voluntary organisation or otherwise, and shall take into consideration the
CO

findings of such report before passing an order.

N
EE
AM

7. Discuss the powers of the courts to release offenders after admonition and on probation
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of good conduct.
 Introduction:

in)
The modern correctional methods of treatment of offenders such as probation, parole,

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indeterminate sentence and other minimum security devices are being extensively used

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throughout the civilized world for the reformation and rehabilitation of offenders as normal

ee
members of society. The release of offenders on probations is a treatment device prescribed by

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the court for persons convicted of offences against the law, during which the probationer lives in

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the community and regulates his own life under conditions imposed by the court of other

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constituted authority, and is subject to supervision by a probation officer.

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Meaning of Probation:

RE
Probation is a method of treatment of offenders who are considered fit to respond favourably to

LO
the rehabilitative processes within the society itself, without the necessity of being sent to
institutional prisons. The term ‘Probation’ is derived from the latin word ‘Probare’ which means
GA
‘to test’ or to prove’. It is a custodial suspension of sentence of an offender who is not likely to
AN

resume a criminal career if kept under careful supervision, guidance and control.
,B
W

POWERS OF THE COURT TO RELASE THE OFFENDERS AFTER ADMONITION:

LA

According to Section 3 of the Probation of offenders Act, 1956:

OF

1. Any person is found guilty of having committed:

E
EG

(i) Any offence punishable under section 379 or Section 380 or 381 or 404 or 420 of IPC.
LL

(ii) Any offence punishable with imprisonment for not more than two years, or with fine, or
CO

with both under the IPC or any other law.

N

(iii) No previous conviction proved against him.

EE

(iv) The court finding guilty is of opinion that having regard to the circumstances of the case
AM

including the nature of the offence and the character of the offence, it is expedient so to do.
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 By virtue of Section 4 of the Probation of offenders Act the act applies to such offences where

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the Trial court convicted the offender but instead of sentencing him ordered to be released on

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probation. The Act provides a chance to the offender for his reformation.

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ee
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POWERS OF COURT TO RELEASE CERTAIN OFFENDERS ON PROBATION OF
GOOD CONDUCT:

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• When any person is found guilty of having committed an offence not punishable with
death or imprisonment for life and the court by which the person is found guilty is of the opinion

(w
that, having regard to the circumstances of the case including the nature of the offence and the

RE
character of the offender, it is expedient to release him on probation of good conduct after

LO
entering into a bond with or without sureties, to appear and receive sentence when called upon
during such period, not exceeding 3 years, as court may direct and in the meantime to keep the
GA
peace and be of good behavior.
AN

• The court shall release such offender unless it has not satisfied by the offender or his
,B

surety and enters into a bond.

W

• Before making an order, the court shall take into consideration the report of the probation
LA

officer concerned in relation to the case.

OF

• When an order is made, the court may, if it is of the opinion that in the interest of the
E

offender and of the public it is expedient so to do, in addition pass a supervision order directing
EG

that the offender shall remain under the supervision of the probation officer named in the order
LL

during such period, not being less than one year. The supervision order may impose such
conditions as it deems necessary for the due supervision of the offender.
CO

• The court making a supervision order shall require the offender, before he is released, to
N

enter into a bond, with or without sureties, to observe the conditions specified in such order and
EE

such additional conditions with respect to residence, abstention from intoxicants or any other
AM

matter as the court may have regard to the particular circumstances for preventing a repetition of
the offence.
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 • The court making the supervision order shall explain to the offender the terms and

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conditions of the order and shall forthwith furnish one copy of the supervision order to each of

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the offenders, the sureties, if any, and the probation officers concerned.

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The Supreme Court in Prakash v. State of Madhya Pradesh ordered the release of accused who

ee
was found guilty and convicted for an offence under Section 324 I.P.C. on probation of good

am
conduct keeping in view that nature of his offence, circumstances and antecedents of the

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offender. In this case, the accused was an employee of the Municipality was a first offender and

ww
his offence was not premeditated and the injury caused to the victim was not grave or serious.
The Supreme Court held that these grounds were sufficient to entitle the accused to be released

(w
on probation.

RE
LO
GA
AN

8. Short Notes: (any two)

,B
W

a) Summons
LA

Sections 61 to 69 of Cr.P.C. deal with the summons. Summons may be issued to the accused as
OF

well as to other persons to appear before the court to:-

E

1) Produce documents or thing

EG

2) To a witness to attend or to produce any document or thing

LL

3) To the accused persons

CO

4) To a witness
N
EE

Section 61: Form of summons

AM

Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the
presiding officer of such Court or by such other officer as the High Court may, from time to
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time, by rule direct, and shall bear the seal of the Court.
 Section 62: Summons how served

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1. Every summons shall be served by a police officer, or subject to such rules as the State

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Government may make in this behalf, by an officer of the Court issuing it or other public servant.

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2. The summons shall, if practicable, be served personally on the person summoned, by

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delivering or tendering to him one of the duplicates of the summons.

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3. Every person on whom a summons is so served shall, if so required by the serving

ww
officer, sign a receipt therefore on the back of the other duplicate.

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Section 63: Service of summons on corporate bodies and societies:

RE
Service of a summons on a corporation may be effected by serving it on the secretary, local

LO
manager or other principal officer of the corporation, or by letter sent by registered post,
addressed to the chief officer of the corporation in India, in which case the service shall be
GA
deemed, to have been effected when the letter would arrive in ordinary course of post.
AN

Section 64: Service when persons summoned cannot be found:

,B

Where the person summoned cannot, by the exercise of due diligence, be found, the summons
W

may be served by leaving one of the duplicates for him with some adult male member of his
LA

family residing with him, and the person with whom the summons is so left shall, if so required
OF

by the serving officer, sign a receipt therefore on the back of the other duplicate.
E

Section 65: Procedure when service cannot be effected as before provided:

EG

If service cannot by the exercise of due diligence be effected as provided in section 62, section
LL

63 or section 64, the serving officer shall affix one of the duplicates of the summons to some
CO

conspicuous part of the house or homestead in which the person summoned ordinarily resides;
and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the
N

summons has been duly served or order fresh service in such manner as it considers proper.
EE
AM

Section 66: Service on Government Servant:

1) Where the person summoned is in the active service of the Government, the Court issuing the
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summons shall ordinarily send it in duplicate to the head of the office in which such person is
 employed; and such head shall thereupon cause the summons to be served in the manner

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provided by section 62, and shall return it to the Court under his signature with the endorsement

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required by that section.

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2) Such signature shall be evidence of due service.

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Section 67: Service of summons outside local limits:

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When a Court desires that a summons issued by it shall be served at any place outside its local

ww
jurisdiction, it shall ordinarily send summons in duplicate to a Magistrate within whose local
jurisdiction the person summoned resides, or is, to be there served.

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RE
Section 68: Proof of service in such cases and when serving officer not present

LO
1) When a summons issued by a Court is served outside its local jurisdiction, and in any case
where the officer who has served a summons is not present at the hearing of the case, an
GA
affidavit, purporting to be made before a Magistrate, that such summons has been served, and a
AN

duplicate of the summons purporting to be endorsed (in the manner provided by section 62 or
section 64) by the person to whom it was delivered or tendered or with whom it was left, shall be
,B

admissible in evidence, and the statements made therein shall be deemed to be correct unless and
W

until the contrary is proved.

LA

Section 69: Service of summons on witness by post:

OF

1) Notwithstanding anything contained in the preceding section of this Chapter, a Court issuing a
E

summons to a witness may, in addition to and simultaneously with the issue of such summons,
EG

direct a copy of the summons to be served by registered post addressed to the witness at the place
LL

where he ordinarily resides or carries on business or personally works for gain.

CO

2) When an acknowledgment purporting to be signed by the witness or an endorsement

N

purporting to be made by a postal employee that the witness refused to take delivery of the
EE

summons has been received, the Court issuing the summons may declare that the summons has
AM

been duly served.

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 b) Transfer of Criminal Cases

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Sections 406 to 412 of the code deal with the transfer of criminal cases. In the interests of the

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accused and to ensure fair trial, the code confers on the accused a right to have his case

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transferred, when he is doubtful of fair trial by a particular judge. Independence of courts and

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impartiality in handling cases are the two attributes of criminal justice administration in order to

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ensure fair and impartial trial.

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POWER OF THE SUPREME COURT TO TRANSFER CASES AND APPEALS:

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(SECTION 406)

RE
i. Supreme Court has been vested with wide discretionary powers to transfer a case or

LO
appeal from one high court to another or from a Criminal subordinate to one High court
GA
to another criminal court of equal or superior courts.
ii. Such transfer from the supreme court may be made by the on the application from the
AN

Attorney-General of India or Advocate General of the state or party interested which

,B

includes the complainant, the public prosecutor, accused and even the person who lodge
W

the FIR.
LA

iii. The Supreme Court shall exercise the power to transfer a case if the party interested
shows that there are circumstances indicating reasonable apprehensions that fair justice
OF

may not be possible in a court dealing with a case or appeal.

E

iv. The Supreme Court can order transfer even without the request of the party if it is
EG

convicted that such a step is necessary in the interest of justice.

LL

v. If the Supreme Court feels that there is something more substantial, more compelling,
more imperiling from the point of view of public justice is necessary for directing a
CO

transfer.
N

vi. Where an application for transfer has been dismissed, and if found to be frivolous or
EE

vexatious, the Supreme Court may order the applicant to pay appropriate compensation
AM

not exceeding Rs.1,000/- to any person opposing the transfer application.

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 POWER OF THE HIGH COURT TO TRANSFER CASES AND APPEALS: SEC.407:

)in
This section empowers a High Court to transfer a case suo motto or when the lower court

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applies for it or a party so applies to any other court of equal or superior jurisdiction within the

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state on any one or more o the following grounds.

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1. When fair and impartial inquiry or trial does not seem possible.

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2. Possibility of unusual difficulty on a question of law arising in the case is likely.

ww
3. When the transfer is necessary under ay provision of the code of criminal procedure.

(w
4. For general convinced of the parties or witnesses.

RE
5. When transfer is deemed necessary to meet the ends of justice.

LO
Where the parties want a transfer of their case to any other court under this section their
GA
application must e accompanied by an affidavit and the public prosecutor should have notice of
AN

such transfer at least 24 hours in advance. The High court may also order the applicant to execute
a bond for the costs of the opposite party.
,B
W

• The proceedings if already initiated by the subordinate court when the application for
LA

transfer of case is made by a party need not be stayed at that stage unless the high court
orders them to be stayed.
OF

• The High court while exercising the jurisdiction under this section, may pass any of the
E

following orders regarding the transfer of cases-

EG

• That any case or appeal to be inquired into or tried by a court which is otherwise
LL

competent though not empowered under Section 177 to 185 of the code.
That any case or appeal is transferred to another court or the proceedings be stayed.
CO

•
• That the case be committed to a court of Session; or
N

• That any case or appeal be transferred to High court itself.

EE
AM

POWER OF THE SESSIONS JUDGE TO TRANSFER CASES AND APPEALS;

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SECTION 408:
 • Like the High court under section 407, the court of Session may also exercise the power

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of transfer cases under this section either suo motto or on the report of the Lower Court

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or an application of a party concerned when it deems it expedient to do so in the interest

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of justice and fair play. However the power under this section should be judicially and

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carefully exercised by the session courts.

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• The provisions contained in sub-sections 3to7 and 9 of Section 407shall be applicable to

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applications for transfer of cases made to the court of Session with the only difference

ww
that the maximum compensation awarded for frivolous or vexatious applicants for
transfer will not exceed Rs.250/- instead of Rs.1,000/-.

(w
• Under this section, a Session Judge cannot transfer a case which is before a Sub-

RE
Divisional Executive magistrate or pass any interim order in this regard. Such power has
been vested in the District magistrate under Section 411 of the Code.

LO
GA
AN
,B
W
LA
OF
E
EG
LL
CO
N

c) Irregular proceedings
EE

Sections from 460 to 466 deal with the irregular proceedings. Section 460 deals with
AM

Irregularities which do not vitiate proceedings, and Section 461deals irregularities which vitiate
-

proceedings.
AL
 Section 460: Irregularities which do not vitiate proceedings.

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If any Magistrate not empowered by law to do any of the following things, namely:

w.
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• to issue a search-warrant under section 94;

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• to order, under section 155, the police to investigate an offence;

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• to hold an inquest under section 176;

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• to issue process under section 187, for the apprehension of a person within his local

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jurisdiction who has committed an offence outside the limits of such jurisdiction;
• to take cognizance of an offence under clause (a) or clause (b) of Sub-Section (1) of

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section 190;

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• to make over a case under Sub-Section (2) of section 192;

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• to tender a pardon under section 306;
• to recall a case and try it himself under section 410; or
GA
• to sell property under section 458 or section 459,
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erroneously in good faith does that thing, his proceedings shall not be set aside merely on the
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ground of his not being so empowered.

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Section 460 enumerates the irregularities which, if committed erroneously and in good faith, will
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not vitiate the proceedings provided no prejudice or injustice is caused thereby to any party. The
section, however will not protect deliberate negligence or willful disregard of any provision of
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the code and the binding precedents of the superior court.

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Section 461: Irregularities which vitiate proceedings:

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If any Magistrate, not being empowered by law in this behalf, does any of the following things,
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namely:
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• attaches and sells property under section 83;

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• issues a search-warrant for a document, parcel or other thing in the custody of a postal or
telegraph authority;
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• demands security to keep the peace;

 • demands security for good behaviour;

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• discharges a person lawfully bound to be of good behaviour;

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• cancels a bond to keep the peace;

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• makes an order for maintenance;

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• makes an order under section 133 as to a local nuisance;

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• prohibits, under section 143, the repetition or continuance of a public nuisance;

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• makes an order under Part C or Part D of Chapter X;

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• takes cognizance of an offence under clause © of Sub-Section (1) of section 190;
• tries an offender;

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• tries an offender summarily;

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• passes a sentence, under section 325, on proceedings recorded by another Magistrate;

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• decides an appeal;
• calls, under section 397, for proceedings; or GA
• revises an order passed under section 446,
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• his proceedings shall be void.

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• The irregularities mentioned in this section would render the proceedings void whether
they are caused erroneously or in good faith. Such proceedings are bound to be quashed.
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No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that
the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took
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place in a wrong sessions division, district, sub-division or other local area, unless it appears that
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such error has in fact occasioned a failure of justice.

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Thus the irregularity of wrong assumption of territorial jurisdiction, is curable under this
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section where the proceedings have not resulted in failure of justice.

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9. Solve any two problems

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a) ‘A’ an accused is produced before the Magistrate after the expiry of 24 hours of his
arrest. He seeks his release on the ground that production of him before the Magistrate
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after 24 hours of his arrest rendered the custody illegal. Decide.

 Ans.

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According to Section 57 of Criminal Procedure Code1973 deals with person arrested not to be

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detained more than twenty-four hours. No police officer shall detain in custody a person arrested

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without warrant for a longer period than under all the circumstances of the case is reasonable,

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and such period shall not, in the absence of a special order of a Magistrate under Section 167,

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exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest

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to the Magistrate’s Court.

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In the case of Sharifbai v. Abdul Rajak, AIR 1961 Bombay 42, it was held that where a

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police officer fails to produce an arrested person before a Magistrate within 24 hours of the

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arrest, he shall be held guilty of the offence of wrongful detention.

LO
In the said problem accused was produced before the magistrate after 24 hours of his
arrest and he seeks his release on the ground that production of him before the magistrate after
GA
24 hours of his arrest rendered the custody illegal. He has fundamental right under Indian
AN

Constitution as well and According to Article 22(2) of Indian Constitution every person who is
arrested and detained in custody shall be produced before the nearest magistrate within a period
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of twenty four hours of such arrest excluding the time necessary for the journey from the place of
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arrest to the court of the magistrate and no such person shall be detained in custody beyond the
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said period without the authority of a magistrate. So he can seek his release on the ground that
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production of him before the Magistrate after 24 hours of his arrest rendered the custody illegal.
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b) A first class magistrate convicts ‘X’ on his plea of guilty. ‘X’ desires to appeal against the
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conviction. Decide.
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Ans:
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Section 375 of Cr.P.C provides no appeal shall lie when accused pleads guilty. According to this
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section where an accused person has pleaded guilty and has been convicted on such plea, there
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shall be no appeal if the conviction is by a High Court or if the conviction is by a Court of

Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the
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extent or legality of the sentence.

 The section is based on the principle that a plea of guilty by an accused person operates

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as a waiver of right to question the legality or his conviction on such a plea. But before applying

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the bar provided in this section against a convicted person, it must be ascertained that the plea of

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his guilt has not been obtained by trickery, and that it is a genuine plea.

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It must be stated that a person when pleading guilty, does not commit himself to accept

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the punishment that would be passed against him irrespective of its nature and legality.

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Therefore, there is no reason to deny him the right to challenge the extent or legality of the

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sentence by way of appeal. However, this section denies the accused who has pleaded guilty
right to appeal in cases conviction is by a High Court or if the conviction is by a Court of

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Session, Metropolitan Magistrate or Magistrate of the first or second class.

RE
In the given problem a first class magistrate convicts ‘X’ on his plea of guilty. So ‘X’

LO
cannot prefer appeal against the conviction except as to the extent or legality of the sentence.
GA
c) An accused is arrested in a bailable offence and he is released on bail. During trial, he
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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
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section 436(1), Cr.P.C, which provides that a person accused of a bailable offence shall be
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released on bail. Whether court can release him on bail or not. Decide.
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Ans.
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According to Section 436 (1) of Cr.P.C When any person other than a person accused of a non-
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bailable offence is arrested or detained without warrant by an officer in charge of a police

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station, or appears or is brought before a Court, and is prepared at any time while in the custody
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of such officer or at any stage of the proceeding before such Court to give bail, such person shall
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be released on bail: Provided that such officer or Court, if he or it thinks fit, may, instead of
taking bail from such person, discharge him on his executing a bond without sureties for his
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appearance.
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AM

In Waman N. Ghiye v. State of Rajasthan, Supreme Court held that Right to be released
on bail in case of a bailable offence being a legal and constitutional right of the accused person,
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 refusal of this right is a curtailment of the right of personal liberty guaranteed by Article 21 of

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the Indian Constitution and therefore, there should be no question of discretion in granting bail.

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In the said problem accused was arrested in a bailable offence and he was released on

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bail. During trial, he absconded and non-bailable warrant was issued against him. The police

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arrested him and produced him before the court. The defence counsel pleads for his release on

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bail under section 436(1) Cr.P.C, which provides that a person accused of a bailable offence,

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shall be released on bail.

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In the given problem court cannot release him on bail since accused absconded and breached the

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condition of bail.

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Section 436 Subsection (2) provides that where a person accused of a bailable offence has been

LO
released on bail pending his trial, if he absconds or commits a breach of the condition of bail-
bond cause such person to be arrested and to be kept in custody cancelling his bail-bond.
GA
Where an accused misuses his bail-bond or has jumped bail, he shall forfeit his right to be
AN

released on bail even in case of a bailable offence.

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