Legum Baccalaureus (LLB) -PAPER-II: CRIMINAL PROCEDURE CODE/ BNSS 5th Semester Syllabus Short Notes
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PAPER-II
UNIT – I
BNSS
The
Bharatiya Nagarik Suraksha Sanhitha (BNSS) is the proposed legislation designed
to replace the Code of Criminal Procedure, 1973 (Cr.P.C.) in India. It is part
of a broader initiative to reform and modernize criminal laws, making them more
effective, citizen-centric, and in tune with contemporary needs.
OBJECT AND IMPORTANCE
The
Bharatiya Nagarik Suraksha Sanhitha (BNSS) is designed to modernize and replace
the Code of Criminal Procedure, 1973 (Cr.P.C). Its main objectives are:
-
Simplification of Procedures:
Streamlines criminal proceedings to reduce delays in justice delivery.
-
Victim-Centric Approach:
Introduces provisions to enhance victim rights, ensure fair compensation, and
involve victims actively in the justice process.
-
Technological Integration: Encourages
the use of electronic communication, e-filings, and virtual hearings to
modernize court procedures.
-
Transparency and Accountability:
Strengthens the roles of courts, prosecutors, and police to ensure proper
checks and balances.
-
Efficient Justice Delivery: Promotes
quick trials, plea bargaining, and alternate dispute resolution methods to
avoid prolonged litigation.
COMPARISON WITH CR.P.C, 1973
The BNSS
incorporates several reforms while retaining some principles of the Cr.P.C. Key
differences include:
|
Aspect |
Cr.P.C.,
1973 |
BNSS |
|
Technological
Use |
Limited
provisions for electronic systems. |
Encourages
e-filings, virtual trials, and online FIR registrations. |
|
Victim Rights |
Focused
more on the accused. |
Prioritizes
victims by ensuring active participation and fair compensation. |
|
Time-bound
Proceedings |
No
strict timelines for trials. |
Strict
timelines for filing charges and completing trials to reduce delays. |
|
Role of Police and Prosecution |
General
procedures for investigation and prosecution. |
Clear
guidelines for accountability, streamlined processes, and updated roles. |
BNSS
emphasizes efficiency, fairness, and the use of modern technology, unlike the
procedural rigidity of the Cr.P.C.
DEFINITIONS, DIFFERENCE BETWEEN COGNIZABLE AND NON-COGNIZABLE OFFENCES
Cognizable
Offences:
-
These are serious crimes where the police have the
authority to:
-
Register an FIR without magistrate approval.
-
Arrest the accused without a warrant.
-
Start the investigation immediately.
-
Examples: Murder, theft, rape, robbery.
Non-Cognizable
Offences:
-
These are relatively less serious crimes where the
police need:
-
Magistrate approval to register an FIR.
-
Permission to start the investigation or make arrests.
-
Examples: Defamation, public nuisance, forgery, simple
assault.
Key
Distinctions:
-
Severity of Crime:
Cognizable offences are severe and pose an immediate threat to public safety,
while non-cognizable offences are minor.
-
Police Authority: Police can
act independently in cognizable offences but require judicial oversight for
non-cognizable offences.
-
Legal Implications:
Cognizable offences typically result in more stringent punishments.
BAILABLE AND NON BAILABLE OFFENCES
BAILABLE
OFFENCES
Definition:
Bailable offences are those where the accused has an inherent right to be
granted bail, either by the police or the court. The police officer or
magistrate can release the accused without judicial intervention.
Examples:
-
Minor theft (Section 379, IPC)
-
Public nuisance (Section 268, IPC)
-
Cheating (Section 420, IPC) in certain cases
Legal
Provision: Section 436 of the Criminal Procedure Code (CrPC),
1973 provides the right of the accused to be granted bail in bailable offences.
Procedure:
-
When an accused is arrested for a bailable offence,
they can be granted bail by the police officer or the magistrate without much
delay.
-
A bail bond is executed by the accused or their
surety, ensuring their appearance in court.
NON-BAILABLE
OFFENCES
Definition:
Non-bailable offences are serious criminal offences where the accused does not
have an inherent right to bail. The grant of bail depends on judicial
discretion, and it is granted based on factors like the seriousness of the
offence, the likelihood of the accused fleeing, or influencing witnesses.
Examples:
-
Murder (Section 302, IPC)
-
Rape (Section 376, IPC)
-
Kidnapping (Section 363, IPC)
-
Terrorist activities (Under the Unlawful Activities
(Prevention) Act, 1967)
Legal
Provision: Section 437 of the CrPC, 1973 governs the granting
of bail in non-bailable offences. Courts have the discretion to grant bail in
such cases after considering the nature and gravity of the offence.
Procedure:
-
Bail is not granted automatically and must be sought
through the court.
-
In some cases, the accused may apply for anticipatory
bail under Section 438 of CrPC before arrest.
INVESTIGATION
Definition:
Investigation is the process of collecting evidence by law enforcement
authorities (mainly the police) to ascertain whether a crime has been committed
and to identify the perpetrator. Investigation is a critical part of the
criminal justice process.
Legal
Framework:
-
Section 154-173 of the BNSS deals with the procedure
for investigation.
-
Section 154: First Information Report (FIR) is
registered by the police when information of a cognizable offence is received.
-
Section 156-158: Police can investigate without prior
approval from a magistrate in cognizable offences.
Process:
-
FIR Registration: A complaint is filed which forms the
basis of the investigation.
-
Collection of Evidence: Police gather material
evidence (physical items, documents) and witness statements to establish the
case facts.
-
Interrogation: The accused and witnesses may be
interrogated to gather information.
-
Arrest: If evidence is strong, the accused may be
arrested (with or without a warrant depending on the case).
-
Final Report (Charge Sheet): After completing the
investigation, the police file a charge sheet or a closure report before the
court.
Role of
Police:
Police
officers are responsible for investigating offences and gathering evidence.
They also have the authority to arrest individuals and maintain order during
the investigation.
Duration:
According to Section 167 of BNSS, the police must complete their investigation
within 24 hours of arrest, and a report must be submitted to the magistrate. In
exceptional cases, this can be extended.
INQUIRY AND TRIAL-CLASSIFICATION OF CRIMINAL COURTS, JURISDICTION AND
POWERS OF THE CRIMINAL COURTS, DIRECTORATE OF PROSECUTION
INQUIRY
Definition:
An inquiry is the preliminary judicial investigation to determine whether there
is sufficient ground to proceed with a trial. It is conducted by a magistrate
and helps decide whether a case should be dismissed or proceed to trial.
Procedure:
-
Magisterial Inquiry: The magistrate examines whether
the charge against the accused is valid and whether there is enough evidence to
send the accused to trial.
-
The inquiry may involve the examination of the
accused, witnesses, and presentation of evidence.
-
Section 202 of BNSS: Empowers the magistrate to
conduct an inquiry to determine whether a cognizable offence has been committed
and whether there is a reasonable ground for proceeding with the case.
TRIAL
Definition:
The trial is the judicial process in which the facts of a case are presented
before a court to determine the guilt or innocence of the accused. The court
evaluates the evidence presented by both the prosecution and the defense.
Types of
Trials:
-
Warrant Cases: Serious cases (e.g., murder, robbery)
where a magistrate or sessions court tries the case. These are typically
non-bailable offences.
-
Summons Cases: Less serious cases (e.g., small theft,
mischief) where the magistrate tries the case summarily, usually involving
bailable offences.
-
Summary Trials: These are conducted in cases where the
offence is punishable by less than 2 years of imprisonment, and the trial
procedure is simplified.
-
Sessions Trials: For more serious cases, such as
murder, rape, or terrorism. These cases are heard by a sessions court judge
after an inquiry.
JURISDICTION
OF CRIMINAL COURTS
District
Courts: The sessions court handles serious offences such as
murder and terrorism.
Magistrate
Courts: Handle less serious criminal cases, ranging from
petty theft to causing harm to others.
High
Court: Appeals and revisions against the orders of district
courts and magistrate courts.
Supreme
Court: The final appellate court in criminal matters.
POWERS OF
CRIMINAL COURTS
Sessions
Court: Can impose life imprisonment and death penalty.
Magistrates:
Can impose imprisonment up to 3 years and fines.
High Court:
Can hear appeals and review lower courts' decisions.
Supreme
Court: Can hear appeals against judgments from lower courts
and address constitutional matters.
DIRECTORATE
OF PROSECUTION
Role:
-
The Directorate of Prosecution ensures the fair and
effective prosecution of criminal cases.
-
It supervises public prosecutors and ensures they
handle cases according to legal standards.
-
The Directorate oversees the entire prosecution
process, including investigation coordination, legal advice to police, and case
management.
-
It ensures that the evidence is properly presented in
court for fair adjudication.
Legal
Framework: Under Section 24 of BNSS, the Directorate of
Prosecution has the responsibility to ensure that criminal trials are conducted
fairly and efficiently, and public prosecutors represent the state in legal
matters. The prosecutors work with the police to ensure a cohesive and
coordinated criminal justice process.
ROLE OF PROSECUTORS UNDER BNSS
Definition:
Prosecutors represent the state in criminal proceedings and are responsible for
presenting evidence and arguments against the accused to prove their guilt.
Key Responsibilities:
Filing
Charges: Prosecutors are responsible for filing charges
against the accused after the investigation, ensuring that the charges are
legally sound and supported by evidence.
Conducting
Trials: In criminal trials, prosecutors present evidence,
examine witnesses, and make arguments to prove the guilt of the accused.
Supervising
Investigation: They assist and guide law enforcement agencies during
the investigation process by ensuring that proper procedures are followed and
that the evidence collected is admissible in court.
Appeals:
Prosecutors have the right to appeal if the trial court acquits the accused or
imposes a lesser sentence than warranted by law.
Legal
Guidance: They also provide legal advice to the police and
guide the course of the investigation to ensure fairness and adherence to the
law.
Legal
Framework: Under Section 24 of the BNSS, public prosecutors are
appointed by the government, and their primary duty is to serve the public
interest by ensuring that justice is done. They are independent of the police
and are expected to perform their duties without bias.
ROLE OF DEFENCE LAWYER
Definition:
A defence lawyer is a legal professional who represents the accused and ensures
that their rights are protected during the trial process. They provide a
defense strategy to challenge the prosecution's case.
Key
Responsibilities:
Providing
Legal Representation: Defence lawyers represent their clients in criminal
trials, ensuring that the accused receives a fair trial and that their
constitutional rights are protected.
Challenging
Evidence: They have the duty to challenge the prosecution’s
evidence, cross-examine witnesses, and present counter-evidence to create doubt
about the accused's guilt.
Advising
the Accused: Defence lawyers provide legal advice to their
clients about the charges, the trial process, and the potential consequences of
a conviction or plea.
Negotiating
Plea Deals: In some cases, defence lawyers may negotiate a plea
deal with the prosecution, allowing the accused to plead guilty to lesser
charges in exchange for a reduced sentence.
Appeals:
If the accused is convicted, the defence lawyer can file an appeal to a higher
court seeking a review of the conviction or sentence.
Legal
Framework: Under the Indian Constitution, the right to legal
representation is a fundamental right under Article 22(1), which guarantees
protection against arbitrary arrest and detention. The Criminal Procedure Code
(CrPC) further ensures the right to a defence lawyer in criminal cases.
ROLE OF PUBLIC-ROLE OF PRISONS AND CORRECTIONAL METHODS
Role of the
Public
Public
Participation: In criminal justice, the public plays a significant
role in ensuring that law and order are maintained. They contribute to the
functioning of the system in several ways:
Reporting
Crimes: Citizens have a responsibility to report crimes they
witness or are aware of, assisting law enforcement agencies in starting
investigations.
Witnesses:
The public can serve as witnesses in criminal cases, providing essential
testimony to assist in the administration of justice.
Public
Pressure: In some cases, the public’s demand for justice can
influence the speed and fairness of criminal proceedings, though this should
not result in mob justice or unlawful interference.
Role of
Prisons and Correctional Methods
Prisons:
Prisons serve as custodial institutions where individuals are held while
awaiting trial or serving a sentence after being convicted of an offence.
Rehabilitation:
Prisons play a crucial role in the rehabilitation of offenders, helping them
reintegrate into society as law-abiding citizens.
Security:
Prisons provide security to society by ensuring that convicted individuals are segregated
from the community while they serve their sentence.
Correctional
Programs: These programs are designed to address the root
causes of criminal behavior, such as drug addiction, mental health issues, or
lack of education, to reduce the risk of reoffending.
Correctional
Methods:
Probation:
Offenders may be released on probation under the supervision of a probation
officer, allowing them to serve their sentence in the community rather than in
prison.
Parole:
Inmates may be granted early release under parole, subject to the conditions
that they do not reoffend and that they are likely to reintegrate into society.
Reformative
Measures: Correctional methods include education, vocational
training, counseling, and other activities aimed at rehabilitating the
offender.
INDIAN CONSTITUTION AND BNSS.
Constitutional
Basis for Criminal Justice: The Indian Constitution provides the foundational
principles for criminal justice, ensuring that justice is fair, timely, and
impartial.
-
Article 14: Guarantees
equality before the law and the right to equal protection of the laws, ensuring
that all individuals, irrespective of their status, are treated equally in
criminal proceedings.
-
Article 20: Provides
protection against retrospective criminal laws, ensuring that no one is
punished for an act that was not a crime at the time it was committed.
-
Article 21:
Guarantees the right to life and personal liberty, which includes the right to
a fair trial, the right to be heard, and the right to legal representation.
-
Article 22: Protects
the rights of arrested persons, ensuring that they are informed of the reasons
for their arrest and that they are allowed to consult a legal practitioner.
Application
to BNSS: The Bharatiya Nagarik Suraksha Sanhitha (BNSS)
aligns with the principles laid out in the Constitution, particularly with
respect to the protection of individual rights during the criminal justice
process. BNSS incorporates provisions to ensure that:
-
Rights of the Accused are protected during
investigation and trial.
-
Due Process is followed in all criminal proceedings.
-
Fair Trial principles are maintained, ensuring that
the accused is not deprived of justice arbitrarily.
The
Constitution ensures that BNSS provisions are in harmony with fundamental
rights, including the right to life, liberty, and a fair trial. Through this,
BNSS supports the overarching constitutional mandate to provide justice and
protect individual freedoms.
UNIT – II
MAINTENANCE
Definition: Maintenance refers to the financial support provided
by one person to another, typically from a husband to a wife or from a parent
to a child, to ensure their well-being and sustenance.
Purpose: It ensures that individuals who are unable to support themselves due
to age, health, or lack of income are provided for, especially in the case of
dependents like spouses and children.
Legal Provisions: The provisions related to maintenance are governed by
various sections under BNSS, including those for the maintenance of wives,
children, and parents.
MAINTENANCE OF WIFE, CHILDREN
AND PARENTS (SEC. 144 TO 147)
SECTION 144: This section addresses the maintenance of wives,
children, and parents who are unable to maintain themselves. It allows a
magistrate to order the husband or the father to provide financial support.
Wife’s Maintenance: The wife is entitled to maintenance if she is unable
to maintain herself, regardless of whether the husband is living separately or
with her.
Children’s Maintenance: Children (minor children or even adult children with
disabilities) are entitled to maintenance from the parents.
Parents’ Maintenance: A parent, especially an elderly or incapacitated
one, can seek maintenance from their children.
SECTION 145 TO 147: These sections provide the procedures and enforcement
for seeking maintenance.
Section 145: The procedure for filing a complaint before a
magistrate regarding maintenance.
Section 146: The magistrate can issue a maintenance order after
considering the financial ability of the respondent.
Section 147: Deals with the consequences if the respondent fails
to comply with the maintenance order, including penalties.
Key Points:
-
Maintenance
can be sought by filing an application in the appropriate court.
-
The
amount is decided based on the respondent's income and the claimant's needs.
-
The
maintenance order is legally binding, and failure to pay may result in legal
consequences.
SECURITY FOR KEEPING PEACE
AND GOOD BEHAVIOUR (SEC. 125 TO 143)
Section 125 to 143 of the BNSS deal with maintaining public order and
preventing offences through preventive action.
Section 125 to 127: These sections allow authorities to order a person
to provide security for maintaining peace and good behavior if they are likely
to cause harm or disturb the peace in the community.
Preventive Measures: These sections are preventive in nature, focusing on
avoiding potential harm before it occurs by securing individuals who might
disrupt public order.
Section 128: Deals with the procedures for asking individuals to
enter into a bond (security) to keep the peace or behave in a law-abiding
manner.
Section 143: Provides a way to deal with unlawful assemblies by
giving authorities the power to arrest or disperse such groups.
Purpose: The primary objective is to ensure that individuals who are likely to
cause a disturbance to public peace or safety are monitored or restrained
before they commit any criminal acts.
COGNIZANCE BY POLICE
Cognizance refers to the process by which a police
officer or a court takes note of an alleged offence and proceeds with legal
action.
Cognizance by Police: Under BNSS, police officers have the authority to
take cognizance of both cognizable and non-cognizable offences.
Cognizable Offences: These are offences where a police officer can arrest
the accused without a warrant and initiate an investigation (e.g., murder,
robbery).
Non-Cognizable Offences: These offences do not permit arrest without a
warrant, and the police cannot start an investigation without the permission of
a magistrate (e.g., defamation, simple assault).
Procedure for Cognizance: The police, upon receiving information or a complaint
about a cognizable offence, can begin investigation immediately, gather
evidence, and file a charge sheet. For non-cognizable offences, the police need
to get the magistrate's permission to initiate an investigation.
ROLE OF POLICE UNDER BNSS
Investigation: Police are responsible for conducting investigations
of crimes under the BNSS. This includes collecting evidence, questioning
witnesses, and filing charge sheets.
Cognizable Offences: For these offences, police can act without a
magistrate's order, initiate arrests, and investigate the case independently.
Non-Cognizable Offences: For these offences, police must seek permission from
a magistrate before taking any action.
Preventive Action: The police play a critical role in preventing crimes
by taking actions such as making arrests, preventing unlawful assemblies, and
ensuring public safety. They can take preventive actions under the sections of
BNSS dealing with public order.
Role in Maintenance: Police assist in the enforcement of maintenance
orders, ensuring that maintenance payments are made, and taking action against
those who refuse to comply with the orders.
Filing FIR: The police are responsible for registering FIRs
(First Information Reports) for cognizable offences, investigating the details,
and presenting the case in court.
Arrests and Warrants: Police officers have the authority to arrest
individuals based on warrants issued by the court or without a warrant in cases
of cognizable offences. They must ensure that the arrest is conducted in
accordance with legal provisions, including informing the accused of their
rights and providing proper documentation.
INVESTIGATION
Investigation is the process by which police officers
or other authorized authorities gather evidence and ascertain the facts of an
alleged offence.
Purpose: The goal of the investigation is to establish whether an offence has
been committed, identify the offender, and collect evidence to present before a
court of law.
Process under BNSS:
Filing of FIR: For cognizable offences, the investigation begins
with the registration of a First Information Report (FIR) under Sections 173 to
196 of BNSS.
Collection of Evidence: Police collect physical evidence, record witness
statements, and examine crime scenes.
Interrogation: Suspects and witnesses are interrogated to gather
relevant details.
Submission of Report: At the conclusion of the
investigation, a charge sheet or final report is submitted to the magistrate.
Key Provisions:
Section 173-196: Cover procedures for initiating and conducting
investigations.
Rights of the Accused: The investigation must adhere to legal safeguards
for the accused, such as protection against self-incrimination (Article 20 of
the Constitution) and ensuring the presence of a lawyer during interrogation.
PREVENTIVE ACTION OF POLICE
Preventive actions are measures taken by the police to
prevent the commission of offences and maintain public safety.
Key Provisions under BNSS:
Section 148 to 172: These sections empower police to take preventive measures
such as:
Arrest Without Warrant: In cases where immediate action is required to
prevent an offence.
Dispersal of Unlawful Assemblies: To maintain peace and prevent riots or violent acts.
Surveillance: Monitoring individuals with a history of criminal
activities to prevent further offences.
Role of Bond: Police can require individuals to enter bonds to
ensure good behavior or to prevent breaches of peace.
Examples:
Arresting individuals inciting violence during
protests.
Patrolling sensitive areas to deter criminal
activities.
MAINTENANCE OF PUBLIC ORDER
AND TRANQUILLITY
This refers to the responsibility of police and
authorities to ensure peace and order in society by addressing disturbances
that could lead to chaos or violence.
Key Provisions under BNSS:
-
Unlawful
Assemblies: Sections dealing
with assemblies likely to cause a breach of peace.
-
Public
Nuisance: Sections aimed
at addressing activities that disturb the public or harm the community.
-
Preventive
Actions: Police are
authorized to take preventive actions to manage situations that could escalate
into disorder.
Significance:
-
Protects
the public from riots, violence, and other disruptions.
-
Safeguards
individual rights while maintaining community safety.
Examples:
-
Imposing
curfews during communal tensions.
-
Preventing
illegal processions or gatherings.
UNLAWFUL ASSEMBLY
Definition: An assembly of five or more persons is considered
unlawful if the common objective is to commit an offence or disturb public
peace.
Key Provisions under BNSS:
Criteria for Unlawful Assembly: The assembly must have an intent to:
Use criminal force.
Resist lawful authority.
Commit acts endangering public safety.
Police Powers:
Dispersal: Police are empowered to disperse unlawful assemblies.
Arrest: Members of such assemblies can be arrested
without a warrant.
Punishments:
Individuals involved in unlawful assemblies may face
imprisonment and fines.
Examples:
A mob gathering to destroy property.
Groups inciting communal hatred or violence.
PUBLIC NUISANCE
A public nuisance is an act that causes inconvenience,
harm, or annoyance to the public or obstructs the enjoyment of public rights.
Key Provisions under BNSS:
Urgent Cases: Police can act under Sections 148 to 172 to address
immediate public nuisances, such as illegal constructions, loudspeakers causing
noise pollution, or encroachments on public pathways.
Preventive Measures: Authorities can issue notices or take action to
remove the nuisance.
Examples:
-
Blocking
public roads during protests.
-
Dumping
garbage in public spaces, causing health hazards.
URGENT CASES OF NUISANCE
Urgent cases of nuisance refer to situations where
immediate action is required to prevent harm, danger, or inconvenience to the
public or a specific individual.
Key Provisions Under BNSS:
Section 148 to 172 empowers the police and magistrates
to act promptly in cases of nuisance, such as:
-
Illegal
Constructions: Removing encroachments causing obstruction to public pathways.
-
Noise
Pollution: Seizing equipment causing disturbance.
-
Health
Hazards: Preventing practices like improper waste disposal.
Examples:
-
Stopping
unauthorized gatherings that block public roads.
-
Addressing
water or air pollution issues from illegal factories.
PREVENTIVE ACTION OF THE
POLICE (SEC. 148 TO 172)
Preventive actions are measures taken by the police to
ensure public safety and prevent offences before they occur.
Key Powers of Police:
Dispersal of Assemblies: Police can disperse unlawful assemblies that may
breach peace or security.
Seizure of Weapons: Confiscating arms from individuals suspected of
planning violence.
Bond for Good Behavior: Requiring individuals with a history of offences to
furnish bonds as a guarantee of peaceful conduct.
Surveillance: Monitoring suspicious individuals or activities to
deter criminal intent.
Examples:
-
Deploying
police to sensitive areas during elections.
-
Preventing
rallies without permission that could disrupt peace.
INFORMATION TO POLICE-FIR
(SECTION 173 TO 196)
FIR is the written or oral information recorded by the
police when they receive details of a cognizable offence.
Essentials of an FIR:
-
Information
must relate to a cognizable offence.
-
It
must be given to the officer in charge of the police station.
-
It
serves as the starting point for investigation.
Filing Process:
-
Complaint
by the informant is recorded in the prescribed format.
-
A
copy is provided to the informant free of charge.
Police Duties:
-
Register
the FIR promptly.
-
Begin
investigation based on the FIR details.
Examples:
-
Filing
an FIR for theft or assault.
-
Recording
an FIR for missing persons.
ARREST OF PERSONS (SEC. 35 TO
62)
Arrest refers to the legal process by which an
individual is taken into custody to prevent the commission of an offence or to
ensure their appearance before the court.
Key Types of Arrest:
-
With
Warrant: Issued by a magistrate, usually for non-cognizable offences or when
prior approval is required.
-
Without
Warrant: Police can arrest without a warrant in cognizable cases, where delay
may result in the escape of the offender or loss of evidence.
Rights of Arrested Person:
-
Right
to be informed of the grounds of arrest (Article 22 of the Constitution).
-
Right
to legal representation and to consult a lawyer.
-
Right
to be presented before a magistrate within 24 hours.
Examples of Arrestable Offences:
-
Murder
(cognizable, arrest without warrant).
-
Defamation
(non-cognizable, requires warrant).
ARREST WITH WARRANT OR
WITHOUT WARRANT
ARREST WITH WARRANT:
Definition: Issued by a magistrate authorizing the police to
arrest a specific individual.
When Issued:
-
For
non-cognizable offences (e.g., defamation).
-
When
there is a need for prior judicial approval.
Procedure:
-
Police
present the warrant to the individual before arrest.
-
Warrant
specifies details such as the name of the accused and the offence.
ARREST WITHOUT WARRANT:
Definition: Police have the authority to arrest without
obtaining prior judicial approval.
When Allowed:
-
In
cases of cognizable offences (e.g., murder, theft).
-
When
delay may result in escape, destruction of evidence, or harm to public safety.
Examples:
-
Arresting
a person caught red-handed during a robbery.
-
Arresting
an absconding offender based on credible information.
RIGHTS OF ARRESTED PERSON
Right to Be Informed:
Grounds of arrest must be communicated clearly
(Article 22 of the Indian Constitution, BNSS provisions).
Right to Legal Representation:
The arrested person has the right to consult and be
defended by a lawyer of their choice (Article 22).
Right to Be Presented Before a Magistrate:
Arrested individuals must be produced before a magistrate
within 24 hours.
Right Against Self-Incrimination:
No person can be compelled to give evidence against
themselves (Article 20).
Right to Medical Examination:
The individual must undergo a medical examination if
in police custody.
Right to Inform Family:
Police must inform a family member or a friend about
the arrest and the place of detention.
PROCLAMATION AND ATTACHMENT
OF PROPERTY (SECTION 63 TO 93)
PROCLAMATION:
Definition: A formal announcement by the court directing an absconding
accused to appear within a specified time.
Process:
-
The
proclamation is published publicly (e.g., at the accused’s residence or in
newspapers).
-
If
the accused fails to appear, the court may proceed in their absence.
ATTACHMENT OF PROPERTY:
Definition: Seizure of property belonging to the absconding
accused to ensure compliance with the court’s orders.
Procedure:
-
Property
details are verified and documented.
-
Authorities
attach movable and immovable property of the accused.
-
If
the accused surrenders, the property may be released.
PROCESS TO COMPEL THE
PRODUCTION OF THINGS (SECTION 94 -110)
Search and Seizure (Section 94):
Magistrates may issue orders to search premises or
persons to produce items necessary for an investigation or trial.
Summons for Documents (Section 95):
Magistrates can summon individuals to produce specific
documents or evidence.
Discovery of Evidence (Section 96-98):
Authorities can search places suspected of concealing
stolen property or contraband.
Sealing and Preservation of Evidence:
Seized items are sealed and recorded to maintain their
integrity.
Search Warrants (Section 98-110):
-
Issued
when there is a reasonable belief that specific items are located at a
particular place.
-
Searches
must be conducted respectfully, adhering to privacy and procedural safeguards.
UNIT – III
TRIAL, CHARGE, INQUIRIES AND
BAIL
TRIAL:
A trial refers to the formal examination of evidence
and legal arguments to determine the guilt or innocence of an accused.
Types of Trials under BNSS:
-
Trial
before Court of Session
-
Trial
of warrant cases by magistrates
-
Trial
of summons cases by magistrates
-
Summary
trials
Principles of Fair Trial:
-
Right
to a speedy trial
-
Presumption
of innocence until proven guilty
-
Accused's
right to be heard and defended by counsel
CHARGE:
A formal accusation framed against the accused
specifying the offence.
Essentials of a Charge:
-
Clear,
precise language detailing the offence.
-
Informed
to the accused before the trial begins.
Joinder of Charges: Multiple charges may be combined in certain
circumstances (Sections 234-247).
INQUIRIES:
-
Pre-trial
proceedings to determine whether sufficient grounds exist to initiate a trial.
-
Conducted
by magistrates based on police reports or private complaints.
BAIL:
Definition: Conditional release of the accused pending
investigation, inquiry, or trial.
Types of Bail:
-
Regular
Bail: Granted during
the pendency of a case.
-
Anticipatory
Bail: Granted to
prevent arrest in cases where the accused apprehends arrest.
-
Interim
Bail: Temporary relief
pending a decision on regular or anticipatory bail.
Provisions for Bail in BNSS:
-
Sections
478 to 496 govern bail and bonds.
-
Factors
like the nature of the offence, evidence, and potential flight risk are
considered.
COMPLAINTS TO MAGISTRATES,
PROCESS TO COMPEL APPEARANCE
COMPLAINTS TO MAGISTRATES:
Definition: A formal accusation or information given to a
magistrate by an individual regarding an offence.
Procedure:
The magistrate examines the complainant and witnesses
under oath.
If prima facie evidence exists, the magistrate may
issue a summons or warrant.
PROCESS TO COMPEL APPEARANCE:
Summons (Section 61):
-
A
legal document directing the accused to appear before the magistrate.
-
Used
for minor offences.
Warrant (Section 70):
-
A
judicial order directing police to arrest and produce the accused before the
court.
-
Used
for serious offences or non-compliance with summons.
COGNIZANCE OF OFFENCES BY
MAGISTRATE
Definition:
Taking judicial notice of an offence by a magistrate
to initiate proceedings.
Provisions under BNSS:
Section 197-222:
Cognizance can be taken based on:
-
Police
report after investigation.
-
Complaint
filed by a private individual.
-
Information
received from a credible source.
Magistrates are empowered to:
-
Dismiss
the complaint if no prima facie case exists.
-
Direct
police to investigate further (Section 173).
-
Issue
process for trial if evidence is sufficient.
Types of Offences:
-
Cognizable
Offences: Direct
cognizance without prior approval.
-
Non-Cognizable
Offences: Require prior
sanction from competent authorities.
IRREGULAR PROCEEDINGS
Definition:
Proceedings conducted in violation of procedural rules
or established legal principles.
Provisions under BNSS:
Examples of Irregularities:
-
Improper
service of summons or warrants.
-
Non-compliance
with legal timelines for filing chargesheets or reports.
-
Procedural
lapses in trials or inquiries.
Impact of Irregularities:
-
If
the irregularity is trivial and does not prejudice the accused, the proceeding
may still be valid.
-
In
cases of significant irregularities, the proceedings may be quashed or
restarted.
Judicial Remedies:
Revision, appeal, or review may be sought to address
irregularities.
GENERAL PRINCIPLES OF FAIR
TRIAL
A fair trial is the foundation of justice and ensures
that the accused receives impartial treatment. The BNSS enshrines principles to
safeguard fairness in criminal proceedings:
Presumption of Innocence:
Every accused is presumed innocent until proven
guilty.
Right to a Speedy Trial:
Unnecessary delays in trials are discouraged to
prevent undue harassment.
Right to Legal Representation:
The accused has the right to engage a defense lawyer,
as enshrined in Article 22(1) of the Constitution.
Right to be Heard:
The accused must be given an opportunity to present
evidence and cross-examine witnesses.
Open Trials:
Trials are generally conducted in open court, ensuring
transparency, except in cases requiring confidentiality (e.g., child victims).
Impartiality of Judges:
Judges must be impartial, with no vested interest in
the outcome of the trial.
JURISDICTION OF CRIMINAL
COURTS IN INQUIRIES & TRIAL (SECTION 197- 222)
CLASSIFICATION OF CRIMINAL COURTS:
Supreme Court: Hears appeals in criminal matters.
High Court: Has appellate, revisional, and inherent
jurisdiction.
Sessions Court: Deals with serious offences punishable with
imprisonment exceeding seven years.
Magistrate’s Courts:
Chief Judicial Magistrate (CJM): Can impose sentences of up to 7 years.
Judicial Magistrate First Class (JMFC): Handles less severe offences with up to 3 years'
imprisonment.
JURISDICTION PRINCIPLES:
Territorial Jurisdiction: Based on where the offence occurred.
Pecuniary Jurisdiction: Limited to cases involving specific financial
penalties.
Subject Matter Jurisdiction: Based on the nature of the offence.
TRIAL (SEC. 223-233)
The trial is the judicial process of determining
whether the accused is guilty or innocent.
Section 223:
Persons may be tried jointly if they are accused of
the same offence committed during the same transaction.
Process of Trial:
-
Filing
of Charge: Clear accusation specifying the offence.
-
Examination
of Witnesses: Both prosecution and defense present evidence.
-
Arguments:
Both sides present arguments.
-
Judgment:
The court pronounces its decision based on the evidence.
Principles During Trial:
-
Equality
before the law.
-
Evidence
presented must meet admissibility standards.
CHARGE, JOINDER OF CHARGES
(SEC. 234-247)
Charge (Section 234):
A formal written accusation framed by the court
specifying the offence the accused is charged with.
Essentials of a Charge:
Precise language detailing the offence.
Clearly mentions the offence under the relevant law.
Joinder of Charges:
Multiple charges can be combined if:
-
Offences
are committed in one series of acts.
-
The
accused is involved in several offences of the same kind committed within a
year.
Key Provisions:
Section 235: Trial for multiple offences committed in
one transaction.
Section 239: Discharge of the accused if there is no
evidence.
TRIAL BEFORE COURT OF SESSION
(SEC.248-260)
Nature of Session Trials:
-
Handled
for serious offences (e.g., murder, dacoity).
-
Conducted
by the Sessions Court.
Procedure:
Section 248:
-
If
the accused is convicted, the court passes a sentence.
-
If
acquitted, the accused is set free.
Section 251: Charges are explained to the accused in open court.
Section 260: Allows the magistrate to conduct summary trials for
less severe offences.
Steps in a Session Trial:
Framing of Charges: Charges read out to the accused.
Prosecution Evidence: Witnesses and evidence presented.
Defense Evidence: Accused presents witnesses and evidence.
Arguments: Prosecution and defense argue their cases.
Judgment: Court issues its decision.
Special Provisions:
Plea Bargaining (Section 289-300): Settlement between prosecution and accused to
expedite the process.
TRIAL OF WARRANT CASE BY
MAGISTRATE (SEC.261-273)
DEFINITION OF WARRANT CASE:
A warrant case involves offences punishable with
death, life imprisonment, or imprisonment exceeding two years. These cases
require a more detailed and formal trial procedure due to the seriousness of
the offences.
KEY STEPS IN THE TRIAL OF WARRANT CASES:
Classification of Warrant Cases:
Cases based on Police Reports (Sections 238-243):
After receiving a charge sheet from the police, the
Magistrate determines if there is sufficient ground to proceed.
Cases not based on Police Reports (Sections 244-247):
The prosecution must first produce evidence before the
charges are framed.
Supply of Documents to the Accused (Section 207):
The accused is provided with all the documents
submitted by the prosecution.
Framing of Charges (Section 240 or 246):
The Magistrate frames charges against the accused
based on prima facie evidence.
If no sufficient evidence exists, the accused is
discharged (Section 239 or 245).
Plea of the Accused (Section 241):
The accused is asked whether they plead guilty or not.
Prosecution Evidence (Sections 242-243):
The prosecution produces witnesses and documents.
The accused can cross-examine the witnesses.
Defense Evidence (Section 247):
The accused can present evidence and witnesses in
their defense.
Judgment (Section 248):
If found guilty, the Magistrate imposes a sentence.
If not guilty, the accused is acquitted.
Witness Examination and Record Keeping (Sections
261-273):
The Magistrate must maintain records of all witness
statements and evidence.
TRIAL OF SUMMONS CASES BY
MAGISTRATES (SEC.274-282)
DEFINITION OF SUMMONS CASE:
A summons case deals with offences where the
punishment does not exceed two years of imprisonment. These cases involve a
simpler and quicker trial process compared to warrant cases.
KEY STEPS IN THE TRIAL OF SUMMONS CASES:
Issue of Summons (Section 274):
The Magistrate issues summons for the accused to
appear before the court.
Explanation of the Offence (Section 251):
The Magistrate explains the offence to the accused and
asks whether they plead guilty or not.
Plea of Guilty (Section 252):
If the accused pleads guilty, the Magistrate may
convict without further trial.
The plea must be recorded in writing.
Prosecution Evidence (Section 254):
If the accused does not plead guilty, the prosecution
is required to present evidence and witnesses.
Defense Evidence:
After the prosecution, the accused can present
evidence and witnesses in their defense.
Judgment (Section 255):
The Magistrate decides whether to acquit or convict
the accused based on the evidence.
Simplified Procedure for Petty Offences (Sections
280-282):
For minor offences, the Magistrate can adopt a summary
trial process to save time and resources.
SUMMARY TRIALS (SECT.
283-288)
A summary trial is a simplified and fast-tracked legal
process used for minor offences where the punishment is not severe. It aims to
reduce the burden on courts by resolving less serious cases quickly.
Key Features of Summary Trials:
Applicability (Section 260):
Magistrates of First Class or Special Magistrates may
conduct summary trials for offences punishable with imprisonment not exceeding
two years, theft (under ₹2,000), and other specified minor offences.
Certain petty cases can also be tried summarily.
Procedure (Section 262):
The procedure for trial is similar to summons cases,
but with reduced formalities.
Evidence recording is simplified.
Judgment (Section 264):
The judgment must be brief, recording only the
essential points of the case.
Limitations on Sentence (Section 262(2)):
Imprisonment exceeding three months cannot be imposed
in summary trials.
Record Keeping (Section 263):
The Magistrate maintains an abbreviated record of
proceedings.
Appeal Rights (Section 265):
Convictions in summary trials can still be appealed if
provided by law.
PLEA BARGAINING (SEC. 289 TO
300)
Plea bargaining allows an accused person to negotiate
with the prosecution and agree to plead guilty to a lesser charge or reduced
sentence. It is designed to reduce trial delays and expedite justice.
Key Features:
Eligibility:
Only applicable in cases where the punishment is
imprisonment for less than seven years.
It does not apply to offences affecting socio-economic
conditions or committed against women or children.
Procedure (Section 265A to 265L):
The accused must voluntarily file an application for
plea bargaining.
The court examines whether the application is
voluntary and hears both parties.
Negotiation (Section 265C):
Discussions between the prosecution, accused, and
victim are conducted in camera (privately).
Settlement (Section 265E):
If a settlement is reached, the court disposes of the
case by imposing a sentence as per the agreement.
Judgment (Section 265F):
The court delivers a judgment based on the plea
agreement and closes the case.
PROVISIONS AS TO BAILS AND
BONDS (SEC. 478 TO 496)
Key Provisions Regarding Bail and Bonds:
Right to Bail (Section 436):
In bailable offences, bail is a right, and the accused
can be released upon providing the bond.
Discretionary Bail (Section 437):
In non-bailable offences, granting bail is at the
discretion of the Magistrate.
Bail may not be granted for offences punishable by
death or life imprisonment unless the accused is under 16, a woman, or sick.
Anticipatory Bail (Section 438):
A person apprehending arrest may apply for
anticipatory bail before arrest.
Bond Conditions (Section 441):
The accused must provide a bond to secure their
appearance in court.
Sureties may also be required.
Cancellation of Bail (Section 439(2)):
Bail can be cancelled by the court if conditions are
violated or new evidence emerges.
Bail After Arrest (Section 436A):
A person detained for half the maximum sentence of the
offence can seek bail.
GENERAL PROVISIONS AS
INQUIRIES & TRIAL (SEC.337-378).
Examination of Witnesses (Section 337):
Witnesses may be examined on oath during inquiries and
trials.
Tender of Pardon to Accomplices (Section 306):
Pardon may be granted to accomplices in exchange for
full disclosure of facts.
Power to Summon Witnesses (Section 311):
The court can summon any person as a witness or recall/reexamine
a witness.
Adjournments (Section 309):
Adjournments may be granted only when necessary to
prevent undue delays.
Recording of Evidence (Section 275-276):
Evidence is recorded in the presence of the accused
and witnesses, with provisions for translation.
Discharge and Acquittal:
If evidence is insufficient, the accused may be
discharged (Section 227) or acquitted (Section 232).
Judgment (Section 353):
The judgment must be delivered in open court and
contain reasons for the decision.
UNIT – IV
ADMINISTRATION OF CRIMINAL
JUSTICE:
PROVISION AS TO OFFENCES
AFFECTING THE ADMINISTRATION OF JUSTICE (SEC. 379 -391)
Sections 379–391 of BNSS deal with offences that
disrupt or undermine the administration of justice, including false evidence,
obstruction of court proceedings, and contempt of lawful authority.
False Evidence (Section 379):
Giving false evidence intentionally to mislead the
court is punishable under this section.
Fabrication of False Evidence (Section 380):
Creating or producing false documents or evidence to
manipulate the outcome of judicial proceedings.
Obstruction of Justice (Section 381):
Includes acts such as bribing judges, influencing
witnesses, or interfering in the judicial process.
Contempt of Court (Section 382):
Disobedience of court orders or actions undermining
the authority of the court.
Protection for Court Officers (Section 383):
Provides immunity to judicial officers for acts
performed in the course of their duties.
Penalty for Breach of Court Proceedings (Section 391):
Penalizes any act that directly hinders or delays the
administration of justice.
THE JUDGEMENT (SEC. 392- 406)
A judgment is a court's final decision, resolving the
disputes between parties and specifying the rights, obligations, or
punishments.
Key Provisions:
Pronouncement of Judgment (Section 392):
The judgment must be pronounced in open court,
ensuring transparency and accessibility.
Contents of Judgment (Section 393):
It must include the grounds for the decision, the
evidence evaluated, and reasons for conviction or acquittal.
Conviction (Section 394):
If the accused is convicted, the judgment should
clearly state the offence and the penalty imposed.
Acquittal (Section 395):
If acquitted, the judgment should declare the accused
not guilty with immediate release if in custody.
Order of Fine or Compensation (Section 396):
The court may direct the payment of fines or
compensation to the victim.
Correction of Judgment Errors (Section 405):
Minor clerical or arithmetical errors in the judgment
may be corrected.
SUBMISSION OF DEATH SENTENCE
FOR CONFIRMATION (SEC. 407 TO 412)
Mandatory Submission (Section 407):
Death sentences passed by a sessions court must be
submitted to the High Court for confirmation before execution.
Procedure for Confirmation (Section 408):
The High Court examines the case records, evidence,
and reasons given by the sessions court to decide whether to confirm, commute,
or annul the sentence.
Hearing of the Convict (Section 409):
The accused is given an opportunity to present their
case before the High Court.
Finality of High Court Decision (Section 410):
The High Court’s decision is binding, subject to
appeal to the Supreme Court.
Execution after Confirmation (Section 411):
Execution of the death sentence can only proceed after
confirmation.
Appeal to Supreme Court (Section 412):
If dissatisfied with the High Court’s decision, the
convict may appeal to the Supreme Court.
APPEAL, REVISION, REFERENCE
(SECTION 413 TO 435)
APPEAL (SECTIONS 413–428):
Appeals allow parties to challenge decisions in a
higher court based on errors in law or fact.
Right of Appeal (Section 413):
Parties may appeal against convictions, acquittals, or
sentences in specified cases.
Procedure for Filing an Appeal (Section 414):
Appeals must be filed within the prescribed time, with
grounds of appeal clearly stated.
Second Appeals (Section 417):
Second appeals are permissible only in limited
circumstances, such as a substantial question of law.
Dismissal of Appeals (Section 418):
Appeals may be dismissed summarily if they lack merit.
REVISION (SECTIONS 429–432):
Revisions allow higher courts to examine the legality
of orders passed by lower courts.
Power of Revision (Section 429):
The High Court or Sessions Court may call for records
and revise orders to prevent miscarriage of justice.
Scope of Revision (Section 430):
Revisions focus on correcting jurisdictional errors or
procedural irregularities.
REFERENCE (SECTIONS 433–435):
Reference empowers subordinate courts to refer complex
legal questions to higher courts for guidance.
When Reference Can Be Made (Section 433):
If a lower court doubts the interpretation of the law
or its jurisdiction.
Decision on Reference (Section 434):
The higher court resolves the question and remits it
back with instructions.
EXECUTION, SUSPENSION,
REMISSION AND COMMUTATION OF SENTENCE (SEC. 453 TO 477)
1. EXECUTION OF SENTENCE (SECTION 453):
Execution refers to the carrying out of the punishment
imposed by the court, such as the death sentence, imprisonment, or fine.
The procedure for execution varies depending on the
nature of the sentence (e.g., hanging for death penalty, imprisonment for life
or term, etc.).
Court’s role: The court ensures that the sentence is carried out
in accordance with the law and in a humane manner.
2. SUSPENSION OF SENTENCE (SECTION 454):
Suspension refers to temporarily delaying the
execution of a sentence, typically during the period when an appeal is pending
or in special cases for specific reasons.
The court may grant suspension of a sentence if there
are strong grounds to believe that the sentence should not be executed
immediately (e.g., the accused is filing an appeal).
3. REMISSION OF SENTENCE (SECTION 455):
Remission involves the reduction of the severity or
duration of a sentence without altering the character of the punishment (e.g.,
shortening the duration of imprisonment).
The court has the authority to remit sentences in
cases where the convict has shown good behavior or other mitigating factors are
present.
Government Role: In certain circumstances, the government or the
President/Governor may grant remission of sentence.
4. COMMUTATION OF SENTENCE (SECTION 456):
Commutation refers to the substitution of a punishment
with a lesser one (e.g., converting a death sentence to life imprisonment).
This may occur due to reasons such as the convict's
age, health, or other humanitarian considerations.
Court's Power: Commutation can be done by the court or by the
government, under certain conditions, especially in cases involving severe
punishment like the death sentence.
5. SCOPE OF SUSPENSION, REMISSION, AND COMMUTATION
(SECTIONS 457–477):
Sections 457–477 further discuss the procedural
aspects and powers related to remission, suspension, and commutation, as well
as the role of government or the President/Governor in granting relief to
convicts, especially in capital punishment cases.
Judicial Oversight: These sections ensure that any decision regarding
suspension, remission, or commutation is reviewed by higher authorities to
prevent misuse of power.
INHERENT POWERS OF THE COURT
Inherent powers are the inherent authority vested in
the court to ensure justice is served in cases where strict legal provisions
may not provide a remedy. These powers are exercised by courts to maintain
their jurisdiction, prevent abuse of process, and ensure fairness.
Key Aspects of Inherent Powers:
-
Section
482 of Cr.P.C. provides the court with the power to quash criminal proceedings
if it believes the proceedings to be an abuse of the legal process or lacking
merit. This may include cases where the law is not adequately addressing the
issue, or if there is a misuse of the legal system.
-
Courts
can stay proceedings, amend orders, or take action to prevent the abuse of
legal procedures.
-
Preventing
injustice is the primary goal, allowing courts to issue orders even in
situations not specifically covered by the law, as long as the action aligns
with the interest of justice.
Examples of Inherent Powers Usage:
-
Quashing
of FIR in cases where no prima facie case is made out.
-
Issuance
of orders to preserve the rights of individuals during legal proceedings (e.g.,
granting temporary injunctions).
TRANSFER OF CRIMINAL CASES.
Transfer of criminal cases refers to the process by
which a court can move a case from one jurisdiction or court to another to
ensure a fair trial, or for administrative convenience.
Legal Provisions (Section 406–408 of Cr.P.C.):
Section 406: The Supreme Court or the High Court has the power to
transfer cases or appeals from one court to another for reasons such as:
-
Prejudice:
If there is a reasonable belief that the accused cannot receive a fair trial in
the current court.
-
Convenience
of parties: In cases where it would be more convenient for the parties or
witnesses to conduct proceedings in a different jurisdiction.
-
Exceptional
circumstances: The case may involve special or sensitive issues that require
attention from a different court.
Section 407: The High Court can transfer cases between courts
within the same jurisdiction to ensure impartiality or due to overcrowding or
other logistical concerns.
Section 408: Transfer of cases from one magistrate to another can
occur in situations where a magistrate is unable to continue due to reasons
such as illness or unavailability.
Grounds for Transfer:
Bias:
If there is a reasonable fear that the accused cannot get a fair trial due to
prejudice.
Convenience: To avoid unnecessary hardship to witnesses or the
accused (e.g., transferring a case to a court closer to the place of the
incident).
Administrative Reasons: When a court is overburdened, it may request a case
to be transferred to another court for quicker resolution.
UNIT – V
THE JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2015 AND PROBATION OF OFFENDERS ACT
THE JUVENILE JUSTICE ACT, 2015 aims to ensure the care, protection, and
rehabilitation of children in conflict with the law and children in need of
care and protection. It focuses on rehabilitation over punishment, prioritizing
the social reintegration of juveniles.
Key Features:
Juvenile Justice Board (JJB): Special board to handle cases of juveniles in
conflict with the law, focusing on rehabilitation and social reintegration.
Children in Need of Protection: The Act covers children who are abandoned, orphaned,
abused, or exploited, ensuring their care and welfare through the Child Welfare
Committee (CWC).
Adoption and Foster Care: Provides clear guidelines for adoption and foster
care for children who cannot return to their biological families.
Age Determination: Ensures the proper age verification of juveniles
involved in criminal activities.
Heinous Offences: For juveniles aged 16-18 involved in heinous crimes
(with a punishment of 7 years or more), the Act allows a mental and physical
assessment to decide whether they should be tried as adults.
Rights of Juveniles: Guarantees the right to education, healthcare, and
legal representation, and ensures protection from harsh treatment.
Rehabilitation Focus: The emphasis is on rehabilitation and reformation
rather than punishment, through vocational training, education, and
psychological support.
PROBATION OF OFFENDERS ACT, 1958
The Probation of Offenders Act, 1958 provides an
alternative to imprisonment for certain offenders who are deemed suitable for
rehabilitation through community supervision and guidance.
Purpose:
The probation system allows young offenders and
first-time offenders to be rehabilitated in society, rather than being sent to
prison, provided they fulfill certain conditions set by the court.
Provisions:
Probation Officer: A probation officer is appointed by the court to
supervise the offender's conduct and ensure compliance with the probation
conditions.
Conditions of Probation: Offenders on probation are often required to
undertake community service, maintain good conduct, and meet regularly with the
probation officer.
The Act applies to both adult and juvenile offenders,
but particularly focuses on those who have committed minor offences and are
likely to benefit from rehabilitation.
Application to Juveniles:
For juveniles, the Probation of Offenders Act can be
used in conjunction with the Juvenile Justice Act, particularly for juveniles
who have committed non-serious offences. The court may opt for probation as a
means of rehabilitation instead of detention in a juvenile home.
Rehabilitation and Supervision:
Supervision by a probation officer is the key element
in the rehabilitation process, ensuring the juvenile stays on the right path
and does not commit any further crimes.
PRELIMINARY AND GENERAL
PROVISIONS OF CARE AND PROTECTION OF CHILDREN
The Juvenile Justice (Care and Protection of Children)
Act, 2015 is a significant legislation in India that focuses on the care,
protection, rehabilitation, and social reintegration of children in conflict
with the law and children in need of care and protection.
Key Definitions:
Child: A person who has not completed 18 years of age. The Act applies to
children under 18 years involved in criminal cases or those in need of
protection.
Child in Conflict with Law: A child who is alleged to have committed an offence.
Such children are treated differently from adults in the justice system and are
provided with rehabilitation measures instead of punishment.
Child in Need of Care and Protection: A child who is abandoned, orphaned, neglected, or
faces any situation that poses a threat to their physical or mental well-being.
This includes children who are victims of abuse, trafficking, or exploitation.
Juvenile: The term ‘juvenile’ includes any child in conflict with the law, as
well as children who require care and protection.
General Provisions:
Purpose of the Act: The primary aim is to promote the best interests of
children through care, protection, rehabilitation, and social reintegration. It
focuses on the child’s welfare over punitive measures.
Rights of Children: Every child under the Act has fundamental rights to
education, health, protection from abuse, and a safe environment. Children are
provided legal aid and are ensured protection from physical punishment and
torture.
Specialized Authorities:
-
Juvenile
Justice Board (JJB): A board specially constituted for handling cases of
children in conflict with the law. It comprises a Magistrate and two social
workers.
-
Child
Welfare Committee (CWC): A committee responsible for the welfare of children in
need of care and protection. It ensures the child receives proper
rehabilitation and is placed in appropriate foster care or institutions.
Age Determination: The Act provides for the determination of age of a
child, ensuring that those under 18 years are not treated as adults. Age
certificates or medical examinations are used to verify the age of the child.
Rehabilitation and Social Reintegration: The Act emphasizes the rehabilitation of children
rather than their punishment. This is achieved through vocational training,
education, counseling, and family reintegration.
Adoption and Foster Care: The Act establishes clear guidelines for the
adoption process and foster care, ensuring the welfare and rights of children
waiting for adoption. It also regulates the functioning of adoption agencies.
Protection from Abuse and Exploitation: Children are provided protection from physical and
mental abuse, trafficking, and exploitation, with the Act ensuring that these
children are provided a safe environment and the necessary support for
recovery.
SALIENT FEATURES OF THE ACT
Juvenile Justice Board (JJB): A special body that handles cases of juveniles in
conflict with the law, ensuring their rights and rehabilitation. The board
consists of a Magistrate and social workers.
Child Welfare Committee (CWC): A committee that takes care of children in need of
care and protection. It ensures that the child is provided with proper
rehabilitation, shelter, and education.
Age Determination: The Act mandates age verification of children to
ensure that those under 18 are treated as juveniles, not adults.
Offences: The Act distinguishes between minor offences and heinous crimes, with
different procedures for rehabilitation and punishment.
Adoption and Foster Care: The Act establishes clear procedures for adoption
and foster care, including the registration of adoption agencies and the
welfare of children awaiting adoption.
Rights of Children: Ensures the child's rights to education, healthcare,
and protection from abuse. Children are provided legal aid, protection from
physical punishment, and are to be kept in a child-friendly environment.
Heinous Offences: Juveniles between 16-18 years involved in serious
crimes (with a sentence of 7 years or more) may be tried as adults after an
assessment of their mental and physical condition.
Rehabilitation and Social Reintegration: The Act focuses on reformation and social
reintegration rather than punitive measures.
PROCEDURE UNDER JUVENILE
JUSTICE ACT
Initial Assessment: When a juvenile is apprehended, the Juvenile Justice
Board (JJB) conducts an initial assessment to determine the child's mental and
physical maturity, the nature of the offence, and the possibility of
rehabilitation.
Filing of Petition: A petition is filed before the JJB by the police,
social workers, or concerned parties. The juvenile is presented before the
board within 24 hours.
Bail and Remand: The child may be granted bail unless it is a heinous
offence or if the child is likely to abscond. If bail is not granted, the child
can be sent to a juvenile home for care and protection.
Rehabilitation and Social Reintegration: After assessment and investigation, the board may
order rehabilitation, vocational training, counseling, and family
reintegration.
Trial Process: Juveniles are not tried in the usual criminal
courts. Instead, the JJB decides the case in a child-friendly manner,
considering the age, mental state, and need for care and protection.
Final Order: After the trial or hearing, the Juvenile Justice
Board passes an order for the rehabilitation of the child, which may include
orders for foster care, educational programs, or community service, depending
on the case.
Appeal: An appeal can be made to the High Court against any
order passed by the Juvenile Justice Board, and the case is heard within 4
months.
TREATMENT AND REHABILITATION
OF JUVENILES
The Juvenile Justice Act, 2015 focuses on the
rehabilitation and social reintegration of juveniles instead of punitive
measures. The treatment of juveniles is aimed at reintegrating them into
society through various means such as:
Institutional Care:
Juveniles are placed in Observation Homes, Special Homes, and Children’s Homes
where they are provided with education, vocational training, and counseling.
These institutions focus on the child’s overall development.
Rehabilitation Programs:
These include therapy, counseling, educational programs, skill-building
initiatives, and vocational training. These are aimed at helping juveniles
rebuild their lives and reintegrate into society.
Community-Based Rehabilitation:
For some juveniles, rehabilitation may take place within the community. This
includes family-based care, foster care, or adoption, to create a supportive
environment outside institutional settings.
Psychological Counseling and Guidance:
Juveniles receive counseling to address their mental health needs and to
understand the consequences of their actions. This helps in emotional recovery
and personal development.
PROTECTION OF JUVENILE
OFFENDERS
Under the Juvenile Justice Act, 2015, juveniles in
conflict with the law are treated with the primary focus on their
rehabilitation rather than punishment. This includes:
Prevention of Child Abuse: Juveniles in conflict with the law are protected
from any form of physical or mental abuse during their judicial process. Their
rights are safeguarded, including protection from violence and exploitation.
Legal Protections: Juveniles are not tried in the same courts as adults,
and the Juvenile Justice Board (JJB) handles their cases. Juveniles cannot be
sentenced to death or life imprisonment.
Segregation from Adult Offenders: Juveniles are kept separate from adult criminals in
correctional facilities to prevent any influence from adult offenders.
Rehabilitation and Reintegration: The focus is on rehabilitation and reintegration into
society, through educational and vocational programs, instead of
criminalization.
LEGISLATIVE AND JUDICIAL ROLE
Legislative Role: The Legislature has a key role in formulating,
enacting, and amending laws concerning juvenile justice. The Juvenile Justice
Act, 2015 was created to address the needs of children who come in conflict
with the law, focusing on reformation rather than retribution. The Parliament
can amend the Act to reflect changing societal needs and trends in juvenile
crime.
Judicial Role: The Judiciary, especially through the Juvenile
Justice Board (JJB) and Child Welfare Committees (CWC), ensures that juveniles
are treated fairly and their best interests are prioritized. The judiciary
plays a role in interpreting the law, delivering appropriate sentences, and
ensuring that the rights of juveniles are upheld throughout the legal process.
Judicial Oversight: Courts also review the decisions made by the JJB to
ensure compliance with the law and to guarantee justice for juveniles. The
judiciary can intervene in cases where the law is not being followed or where a
juvenile's rights are being violated.
PROBATION AND PAROLE
PROBATION: The Probation of Offenders Act, 1958, is applicable to juveniles in
conflict with the law, offering them the opportunity to serve their sentences
in the community under the supervision of a probation officer. This provides a
chance for the juvenile to rejoin society while maintaining supervision and
support to prevent further criminal behavior.
Probation Conditions: The juvenile may be required to meet certain
conditions like attending counseling, maintaining good behavior, or reporting
to the probation officer regularly.
PAROLE: Parole allows a juvenile to be released from a correctional
institution before completing their sentence, on the condition of good behavior
and meeting other specified criteria. Parole is typically granted when the
juvenile has shown sufficient progress in their rehabilitation.
Parole Conditions: Parole comes with conditions like regular check-ins
with the probation officer, maintaining contact with their family, and
following guidelines set by the authorities. A juvenile who violates parole may
be sent back to the institution.
AUTHORITY GRANTING PAROLE
Authority: Parole is granted by the State Government or Prison Authorities as per
the recommendations of a Prison Board. This board is usually composed of prison
officials, probation officers, and legal experts.
Conditions: The parole is granted based on the good behavior of
the offender and their potential for rehabilitation. Conditions such as regular
reporting to the authorities and maintaining peace are usually attached to the
parole.
Review: Parole can be revoked if the conditions are violated, and the
individual may be sent back to prison.
SUPERVISION-CONDITIONAL
RELEASE
Supervision: Once parole is granted, the offender is subject to
supervision by a probation officer, who ensures compliance with the conditions
laid down for parole.
Conditional Release: The offender is released on certain conditions, such
as maintaining good behavior, reporting regularly to the authorities, or
refraining from any criminal activity. Failure to adhere to these conditions
may result in the revocation of parole.
SUSPENSION OF SENTENCE
Suspension of Sentence: The Suspension of Sentence is a temporary delay in
serving the sentence, usually granted for specific reasons such as health
issues or the individual's role in assisting authorities.
Judicial Authority: The power to suspend the sentence lies with the
court or the appropriate judicial authority. The suspension is granted under
Section 389 of the Criminal Procedure Code (Cr.P.C.).
Conditions: The individual may be required to provide a surety,
report to the authorities, or comply with other conditions during the
suspension period.
Revocation: If the conditions are violated, the suspension of
the sentence can be revoked, and the individual will have to serve the original
sentence.
PROCEDURE UNDER PROBATION OF
OFFENDERS ACT
Objective: The Probation of Offenders Act, 1958 provides an opportunity for
offenders to avoid prison sentences, especially those who are young or
first-time offenders. The primary goal is rehabilitation rather than
punishment.
Procedure:
Application: A convicted person or their legal representative may
apply for probation during the trial, before sentencing.
Probation Officer's Report: The court appoints a probation officer who assesses
the offender’s background and the likelihood of reform. The probation officer
submits a report to the court.
Court Decision: If the court deems it appropriate, the offender may
be granted probation instead of serving time in prison. The court may issue a
probation order with specific conditions (e.g., reporting to a probation
officer, attending counseling, or performing community service).
Supervision: Once granted probation, the offender is under the
supervision of a probation officer who monitors their behavior and ensures
compliance with the conditions.
SALIENT FEATURES OF THE ACT
Objective: The primary goal is to rehabilitate offenders and integrate them back
into society, rather than simply punishing them.
Applicable Offenders: The Act is typically applied to first-time
offenders, juveniles, and young offenders who are unlikely to repeat their
offenses.
Probation Order: The court can issue a probation order instead of
sentencing the offender to prison. It can also require the offender to pay a
fine or perform community service.
Duration: Probation orders are made for a specific period, usually ranging from 1
to 3 years, depending on the offense and the offender's age and character.
Conditions of Probation: Conditions attached to probation may include regular
reporting to a probation officer, refraining from committing further crimes,
and fulfilling certain educational or social obligations.
Probation Officers: These officers are responsible for supervising
offenders on probation, guiding their rehabilitation, and reporting on their
progress to the court.
Revocation of Probation: If the offender violates the terms of probation, the
court may revoke the probation order and send the offender to prison to serve
the original sentence.
Release on Bond: In some cases, the court may require the offender to
sign a bond, promising good behavior and compliance with probation terms.
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P-II: Public International Law
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