1.CRITICALLY EXAMINE THE FEATURES OF JUVENILE JUSTICE ACT, 2015.

The JJ Act, 2015 accommodates reinforced arrangements for the two youngsters needing
consideration and insurance and kids in strife with law.
A portion of the key arrangements include:
1. Change in classification from 'adolescent' to 'kid' or 'kid in struggle with law', over the Act to
expel the negative meaning related with "adolescent";
2. Consideration of a few new definitions, for example, stranded, relinquished and surrendered
youngsters; and insignificant, genuine and deplorable offenses conferred by kids;
3. Lucidity in forces, capacity and obligations of Juvenile Justice Board (JJB) and Child Welfare
Committee (CWC);
4. Clear courses of events for request by Juvenile Justice Board (JJB); unique arrangements for
grievous offenses submitted by kids over the age of sixteen year;
5. Isolate new section on Adoption to streamline selection of vagrant, deserted and surrendered
kids;
6. Incorporation of new offenses conferred against kids; and obligatory enrollment of Child Care
Institutions.
The Juvenile Justice (Care & Protection of Children) Act,2000 has replaced and came up with
the Juvenile Justice (Care & Protection of Children) Act,2015 which came into force on 15
January,2016.
Juvenile: The term “Juvenile” means a person who has not completed 18 years of age & is
below the age of 18 years. Therefore, “Juvenile” i.e. child in conflict with law means a child who
has committed an offence but has not completed 18 years of age on the date when the offence
took place.
Age of criminal responsibility: Under the Juvenile Justice (Care & Protection of Children) Act,
2015 which provides the criminal responsibility, the age of criminal majority starts from the age
of 16 to 18 years whosoever commits a serious offence. Thus, also attracts a minimum 7 years of
imprisonment. Also, no child under the Juvenile Justice (Care & Protection of Children) Act,
2015 can be awarded a Death Penalty & Life Imprisonment.
Main objectives of Juvenile Justice (Care & Protection of Children) Act, 2015: The
Juvenile Justice (Care & Protection of Children) Act, 2015, aims to focus and change the law
related to Juvenile’s i.e. children who are supposed & found to be in conflict with the law &
children in need of Care & Protection by fulfilling their basic necessities through proper care &
nourishment, protection, treatment, social integration, trainings and also by adopting a child-
friendly approach.

Salient Features of the JJ Act, 2015:

1. Definition of ‘child in need of care and protection’ expanded- The definition as per the
new Act now also includes a child who is found working in contravention of labour laws, at
imminent risk of marriage before attaining the lawful age for the same or who resides with such
a person who has or had threatened to injure, exploit, abuse or neglect the child or violate any
other law or whose parents or guardians are unfit to take care of him.
2. CWC is no longer the final authority in cases of children in need of care and protection-
The District Magistrate shall be the grievance redressal authority for the CWC and anybody
connected with the child may file a petition before the DM, who shall consider and pass
appropriate orders.
3. Procedure for inquiry- The CWC shall now conduct an inquiry of any child produced before
it, as opposed to children for whom production reports are received. Procedure now includes
orphaned and surrendered children as well.
4. Extensive definition of ‘adoption’ provided- an extensive definition of adoption has now
been provided and child’s rights have been recognized.
The Supreme Court on 6 April 2015 asked the legislature to achieve essential changes in
the adolescent law with a specific end goal to have a hindrance impact and to make an
impression on the general public that life of the casualty was similarly essential under the govern
of law.
Expressing it was "to a great degree troublesome" to acknowledge that an adolescent
reprobate would not know about the results while perpetrating violations like assault, murder and
dacoit. The court said that the spurt in association of minors in such appalling wrongdoings
called upon a basic need to reflect on changes in the Juvenile Justice (Care and Protection of
Children) Act, 2000.
2. DEFINE ARREST AND DISCUSS UNDER WHAT CIRCUMSTANCES A POLICE
OFFICER CAN ARREST WITHOUT A WARRANT.
According to Section 41(1) the Criminal Procedure Code, Any Police-officer may,
without an order from a Magistrate and without a warrant, arrest any person. Before we see when
police may arrest without warrant let's see the meaning of arrest and warrant.

Meaning of arrest -
In the ordinary sense, an arrest is a restraint of the liberty of the person. The word arrest is
derived from the French word after which means to stop or stay.

Meaning of warrant -
The warrant is an order addressed to a certain person directing him to arrest the accused and to
produce him before the court. A warrant may be issued by the Magistrate after taking
cognizance of any offense whether it is cognizable or non-cognizable.

Arrest without warrant -

Special types of circumstances where immediate arrest is needed to prevent a dangerous
person, who has committed a serious Crime, from absconding to avert the danger of sudden
outbreak of crime. Under such circumstances, there will be no time to approach a Magistrate and
obtain a warrant from him to arrest.
When police may arrest without warrant -
Section 41 (1)of the Code of Criminal Procedure Provides that Any police officer may
without an order from a Magistrate and without a warrant, arrest any person -

(a) Who commits, in the presence of a police officer, a cognizable offense;

(b) Against whom a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a cognizable offense punishable
with imprisonment for a term which may be less than seven years or which may extend to seven
years whether with or without fine, if the following conditions are satisfied, namely -
(i) The police officer has reason to believe on the basis of such complaint, information, or
suspicion that such person has committed the said offense;

(ii) The police officer is satisfied that such arrest is necessary.

(a) To prevent such person from committing any further offense; or

(b) For proper investigation of the offense; or

(c) To prevent such person from causing the evidence of the offense to disappear or
tampering with such evidence in any manner; or

(d) To prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from disclosing such facts to
the Court or to the police officer; or
(e) As unless such person is arrested, his presence in the Court whenever required
cannot be ensured, and the police officer shall record while making such arrest, his reasons in
writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under
the provisions of this sub-section, record the reasons in writing for not making the arrest;

(a) Against whom credible information has been received that he has committed a
cognizable offence punishable with imprisonment for a term which may extend to more than
seven years whether with or without fine or with death sentence and the police officer has reason
to believe on the basis of that information that such person has committed the said offense; or
(b) Who has been proclaimed as an offender either under this Code or by order of the
State Government; or
(c) In whose possession anything is found which may reasonably be suspected to be
stolen property and who may reasonably be suspected of having committed an offense with
reference to such thing; or
(d) Who obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful custody; or \
(e) Who is reasonably suspected of being a deserter from any of the Armed Forces of
the Union; or
(f) Who has been concerned in, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion exists, of his having
been concerned in, any act committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(g) who, being a released convict, commits a breach of any rule made under sub-
section (5) of section 356; or
(h) for whose arrest any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifies the person to be arrested and the
offense or other cause for which the arrest is to be made and it appears therefrom that the person
might lawfully be arrested without a warrant by the officer who issued the requisition.

Subject to the provisions of Section 42, no person concerned in a non-cognizable offense or

against whom a complaint has been made or credible information has been received or a
reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant
or order of a Magistrate.
Arrest by Private person and procedure on such arrest
A private person also has the authority to arrest a person in some cases. A private person has full
power to arrest a person in the following cases. Provisions in the Code of Criminal Procedure
1973 are:
Section 43(1) of CRPC
Any private person may arrest or cause to be arrested any person who in his presence commits a
non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary
delay, shall make over or cause to be made over any person so arrested to a police officer, or, in
the absence of a police officer, take such person or cause him to be taken in custody to the
nearest police station.
Section 43(2) of CRPC
If there is reason to believe that such person comes under the provisions of section 41, a police
officer shall re-arrest him.
Section 43(3) of CRPC
If there is reason to believe that he has committed a non-cognizable offence, and he refuses on
the demand of a police officer to give his name and residence, or gives a name or residence
which such officer has reason to believe to be false, he shall be dealt with under the provisions of
section 42; but if there is no sufficient reason to believe that he has committed any offence, he
shall be at once released.
Section 44 CRPC- Arrest by Magistrate:
A Magistrate has Judiciary Power and can arrest any person in the following circumstances.
Provisions related to arrest by Magistrate in Code of Criminal Procedure 1973 are:
Section 44(1) of CRPC
When any offence is committed in the presence of a Magistrate, whether Executive or Judicial,
within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and
may thereupon, subject to the provisions herein contained as to bail, commit the offender to
custody.
Section 44(2) of CRPC
Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his
presence, within his local jurisdiction, of any person for whose arrest he is competent at the time
and in the circumstances to issue a warrant.
3. WHAT IS THE CHARGE AND EXPLAIN FORM AND CONTENTS OF CHARGES?
Every charge under the code of criminal procedure, 1973 shall state the offence with
which the accused is charged. The motive behind a charge is to let know the accused individual,
the issue for which he is being charged. It is necessary to pass on to the accused absolutely
clearly and with certainty what the prosecution has accused him of or what the prosecution has
against him.
The charge which is levied against the accused is important for him to be known so that
he can prepare his defense and so that justice is done by him. It is also necessary that the charge
be then read and explained to the accused person.

Nature and Purpose of charge

It is a necessary characteristic of charge to be precise in its scope and particular in its details.
In V.C. Shukla vs. State, Justice Desai opined that, ‘the purpose of framing a charge is to give
intimation to the accused of clear, unambiguous and precise notice of the nature of the accusation
that the accused is called upon to meet in the course of a trial’.

Essentials of Charge
The following are the contents that are a must for a charge:
Stating the Offence
The offense must be expressed, in a charge sheet so that the accused may shield himself.
Describing the offence by the name
Along with the charge the name of the offence, related to such charge must be clearly defined
and explained.
Defining and understanding the offense
In places where the criminal law has not named the offence then a definition/ meaning of the
offense must be expressed.
Mentioning the law and section of law
The charge must contain the law or the section of the law against which the offense has been said
to be committed.
Substantive requirements of offense to be complied with
The charge must fulfil the requirements of the offense, whether there are any exceptions are there
or not and if there are then the charge should adhere to them.
Charge’s language
It is to be noted that one of the basic essentials of charge is that the charge should be framed in
English or the Court’s language or the language which is understandable by an accused.
Accused person’s previous convictions
Charge might state the fact, date, and place of the previous conviction in places where the
accused is liable to enhanced punishment by virtue of his previous conviction and where such
previous conviction has to be proved.
Details of Time, Place and Person
It is crucial for a charge to contain the time when offense happened, place where offense was
committed, person against whom the offense was committed and any other object or thing
against whom the offense was committed.
Particulars of the way in which the offence was committed
In cases where the information is not sufficient to give notice of the offense been charged, then it
is expected that the charge shall include the particulars of the manner in which the alleged
offense was committed.
Thing in respect of which offense is committed
It is important for a charge to express the property in respect of which the offence is said to have
taken place.
Illustrations:
1) ‘B’ is charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally
obstructing a sale of property offered for sale by the lawful authority of a public servant. The
charge should be in those words only to be constituted as one.
2) ‘O’ is accused of the murder of ‘A’ at a given time and place. The charge need not necessarily
state the manner in which ‘O’ murdered ‘A’.
3) Omission of framing charges under section 306, may or may not lead to failure in justice.
Generally such plea should not be allowed to be raised for the first time before the court until
unless there are such materials on record which would establish against the accused. This has
been observed in Harjit Singh vs. State of Punjab.
4) ‘A’ is accused of cheating ‘B’ at a given time and place. The charge must be set out in the
manner in which ‘A’ cheated ‘B’.
5) ‘A’ has been accused of obstructing a person, ‘B’, who is a public servant, in the discharge of
his public functions at a given time and place. The charge must set out the manner in which B
has been obstructed by A in the discharge of his functions.
6) ‘H’ is charged under section 326 with voluntarily causing grievous hurt to ‘M’ by means of an
instrument for shooting. It is to be observed here that this is equivalent to a statement that the
case was not provided for by section 335 of the said code and that the general exceptions did not
apply to it.

Type of cases where charges are framed:

A charge is generally required to be framed in three types of cases:
1) SESSIONS CASES under section 228 of Cr.P.C.
2) WARRANT CASES triable by magistrate instituted on police reports under section 240 of
Cr.P.C.
3) WARRANT CASES triable by magistrate instituted otherwise than on police report or
instituted on the basis of private complaint under section 246(1) of Cr.P.C.
In trials of summons cases and in summary trials, charge is not framed, instead of charge plea is
held.
4.WHAT DO YOU UNDERSTAND BY THE WORD “JUDGMENT “? EXPLAIN THE
MODE OF DELIVERY OF JUDGMENT?

a) Section 353- 365 of CRPC

* Mahatma Gandhi once said, "Hate the crime not the criminal."*
Judgment: It is a final order, verdict or decision given by the judge or magistrate on the ground
of decree. Judgment is given in every trial in Criminal Court falling under its jurisdiction.
The Judgment shall be in writing in the Court language. It shall contain In the following
things.
1. Points, which are helpful for determination of case.
2. The Judgment, based upon points.
3. Reasons for Conclusion.
4. The judgment should be signed by presiding officer in open court at the time of pronouncing
it.
5. Must specify the section under IPC or any other law in force, under which the accused is
convicted.
6. In case of acquittal state the offence of which the accused is acquitted and direct that he be set
at liberty.
7. When the sentence of death is passed direct that the accused shall be hanged by the neck till he
is dead.

Modes of Pronouncing the Judgment (Section 353 of CrPc)

Legal provisions regarding modes of pronouncing the judgment under section 353 of the Code of
Criminal Procedure, 1973, are as follows.
(1) The judgment in every trial in any criminal Court or original jurisdiction shall be pronounced
in open Court by the presiding officer immediately after the termination of the trial or at some
subsequent time of which notice shall be given to the parties or their pleaders:
(a) By delivering the whole of the judgment; or
(b) By reading out the whole of the judgment; or
(c) Language used in the judgment must understand by the accused or his lawyer.
(d) In each and every page the initial or sign of the presiding officer is necessary.
(e) At the time of delivering the judgment the presence of accused is must.
(f ) The Court after delivering the judgment the presence of accused is must.
(g) The Court after delivering judgment shall not alter or review the same, except to correct
clerical error.
(h) The high court has only power to review judgment.
Section 355
Metropolitan Magistrate’s judgment: Instead of recording a judgment in the manner herein
before provided, a Metropolitan Magistrate shall record the following particulars, namely:-

(a) The serial number of the case;

(b) The date of the commission of the offence;
(c) The name of the complainant (if any);
(d) The name of the accused person, and his parentage and residence;
(e) The offence complained of or proved;
(f ) The plea of the accused and his examination (if any);
(g) The final order;
(h) The date of such order;
(i ) In all cases in which an appeal lies from the final order either under section 373 or under sub-
section (3) of section 374, a brief statement of the reasons for the decision.

Post-conviction: Post-conviction relief is a procedure that allows the defendant in a criminal

case to bring more evidence or raise additional issues in acase after a judgment has been made
(post-trial). With valid grounds, post-conviction relief can help you obtain a fair resolution in
your case such as,
a. Release on Probation for Good Behavior:
b. Young offenders
c. Death Sentence
d. Sentence of Imprisonment
e. Sentence of Fine
5. EXPLAIN THE TRAIL OF WARRANT CASES BEFORE A MAGISTRATE

WARRANT CASES 2(X) 238 TO 250

Warrant Cases

Warrant case other than on

Institute on Police Report
Police Report
(238 to 243) (244 to 247)
+
248 to 250
1. Compliance with 1. Evidence for
S. 207 Prosecution
(S. 244)
2. When accused 2. When accused
Shall be is discharged
Discharged (S. 245)
(S.239)

3. Framing of 3. Procedure
Charges where accused is
(S.240) not discharged
(S.246)
4. Conviction on 4. Defence
P.O.G (S.241) Evidence (S.247)
5. Evidence for 5. Acquittal (or)
Prosecution Conviction
(S.242) (S.248)
6. 313(1)(b)
7. Evidence for
Defence (S.243)
8. Acquittal (or)
Conviction
(S.248)

Warrant Cases Institute on Police Report (Section 238-243)

S.207. SUPPLY TO THE ACCUSED OF COPY OF POLICE REPORT AND OTHER

DOCUMENTS.
In any case where the proceeding has been instituted on a police report, the Magistrate shall
without delay furnish to the accused, free of cost, a copy of each of the following-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) The statements recorded under sub-section(3) of section 161 of all persons whom the
prosecution proposes to examine as its witnesses.
(iv) The confessions and statements, if any, recorded under section 164;
(v) any other document or forwarded to the Magistrate with the police report
Provided that if the Magistrate is satisfied that any document referred to in clause (v) is
voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will
only be allowed to inspect it either personally or through pleader in Court.

Contents in an Application for Discharge under Section 239 C.R.P.C

The following points must be raised in the Application:
 Depending upon the nature of the offence, it has to be asserted.
 When no material particulars of the offence have been specified in the F.I.R and Charge
sheet i.e Vagueness in allegations in F.I.R and Charge sheet.
 If the F.I.R and Charge sheet allegations have not been supported by evidence.
 If the version of the Prosecution has not been supported by any of the witnesses for the
Prosecution.
 If Contradictions present in the versions of the Prosecution and Witnesses.
 If the allegations in the charge sheet are new and different from complaint allegations and
these new allegations were not communicated to the accused to defend by the accused by
producing supporting evidence.

240. FRAMING OF CHARGE.

(1) If the Magistrate is of opinion that there is ground for presuming that the accused has
committed an offence triable under this section then,he shall frame in writing a charge against
the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he
pleads guilty of the offence charged or claims to be tried.

241. CONVICTION ON PLEA OF GUILTY.

If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion,
convict him thereon.

SECTION 242 OF CRPC "EVIDENCE FOR PROSECUTION"

(1) If the accused refuses to plead or does not plead, or the Magistrate does not convict the
accused under section 241, the Magistrate shall fix a date for the examination of witnesses.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its
witnesses directing him to attend or to produce any document or other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be
produced in support of the prosecution. Provided that the Magistrate may permit the cross-
examination of any witness until any other cross examination takes place.

Section 243 of CRPC "Evidence for Defence"

(1) The accused shall then be called upon to enter upon his defence and produce his evidence;
and if the accused puts in any written statement, the Magistrate shall file it with the record.
(2) If the accused applies to the Magistrate to issue any process for compelling the attendance of
any witness for the purpose of examination or cross-examination, the Magistrate shall issue such
process unless it should be refused on the ground that it is made for the purpose of delay.
(3) The Magistrate may, before summoning any witness on an application under sub-section (2),
require that the reasonable incurred by the witness in attending for the purposes of the trial be
deposited in Court.
Warrant Cases Institute other than on Police Report (Section 244-247)

Section 244 of CRPC "Evidence for prosecution"

(1) When, in any warrant-case instituted other than on a police report, the accused appears
before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such
evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of
its witnesses directing him to attend or to produce any document or other thing.

Section 245 of CRPC "When accused shall be discharged"

(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for
reasons to be recorded, that no case against the accused has been made out which, if unrebutted,
would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused
at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers
the charge to be groundless.
Section 246 of CRPC "Procedure where accused is not discharged"
(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is
of opinion that there is ground for presuming that the accused has committed an offence triable,
in which such Magistrate is competent to try and which, could be adequately punished by him,
he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he
pleads guilty or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion,
convict him thereon.
(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not
convicted under sub-section (3), he shall be required to state, at the commencement of the next
hearing of the case.
(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-
examination and re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after
cross-examination and re-examination (if any), they shall also be discharged.

Section 247 of CRPC "Evidence for defence"

The accused shall then be called upon to enter upon his defence and produce his evidence; and
the provisions of section 243 shall apply to the case.

248. ACQUITTAL OR CONVICTION.

(1) If, in any case under this section in which a charge has been framed, the Magistrate finds the
accused not guilty, he shall record an order of acquittal.
(2) Where, in any case under this section the Magistrate finds the accused guilty, he shall, after
hearing the accused on the question of sentence, pass sentence upon him according to law.
 6. DEFINE BAIL AND DISTINGUISH IT FROM ANTICIPATORY BAIL?

Bail is a kind of security which is given by the accused to the court that he will attend the
proceedings against the accusations made upon him and include personal bond and bail bond.
The two authorities that can grant bail are police and courts.
Section 437 disallows to be given bail under following conditions:

 If it appears there is a reasonable ground for believing that he has committed an offence
punishable with life imprisonment or death.
 If such offence is cognizable and the person has been previously been convicted of an
offence with death or life imprisonment

Bail when and when not to be granted:

The distinction between bailable and non-bailable offences is based on the gravity of the offence,
danger of accused absconding, tampering of evidence, previous conduct, health, age and sex of
the accused person.

The basic rules of grant or denial of bail may simply be summarized as:

a. There are only two kinds of offences bailable and non bailable offences
b. In case of bailable offences it is the right of accused to demand and be granted bail.
c. The certain basic criteria while exercising in case of non bailable offences has been laid down
in section 437 CrPc. Some of these criteria include the nature of offence, past criminal records
and probability of guilt.
d. Section 438 CRPC deals with anticipatory bail in cases where there is an apprehension to
arrest.
In Free Legal Aid Committee, Jamshedpur vs. State of Bihar, the Supreme Court ruled that in
a session’s case if the magistrate has granted bail, the accused need not seek bail from the court
of sessions.

There rose an interesting question in Haji Mohamed Wasim v. State of U.P. before the
Allahabad High Court questioning the validity of bail granted by police officers. In the instant
case, the accused on bail which was granted by police preferred to not appear before the court.
Hence here the trial court issued a non-bailable warrant which was then challenged by the
accused under section 482. It was hence ruled by the court that he has to take fresh bail from trial
court.

Bail by Police
The Police Officer power, to release a person on bail who has been accused of an offence and is
in his custody, is categorized under the two heads:

(A)When without any warrant the arrest is made and;

(B)When with the issuance of warrant the arrest is made .

Bail when arrest made without warrant:

(i) Bail under section 42 Cr. P.C.:
Bail can be invoked when the offender refuses to give name and address or gives a name and
address which the police officer considers to be false.
(ii) Bail under section 43 Cr. P.C.:
The Code of Criminal Procedure provides for the arrest of person by a private person also though
his powers of arrest are very limited.

Bail by Police when arrest made in pursuance of warrant

The relevant provisions of Code of Procedure in connection with above heading are confined in
section 71 and 81 of Criminal Procedure Code.

(i) Bail under section 71 Cr. P.C.:

It is a matter entirely in the discretion of the court issuing a warrant under this section to give a
direction for the release of the arrested person on bail or not. Even in bailable offence, a court
may not give such direction. In the case of Lachhmi Narain Vs. Emperor, the above has been
stated.

(ii) Bail under section 80 & 81 Cr. P.C:

A police officer cannot release a person on bail simply because the arrested person is accused of
a bailable offence. He has to comply strictly with the contents of the endorsement if any.

Bail to Lunatics:
Section 330, Cr. P.C. Bail cannot be claimed as a matter of right for persons of unsound mind. A
Magistrate may release a person of unsound mind on bail even though he is charged of an
offence of the most heinous type and may refuse bail in bailable case if he is of the opinion that
bail should not be allowed.

Bail under Section 437 Cr. P. C. Section 437:

It deals with bail in bailable offence. Grant of bail is a rule whereas refusal in this context is an
exception. A person accused of bailable offence has the right to be released on bail. Bail in cases
of bailable offences is compulsory bail.

Bail for non-bailable Offence: Under Section 437 Cr. P. C.:

The provisions of section 437 empower two authorities to consider the question of bail, namely-

(1) a “court” which includes a High Court and a Court of Session, and

(2) an officer-in-charge of the police station who has arrested or detained without warrant a
person accused of a non-bailable offence. it has also laid down certain restrictions on the power
of a police officer to grant bail and certain rights of an accused person to obtain bail when he is
being tried by a Magistrate.

Anticipatory Bail
Anticipatory bail means that if a person apprehends that somebody is moving to get him arrested
then he can move either to sessions court or high court under section 438 of CrPC for grant of
anticipatory bail in the event of his arrest and if the court may think fit it may grant anticipatory
bail in event of such arrest. In India, the power to grant anticipatory bail has been provided to
Supreme Court, High Court and Sessions Court.

The court while granting the anticipatory bail has to consider the following factors
 Nature and gravity of the accusation.
  The antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offense.
 The possibility of the applicant to flee from justice, and
 Where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested,

Object and Purpose of Anticipatory Bail

The object of the arrest of accused is to secure his presence in the court during a trial but if the
presence of accused can be secured in any other way than arrest then it is just an unfair to arrest
such person as it will deprive the accused of his Right to liberty.

Procedure to Apply for Anticipatory Bail

For granting of anticipatory bail, Sessions Court or High Court can be approached. As soon as
the person is under the apprehension that a complaint is filed against him for any of the
following offence -
 Criminal breach of trust (Section 406 IPC)
 Mischief by destroying or moving, etc., a landmark fixed by a public authority (Section
434 IPC)
 Husband or relative of husband of a woman subjecting her to cruelty (Section 498A IPC)
 Any other non-bailable offence
In such cases, a person should consult a top criminal lawyer who will help him in getting
anticipatory bail. In the case of Gurbaksh Singh Sibbia vs. State of Punjab held that a notice
should be issued to the Public Prosecutor or the Government advocate before passing a final
order granting anticipatory bail. The court can put certain conditions and restrictions while
granting anticipatory bail.

These conditions and restrictions are as follows:

 A condition that the person shall make himself available for interrogation by a police
officer as and when required;
 A condition that the person shall not, directly or indirectly, make any inducement, threat
or promise to any;
 A condition that the person shall not leave India without the previous permission of the
Court;
 Such other condition as may be imposed under Sub-Section (3) of section 437, as if the
bail were granted under that section.
Distinction between Ordinary Bail and Anticipatory Bail
In Gurbaksh Singh Sibbia v. State of Punjab, the Supreme Court held that:-

“The distinction between an ordinary order of bail and an order of anticipatory bail is that
whereas the former is granted after arrest and therefore means release from the custody of the
police, the latter is granted in anticipation of arrest and is therefore effective at the very moment
of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An
order of anticipatory bail constitutes, so to say, an insurance against police custody following
upon arrest for offence or offences in respect of which the order is issued. In other words, unlike
a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in
whose favor it is issued is thereafter arrested on the accusation in respect of which
the direction is issued, he shall be released on bail.”
7. EXPLAIN THE CONSTITUTIONAL VALIDITY OF SEARCH AND SEIZURE?
The chapter VII, containing of sections 91-100 of the Code of Criminal Procedure,1973,
deal with the provisions related to summons to produce things, provisions related to search-
warrants and other general laws relating to searches. The provisions of this chapter relate to
summons and warrants, their issue, the way they are served and executed and summons and
warrants of arrests.
1. Summons– A summon is an order from court to an individual to appear before it at a specified
time and place. A summon can be issued in both criminal and in civil cases.
2. Warrants– Warrant is legal document issued by a judge or magistrate, empowering a police
officer to make an arrest, search or seize premises or undertake any action, concerning the
administration of justice.
3. Search– The term ‘search’ denotes that action of government machinery which includes
looking through or examining carefully a place, area, person, object etc. in order to find
something concealed or for the purpose of discovering evidence of a crime.
4. Seizure– The act of seizing is well known as seizure. It is a forceful action in which an object
or person is suddenly taken over, grabbed, removed, or overwhelmed.
In the Miller v. United States it was stated that “The poorest man may in his cottage bid
defiance to all the force of the Crown. His cottage may be frail, its roof may shake, the wind may
blow through it, the storms may enter, the rain may enter but the king of England cannot enter.
No matter the nature of forces, they dare not cross the threshold of the ruined tenement.”
In India the power of search and seizure for prevention and investigation of offences was
for the first time conferred under the Code of Criminal Procedure and since search and seizure is
a process exceedingly arbitrary in character, stringent statutory conditions were imposed on the
exercise of the power.
The Madras High Court in the R.S. Jhaver v. Commissioner of Commercial Taxes, case
elucidates the point: “All that is necessary therefore, is that there should be a balance struck, just
and equitable, in all the circumstances between the sanctity of the property or individual rights
and the interest of the community in law enforcement either in regard to tax collection or
suppression of crimes or any other by the insistence upon proper safeguard against oppression or
violation of guaranteed basic rights under the Constitution”.

General Provision relating to search proceedings

Section 91- Summons to produce document or other thing and Section 92 –Procedure as to
letters and telegram-
It has been provided under these sections that in cases where any Court or any Officer-in-
charge of any police station considers the production of any document as crucial for the purpose
of investigation, then the person is summoned i.e. a summon is issued to him, to attend and
produce that important thing at the said time and place as, mentioned in the summon.
Section 93-
This section states the situations in which search warrants may be issued. The situations are as
follows-
a) Where the court has certain reasons to believe that any person to whom a summon or
requisition has been addressed, will not duly produce the said document or the thing which is
required,
b) In cases where the said document is in possession of any person but is not known to the court.
c) In cases where general search and inquiry are a must for carrying out inquiry, trial or other
proceeding.
d)In cases where only a specific place or part needs to be searched and inspected then in that case
the same shall be explicitly mentioned in the warrant.
e) However, any magistrate other than a district magistrate or chief judicial magistrate shall not
be authorised to search for any document, parcel or other thing in the custody of postal or
telegraph authority.
In the case of V. S. Kuttan Pillai v. Ramakrishnan, the constitutional validity of search
warrants was upheld, wherein it was opined that a search of the premises occupied by the
accused does not by any means results in compelling him to give evidence against himself and
hence was not violative of Article 20(3) of the Constitution of India
Section 94 –
This section contains provisions relating to search of place suspected to contain stolen
property, forged documents or any objectionable articles. The High Court of Andhra Pradesh has
observed in Dinesh Auto Finance v. State, that a search warrant under Section 94 can be issued
only by District Magistrate, Sub- Divisional Magistrate, or a Magistrate of the First Class and the
person authorized to search must be a police officer above the rank of a constable.
Section 95-
This section deals with the power of the state government to declare by way of
notification, that the publication of the copies of the newspaper, book or any document is
forfeited in case it contains any matter which is punishable under the following provisions of the
Indian Penal Code:—
(1) Sedition (Section 124 A), or
(2) Promoting enmity between classes (Section 153-A) or
(3) Imputations, assertions that are prejudicial to national integration
(Section 153- B), or
(4) Sale etc. of obscene books (Section 292)
(5) Obscene objects being sold to young persons (Section 293); or
(6) Insulting in a malicious manner the religion or the religious beliefs of any class
(Section 295-A)
In the case of Anand Chintamani Diglie v. State of Maharashtra, a notification for the
forfeiture of the book in all forms entitled Mee Nathuram Godse Bolto ahe (I am Nathuram
Godse speaking) including Gujarati translation was seized under Section 95 by the State
Government for reasons that circulation of the said book will disturb public tranquillity, promote
disharmony or feelings of enmity, hatred or ill-will among different groups or communities.
Section 96-
Deals with the provision of sending application to High Court to aside declaration of forfeiture.In
cases like Ram Rakha vs Sat Paul and Yeshwant Bapuji Mokashi vs State Of
MaharashtraAnd Ors, the importance of this section has been elaborated.
Section 97-
This section states that if there is any such situation where the district magistrate, believe that
any person is confined in such manner in that case a search warrant may be issued to start the
search for such person so confined and if such a person is found then shall be taken before a
magistrate who shall further take appropriate action.
However, in the case of Ramesh vs Laxmi Bai, it was held that a son in the custody of
his father will not be held to be in any illegal confinement and hence search warrant for the same
cannot be issued.
Section 98-
In case of abduction or unlawful detention of a woman or a female child under the age of 18
years for any unlawful purpose and order of restoration of such woman to her liberty by means
of issuing a search warrant may be made.
Section 100-
This section directs the persons residing in, or being in charge of, any such place where search or
inspection is to be carried out shall allow the officer free ingress
Under this section, in the case of Sadhu Singh vs. State of Punjab, it has been stated that
in search or inspection of an enclosed area, public witness should not join, however attempt can
be made to make them join according to the situations.
Section 101-
When a search warrant is being executed which is beyond the local jurisdiction of the court,then
in that case, if the thing for which the search is made is found, shall be immediately taken before
the court issuing the warrant. In Matajog Dobey vs. H.C. Bhari , the court has stated that in
cases where salutary provisions have not been complied with, then this may affect the weight of
evidence in support of the search and may lead to disbelieving the evidence produced unless the
prosecution provides proper explanation for such lack of compliance to provisions.
What is the power of police in case of seizing certain property?
Under section 102 of the Code, if any police officer suspects and property to be stolen or if such
thing is found to create suspicion that any offence is being committed then in that case he may
seize such property.
Here it is to be noted that ‘bank account’ is to be ascertained as property under section
102, and the police officer has power to seize the operation of such bank account in case such
assets have direct link with the commission of offence for which the investigation is being
carried on. This has been upheld in the case of State of Maharastra vs. Tapas D. Neogy.
Procedure to be followed while carrying out search:
 Without a valid search warrant issued by the proper authority, no search of premises
should be carried out.
 The presence of a lady officer in the search team is not negotiable.
 The search and seizure should normally be done after sunrise and before sunset. If it is
conducted so, the grounds as to why it was necessary to take such action should be
recorded and sent within 72 Hours to the immediate official superior.
 The officers before starting the search are required to disclose their identity by
showing their identity cards to the owner of the premises and by taking their
signatures on the search warrant.
 It is also important to take signatures of at least two witnesses on the search warrant
and the search should be made in the presence of such two independent and respected
witnesses of the locality.
 A document known as the Panchnama / Mahazar, should be prepared on the spot
which contains the proceedings of the search. A list of all goods, documents recovered
and seized/detained should be prepared and annexed to this Panchnama/Mahazar.
 After examination of the seized goods or things by the authority, the original copy of
the samples is supposed to be sent to the chemical Examiner within 72 hours through
a test memo for further research.
 It is mandatory here to prepare Form-F and to send it immediately to the respective
authorities.
 Once the search is over, the search warrant should be returned in original to the
issuing authority with a report regarding the outcome of the search.
 It is to be noted that a copy of the Panchnama / Mahazar, so formed should be given to
the person in- charge/owner of the premises being searched under acknowledgement.

Forms relating to search warrants and summons-

1) FORM NO.10 – Under this, warrant to search after information of a particular offence has
been given is filed.
2) FORM NO.11 – Under this, warrant to search any suspected place of deposit is filed.
3) FORM NO. 30 – Under this, special summons are issued to a person accused of petty
offence.
4) FORM NO. 33 – Under this form, summons to witness are executed.
 ITEMS TO BE SIEZED
ITEMS NOT TO BE SIEZED UNDER SECTION
UNDER SECTION 60
60 CPC
CPC
1. Lands 1. Necessary wearing apparel
2. Buildings 2. Cooking utensils
3. Houses 3. Bedding of JDR, wife, children etc
4. Goods 4. Personal ornaments
5. Money 5. Tools of Artisans, seed gains
6. Bank Accounts 6. House in which JDR resides
7. Cheques 7. Books of Account
8. Bills of Exchange 8. A mere right to sale for a damager
9. Hundis 9. Any right of personal service
10. Promissory Notes 10. Stipends / Gratitute of pensions
11. Government Securities 11. Wages of labour &
12. Debts 12. Salary ( Rs. 1000 + 2/3 of maintenance)
(i) 24 months- next 12 months no maintenance =
13. Shares in a Company 1/2
14. Salaries, Rents, Bonds (ii) Army, Navy, Airforce
(iii) PPF Deposits
(iv) Insurance
(v) Right to future maintenance
8.GIVE A BRIEF NOTE ON THE PROCEDURE UNDER THE PROBATION OF
OFFENDERS ACT.

Salient features of the act:- The probation of offenders Act, 1958 was passed in the year 1958
with an object of preventing the conversion of youthful offenders into obdurate criminal as a
result of their association with hardened criminals of mature age in case the youthful offenders
are sentenced to undergo imprisonment in jail. The following are the important features of the
Act.

1. If the person is punishable with imprisonment of not more than two years, he shall be
released after warning him not to do such offence again. For this the court considers the
age and character of the accused.
2. If the offence is punishable with other than the death or life imprisonment then only the
court grant the probation
3. After the granting the probation the court may order to produce the sureties if necessary.
Sometimes the court orders the accused must available to the court when it required.
4. The probation is applied to all persons irrespective of their age.
5. If the age of the offender is below 21 years and the punishment is not death or life
imprisonment then only he gets the probation.
6. If the age of the accused is above 21 years, then the court according to its discretionary
power grants or rejects the probation.
7. After releasing the accused by granting the probation he must be under purview of
probation officer who was under the control of district magistrate and appointed by State
Government.
8. The object of granting the probation is the accused is to be treated as an innocent.

Aim and objectives of the Act:-

The Act empowers the Court to release certain offenders after admonition and place
certain other offenders on probation for good conduct, and the Act puts a restriction on the court
forbidding the imprisonment of any offender below the age of 21 years, who has not committed
an offence punishable with imprisonment for life, unless the circumstances of the case or nature
of the offence requires that the offender be punished.

Release after admonition:

Section 3 empowers a court to release an offender after admonition (mandhalinchatam),

if he is found guilty of having committed offence specified in that section or any offences
punishable with imprisonment of not more that 2 years or fine or both under penal code or any
other law provided he is not a previous convict

Release on probation of good conduct:-

Section 4 authorizes a court to release an offender on probation on his entering into a

bond with or without sureties to appear for receiving sentence when called upon during such
period not exceeding three years and in the mean time to keep the peace and to be of good
behavior.

No imprisonment under twenty one years of age:

Section 6(1) makes it obligatory for the court not to pass a sentence of imprisonment if an
offender is under 21 years of age and has committed an offence punishable with imprisonment
but not with imprisonment for life.

Breaches of probation conditions

As per section 9, court which passes an order under section 4 in respect of an offender or
any court which could have dealt with the offender in respect of his original offence has failed to
observe any of the conditions of the bond, it may issue a warrant for his arrest or may, issue a
summons to him and his sureties.

Compensation:-

The Act insists that the court may order for payment by the offender such compensation
and costs of the proceedings as it think reasonable for loss or injury caused to the victim.

Varying the conditions of bond:-

The Act provides the freedom to court to vary the conditions of bond when an offender is
released on probation of good conduct and to extend the period of probation not to exceed 3
years from the date of original order.

Points to Remember:-

a. First probation of offenders Act was passed in India in 1938

b. John Augustus is credited as the father of probation
c. He became the first probation officer in the USA
d. He helped criminals to find out jobs
e. Probation literally means testing of behavior of offenders
f. Probation it is called as ‘non-institutional treatment’
g. The object is to prevent conversion of youth into criminal
h. The Act empowers court to release offender after admonition
i. Section 4 authorizes a court to release an offender on probation
j. Court shall not sentence offender is under 21 years of age

PAROLE:-Parole means releasing the convict on condition of good behavior, after a part of
the sentence is served. Parole is also called leave on ticket. It is a premature releasing of the
convict. Parole is a reformative or rehabilitative technique.
Differences between parole and probation
PAROLE
1. A Prisoner is released from prison and
allowed to live with his family for certain
2. The government established the parole
board which contains political leaders
justice etc
3. The parole board retains jurisdiction
4. The parole officers are the employees of the
state government.
5. Originally the offenders those who are
committed are entitled to get the parole by
showing the god conduct in the prison.
6. Parole is granted irrespective age limit.
Generally it is granted to the persons above
the age of 21 years.
7. The convicted persons is eligible for parole
depending upon the report made by the
prison officers.
Probation officers-Duties
PROBATION
1. A convict is sentenced to a period of
probation in lieu of prison. He sent to
his family directly without seeing
prison.
2. The court imposed the sentence of
probation
3. The court retains jurisdiction
4. The probation officers are the officers
of the court
5. Probation is alternative sentence for
less serious natured offences
6. Probation is for the offenders who
commit the offence first time.
7. The accused gets eligibility for
probation depending upon the reports
of the probation officer.

Probation officer is a person having following characteristics according to the probation

of offenders Act 1958.

1. A person appointed to be a probation officer by the state government or recognized as

such by the government.(or)
2. A person provided for this purpose by a society recognized in this behalf by the state
government(or)
3. In any exceptional case, any other person who in the opinion of the courts is fit to act as
probation officer in the special circumstance of the cases
4. The district magistrate of the district in which the offender for the time being resides is
also called as a probation officer.

Duties:-

1. Inquire into the circumstance or home surroundings of any person accused o an offence
with a view to assist the court in determining the most suitable method of dealing with
him and submit report to the court,
2. Supervise the persons placed under supervision and try to find them suitable employment
where necessary.
3. Advise and assist offenders in the payment of compensation or cost ordered by the court
4. Perform such other duties as may be prescribed

The role of the probation officers is very important. He can be described as a friend, guide,
and well-wisher, of client under his control. So if the probation officers fail to discharge their
duties properly, the objective sought to be achieved under the Act is not possible.
9. WHAT IS THE FAIR TRAIL? ENUMERATE THE VARIOUS STAGES IN A TRAIL
BEFORE A COURT OF SESSION

TRIAL BEFORE COURT OF SESSION

Opening case by Public Prosecutor

Satisfied Not satisfied

Charge framing discharge

Plea Of Guilt (P.O.G)

Yes No
P.W

Satisfy not satisfy

313(1)(b) Acquittal

2W Conviction - Quantum of
Sentence
Arguments

Acquittal
225 Trial to be conducted by P.P
226 opening case for prosecution
227 Discharge
228 Framing of charge
229 Plea of Guilt
230 Date for prosecution evidence
231 Evidence for prosecution
232 Acquittal
313(1)(b)
233 Entering upon defence
234 Arguments both by Public Prosecutor & Defence
235 Judgement

Trial before Session’s court

Sections 225 to236 deal with procedure to be followed in a session’s case before a court
sessions.

1. Parties before courts of session’s:- Public prosecutor shall start the trail on behalf of the
prosecution in the presence of the defense council belongs to the accused.
2. Opening of the case by prosecution:- After the trail has been started by the prosecutor
he himself explains about the case and the evidence which he is going to be produced
before the honorable court is explained.
 3. Discharge of the accused:- Whenever the public prosecutor fails to explain the case
against the accused in before the honorable court, then the accused is to be declared as an
acquittal.
4. Framing of charge:- After the explanation regarding the case made by the prosecutor
against the accused, if court satisfies then frames the charges.
5. Explaining the charge:- The main reason for this is to explain the nature of the offence
to the accused, which was explained to him in open court. This is otherwise known as
framing of charge.
6. Conviction of plea of guilty:- The accused accepts the crime, and then he will be
convicted according to law in force. If the accused may not accept the crime, then
according to procedure the court trails the case accordingly.
7. Fixing the date for prosecution evidence:- After rejection made by the accused in court
starts the case according to procedure. The first step is to fix the date for prosecution
evidence.
8. Evidence for the prosecution:- Judge record the prosecution evidence in writing
according to the prescribed manner stipulated in code.
9. Arguments on behalf of the persecution:- After recording the prosecution evidence the
judge fixed a date for the arguments on behalf of the prosecution.
10. Examination of the accused:- After the arguments made by the prosecutor the judge
examine the accused, if there is any evidence on behalf of the defense for accused to
acquit
11. Acquittal of the accused:- If there is no evidence against the accused that he may be
acquitted.
12. Evidence for defense:- The court shall examine the witness and record their evidence
produced behalf of the defense case Eg:Alibi.
13. Examination of court witness:- Here in this step the court may examine the experts like
finger prints, medical officer etc.,
14. Arguments: - Arguments made by the defense council on behalf of the accused.
15. Judgment: - The competent court pronounces the judgment according to the evidences
of both sides.

Summary trials

As per the provisions of section 260 to 265 the magistrate is empowered to try the cases
summarily. Summary means the case is adjudicated without any delay. Summary trial means
speedy disposal of the case. The following persons are empowered to try the summary trials.

1. Chief judicial Magistrate

2. Metropolitan magistrate
3. Magistrate of the first class & second class who are specially empowered by High court
and Supreme court

The following are the offences trial under summary trials:

1. Offences not punishable with death, imprisonment for life or imprisonment for a term
exceeding 2 years.
 2. Theft where the values of the property does not exceed Rs 200/-
3. Receiving of stolen property wroth Rs 200/-
4. Abetment of the foregoing offences.

Important Points:-

1. Punishment in summary trials may be fire or imprisonment only up to 3 months.

2. Summary trial can be changed to regular case trials.
3. Record in summary trial consists of details of name, date, offence, address, findings, plea,
sentence and date of termination of the proceedings.

Judgment:- the judgment is the final decision of the court given with reasons and the question
of the guilt or innocence of the accused person. It includes the punishment to the offender.
Judgment contains the following things.

1. Serial No. of the case

2. Date of commission of offence
3. Name of the complainant
4. Name of the accused and his address
5. Offence committed
6. Plea of accused.

10.Elucidate the difference between ‘Summons procedure’ and ‘Warrant procedure’.

Summons cases:- It means a case relating to an offense, which is less serious nature than
warrant cases. A case relating to an offence punishable with imprisonment less than two years is
a summons case.

Warrant cases:- It means a case relating to an offence punishable with death; life
imprisonment; imprisonment exceeds for a term of two years is called as warrant cases.

Differences between summons and warrant cases:-

1. In summons case when the accused appears before Magistrate he particulars of the
offence is explained to accused, and ask him why he should not be convicted. If he
admits the guilt or fails to show proper cause, he may be convicted straight away.

In warrant case no such power of summary conviction exists. In warrant cases the
magistrate begins to hear the case of the prosecution by examining the complainant and
other prosecution witnesses, then asked the accused whether he pleads guilty or not.

2. In summons case no formal charge is necessary, but in warrant case a formal charge must
be framed.
3. In a summons case the accused has to cross- examine each of the prosecution witnesses
immediately after their chief examination. In warrant case the accused can reserve the
right of cross-examination until the charges were framed.
4. In summons case the complainant may withdraw his complain with the permission of the
court; on such withdrawal the accused is acquitted. In warrant case the accused can
reserve the right of cross-examination until the charges were framed.
 5. In summons case if the complainant is absent on the date of hearing then the accused
shall be acquitted. In warrant cases the magistrate shall proceed with the trial and dispose
of the case on merits.
6. In a summons case instituted otherwise than upon complain the magistrate may stop the
proceedings at any time and release the accused
In warrant cases no such provision exists.

Rights of arrested person

Whenever the police want to arrest the person he must fulfill the following rules &
regulations stipulated in the criminal procedure code.

1. It is the right of the arrested person to know the reason for his arrest
2. On what grounds he was arrested by the police must be informed to him or his relatives.
3. While arrest takes place, at that time the arrested person has right to make a phone call to
his advocate with the cost of the state.
4. Right to demand to produce him before the court within 24 hours towards getting the bail
from the competent court.
5. If he was not produced before the court within 24 hours, he has a right to file Habeas
Corpus petition under Article 32 in Supreme Court and under article 226 of High Court.
6. If his health is not in good condition he has right to demand to examine him by the
authorized medical practitioner.
7. Right to demand for the receipt for the seized articles from him.
8. If he was in the lockup it is the duty of police to feed him up until they surrender him
before the court.
9. If he is a pauper then the government with its cost appoints an advocate according to
Article 24 of the Indian constitution, which means legal aid.
11.WHO ARE THE PERSONS ENTITLED TO MAINTENANCE UNDER THE CODE
OF CRIMINAL PROCEDURE?

Maintenance:
Maintenance includes —
(i) In all cases, provisions for food, clothing, residence, education and medical
attendance and treatment;
(ii) In the case of an unmarried daughter also the reasonable expenses of and incident to
her marriage, Section 3(b), Hindu Adoption and Maintenance Act, 1956.

Every Husband has duty to maintain his wife ,Children and Parents
Maintenance necessarily must encompass a provision for residence. Maintenance is given
so that the lady can live in the manner, more or less, to which she was accustomed. The concept
of maintenance must, therefore, include provision for food and clothing and the like and take into
account the basic need of a roof over the head, Mangat Mal v. Punni Devi, (1995).

“Maintenance” is an amount payable by the husband to his wife who is unable to

maintain herself either during the subsistence of marriage or upon separation or divorce. Various
laws governing maintenance are as follows:
For Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956
For Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986
For Christians – Divorce Act, 1869
Secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954

Temporary Maintenance (Pendente lite)

Temporary maintenance is granted by the court during the pendency of proceeding for divorce or
separation to meet the immediate needs of the petitioner.
Permanent Maintenance
It is the maintenance granted permanently after the disposal of the proceeding for divorce or
separation.
Wife defined: “Wife” Includes a woman who has been divorced by or has obtained a divorce
from, her husband and has not remarried, Section 125(1) Explanation (b), CrPC 1973.

“Wife” in Section 125 CrPC means a legally wedded wife and also includes a divorced
wife, D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

A wife can claim maintenance for all her reasonable needs like food, home, medicine, and
shelter. If the wife has children, she can claim for their education as well. The court having
appropriate jurisdiction can decide the maintenance amount it deems fit and reasonable.

Essential conditions must be fulfilled for granting maintenance: They are,

a) The husband must have sufficient means to maintain.
b) The wife must be unable to maintain herself
 c) The husband must have neglected or refused to maintain his wife
d) The wife must not be living in adultery
e) The wife must not refuse without just ground to live with her husband
f) The wife must be living separately with mutual consent

Disqualification for receiving maintenance:

a) If she is living in adultery

b) If without any sufficient reason, she refuses to live her husband
c) If she is living separately by mutual
d) If she is having any earning resources/ govt employee/ remarried.

Demand/Torture of wife for dowry sufficient reason for separate living: Smt. Savithri Pandey
Vs Judge Family Court Allahabad (2004).

Impotency of husband ground for wife for separate living: Siraj Mohammed Khan Vs
Hafizunnisa (1981).

Family members, relatives, friends & neighbors are the most natural witness in matrimonial
disputes. Vishwanath Agarwal Vs Sarala Vishwanath Agarwal (2012).

Maintenance is only to legally wedded wife :Yamunabai Anantrao Adhav v. Anantrao Shivram
Adhav, (1988) 1 SCC 530.

Maintenance to second wife:

Husband who conceals subsistence of his earlier marriage while marrying the second wife is
entitled to give maintenance to second wife. Second wife is to be treated as a legally wedded
wife for the purpose of maintenance, Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188.

Wife ‘living separately with mutual consent’ does not include divorced wife – Must give
Maintenenace :Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299.

Woman knowingly entering in a live-in relationship with a married man ,her status would be that
of a concubine or mistress and therefore is not entitled to maintenance: Indra Sarma v. V.K.V
Sarma, (2013) 15 SCC 755.

Muslim woman entitled to maintenance under CrPC, if a divorced Muslim woman has right
under Section 125 CrPC to claim maintenance even beyond the iddat period., Mohd. Ahmed
Khan v. Shah Bano Begum, (1985) 2 SCC 556.
Maintenance not restricted to iddat period, if a divorced Muslim wife is entitled to maintenance
not merely until the completion of the iddat period, but for her entire life unless she
remarries. Sabra Shamim v. Maqsood Ansari, (2004).
Maintenance of Children:
The children are entitled to maintenance until the time the attain majority or are able to maintain
themselves, whichever date is earlier. In the case of female children they get maintenance until
they get married, even though they are legitimate or illegimate minor child.

Maintenance of Parents:
a) Parents must not have sufficient means to maintain themselves. If they have many sons,
all having sufficient means, they can get maintenance from all of them. If of many sons,
only some has sufficient means the other shall not be liable to pay maintenance.
b) Stepmother is not entitled to maintenance from her son.
c) Daughter is liable to pay maintenance to parents.

Exemptions:
1. If the husband is not in a position to earn money or if he is unhealthy then he can claim
maintenance from his earning wife.
2. The maintenance should be paid according to court order. it may be at the start of petition
or end of petition.
3. Maintenance should be in the form of money.
4. It should not be in the form of property or things.
5. It should be fixed on common basis monthly, i.e it should be equal for each month.

How to file maintenance case:

1. Parents can file a case on their children for maintenance

2. Wife can file a case against the husband for maintenance (Manovarthi)
A) Place where you are living B) Place where the victim is living
C) Last place where you lived together
3. If you have any queries you can approach district court near to your place.
4. you can have free advice on your case in Lok Adalat in your district
5. According to CRPC 126. Parents can file case against children for maintenance.
6. In the case of Vijayendher Singh Vs State of Bihar, the Supreme Court held that, parents
can file maintenance on their children, if they are not in a position to earn money for
them. They should claim from their place of living.
Punishment: (Warning – Fine – Imprisonment)
In case if the husband fails to pay the maintenance, then he is liable to be punished for one
month. The imprisonment is only for one month even though the suit is file after 12 months.

Section 127:
Alteration of allowance:
1. Wife – Remarriage..
2. Inter maintenance – when the case is in court.
3. Lumsum Amount.
4. In case of voluntary surrender maintenance.