CRIMINAL PROCEDURE CODE
No |
Particulars |
|
UNIT - I |
1 |
|
2 |
The organization of the functions under the code ; their duties ; functions and powers |
3 |
First information report, complaint Arrest |
4 |
Types of trial and features of a trial |
5 |
UNIT - II |
6 |
UNIT - III |
7 |
UNIT - IV |
8 |
UNIT - V |
9 |
Salient features of juvenile Justice (care and protection of children) act - 2000 |
10 |
Introduction:-
The code provides different types of criminal trials for different kinds of criminal cases. The more elaborate trial procedures being provided in respect of serious types of offences. Simple and less elaborate procedures in case of offences of lesser gravity and complexity and still simple and more abridged procedures for petty criminal cases. Such differential treatment of trial procedures becomes inevitable if the available time and resources are to be utilized equitably to do justice in all and sundry criminal cases.
We have already seen how the code has classified criminal cases into "warrant cases" and "summons cases" depending upon the gravity of the offences to which they relate a "warrant cases" is one which relates to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years, and a 'summons case' is one velating to an offence which is not so severely punishable as in a warrant case this classification of criminal cases has been made the basis for making a primary decision as to the type of trial procedure to be adopted in respect of any criminal case. They type are
1) Trial before court of session [see - 225-237]
2) Trial before of warrant cases before magistrate [238-258]
a) with police report
b) Without police report
3) Trial of summons cases by magistrates [251-259]
4) summary trials [260-265]
UNIT - V
Juvenile Justice (Care and Protection of Children) Act, 2000 has been enacted replacing the earlier Juvenile Justice Act, 1986. This new Act consolidates the laws relating to Juveniles
a) who are in conflict with Law (Juvenile delinquents) and
b) who are in need of care and protection.
This enactment provides for proper care, protection and treatment to the children by catering to their development needs, and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of child and also provide room for their ultimate rehabilitation through various institutions created under it. Broadly the Act creates, Advisory Board, Juvenile Justice Board, Child Welfare Committee and recognizes Children's home, Observation home, Shelter home, and Special home to further the objectives of the Act.
The first chapter of the Act deals with the preliminary matters. After defining the title it deals with its extent. The Act extends to whole of India except Jammu and Kashmit. Various terms have been defined under the Act, the meaning of which shall be discussed at relevant places. However the definitions as given under the Act are as under -
Definitions
In this Act, unless the context otherwise requires -
a) "advisory board" means a Central or State advisory board or a district and city level advisory board, as the case may be, constituted under Section 62;
b) "begging' means -
(i) Soliciting or receiving alms in a public place or entering into any private premises for the purpose of soliciting or receiving alms, whether under any pretence;
(ii) exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury, deformity, or disease, whether of himself, or of any other person or an animal;
c) "Board" means a Juvenile Justice Board constituted under Section 4;
d) "Committee" means a Child Welfare committee constituted under Section 29;
Juvenile Justice Board
Juvenile Justice Board is to be constituted for a district or a group of districts by a State government notification. However in case of need more than one Board can be established. These Boards are to exercise the powers and discharge the duties as are conferred upon them in relation to Juveniles in Conflict with Law under this Act. The constitution of the Board has been laid down in Section 4(2). It shall consists of a Metrpolitan Magistrate of a Judicial Magistrate of first class and shall consist of two social workers of whom ne has to be a woman. The Board has been conferred the posers f Magistrates as given under Criminal Procedure Code 1973.
The term of the members of the Bard shall be as may be prescribed. However any such members can resign in the manner prescribed. Clause (5) of the Section 4 deals with the termination of any member of the Board after holding an inquiry. If the State Government finds that any member
(i) has been found guilty of misuse of poser vested under this Act,
(ii) has been convicted of an offence involving moral turpitude, and such conviction has been reversed or he has not been granted full pardon in respect of such offence,
(iii) fails to attend the proceedings of the Board for consecutive three months without any valid reason or he fails to attend less than three-fourth of the sittings in a year.
Procedure and Power
The procedure regarding the meeting of Board and observance of the rule of procedure in regard to the transaction of business at its meetings shall be prescribed by the government. However when the Board is not in sitting a child in conflict with laws may be produced before an individual member of Board. It has been further clarified that the absence of any member of the Board shall not invalidate any order made by the Board. However at the time of final disposal of the case, at least two members including the Magistrate are required to be present. In the event of any difference of opinion amongst members in the interim of final disposition the opinion of majority is to prevail and in absence of it, the opinion of the principle Magistrate shall prevail.
Section 6 of the Act deals with the powers of Juvenile justice Board. The Boards shall have the power to deal exclusively with all proceedings under the Act relating to Juvenile in conflict with laws, unless otherwise provided in this Act. This powers has been conferred upon High Court and Court of Session, when they are dealing with an appeal, revision or otherwise.
Section 7 deals with the procedure to be followed by a magistrate under the Act, when he is not empowered to exercise the power of Board. In such case the Magistrate if holds the opinion that the person brought before him is a Juvenile or a child, he shall without any delay after recording his opinion forward the Juvenile or a child and the record of the proceeding to the competent authority having jurisdiction. The competent authority thereafter shall proceed with the inquiry as if the Juvenile has been directly brought before him. However if the former Magistrate holds the inquiry and finds the accused not to be a juvenile, he need not refer the case to the Juvenile Court.
Observation Homes and Special Homes
The Act provide the establishment of an Observation Home by the State Government itself or under an agreement with voluntary organizations. Such observation homes may be established in every district or group of districts for the temporary reception of any Juvenile in conflict with laws during the pendency of an inquiry. The State Government is also empowered to certify any other institution to be treated as observation home for the purpose of the Act. In order to provide effective management of these observation homes States Government have been authorized to make Rules under the Act. Rules therefore can be made for laying down standards and various types of services to be provided by them for rehabilitation and social integration of a juvenile, Further the rules can also provide the circumstances and the manner in which the certification f an observation home may be granted or withdrawn.
Clause (4) of Section 8 provides for the classification of Juvenile according to their age group; such as 7 to 12 years, 12 years to 16 years and 16 years to 18 years, giving due considerations to physical and mental status and degree of the offence committed by them. Those juveniles who are not placed under the charge of parent f guardian.Shall be sent to the observation home pending preliminary inquiries, care and classification.
In order to rehabilitate a juvenile in conflict with law Shelter homes are to be established by the State Governments in the same lines as observation homes. Under Section 9 of the Act any institution can also be certified by the State Government for being treated as shelter home for this Act's purpose. Rules are to be made by the State Government for the management of special homes including the (standards .) and various types of services to be provided by them. There are directed towards the re-socialisation of a juvenile. However rules can also specify the manner in which, the certification of a special home may be granted or withdrawn. Again these can be classified treatment of juveniles in conflict with law on the basis of age and nature of offences committed by them and according to the mental and physical status of the juveniles.
5.2 CHILD IN NEED OF CARE AND PROTECTION
The third chapter of the Act deals exclusively with those children who are in need of care and protection instead of the term neglected child a new phrase "Child in need of care and protection" has been used. Thus this phrase has wider area as it covers a large list of children who are in need of care and protection. The protection has sought to be provided to the deserving children through :-
Child Welfare Committee
1) The State Government may, by notification in Official Gazette, constitute for every district r group of districts, specified in the notification, one or more Child Welfare Committee for exercising the powers and discharge the duties conferred on such Committees in relation to child in need of care and protection under this Act.
2) The committee shall consist of a Chairperson and four other members as the State Government may think fit to appoint, of whom at least one shall be a woman and another, an expert on matters concerning children.
3) The qualifications of the Chairperson and the members, and the tenure for which they may be appointed shall be such as may be prescribed.
4) The appointment of any member of the committee may be terminated, after holding inquiry, by the State Government, if -
a) he has been found guilty of misuse of power vested under this Act;
b) he has been convicted of an offence involving moral turpitude, and such conviction has been revered or he has not been granted full pardon in respect of such offence;
c) he fails to attend the proceedings of the Committee for consecutive three months without any valid reason or he fails to attend less than three-fourth of the sittings in a year.
5) The Committee shall function as Bench of Magistrates and shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class. (Sectin 29)
Procedure in relation to Committee
1) The Committee shall meet at such times and shall observe such rules of procedure in regard to the transaction of business at its meetings, as may be prescribed.
2) A child in need of care and protection may be produced before an individual member for being placed in safe custody or otherwise when the Committee is not in session.
3) In the event of any difference of opinion among the members of the Committee at the time of any interim decision, the opinion of the majority shall prevail but where there is no such majority the opinion of the Chairperson shall prevail.
4) Subject to the provisions of sub-section (1), the Committee may act, notwithstanding the absence of any member of the Committee, and not order made by the Committee shall be invalid any reason only of the absence of any member during any stage of the proceeding. (Section 30).
Powers of Committee
1. The Committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and protection of human rights.
2. Where a Committee has been constituted for any area. Such Committee shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act.have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection . (Section 31)
Introduction
We are going through an age of reformation of criminals. Criminals so longer remain a condemned class. They are also viewed as persons with deformed attitude towards society more or less like a patient and they can be cured through the medicine of reformation by their social reintegration. This Act under discussion too aims at useful rehabilitation of criminals in society. Segregation of new criminals from hardened ones is call of the day through humanist approach being advocated both at National and International Levels. Even Supreme Court, has shown its concern for youthful offenders while applying this Act.
Concept of Probation
"Probation" terms is comprised of "Probe" a Latin word which means "I prove my words". and "Probation" means 'test on approval'. According to Webster's dictionary it means the act of proving. Proof, any proceeding designed to ascertain character. "Probation" is a socialized penal device and extramural alternative of institutionalistion, and has come about as the result of modification over a period of time of doctrine of deterrence into the principle of reformation, a development which paved way to the introduction of a clinical approach and the principle of individualization in the handling of offender".
5.4 DEVELOPMENT OF PROBATION IN INDIA
In ancient India though Manu, Vijnaneshwar and Mitramisa expressed their concerns for the accused and maintained that punishment be awarded only after due consideration of the environment in which the offence was committed, however no reference can be found of the theory of 'Probation'.
Statement of objects and Reasons
The question of release of offenders on probation of good conduct instead of sentencing them to imprisonment has been under consideration for some time. In 1931, the Government of India prepared a draft of Probation of Offenders Bill and circulated it to the then Local Governments for their views. However, owing to pre-occupations with other more important matters, the Bill could not be proceeded with. Later in 1934, the Government of India informed Provincial Governments that there was no prospect of Central legislation being undertaken at the time and there would be n objection to the Provinces undertaking such legislation themselves. A few Provinces accordingly enacted their own probation laws.
Power of curt to release certain offenders after admonition
When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or section 420 of the Indian Penal Code (45 of 1860), or any offence punishable with imprisonment for not more than two years, or with fine, or both, under the Indian PenalCode or any other law, and no previous conviction is provided against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the case including the nature of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the curt may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition (Section 3).
Admonition
This term has been defined under Webster's Dictionary as : "Counsel or advice, a warning, gentle reproof, to warm or notify of a fault, cautions, directions, to reprove with mildness and to remind. "This has been defined in State v Ghanshyamdas, as under:-
"Admonition by a Judge is a reprimand, a censure or a reproof warning the accused that he is being let off, but in case of repetition he will be punished severely in accordance with the Law".
Power of Court to release certain offenders on probation of good conduct
1) When any person is found guilty of having committed an offence not punishable with death of imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of god conduct, then, notwithstanding anything contained in any other law for the time being in force, the curt may instead of sentencing him at once t any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behavior.
2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such, period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
Conditions of Probation and procedure regarding bonds and sureties
The court passing an order under Section 4 of the Act has further been empowered to vary the conditions of probation upon an application being moved by the Probation Officer in this respect. The bond may be varied by, extending the period upto three years and new conditions may be inserted. The notice and opportunity of hearing shall be given to the accused as well as surety while passing such an order. The Court may even discharge the bonds. Section 8 reads as under -
"8. Variation of conditions of probations.- (1) if, on the application f a probation officer, any court which passes an order under Section 4 in respect of an offender is of opinion that in the interests of offender and the public it is expedient or necessary to vary the conditions of any bond entered into by the offender, it may, at any time during the bond is by the offender, it may, at any time during the period when the bond is effective, very the bond by extending or diminishing the duration thereof so. However, that it shall not exceed three years from the date of the original order or by altering the conditions thereof or by inserting additional conditions therein.
Probation Officer - his duties
Section 13 of the Act furnishes a detailed definition of the term Probation officer, while Section 14 lags down its duties. Section 15 declares him to be a public servant for the purpose of Section 21 of the Indian Penal Code. A blanket protection has been provided for the acts done in good faith by persons appointed under the Act including Probation officers, in pursuance of this Act or of any rules made under it vide Section 16.
Who is a Probation Officer
He is a person who supervises and reports on the behavior of an officer who is on probation according to Webster's Dictionary, Black's Law Dictionary defines Probation Officer as "one who supervises a person (commonly juveniles) places on probation by a court in a criminal proceeding. He is required to report to the court the progress of the probationer and to surrender him if he violates the terms and condition of his probation".
An analysis of the basic elements of probation reveals that one of its elements is supervision of the offender by a Probation officer.
Duties of probation officer
Certain statutory duties are to be performed by a Probation officer under the Act. These are laid down under Section 14 as under:
A probation officer shall, subject to such conditions and restrictions, as may be prescribed,-
a) Inquire, in accordance with any directions of a court, into the circumstances or home surroundings of any person accused of an offence with a view to assist the court in determining the most suitable method of dealing with him and submit reports to the court;
b) Supervise probationers and other persons placed under his supervision and, where necessary, end eavour to find them suitable employment;
c) Advise and assist offenders in the payment of compensation or costs ordered by the court;
d) Advise and assist, in such cases and in such manner as may be prescribed, persons who have been under Section 4; and
e) Perform such other duties as may be prescribed.
Apart from these rules can be made by the State Government with the approval of the Central Government for appointment of Probation Officers and for their duties together with the payment of remuneration to them
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