UNIT-I

Theories of causation of crime

Introduction
A crime is an illegal act that is punished by a legal authority. A crime is an act that
is harmful to the person who commits the crime as well as to the society,
community, or state. Crime is caused due to various reasons that may force an
individual to commit it to fulfill its needs. There are some theories of causation of
crime that we are going to discuss. First of all, we need to know how crime has
been caused and what are the reasons behind it.

Crime causation
Crime caution is a discouraging and multiplex field. For centuries, philosophers
have reviewed the meaning of the conception of cause as it regards human
behavior. Growingly, research advises that individuals are unaware of the causes of
the other people’s behaviour as well as the causes of much of their performance.
Modern crimes cause models to favour an interdisciplinary lens that recognizes
how different fields complement, rather than contract with, one another. This
approach acknowledges that no single theory can explain all the types of
criminality nor the legal and moral issues that convoy them.

The entries that follow highlight this disciplinary among theories within five
different kinds:

1. Biological theories
2. Economic theories
3. Psychological theories
4. Political theories
5. Sociological theories
Biological theories

Criminal manners result from a complicated interaction of biological factors. The

term ‘biological’ and genetic are often confused, in part since they represent the
overlapping sources of influence. Biological factors are more comprehensive,
comprising physiological, biochemical, neurological, and genetic factors. Genetic
factors refer to biological, and hereditary factors. Until recently, the bulk of
criminological analysis focused only on social contributors, either reducing or
negating the significance of genetic and biological upon criminal manner. Within
the past fifteen years, however, an oversized body of proof has been collected that
the etiology of criminal behavior is also understood when genetic and biological
factors are also taken under consideration. Evidence for the role of genetic factors
in the etiology of criminal manner carries the belief that biological factors
intermediate this relationship.

Economic theories

The roots of crime are several and a discipline like economics, predicated on
rational behavior, is also at something of an obstacle in explaining an irrational
occurrence. Describing the worldly trend in crime rates in most industrialized
economies is the most difficult task. Many social researchers argued that crime is
closely connected with work, education, and penury and that wagging, youth
unemployment, and crime are the side-effects or even count of social exclusion.

Blue-collar criminals usually have limited education and limited labor marketplace
ability. These features describe the poor employment records and the low real
earnings of most criminals. These kinds of issues originally cause economists to
analyze the relations between wages and unemployment amount on crime. Most
recently economists have also examined the benefits and rates of educational
programs to reduce crime. The reasons based on the economic model of crime are
a model of decision-making in dangerous situations. Economists analyze how
individual attitudes toward risk affect the extent of illegal behavior. A key feature
is the idea of convenience; judgments are made of the suitable gain to be noticed
from a particular choice of action.

Individuals are supposed to be rational decision-makers who are connected in

either legal or illegal activities as per the awaited utility from each activity. An
individual’s participation in illegal actions is, therefore, described by the
opportunity rate of illegal activity, factors that impact the returns to unlawful
activity. Economic models of criminal manner have concentrated on deterrent
effects and the connectivity between work and crime. It could be argued that
unemployment is the channel through which other factors impact the crime rate.

Psychological theories

It is very hard to define distinctively psychological theories of crime. The

psychological theories especially concentrate on the importance of individual and
family factors on offending. Psychological theories are usually developed, trying to
describe the evolution of offending from childhood to adulthood, hence based on
longitudinal education that follows up every individual overtime. The importance
of such theories is on continuity rather than discontinuity from childhood to
adulthood. A basic presumption is that the order of individuals on an underlying
construct such as illegal potential is relatively constant over time.

Psychologists inspect offending as a kind of behavior that is alike in many regards

to unfriendly behavior. Therefore, the theories, systems, and information about
other types of unfriendly behavior can be utilized to the study of crime. Lee Robins
spread the theory that offending is one of the elements of a giant sign of unfriendly
behavior, including heavy drinking, drug-taking, reckless driving, institutional
problems, job problems, problems, etc.

Typically, psychological theories may include motivational, inhabiting, decision-

making, and learning processes. The foremost common and motivational thought is
that individuals, especially children are naturally self-indulgent, and selfish,
seeking pleasure and ignoring pain, and hence that children are naturally offensive.
Another classical idea is that every individual is motivated to take care of an
optional level of arousal; if the amount falls below the optimum, they are going to
attempt to increase it, whereas if it’s above the optimum they will try to decrease it.

Generally, psychologists are committed to the scientific study of human behavior,

with its emphasis on theories that can be tested and falsified using empirical,
quantitative data, collected experiments, systematic observation, valid and reliable
measures, etc. The following parts discuss the most important categories of risk
factors that influence crime
  Family impacts, like broken homes, poor child-rearing methods, and
criminal parents.
 Individual impacts such as personality. The foremost important
personality thinking about relevance crime is abandoned, while the most
influential theory of the link between personality and crime is
recommended by Hans Eysenck.

Political theories

It is given that any method of crime may be given to have an agreement with some
political philosophy, it reflects that any theory may be used for political objectives.
During this general sense, therefore, any orientation of crime is a political theory.
And any type of crime may be of political consequence. Certainly, radical
criminologists have sometimes disputed that every crime is political. And some
theorists have offered explanations of crime that support conservative or liberal
political perspectives and agendas. An alternative conception of political theories
of crime caution is that which are identified by their accent on the social dispute
and government relations.

Although theories, which we have seen, might be utilized to form any of a crime,
they didn’t focus historically on solving individual criminal behavior, but rather
have concentrated on explanation variations in crime rates, and particularly on the
different risks of being labeled as a criminal. In so far because the criminal law
policy is seen as a tool of political power or repression, the politicization of all sins
is intended. It has been infrequently held that political sins are uniquely agreeable
to display by labeling and dispute theories, but the counter-argument is that any
theory with an attachment to political philosophy is often invoked to account for
political criminality.

Given harmony between political beliefs and crime causation theories, it is going
to be suspected that the more explicitly political philosophy, the more likely it is to
allocate political significance to criminality. Theories having sympathy with
conservation and radicalism appear to be more reasonable than theories with
sympathy to liberalism to clarify the crime and criminals in political words,
whether as threats to political resistance to the political violation. Consequently,
conservatives will find the diagnostics of political offenders, liberals will find that
political offenders are often normal but they misguided people who are responding
to the strains inflicted on them by weak social organizations, and extremists will
find that political offenders are reasoning people who recognize and maintain the
suffocating and exploitative nature of abundant democratic capitalist society.

Sociological theories

There are three important sociological theories: strain, social learning, and control
theories.

Strain theory

According to the strain theory people get engaged in crime because they
experience a lot of stress or strain, they become upset and feel negativity around
them, and they sometimes get involved or connect with some crime as a result.
They may be involved in crime to reduce their stain which they are experiencing.
For instance, for reducing their financial problems they may steal, end harassment
from others they may involve in violence, escape from abusive parents they may
run away from home or may commit injury to themselves. They may be also
involved in crime to take revenge against those who have done wrong to them. To
make himself/themselves feel better they may start using illicit drugs.

Social learning theory

According to social learning theory, people engage in crime because they learn to
involve in crime through their friends, and others. They learn that they are
favorable to crime and get exposed to criminal models. According to this theory,
juveniles learn to involve in crime in the same way as they learn through
association with others. Primary groups like the family, friends, and peer group
have a large impact on what they learn. However, one does not have to be directly
linked with others to learn from them.

Most social learning theory involves the three mechanisms by which every
individual learns to involve in crime: differential reinforcement, modeling, and
beliefs.
  Differential pillars of crime: People may guide others to get involved in
crime through the support and punishments they provide for behaviour.
More probably, crime occurs when there is:
o Frequently reinforced and infrequently punished,
o Reinforcement in large amount (for instance, a lot of money or
social approval),
o More likely to be reinforced as the alternative behavior.
 Beliefs favorable to crime: Other people not only reinforce our crime, in
fact, they also teach us beliefs favorable to crime. Most individuals are
taught that crime is bad or wrong. They, at last, accept this belief, and
they are less predicted to be captured in crime as a result.
 The copying of criminal models: Behavior or manner is not a part of
reinforcements and punishments, and beliefs, and individuals receive, but
also of the behaviour of those who are around them. Particularly, every
individual often models the behaviour of others- especially when they like
or respect others and have reason to believe that copying thor behaviour
or manner will result in reinforcement.

Control theory

Unlike the theorists of strain and social learning, control theorists take crime for
granted. They argued that every person has some needs and desires that can be
easily fulfilled through the crime as compared to legal channels. For instance, it is
much easier to steal money instead of doing work for it. Therefore, according to
the control theorists, a special explanation is not needed for crime; it is often the
most convenient way to get whatever one wants.

Subcultural Theories of Deviance

Subcultural Theory: The Basics

A Subculture is a group that has values that are different to the mainstream culture.
Subcultural theorists argue that deviance is the result of whole groups breaking off
from society who have deviant values (subcultures) and deviance is a result of
these individuals conforming to the values and norms of the subculture to which
they belong.
In contrast to Social Control theorists, it is the pull of the peer group that
encourages individuals to commit crime, rather than the lack of attachment to the
family or other mainstream institutions. Subcultural theory also helps explain non-
utilitarian crimes such as vandalism and joy riding which strain theory cannot
really explain. Deviance is a collective response to marginalisation.

There are four people you need to know about for Subcultural Theory:

1. Albert Cohen’s Status Frustration Theory2. Cloward and Ohlin’s three types of
subculture3. Walter Miller – the focal concerns of the working class4. Charles
Murray – the underclass and Crime (links to the New Right)Albert Cohen: Deviant
Subcultures emerge because of Status Frustration

Albert Cohen argues that working class subcultures emerge because they are
denied status in society. Just like Merton, Cohen argued that working class boys
strove to emulate middle-class values and aspirations, but lacked the means to
achieve success. This led to status frustration: a sense of personal failure and
inadequacy.

Cohen argued that many boys react to this by rejecting socially acceptable values
and patterns of acceptable behaviour. Because there are several boys going through
the same experiences, they end up banding together and forming delinquent
subcultures.

This delinquent subculture reverses the norms and values of mainstream culture,
offering positive rewards (status) to those who are the most deviant. Status may be
gained by being malicious, intimidating others, breaking school rules or the law
and generally causing trouble.

This pattern of boys rejecting mainstream values and forming delinquent

subcultures first starts in school and then becomes more serious later on, taking on
the form of truancy and possibly gang membership
Cloward and Ohlin’s 3 types of subculture

Cloward and Ohlin develop Cohen’s subcultural theory further, expanding on it in

order to try and explain why different types of subculture emerge in different
regions. They suggest that the ‘illegitimate opportunity structure’ affects what type
of subculture emerges in response to status frustration – The varied social
circumstances in which working-class youth live give rise to three types of
delinquent subculture.

l Theories of Deviance

Subcultural Theory: The Basics

A Subculture is a group that has values that are different to the mainstream culture.
Subcultural theorists argue that deviance is the result of whole groups breaking off
from society who have deviant values (subcultures) and deviance is a result of
these individuals conforming to the values and norms of the subculture to which
they belong.

In contrast to Social Control theorists, it is the pull of the peer group that
encourages individuals to commit crime, rather than the lack of attachment to the
family or other mainstream institutions. Subcultural theory also helps explain non-
utilitarian crimes such as vandalism and joy riding which strain theory cannot
really explain. Deviance is a collective response to marginalisation.
There are four people you need to know about for Subcultural Theory:

1. Albert Cohen’s Status Frustration Theory

2. Cloward and Ohlin’s three types of subculture

3. Walter Miller – the focal concerns of the working class
4. Charles Murray – the underclass and Crime (links to the New Right)

Albert Cohen: Deviant Subcultures emerge because of Status Frustration

Albert Cohen argues that working class subcultures emerge because they are
denied status in society. Just like Merton, Cohen argued that working class boys
strove to emulate middle-class values and aspirations, but lacked the means to
achieve success. This led to status frustration: a sense of personal failure and
inadequacy.
Cohen argued that many boys react to this by rejecting socially acceptable values
and patterns of acceptable behaviour. Because there are several boys going through
the same experiences, they end up banding together and forming delinquent
subcultures.

This delinquent subculture reverses the norms and values of mainstream culture,
offering positive rewards (status) to those who are the most deviant. Status may be
gained by being malicious, intimidating others, breaking school rules or the law
and generally causing trouble.

This pattern of boys rejecting mainstream values and forming delinquent

subcultures first starts in school and then becomes more serious later on, taking on
the form of truancy and possibly gang membership

Cloward and Ohlin’s 3 types of subculture

Cloward and Ohlin develop Cohen’s subcultural theory further, expanding on it in

order to try and explain why different types of subculture emerge in different
regions. They suggest that the ‘illegitimate opportunity structure’ affects what type
of subculture emerges in response to status frustration – The varied social
circumstances in which working-class youth live give rise to three types of
delinquent subculture.

1. Criminal Subcultures are characterised by utilitarian crimes, such as theft. They

develop in more stable working class areas where there is an established pattern of
crime. This provided a learning opportunity and career structure for aspiring young
criminals, and an alternative to the legitimate job market as a means of achieving
financial rewards. Adult criminals exercise social control over the young to stop
them carrying out non-utilitarian delinquent acts – such as vandalism – which
might attract the attention of the police.

2. Conflict subcultures emerge in socially disorganized areas where there is a high

rate of population turnover and a consequent lack of social cohesion. These prevent
the formation of stable adult criminal subcultures Conflict subcultures are
characterised by violence, gang warfare, ‘mugging’ and other street crime. Both
approved and illegal means of achieving mainstream goals are blocked or limited,
and young people express their frustration at this situation through violence or
street crime, and at least obtain status through success in subcultural peer-group
values. This is a possible explanation for the gang culture which is increasingly
appearing in run down areas of the India.

Crime Causation: Sociological Theories

Social Disorganization Theory

The leading sociological theories focus on the immediate social environment, like
the family, peer group, and school. And they are most concerned with explaining
why some individuals are more likely to engage in crime than others. Much recent
theoretical work, however, has also focused on the larger social environment,
especially the community and the total society. This work usually attempts to
explain why some groups—like communities and societies—have higher crime
rates than other groups. In doing so, however, this work draws heavily on the
central ideas of control, social learning, and strain theories.

Social disorganization theory seeks to explain community differences in crime

rates (see Robert Sampson and W. Bryon Groves; Robert Bursik and Harold
Grasmick). The theory identifies the characteristics of communities with high
crime rates and draws on social control theory to explain why these characteristics
contribute to crime.

Crime is said to be more likely in communities that are economically deprived,

large in size, high in multiunit housing like apartments, high in residential mobility
(people frequently move into and out of the community), and high in family
disruption (high rates of divorce, single-parent families). These factors are said to
reduce the ability or willingness of community residents to exercise effective social
control, that is, to exercise direct control, provide young people with a stake in
conformity, and socialize young people so that they condemn delinquency and
develop self-control.

The residents of high crime communities often lack the skills and resources
toeffectively assist others. They are poor and many are single parents struggling
with family responsibilities. As such, they often face problems in socializing their
children against crime and providing them with a stake in conformity, like the
skills to do well in school or the connections to secure a good job. These residents
are also less likely to have close ties to their neighbors and to care about their
community. They typically do not own their own homes, which lowers their
investment in the community. They may hope to move to a more desirable
community as soon as they are able, which also lowers their investment in the
community. And they often do not know their neighbors well, since people
frequently move into and out of the community. As a consequence, they are less
likely to intervene in neighborhood affairs—like monitoring the behavior of
neighborhood residents and sanctioning crime. Finally, these residents are less
likely to form or support community organizations, including educational,
religious, and recreational organizations. This is partly a consequence of their
limited resources and lower attachment to the community. This further reduces
control, since these organizations help exercise direct control, provide people with
a stake in conformity, and socialize people. Also, these organizations help secure
resources from the larger society, like better schools and police protection. Recent
data provide some support for these arguments.

Social disorganization theorists and other criminologists, such as John Hagan,

point out that the number of communities with characteristics conducive to
crime—particularly high concentrations of poor people—has increased since the
1960s. These communities exist primarily in inner city areas and they are
populated largely by members of minority groups (due to the effects of
discrimination). Such communities have increased for several reasons. First, there
has been a dramatic decline in manufacturing jobs in central city areas, partly due
to the relocation of factories to suburban areas and overseas. Also, the wages in
manufacturing jobs have become less competitive, due to factors like foreign
competition, the increase in the size of the work force, and the decline in unions.
Second, the increase in very poor communities is due to the migration of many
working- and middle-class African Americans to more affluent communities,
leaving the poor behind. This migration was stimulated by a reduction in
discriminatory housing and employment practices. Third, certain government
policies—like the placement of public housing projects in inner-city communities
and the reduction of certain social services—have contributed to the increased
concentration of poverty.
Crime Causation: Sociological Theories

Labeling Theory
The above theories examine how the social environment causes individuals to
engage in crime, but they typically devote little attention to the official reaction to
crime, that is, to the reaction of the police and other official agencies. Labeling
theory focuses on the official reaction to crime and makes a rather counterintuitive
argument regarding the causes of crime.

According to labeling theory, official efforts to control crime often have the effect
of increasing crime. Individuals who are arrested, prosecuted, and punished are
labeled as criminals. Others then view and treat these people as criminals, and this
increases the likelihood of subsequent crime for several reasons. Labeled
individuals may have trouble obtaining legitimate employment, which increases
their level of strain and reduces their stake in conformity. Labeled individuals may
find that conventional people are reluctant to associate with them, and they may
associate with other criminals as a result. This reduces their bond with
conventional others and fosters the social learning of crime. Finally, labeled
individuals may eventually come to view themselves as criminals and act in accord
with this self-concept.

Labeling theory was quite popular in the 1960s and early 1970s, but then fell into
decline—partly as a result of the mixed results of empirical research. Some studies
found that being officially labeled a criminal (e.g., arrested or convicted) increased
subsequent crime, while other studies did not. Recent theoretical work, however,
has revised the theory to take account of past problems. More attention is now
being devoted to informal labeling, such as labeling by parents, peers, and
teachers. Informal labeling is said to have a greater effect on subsequent crime than
official labeling. Ross Matsueda discusses the reasons why individuals may be
informally labeled as delinquents, noting that such labeling is not simply a function
of official labeling (e.g., arrest). Informal labeling is also influenced by the
individual's delinquent behavior and by their position in society—with powerless
individuals being more likely to be labeled (e.g., urban, minority, lower-class,
adolescents). Matsueda also argues that informal labels affect individuals'
subsequent level of crime by affecting their perceptions of how others see them. If
they believe that others see them as delinquents and trouble-makers, they are more
likely to act in accord with this perception and engage in delinquency. Data
provide some support for these arguments.
John Braithwaite extends labeling theory by arguing that labeling increases crime
in some circumstances and reduces it in others. Labeling increases subsequent
crime when no effort is made to reintegrate the offender back into conventional
society; that is, when offenders are rejected or informally labeled on a long-term
basis. But labeling reduces subsequent crime when efforts are made to reintegrate
punished offenders back into conventional society. In particular, labeling reduces
crime when offenders are made to feel a sense of shame or guilt for what they have
done, but are eventually forgiven and reintegrated into conventional groups—like
family and conventional peer groups. Such reintegration may occur "through words
or gestures of forgiveness or ceremonies to decertify the offender as deviant" (pp.
100–101). Braithwaite calls this process "reintegrative shaming." Reintegrative
shaming is said to be more likely in certain types of social settings, for example,
where individuals are closely attached to their parents, neighbors, and others. Such
shaming is also more likely in "communitarian" societies, which place great stress
on trust and the mutual obligation to help one another (e.g., Japan versus the
United States). Braithwaite's theory has not yet been well tested, but it helps make
sense of the mixed results of past research on labeling theory.

According to labeling theory, official efforts to control crime often have the effect
of increasing crime. Individuals who are arrested, prosecuted, and punished are
labeled as criminals. Others then view and treat these people as criminals, and this
increases the likelihood of subsequent crime for several reasons. Labeled
individuals may have trouble obtaining legitimate employment, which increases
their level of strain and reduces their stake in conformity. Labeled individuals may
find that conventional people are reluctant to associate with them, and they may
associate with other criminals as a result. This reduces their bond with
conventional others and fosters the social learning of crime. Finally, labeled
individuals may eventually come to view themselves as criminals and act in accord
with this self-concept.
Unit-2 Deviation
Legislation

INTRODUCTION
The concept of legislation has been derived from the process of law making. Legis
literally means “law” and Latum means “making “. Therefore the word Legislation
means lawmaking. Thus, according to Salmond Legislation can be said as a process of
making law by a competent and appropriate authority. Austin has also defined
Legislation as the making of law by sovereign authority that every part of society
must follow. The process of law making is considered to be a strict concept as only
one body is empowered with the work of making law and also the scope of making
any alterations is also negligible.

Legislation may be direct or indirect. Direct legislation is expressly declaring the

making of law. Indirect legislation is making of law in the course of some transaction,
not directly but indirectly. Therefore Enactment of Legislature in direct whereas
making of rule of law is indirect legislation.

TYPES OF LEGISLATION
Enactment of any legislation must be done keeping in mind the welfare of citizens and
for a best interest of citizens.

1. Supreme legislation – This legislation is adopted by the head of the State so that
no other authority of the state can control or keep a check on it. This type of powerful
and incomparable legislation is known a Supreme legislation. There are no reasonable
restrictions on its capacity. Our Indian Parliament has always been so great that even
though there are various constitutional changes, it isn’t subject to any administrative
authority under the state. Therefore it can be said that Supreme jurisdiction cannot be
revoked, cancelled or constrained by any other authority of the state.

2. Subordinate Legislation – This legislation is any legislation by authority other

than Supreme organ of the state. The Supreme authority lays down some powers
under which this legislation works. So this legislation’s reality, legitimacy and
reasonability is owed to the Supreme expert of the state. Unlike Supreme legislation,
it can be cancelled anytime by the Supreme authority. Therefore we can say that
Subordinate Legislation is subject to Parliament control. It can further be classified
into 5 types :-
  Colonial Legislation – The nation which are under the control of some other
state, have no power to make laws. The laws made by colonies, trust regions,
domains and so forth are subject to Supreme legislation of the state. Therefore
Colonial Legislation is said to be considered as a Subordinate Legislation.
 Executive legislation – When the legislative powers are delegated by official
to an executive, it is called executive legislation. Depending on the Subordinate
powers, the executive legislation can only execute the law and carry on the
organisation.
 Judicial legislation – This refers to powers delegated to Judicial system to
make and bring into effect their own laws by maintaining transparency in the
judicial system. In this there is no interference of any authority of the
government in the judicial system of the state.
 Municipal Legislation – Municipal bodies like Municipal corporations,
Municipal Boards and ZilaParishads are empowered to make bye-laws for
matters concerning neighborhood. The neighborhood bodies make bye-laws
which only works inside individual areas. Extensive powers are allowed to
Panchayats.
 Autonomous Legislation – Autonomous law is made by the people
empowered by Supreme authority gathered for administering issues. This body
is called self ruling body. Example – railway, college, etc.

ADVANTAGES OF LEGISLATION AS A SOURCE OF LAW

 Effectiveness – Legislation differentiates the elements of law overlooking
between Legislature and legal executive.
 Declaration – A declaration is given that even before authorization the
principles of law will be known.
 Abrogative power- Changes can be done in old law, the control of which isn’t
controlled by different sources.
 Unrivalled in form- It is preponderant in structure, brief, clear, effectively
available and easily understandable.

DEMERITS OF LEGISLATION AS A SOURCE OF LAW

It is impossible for any source of law to be completely correct with no loopholes. So
following are the demerits in case of legislation :-

 Unbending nature – Unlike precedent, the laws in legislation are not flexible
and adaptable.
 Excessive amount of importance to wordings- Legislation as a source of law
lays much importance to wordings. Thus, if any wording is faulty the law as a
whole needs to get effectively turned.
 Judicial Activism
Judicial Activism – Know What It Means
The judiciary plays an important role in upholding and promoting the rights of citizens in a country. The active
role of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the
country is known as judicial activism. This entails, sometimes overstepping into the territories of the executive.
Candidates should know the judicial overreach is an aggravated version of judicial activism.
Judicial activism is seen as a success in liberalizing access to justice and giving relief to disadvantaged groups,
because of the efforts of justices V R Krishna Ayer and P N Bhagwati.
The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart
from the traditional precedents in favour of progressive and new social policies.”

Judicial Activism Methods

There are various methods of judicial activism that are followed in India. They are:

1. Judicial review (power of the judiciary to interpret the constitution and to declare any such law or
order of the legislature and executive void, if it finds them in conflict with the Constitution)
2. PIL (The person filing the petition must not have any personal interest in the litigation, this petition is
accepted by the court only if there is an interest of large public involved; the aggrieved party does not
file the petition).
3. Constitutional interpretation
4. Access of international statute for ensuring constitutional rights
5. Supervisory power of the higher courts on the lower courts

Significance of Judicial Activism

 It is an effective tool for upholding citizens’ rights and implementing constitutional principles when
the executive and legislature fails to do so.
 Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed.
The Indian judiciary has been considered as the guardian and protector of the Indian Constitution.
 There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13
read with Articles 32 and 226 of the Constitution provides the power of judicial review to the
higher judiciary to declare any executive, legislative or administrative action void if it is in
contravention with the Constitution.
 According to experts, the shift from locus standi to public interest litigation made the judicial process
more participatory and democratic.
 Judicial activism counters the opinion that the judiciary is a mere spectator.

Judicial Activism Examples

It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973.

 In 1979, the Supreme Court of India ruled that undertrials in Bihar had already served time for more
period than they would have, had they been convicted.
  Golaknath case: The questions, in this case, were whether the amendment is a law; and whether
Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable
to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new
Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend
the Constitution but does not confer on Parliament the power to amend the Constitution.
 KesavanandaBharati case: This judgement defined the basic structure of the Constitution. The SC
held that although no part of the Constitution, including Fundamental Rights, was beyond the
Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by
a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down an
amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
 In the 2G scam, the SC cancelled 122 telecom licenses and spectrum allocated to 8 telecom companies
on the grounds that the process of allocation was flawed.
 The Supreme Court rolled out a blanket ban on firecrackers in the Delhi – NCR area with certain
exceptions in 2018.
 The SC invoked terror laws against alleged money launderer Hasan Ali Khan.
Aspirants should read about landmark cases related to the basic structure of the constitution, in the linked
article.

Pros & Cons Of Judicial Activism

Judicial Activism in simple words means when judges interrupt their own personal feelings into a conviction
or sentence, instead of upholding the existing laws. For some reason, every judicial case has a base of activism
within it, so it is imperative to weigh the pros and cons to determine the aptness of the course of action being
carried out.
Pros associated with Judicial Activism India

 Judicial Activism sets out a system of balances and controls to the other branches of the government.
It accentuates required innovation by way of a solution.
 In cases where the law fails to establish a balance, Judicial Activism allows judges to use their
personal judgment.
 It places trust in judges and provides insights into the issues. The oath of bringing justice to the
country by the judges does not change with judicial activism. It only allows judges to do what they see
fit within rationalised limits. Thus, showing the instilled trust placed in the justice system and its
judgments.
 Judicial Activism helps the judiciary to keep a check on the misuse of power by the state government
when it interferes and harms the residents.
 In the issue of majority, it helps address problems hastily where the legislature gets stuck in taking
decisions.
Cons Associated with Judicial Activism

 Firstly, when it surpasses its power to stop and misuse or abuse of power by the government. In a way,
it limits the functioning of the government.
 It clearly violates the limit of power set to be exercised by the constitution when it overrides any
existing law.
 The judicial opinions of the judges once taken for any case becomes the standard for ruling other
cases.
 Judicial activism can harm the public at large as the judgment may be influenced by personal or
selfish motives.
  Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and
efficiency of the government.

Judicial Activism Criticism

Judicial activism has also faced criticism several times. In the name of judicial activism, the judiciary often
mixes personal bias and opinions with the law. Another criticism is that the theory of separation of powers
between the three arms of the State goes for a toss with judicial activism. Many times, the judiciary, in the
name of activism, interferes in an administrative domain, and ventures into judicial adventurism/overreach. In
many cases, no fundamental rights of any group are involved. In this context, judicial restraint is talked about.

Judicial Activism VS Judicial Restraint

As mentioned earlier, Judicial Activism is the role played by the judiciary to uphold the legal and
constitutional rights of the citizens. Judiciary exercises its own power to implement or strike down the laws
and rules that infringes the right of the citizens or is for the good of the society at large, whatever the case may
be.
While, on the other hand, Judicial Restraint is the second face of the coin. It is the polar opposite of activism
which puts obligations on it to follow constitutional laws while implementing its duties. It encourages the
judiciary to respect the laws or rules set out in the constitution.
Judiciary has gained power with judicial activism as the judges can take up issue suo-motu wherever they
think that constitutional laws are being violated. However, with judicial restraint, the same judiciary has to
abide by the executive who is given the sole power to legislate for the public.

Why is Judicial Activism needed?

 When the legislature fails to make the necessary legislation to suit the changing times and
governmental agencies fail miserably to perform their administrative functions sincerely, it leads to an
erosion of the confidence of the citizens in the constitutional values and democracy. In such a
scenario, the judiciary steps into the areas usually earmarked for the legislature and executive and the
result is the judicial legislation and a government by judiciary.
 In case the fundamental rights of the people are trampled by the government or any other third party,
the judges may take upon themselves the task of aiding the ameliorating conditions of the citizens.
 The greatest asset and the strongest weapon in the armory of the judiciary is the confidence it
commands and the faith it inspires in the minds of the people in its capacity to do even-handed justice
and keep the scales in balance in any dispute.
 Unit-3

Hierarchy of Criminal Courts:-

(1) SUPREME COURT :

It is also known as the Apex Court in India and has the highest authority over all the other courts of
India. The Supreme Court is the ultimate court, at the top of the judicial system. It is the highest
constitutional court.

The Apex Court has the following wide power

A. Writ Jurisdiction (Article 32) :

This Article gives the right to individuals to move to the Supreme Court to seek justice when they
feel that their right has been ‘unduly deprived’.

B. Court of Appeal :
The Supreme Court is the highest court of appeal in India. It can hear the appeals from High Court’s
and other Subordinate Court’s under the purview of Article 132, 133, 134, and 136.

C. Federal Court :
The Supreme Court has the power of original jurisdiction under Article 131, it can resolve the
disputes that arise between the Centre and the State or between the two States.

D. Custodian of the Constitution:

Only the Apex Court has the power to hear and decide the issues related to the Constitution, it is only
the Supreme Court which can interpret the Constitution in case a question arises.

E. Power of Judicial Review :

Article 137 gives the power to the Supreme Court to review any legislation that is passed by the
parliament or judgments passed by lower courts in India.
F. Advisory Jurisdiction :
Article 143 of the Indian Constitution confers upon the Supreme Court advisory jurisdiction. The
President may seek the opinion of the Court on any question of law or fact that is of public
importance, on which the President thinks to obtain an opinion.

(2) HIGH COURT:

Each High Court has jurisdiction over a State, a Union Territory or a group of States or Union
Territories. In the Indian Constitutional scheme, the High Court is responsible for the entire
administration of justice in the State.

Powers of the High Court:

A. Original Jurisdiction:
In some issues, a person can directly file its case in the High Court .

For Example – In matters related to fundamental rights, marriage and divorce cases. It also has the
power to punish for contempt under Article 215 of the Constitution.

B. Appellate Jurisdiction :
The High Court jurisdiction extends to all the civil and criminal cases decided by the Subordinate
Court’s in the State.

C. Revisional Jurisdiction :
The High Court has revisional Jurisdiction conferred under the Civil Procedure Code, 1908 and
Criminal Procedure Code,1973.

D. Supervisory Jurisdiction :
Under Article 227, any judgement or order passed by the High Court shall bind all the subordinate
courts, tribunals and authorities within the territory of state. It is only when there is a direct
judgement by the Supreme Court that is contrary to the provisions laid by the High Court, there will
be a scope of interpretation by the Subordinate Courts or tribunals or authorities. It should also be
noted that the subordinate courts within the state cannot ignore the decision of the High Court even if
there is a contrary decision of another High Court.
(3) COURT OF SESSION :
There are various District Courts under different State Governments in India for different districts
either individually or for one or more districts collectively, according to the number of cases,
population of the district.

Article 236(a) of the Indian Constitution provides:

The expression district judge includes judge of a city civil court, additional district judge, joint
district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate,
additional chief presidency magistrate, sessions judge, additional sessions judge and assistant
sessions judge;

The State Government establishes the Sessions Court which has to be presided by a judge appointed
by the High Court. The High Court appoints Additional as well as Assistant Sessions Judges. The
district court’s administer justice at District level. The district judge or the additional district judge
exercises jurisdiction on both the original and appellate side of criminal and civil matters. In criminal
matters the jurisdiction is exclusively derived from the Criminal Procedure Code, 1973. As per this
code, the maximum sentence a Sessions Judge may award is capital punishment.

(4) JUDICIAL MAGISTRATE OF FIRST CLASS AND IN

METROPOLITAN AREA:

Judicial magistrates are appointed and controlled by the High Court , and they discharge their judicial
functions. Any person who is below the age of 16 years, is exempted from death penalty or
imprisonment for life. The chief judicial magistrate is conferred with the power under Children Act,
1960 for treatment, training and rehabilitation of these juvenile offenders.

(5) JUDICIAL MAGISTRATE OF SECOND CLASS:

These judicial Magistrates are also appointed by the High Court and they discharge their judicial
functions.

(6) EXECUTIVE MAGISTRATE:

In India, these magistrates are appointed and controlled by the State Government and perform
executive functions by maintaining law and order within the state. The jurisdiction and the power of
the Executive Magistrate extend throughout the district and metropolitan area as mentioned
under Section 22 of the Criminal Procedure Code.
The Constitution of India has absolute power and authority in India. Therefore, it is necessary to
safeguard the judicial system, courts have been vested with various powers to keep a check and to
ensure that no authority misuses its power and encroaches upon others’ domain. The hierarchy of the
court helps the citizens to appeal in a higher court, in case they feel that justice has not been
administered. The judiciary system must have an easier process, so that justice is administered to
every citizen.

Jurisdiction

Types of ‘Jurisdiction of a Court’ in India

Introduction
Jurisdiction means the extent of the power of the court to entertain and also try suits, appeals and
applications. In its technical sense, it means the extent of the authority of a court to administer Justice
not only with reference to the subject-matter of the suit but also to the local and pecuniary limits of
its jurisdiction.
Administration of justice is the most important function of the state. For this purpose our constitution
has set up a various classes of courts. The Supreme Court is the apex body, followed by 21 High
Courts which have been created by the constitution of India, and their jurisdiction and powers are
well defined in the constitution itself. Apart from the Supreme Court and High Courts, the following
criminal courts have been described under section 6 of Criminal Procedure Code, 1973:-
1. Court of Session
2. Judicial Magistrate of first class and, in any metropolitan area metropolitan magistrates
3 Judicial Magistrates of Second Class
4 Executive Magistrates

Types of ‘Jurisdiction of a Court’ in India

Jurisdiction classified into three categories, viz., (1) jurisdiction over the subject-matter; (2) territorial
jurisdiction; and (3) pecuniary jurisdiction.
1. Over the subject-matter:
It means that the court has the authority to hear the type of case or controversy initiated in its court.
Certain courts prohibited from trying suits of particular classes by status. Thus, a small cause court
can try suits for money due on account of an loan or under a bond or promissory note, a suit for price
of work done, etc. It has no jurisdiction to try suits for specific performance of contracts for a
dissolution of partnership, for an injunction or suits relating to immovable property.
2. Territorial:
Every court has its own limits, fixed by the State Government, beyond which it cannot exercise it.
Thus, the District Judge is in charge of the district and cannot exercise his power beyond that district.
The High Court has it over the whole territory of the State. Supreme court has over whole country.
3. Pecuniary :
There are a large number of civil courts of different grades having jurisdiction to try suits or hear
appeals of different amounts or value. Some of these courts have unlimited pecuniary jurisdiction.
Thus the High Court, the District court and the Civil court have unlimited pecuniary jurisdiction.
Other courts have only a limited. Further, small cause court has limited. A small Cause Court Judge
also exercises a limited.
4. Original or Appellate
The jurisdiction of a court may be Original and also Appellate. In the exercise of its original
jurisdiction a court entertains original suits, while in the exercise of its appellate jurisdiction it
entertains appeals. The Munsifs court and the court of small causes have only original jurisdiction;
the District Judge’s court and the various High Courts have both original and appellate jurisdiction.

FIR: First Information Report

FIR stands for First Information Report. It is a written document prepared by Police when they
receive an information about a cognizable offence.

It is a complaint generally filed by the victim or someone else on his/her behalf. When the FIR is
registered by the Police, a signed copy is also given to the victim or the same person who filed
the FIR. Police cannot refuse to register a FIR as it is against the law.

An FIR is a very important document because it helps in the process of criminal justice. Only
after the FIR is registered, the Police can start the investigation. Once a FIR is registered, the
content of the FIR can't be changed except by a ruling from High Court or Supreme court of
India.

The information in the FIR register is maintained at every police station. An FIR page contains
the following information.

o FIR number
 o Victim's name or the name of the person who reports the complaint
o Name and description of the offender (if known)
o Description of the offence
o Place and time of the offence
o Witnesses, if any.

Rules to file an FIR

o Anyone can file an FIR who knows about the commission of the cognizable offence.
o Police must write it down when the information about the commission of the cognizable offence
is given orally.
o The victim or the person who is filing the complaint has right to demand that the information
recorded by police be read to him/her.
o Once the information is recorded, it must be signed by the person giving the information. If the
person cannot write, he or she can put the left thumb impression on the document.
o After filing the FIR, you should take the copy of FIR. It is you right to ask for the copy of FIR
free of cost, if police does not provide it to you.

Investigation

Law, Science and Technology has a great relevance in our lives. Law and Science encounter each other in
many ways. When technology intrudes in the ambit of legal rights it is checked by law, for example, cyber
crimes, in the same manner to protect legal rights and strengthening the evidence with the help of science,
cannot be denied.

At present date, when the legal system has so much advanced, criminals take care to erase all the evidences of
their involvement, then in such case, scientific and highly sophisticated methods are required to trace the
involvement of criminals. Narcoanalysis, Polygraphy and Brain Mapping tests collectively called deception
detection tests (DDT) are new kinds of interrogation techniques which are simple and civilized way of
conducting investigation. But, at the same time, one has to be conscious of its limitations also. It infringes
fundamental rights under Article 20(3), and also right to privacy and right to health which are guaranteed
under Article 21 of the Constitution.

Inspite of the verily limitations, it affirms certain attributes also which includes: ‘order of court’, ‘pre-consent
of subject’ ‘non-manipulated statements by subject’ and ‘secure public interest’ Thus, there is a tension
between desirability of efficient investigation and preservation of individual rights.
Concept Of Investigation-

In order to study about the scientific criminal investigation, we need to understand the term ‘investigation’,

“Investigation means to examine, study, or inquire into systematically, search or examine into the particulars
of; examine in detail, or, to search out and examine the particulars of in an attempt to learn the facts about
something hidden, unique, or complex, esp. in an attempt to find a motive, cause, it is about finding things.”

According to the Code of the Criminal Procedure under section 2(h) of the Code,“ investigation includes all
the proceedings under this Code for the collection of evidence conducted by a police officer or by any person
(other than a magistrate) who is authorized by a Magistrate in this behalf. Investigation, under the Code
includes:-
1. Proceeding to the spot of crime.

2. Ascertaining the facts and circumstances of the case

.
3. Discovery and arrest of the suspected offenders.

4. Collection of evidence,

* examination of various persons including the accused and recording their statements in writing.
* Search of places or seizures of things which are considered necessary.

Criminal Investigation is an applied science that involves the study of facts, used to identify, locate and prove
the guilt of a criminal. A complete criminal investigation can include searching, interviews, interrogations,
evidence collection and preservation and various methods of investigation. Modern day criminal investigations
commonly employ many modern scientific techniques known collectively as forensic science.
Application Of Science And Technology In Criminal Investigation-

The search for effective aids to interrogation is probably as old as man’s need to obtain information from an
uncooperative source and as persistent as his impatience to shortcut any tortuous path. In the annals of police
investigation, physical coercion has at times been substituted for painstaking and time consuming inquiry in
the belief that direct methods produce quick results. The use of technology in the service of criminal
investigations, and the application of scientific techniques to detect and evaluate criminal evidence has
advanced the investigation process criminal justice system throughout the country. According to Cowan in his
article “Decision Theory in Law, Science, and Technology”
,

“the aim of science, traditionally put, is to search out the ways in which truth may become known. Law aims at
the just resolution of human conflict. Truth and justice, we might venture to say, having different aims, use
different methods to achieve them. Unfortunately, this convenient account of law and science is itself neither
true nor just. For law must know what the truth is within the context of the legal situation: and science finds
itself ever engaged in resolving the conflicting claims of theorists putting forward their own competing brands
of truth.”

This quote roughly means that the law needs to find the truth to resolve “human conflict” and one method of
doing so is to use the field of science. Today’s society has improved upon the methods of the past to bring
about more precise and accurate techniques. Forensic Science2 has expanded to Trauma Inducing Drugs and
Psychotropic Substances. The application of science to matters of law has made great strides in recent years.
Development of new tools of investigation has led to the emergence of scientific tools of interrogation like:

*Narcoanalysis Test
*Brain Maapping Test/ Brain Electrical Oscillation Signature Profile (Beos)
* Polygraphy Test
* Dna Profiling
* Fingerprinting Test

Understand the Rights of the Accused

The Rights of the Accused is a group of political and civil rights that applies to an individual who is accused of
a crime. The Rights of the Accused start when he or she is first arrested and charged to when the individual is
either acquitted or convicted. The Rights of the accused are usually based on the idea of “innocent until proven
guilty” and are a part of due process.
In the United States, the Rights of the Accused are guaranteed in the Bill of Rights in the Constitution. More
specifically, these rights are seen in the 4th, 5th, 6th, and 8th Amendments. When a person is arrested and
charged with a crime, the individual is guaranteed rights aimed at insuring that the proceedings which follow
are fair.

The Writ of Habeas Corpus

In all criminal cases, the burden of proof to prove a case is on the government to justify an arrest and detention
of a criminal suspect. Article I, Section 9 of the United States Constitution guarantees the opportunity of a writ
of habeas corpus. This is a directive from a court that requires the government to justify the citizen’s
imprisonment. Because this guarantee, the person cannot be held for more than a limited period of time
without being charged formerly with a crime.

Trial by Jury
One of the most important rights in the Rights of the Accused of a person formally charged with a crime is the
right to a trial by jury. This right of the accused is guaranteed in Article III of the United States Constitution as
well as the Sixth Amendment. A person who is accused of a crime has the right to have their innocence or guilt
determined by a panel made up of fellow-citizens. In a federal case, formal charges against the individual
cannot even be filed unless a grand jury has first convened and issued an indictment against the person. Both
the jury trial and grand jury are there to protect private citizens from police officers who are overzealous, or
from judges and prosecutors. By interjecting the judgment and wisdom of other private citizens into the legal
process, an effective check is created on the law enforcement and on the judicial system involved. While jury
trials are a guaranteed right by the Constitution, there are many instances where trial can be conducted without
a jury, such as an individual waiving his or her right to a jury trial.

Self-Incrimination
The Fifth Amendment of the Constitution states that no individual shall be forced in a criminal case to be a
witness against himself in the case. However, this does not mean that they can avoid testifying just to avoid
embarrassment or a conviction. Instead, they must have a valid concern that a testimony will contribute to a
conviction. Individuals accused of crimes as well as witnesses involved in legal proceedings will often use this
right by claiming their Fifth Amendment rights or pleading the fifth.
Out of the different Rights of the Accused, this one is extremely fundamental to the system of constitutional
rule. In many situations, an investigator or prosecutor will listen to an individual in exchange for immunity
rather than trying to prosecute them based on a testimony. Prosecutors often grant immunity to individuals
suspected of committing lesser crimes if the person’s testimony can help convict a more notable suspect of an
even more serious crime.

Double Jeopardy
Under the Rights of the Accused, an individual accused of a crime is also protected from double jeopardy. This
comes from the Fifth Amendment of the Constitution which states that no individual shall put on trial or
charged for the same offense twice. For example, if the result of a trial by jury is an acquittal, no further legal
action can be taken against the defendant for that specific crime. The exception to this occurs when a defendant
challenges the guilty conviction and is then granted a new trial, but this is usually only granted if there was a
procedural error in the first trial.
Another exception to the double jeopardy rule is that it is possible for an individual to be tried in criminal court
for a certain crime and then be later sued in civil court for the damages caused by the same criminal act in
question. The rules and laws that are applicable to the two legal systems are different enough that they are
considered distinct in regards to the Fifth Amendment. Furthermore, an individual can also be tried for
different crimes that were committed in the course of a specific action or set of actions. Because they are
legally defined as separate crimes, a second trial would not go against the double jeopardy provision of the
Rights of the Accused.

No Cruel or Unusual or Excess Punishments or Fines

Under the Eighth Amendment, the government is forbidden from imposing excessive fines, bail, or
punishments which are “cruel and unusual”. Under the limitations created by the Constitution, punishments for
crimes can include fines or incarceration, but cannot include physically harmful or excessively painful
penalties like whippings or branding. The Supreme Court has also interpreted the Eighth Amendment to forbid
imprisonment in inhumane or unsanitary conditions.
One of the most important and necessary standards the Supreme Court has created and applied in determining
if a fine or punishment violates the Eighth Amendment is by using a test of proportionality. The Supreme
Court has ruled that depending on the circumstances, the death penalty can be thought of as cruel and unusual
punishment, but only in circumstances death not proportionate to the crime in question.

Search Warrants
The Fourth Amendment of the Constitution forbids the search or seizure of the private property of an
individual without a warrant. This means that a government agent or police officer cannot simply enter a home
in order to search it or seize evidence unless the proper authority of a judge has been received. When law
enforcement is investigating a crime, the person must assemble enough substantial evidence to fully convince a
judge that the violation of a person’s privacy and property is necessary and warranted. The standard for
showing the need for a warrant is called probable cause.

Right To Legal Representation

A Lawyer can help delineate the issues, present the factual contentions in an ordinary manner, cross-examine
witnesses and otherwise safeguard the interests of the party concerned. The right to representation by a lawyer
or other person may proved to be part of Principles of Natural Justice in any proceedings before formal
authority or investigation if there is no provision to the contrary. Generally, the right to legal representation is
not considered a mandatory party of the right to Fair Hearing. The right to representation is as regarded more
of an exception than the general rule. The question of legal representation is to be decided in the context of the
special situation in each case. This will be discussed under this chapter.
Aim of The Study:
1. To study the administrative proceedings in representation through a lawyer as considered an indispensable
part of rules of Natural Justice.
2. To discuss the essential requisite of the procedure established by law by the Supreme court of India in Legal
Assistance from lawyer.
3. To deal the extent of Right of Legal Representation in administrative proceedings depends on the provisions
of statute.
4. To enquiry the justified grounds of denial of right of legal representation in the administrative proceedings.
5. To present the position of right of Representation by lawyer or other person may prove to be part of natural
justice in suitable cases.
6. To study the position of Right to Legal Representation in India in administrative proceedings and in quasi-
judicial proceedings.

Limitation of The Study:

The limitation of right to legal representation is justified on the ground that Representation through a lawyer
tend to complicate matters, prolong the proceedings, and destroy the essential informality of the proceedings. It
is further justified on the ground that Representation through a lawyer of choice would give an edge to the rich
over the poor who cannot afford a good lawyer. No research has so far been made to test the truth of these
ascertains, but the fact remains that unless some kind of legal aid is provided by the agency itself, the denial of
Legal Representation, to use the words of Prof. Allen, would be a ‘Mistaken Kindness’ to the poor people.

Hypothesis:
Generally, Representation through a lawyer in any administrative proceedings is not considered as an
indispensable part of the rule of Natural Justice and also the extend of the right to legal representation any
administrative proceedings or quasi-judicial proceedings depends on the provisions of the statute. However,
the question of right of legal representation is always to be decided in the context of the specific factual
situation in each case.

Methodology:
This study is based on the Secondary sources or Doctrinal research method. The secondary sources are text
books, articles, law journals, Newspaper, e-sources, indexes, etc. This study is mainly relay upon the
secondary sources, in particular mainly based on text books.

Scheme of The Study:

Need of Legal Representation:

Normally, representation through a lawyer in any administrative proceedings is not considered as an
indispensable part of the rule of Natural Justice, as Oral hearing is not included in the minima of fair
hearing.However, the courts in India have held that in need of legal representation in situations, where the
persons is illiterate, or matter is complicated and technical or expert evidence is an record, or a question of law
is involved, or the person is facing a trained prosecutor, some professional assistance must be given to the
party to make his right to defend himself meaningful. These were said by several case laws.

Right To Legal Representation; Position In Other Countries:

England:
In Britain, the Franks Committee was of the view that the right to legal representation, “should be curtailed in
the most exceptional circumstances, where it is clear that the interests of the applicants generally would be
better served by a restriction. There is, however, some difference of judicial opinion on their point in England.
In Pett(1),the court of Appeal unanimously upheld the right to legal representation before a tribunal enquiring
into matters affecting a man’s reputation or livelihood, or any matters of serious import at least where thereis a
right to an oral hearing. This was on the principal that what a person would himself do. He could get it done by
his agent and a legal Practitioner would only be his agent.

But in Pett(2),the court dissented from the view taken in Pett (1). Discussing the matter again in Ender by case,
the court held that there was no absolute right to legal representation; it was a matter for the discretion of the
adjudicator. But the adjudicator cannot lay down an absolute rule against legal representative; he should be
willing to permit it in a exceptional case.

In R vs. Board of Visitors of H.M. Prison, the Maze, ex.p. Hone, the House of Lords has rules that a prisoners
could not claim legal representation in a disciplinary proceedings as of right even when the charge laid against
him constituted a crime in law. The matter of permitting legal representation is one of discretion with the board
of visitors. “Everything must depend on the circumstances of the particular case”.

In an earlier case, R vs Secretary of state, ex.p. Tarrant, the court allowed legal representation to prisoners in
the disciplinary proceedings because some of the charges laid against them raised difficult issues of
interpretation and the others involved severe penalties.
European Convention on Human Rights also recognizes a right to legal assistance and representation. A party
conducting his case in person would be allowed the assistance of a friend to give advice and take notes.

Australia:

In Australia, appearance of a lawyer before a tribunal is a rule, non-appearance is an exception.

United States of America:

In U.S.A., the right of legal representation is guaranteed, for many purposes by the combined effect of the
“Due Process” clause of the U.S. Constitution and section 555(b) runs as follows: “A person compelled to
appear in person before an agency or representative thereof is entitled to be accompanied, represented and
advised by counsel….A party is entitled to appear in person or by or with counsel or other duly qualified
representative in an agency proceeding……”
Right To Legal Representation; Position In India:
Legal assistance from a lawyer is held by the Supreme Court of India as essential requisite of the procedure
established by law. The court holds that if a person does not have legal aid, her or his deprivation of liability is
unconstitutional and void.In disciplinary inquiries as in other quasi-judicial proceedings, however, lawyers are
not always considered necessary. In fact, the very purpose of creating administrative tribunals is to provide a
de-professionalized dispute settlement mechanism and therefore, at times there are statutory provisions for the
exclusion of lawyers.

In a domestic enquiry, where allegations in the charge-sheet were not complicated but quite simple, failure to
permit that employee to engage a lawyer did not violate the principles of Natural Justice.

Denial of Legal Representation:

The denial of legal representation is justified on the ground that lawyers tend to complicate matters, prolong
the proceedings, and destroy the essential informality of the proceedings. It is further justified on the ground
that representation through a lawyer of choice would give an edge to the rich over the poor who cannot afford
a good lawyer. No research has so far been made to test the truth of these ascertains, but the fact remains that
unless some kind of legal aid is provided by the agency itself, the denial of legal representation, to use the
words of Prof. Allen, would be a ‘Mistaken kindness’ to the poor people.

Right to Legal Representation through a lawyer or agent of choice may be restricted by a standing order also.
In Crescent Dyes and Chemical Ltd. Vs Ram NareshTripathi, the Supreme Court held that where a standing
order restricted the right of representation to any employee of the factory only, it would not be considered as a
denial of Natural Justice as to vitiate an administrative enquiry.

To what extent Legal Representation would be allowed in administrative proceedings depends on the
provisions of the statute. Factory laws do not permit legal representation, Industrial Disputes Acts allow it with
the permission of the tribunal and some statutes like the Income Tax Act, 1961 permit legal representation as a
matter of right.

Regulation By Law:
However, even this right is not unlimited and can be reasonably regulated by law. In Railway Protection Force
vs. K.RaghuramBabu, the Supreme Court opined that the common-law right of representation by a ‘friend’ can
be regulated by law. In this case, a standing order rule had provided that a person can take the assistance of a
‘friend’ who is an employee of the Force. This implies that assistance cannot be taken from a friend who is not
a member of the Free Court emphasized that ordinarily, in a departmental or domestic enquiry, no person has a
right to be represented by a lawyer unless law provides for it or a person has suffered serious prejudice as such
proceedings are not suits or criminal trails.

Legal Assistance In Preventive Detention Cases:

Legal Assistance in Preventive Detention cases poses a curious problem because, on the one hand, preventive
detention laws disallow legal representation and on the other hand, they seek to detain people for unproved
crimes. However, it is qualifying to note that in this highly-sensitive area, judicial behavior, has shown
remarkable signs of improvement. In Nandlal Bajaj vs State of Punjab, the court allowed legal representation
to the detainee through a lawyer even when section 11 of the Prevention of Black Marketing and Maintenance
of Supplies of Essential Commodities Act, 1980 and section 8(e) of the conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (CofEPOSA) denied of legal representation in express terms
because the state had been represented through a lawyer. These observed that even when the law does not
allow legal representation to the detenu, he is entitled to make such a request, and the advisory body is bound
to consider this request on merit and is not precluded to allow the state to be represented through a lawyer.
Maintaining the same tener, the court in A.R. Roy, while deciding the constitutionality of the National Security
Act, 1980, held that if the Act disallows legal representation to a detenu, the state also cannot take the help of a
lawyer. In its eagerness to protect the interest of the detenu, the court in Phillippa Anne Duke vs. State of
Tamil Nadu, conferred upon him the right to appear through his friend who in truth and substance is not a legal
Practitioner, and is also not a comrade-in-profession of the detenu for which he is detained. Therefore, even in
the face of constitutional and statutory denial of legal representation to a detenu, he is entitled to a common
law right of representation through a “friend”. The objection that a lawyer or a friend’s assistance was not
made available could not be sustained.

Legal Assistance For Civil Servants:

In the case of disciplinary proceedings against civil servants rule provide that a civil servant may not engage a
legal practitioner at the enquiry, “Unless the disciplinary authority, having regard to the circumstances of the
case, so permits”. Thus, it is for the inquiry officer to permit or not legal representation to the delinquent civil
servant. But, in certain circumstances, refusal by the inquiry officer to permit legal representation to the
employee may be challengeable in a court on the ground of denial of Natural Justice, as for example who he is
pitted against a trained prosecutor.

In C.L. Subramanian vs Collector of Customs, a civil servant at an inquiry was pitted against a trained
prosecutor. His request for engaging a lawyer was refused by the disciplinary authority. His request to get the
help of a friend also was not conceded. The Supreme Court ruled that, in the circumstances, he had not been
offered a reasonable opportunity to defend himself.

The fact that the case against him was being handled by a trained prosecutor was a good ground for allowing
the appellant to engage a legal Practitioner to defend him but the scales be weighed against him. The
disciplinary authority completely ignored that circumstance. The authority thus clearly failed to exercise the
power conferred on it under the rule. The refusal to him to engage a legal Practitioner in the circumstances
would have caused him from serious prejudice. Accordingly, the order removing him from service was
quashed as the inquiry against him was vitiated.

In Krishna chander case, in a disciplinary inquiry against a civil servant, the Supreme Court ruled that refusal
of lawyer’s aid to the petitioner did not constitute an infirmity in the context of the factual position for the
following reasons:
1.Under the rules, he was not entitled to the assistance of an advocate during the enquiry. 2. There was no oral
evidence to be recorded at the inquiry and so there was no need of a lawyer to cross-examine witnesses;
3. There was no complexity in the case and the absence of a lawyer did not deprive the appellant of a
reasonable opportunity to defend himself.

The position has thus reached that where a person trained in analyzing issues of facts and law represents the
administration before the adjudicatory authority, it will be a denial of natural justice if the request of the
affected party to have such an assistance is denied to him.

Right of counsel
Article 22 of the Constitution of India states that "No person who is arrested shall be detained in
custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by, a legal practitioner of his choice." [20] In 2011,
the Supreme Court of India ruled that a court could not decide a case without a lawyer present for the
defendant, and mandated that a court must appoint a lawyer when the defendant cannot afford
one.[21] Public legal assistance is provided through the National Legal Services Authority and state-
level legal services organizations. Courts appoint legal aid lawyers in both civil and criminal cases.

Right to counsel in custody:

Context:
Arrested Mumbai policeman SachinWaze has sought his lawyer’s presence during questioning,
while the NIA has argued that this insistence is hampering the probe.
Is access to a lawyer the right of an accused?
In India, the safeguards available to a person in such circumstances are enshrined in the
Constitution.

 Article 20 (3) states: “No person accused of any offence shall be compelled to be
a witness against himself”.
 Article 22 states that a person cannot be denied the right to consult and to be
defended by a legal practitioner of his choice. This includes provisions that
grant an accused the “right to consult” a lawyer.
  Section 41D of the Criminal Procedure Code (CrPC) states that an accused is
entitled to “meet an advocate of his choice during interrogation, though not
throughout interrogation”.

Supreme Court judgments:

In the D K Basu case of 1997:
The Court considered the guiding principles to be followed by investigating agencies in cases of
arrest or detention.

 The judgment states that “an arrestee may be permitted to meet his lawyer dur ing
interrogation, though not throughout the interrogation”.
 The Supreme Court stressed the safeguards for accused, but also spoke of
“difficulties in detection of crimes”, especially in cases of “hardcore criminals”,
and ruled that a lawyer cannot be permitted to remain present throughout the
interrogation.

In Senior Intelligence Officer vs Jugal Kishore Sharma (2011):

It allowed the accused’s lawyer to “watch the proceedings from a distance or from beyond a
glass partition”, but said “he will not be within the hearing distance and it will not be open to the
respondent to have consultations with him in course of the interrogation”.
However, in many criminal cases, it is left to the discretion of the court that has remanded an
accused to the custody of the police, to decide on whether the lawyer can be permitted to
meet the person for a stipulated time in private when interrogation is not in progress.

Witness Protection Scheme in India

Introduction
Witness is regarded as one of the most indispensable element in the criminal justice system. It is
because of them that the trial finds some substance so as to arrive at a fair conclusion. The inputs
provided by the witness may have direct bearing on the conviction or acquittal of an accused, hence
it is desired that such witness be protected from the wrath of extraneous factors that have the
capability to change his stance over a particular case. Extraneous factors in form of corruption or
threats form a majority which result in turning of the witness hostile, hence it becomes rudimentary
for the state to ensure protection of such witness so as not to alter the prescribed course of justice.

Definition of Witness
‘Witness’ has nowhere been defined in the Code of Criminal Procedure Code, 1908 or in the Indian
Evidence Act, 1872. The Black’s Law Dictionary defines it as: “In the primary sense of the word, a
witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge
of an event is by seeing it, ‘witness’ has acquired the sense of a person who is present at and observes
a transaction.”

Further, The Witness Protection Scheme, 2018 defines ‘witness’ as: “‘Witness’ means any person,
who possesses information or document about any crime regarded by the competent authority as
being material to any Criminal proceedings and who has made a statement, or who has given or
agreed or is required to give evidence in relation to such proceedings.”

Witness Protection Scheme, 2018

The Supreme Court on December 6th, 2018 gave its nod for approval of the Draft Witness
Protection Scheme which had been prepared by the inputs from 18 States/Union Territories,
various open sources inviting suggestions from police personnel, judges and civil society which
was then eventually finalized by the National Legal Services Authority (NALSA). The bench
comprising of Justice A.K. Sikri and Justice S. Abdul Nazeer identified the rights of the witness
to testify within the ambit of Article 21 of the Constitution and said “The right to testify in courts
in a free and fair manner without any pressure and threat whatsoever is under serious attack
today. If one is unable to testify in courts due to threats or other pressures, then it is a clear
violation of Article 21 of the Constitution.” Further, the bench regarded the scheme as a ‘law’
within Article 141/142 of the Constitution and the centre and state need to follow it until a
competent legislation is made on the same subject.

Need for this Scheme

It is a rule of law that no rights of the witness should be prejudiced by way of threats,
intimidation or corruption therefore, to allow him to testify for or against the case which he had
been a witness to with full liberty. In the words of Jeremy Bentham “Witnesses are eyes and
ears of the Courts”, hence, it becomes imperative on part of the State to provide adequate
protection to the witness to ensure ideal working of the wheel of justice. The need to protect
witnesses has been emphasized by the Hon’ble Supreme Court of India in ZahiraHabibulla H.
Sheikh and Another v. State of Gujarat[1] wherein while defining ‘Fair Trial’, the Hon’ble
Supreme Court observed that “If the witnesses get threatened or are forced to give false evidence
that also would not result in fair trial”. Further the hon’ble Supreme Court of India also held
in State of Gujarat v. Anirudh Singh[2] that: “It is the salutary duty of every witness who has
the knowledge of the commission of the crime, to assist the State in giving evidence.”

The need for this scheme had been envisaged by various reports of the Law Commission of India
and the Malimath Committee. The 14th Law Commission Report was the first ever instance
where the issue of witness protection was brought forth. Further, the 154th Report dealt with the
plight of the witnesses. The 172nd and 178th Report laid emphasis on protection of witness
from the wrath of the accused. The 172nd Report in particular inherited a great deal from the
judgement in Sakshi v. Union of India[3] which advocated for in camera trials to keep the
witness away from the accused and to ensure her testimony is procured without any public fear.
The 198th Report titled “Witness Identity Protection and Witness Protection
Programmes” emphasized that the witness protection scheme need not be limited to cases of
terrorism or sexual offences but should extend to all serious offences, thereby increasing the
ambit of its applicability and functioning.

The ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power’ adopted by the United Nations General Assembly in November 1985 regarded the
victims of crime to be an important witness and gave forth four objectives, the applicability of
whose need to be ensured by the member nations towards the victims of crime:

(i) Access to justice and fair treatment

(ii) Restitution

(iii) Compensation

(iv) Assistance

Rights of the witnesses

There needs to be a certain sense of safety that need to be given by the state to the witness who
comes forward to testify and it is the responsibility of the State to impart adequate protection to the
witness. The various Law Commission Reports and the Witness Protection Scheme had identified
certain rights that a witness possess:

(i) Right to secure waiting place while at Court proceedings;

(ii) Right to information of the status of the investigation and prosecution of the crime;

(iii) Right to be treated with compassion and dignity and respecting privacy;

(iv) Right to protection from harm and intimidation;

(v) Right to give evidence without revealing identity; and,

(vi) Right to a stay at a safe place and transportation.

It shall be mandatory for Investigating Officer/Court to inform each and every witness about the
existence of “Witness Protection Scheme” and its salient features.

Type of Protection Measures

As per the provisions of the Victim Protection Scheme, 2018, the magnanimity of protective
measures taken up by the competent authority shall always be proportional to the threat faced by the
witness for the given period of time. They may include but is not limited to the following:

 To ensure that the accused and the witness are not put up together during a trial or
investigation
 Contacting the telephone company to allot the witness an unlisted telephone number;
 Giving adequate security to the witness in form of body protection, regular patrol and by
use of security devices such as CCTV, fencing, security doors in his home;
 Change in identity of the witness and suppressing the original identity;
 Changing the residence of the witness to somewhere else;
 Providing a conveyance in a Government vehicle to and from the court on the date of
hearing;
 To ensure the presence of an additional person at the time of recording statements of the
witness;
 Holding of in-camera trials;
 Using specially designed courtrooms equipped with one way mirrors, separate passage for
the accused and the witness along with options to modify the face or using voice change
mechanisms through software, of the witness to suppress his identity;
 Giving timely financial aids for the subsistence of the witness from the Witness Protection
Fund;
 Apart from the above protection measures, other miscellaneous measures may be taken up
at the request of the witness;
Apart from the above protective measures, the witness may ask for himself any other measures by
way of an application forwarded to the Competent Authority.

Procedure for filing and processing the application under

the scheme:
(i) the applicant seeking protection under this scheme has to file an application (application form
attached in Annexure 1) before the competent authority having territorial jurisdiction along with
supporting documents through the Superintendent of Police or at the time of the trial;
(ii) on receipt of application by the competent authority, the Commissioner will formulate a Threat
Analysis Report keeping in mind to impart full confidentiality to the information mentioned therein
and forward the report to the competent authority within five working days;

(iii) in matters of urgency where there is imminent threat an interim order for the protection of
witness and his family members can be passed;

(iv) the Threat Analysis Report shall contain the threat level perception and may also contain some
suggestive measures for adequate protection of the witness and his family members;

(v) hearings in matter of Witness Protection Application shall be held in-camera by the competent
authority to maintain full confidentiality;

(vi) overall implementation of the witness protection order to be made by the head of Police of the
State/UT;

(vii) if in case there is a need to revise the Witness Protection Order previously passed, the
Competent Authority may forward the same to the Commissioner of Police to draft a fresh Threat
Analysis Report.

Protection of witness is directly proportional to the

threat level perception:
The scheme has divided the witnesses as per threat perception into three categories:

Category Threat Level Perception

‘A’ threat extends to the life of witness or his family and thereby affecting their normal way of life

‘B’ threat extends to safety and reputation

‘C’ moderate threat that extends to harassment and intimidation

The Category ‘A’ forms the gravest among all because the threat extending therein may find its
presence even after the trial or investigation is complete.
Protection of Identity
The scheme recognizes the protection of identity of the witness. If the witness desires to protect his
identity he may file an application in the prescribed form as per the Scheme before a Competent
Authority. The competent authority there looks out for the Threat Analysis Report for ascertaining
the quantum of threat possessed by the witness or his family members and whether it meets the
requirements to be eligible for an identity protection order. However, during the course of examining
the application, the identity of the witness should not be revealed to any person and after the
aforesaid examination the competent authority to dispose off the application basis the material
available on record.

Once an order of concealment of identity is passed by the Competent Authority it shall be the
responsibility of Department/Ministry of Home of State/UT/Witness Protection Cell to ensure that
identity of the witness or his family members be fully protected.

Change of Identity
The witness also has the option to change his identity in appropriate cases, the request for change in
identity by the witness is to be entertained by the Commissioner of Police or the SSP in District
Police on the parameters of threat perception.

The witness can be conferred with new identities including new name, profession and parentage and
providing supporting documents acceptable by the Government agencies. However, such change in
identity shall have no bearing over the educational, professional or property rights of the witness.

Relocation of Witness
In the similar manner as above by following the procedural formalities and eligibility, the witness has
to option to be relocated to a different place within the limits of State/Union Territory or territory of
Union of India keeping in view the safety, well-being and welfare of the witness.

Witness Protection Fund

Under the scheme, there shall be a Witness Protection Fund operated by the Ministry or Department
of Home Affairs under the State or Union Territory, from which the expenses of implementation of
the Witness Protection Order have to be met. The fund is to be maintained by the States and Union
Territories and shall comprise of:

(i) budgetary allocation made by the Annual Budget presented by the State Government;
(ii) receipts of fines imposed under Section 357 of Code of Criminal Procedure ordered to be
deposited by the courts;

(iii) donations and contributions from various charitable trust, philanthropist and individual permitted
by the Government;

(iv) funds contributed under Corporate Social Responsibility.

Drawbacks of the Scheme

Even though the scheme offers a great deal of respite to the witnesses regarding their safety during
the continuance of the trial and in exceptional cases even after the trial is complete, but it also suffers
from certain flaws such as:

(i) the functioning criminal justice system is the responsibility of the State and some states may not
have adequate resources to implement this scheme effectively. The alternative to this is assistance by
the centre but nowhere in the scheme the centre has been entitled to give in a single penny for the
Witness Protection Fund;

(ii) the functioning of the Witness Protection Order has been made limited only to three months;

(iii) the task of deciding the contents and preparation of the Threat Analysis Report has been
accorded to the head of the police in the district, so in high profile cases involving politicians or
influential people the police officer can be put under pressure to provide those people the information
regarding the witness.

Who is hostile witness ? when a party cross-examines his witness?

A hostile witness is one who from the manner in which he gives evidence shows that
he is not desirous of telling the truth to the court. A witness who is gained over by the opposite
party is a hostile witness. A witness is not to be considered hostile simply because he gives
unfavorable answers. If a witness answers to certain is in direct conflict with the evidence of
other prosecution witnesses; the Court should not on that ground allow the witness to be treated
as hostile. He is hostile when his temper, attitude demeanor, etc.

In the witness Box show a distinctly hostile feeling towards the party calling him or when
concealing his true sentiments he does not exhibit any hostile feeling but makes statements
contrary to what he was called to prove and By his manner of giving evidence and conduct
shows that he is not desirous of giving fairly and telling the truth to the court.
Cross-examination of his witness -

The circumstances in which witness may be cross-examined by sender party calling

him are laid down in section 154. Indian Evidence Act, which leaves the matter entirely to the
discretion of the court.

Section.154 says

"the court may in its discretion, permit the person who calls a witness to put questions to him,
which might be put in cross-examination by the adverse party."

A party us allowed to cross examine his own witness because the witness displays hostility
and not necessarily because; he display untruthfulness. The fact that the witness is being cross
examined does not imply an admission that all the witness ' statement are false . On the other
hand, the main purpose of cross-examination is to obtain admission. The prosecution cannot put
questions to its witness, which could only be allowed cross examination without first declaring
the witness hostile and getting the courts permission to cross examination him. The Court has
unfettered discretion to allow the prosecution to cross examine prosecution witness after
declaring them hostile. The defiance may put leading questions in cross examination to a hostile
witness to elicit fact in support of the defense theory. Where a witness makes statements against
the interest of the party who has called him, is known as hostile witness. this makes it necessary
that he should be cross examined by the very party who has called him so as to demolish his
stand. this can be done with the permission of the court. under Section.154 it is provided that
the Court may discretion permit the party who has called a witness to put him such questions as
could have been asked in cross examination.

The court held in Sat Paul vs Delhi administration AIR 1976 that the hostile witness is
described as one who is not desirous of telling the truth at the instance of the party calling him
an unfavorable witness is one called by the party to prove a particular fact , who fails to prove
such fact or proves an opposite fact.
In this case officer was charged with taking bribe. A trap was laid by a Inspector of anti
corruption department. the office of the accused was raided immediately. the evidence of the
witness who participated in the trap (as also of Inspector ,was rejected because there were
interested in a success of their trap. The other 2(two) independent witnesses also made
contradictory statement and the prosecution itself had cross examined them with d permission of
the court.
The courts laid down in a number of cases that even when a witness is cross examined by the
party who called him, his evidence cannot be treated as washed off from the record all together
the Court can still rely upon that the part of witness who inspires confidence of credit.

PROVISIONS RELATING TO ARREST UNDER CRPC

MEANING OF ARREST

The term “Arrest” means apprehension of a person by legal authority so as to

cause deprivation of his liberty. Thus, after arrest, a person’s liberty is in
control of the arrester[1]. In criminal law, arrest is an important tool for bringing
an accused before the court and to prevent him from absconding.

As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible

restraint; an exercise of the power to deprive a person of his or her liberty; the
taking or keeping of a person in custody by legal authority, especially, in
response to a criminal charge.”[2]

The purpose of an arrest is to bring the arrestee before a court or otherwise to

secure the administration of the law. An arrest also serves the function of
notifying the community that an individual has been accused of a crime and also
may admonish and deter the arrested individual from committing other
crimes.[3] Arrests can be made in both criminal and civil cases, although in civil
matters, arrest is a drastic measure which is not looked upon with favor by the
courts.

In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as

CrPC), chapter V (Section 41 to 60) talks about Arrest of a person but it does
not define arrest anywhere.

WHO CAN ARREST?

Arrest can be made by police officer, Magistrate or any private person, like you
or me can also arrest a person but that can made only in accordance with the
legal provisions mentioned in CrPC. CrPC exempts the members of Armed
forces from being arrested for anything done by them in discharge of their
 official duties except after obtaining the consent of the government (section 45
CrPC)

According to section 43 of CrPC, Any private individual may arrest a person

without warrant only when the person is a proclaimed offender under section 82
CrPC and the person commits a non-bailable offence and cognizable offences in
his presence; with warrant u/s 72 and 73, under order of a Police officer u/s 37
and under order of a magistrate u/s 37 and 44 Cr. P.C. and also 60 (1) CrPC.

According to section 44of CrPC, Any Magistrate, whether Executive or

Judicial, may arrest a person when any offence is committed in his presence
then he may himself arrest or order any person to arrest the offender and
thereafter, subject to the provisions herein contained as to bail, may commit the
offender to custody.

A military officer may arrest under section 130 and 131 CrPC.

Arrest by Police Officer

A police officer may arrest without a warrant under Sections 41 (1) to 151
CrPC; under a warrant under Sections 72 to 74 CrPC; under the written order
of an officer in charge under Sections 55 and 157; under the orders of
magistrate under Section 44 and in non cognizable offence under Section 42
CrPC. A superior officer may arrest under Section 36 CrPC. An Officer-in-
Charge of a Police Station may arrest under Section 42 (2) and 157 CrPC.

Under Sections 41, 42, 151 CrPC, a Police officer may arrest without warrant
in the following conditions:

1. Who has been concerned in any cognizable offence or

2. Who has in possession, without, lawful excuse, of any house breaking weapon
or
3. Who has been proclaimed as an offender either under CrPC or by order of the
State Govt. or
4. Who is in possession of any stolen property or
5. Who obstructs a police officer while in the execution of his duty or who has
escaped, or attempts to escape, from lawful custody or
6. Who is reasonably suspected of being a deserter from any of the Armed forces
of the Union or
7. Who has been concerned in any law relating to extradition or
8. Who, being a released convict commits a breach of any rule made under sub-
section (5) of Section 356 CrPC or
9. For whose arrest any requisition has been received from another police officer
specifying the person to be arrested and the offence and other cause for which
the arrest is to be made.

As held in the case of Swami HariharanandSaraswativs Jailer I/C Dist.

Varanasi, 1954, the arrested person must be produced before another magistrate
within 24 hours, otherwise his detention will be illegal

In the case of Joginder Kumar vs State of UP, 1994, it was held that no arrest
can be made merely because it is lawful to do so. There must be a justifiable
reason to arrest.

Further, in State vsBhera, 1997, it was held that the “reasonable suspicion” and
“creditable information” must relate to definite averments which must be
considered by the Police Officer himself before he arrests the person.

PROCEDURE OF ARREST

Section 46 CrPC describes the way in which an arrest is actually made. As per
Section 46(1), unless the person being arrested consents to the submission to
custody by words or actions, the arrester shall actually touch or confine the body
of the person to be arrested. Since arrest is a restraint on the liberty of the
person, it is necessary for the person being arrested to either submit to custody
or the arrester must touch and confine his body. Mere oral declaration of arrest
by the arrester without getting submission to custody or physical touching to
confine the body will not amount to arrest. The submission to custody may be
by express words or by action.

It was held in the case of BharosaRamdayalvs Emperor, 1941, if a person

makes a statement to the police accusing himself of committing an offence, he
would be considered to have submitted to the custody of the police officer.
Similarly, if the accused proceeds towards the police station as directed by the
police officer, he has submitted to the custody. In such cases, physical contact is
not required.

In case of Birendra Kumar Rai vs Union of India, 1992, it was held that
arrest need not be by handcuffing the person, and it can also be complete by
spoken words if the person submits to custody.

Section 46(2) provides that if any person forcibly resists the endeavor to arrest
him, or attempts to evade the arrest, such police officer or other person may use
all means necessary to effect the arrest. Thus, if the person tries to runaway, the
police officer can take actions to prevent his escape and in doing so, he can use
physical force to immobilize the accused. However, as per Section 46(3), there
is no right to cause the death of the person who is not accused of an offence
punishable with death or with imprisonment for life, while arresting that person.
Further, as per Section 49, an arrested person must not be subjected to more
restraint than is necessary to prevent him from escaping.

Due to concerns of violation of the rights of women, a new provision was

inserted in Section 46(4) that forbids the arrest of women after sunset and
before sunrise, except in exceptional circumstances, in which case the arrest can
be done by a woman police officer after making a written report and obtaining a
prior permission from the concerned Judicial Magistrate of First class.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a
person in the police station or confining the movement of the person in the
precincts of the police station amounts to arrest of the person.

Section 41A deals with cases not covered under Section 41 (1), wherein a police
officer is directed to issue a notice and not to make an arrest unless the noticee
after receiving notice does not comply with the terms of notice or complies once
and then flouts it subsequently. If the notice complies with terms of notice, he
may only be arrested for the offence concerned for reasons to be recorded in
writing by the police officer.

Section 41B directs the conducts of Police officers while making and arrest. It
directs them to ensure that while making an arrest they bear an accurate, clear &
 visible identification of his name for the purposes of easy identification, prepare
an arrest memo attested by either a family member of arrestee or a respectable
member of society and countersigned by the arrestee himself. The arrestee is
also to be informed of his right to have a relative or a friend of his informed of
his arrest, if arrest memo is not attested by his family member.

RIGHTS OF AN ARRESTED PERSON

CrPC gives wide powers to the police for arresting a person. Such powers
without appropriate safeguards for the arrested person will be harmful for the
society. To ensure that this power is not used arbitrarily, several restraints have
been put on it, which, indirectly, can be seen as recognition of the rights of a
person being arrested. Further, once arrested, a person is already at a
disadvantage because of his lack of freedom and so he cannot take appropriate
steps to defend himself. Thus, to meet the needs of “fair trial”, several
provisions are given in CrPC, that give specific rights to an arrested person.
These rights can be described as follows –

 Right to be informed of the grounds of arrest under Section 50 of CrPc

and Article 22 of Indian Constitution, it is a fundamental right to be informed. It
is the duty of the police officer to inform you and also tell whether the offense is
bailable or non-bailable. Normally, Bailable offenses are those where bailable
can be granted and it is right of the person to be granted bail and Non- bailable
offenses are where bail can’t be granted generally and it’s the discretion of the
court. In Harikishanvs State of Maharashtra 1962, SC held that the grounds
of arrest must be communicated to the person in the language that he
understands otherwise it would not amount to sufficient compliance of the
constitutional requirement.
 In non-cognizable cases, arrests are made with a warrant and the person going to
be arrested has a right to see the warrant under Section 75 of CrPC. Warrant of
arrest should fulfill certain requirements such as it should be in writing such as
signed by the presiding officer, should have the seal of the court, Name and
address of the accused and offense under which arrest is made. If any of these is
missing, the warrant is illegal.
 Under Section 41, police have the power to arrest a person without a warrant for
a prompt and immediate arrest is needed, no time to approach magistrate and
obtain a warrant for example in a case where a serious crime has been
perpetrated by a dangerous person or where chances of that person absconding
 unless immediately arrested. Not in all cases arrest in necessary, Notice of
appearance before police officer can be made if reasonable complaint has been
made, credible information has been received and suspicion exists of cognizable
offence and if concerned person continues to comply with such notice and
appears, then arrest is not necessary but he if he doesn’t, then arrest can be
made.
 The police officer must be wearing a clear, visible and clear identification of his
name which facilitates easy identification. A memo of arrest must be prepared at
the time of arrest – (i) attested by least one witness, it can be a family member
or member of the locality where an arrest is made (ii) countersigned by arrested
person.
 Right of arrested person to meet an advocate of his choice during interrogation
under Section 41D and Section 303 In Khatri (II) vs State of Bihar 1981
SCC, Supreme Court has also held that access to a legal practitioner is implicit
in Article 21, which gives fundamental right to life and liberty. The state is
under constitutional mandate to provide free legal aid to an indigent accused
person and this constitutional obligation arises not only when the trial is
commenced but also when the person is first produced before a magistrate and
also when he is remanded from time to time. In Suk Das vs Union Territory of
Arunachal Pradesh 1986, SC has held that non-compliance of this requirement
or failure to inform the accused of this right would vitiate the trial entailing
setting aside of the conviction and sentence. The right of an accused person to
consult his lawyer begins from the moment of his arrest. The consultation with
the lawyer may be within the presence of a police officer but not within the
police officer’s hearing. SC also held that it is the duty on all courts and
magistrates to inform the indigent person about his right to get free legal aid.
 An arrested person has a right to inform a family member, relative or friend
about his arrest under Section 50 of CrPC.
 An arrested person have right not to be detained for more than 24hrs, without
being presented before a magistrate, it is to prevent unlawful and illegal arrests.
This right is a fundamental right under Article 22 of the Indian constitution and
under Sections 57 and 72 of CrPC. In Khatri (II) vs State of Bihar 1981,
SC has strongly urged upon the State and its police to ensure that this
constitutional and legal requirement of bringing an arrested person before a
judicial magistrate within 24 hours be scrupulously met. This is a healthy
provision that allows magistrates to keep a check on the police investigation. It
is necessary that the magistrates should try to enforce this requirement and when
 they find it disobeyed, they should come heavily upon the police. Further,
in Sharifbaivs Abdul Razak, 1961, SC held that if a police officer fails to
produce an arrested person before a magistrate within 24 hours, he shall be held
guilty of wrongful detention.
 An arrested person has the right to be medically examined (Sections 54,55A).
 An arrested person has a right to remain silent under Article 20(3) of Indian
constitution so that police can’t extract self – incriminating statement from a
person without a will or without his consent.
PROTECTION TO FEMALES

The General rule is that females are not be arrested without the presence of a
lady constable and no female be arrested after sun-set but there are exceptions in
some cases, where crime is very serious and arrest is important then the arrest
can be made with special orders and it depends on facts and circumstances of
each case. Separate lock ups to be provided for them. State of Maharashtra Vs
Christian Community Welfare Council of India [(2003) 8 SCC 546]

CONSEQUENCES OF NON-COMPLIANCE WITH THE PROVISIONS RELATING

TO ARREST

In general, non-compliance does not void a trial. Just because any provision
relating to arrest was not complied with does not affect the liability of accused.
However, the violation will be material in case the accused is prosecuted on the
charge of resistance to or escape from lawful custody.

Further, everybody has a right to defend himself against unlawful arrest and a
person can exercise this right under Section 96 to 106 of IPC and he will not be
liable for any injury caused due to it. Also, a person who is making an illegal
arrest is guilty of wrongful confinement and also exposes himself to damages in
a civil suit.

If a person who has an authority to arrest, arrests a person with full knowledge
that the arrest is illegal, he will be liable to be prosecuted under Section 220 of
IPC. Similarly, any private person who does not have an authority to arrest,
arrests a person with full knowledge that the arrest is illegal, can be prosecuted
under Section 342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit for
damages for false imprisonment.

Also, informal detention or restraint of any kind by the police is not authorized
by law.

(1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no

member of the Armed Forces of the Union shall be arrested for anything done or
purported to be done by him in the discharge of his official duties except after
obtaining the consent of the Central Government.

(2) The State Government may, by notification, direct that the provisions of sub-
section (1) shall apply to such class or category of the members of the Force
charged with the maintenance of public order as may be specified therein,
wherever they may be serving, and thereupon the provisions of that sub- section
shall apply as if for the expression” Central Government” occurring therein, the
expression” State Government” were substituted.

[5] 43. Arrest by private person and procedure on such arrest.

(1) 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.

(2) If there is reason to believe that such person comes under the provisions of
section 41, a police officer shall re- arrest him.

(3) 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.

[6] 44. Arrest by Magistrate.

(1) 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.

(2) 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.

Trail Procedure

Introduction
The criminal justice structure encompasses both the interdependent aspects of the
trial, as well as the specific phases of the trials. In this phase, a detailed review of
the trial method of India and France is being carried out. The concept of the
criminal justice system, the structure between the two dominant criminal justice
structures of the country, i.e. the adversarial system and the inquisitorial method, is
being discussed. Both structures are extensively contrasted and papers evaluated.
The efficiency of decisions made in the various structures is also measured and
criticized; criticism of both structures is discussed. The method is limited under all
schemes, but the purpose of each is the avoidance and deterrence of crime.

Criminal justice system

The Criminal Justice System is the mechanism by which the defendant is charged,
accompanied by an inquiry to assess the facts in which the allegations are made,
the appeal is presented, the hearings are held and the sentence is deemed whether
proven guilty or found innocent.
Criminal offences are typically prosecuted by reviewing the evidence and/or
events, circumstances, cases, to show the individual’s guilt. A detailed inquiry is
carried out routinely, holding time to the facts of the moment, examining and
scrutinizing the knowledge to justify the conviction of the person performing the
criminal offence. The proceedings against the person shall be assessed by the facts
gathered and the recourse shall be used to challenge or react to the investigation of
the criminal offence. The court shall be a judicial examiner of the disputes between
the sides, whether civil or real, before a jury or a judge. To assess the legitimacy of
the judicial case, the facts shall be reviewed by the court. The judge shall take into
consideration the law of the country, the evidence brought before him or the statute
placed out in the case to decide the result.

Around the globe, there are several various forms of criminal justice structures
intended to preserve and sustain harmony and stability within their control by
establishing a societal code of ethics, the statute. Punishment varies from a
disciplinary or rehabilitative aspect. There are two primary legal mechanisms in
place:

 Adversarial system
 Inquisitorial system

Preventive detention

Clauses (4) to (7) of Article 22 provide the procedure which has to be

followed if a person is arrested under the law of ‘Preventive Detention’.

While the object of a punitive detention is to punish a person for what he has
already done, the object of preventive detention is not to punish a man for having
done something but to intercept him before he does it and to prevent him from
doing it. No offence is proved nor is any charge formulated. The sole justification
of such detention is suspicion or reasonable probability of the detenu committing
some act likely to cause harm to the society or endanger the security of the
Government, and not criminal conviction.
No country in the world has made these laws integral part of the Constitution as
has been done in India. There is no such law in USA and it was resorted to in
England only during war time. Indian Constitution however recognizes preventive
detention in normal times also.

The Preventive Detention Acts – The first Preventive Detention Act was
enacted by the Parliament on 26th February, 1950. The object of the Act was
to provide for detention with a view to preventing any person from acting in
a manner prejudicial to the defense of India, the relation of India with
foreign powers, the security of India, maintenance of public order or the
maintenance of supplies and services essential to the community. Section 3
empowered the Central and the State Governments and certain officers
under them to make orders of detention if they were satisfied that it was
necessary to detain a person with a view to prevent him from acting in any
manner prejudicial to the things mentioned above.

This Act was purely temporary and lapsed on December 31, 1969 but was revived
in the form of Maintenance of Internal Security Act, 1971 which was again
repealed in 1978. But in less than two years time, Prevention of Blackmarketing
and Maintenance of Supplies and Essential Commodities Act was enacted with the
object of preventing blackmarketing and hoarding of essential commodities. It
requires the detaining authority to furnish grounds of detention within a period of 5
days from the date of detention, extendible to 10 days in exceptional cases. Within
3 weeks the Government is required to place these grounds along with detenu’s
representation before the Advisory Board. The Board must submit its report to the
Government within 7 weeks from the date of detention. The maximum period for
which a person could be detained after confirmation by the Board has been
restricted to 6 months from the date of detention.

In 1980 the President issued the National Security Ordinance providing for
preventive detention of persons responsible for communal and caste riots and other
activities prejudicial to the country’s security. It has now become a law. It provides
for detention upto a maximum period of 12 months but doesn’t bar the detenu from
challenging the detention.
It was amended in 1984 in order to make it more effective. The amendment limits
the scope of judicial review of preventive detention laws considerably.
In A.K. Roy v Union of India, the Supreme Court by 4:1 majority upheld the
constitutional validity of the NSA and the Ordinance which preceded the Act.

1. Constitutional safeguards against Preventive Detention Laws-

Review by Advisory Board
2. Communication of grounds of detention to detenu
3. Detenu’s right of representation
Review by Advisory Board: The 44th Amendment Act, 1978, substituted a new
clause for clause (4) which reduced the maximum period for which a person may
be detained without obtaining the opinion of the Board from 3 months to 2 months.

The Amendment also changed the composition of the Board. It shall be constituted
in accordance with the recommendation of the Chief Justice of the appropriate
High Court. It shall consist of a Chairman and not less than two other members.
The Chairman shall be the sitting Judge of the appropriate High Court and the
other two members shall be a sitting or retired Judges of any High Court.

The Amendment abolished the provision for preventive detention without

reference to an Advisory Board.

Communication of grounds of detention to detenu: Article 22(5) imposes an

obligation on the detaining authority to furnish to the detenu the grounds for
detention as soon as possible. The grounds should be very clear and easily
understandable by the detenu. It requires that sufficient knowledge of the basic
facts constituting the grounds should be imparted effectively and fully to the
detenu in writing in a language which he understands, so as to enable him to make
a purposeful and effective representation.

The State is however under no obligation to provide the grounds to the

detenu prior to his detention.

Reasons why grounds are required to be communicated as soon as possible-

1. It acts as a check against arbitrary and capricious exercise of power.

 2. The detenu has to be afforded an opportunity of making a representation
against the order of detention but if the grounds are not supplied to him it
is not possible for him to make an effective representation.
Detention of a person already in custody-

The Supreme Court has held in HuidromKonungjao Singh v State of Manipur, that
there is no prohibition in law to pass a detention order in respect to a person who is
already in custody for a criminal case.

Detenu’s right to representation: The other right given to the detenu is that
he should be given the earliest opportunity to make a representation against
the detention order. It means that the detenu must be furnished with
sufficient particulars about his detention so as to enable him to make a
representation. No inordinate delay, no shortfall in the materials
communicated shall stand in the way of the detenu in making an earlier yet
comprehensive and effective representation in regard to all the basic facts
and materials which may have influenced the detaining authority in making
the order of detention depriving him of his freedom.

Maintenance of Public Order and Tranquility UnderCrPC

Public Order and Tranquility is paramount for any society. The government needs
to ensure the maintenance of the public order. It is indispensable for the smooth
and proper functioning of society and for the citizens to enjoy their liberty and free
state of mind. In a situation of disorder, the enforcement of law and order is the
duty and function of the police and legal system. To enable the same, the Criminal
Code of Procedure provides for the maintenance of public order and tranquility.
Maintenance of public order requires that the order should be maintained in public
places and should not be obstructed by assemblies and processions.[1] The article
deals with the concept of public order and tranquility. It mainly focuses on the
police officers’ duty in times of public disorder. The public disorder might be
caused due to unlawful assembly, riots, mass gathering causing arson or violence,
etc. Several provisions have been laid down in the Indian Penal Code, The Code of
Criminal Procedure, and The Police Act for the maintenance of public order and
tranquility. Maintenance of Public Order and Tranquility has been dealt with
specifically under Chapter X of the Code of Criminal Procedure.
Chapter X of the CrPC has been divided into four parts that classify the offences
mentioned within each of them for disturbing the peace and order in the society.
These are Part A– Unlawful Assemblies, Part B – Public Nuisances, Part C –
Urgent Cases of Nuisance, or Apprehended Danger and Part D –Disputes as to
Immovable property. In the following section, all these sections will be thoroughly
discussed in order to create an exhaustive knowledge base related to these offences
against public order and tranquility.

PART A: UNLAWFUL ASSEMBLY

An unlawful assembly is a group of five or more than five persons that have a
common object and engages in illegal acts such as compelling a person to do an
unlawful act. Thus it is desirable for law enforcement bodies to disperse such
unlawful assembly as per the sections provided.

Section 129: Use of civil force for dispersal of an assembly

According to section 129 of Cr.P.C,the order to disperse any assembly that is an
unlawful one and likely to cause disturbance to the public peace may be issued by-
1. Any executive Magistrate
2. Officer in charge of a police station or,
3. Any police officer who is a sub-inspector or above the rank of sub-inspector in
the absence of such officer in charge
Post-issuance of such order of dispersal, it is the duty of the members of the
assembly to whom such notice is issued to disperse accordingly. However, in case
the assembly does not comply with the order and does not disperse then
any Executive Magistrate or officer-in-charge of a police station or in absence of
the officer-in-charge by a police officer, not below the rank of sub-inspector as
empowered under section 129 may use force in order to disperse such unlawful
assembly. If necessary, even if a person is not an officer of armed force but acting
as one, may arrest or confine the members of such unlawful assembly for
subsequent punishing according to the law.

Section 130: Use of armed forces to disperse the assembly

Section 130 of CrPC is applicable in the situation where the unlawful assembly
cannot be dispersed otherwise.

1. When an unlawful assembly cannot be dispersed by any other means, and

when it is necessary for the public security that such assembly should be
 dispersed, it can be dispersed with the help of armed forces by the order of
Executive Magistrate of the highest rank present.
2. Such Magistrate may order any officer in command of any group of persons
belonging to the armed forces to take the help of armed forces under his
command to disperse the assembly. He is also empowered to arrest or confine
the members of such assembly in order to maintain public security in
accordance with the orders of the Magistrate. He has also the power to have
them punished according to law.
3. The requisitions laid down under this section shall be obeyed by every officer
of the armed forces empowered under this section in such manner as he thinks
fit. While following the orders and taking any step to maintain public security,
he shall use as little force with the objective of maintenance of public order.
Thus, section 130 gives the authorities the right to use force to disperse the
unlawful assembly when it is needed in the interest of maintaining public security.

Section 131: Powers of certain armed force officers to disperse the assembly
Section 131 is operational and envisages such situations where the officers of
armed force cannot establish a link or communicate with the Executive Magistrate
as under Section 130 of the CrPC. In such a situation, where it is paramount for the
armed forces to maintain peace and order caused by the unlawful assembly and
they cannot wait for the orders from the Executive Magistrate, they shall proceed
to deploy force to disperse such assembly. However, during this time, if it becomes
viable and possible for them to establish communication with the Magistrate they
shall do so and act as per the orders by the Executive Magistrate.

This section has been enacted in order to lay down provisions to maintain public
security in the case when no executive magistrate can be reached so that the public
order and tranquility can be maintained more efficiently.

Section 132: Protection against prosecution for acts done under proceeding
sections
Protection against the prosecution for any act done under section 129 to 131 of the
CrPC is provided under section 132 and no officer acting under the duty shall be
prosecuted except with the sanction of State or Central Government.

Section 132 no prosecution shall be instituted in any Criminal Court against any
person for any act purporting to be done under section 129, section 130 or section
131, except in the case where the central or state government sanctions the same.
Since the officers, the Executive Magistrate, members of armed forces, and other
officers were acting in good faith and as per the compliance with the sections as a
part of their duty, they ought to be provided protection by the law. However, in
case an officer leaps beyond the boundaries of the law such as ordering or actually
firing at the assembly[2] when it is not required shall not be provided protection
under section 132.

PART B: PUBLIC NUISANCES

The term public nuisance has been defined under section 268 of the Indian Penal
Code as an act or omission which causes any injury, danger or annoyance to the
public or to the people in general who dwell or occupy the property in the vicinity,
or which must necessarily cause injury, obstruction, danger or annoyance to
persons who may have occasion to use any public right. Though it is not so
dangerous and urgent as unlawful assembly, a public nuisance is a threat to public
peace and security. Thus there are following provisions under Cr.P.C as section
133,134, 135, 136, 137, 138, 139, 140, 141, 142, and 143 that deal with the
procedural aspect in cases of nuisance.

Section 133: Conditional Order for removal of nuisance

Section 133 provides for the passing of conditional order by any Magistrate in case
of public nuisance caused by any of the things as specified under the section. It has
been held that while instituting a criminal proceeding under section 133 there is no
bar to institute a civil suit[3].
There are six categories of public nuisance which can be resolved under this
section:

1. The unlawful obstruction or nuisance to any public place or to anyway, river or

channel lawfully used by the public.
2. The conduct of any trade or occupation or keeping of any goods or
merchandise which is/can be injurious to the health or physical comfort of the
community.
3. The construction of any building, or disposal of any substance, as it is likely to
occasion or explosion.
4. A building, tent, or structure, or a tree as it is likely to cause damage or injury
to a person.
5. An unfenced tank, well or excavation near a public place or way.
6. A dangerous animal that requires confinement, destruction, or disposal.
A conditional order under section 133 of Cr.P.C is mandatory and without it, no
final order can be made. The conditional order must specify the time period in
which the nuisance or obstruction is to be removed or resolved. The conditional
order can be passed to remove the obstruction or nuisance, to abstain from carrying
on such trade, to remove or regulate as ordered such goods or merchandise causing
a nuisance, to remove, repair or support such building, to confine or dispose of
such dangerous animal as manner prescribed in the order.
Section 134: Service or notification of order
Section 134 and 135 of the CrPC provide for service or notification of order issued
to the person for causing nuisance and to obey the order or show cause against the
order issued respectively. Under section 134 the order is followed for service of
summons or shall be served by proclamation. Under section 135 a person can
either carry out the order by acting as per the instructions or can show cause.
A reasonable opportunity should be given to the party to show cause under section
135(b).
Section 136: Consequences of failing to obey such order
According to section 136, If the person against whom the order is issued fails to
perform such act or appear and show cause, he is liable to the penalty prescribed
under section 188 of the Indian Penal Code, i.e., Disobedience to order duly
promulgated by a public servant.
In the case of Nagarjuna Paper Mills Ltd. v. S.D.M. & R.D. Officer, Sangareddy,
the court held that Sub- Divisional Magistrate is empowered to pass an
order under section 136 of the code to close factory causing pollution as it failed to
produce appreciation certificate from the Pollution Control Board.
Section 137: Denial of Public Right
Section 137 is applicable in cases where the party denies the existence of any
public right in order to cause a nuisance. It shall be incumbent upon the party to
claim and substantiate the same with evidence. It lays down the procedure
where public rights are denied and it is mandatory to follow them before
commencing procedure under section 138 CrPC.

The requirements of this section are as follows.

 First, that the party against whom a provisional order is made shall appear
before the magistrate, and deny the existence of the public right in question.
 Secondly, the party shall produce some reliable evidence that is legal evidence,
admissible in the court, and supporting his denial of public right in question.
If all these above-said conditions are satisfied, the magistrate’s Jurisdiction to
continue the proceeding is ceased.

Section 138: Procedure when he appears to show cause

According to section 138, the magistrate shall take evidence as in summoning
cases when the person against the order is passed under section 133 of the Code of
Criminal Procedure appears and show cause against the order.

There can be two consequences:

1. If the magistrate is satisfied, the order shall be made absolute with or without
modification if the order either is reasonable and proper
2. If the magistrate is not satisfied, further proceedings shall not be taken in the
case.
It is the duty of the Magistrate to take evidence as the ground of order he has to
make.[4] The proceeding cannot be dropped without taking evidence.
Section 141 lays down the procedure to issue an absolute order directing him to
perform order within the time fixed in the notice. In case if the act is not
performed, the magistrate can recover the cost of performing by the sale of
immovable or any movable property.

Under section 142 of Cr.P.C, an injunction can be issued against whom the order is
made by a magistrate under section 133 where immediate measure is required to
prevent any imminent danger or serious injury

PART C – URGENT CASES OF NUISANCE OR APPREHENDED DANGER

Section 144 comes into play when there are urgent cases of nuisance or
apprehended danger.
When there is sufficient ground for proceeding under this section, an immediate
and speedy remedy is required for maintenance of public order, directions can be
issued by the magistrate by a written order directing any person to prevent:
 Obstruction, damage or injury;
 Danger to human life, health or safety;
 Disturbance of the public tranquillity
 Riot
 Affray
If there is a matter of emergency or where delay in the matter in serving a notice
can lead to grave injury or damage, the order can be passed ex-parte. The order
passed under section 144 is temporary in nature. The order passed under section
144 is a restrictive order and not a mandatory order directing a person to do some
act.
According to section 144(3), an order issued under section shall remain in force for
a period not exceeding more than two months. However in exceptional cases of
emergency such as to prevent danger to human life, health, and safety, or to
prevent riot or affray and maintain public order the order issued by magistrate can
be extended for a further period of six months.

PART – D: DISPUTES RELATED TO IMMOVABLE PROPERTY

Section 145 deals with breach of peace by a dispute regarding land and water.
Section 145 basically deals with disputes regarding possession. The section
prevents any breach of public peace by maintaining possession of one or the other
party unless the actual rights are decided by the civil court. The Executive
Magistrate shall make an order summoning the parties to attend the court where a
report or information of dispute is brought before him concerning breach of peace
concerning land, water, or boundaries.

There must be an apprehension of breach of peace and public order for the
magistrate to pass preliminary orders.The right under section is not merely
procedural rights but certain substantive rights having an integral connection with
the enjoyment of the immovable property.
Section 146: Attachment and appointment of a receiver
After making an order under section 145, the magistrate can order under section
146 for attachment of the subject in dispute and appointment of a receiver if:

 The Magistrate considers the case to be of an emergency

 he decides that none of the parties was in the possession as referred under
section 145
When there is no longer felt that there are chances of breach of peace, the order of
attachment can be withdrawn at any time by the magistrate. When a receiver is
subsequently appointed by the civil court for the subject in dispute the Magistrate
shall issue an order against the receiver appointed by him to hand over the
possession to the receiver appointed by the civil court.

Section 148- Provisions for local inquiry

According to section 148, when under section 145, 146 or 147, the necessity to
conduct an inquiry is felt; a District Magistrate or Sub-divisional Magistrate may
depute any subordinate magistrate to conduct an inquiry by issuing a written
instruction which may be necessary for his guidance