Unit -4

Judiciary: Constitutional, Civil and Criminal Courts and Processes

Establishment of Supreme Court and High Courts

 Justice Kania became the first Chief Justice of India

 The original Constitution of India envisaged a Supreme Court with a Chief Justice
and seven puisne judges, while empowering the Parliament to increase the number of
judges. Subsequently, the Parliament has the power to increase the number of judges
of Supreme Court.
 In the historic Fundamental Rights case (Kesavananda Bharti case, 1973), the
Supreme Court of India held that the power to amend the Constitution was subject to
the limitation that the ‘basic structure’ of the Constitution cannot be taken away.
 The High Courts in various states are the apex judicial bodies of the States. There are
currently 25 High Courts in India. The bulk of the work of the High Court’s consists
of appeals from lower courts and writ petitions under Article 226 and 227 of the
Constitution of India
 Apart from writ petitions, any civil or criminal case which does not fall within the
purview or ambit of the subordinate courts of that State, due to lack of pecuniary or
territorial jurisdiction, can be heard by the High Court of that State

JURISDICTION OF SUPREME COURT

The Supreme Court has a threefold jurisdiction
1. As a federal court, it has exclusive original jurisdiction in any dispute arising
between the Government of India and one or more states, between the
Government of India and any state or states on one side and one or more states on
the other.
2. As an appellate court, the Supreme Court of India can hear appeals from the
State High Courts on civil, criminal and constitutional matters.
3. The Supreme Court has also a very wide appellate jurisdiction in as much as it
has the discretion to grant special leave to appeal under Article 136 of the
Constitution from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
4. The Supreme Court has special advisory jurisdiction in matters, which may
specifically be referred to it by the President of India under Article 143 of the
Constitution.
5. the Supreme Court has a concurrent original jurisdiction along with the High
Courts, for the enforcement of fundamental rights under Article 32 of the
Constitution of India. The jurisdiction of the Supreme Court of India can be
enlarged by the Parliament
6. the Supreme Court of India exercises judicial review - the power to strike down
or declare unconstitutional, both legislative and executive actions, which are
contrary to the provisions of the Constitution of India, or violative of the
fundamental rights guaranteed by the Constitution, and also on the distribution of
powers between the Union and the States

Article 129- The Supreme Court is a ‘Court of Record’ and has the power to punish
for its contempt. (To punish a person for violating court’s orders or disrespecting the
Court).
 Article 141- Laws declared by the Supreme Court are binding on all the Courts of
India

Ques- Explain the three doctrines used by the Supreme Court to interpret the Constitution
under its original jurisdiction?

1. The Central and state governments have different subject matters given to them in the 3
lists (7th Schedule of the Constitution). Disputes usually arise between the Central and State
Govts on distribution of powers. The Supreme Court has to decide whether the law or action
relates to a Subject mentioned in the Union list or State List.

2. The Supreme Court has used the following doctrines to interpret law in question

(a) Doctrine of Pith and substance :- The word ‘pith’ means ‘true nature of law’ and
substance means ‘the most important part of law’. The SC checks the true nature and
character of law to find in which list it falls.
- The Supreme Court looks at the object, scope and effect of the law in question.

(b) Doctrine of Severability :- The Supreme Court separates the invalid part of the Act from
the valid one but if in case, it is not possible to separate the valid and invalid portions in the
Act, then the whole Act will be considered as unconstitutional.
-Article 13 says that an Act is unconstitutional to the extent of such inconsistency.

(c) Doctrine of Colourable Legislation :- At times, legislature cannot make laws on a

particular subject but tries to make it indirectly. This is a fraud on the Constitution. The
whole doctrine of colourable legislation is based upon the maxim that you cannot do
indirectly what you cannot do directly.
Case Laws- 1. State of Maharashtra v. FN Balsara
2. Balaji v. State of Mysore- Facts and decision from textbook
BASIC STRUCTURE OF THE CONSTITUTION

 The phrase ‘basic structure’ was introduced for the first time in the Golaknath case
(Golaknath v. State of Punjab, AIR 1967 SC 1643), but it was only in 1973 that this
phrase was used by the Supreme Court and it means and includes those features of the
Constitution which lay at its core requiring much more than the usual procedures to
change them.
 It was held in the historic Kesvananda Bharati case that any amendment which aims
at abrogating the basic structure of the Constitution would be unconstitutional. Hence,
every proposed amendment is subject to judicial scrutiny if it is aimed at abrogating
the basic structure of the Constitution.
 Examples of the basic structure include the supremacy of the Constitution,
republican and democratic form of government, secular character of the Constitution,
separation of powers between the legislature, executive and the judiciary and
primarily the federal character of the Constitution.
Supreme Court and Judicial Review
1. The power of the Supreme Court to review the Acts and Laws made by the Legislature or
the executive.
2. The Supreme Court is the protector of our Constitution and the fundamental rights.
[Link] can issue writs under Article 32 for the enforcement of our fundamental rights.
4. It is the watchdog of the democracy and can declare any law passed by the Legislature as
invalid if it violates the provisions of the Constitution.
5. The Supreme Court has the power to declare a law passed by the legislature null and void
if it encroaches upon the fundamental rights. It has exercised this power on several occasions.
This shows how the Supreme Court has always served as the guardian of fundamental rights.
6. the Supreme Court has additional duties under a concept called ‘Public Interest
Litigation’ (PIL), under which any citizen can bring any matter of general importance to the
general public for consideration of the Supreme Court. If the Supreme Court finds that the
executive has been failing in due discharge of its duties, it passes the required directions to
the concerned authorities in government.
What are the Grounds on which the SC can strike down a law amending the
Constitution.
1. If the law passed by the Parliament is violating the fundamental rights.
2. If the law is amending the basic structure of the Constitution.
3. If the Parliament does not follow the procedure to amend the constitution under Article
368.
4. The Supreme Court keeps a watch on the functions of the other limbs of the state as to
whether they are working in accordance with the Constitution and other laws made by the
Parliament and the State legislatures
Appellate Jurisdiction of the SC
1. Article 132 (1) Appeal in Constitutional Matters – An appeal can be made to the
Supreme Court from any judgment of High Court in constitutional matters. But it is
important to get a certificate from High Court, that it involves an important question of law
regarding the interpretation of the Constitution.
2. Article 133 – Appeals in civil cases. An appeal can be made to the Supreme Court from
any judgment of high Court if it gives a certificate saying it involves an important question of
law.
3. Article 134 – Criminal cases. An appeal can be made in the Supreme Court with or
without the certificate of the High Court. The certificate is not required in the following
cases :-
-If Trial court had acquitted the accused but the High Court gave him a death sentence.
- If the High Court withdrew the case from Trial Court and gave death sentence to the
accused.
NOTE :-Article 136 – Special leave petition/ special leave to appeal, the Supreme Court on
its own can decide whether to take the case.
Advisory Jurisdiction of the Supreme Court :-
Article 143 – The Supreme court can give advice to the President –
 On a matter of public importance
 On an important question of law or fact has arisen or is likely to arise
Kerala Education Bill case, 1958, the Supreme Court laid down the following principles:
(a)The Supreme Court has under clause (1) a discretion in the matter and in proper case and
for good reason to refuse to express any opinion on the question submitted to it;
(b) It is for the President to decide what question should be referred to the Court
(c) The advisory opinion of the Supreme Court is not binding on courts because it not a law
within meaning of Article 141.
In Special Court Bill Case (1979, Supreme Court):-
The Supreme Court reversed its earlier decision. It held that :-
-The advisory opinion of the Supreme Court is binding on the lower courts in India.
-The Supreme Court is under a duty to give advice to the President, if the question is not
vague and political in nature.

Independence of Judiciary :
Article 50 provides for independence of judiciary through the following provisions of the
Constitution :-
(i) The judges have to subscribe to an oath (a formal promise to tell the truth)
(ii) There is security of tenure for the judges. Their process of removal is called
impeachment procedure which is extremely difficult to implement.
(iii)The retirement of judges is fixed at 65 years for Supreme Court judges and 62 years for
High Court judges.
(iv) Protection of the salaries and allowances of the judges.
(v) Their decisions or conduct in judicial matters cannot be discussed in the Legislature.
(vi) ) the power to punish for their contempt
Ques. Why do we say that India has a single integrated system of courts?
Ans. The Constitution of India has not provided for a dual system of courts. There is a single
integrated system of courts for the Union as well as the States which administer both Union
and State laws. Dr. B R Ambedkar, the architect of the Constitution of India was perhaps the
greatest proponent in the Constituent Assembly for establishing ‘one single integrated
judiciary’ capable of providing remedies in civil, criminal and constitutional law matters.
What are the Qualifications reuired for being a judge in the Supreme Court ?
I. He must be a citizen of India
2.A High Court judge for 5 years
[Link] an Advocate in High Court for 10 years.
4. Or a distinguished jurist in the opinion of the President.

Explain the Review Petition

1. The Supreme Court has the power to review and change its own previous decision.
2. This can be done by filing the review petition in the Supreme Court.
3. If Supreme Court discovers that there are some new facts or evidences or that they had
made some mistake or error in the previous judgments then they can review the case
The review can only be done by a larger bench by Supreme Court.
Structure and Hierarchy of Courts in India
Below the Supreme Court and High Courts, there are subordinate courts such as civil courts,
family courts, criminal courts and various other district courts which are involved in the
administration of justice.
Jurisdictions of the High Court :-
1. ORIGINAL JURISDICTION:-
(a) It can issue writs under Article 226 for the enforcement of fundamental rights.
(b) It has got jurisdiction related to will (testamentary), marriage and guardianship matters.
(c) It can even punish a person for the contempt of the Court.
2. APPELLATE JURISDICTION:-
(a) It can hear appeals in civil and criminal cases against the decisions taken by the
subordinate courts.
3. SUPERVISORY JURISDICTION:-
It supervises the subordinate courts under it.
CONSTITUTION OF INDIA: HIGH COURTS [important Articles ]
Article 214: High Courts for States. -There shall be a High Court for each State.
Article 215: High Courts to be courts of record. Every High Court shall be a court of record
and shall have all the powers of such a court including the power to punish for contempt of
itself.
There is a High Court for each of the States, except Mizoram, Arunachal Pradesh and
Nagaland which have the High Court of Assam at Guwahati as their common High Court;
and Haryana, which has a common High Court (at Chandigarh) with Punjab; and Goa which
is under Bombay High Court.
 Total number of courts- 25
 In 2013, three new high courts were set up in Meghalaya, Tripura and Manipur.

Subordinate Courts in India

 The subordinate courts, at the level of districts and lower levels, have almost similar
structure all over the country with slight variation. They deal with civil and criminal
cases in accordance with their respective jurisdictions.
 The Munsiff’s Courts are the lowest civil courts
 The District and Sessions Judge is the highest judicial authority (civil and criminal) in
the district since the enactment of the Code of Criminal Procedure, 1973 (CrPC).
 The criminal trials are conducted exclusively by Judicial Magistrates.
 The Chief Judicial Magistrate is the head of the criminal courts in a district. In
metropolitan areas, there are Metropolitan Magistrates.
 Appeals can be made from the District Court to the High Court.

Appointment of Subordinate Court Judges

 The subordinate judiciary in each district is headed by a District and Sessions Judge.
 The usual designations on the civil side are District Judge, Additional District Judge,
and Civil Judge.
 On the criminal side, the widely known designations are Sessions Judge, Additional
Sessions Judge, Chief Judicial Magistrate, Judicial Magistrate etc

Ques How are District Judges and other Judges in the subordinate courts appointed?
Ans. 1. The Governor in consultation with the High Court of that particular State appoints the
district judges. A person who is not already in Government Service should have at least
seven years’ experience at the bar to become eligible for the position of a District Judge
(Article 233).

2. Appointment of persons other than District Judges to the judicial service of a State
shall be made by the Governor in accordance with rules made there under. Besides the State
Public Service Commission, the High Court has to be consulted in the matter of such
appointments (Article 234).

The Civil Process and functioning of Civil Courts

1. The Code of Civil Procedure 1908 (CPC) is a procedural law; it neither creates nor
takes away any right. It is intended to regulate the procedure to be followed by civil
courts Civil case is such that it is not criminal in nature. It is generally on property,
business, personal domestic problems, divorces and such types where ones constitutional
and personal rights are breached.
2. CPC lays down the procedure of filing a civil case; Powers of court to pass various orders;
Court fees and stamps involved in filing of a case; Rights of the parties to a case (plaintiff &
defendant); Jurisdiction and parameters of civil courts functioning; Specific rules for
proceedings of a case; Right of Appeals, review or reference.
 3. The remedies are compensation and injunction. The Civil Courts cannot give
punishments or death sentence cannot be given.
The CPC can be divided into two parts:
(a) the main body of the CPC containing 158 sections; and
(b) the First Schedule, containing 51 Orders and Rules

*Main Body – it has 158 sections and can only be amended by State Legislature. It
lays down general principles of jurisdiction. The three types of jurisdiction are :-
- Territorial
-Pecuniary
-Subject Matter

*First schedule of CPC has 51 Orders and Rules. It can be amended by the State
High Court.

Some Common legal terminologies :

• Plaintiff- person who files the civil case against another

• Defendant- person against whom the case has been filed
• Plaint- document filed by the plaintiff containing his version of the case
• Written statement- reply to the plaint, filed by the defendant
• Appellant- one who files the appeal
• Respondent- other party against whom appeal has been filed
• Prosecution- (criminal)victim’s side. They file the case
• Defence- from the side of accused
• Application- document seeking an urgent instant relief. It can be filed by the
plaintiff or the defendant. It can be filed with the plaint/ written statement or even in
between the proceedings. An application is always filed under a plaint(after a case has
been filed). The person who files an application is known as an applicant and person
against whom application is filed is known as respondent.
• Interim- in between the proceedings
• Arrested and Accused Person- When a person is arrested by the police during
investigation merely on the basis of suspicion that he/she has committed an offence,
the person is known as an arrested person. Arrest of a person does not necessarily
amount to conviction. When concrete evidence is gathered against an arrested person
and a trial is initiated against the person, the person becomes an accused.

Types of Jurisdiction
Jurisdiction means the extent of power of a court to entertain suits and applications.
Types of jurisdiction
1. Territorial jurisdiction- The physical area or local limits within which a court
exercises its jurisdiction is known as territorial jurisdiction.
2. Pecuniary jurisdiction- Jurisdiction defined on the basis of money claims that can
be heard by a Court.
3. Original jurisdiction- The power of a Court to hear and try a case for the first time
is known as original jurisdiction.
4. Appellate jurisdiction- The power of the Court to hear appeals from decisions of a
lower court is known as appellate jurisdiction.
5. Jurisdiction as to subject matter- This is defined on the basis of types of cases
that can be heard by a Court. Eg- Family law, Criminal law, etc
Res sub judice and Res judicata in Code of Civil Procedure, 1908

Res sub judice- Sec 10, Code of Civil Procedure, 1908- It implies that where the same
subject matter is pending in a Court of law for adjudication between the same parties, other
Court is barred from entertaining that case as long as the first suit is going on
. Eg- X files a case for negligence in service against Y, his employee. Whilst this suit is
pending, he also files another suit for claiming accounts from his employee. The subsequent
suit is stayed as the matter is Res sub-judice.

• Res judicata- Sec 11, Code of Civil Procedure, 1908- It literally means a thing which has
been decided. This doctrine operates as a bar to the trial of a subsequent suit on the same
cause of action between the same parties. It is founded on the principle of justice, equity and
good conscience.
Eg- X sues Y for breach of contract. The suit gets dismissed. X now files a suit for damages
for breach of contract. The suit for damages is barred as it is res judicata

Difference between res judicata and Res Sub-Judice

• Res judicata refers to matters already decided where as res sub judice applies to matters
pending in a Court of law.

Structure And Functioning of Criminal Courts in India

1. The Indian Penal Code, 1860 (IPC), together with other penal laws constitutes
India’s substantive criminal law
2. The Code of Criminal Procedure, 1973 (CrPC) was enacted to carry out the process
of the administration and enforcement of the substantive criminal law. The CrPC also
controls and regulates the working of the machinery set- up for the investigation and
trial of the offences.
3. the Indian Evidence Act of 1872 was enacted to guide the process of investigation
and trial.

Categories of Criminal Courts in India

Courts of Session [highest criminal court]

|
Chief Judicial Magistrate (CJM)/Chief Metropolitan Magistrate (CMM)

Metropolitan Magistrates
|
Judicial Magistrate Class I
|
Judicial Magistrate Class II [lowest criminal court]
|
Executive Magistrate (DM)

1. Court of Sessions–

(i) Sessions Judges are appointed by the Governor with consultation of the State High
Court
 (ii) They can award life imprisonment or death sentence.
(iii) The Assistant Sessions Judge is competent to impose punishments up to ten years
imprisonment and impose any fine. The Sessions Judge can impose any punishment
authorized by law, but the sentence of death passed by him should be subject to the
confirmation by the High Court. (See for details Sections 28 and 29 of CrPC).

2. Chief Judicial Magistrate (CJM)/Chief Metropolitan Magistrate (CMM)– They

are under the Sessions judge. They can’t give punishments which the Sessions judge
can. A Chief Judicial Magistrate may impose a sentence except (a) sentence of death,
(b) imprisonment of life, or (c) imprisonment for a term exceeding seven years
If the population is above 10 lakhs, the judge is called the Chief Metropolitan
Magistrate.

[Link] of Judicial Magistrates

Judicial Magistrates of first Class - They can give punishments of upto three
years and a fine of Rs.10,000/-
Judicial Magistrates of second Class – They can give punishment of upto one year
and fines upto Rs.5000/-
In States such as Kerala, the Second and the First Class Magistrate Courts have been
unified..
4. Metropolitan Magistrates The Courts of Metropolitan Magistrates were created by
Section 16 of the Code of Criminal Procedure. The Court of Chief Metropolitan
Magistrate and those of The Additional Chief Metropolitan Magistrates were created
by Section 17 of the Code. Section 18 of the Code also provided for Special
Metropolitan Magistrates.

Metropolitan magistrate is under the general control of the Sessions Judge

5. Executive Magistrates In every district and in every metropolitan area, the State
Government may appoint as many persons as it thinks fit to be Executive Magistrates
and shall appoint one of them to be the District Magistrate.

Belonging to the executive organs, these officers work in tandem with the police to
maintain law and order in the city. They are also responsible for some judicial acts like
traffic challans, registration of documents (like sale deed, wills, marriage certificates,
birth and death certificates). They are known as District Magistrates (DM), Sub
Divisional Magistrate (SDM), executive magistrate, special executive magistrates.

Criminal Investigation and First Information Report (FIR)

What is an FIR?
FIR is the abbreviated form of First Information Report. It is the information recorded
by the police officer on duty, given either by the aggrieved person or any other
person, about the commission of cognizable offence. The statement of the informant
as recorded under Section 154 of CrPC will be treated as the FIR. The main object of
the FIR from point of view of the informant is to set the criminal law in motion
(Hasib v. State of Bihar, AIR 1972 SC 283).
Some Important Facts about FIR
1. Information of cognizable offence can be given by any person to police having jurisdiction
in the area where the commission of crime took place.
2. FIR is not substantive piece of evidence. It has to be duly proved as any other fact by
evidence and can be used as relevant fact in order to prove the substantive issue.
3. Police officer shall reduce such information in writing.
4. Informant’s signature must be obtained.
5. Contents of such information should be read over to Informant and must be entered in
record by the police officer.
6. Police officer shall give a copy of such information to the informant forthwith.
7. Original FIR must be sent to the Magistrate forthwith.
8. Despite a police officer refusing to register an FIR, the aggrieved person can send such
information to the Superintendent of Police by post.
9. FIR is to be made immediately after the occurrence of an incident, when the memory of
the person giving it is fresh in his mind about the occurrence.
10. Telephonic information from an ascertained person which discloses commission of the
cognizable offence would also constitute FIR.
11. The Government has formulated the provisions of Zero FIR in adverse situations, in
order to protect the rights of the people. According to this, the victim can file his complaint in
any police station for any offence for a quick action and the case can be transferred to the
concerned police station thereafter

Information to the Police as to Non-cognizable offence

Section 155 of CrPc says that in non-cognizable offences, the police officer enters the
complaint in the book. These are private criminal wrongs. No officer can investigate the
case without the order of the Magistrate.

The Criminal Process - Investigation and Prosecution

Criminal prosecution has generally two streams in India.
The first relates to criminal cases which are initiated on the basis of police report or FIRs
lodged with the police, whereas the second stream relates to cases that are initiated on the
basis of private complaints.
1. In respect of the first stream, prosecution is conducted by the Director of Public
Prosecution through public prosecutors. Section 225 of the CrPC provides that every
trial before a Sessions Court shall be conducted by a public prosecutor.
2. In addition to this, private parties can also conduct the cases through their own
lawyers in respect of private complaints. Private complaint under Section 138 of the
Negotiable Instruments Act, 1881 is one such example. Thus, a ‘private complaint’
basically means a complaint which is directly filed by the complainant in the court.
The CrPC elaborates the procedure to be followed in every investigation, inquiry and trial, for
every offence under the Indian Penal Code 1860 or under any other law.

It divides the procedure to be followed for administration of criminal justice into three
stages, namely: investigation, inquiry and trial.
1. Investigation by Police
Investigation primarily consists of ascertaining facts and circumstances of the
case. It includes:
[Link] collection of evidence;
2. Inspection of the place of occurrence of the commission of the crime;
3. Ascertainment of facts and circumstances;
 4. Discovery of any article or object used for the commission of the crime;
5. Arrest of the suspected offender;
[Link] and examination of various persons including the accused and
taking of their statements in writing;
7. Search of places or seizure of things considered necessary for the investigation
and considered to be material at the time of the trial, etc. Investigation ends in a
police report to the Magistrate The report is called the Challan or the
chargesheet.

2. Inquiry by the Magistrate –

According to Section 2 (g) of the CrPC, ‘inquiry’ means every inquiry, other than a trial,
conducted under this Code by a Magistrate or Court. In other words, inquiry refers to
proceedings before a Magistrate prior to the framing of the charge which does not result in
conviction of the accused.

If prima facie (first impression of the case) is against the accused, then the magistrate will
frame the charges, the charge shall be read out and explained to the accused. However, if the
evidences are not sufficient, then the magistrate will discharge the accused.

In India, the system of criminal trial envisaged by the CrPC is the adversary system based on
the accusatorial method. In this system the prosecutor representing the State (or the people)
accuses the defendant (the accused person) of the commission of some crime; the law
requires him to prove his case beyond reasonable doubt. The accused person is presumed to
be innocent unless his guilt is proved beyond reasonable doubt (presumption of innocence).
Presumption of innocence is one of the cardinal principles of the Indian criminal justice
system.

3. Trial in the Court –

Trial is the judicial determination of a person’s guilt or innocence. The Court will convict the
accused if he/she is found guilty. The court will acquit the person is he is found innocent.

Ques What are the various Stages of Criminal trial?

(i) Framing of the charge – It is the beginning of the trial.
(ii) Recording of Prosecution Evidence – The Prosecution examines the witnesses in
the Court. The statement of the witnesses is taken under oath. It is called
‘examination-in-chief’. The accused has right to cross examine all the witnesses
through his defence lawyer.
(iii)Statement of the accused - This is to give reasonable opportunity to the accused
to explain his side of the story (maxim-audi alteram partem).
(iv) Defence Evidence – The defence lawyer will provide witnesses in favour of the
accused. They are cross-examined by the Prosecution. The Prosecution has to prove
beyond reasonable doubt that the accused is guilty.
(v)Final Arguments- The Prosecution and Defence lawyers sum up the case and the
accused are given an opportunity to reply.
(vi)Judgement – The judge pronounces the judgment and can give an order of either
acquittal or conviction of the accused.

Age and Criminal Liability

Age Whether liable
Uptil 7 yrs No criminal liability
7-12 yrs Mental agility of child is assessed
12-16 yrs A child is liable under the Juvenile Justice Act
16-18 yrs Child is liable under Juvenile Justice Act but if the
crime committed is heinous in nature, then the child can
be tried as an adult under IPC and other criminal
legislations.
Above 18 yrs Criminally liable under IPC and other criminal
legislations.

Bail :- There is no definition of the term ‘bail’ under the CrPC although the terms ‘bailable’
and ‘nonbailable’ have been defined. The object of detention of an accused is primarily to
secure his/her physical appearance at the time of trial and at the time of sentence if found
guilty. However, the grant of bail has been a matter of judicial discretion. The Supreme Court
of India held that bail covers both release on one’s own bond, with or without sureties.

Bailable Offences- [section 2(a) Non-bailable offences [Section 436 CrPC]

CrPC]

i) These are non-serious offences i) They are serious offences where the
where the punishment is less than 3 punishment is more than 3 years
years.

ii) Bail is granted as a matter of right. ii) Bail is granted as a matter of discretion of the
Ex. Theft, rash driving, cheating. Court and not as a matter of right. Ex. Murder,
rape.

Anticipatory Bail – Section 438 of CrPc.

It gives power to the Superior courts – Sessions court, High Court and Supreme Court
to grant anticipatory bail.

It can be applied when the person has reason to believe that he may be arrested on a
false complaint.

While granting the bail, the Court will consider the following aspects :
a) Nature of Crime
b) antecedent/ background of the applicant.
c) whether he will flee away from justice.
d) the accusation appears to be aimed at humiliating the applicant.

Cognizable Offences Non-cognizable Offences

1. These are serious offences with 1. These are non-serious offences with
punishment of more than three years. E.g.- punishment of less than three years. E.g.-
murder, robbery, dacoity, rape and simple hurt, cheating.
kidnapping

2. The police officer has the authority to 2. The police officer requires a warrant or
arrest the suspected person without a warrant court order to arrest the suspected person.
or permission from the magistrate and can Exception : Offences related to bigamy and
start their investigation. adultery are punishable with more than five
years imprisonment, yet are non cognizable
offences.

Compoundable and Non-compoundable offences

S.n Compoundable offence Non Compoundable offence
o
1. Less serious offence. Serious offence.
2. The accused can pay fine instead of Can’t pay fine to avoid imprisonment
imprisonment
3. Eg. Defamation, trespass, Eg. Murder, Rape, Kidnapping. Serious
travelling without ticket on offences are not compoundable; it would
bus/train you have to pay a fine. not be desirable that murderers should be
In this case, the officer fining able to compound their offences
you is compounding your
offence.

Arrest and Rights of the Arrested Person

(i) Given in Article 22 of the constitution and also in CrPC.
(ii) Section 50 CrPC- The arrested person has the right to be informed about the
grounds or reasons for arrest.
(iii) Section 50 A CrPC- The arrested person can inform someone about his arrest.
He has the right to access to his lawyers. The Supreme Court has also recognized the
right of the arrested person to have access to a lawyer in the case of Nandini
Satpathy [(1978) 2SCC 424] and DK Basu [(1997) 1 SCC 41O].
(iv) Section 57/167 of CrPC- The accused must be produced before the magistrate
within 24 hours of his arrest. If the investigation cannot be concluded within this
time, a Magistrate may order for the remand of the arrested person to police custody
u/s 167 of the Cr.P.C The Magistrate should be fully satisfied that there is good
ground to remand the accused to police custody.
(v) Section 54 CrPC- The arrested person can request to be examined by a medical
practitioner.
(vi) Section 51 CrPC- The police can search and seize articles related to the crime
from the arrested person’s residence but a list of seized articles must be given to the
arrested person.

Protection in respect of conviction for offences ;

Article 20 of the constitution
1. Article 20(1)
It provides that a convicted person cannot be given a penalty greater than what has
been prescribed by the law. He can only be punished for violating the law in force at
the time of the commission of the offence.
2. Article 20(2)
Double jeopardy. It is also known as Doctrine of Autrefois Acquit. It is also given in
Section 300 of CrPC. If a person has been acquitted or convicted of an offence, then
he cannot be tried again for the same offence. The Constitution bars double
punishment for the same offence.
3. Article 20(3)
Right against Self Incrimination
The accused cannot be forced to be a witness against himself, however following
exceptions are there:-
a) The accused will have to give samples of blood, DNA, handwriting etc.
b) Search warrant can be issued against him.
c) Search and seizure of articles can be done.

The Police Act, 1861- Function and Role of Police

Police Force comes under the State Government and comes under the Executive
realm. The Police Act, 1861 describes the structure and function of the police in
general.
The role and functions of the Police in general are:
a. to uphold and enforce the law impartially, and to protect life, liberty, of the public;
b. to promote and preserve public order;
c. to protect internal security, to prevent and control terrorist activities militant
activities and other situations affecting Internal Security;
d. to protect public against acts of vandalism, violence or any kind of attack;
e. to prevent crimes,
f. to accurately register all complaints brought to them by a complainant or his
representative;
g. to register and investigate all cognizable offences coming to their notice
h. to create and maintain a feeling of security in the community;
i. to provide, as first responders, all possible help to people in situations arising out of
natural or man-made disasters;
j. to collect intelligence relating to matters affecting public peace, and all kind of
crimes
k. To take charge, as a police officer on duty, of all unclaimed property and take
action for their safe custody and disposal
l. To train, motivate and ensure welfare of police personnel;
Other Courts in India
In addition to the civil and criminal courts there are a number of special courts and
tribunals established in India to govern specific areas of law. A few such examples
include
 the Motor Accidents Claims Tribunal (MACT),
 Rent Control Tribunal, Railway Claims Tribunal,
  Debt Recovery Tribunal (DRT),
 Central Excise and Service Tax Appellate Tribunal (CESTAT),
 Income Tax Appellate Tribunal (ITAT),
 National Green Tribunal (NGT), etc.
 The purpose of these special courts is to bring efficiency in the judiciary by
lowering the case burdens on the traditional courts while providing a quick
relief to the parties involved.
The Family Courts Act, 1984
1. It deals with marriage, divorce, judicial separation, adoption, guardianship etc.
2. It solves disputes in a speedy, inexpensive and informal manner.
3. The focus is on conciliation and not on confrontation.
4. Important role of Counsellors in Family Courts and less role of lawyers.
5. The Act stipulates that a party is not entitled to be represented by a lawyer without
the express permission of the Court. However, invariably the court grants this
permission and usually it is a lawyer which represents the parties.
6. The most unique aspect regarding the proceedings before the Family Court is that
they are first referred to conciliation and only when the conciliation proceedings fail
to resolve the issue successfully, will the matter be taken up for trial by the Court.
7. The Conciliators are professionals who are appointed by the Court.
8. Once a final order is passed, the aggrieved party has an option of filing an appeal
before the High Court. Such appeal is to be heard by a bench consisting of two judges.

Administrative Tribunals
With a view to easing the congestion of pending cases in various High Courts and
other Courts in the country, Parliament enacted the Administrative Tribunals Act,
1985. These are semi judicial bodies to lessen the burden of courts and deal with
specialized cases. It was introduced by the 42nd Amendment Act, 1976.
Two new Articles were introduced-
Article 323 A
Article 323 B
It gave power to the Parliament to set up their tribunals.
Article 323 A deals with the Central Administrative Tribunal, State Administrative
Tribunals.
Article 323 B deals with other tribunals like
National Green Tribunal
Rent Control Tribunal
Income Tax Appellate Tribunal
Administrative Tribunals Act was passed in 1985.
Tribunals have the power of civil courts.
CAT was set up in 1985. Its Principal Bench is in New Delhi and it has 17 other
benches. The Central Administrative Tribunal (CAT) has been established for
adjudication of disputes with respect to recruitment and conditions of service of
persons appointed to public services and posts in connection with the affairs of the
Union or other local authorities within the territory of India