GROUP V: CRIMINAL LAW AND CRIMINAL ADMINISTRATION

PAPER II: PENAL LAWS

Total Marks: 100

N.B. (1) Attempt any four questions / कोणत्याही चार प्रश्नांची उत्तरे द्या

(2) All questions carry equal marks / सर्व प्रश्नांना समान गु ण आहे त 

1. Who is Controller under Information Technology Act? What are his

functions under the Act? / माहिती तं तर् ज्ञान कायद्यांतर्गत नियं तर् क कोण आहे ?

कायद्यांतर्गत त्याची काय कामे आहे त?

Ans:

Introduction to IT Act, 2000:

n the 21stcentury, Computer, Internet and ICT or e-revolution has changed the life
style of the people. Today paper based communication has been substituted by e-
communication. Accordingly we have new terminologies like cyber world, e-
transaction, e-banking, e-return and e-contracts. Apart from positive side of e-
revolution there is also negative side of computer, that is, the internet and ICT in
the hands of criminals which has become a weapon of offence. Accordingly a new
panel of members emerged to tackle the problems of cyber crimes in cyber space
i.e. Cyber Law or Cyber Space Law or Information Technology Law or Internet
Law.
In India Cyber law and IT Act 2000 , modified in 2008 are being articulated to
prevent computer crimes. IT Act 2000 is an act to provide legal recognition for
transactions carried out by means of ElectronicData Interchange(EDI) and other
means of electronic communication. It is the primary law in India dealing with
cybercrime and electronic commerce(e-Commerce). e-Commerce is electronic data
exchange or electronic filing of information.
 

Introduction to Controller under IT Act, 2000:

1. The provisions of appointment and functions of the controller are given

under sections 17 and 18 of chapter 6 of ‘Information Technology Act,

2000. (Words ‘other officer’ and employees is enforced in section 17

after ‘Information Technology’ (Amendment) Act, 2008). 

2. For the purpose of this Act Controller, Deputy Controller, and Assistant

controller are known as certifying authorities.

Provisions under Information Technology Act, 2000 which are

dealing with Appointment and functions of Controller are as follows:

I. Section 17: Appointment of the controller and other officers-

1. The Central Government may, by notification in the Official
Gazette, appoint a Controller of Certifying Authorities for the
purposes of this Act and may also by the same or subsequent
notification, appoint a such number of Deputy Controllers,
Assistant Controllers, other officers and employees as it deems
fit. (Sub-section 1).
2. According to sub-section (2), the Controller shall discharge his
functions under this Act subject to the general control and
directions of the Central Government.
3. According to -section (3), The Deputy Controllers and Assistant
Controllers shall perform the functions assigned to them by the
Controller under the general superintendence and control of the
Controller.
 4. According to sub section(5),The Head Office and Branch
Office of the office of the Controller shall be at such places at
the Central Government may think fit. (Sub-section 5)
5. Seal-Sub-Section (6) there shall be a seal of the Office of the
Controller. Such as section 17 has provisions regarding the
appointment of Controller, Deputy Controller, and Assistant
controller as certifying authorities and they are subordinates.
Head office and seal. The appointment of certifying authorities
is presented-
 Certifying Authorities
  Central Govt. (Appoint mentor)
  Controller
 Deputy Controller
 Assistant Controller.

II. Section 18 describes the functions of Controller, they are

following-
Functions of Controller-The Controller may perform all or any of the following
functions, namely-
1. Exercising supervision over the activities of the Certifying
Authorities;
2. Certifying public keys of the certifying Authorities.
3. Laying down the standards to be maintained by the Certifying
Authorities;
4. Specifying the qualifications and experience which employees of the
Certifying Authority should possess;
5. Specifying the conditions subject to which the Certifying Authorities
shall conduct their business;
6. Specifying the contents of written, printed, or visual materials and
advertisements that may be disturbed or used in respect of an
Electronic Signature Certificate and the public key.
7. Specifying the form and contents of an (electronic signature) Certificate and
the key;
8. Specifying the form and manner in which accounts shall be maintained by
the Certifying Authorities;
9. Specifying the terms and conditions and subject to which auditors may be
appointed and the remuneration to be paid to them;
10.Facilitating the establishment of any electronic system by a Certifying
Authority either solely or jointly with other Certifying Authorities and
regulations of such systems;
11.Specifying the manner in which the Certifying Authorities shall conduct
their dealings with the subscribers.
12.Resolving any conflicts of interests between the Certifying Authorities and
the subscribers;
13.Laying down the duties of the Certifying Authorities;
14.Maintaining a database containing the disclosure record of every Certifying
Authority containing such particulars as may be specified by regulations,
which shall be accessible to the public.

2. “Indian Penal Code needs reformations. Justify this statement with your

proper and relevant suggestions with respect to the provisions in the Code. /

“भारतीय दं ड सं हिते त सु धारणांची गरज आहे . सं हिते तील तरतु दींच्या सं दर्भात

तु मच्या योग्य आणि सं बंधित सूचनांसह या विधानाचे समर्थन करा.

Ans:

Introduction:

 Criminal laws in India are very old, despite some amendments from

time to time it has not been updated to the level where it will fulfill

the needs of society. 

 India penal code and the Evidence act have its origin in the British

era, both being substantive law needs major overhauling of the acts. 

 Code of criminal procedure, enacted in 1973 still has not been

amended to that the level where it will provide speedy trial of the

crimes and need some major amendments too.

  Many recommendations of the various law commissions have not

been included in the acts. Many committees have recommended

certain important measures still the parliament has not been able to

bring some major changes.

  Recently, the Ministry of Home Affairs has set up a national-level

committee for reforms in criminal law.

Some of the major changes required in criminal laws are:

I. Criminalization of Marital rape:

1. This has been a long-standing recommendation of the law commission,

various committees and the criminalization of the marital rape has been
demanded by many sections of the society.
2. Till now, marital rape has not been considered as rape in India. Any sexual
acts done without the consent of women or done by force against the will of
women (under the purview of the definition of rape under section 376 of
IPC). 
3. In India there has been a history of forceful sex or sex without the consent of
women in a marriage, women cannot complain because this has not been
considered as a crime. Indian system still follows the writing of Sir Matthew
Hale, CJ, he stated that:
the husband cannot be guilty of a rape committed by himself upon his lawful
wife, for by their mutual matrimonial consent and contract the wife hath
given herself up to her husband, consent which she cannot retract.
4. This position was followed in England till 1991 when the England court held
Marital rape to be a crime and punished the husband for raping his wife. 
5. India also needs to criminalize the said act and amend section 375 of the IPC
accordingly. But, before making it a criminal offence, a lot of thinking has to
be done in regards to the misuse of the said law, there has to be guided
principle regarding the evidence and witnesses to the particular case. 
6. Marital rape should be incorporated into the act as early as possible.

II. Gender Neutrality in the definition of sexual offences under IPC:

(Section 375 and 377 of IPC)

1. Language of the sections relating to sexual offences needs to be amended

to a neutral gender rather than continuing with language relating to the
female gender.
2. With section 377 being struck down by the Supreme court, an
amendment is required in this aspect too.
3. The Section 375 does not include men, hijras and boys as a victims of
rape and only considers womens.
4. As Example how the word  “Vegetative state” was defined and added in
IPC (These was major change brought in IPC in order to criminalised
offences more seriously.)
5. Second example can be studied under reforms made in POSCO Act:
That is replacing the word Rape with “Penetrative sexual assault” in the
act.
III. Amendment in the language of Section 124A- Sedition  of the IPC:

Section 124 A deals with sedition law. This law is not well defined and that
is why even a simple dissent from the policies and decision making of the
government may attract a sedition charge that is why the amendment is
required in the language of this section.
IV) Inclusion of law relating to Match and spot-fixing;
1. We have seen since the late 90s that in sports there are many instances of
players fixing the matches, especially in cricket and now with the concept
of spot-fixing, the risk associated with match-fixing from a player point
of view is less and that is why it is very important to have law relating to
this. 
2. Till now police investigate these cases under cheating but lack of
legislation and other things associated with it, they fail to prosecute the
alleged person.

V.  Diluting the right to file an appeal in heinous crimes, Crimes

against women:
 1. This is one of the suggestions which I would like to be included so that in
cases such as Delhi gang rape cannot go on for so long and diluting the
right to file will heal in that regard but this amendment will be
scrutinized by the Supreme court of the Country.
2. Section 57: Life imprisonment as a punishment is at discretion of court as
to number of years. It depends more on the nature of crime that has been
committed. But, when it comes to the calculation of fractions of
punishment, it is fixed for 20 years.
3. This takes away the discretionary power of a judge and differences arise
upon choosing the approach of giving punishments.

VI. Forensic evidence:

Forensic evidence should be made compulsory in criminal cases and for this
to happen India needs to invest in many more forensic labs across countries,
this will help in bringing out the truth plus the custodial torture by the police
officers will also be curbed.

VII) Laws On custodial Torture and death:

A tough law is required over this topic as we can see there are rises in cases
related to custodial torture.

VIII. Inquisitorial system of investigation

1. Countries like Germany and France follow the inquisitorial
system of investigation, where a judge is actively involved in
investigating the facts of the case, whereas we follow the
adversarial system of investigation. 
2. Some of the points of the inquisitorial system of investigation
can also be added to the present laws. Inquisitorial system of
investigation has a high rate of conviction.
IX. Under section 294 of IPC:

1. The act of annoying someone by performing any obscene act in

public places is punishable.

 2. However the word “Obscene” is not defined under the Act and

this is often misused by police.

X. Punishment Provided under Chapter III of Indian Penal Code

needs Reformation:

It only provides Imprisonment and fine but it does not include

Community service or reforming the criminal in any way.

Conclusion:

IPC is a well-written code that has been amended many times over

the years to bring a change in the criminal system. However, many

scholars believe that the criminal system cannot be reformed just

by revamping the IPC. The implementation of the code should also

be efficient to ensure success. IPC cannot be enforced by the same

police structures. Police reforms are needed for the changes in IPC

to facilitate its successful operation. We need a change in the

attitude of the police towards complainants, quick registration of

first information reports (FIRs), and swift response against crimes.

To change the attitude of the police towards the delivery of justice,

many internal, external, and structural changes are also required.

The police need to improve upon the available human resources,

 quality of investigations, and be more efficient. Additionally, it

should be ensured that there is no external pressure on the police. 

Our society is a progressive society but criminal laws have stayed

the way it was in the British era. The new laws should reflect

modern reality and they should be in accordance with the

democratic aspirations of the people and provide speedy justice to

women, children, and the weaker sections of people.

3. What is Obscenity under I.P.C.? Under what circumstances some subjects

and objects are exempted from the offence of Obscenity? / I.P.C. अं तर्गत

अश्लीलता म्हणजे काय? कोणत्या परिस्थितीत काही विषय आणि वस्तूंना

अश्लीलते च्या गु न्ह्यातून सूट दे ण्यात आली आहे ?

Ans:

Introduction:

 The word obscene comes from the Latin word obscenus, which

means foul, repulsive, or detestable. Obscenity is a term that is used

to describe words that usually have a connection with sexual morality

but now it extends to images or actions that offend most people. 

 The word has significant legal context as well.

 Under Indian law, Section 294 deals with the obscene act but it didn't

clearly define what may be called obscene. 

 While Section 292 deals with the publication, sale, exhibition, etc of

things that are considered to be obscene. This section also provides

punishment of upto 2 years and a fine upto 2 thousand rupees on the

first conviction and for the consecutive convection, imprisonment of 5

years and a fine of 5 thousand rupees.

  There also exist exceptions to those publications which are justified

on the public good, bona fide religious purpose and engraving and

painting on ancient monuments.

 We are living in the 20th century, in the era of developing thoughts

and new culture, with the people having new and old traditions with

their different culture and sentiments, that makes us a member of

society. 

 A unique gesture of a person to present himself or his work makes

someone or the whole society uncomfortable. But is the gesture really

violating someone’s sentiments or it’s just a unique or new thought to

express himself or his work? This difference in thinking makes the

word obscenity obscure, so it is too difficult to know what really

Obscene and what is not.

 India has over 450 million monthly active internet users and has

become the country with the second most number of internet users in
 the world. It has led to a subsequent rise in crimes such as cyber-

bullying, circulation of obscene content, blackmailing, etc.

According to Indian Penal Code:

Section 294: Obscene acts and songs.

Whoever, to the annoyance of others:

1. does any obscene act in any public place, or

2. sings, recites or utters any obscene song, ballad or words, in or near any
public place, shall be punished with imprisonment of either description for a
term which may extend to three months, or with fine, or with both.

Classification of offence:
The offence of obscenity is cognizable (a case in which a police

officer cannot arrest the accused without an arrest warrant)

and bailable. The cognizance of such offences can be taken by any

magistrate. The offence under section 294 is also non-compoundable.

COGNIZABLE – BAILABLE- TRIALED BY MAGISTRATE

Essential ingredients of Section 294 of IPC:

The following points can be identified as the essentials of Section 294:

 Performing any obscene act in a public place, or 

 Anyone sings, recite or utters any obscene song, ballad or words in or
near any public place
 An annoyance is caused to a particular person or people in general by
such an act.

Section 294 violates Articles 19 [freedom of speech and

expression]:
 It was held that undoubtedly Article 19 guarantees complete freedom

of speech and expression but it also makes an exception in favour of

existing laws that impose restrictions on the exercise of the right in the

interests of public decency or morality. The section of the Penal Code

in dispute was introduced by the Obscene Publications Act (7 of

1925). It does not go beyond obscenity which falls directly within the

words public decency and morality of the second clause of the article.

Word denotes the quality of being obscene which means offensive to

modesty or decency; lewd, filthy and repulsive. It was held that it

cannot be denied that it is an important interest of society to suppress

obscenity.

Case Laws Based on Section 294 Of IPC, 1860:

1. Twinkle Khanna called out for “obscene” acts during ramp walk:

Akshay and Twinkle made headlines in 2009 when they were accused

of obscene behaviour. The actor stood in front of his wife Twinkle,

who was sitting in the front row, and asked her to unbutton his jeans

when he was walking the ramp. While this appeared to be a harmless

joke, a social activist claimed it was obscene and filed a complaint

against the celebrity couple.

2. Milind Soman booked for naked beach run:

 The famous model-actor was booked under Section 294 when he
posted a picture of himself on Instagram running naked on the beach
on his 55th birthday. This offended a large number of internet users
and subsequently, an FIR was also filed against him under various
other relevant sections of the IPC and the Information Technology
Act, 2000. 

3. In the case of Pawan Kumar v State of Haryana (1966):

 it was stated that the courts should be aware of changing moral
perspectives and concepts in order to understand the impact of Section
294 on today’s society and its standards, as well as changing views of
obscenity.
Circumstances under which Subjects and Objects of Section 294
is not punished:

 Obscene Act if committed in private place then not an offence.

 Offence of using abusive language on what’s app is not a offence.
 Kissing in public is not universally treated as an illegal act. 

Test which states whether the offence is Obscene or not?(Subject or objects):

Tests of obscenity 
Indian society has always been conservative when it comes to women’s purity. It is
regarded as a critical point in preserving the family’s reputation. There are three
main tests to determine whether the content of any art or gesture is truly obscene or
not.

1. Miller test

The Miller test is a frequently applied test in the United States; it is named after the
United States Supreme Court’s decision in Miller v. California in 1973. Due to
online obscenity cases, this test had some challenges. 
Melvin Miller sent the restaurant’s manager five brochures, each containing
notable images and drawings of men and women who were involved in various
sexual activities.
 The manager filed an Obscenity case against Mr Miller after reading the mail, and
he was prosecuted for violating California law. 
The Miller test is divided into 3 parts, which are as follows:

 The average person enforcing modern community standards would find

that the work, as a whole, appeals to the prurient interest.
 Whether the work depicts or describes sexual conduct as defined by the
applicable state law in a patently offensive manner.
 Taken as a whole, the work falls short of serious literary, artistic,
political, or scientific value.
The work is only considered obscene if all three conditions are met. The first two
points of this test pertain to community standards, while the final point pertains to
an individual in the United States as a whole.

2. Hicklin test

This legal test for obscenity is based on the case Regina v. Hicklin (1868). The
entire case was predicated on the interpretation of the word “obscene.” This is a
very liberal test. 
Henry Scott resold anti-Catholic pamphlets titled “The Confessional Unmasked,”
depicting the tainting of the Roman Priesthood, the unrighteousness of the
confessional, and the questions raised on female confessions. 
Benjamin Hicklin, the bureaucrat in charge of such orders as recorder, revoked the
order when the pamphlets were ordered to be destroyed because they were
obscene. 
Scott’s intention, according to Hicklin, was to reveal significant issues concerning
the Catholic Church, not to corrupt public morals; thus, Scott’s intention was
innocent.
In the court decision of Ranjit Udeshi v. the State of Maharashtra (1964), the
Supreme Court applied the Victorian-era Hicklin test. The obscenity was assessed
using the standard of a person who was sensitive to immoral influences and was
likely to be manipulated by the material under consideration. A wide range of
material could be deemed ‘obscene’ using this test.

3. Community standards test 

This test is often applied in India. According to the Community Standards Test, art,
gestures, or content are only considered obscene if the dominant theme as a whole
is in violation of current standards prevailing in the community.
Conclusion 
India is still a country whose population is very conservative regarding what is
obscene and what is not. In some cases, even so much as showing a lot of skin can
be considered ‘obscene’. The term obscenity is derived from one of those words
whose meanings are ambiguous or unclear in Indian law. What constitutes obscene
content is entirely determined by the lawyers and judges and how they interpret the
term ‘obscene’. It is true that the definition of obscenity varies from time to time.
What is obscene today should not be considered obscene in the future. We
understand that laws must be changed from time to time, but there is a need for an
accurate definition of obscenity. It is too important to mention that in our country,
the appropriate level of obscenity in movies, web shows, arts, images or pictures,
and literature has not yet been defined.

4. What is ‘waging war against Government’? Is it treated as one of the serious

offences under IPC? Is attack on parliament treated as treason? Elaborate. /

‘सरकारविरुद्ध यु द्ध पु कारणे ’ म्हणजे काय? याला आयपीसी अं तर्गत गं भीर

गु न्ह्यांपैकी एक मानले जाते का? सं सदे वर हल्ला हा दे शद्रोह मानला जातो का?

तपशीलवार सां गा.

Ans:

Introduction:

 According to .~ Rush Limbaugh ;

There's a simple way to solve the crime problem, obey the law; punish

those who do not 

 Chapter VI of Ipc,1860 deals with offences against state.

 Section 121 to section 130 of chapter IV of IPC,1860 deals with

offences against state.

 Purpose of such sections in the penal Code is to ensure the safety of

the state as a whole. Severe punishment to the offenders who commit

offence against state shall make a threat to the offenders.

 Section 121 of IPC deals with Waging war against government.

 Waging war means to attempt to fulfil any purpose of public nature by

means of violence.

 When several people rise and assembles against the state in order to

attain any object of public nature by force or violence then it results

into wagging war against state.

Section 121 of IPC (Waging war Against Government:

Waging, or attempting to wage war, or abetting waging of war,

against the Government of India. - Whoever wages war against the

Government of India, or attempts to wage such war, or abets the

waging of such war, shall be punished with death, or imprisonment

for life and shall also be liable to fine. [1]

1.  This section deals with various ways which has the potential to

waging war against the government, 

 2. the expression waging war here refers to a deliberate and organized

attack upon the government forces and government institutions; 

3. the term whoever applies to Indian citizens as well as foreigners.

Classification of Offence -Waging war Against Government :

Cognizable- non-compoundable - non-bailable- trialled by  Court of

Session

Historical Aspect of Section 121 of IPC,1860:

The authors of the Code have deliberately used the expression wages

war. 

The words seem naturally to import a levying of war by one who

throwing off the duty of allegiance arrays himself in open defiance of

his sovereign in like manner and by the like means as a foreign enemy

would do, having gained footing within the realm.

The words mean waging war in the manner usual in war. 

The expression 'waging war' is similar to the English law

expression levying war.

Sr Case Name Case Description

No.

1. Barendera It was stated that Section 121 must be

Kumar Ghosh
constructed in such a unique but simplistic
 V. Emperor[8] way that, in ordinary sense, its ambit is not

necessarily restricted to overt acts including

the collection of men, arms and ammunition.

 It is vital to establish the fact that there was

an attempt to accomplish by violence, any

object of a public nature, striking at the root

of the sovereign's authority. There must

have been an insurrection of a general

nature, as well as force

accompanying that insurrection.

Conspiracy to Wage War:

Section 121A was added to IPC in 1870. It states that it is not necessary for any act
or illegal omission to take place explicitly in order to constitute a conspiracy.
This section deals with two types of conspiracies:

1. Conspiring to commit an offence punishable under Section 121 of the

Code, within or without India.
2. Conspiring to overawe, that is, intimidated by means of criminal force or
a mere show of criminal force against the Government.
The punishment under this Section includes imprisonment for ten years or life
imprisonment along with a fine. Such punishment can be given by the Central
Government as well as the State Government.
Section 121 treated as serious offence:
 Section 121 of IPC is an act which condemns an individual to wage wars
against the Government of India and its one of the most serious of the penal
offences under Indian Law. 
 The 26/11 attacks drove the country into shock. It was one of the most
aggressive acts of terrorism in the history of independent India. The mad
massacre claimed many lives, including that of the gunmen, save just one.
The trial and subsequent conviction of the lone surviving gunman allowed
the Judiciary to delve deep inside Section 121 IPC.
 This section is not be confused with Abetment, since the latter distinguished
between a successful and a failed attempt of the same but this Section
eschews this distinction, it deals equally with both the abettor and the one
whose instigation has no effect whatsoever, the authors of IPC had stated
something in this regard The murderer is in greater danger after his victim is
dispatched than before. The thief is in greater danger after the purse is taken
than before.
 But the rebel is out of danger as soon as he has subverted the Government.
As the penal law is impotent against a successful rebel, it is consequently
necessary that it should be made strong and sharp against the first
beginnings of rebellion, against treasonable designs which have been carried
no further than plots and preparations.
 Under that general law, a conspiracy for the subversion of the Government
would not be punished at all if the conspirators were detected before they
had done more than discuss plans, adopt resolutions and inter-change
promises of fidelity.
 A conspiracy for the subversion of the Government would be punished very
much less severely than the counterfeiting of a rupee, or the presenting of a
forged cheque. We have, therefore, thought it absolutely necessary to make
separate provision for the previous abetting of great State offences. The
subsequent abetting of such offences may, we think, without inconvenience,
be left to be dealt with according to the general law
 Along with being the only one of the nine offences under the IPC which
prescribes the penalty of capital punishment, it was originally made in
contemplation of a rebellion and not for the modern-day predominant
application to the sub-conventional warfare.

Is Attack on parliament a treason?:

 Nothing is pointed against either the person or authority of the King. But,
gentlemen, wherever the rising or insurrection has for its object a purpose,
 not confined to the peculiar views and interests of persons concerned in it,
but common to the whole community, and striking directly the King's
authority or that of Parliament, then it assumes the character of treason.

 For example, if mobs; were to rise in different parts of the country to throw
open all in closures and to resist the execution of the law regarding
enclosures wheresoever attempted, to pull down all prisons or Courts of
Justice, to resist all revenue officers in the collecting of all or any of the
taxes; in short, all risings to accomplish a general purpose, or to hinder a
general measure, which by law can only be authorized or prohibited by
authority of the King or Parliament, amount to levying of war against the
King and have always been tried and punished of treason.
 It is, therefore, not the numbers concerned, nor the force employed by the
people rising in arms, but the object which they have in view that determines
the character of the crime, and will make it either riot or treason, according
as that object is of a public and general, or private and local nature.

5. Write in detail about the following terms mentioned in the Juvenile Justice

Act, 2000: / बाल न्याय कायदा, 2000 मध्ये नमूद केले ल्या खालील अटींबद्दल

तपशीलवार लिहा:

a. Bail of Juvenile / अल्पवयीनचा जामीन

b. Rehabilitation and social re-integration / पु नर्वसन आणि सामाजिक

पु नर्एकीकरण

Ans:

Introduction to Bail:
1. Bail is the rule but not its refusal :Bail is the rule and refusal of bail

is the exception. When the bail is refused the personal liberty of the

citizen is deprived. Such deprivation can be done only by following

the principles and procedures known to law. That means refusal of

bail must be done by following due process of law. Bail can be

granted at any stage of the trial.

2. Bail is a judicial act:

Bail means to set an arrested or imprisoned person at liberty. It is a

judicial release from custody to the custody of the sureties, under the

broad supervision of the court. The grant, refusal or cancellation of

bail is a judicial act. Bail is a matter of judicial discretion.

No court is bound by the decision of the other court in the matter of

granting bail. Each bail application in every court has to be considered

on its own merit. No straight jacked formula can be laid down from

the superior court except the broad ones.

Introduction to Juvenile Justice Act, 2000:

 The word juvenile originated from a latin word juvenis, which

means young . 
 And legally the definition of juvenile has been provided under

section 2(k) of, The Juvenile Justice ( care and protection of

children) Act,2000. Which provides that juvenile or child

means a person who has not completed eighteenth year of age.

 The nation introduced a separate legislation for dealing with the

juvenile offenders. The first enactment was done was Juvenile

Justice Act,1986. Which mainly deals with both neglected

juveniles and delequent juveniles. 

 Neglected juveniles are those who are found begging,

homeless,destitute,living in brothel,exploited for illegal and

immoral purpose.

  Delequent juveniles are the one who are in conflict with law

or have committed an offence.

Certain Sections of IPC and CRPC which deals with Juvenile:

1. Section 82 of IPC says Nothing is an offence which is done by

a child under seven years of age .

2. Section 83 of IPC enlist Nothing is an offence which is done

by a child above seven years and under 12 years of age , who

has not attained the sufficient maturity of understanding in

 order to judge the nature and consequence of his act on that

particular occasion.

3. Section 27 of CRPC says that Any offence which is not

punishable with death or life imprisonment, which is committed

by a person below the age of 16 years , may be tried by a court

which is specially empowered under the children Act to decide

on such matters. Or it can be dealt with by any other law for

time being in force which is providing for treatment , training ,

rehabilitation of young offenders .

4.  Section 437 of CRPC lays down that ,a juvenile in conflict

with law can apply for anticipatory bail.

 Bail of Juvenile:

 Section 12 Juvenile Justice Act, 2000 deals with Bail of

Juvenile.

 Clause 1 of  section 12 of Juvenile Justice Act, 2000:

(1) When any person accused of a bailable or non-bailable offence, and apparently

a juvenile, is arrested or detained or appears or is brought before a Board, such
person shall, notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be
released on bail with or without surety 1[or placed under the supervision of a
Probation Officer or under the care of any fit institution of fit person] but he shall
not be so released if there appear reasonable grounds for believing that the release
is likely to bring him into association with any known criminal or expose him to
moral, physical or psychological danger or that his release would defeat the ends of
justice.
 Clause 2 of section 12:
(2) When such person having been arrested is not released on bail under sub-
section (1) by the officer incharge of the police station, such officer shall cause him
to be kept only in an observation home in the prescribed manner until he can be
brought before a Board.
 Clause 3 of section 12:
(3) When such person is not released on bail under sub-section (1) by the Board it
shall, instead of committing him to prison, make an order sending him to an
observation home or a place of safety for such period during the pendency of the
inquiry regarding him as may be specified in the order.
Introduction to Rehabilitation and social reintegration:
 The recovery and social inclusion of children under the Act is performed on
the basis of the child’s individual care plan. 
 It is done ideally by family-based treatment such as return to the family or
guardian with or without guidance or support, or adoption or foster care. 
 Provided that every attempt is made to retain the siblings placed together in
institutional or non-institutional care. Only if not being left together is in
their best interests. 
 The method of rehabilitation and social integration is followed in
observation homes for children, contrary to the law.
  It happens usually when the child is not released on bail and held there by
the Board’s order in special homes or in a place of protection or with a
suitable individual.

Sections related to Rehabilitation and social reintegration: 

Intro:

Rehabilitation and Reintegration: Social reintegration of children shall be

carried out alternatively by adoption, foster care, sponsorship, and sending the
child to an after-care organization (Section 40, the Juvenile Justice (Care and

Protection of Children) Act, 2000). The foster care may be used for temporary

placement of those infants who are ultimately to be given for adoption. After-care

organisations (Section 44, the Juvenile Justice (Care and Protection of Children)

Act, 2000) are set up for the purpose of taking care of juveniles or the children

after they leave special homes, children homes and for the purpose of enabling

them to lead an honest, industrious and useful life.

1. Section 39 specifies that children who need treatment and security who are
not kept in families for any reason as such, on a temporary or long-term
basis, can be placed in an institution licensed for such children or with a
suitable individual or facility. 

The rehabilitation and social integration process shall be followed wherever

the child is placed. 

2. Section 46: Those in need of care and support and live in institutional care or
in special homes or places of security may receive financial assistance when
they reach the age of eighteen as stated in Section 46. This is to help them
reintegrate into the mainstream.
3. Section 40 specifies that the Competent Authority under its discretion can
return any child in need of care and security to his or her parents, guardian,
or fit person after assessing their worthiness to take care of the child. The
committee can also provide them with the correct directions regarding
anything related to the child. “Restoration and security of a child” means,
restoration to parents, adoptive parents, foster parents, guardian, or fit
person.
4.  Section 41 (Registration of Childcare Institution) :specifies that the
registration period of an institution is till five years, and gets renewed after
every five years.
5. Section 43 (Open Shelter) :
 The State Government may create and maintain as many open shelters as
may be necessary as mentioned in Section 43, by itself or by voluntary or
non-governmental organizations, and such open shelters have to be
registered as such in the manner specified. 
The open shelters operate on a short-term basis as a community-based
facility for children in need of residential assistance with the goal of
shielding them from violence or holding them away from life on the streets. 
The open shelters have to submit reports to the District Child Protection Unit
and the Committee every month, in the manner specified, concerning
children who have benefited from the shelter services.

6. Section 44 (Foster Care) : Children in need of support and security may be

taken into foster care, including community care by order of the Committee,
after following the protocol as may be recommended in this regard,
especially in a family which does not include the biological or adoptive
parents of the child or in an unrelated family recognized by the State
Government as appropriate for this purpose. 

This can be for the short term or can be extended further by the concerned
authorities as prescribed by Section 44. 
The allocation of the foster family is centred on the capacity, purpose, skill,
and previous experience of taking care of the children.
 All efforts shall be made to hold siblings in foster care together unless it is
best for them not to be together. 

7. Section 45 (Sponsorship) : In order to implement various initiatives for the

sponsorship of children, such as individual, group, or community
sponsorship, the State Government can make rules to facilitate them as
mentioned in Section 45. The sponsorship will provide financial resources
for families, children’s homes, and special homes in order to meet the
children’s medical, nutritional, educational, and other needs in order to
enhance their well-being.

The sponsorship conditions include: 

a. where the mother is a widow, divorced or deserted by the family; 

b. where the children are orphaned and stay with the extended family; 
c. where the parents are victims of life-threatening illness; 
d. where the parents are injured as a result of an accident and are unable to take
care of the children physically and financially.
8. Section 47(Observation Homes) :The State Government may create and
maintain observation homes as prescribed by Section 47, for the temporary
admission, treatment, and rehabilitation of any child alleged to be in conflict
with the law in each district or group of districts, either by itself or by
voluntary or non-governmental organizations, during the time period in
which inquiry is pending. 
9. Special homes Section 48:

It  specifies that the State Government must create and maintain, either on its
own or through voluntary or non-governmental organizations, special homes
registered in any district or group of districts as these may be necessary for
the rehabilitation of those who are found to have committed an offence and
who is held there by the order from the Juvenile Justice Board (Section 18). 

10.Section 49 (Place of Protection): According to Section 49, the State

Government shall create at least one place of protection in a State registered
under section 41 to locate an individual over the age of 18 years or a child
who is between 17 and 18 years of age and is suspected or guilty of having
committed a heinous crime. 
11.Section 51 (Fit Facility) : A facility operated by a public agency or a
charitable or non-profit entity licensed under any statute shall be accepted by
the Board or the Committee as being capable of temporarily assuming the
responsibility of a child for the particular reason after a careful inquiry into
the suitability of the facility and the child care agency as mentioned
in Section 51. 
12.Section 53 (Managing directors) : The State Government may cancel or
withhold the registration of institutions that do not provide rehabilitation and
reintegration services as stated in Section 53 and the State Government shall
manage the institution until it is renewed or granted registration again. 
13.Section 54 (Inspection of Registered Institution): Inspection committee
appointed pursuant to Section 54 shall have the power to inspect any
institution that houses children, even if not registered for the purpose of
deciding whether such institution houses children in need of care and
security or not.
6. Discuss in detail the Prevention of Terrorism Act, 2002. / दहशतवाद प्रतिबं ध

कायदा, 2002 ची सविस्तर चर्चा करा.

7. What is “Organised Crime” under The Maharashtra Control of Organised

Crime Act, 1999? What are the punishments prescribed under MCOCA? /

महाराष्ट् र सं घटित गु न्हे गारी नियं तर् ण कायदा, 1999 अं तर्गत "सं घटित गु न्हे गारी"

म्हणजे काय? MCOCA अं तर्गत कोणत्या शिक्षे ची तरतूद आहे ?

Ans:

INTRODUCTION TO MCOA:

 The commission of crimes like contract killings, extortion, smuggling

in contrabands, illegal trade in narcotics, kidnappings for ransom,

collection of protection money and money laundering, etc. by

organized crime syndicates was on the rise. 

 To prevent such organized crime, an immediate need was felt to

promulgate a stringent legislation. 

 The Government realized that organized crime syndicates have

connections with terrorist gangs and were fostering narcotic terrorism

beyond the national boundaries. 

  MCOCA was promulgated with the object of arresting organised

crime which was posing a serious threat to the society .

 Act Title and its applicability

MCOCA that is Maharashtra control of organised crime Act, 1999 is

an Act introduced to tackle organised crime activities in Maharashtra ,

from the title of the act it appears that the applicability of the Act is

limited only to state of Maharashtra but it is not true, the applicability

of the act is However extended to state of NCT of Delhi by Home

ministry of Government of India, by a notification dated 2 January

2002. 

Therefore, AT present the Act is applicable to state of Maharashtra

and Delhi.

The provision of the Act shall have affect, Notwithstanding anything

contained in any other law for the time being in force.

Definition of Organised Crime:

Definition, what is organized crime and organized crime syndicate

To understand the applicability of the Act First One need to understand

the definition given under section 2, clause (d), (e), (f) which is given

under:
(d) continuing unlawful activity means an activity prohibited by law for the

time being in force, which is a cognizable offence punishable with

imprisonment of three years or more, undertaken either singly or jointly, as a

member of an organised crime syndicate or on behalf of such syndicate in

respect of which more than one charge-sheets have been filed before a

competent Court within the preceding period of ten years and that Court has

taken cognizance of such offence;

(e) organised crime means any continuing unlawful activity by an individual,

singly or jointly, either as a member of an organised crime syndicate or on

behalf of such syndicate, by use of violence or threat of violence or

intimidation or coercion, or other unlawful means, with the objective of

gaining pecuniary benefits, or gaining undue economic or other advantage

for himself or any other person or promoting insurgency;

(f) organized crime syndicate means a group of two or more persons who,

acting either singly or collectively, as a syndicate or gang indulge in

activities of organised crime;

After summing up all these three definition

 An organised crime activities means activities undertaken by member of a

gang or syndicate jointly or severally ,for pecuniary or other advantages,

which is a cognizable offence punishable with imprisonment of three years

or more , either as member or on behalf of such syndicate or gang in respect

of which more than one charge- sheets have been filed in preceding ten years

before competent court and such court has taken cognizance on it

Features of MCOCA act:

1. Every offence under the ACT is a cognizable offence.

2. Section 167 CR.P.C is applicable subject to the modification that in sub
section (2) of section 167 of CR.P.C the reference to fifteen days and sixteen
days wherever they appearing in that sub section shall be construed as thirty
and nineteen days respectively.
3. Nothwithstanding , anything contained in section 167 CR.P.C , the period of
filing charge-sheet can be extended Upto 180 days by special court on
special reason being shown for detention of Accused beyond ninety days and
on report by public prosecutor showing progress of investigation.
4. No anticipatory bail is Allowed, for a person accused of an offence
punishable under the ACT.
5. NO bail is allowed if noticed by the court that on the Date of offence under
this ACT , Accused was on bail for an offence punishable under this ACT ,
or under any other law.
6. Police officer before obtaining custody of any person for interrogation need
to file a written statement giving his reason for so applying for such custody.
7. Nothwithstanding, anything in CR.P.C. , the court shall not grant bail unless
the public prosecutor has given an opportunity to oppose the bail application
and where it is opposed by the public prosecutor unless the court is satisfied
that he is not guilty of offence and he will not commit any offence while
being released on bail.
8. Notwithstanding, anything contained in evidence Act or any other law, any
confession given to a police officer not below the rank of superintendents of
police is admissible as evidence in a proceeding under this Act.
Special provision to avoid misuse of power under the Act:

1. for recording information of an offence under the Act prior approval of a

police officer not below the rank of director general of police required.
2. Offence Under the Act can be Investigate by an officer who is not below the
rank of DSP.
3. No special court can take cognizance of offence without the prior approval
of police officer not below the rank of Additional Director general of police.
4. whosoever, being a public servant support in commission of offence under
the Act or failed to do anything what he is required by law to do shall be
punishable for imprisonment which may extend to three years or fine.

Punishments under MCOCA: