Theme: Courts

FIR Registration

Please see our classification of crimes to understand if an FIR needs to be registered.

Petty Offences: No registration of an FIR is required.

Serious Offences: No registration of an FIR is required (They are supposed to record it in the general diary along with the social background report for these two types of offences).

Heinous Offence: An FIR needs to be filed against a child.

Arresting a child

There are certain rules the police have to follow while arresting a child offender. They are:

  • The police cannot handcuff or exert any force when they arrest a child
  • The police officer must immediately inform the parents or guardians
  • The police officer must tell the child the location of the Juvenile Justice Board where they will be taken.

Punishment for Children

The punishments for Petty Offences and Serious Offences can include:

  • Give the child a firm warning, then let them go home while simultaneously counselling the parents.
  • Ordering the child to attend group counselling sessions
  • Ordering the child to perform supervised community service
  • Ordering the child’s parents or guardians to pay a fine
  • Releasing the child on probation. The parents or guardians will have to pay a bond for up to 3 years that makes them responsible for the child’s behaviour. The responsibility can also be handed over to a ‘fit person’ or ‘fit facility,’ which is a person or government organization or NGO that is prepared to accept responsibility for the child.
  • Sending the child to a Special Home for up to 3 years.

If the Board thinks that keeping the child in the Special Home would be against their best interests or the best interests of other children in that home, then the child could be sent to a Place of Safety. The Board may also order the child to attend a school or vocational training, or prevent the child from going to a specified place.

The law focuses on making sure children are rehabilitated and the Board or the Children’s Court has to develop and oversee an Individual Care Plan to help this happen. An Individual Care Plan is a development plan addressing issues like health, nutrition, emotional, and educational needs.

Children’s Court

If the Board decides that a child should be tried as an adult after a Preliminary Assessment, it sends the case to a Children’s Court. The Children’s Court may be an existing Sessions Court that deals with child-specific laws, or a special court set up to deal with crimes under the Juvenile Justice Act. The Children’s Court may then do one of two things:

They may decide that the child must be treated as an adult for the trial, and then conduct a regular trial and pass final judgment. While the Children’s Court can generally pass the maximum sentence for a Heinous Offence (a sentence of more than 3 years), it cannot sentence the child to the death penalty or life imprisonment without the possibility of release.

They may decide that there is no need to try the child as an adult and may conduct an inquiry like the Board did, and pass orders under Section 18 of the Juvenile Justice Act.

In all proceedings, the Children’s Court must make sure the atmosphere is child-friendly. It must also ensure that the child is sent to a Place of Safety if they are detained during proceedings. If the child is found guilty of having committed a Heinous Offence, they will be sent to the Place of Safety until they are 21 years old, after which they can be sent to jail. The child should have access to services like education and skill development while they are at the Place of Safety.

Preliminary Assessment of a child’s crime

A preliminary assessment is conducted when a heinous offence is committed by a child over the age of 16. This is an attempt to find out whether the child was mature enough to understand their action and the consequences of them when they committed the crime. If the child was mature enough, the proceedings need to be conducted in the same way an adult would be. The Board can take the help of trained psychologists and experts to arrive at its conclusions but must complete the inquiry within 3 months.

 

What is Free Legal Aid?

Free legal aid means providing legal services, free of cost, to certain sections of the society like a beggar, differently-abled person, etc., as and when required. This does not mean that anyone can go and ask for legal aid. You have to be eligible to apply for it.

 

The purpose of providing legal aid is to ensure that no person is deprived of legal services and justice due to lack of money((  FAQs, National Legal Service Authority, https://nalsa.gov.in/faqs.)). You can get free legal aid when:

  • You cannot afford to pay or engage a lawyer to represent you in court or for any other purpose. For example, you can get legal aid when you are appealing your sentence(( Madav Hayavadanrao Hoskot Vs. State of Maharastra (1978)3 SCC 544.)), or if you are appearing in front of the Magistrate for the first time(( Khatri II Vs. the State of Bihar, (1981) 1SCC; 1981 SCC (Cri) 228; 1981 Cri. LJ 470.)) etc.
  • You want legal advice, legal services or legal steps to take for a problem.
  • You need help with getting legal documents ready.
  • You need help to pay court fees for a case or any other fee required for legal processes
  • You want to apply for compensation or get money through the Court.

 

You have a constitutional right to legal aid1, which means that the state is constitutionally bound to provide legal aid to you at all stages i.e. not only at the stage of trial but also when you are first produced before the Magistrate or let off on bail, etc. Legal aid authorities cannot deny you this right stating excuses or reasons like the fact that you did not ask for help or that the authorities have financial or administrative constraints(( Hussainara Khatoon v. Home Secretary, State of Bihar [(1980) 1 SCC 98])). If you are eligible for legal aid, you have every right to get it. 

 

Please note that this explainer only gives a general central overview of the procedures in relation to getting free legal aid, and the procedure varies across states. 

  1. Article 22, 39-A, Constitution of India, 1950; Hussainara Khatoon v. Home Secretary, State of Bihar [(1980) 1 SCC 98]. [↩]

What is Contempt of Court?

Contempt of court is any action or writing, meant to lower the authority of a court or a Judge or to interfere with the course of justice or the lawful process of the court. The Contempt of Court Act, 1971, defines contempt of court to include two kinds- civil and criminal contempt.(( Section 2(a), Contempt of Courts Act, 1971.)) A contempt proceeding is not a dispute between two parties, but rather a proceeding between the court and the person accused of contempt.1

Types of Contempt of Court 

Contempt of court can be broadly categorized into two – civil and criminal contempt. 

Civil Contempt

Civil contempt refers to:

  • Willful disobedience to any judgment, decree, direction, order or writ. For example, D disobeyed a court order to submit her financial records to the court in an ongoing case. This would be an instance of civil contempt. 
  • A willful breach of an undertaking or affidavit given to a court. For example, V submitted an affidavit to the court that she would return certain confidential papers to her employer within a week but failed to return it within that time period. This would be an instance of civil contempt.2The undertaking or affidavit given to the court can be in the form of a promise or a direction, based on which the court decides whether something was done or not.3) For example, not following an undertaking/affidavit where a person has promised to pay a certain amount of money to the court. The main intention of this law is to ensure that people uphold the sanctity of the judicial system and obey the directions given by the court.(( Subrata Kunda v Kshiti Goswami, Calcutta HC, 2010 (1) CHN 306.))

    Criminal Contempt

    Criminal contempt does not require the existence of a judgment, order, direction, decree, writ, or undertaking/affidavit. For criminal contempt, the law requires a publication or action or an attempt, which has any of the following consequences:

    1. Scandalises or lower the authority of any court. For example, if someone deliberately defames and raises their voice at a judge. 
    2. Prejudices, or interferes with any court or tribunal proceeding. For example, a false statement made against a judge for collusion in their capacity as a ‘judge’.
    3. Obstructs the administration of justice in any other manner.(( Section 2(c) , Contempt of Courts Act, 1971.))  For example, if a person stops municipal authorities who have been told by the Court to demolish a building. 

    The aim of criminal contempt is not to protect the court from insult, but rather to prevent dilution of the public’s faith in the courts.(( Delhi Judicial Service Association, Tis Hazari Court v. the State of Gujarat, (1991) 4 SCC 406.)) 

 

  1. State of Maharashtra v Mahboob S. Allibhoy, Supreme Court, (1996) 4 SCC 411. [↩]
  2. Section 2(b), Contempt of Courts Act, 1971. [↩]
  3. Jayanta Roy v Howrah Parcel (Eastern Railway) Labour Contractor Mazdur Panchayat, Calcutta HC 2000 (1) CHN 884 (Cal [↩]

Rehabilitation of Children

The main aim of rehabilitation is to make sure that a child can be put back under the care of their parent or guardian.

If this is not possible, authorities have to make sure the child is put under the care of a child-care institution that is recognised under the Juvenile Justice Act. These institutions have many services to help to rehabilitate children.

The responsibility to care for children doesn’t end when they reach the age of 18 and leave their institution. Children leaving an institution can be given financial support to help them integrate back into society.

Legal Services

If you are looking for legal aid in India, then this includes a lot of legal services.(( Section 2(c), Legal Services Authority Act, 1987.)) Legal services are1 any service with respect to a case or any other legal proceeding before any Court, authority or tribunal. Getting legal advice is also a part of legal service. 

 

To get legal aid, you will have to approach a Legal Service Authority to whom you can ask for help for your situation.  You have a right to ask for any of the legal services given below(( FAQs, National Legal Service Authority, https://nalsa.gov.in/faqs; Nature Of Free Legal Services, National Legal Service Authority, https://nalsa.gov.in/lsams/nologin/natureOfFreeService.action)):

  • Representation by a lawyer in legal proceedings. 
  • Payment of all costs including process fees, expenses of witnesses and all other charges payable or incurred in connection with any legal proceedings. 
  • Preparation of memo of appeal, paper book including printing and translation of documents in legal proceedings.
  • Drafting of legal documents, special leave petitions etc.
  • Supply of certified copies of judgments, orders, notes of evidence and other documents in legal proceedings.
  1. Section 2(c), Legal Services Authority Act, 1987. [↩]

What does the law say you can/cannot do?

While anything that lowers the authority of the courts can be considered as contempt, there are certain exceptions given in the law. 

Innocent publication and distribution of matter

Under the law, if a publication, like a book or an article, tends to prejudice any pending court proceeding, such as publicly discussing unsubstantiated evidence, it will amount to criminal contempt.(( Rachapudi Subba Rao v Advocate General, Andhra Pradesh, AIR 1981 SC 755; Read with Contempt of Courts Act, 1971, Sections 2(c) (ii) & (iii))) However, the law itself gives certain exceptions where a publication will not amount to contempt on the grounds of prejudicing a pending proceeding. They are:

  • If at the time of publication, the publisher had no reason to believe that such a case was pending.(( Section 3(1), Contempt of Courts Act, 1971.))
  • If no court proceeding was pending at the time of publication.(( Section 3(2), Contempt of Courts Act, 1971.)) 
  • If the person is in charge of distributing something that may be seen as contempt and they did not know that it contained anything that would be prejudicial to an ongoing court proceeding.(( Section 3(3), Contempt of Courts Act, 1971.))
  •  However, this defence of ‘innocent distribution’ is not available for the press as the law gives certain criteria to be met for publishing books,(( Section 3, Press and Registration of Books Act, 1867.)) papers,(( Section 3, Press and Registration of Books Act, 1867.)) and newspapers(( Section 5, Press and Registration of Books Act, 1867.)). A person found distributing books, papers, or newspapers that have not met these criteria, will be guilty of contempt.(( Proviso to Section 3(3), Contempt of Courts Act, 1971.))

Fair and accurate reporting of a judicial proceeding

In India, trials and other judicial proceedings are generally held in open court and are subject to public scrutiny. This is required for a healthy, objective, and fair administration of justice.(( Naresh Shridhar Mirajkar v State of Maharashtra, AIR 1967 SC 1.)) This system relies on numerous reporters that accurately report the daily proceedings in a court. The law protects such legal reporting, provided that it is fair and accurate.((  Contempt of Courts Act, 1971, Section 4.)) 

The terms ‘fair and accurate, does not mean that the report should be a word-to-word reproduction of the proceedings. Rather, it should relay what has happened in the court,(( Borrie & Lowe, The Law of Contempt, LexisNexis Butterworths, 3rd Edn, p 270.)) and should not misrepresent the court proceedings before the public.(( Roach v. Garvan, (1742) 2 Atk 469.)) Unfair reporting that misleads the readers, is not protected by the law and would amount to contempt.(( E.T. Sen v E. Narayanan, AIR 1969 Del 201, at 213.)) For example, reporting or quoting an incorrect statement which was not made by a judge on social media.

 

In situations of in-camera trials, which take place in a closed room inside a court, certain forms of reporting may amount to contempt. Some examples of in-camera trials are cases of rape,(( Code of Criminal Procedure, 1973, Section 327(2))) matrimonial disputes,(( Special Marriage Act, 1954, Section 33 for example.))  etc, In such in-camera proceedings, the reporting of the proceedings, even if they are fair and accurate, will amount to contempt if:

  • Such publication is contrary to or against any existing law.(( Contempt of Courts Act, 1971, Section 7(1)(a).)) For example, reporting of the proceedings in rape trials or child sexual abuse trials are prohibited by law, and a person has to obtain the permission of the court in case they want to still report such matters.(( Code of Criminal Procedure, 1973, Section 327(3).))
  • The court has explicitly prohibited such reporting.(( Contempt of Courts Act, 1971, Section 7(1)(b).)) For example, in the evidence stage of a case involving national security or terrorism.
  • The court is conducting in-camera proceedings for reasons connected with public order or security of the State.(( Contempt of Courts Act, 1971, Section 7(1)(c).))
  • The information published relates to a secret process, discovery or invention which is an issue in proceedings. For example, in patent objection matters.(( Section 7(1)(d), Contempt of Courts Act, 1971.))

Fair criticism of judicial Actions

If a case has been finally heard and decided by the court, a person will be allowed to publish fair comments on the merits of that particular case.(( Section 5, Contempt of Courts Act, 1971.)) Comments about the judgment itself, and other comments about the merits of the case, are an exception to contempt of court.(( Samaraditya Pal, The Law of Contempt-Contempt of Courts and Legislatures, Chapter 5, Defenses, Punishments, Procedures, Limitation and Conferment of Rule Making Power (5th edn, 2012).)) Since judgments are public documents, and the public acts of a Judge are subject to public scrutiny , no one can prohibit fair comments on either of them.(( Rama Dayal Markarha v. State of Madhya Pradesh, AIR 1978 SC 921, at 927.)) However, the exact test for ‘fair comment’ is unclear and will depend on the facts and circumstances of each case. For example, misquoting the judge or making false statements about judges would not amount to ‘fair comment’. Additionally, such comments have to be made without any bad intentions, and without the motive to bring down the image of the judiciary or impair the administration of justice itself.(( In re: Ajay Kumar Pandey, (1998) 7 SCC 248.))

Complaint against presiding officers of Subordinate Courts

If a person has made a complaint against a presiding officer of a Subordinate Court, to either the High Court or another Subordinate Court, such a complaint will not amount to contempt. However, such a complaint has to be made in good faith.(( Section 6, Contempt of Courts Act, 1971.)) For example, if a person files a complaint against a District Judge because of a legitimate grievance.

Truth

Saying or publishing the truth for the public good may be treated by the court as an exception to contempt.(( Section 13(b), Contempt of Courts Act, 1971.)) This is similar to the defence of truth in defamation, but the court has the option to decide whether or not to accept such a remark.