NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

Code of Criminal procedure 1973

RIGHTS OF ADULT ACCUSED VS RIGHTS OF CHILD
IN CONFLICT WITH LAW Under Code of Criminal Procedure 1973
 Acknowledgement

Our vocabulary falls short on words to express our hearty gratitude towards our code of Civil
procedure assistant professor Mr P.K. Shukla who gave us the opportunity to work upon such an
astonishing project which helped us in enhancing our thinking skills. Also, I’d like to thank the
prestigious library of NLIU with the material (books) of which we were able to supplement our
project work we want to take out this moment to lastly (but certainly not the least) thank our
parents and The Almighty under whose blessings we were able to conclude this project. We
acknowledge the support of all the aforesaid and start with our project.

Thank You.
 SYNOPSIS

TITLE:- Rights of adults accused vs Rights of Child in conflict with law

INTRODUCTION:- One of the most important contribution of the criminology is that it

acknowledges the various factors which leads to crime or at least the criminal instincts of various
criminals. This is very seminal is the sense that it recognises the peripheral aspects of the
criminal. When we say that purpose of the Criminal Procedural Code is to substantiate the
criminal justice system, it includes the objective that ends of the justice must be met. It further
includes two underpinnings firstly, that the rights of the accused are not being violated, which is
enshrined through principles of fair trial. And secondly to provide proper punishment to the
person who deserves it. But the criminal justice system is not equipped enough to recognize the
dynamic nature of the set of accused, victims, and witnesses. This is to say that there are various
factors not related to the incident per se but which can influence the decision of the court
provided that the system considers the peripheral aspect of the partied involved i.e., accused,
victim and witnesses. Law when deals with the people has to recognize the diversity of the
people concerned, so as to better achieve the ends of justice. When I mentioned criminology has
seminal contribution that was to reinforce the idea that Criminal Justice System should be
considerate towards the fact that various people have carious social, cultural background and not
a uniform application of the code can be done all over. For example the principle that Ignorance
of Law is not an excuse, is a legal fiction created by law so as to simplify its application. This
maxim is useful just to theorise the legal concepts. But it has to be understood that practically it
does not happen that all person know the law. When Criminal Justice System treats two
individuals lets say one with lower strata and another from privileged class, with the same
procedure it does not in my opinion meets the end of justice as latter has more chances of not
incriminating himself than the former. However this is only one such example though various
factors are there which affects the accused and those factors may cause him to convict himself
just because the procedural requirement has set the standard, maybe he could not understand the
question as asked by the council, maybe he is afraid of being tried or anything else. The purpose
of this paper is to compare the Juvenile Justice Act 2015 with the Criminal Procedural Code
1973, so as to analyse whether the characteristic Juvenile Justice Act or assumptions related to
the Juveniles can be applied to adult as well. On the face, it is obvious that the provisions of
Juvenile Justice Act are more lenient towards a child in conflict with law in comparison to CrPC
procedure for adults. I have tried to look at the provisions of CrPC with the perspective of the
Juvenile Justice Act i.e., to analyse that whether those mitigating factor as in Juvenile Justice Act
can be applicable to adults as in CrPC as well or not.

STATEMENT OF PROBLEM:- Criminal Procedural Code 1973, so as to analyse whether the

characteristic Juvenile Justice Act or assumptions related to the Juveniles can be applied to adult
as well. On the face, it is obvious that the provisions of Juvenile Justice Act are more lenient
towards a child in conflict with law in comparison to CrPC procedure for adults, the nature of
Criminal Procedure Code is retributive that is to satisfy the blood thirst of the adult victims.
Whereas the Juvenile Justice Act aims at reformative procedures.

OBJECTIVE/ AIMS OF THE STUDY :-

 To understand the comparison between rights of adult accused and juveniles

 Figure out the loop holes in the present legal system regarding the inconsistency in the
juvenile justice Act.
 Age alone cannot determine the consciousness of consequence or ability to understand
the nature of the act is present there or not.

RESEARCH METHODOLOGY:- The research in this projcct is doctrinal type research which
is based on the study of case laws, articles, text and other resources on the concerned subject.
1. Law Commission Reports
2. Textual information
Review of Literature:-For the purpose of research on this topic, help of various articles and
publications of scholars has been taken. Moreover, reliance has been placed on the book
authored by Justice R.V. Kelkar, wherein the concepts of code of criminal procedure are dealt
systematically and are explained with the help of the various landmark judgments.

Tentative Chapterization:-
The entire research work will run into five chapter. The first one on Introduction brings out the
importance of the study and statement of problem. Chapter II will contain the objectives of the
study. Chapter III will be a methodological part of the study . Findings, Conclusions and
suggestion for further Research will be presented in Chapter VI followed by References.
TABLE OF CONTENTS

● INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

● COMPARSION –CRPC AND JUVENILE JUSTICE ACT. . . . . . . . . . . . . . . . . . . 5

● RULES OF ARREST OF JUVENILES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

● RULES OF ARREST OF ADULTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

● ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

● CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
INTRODUCTION
One of the most important contribution of the criminology is that it acknowledges the various
factors which leads to crime or at least the criminal instincts of various criminals. This is very
seminal is the sense that it recognizes the peripheral aspects of the criminal. When we say that
purpose of the Criminal Procedural Code is to substantiate the criminal justice system, it includes
the objective that ends of the justice must be met. It further includes two underpinnings firstly,
that the rights of the accused are not being violated, which is enshrined through principles of fair
trial. And secondly to provide proper punishment to the person who deserves it. But the criminal
justice system is not equipped enough to recognize the dynamic nature of the set of accused,
victims, and witnesses. This is to say that there are various factors not related to the incident per
se but which can influence the decision of the court provided that the system considers the
peripheral aspect of the partied involved i.e., accused, victim and witnesses. Law when deals
with the people has to recognize the diversity of the people concerned, so as to better achieve the
ends of justice. When I mentioned criminology has seminal contribution that was to reinforce the
idea that Criminal Justice System should be considerate towards the fact that various people have
carious social, cultural background and not a uniform application of the code can be done all
over. For example the principle that Ignorance of Law is not an excuse, is a legal fiction created
by law so as to simplify its application. This maxim is useful just to theorise the legal concepts.
But it has to be understood that practically it does not happen that all person know the law. When
Criminal Justice System treats two individuals lets say one with lower strata and another from
privileged class, with the same procedure it does not in my opinion meets the end of justice as
latter has more chances of not incriminating himself than the former. However this is only one
such example though various factors are there which affects the accused and those factors may
cause him to convict himself just because the procedural requirement has set the standard, maybe
he could not understand the question as asked by the council, maybe he is afraid of being tried or
anything else. The purpose of this paper is to compare the Juvenile Justice Act 2015 with the
Criminal Procedural Code 1973, so as to analyse whether the characteristic Juvenile Justice Act
or assumptions related to the Juveniles can be applied to adult as well. On the face, it is obvious
that the provisions of Juvenile Justice Act are more lenient towards a child in conflict with law in
comparison to CrPC procedure for adults. I have tried to look at the provisions of CrPC with the
perspective of the Juvenile Justice Act i.e., to analyse that whether those mitigating factor as in
Juvenile Justice Act can be applicable to adults as in CrPC as well or not.COMPARATIVE
STUDY OF THE RIGHTS OF JUVENILE AND RIGHTS OF THE ADULTS WHILE
ARREST

Rules of Apprehension and custody of juveniles

● Arrest and detention-There are two situations under child arrest/detention. First under
suspicion and secondly under belief of police that a crime has been committed. If a child
is to be arrested on suspicion of committing a crime normally a police officer from
Special Juvenile Police Unit arrest the child. Although if a regular police officer is
arresting the child then that child has to be transferred quickly to the custody if the
Juvenile Police Unit or a designated Child Welfare Police Official.1
● The police officer arresting the Juvenile cannot put shackles on child not can they exert
any force while arresting.2 Further the officer must provide information to the parents or
guardian of the child about the arrest.
● The child apprehended has to be immediately presented before the Juvenile Justice Board
within the 24 hours and without any delay. In no condition that child can be locked up in
jail or police lockup. 3
● The person under whose custody the child in conflict with the law is has to take care of
that child in the same manner as he would have taken being that child’s parent.4
● Irrespective of the fact that whether the child in conflict with law is alleged with bailable
of non-bailable offence, that child shall be released on bail and also surety is not
mandatory to grant bail. However one exception is there that is if that release will lead to
exposing that to child to some criminal so as to danger his psychological, moral or
physical health bail may not be granted. So in case where bail is not granted the child can
only be kept in an observation home and not in any lockup or jail. 5 Further all of this is
subject to a period of 7 days, that is when bail conditions are not fulfilled within 7 days
the Juvenile Justice Board can modify those conditions so as to ease the bail.

1
Section 10, Juvenile Justice Act, 2015
2
Rule 8(3)(ii) Model Rules
3
Section 10, Juvenile Justice Act, 2015
4
Section 11, Juvenile Justice Act, 2015
5
Section 12, Juvenile Justice Act, 2015
 ● During the whole proceedings the children court must ensure that child friendly
atmosphere is maintained.6 Also if the child is found guilty of the offence alleged, he/ she
should have an access to reformative process like skill development or education etc.

Right of the adult accused in the Criminal Procedure Code 1973

● Right to silence- This right is the contribution of the common law. That means when a
police officer asks the question to the accused and he remained silent, no negative
inference can be drawn from that silence. Justice Malimat committee concluded in its
report that right to silence is very seminal as per the need of the society so as to deter
arbitrary charging of offences.
● Grounds of the arrest-No person while arresting an accused and has not given warrant to
accused, can deny him to tell the all the particulars of the offence7. In case where warrant
is issued and a person is to be apprehended the person in execution of the warrant must
notify the arrestee about the specification of the warrant8. If these conditions are not
complied with the apprehension will be considered as unlawful.
● Right to bail-In case of an apprehension of a person for any bailable offence, the police
arresting that person must inform the arrestee that he is entitled to be released on bail on
fulfilment of the condition of the surety.9
● Right to be taken before magistrate-The arrested person must be presented before the
magistrate without any unnecessary delay. It does not matter whether he/she is charged
with bailable of non-bailable offence. Also he/she has to be presented before 24 hours of
the arrest excluding the time for the journey.10
● Right to consult a legal practitioner-Both the Constitution and the provisions of the Code
recognise the right of every arrested person to consult a legal practitioner of his choice.
The right begins from the moment of arrest. The consultation with the lawyer may be in
the presence of the police officer but not within his hearing. 11Also any person who is
arrested and interrogated by the police shall be entitled to meet an advocate of his choice

6
Section 20, Juvenile Justice Act, 2015
7
Section 50(1), Criminal Procedure Code, 1973
8
Section 75 , Criminal Procedure Code, 1973
9
Section 50(2) , Criminal Procedure Code, 1973
10
Section 76, , Criminal Procedure Code, 1973
11
Section 303,Criminal Procedure Code, 1973
 during interrogation. This right would, however, not be available throughout the
interrogation.
● Right of an arrested indigent person to free legal aid and to be informed about it-The
Supreme Court has held that the State is under a constitutional mandate to provide free
legal aid to an indigent accused person, and that this constitutional obligation to provide
legal aid does not arise only when the trial commences but also when the accused is for
the first time produced before the Magistrate as also when he is remanded from time to
time12. However, this constitutional right of an indigent accused to get free legal aid may
prove to be illusory, unless he is promptly and duly informed about it by the court when
he is produced before it. The Supreme Court has, therefore, cast a duty on all Magistrates
and courts to inform the indigent accused about his right to get free legal aid.
In Suk Das v. Union Territory of Arunachal Pradesh13, wherein it has been categorically laid
down that this constitutional right cannot be denied if the accused failed to apply for it. It
is now clear that unless refused, failure to provide free legal-aid co an indigent accused
would vitiate the trial, entailing setting aside of the conviction and sentence.

12
AIR 1981 SCC 627
13
AIR 1986 (2) SCC 401
ANALYSIS
Both Code of Criminal Procedure as well as the Juvenile Justice Act operates on the Presumption
of Innocence.

The fundamental principles on with Juvenile justice Act runs involves certain principles. With
every principle there are implied assumptions attached with respect of juveniles. I have tried to
theories such implied principles.

● Principle of worth and Dignity- all human should be treated with equitable dignity.
● Participation principles- It provides the right to the juvenile to be a part of all the
proceedings and to express him/herself. Further the views of the child has to be taken in
recognition.
● Best interest principles- all the decision with regard to the child must by dictated by his
prime interest and course of action by the authorities involved will be taken with the
aforesaid view.
● Safety principles- while the child is in contact of the authorities concerned like care and
protection unit in case of child, he/she shall not be subject to any maltreatment harm or
abuse.
● Positive measures- resources should be allocated so as to promote enabling and inclusive
environment, with a view to reduce vulnerabilities of the child.
● Principles of confidentiality principles- no information regarding the child concerned
would be made public, all along the judicial proceedings.
● Institutionalizing of the child- the child will be institutionalized where on the face of it is
obvious that no other recourse can be taken.
● Principle of restoration- every child within the framework of the juvenile law must have
the right to get back to the family of his own at early as possible and he/she should be
placed in the pre-existing social and cultural condition that he/she was in, prior to
entering under the scope of this act. The exception is that if that restoration will lead to
his/her detriment then that repatriation should not be avoided.
● New start principles- apart from the special conditions, all the prior records of the child
shall be destroyed, as has been recorded in the Juvenile Justice System.
Assumption of immaturity- One sociological critique of any legal system is that it does not take
into consideration various sociological factors and studies. The assumption of immaturity is
considered to be inherently prerogative to the child only. It is worth stating that scientific
research has shown that immaturity is not just and natural phenomenon which ceases to exist
with time, but it is disease, so it is immaterial what a person’s age is, he/she can still be
immature.14 But since the CrPC does take in to consideration only the age factor, a similar
conviction to a person might be given to two persons with different mental ability of
understanding the nature of the act committed.

Assumption of inability to understand the consequence of the act done- A recent report of
National Crime Records Bureau has highlighted a very significant feature. On demographic
particulars of the total convicts in India the report says that out of total of Out of 1,34,168
convicted inmates, majority of inmates are either illiterate (36,406) or educated upto 10 th
standard.15 This is indicative of the fact that illiteracy has a seminal influence over the conviction
rate, not in the sense that illiterate people are more prone to commit the crime but because of
their ignorance of the law in relation to various crimes. It is to say that illiteracy has by and large
the same effect on ability to understand the consequence of an action as that of juvenile age.

Grey area dilemma- Juveniles has certain characteristics which may lead to juvenile delinquency
among them for example tendency to be motivated easily, non-resistance towards the influence
of socio-cultural condition and peer group. But these characteristics are not just limited to
juveniles. Once a juvenile becomes an adult it does not changes the physiological and
psychological condition suddenly. In this grey area it is difficult to determine the guilt of the
suddenly majored juvenile. However Juvenile Justice Act 2015 provides for the “adult-like
treatment” of the juvenile between age of 16-18, but it does not provide for, how just got
majored juveniles be treated if they have not attained the mental maturity.16

14
Immaturity Is Now Officially a Disease, Psychology Today (2018),
https://www.psychologytoday.com/intl/blog/matter-personality/201108/immaturity-is-now-officially-disease (last
visited Aug 5, 2018).
15
Ncrb.gov.in (2018), http://ncrb.gov.in/statpublications/psi/Prison2015/Full/PSI-2015-%2018-11-2016.pdf (last
visited Aug 5, 2018).
16
Section (1)(i), Juvenile Justice Act, 2015
After trial conditions- It is assumed that once trial is over the experiences through which the
juveniles go may be detrimental if the same he/she is not placed the same socio cultural
condition. That is why the inclination of the Children’s Court is to make institutionalization a
matter of last resort. But one major fact is undermined that stringent procedures in relation to
adult may lead to higher conviction rates, which may lead to detriment effect on the life of adults
as well. Report of National Crime Record Bureau substantiate this fact. According to NCRB
report the total number of the recidivist crime among adults is much higher than among the
juveniles. On one hand in case of juveniles it is 5.2%, while on the other hand the percentage of
the adult recidivist is 6.4.17 If we compare the volume of the recidivist conviction, difference
between the adults and the juveniles is considerably high. It indicates that more the rate of
conviction, more is the chances of recidivism.

17
Ncrb.gov.in (2018), http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Crime%20Statistics%20-%202016.pdf
(last visited Aug 5, 2018).
CONCLUSION
● What I propose is the creation of additional categories of people who does not have the
means to defend themselves probably because of their sociological, economic or
psychological condition. However both the Juvenile Justice Act and Criminal Procedure
Code dictates the procedure to be followed for the apprehension, detention and
punishment/acquittal of persons alleged to have committed the crime but the objective of
both differs. On one hand, the nature of Criminal Procedure Code is retributive that is to
satisfy the blood thirst of the victims. Whereas the Juvenile Justice Act aims at
reformative procedures. The argument given to justify the Juvenile Justice Act and its
provision for lenient treatment of juvenile is that juveniles are national assets and since a
long span of remaining life is expected with respect to juvenile, he has to be given leeway
in comparison to adult as more strict procedure would have a detrimental effect on the
juvenile. But it has to be understood that so is the case with adults. Reformative
procedures should have to be more strictly adhered to in case of adults. The Criminal
Justice System has side-lined other dynamics apart from the age that has to be considered
while going through to the procedures. Age in itself is not a threshold to determine
whether consciousness of consequence or ability to understand the nature of the act is
present there or not. However Indian Penal Code tries to classify accused on factors like
involuntary intoxication, sudden and grave provocation. But these resort to leniency in
punishment are all after trial. It has to be understood that there are pre-trial repercussions
on the life of the accused. Not all the accused have the same mental capacity to
understand the nature of charges they are facing and to understand the consequences of
their denial or acceptance of a particular fact during trial and enquiry. But my point is not
to generalise the whole Criminal Procedure Code and to apply the lenient treatment to all
the adults. But my proposition is to add certain category of the people who are more
likely to suffer the stringent procedure Criminal Procedure Code. Not only that there is an
exigent need to reinforce and promote the sensitization programme for authorities
concerned in a trial, before trial and after trial. Until and unless these categorical
classification and corresponding treatment of accused is not recognized, ends of justice
cannot be met.