Saturday, 1 July 2017

THE WITNESS STAND - LITIGATION CAPSULE #1

The Ahlmad and Naib Court – Unsung Heroes of our Judicial System

If you have interned in the Courts at New Delhi, you would have invariably heard about these persons, but not many people know about their roles in the system. Today’s post is about the Ahlmad and the Naib Court, two of the most important posts in the Indian judicial system, without whom the Court system would crumble and fall apart.

No judge can work in isolation, and there is usually a group of people who help him with respect to his paper work and other details. These people are called readers, stenographers, clerks, typists etc. The job description and duties vary from state to state, and can sometimes overlap as well. The title Ahlmad is used to refer to an assistant of the Court. It is predominantly used in the Courts of New Delhi, Punjab and Haryana.  In Delhi, the Ahlmad’s room is located right next to each Courtroom. It is denoted with the letter A. For example, if the Courtroom is numbered at 23, the Ahlmad’s room would customarily be called “23-A”.

The Ahlmad has all the information and details about not just individual cases, but also about how the Court system as a whole functions and he can be of immense help. His duties broadly fall under the category of an“Office Assistant. Every morning, it is the Ahlmad who prepares the cause list for the day, coordinates with the stenographer/reader, and ensures that all the daily Orders have been printed and signed by the Hon’ble Judge. His job also includes liaising with the other Court rooms to check if the Judge requires any further information from a different Courtroom. (This can happen when matters are transferred from one Judge’s Courtroom to another.) Besides being a public information officer, he is also responsible for making proper entries about each case, including noting down the Goshwara numbers in the proper Court Registers.

What is a Goshwara number?
Goshwara is an Urdu word which whentranslated in English denotes a‘secluded place’. In the legal world, it refers to a room where the decided/dismissed/disposed of case files sit. As soon as a final Order/Judgement has been passed in a case, it is assigned a Goshwara number and the concerned Court file is transferred to the Goshwara room.

Now coming back to the Ahlmad, his duties vary from State to State. You can see an example here

Needless to say, the Ahlmad performs extremely essential functions in the judicial system. We seldom see or hear of them despite their importance. The next time you walk past an Ahlmad’s room, you will realise that the person working there is an irreplaceable piece of the Indian judicial system.

Another Court officer who seems to be hustling in and out of criminal courtrooms is the Naib Court. He is a police officer who is in-charge of a designated Police Station and is appointed for a specific Court Room. This Court officer will have any/all details pertaining to the First Information Report (“FIR”) concerned and will also know about the status of the cases if you give him/her the particulars such as the FIR number, etc. 

How does the criminal court system work in Delhi?
The criminal Courtrooms are each assigned a police station or two. In other words, the Courtrooms on the criminal side of the Delhi High Court or the District Courts are divided according to territorial jurisdiction. For example, FIRs lodged at Mehrauli Police Station would be assigned to one Courtroom at Saket Courts while FIRs lodged in Vasant Vihar perhaps, would be assigned to Courtrooms in the Patiala House Courts. The Judges assigned to each of these Courtrooms will handle all the criminal matters that arise from these districts.

In short, if you have just started working at the Criminal Courts and do not know who to approach and want to find out more about a case you have just been assigned, approach the Naib Court of the concerned Police Station where your FIR has been lodged and ask them about the FIR/case concerned. You will invariably get your answer. 

Sunday, 12 March 2017

Executive Order 2.0 

Comes With More Features but it is Still the Same Device At Heart 

Part One 

President Trump learnt it the hard way that his actions will be reviewable by the judiciary. Since his first immigration ban had a troubled implementation owing to little or no information from the Government to the airport and immigration authorities, thousands of immigrants were stranded at airports and some of them were not permitted to leave their home countries.  The fanfare surrounding the first order was conspicuously absent in the second. The President did not sign this order  amidst cameras clicking in the White House. It was signed in private and he sent three of his aides - Secretary of State Rex Tillerson, Department of Homeland Security (DHS) Secretary John Kelly, and Attorney General Jeff Sessions to address a limited pool of reporters and categorically refused to answer questions after presenting it. The new executive order that the Trump administration has passed on March 6, 2017 seems to have a more practical implementation policy and a more subdued immigration policy that seems restrictive and narrow when you view it for the first time, however, the more you examine it, the more you realize that it is a more polished version of the first order that is the same in substance – to restrict Muslims from entering USA.

https://static.independent.co.uk


However, the question we  are asking at The Witness Stand is – Can Trump’s second executive order stand the test of the judiciary?

The media seems to think so, with some articles calling it ‘court proof’.  So let us analyze Trump’s second Executive Order (Executive Order 2.0) in light of the United States Court of Appeals Ninth District Court’s Judgment.

Let us tell you why the Trump government came up with the Executive Order 2.0.

1. On 9 February 2017, the State of Washington filed a suit in the United States District Court for the Western District of Washington challenging certain aspects of the Executive Order. The State of Minnesota also joined the suit against the Government. The judge of the district court issued a Temporary Restraining Order against the Executive Order, thus freezing it.
The Government then moved to the Federal Court praying for freezing the ban on Muslims, thus effectively ensuring the ban does not have effect. Here is a brief history of the first order:

2. On January 27, 2017, the President issued Executive Order 13769[2], “Protecting the Nation From Foreign Terrorist Entry Into the United States”.

     3. It is important to remember that while a direct ban on religion is forbidden, a ban on allowing people from certain countries to enter is not forbidden, and this is exactly what the Trump administration did.  Citing the terrorist attacks of September 11, 2001, and stating that “numerous foreign-born individuals have been convicted or implicated in terrorism related crimes” since 2001, the Executive Order declares that “the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.”

    4.  The executive order prevented people from the following countries to enter the USA for a period of 90 days- Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. It then suspended the USA Refugee Admission Program for a period of 120 days. The executive order indefinitely suspended the entry of all refugees from Syria (the 120 days time period was not applicable to them). In all these cases, Secretaries of State and Homeland Security could make case by case exceptions when it would be in the national interest and when the person is a religious minority in his country of nationality facing religious persecution.

     5. This order caused wide spread confusion and airports were filled with people who had just arrived from these nations, who were denied the right of entry or detained in the airports. Thousands of visas were cancelled and hundreds of passengers were stranded.

     6. The two states of Washington and Minnesota moved to a lower district court to set aside this order on the grounds that it is unconstitutional and violated American federal law.

     Arguments 

    The States alleged that the Executive Order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the States’ economy and public universities in violation of the First and Fifth Amendment, the Immigration and Nationality Act, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. They also alleged that the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a “Muslim ban” as the President had stated during his presidential campaign that he would do, if elected.

     Court's Decision 

·         The district court held that the move was unconstitutional and banned the Executive Order from having effect in the form of a temporary restraining order (“TRO”).

·         The United States Government immediately moved to the United States Court of Appeals for the Ninth circuit (The Federal Court) for a stay of the lower court’s order.

The Federal Court refused to stay the temporary restraining order as they believed that the district court’s decision was valid and that the ban was unconstitutional and violated American federal law.

Image Credits - http://c3.nrostatic.com


So, the Trump administration has come up with Executive Order 2.0 because they understand that fighting this battle in court will be time intensive and their victory cannot be assured. There are a few differences[3] between the two Orders and some experts feel that Executive Order 2.0 is a better drafted effort as one of the grounds on which the first Executive Order had been stayed was the lack of a due process clause; though the substance of the Executive Order 2.0 seems to restrict Muslims from entering the USA. [4] Donald Trump has not been subtle with his intentions right from his campaign and he is carrying them out as the President now. Further, Executive Order 2.0 exempts the nation of Iraq from the list as many Iraqis had assisted the United States Government in the war against terror, acting as translators and aiding the USA military and could not go back to their home country where they may be viewed as traitors and killed by the local militia. The ban on Iraqis was heavily cited by opponents of the first ban as a measure of how heartless and cruel the first executive order was, and in order to placate the public, Executive Order 2.0 has removed Iraq from the list.

Imagre Credits - twitter.com

We at the Witness Stand examine three controversial aspects of the ban and compare it to the provisions in the first Order that the American Courts over-ruled.  

1.       Judiciary vs. Executive

On March 6  2017, Mr. Trump via Executive Order 2.0 clarified in Section 1 (i) of the Executive Order[6]  that “in light of the Ninth Circuit's observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.”[5]


Some things to remember – The Ninth Circuit happens to be the Federal Court the Government appealed to after the District Court issued a Temporary Restraining Order against the first Executive order.

One of the most controversial arguments raised by the Government in this case was that the President’s powers to pass any kind of Executive Order to suspend the admission of any class of aliens was judicially un-reviewable. The Court however, promptly shot this down.

A Brief Analysis of the Ninth Circuit Court’s Ruling with Respect to the Un-reviewability Claims

The Government argued that if the Court was to rule on any Presidential Executive Order, it would be a flagrant violation of the separation of powers principle. The Court was rather shocked by this argument and remarked that there was no precedent to support this claim of alleged un-reviewability, and that it ran contrary to the fundamental structure of the American constitutional democracy.[7]

In fact, the Court went a step further and gave the example of the landmark judgment in American constitutional law and international human rights law - Boumediene v. Bush[8], wherein the Congress had passed a statute that removed the right of habeas corpus for aliens who could be potential terrorists. In that case, it was categorically held that the ‘political branches’ lacked ‘the power to switch the Constitution on or off at will'’. On that note, the Court rejected the Government's extraordinary argument and stated that ‘while American jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor the Federal Court has ever held that courts lack the authority to review executive action in the arena of immigration for compliance with the Constitution.’[9]

The Government then cited another case law - Kleindienst v. Mandel[10] (“The Mandel case”) where the Court had held that when the Executive exercises immigration authority ‘on the basis of a facially legitimate and bona fide reason’, the courts will not examine the reason behind the exercise of that executive discretion. The Government wanted to use this case to prove that the Court did not have jurisdiction to adjudicate on a Presidential Executive Order with respect to immigration because the authority had been exercised by the Government on a facially legitimate reason. 

However, the Court did not accept this as the Government had omitted certain important passages from the case and focused only on the above extract. The Court went on to elucidate that the Mandel case dealt with an individual’s visa application based on an existing statutory law and distinguished it from the instant case which is about the President’s promulgation of sweeping immigration policy.

While dealing with the question of separation of powers, the ratio was that although Courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.[11]

Back to the Executive Order 2.o
Mr. Trump has indeed used the Court’s observation that political branches are in a better place to determine the scope of a travel ban to his advantage. While the Court did make that statement, it should not be read and interpreted in the absence of its views concerning the reviewability of the Presidential Executive Order.  

While the Trump Government has understandably elaborated more about the threats posed by the six countries in the Executive Order 2.0, these threats must be legitimate. The Federal Court cited the case of United States v. Robel [12] wherein it was held that – “National defense cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties which makes the defense of the Nation worthwhile.”

So, the Trump government better be aware that even the Executive Order 2.0 can be subject to judicial review. The next aspect that needs to be examined is whether the Executive Order 2.0 covers the lacuna present in the first. Watch out for that and much more at The Witness Stand!




[1] https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states
[2] Executive Order, 82 Fed. Reg. 8,977
[4] http://aclum.org/wp-content/uploads/2017/03/2017_1_27-Muslim-Ban-EO-Word-VS.-2017_3_06-Muslim-Ban-EO.pdf
[7] Pg. 14 of the Judgment
[8] Boumediene v. Bush, 553 U.S. 723, 765 (2008)
[9]  Pg. 14 of the Judgment
[10] 408 U.S. 753 (1972)
[11] Pg. 14
[12] 389 U.S. 258, 264 (1967) 

Wednesday, 7 December 2016

One Indian Lawyer - Part One

Hello everybody. The next few posts will be about how a lawyer deals with complex criminal matters such as rape, right from the beginning when the victim walks into the lawyer's Chamber.

However, what is different about these posts is that they will be in the form of a story. 

Meet A, a lawyer working in the District Courts in Saket, New Delhi. A woman walks into her Chamber one day and tells A that she has been raped. Follow A's journey as she navigates through the corridors of the District Court and read about how a criminal trial progresses in the real world. 

Warning - The post contains explicit content and references to sexual assault/ abuse/ rape. It may act as a trigger so please proceed reading with caution and at your own risk. 

Image Credits - http://images.mapsofindia.com/my-india/2014/12/rape-laws-in-india.jpg

It started off as any ordinary day would in A’s office. She woke up early, cooked food for her son and herself, sent him to school and left for work. As she pulled out her white kurta, she realized the maid had washed it with the blue bed sheets and instead of white, it was a pale blue. She made a mental note to yell at the maid that weekend and pulled out a shirt instead, hurriedly proceeding with the rest of the chores before she hired an auto to the Saket District Court premises. 

She exchanged pleasantries with several other lawyers before she finally made her way to her Chamber on the fourth floor, and by the time she had settled inside and gone through the files for that day, it was almost 9:55 am. She left the Chamber and hurried towards the Court. She could feel prying eyes glaring at her as she walked up to the Courtroom, but as she had done for the past five years, she ignored that feeling of being stared at and instead focused on her day ahead. 

She had two matters listed for the day. In one of them, she had to seek instructions from a client who had managed to find time to relentlessly stalk women on the web, yet somehow, he did not have twenty seconds to instruct his advocate about the case. She would seek a date for that and bill his rich father, partly for her effort but mostly for dealing with his son. Her second matter was related to eviction of a tenant who had become particularly attached to the place and also particularly friendly with the local goons. Her client was a thin wiry man who had found no other alternative after months of pleading with the tenant had yielded no result and in the recent few months, no rent as well. It was a summary proceeding and the opposing counsel had filed a leave to defend, but as she was thinking about the possible outcomes of that day while entering the Courtroom, she saw that the Judge was on leave and the Reader was giving out dates for the next hearing. 

Hoping she was just in time, “Akhil v Ram, June 5th” the Reader called out. 

“Please give me another date in July” she shouted from the back, pushing her way to the front. 

He was frowning, ‘Not in a good mood’, she thought. “It is my son’s summer vacation” she told him in a low voice. He grumbled and then said “July 6th”. “Thank you!” she told him, visibly relieved. The opposing counsel was nowhere to be seen. 

She walked back to her Chamber in good spirits. 

As she came closer, she noticed a woman standing outside. A few steps away from the door, it became clear that she was waiting for her. 

“Can I help you?” asked A. 

“Yes” the woman whispered. 

A glanced at her outfit, a thin cotton kurta, a little faded but very clean and a shawl which was frayed at the edges, owing to years of wearing it. 

She unlocked the Chamber and showed her inside. The woman sat, clasped her wrists and A waited for her to get comfortable. She had seen these things before, and she was pretty sure what it was.  

The woman hesitated at first, and then said, in a low voice. “I need your help. C’s parents told me you helped their daughter immensely. I was raped.” 

A reached to the drawer and pulled out a legal pad. There was a time for emotion and there was a time to be analytical and precise, while she hoped that this frail woman could answer the sensitive questions that she was about to ask her, given that what she underwent, allegedly underwent, the lawyer corrected the woman in her, is the most traumatic experience any human being could ever go through. 

“When did this happen?” she asked her. 

“One week ago.” 

“When was the FIR filed?” asked A. 

“One day later.” 

 “Do you have all the details of the FIR, such as the lodging no., name of the police station? Actually, any possible information that could help me take out a copy of the FIR”, insisted A.  

The woman quickly pulled out a typed sheet of paper, well adjusted beneath her shawl and handed it over to A. 

A heaved a sigh of relief as she bent forward to take it. It looked like a typed copy of the complaint, barely legible though, as handed over to the woman by the police. A had a cursory glance at it and jotted down all necessary details including the FIR number, concerned police station, specific sections of the IPC that had been invoked etc. 

“Did you undergo a medical examination?” asked A. 

“Yes, the police chaps took me to AIIMS for my MLC. The doctor there examined me and filed his report.” 

A saw her lips quiver. 

“What happened there?” she enquired gently. 

“The doctor asked me to spread my legs and I don’t know what happened next. I had closed my eyes. I felt so ashamed. They then sent me to the bathroom to get them a sample of my urine. I have never been so mortified. They all knew something had happened, and they were all trying to help me, but I didn’t feel like I wanted to go through with it. The police guy (read Investigating Officer) accompanying me told me it was important, and there were a lot of other tests which I must undertake.” 

‘Vaginal swabs and urine cultures’ thought A and made a note of it, so she could check the contents of the charge sheet which was now a part of the court record.  

“What happened next?” enquired A. 

“The police guys then asked me to give them all my clothes which I was wearing when the ra… when it happened. I was going to throw it away in disgust, but luckily, I hadn’t. They were at home and I gave it to them.” 

“What did you give them?” asked A. 

“My blue saree, a yellow blouse and a yellow petticoat, all unwashed.” 

“And?” asked A, trying to keep the impatience from her voice and still trying to be as gentle as possible. 

“A black bra and white panties.” she said in a low voice with her eyes downcast. 

A wrote blue saree, yellow blouse, yellow petticoat, black bra and white panties on the pad, she would have to check the seizure memo and ensure that the police had mentioned all the garments with a detailed description of each in it. 

“The police officer then told me that I had to make a statement before some judge next.” 
“Was there anybody with you through the whole thing?” asked A. 

“No.” said the woman “My family did not want anything to do with me after I married my husband because he belonged to a different caste, and he died a few years back.” 

A saw that this woman was truly alone and a stab of pity went through her, only to be replaced with professional concern about confirming the contents of the Section 164 statement that the police had filed, as an integral part of the charge sheet.  

End of Part One 

Peering out from behind The Witness Stand: 

Advocate Shriya Maini (Content Creator) is a young, bright, scholarly, advocate turned entrepreneur currently practicing at the Supreme Court of India, the Delhi High Court and the district courts at New Delhi.  She specializes in dispute resolution and as an unabashed feminist, particularly enjoys criminal litigation. She is a graduate of Gujarat National Law University, India who then pursued the Bachelor of Civil Laws programme on a full scholarship (Dr. Mrs Ambruti Salve Scholarship) sponsored by Dr. Harish Salve, Senior Advocate from the University of Oxford, specializing in International Crime. As a recipient of the Oxford Global Justice Award 2015 for Public International Law, she assisted the President of the International Residual Mechanism for the Criminal Tribunals (MICT) at The Hague, Netherlands. She is now back in the Courts of Delhi, India to pursue her passion in litigation.


Ms. Chethana Venkataraghavan (Editor) is currently a fifth year law student at Gujarat National Law University. She was part of the team that won Surana and Surana Corporate Law Moot Court Competition, 2013 and the Philip.C.Jessup International Moot Court Competition, India Rounds, 2016. She was adjudged the Best Speaker of the Finals at the Manfred Lachs Space Law Moot Court Competition, Asia Pacific Rounds, 2014. She is passionate about blogging and is currently involved in an initiative – Examofsmile - that aims to reduce levels of stress and depression among law students across the country.   



Monday, 21 November 2016

Bails and Anticipatory Bails - Part II

Hello everyone. 

Though this should have been our second post, we were sure that you would be more concerned about your 500 and 1000 rupee notes (The lawyers, we mean. As for the sudents reading this, don't worry, we understand you are more concerned about the lack of money in your life, rather than an excess of it. But it is still worth a read to know about the legislations behind the move that has shocked the entire sub-continent).

We take off from where we left in the last post on Bails and Anticipatory Bails. Now that we know about Bails, Anticipatory Bails and Interim Bails, let us examine the substantive provisions behind granting of bail. 



What are the grounds on which bail is granted?
Bail is not granted to just anyone accused of a crime. While deciding bail applications, the Courts attempt to make an important determination between individual liberty of the accused in comparison to public safety, and hence, the Courts' analysis of the same cannot be merely on subjective grounds. 


Image Credits - Hilariousmemes.com

While deciding the bail applications of the accused involved in the 2G Spectrum Scam case, Justice Shali, Former Judge of the Delhi High Court observed - "Bail is the rule and denial thereof is the exception. For the purpose of denial of the bail there must be extraordinary circumstances necessarily meaning bail ought not to be denied to an accused only on the ground of general sentiments of the community as it impairs the right to liberty guaranteed to an accused. There is a presumption of innocence in favour of the accused till he is found to be guilty.” 

The Courts usually take into consideration the following grounds for granting bail and anticipatory bail (Please note, this is not an exhaustive list). Bail is granted on a case by case basis, analyzing an individual’s past conduct, his reputation in the society and other factors that are discussed in this section. 
     ·     Gravity of the offence
The gravity or seriousness of the offence is directly linked to the chances of the accused suceeding in obtaining bail/anticipatory bail. 

Explanation (“ɛ”) – In the event the accused is arrested or s/he suspects that s/he would be arrested on charges of a grave offence such as dowry death or sexual harassment/rape, under normal circumstances, it would be very difficult for the person to obtain bail/anticipatory bail.

·    Severity of punishment
The severity of the punishment can be inferred from the number of months or years of imprisonment prescribed in the IPC for that offence. The more severe the punishment, the more difficult it is for the accused to obtain bail/anticipatory bail. 

ɛ - The punishment for murder is more severe than the punishment for petty theft. In case of petty theft of say, a mobile phone, if the mobile has been recovered already, the accused most likely to obtain bail/ anticipatory bail as opposed to a person accused of murder.   

    ·    Past conduct
   Prior to granting bail/anticipatory bail, the Courts usually direct the Investigating Officer to verify the antecedents of the accused. If the accused is a first time offender, it is marginally easier for her/him to obtain bail/ anticipatory bail with respect to that offence.

   ·    Whether the co-accused have been granted bail with respect to the same offence
This is an important condition with respect to bail, which is often overlooked while learning the theoretical aspects of criminal law. Lawyers use this in practice, and it is essential to highlight whether the co-accused have been granted bail or not.

 ɛ - Of the five people who are involved in an armed robbery, if four of the co-accused have been granted bail/ anticipatory bail, the fifth accused would, under normal circumstances, be granted bail unless the FIR has certain glaring accusations made specifically against the fifth acused. However, if the fifth accused has a past criminal record of carrying out armed robberies, it would be marginally difficult for him to obtain bail since the Courts would consider his past antecedents while deciding his bail application. 

   ·  Women, sick/ infirm and children (below the age of 16 years) 
Under Section 437, CrPC, women, sick/infirm nd children below the age of 16 years would be granted bail in almost all circumstances, unless there are extraordinary circumstances hinting against this


 ɛ While deciding the famous DMK Minister Karunanidhi's daughter Kanimozhi's bail application with respect to the 2G Spectrum Scam case, Kanimozhi's lawyers argued that Indian law (Section 437 of the Criminal Procedure Code) allows bail for those 'under the age of 16, or (if the prisoner) is a woman, or is sick, or infirm'. In fact, the court gave Kanimozhi the benefit of being a woman and mother and Justice Shali remarked that she deserves bail, being a woman and a mother in consonance with Section 437. 

·  When the Police Investigation is complete and the chargesheet has been filed in the matter. 

Note - Once the police completes the investigation, the Investigating Officer (IO) submits a chargesheet in Court. A time of 90 days is granted to the IO to submit the chargesheet.

Once the investigation is complete and the chargesheet has been filed by the IO in Court, it shows that the custody of the accused is not required any longer for the purposes of investigation. Hence, no fruitful purpose would be served by sending the accused to jail and thus, s/he can be granted bail on this ground alone. 

 ɛ For example, in the case of former TERI chief RK Pachauri (the accused in a sexual harassment case), he was granted bail and allowed to travel abroad by the Learned Metropolitan Magistrate, Saket Courts (New Delhi) since the investigation was complete and the chargesheet had already been filed by the IO. Consequently, the accused was admitted to bail. The Court held - The accused R K Pachauri is admitted to bail on furnishing a personal bond in the sum of Rs 50,000 with one surety of a like amount to the satisfaction of this court."

While talking about bails and juvenilles it is important to note that children below the age of 18 years are governed by the Juvenile Justice Act, 20oo. This Act establishes Juvenile Justice Boards (JJB) that are analogus to the Magistrate Courts for adults. JJB tries the juvenille/ child offender. 

An interesting point -  CrPC mandates that children below the age of 16 years would be granted bail under Section 437 (like women and infirm persons). However, under the JJ Act, a juvenile is defined under Section 2(12) as someone who has not yet completed 18 years of age. Hence, even if a person is 17 years old, the accused would appear before the JJ Board, though technically, on a mere reading of the CrPC, he would come under the jurisdiction of the Magistrate's Court. 

In the event a Juvenile moves a bail application before the Magistrate due to error or administrative over-sight as to his correct age, the Magistrate usually directs the IO to verify the age of the accused/juvenile offender and accordingly transfers the matter to JJB, should the juvenile be below 18 years of age. 

How does the IO verify the age of the accused?

The IO will either obtain a copy of the birth certificate of the juvenile offender and present the same with the original before the Hon'ble Court. The other option for the IO is to verify from the school record (including his last school leaving certificate) of the juvenile/ accused as to his correct age. 

However, an anticipatory bail application for the juvenile offender must be preferred before the Sessions Court and not the JJB. This is because the JJB's powers are analogus to that of a Magistrate's Court and an anticipatory bail application would have to consequently only be moved in the Sessions Court. 

What is the difference between quashing of an FIR and obtaining anticipatory bail?

If the FIR lodged against the accused is completely frivalous and outrightly untrue, the accused can move an application before the concerned High Court (note - only the High Court and the Supreme Court have the power to quash an FIR) for getting the FIR quashed under Section 482 of the CrPC. However, in an application for Anticipatory Bail, the accused tells the court that though the investigation is at an initial stage, the prospective accused need not be arrested as s/he is willing to cooperate with the investigation.

A good lawyer would not move an application for quashing of the FIR without filing an application for anticipatory bail since quashing of an FIR is not equal to being granted interim protection or anticipatory bail. This means that the police has complete powers to arrest the accused unless the court directs them not to do so, and the Court would only direct the police not to arrest the accused when an anticipatory bail or interim protection has been granted. This has nothing to do with the accused moving an application for quashing of the FIR. 

How does one identify the right fora to move a bail application?

Procedural law with respect to identifying the right forum is a little tricky to comprehend, as the law works a differently in practice. For example, while both the HC and Sessions Court have concurrent jurisdiction to hear anticipatory bail applications, the HC in practice would usually dismiss the annticipatory bail application if the accused has not approached the Sessions Court first.

(for details on the exact fora, read this)

Are there some basic conditions based on which anticipatory bail/bail is granted?

Yes, there are some conditions that are common to all bail and anticipatory bail applications being allowed, and only if the accused respects and follows these conditions will anticipatory bail/ bail be granted or interim bail be continued. The Courts can impose a plethora of different conditions prior to granting bail/ anticipatory bail since it is granted on a case to case basis.

·     The most important and fundamental condition with respect to bails is that the accused (or a person apprehending arrest, in the case of anticipatory bails) will join the investigation as and when the IO requires his assistance. The accused will be asked to assist the IO by disclosing all possible and true known facts to the incident and fully cooperate with the investigation.

·    A condition stating that the accused, if granted anticipatory bail/ bail would not flee from the wings of justice.

·    A warning that the accused  would not compel the prosecution witnesses to falsely testify or affect their testimony in any manner.

·     A condition stating that the accused cannot leave India
ɛ – The accused will be asked to surrender his or her passport and the Court would order the accused to not leave the country without the Court’s permission 

In the famous Salman Khan alleged hit and run case, Salman Khan applied for bail from the Bombay High Court and obtained the same, after a bond of Rs. 30,000/- had been paid. One of the conditions for granting the bail was that Salman Khan had to surrender his passport and could only travel abroad with the Court's permission.

In the above mentioned R.K.Pachauri case, the learned Metropolitan Magistrate permitted the accused to leave the country for a conference and directed him to furnish 2 local sureties of Rs. 2,00,000/- each and to inform the Indian embassies in both the countries about his arrival. The Court also directed the accused to file a copy of his travel tickets along with photocopies of all pages of his passport, all valid visas and itinerary. Finally, the Court directed the accused to intimate the court and the IO upon his return. 

·     A condition that the accused would not change his/ her place of residence since it would be difficult for the IO to keep track of the accused. 

The accused may be granted bail on certain other conditions including that: 


·     The accused may be electronically tagged and the accused may not be permitted to enter a specific geographic area.

·     The accused would be asked to not contact specific persons

ɛ – For example, prior to the prosecution evidence being closed in a sexual harassment/ rape matter, the accused can be granted Anticipatory bail with the condition that he is not allowed to contact specific persons, including the prosecutrix and other prosecution witnesses. In rape/ sexual harassment matters, especially Protection of Children from Sexual Offences, 2012 (POSCO), the accused is usually not granted bail unless the prosecution evidence is complete, post which, he may be granted bail with the condition that he is explicitly prohibited from contacting the prosecutrix in any manner.   

Another interesting condition imposed while granting bail is a curfew on the accused’s movement by placing an embargo on him or her to stay inside his/her house for a few hours each day.
ɛ – Such a curfew condition is usually seen in cases of physical violence or sexual assault involving family members where the living condition of both the prosecutrix and the accused are such that they may have to face each other every day, much against their wishes. 

The authors of this post don't believe in information overload, and as a matter of fact, being rather lazy students ourselves, we are strictly against it. Therefore, this post ends here and we will wait for you to absorb this information. 

In the video, Shriya briefly deals with drafting an anticipatory bail application, which we plan to take up at length in our next post. 

Watch out for our next post on how to draft a Bail and an Anticipatory  Bail Application. We will be attaching a sample of a Bail/Anticipatory Bail application along with the post and don't worry, it will be a readable document where Ctr+C and Ctr+V works. We will also examine how a person can move for cancellation of Bail/Anticipatory Bail.


Peering out from behind The Witness Stand: 


Advocate Shriya Maini (Content Creator) is a young, bright, scholarly, advocate turned entrepreneur currently practicing at the Supreme Court of India, the Delhi High Court and the district courts at New Delhi.  She specializes in dispute resolution and as an unabashed feminist, particularly enjoys criminal litigation. She is a graduate of Gujarat National Law University, India who then pursued the Bachelor of Civil Laws programme on a full scholarship (Dr. Mrs Ambruti Salve Scholarship) sponsored by Dr. Harish Salve, Senior Advocate from the University of Oxford, specializing in International Crime. As a recipient of the Oxford Global Justice Award 2015 for Public International Law, she assisted the President of the International Residual Mechanism for the Criminal Tribunals (MICT) at The Hague, Netherlands. She is now back in the Courts of Delhi, India to pursue her passion in litigation.


Ms. Chethana Venkataraghavan (Editor) is currently a fifth year law student at Gujarat National Law University. She was part of the team that won Surana and Surana Corporate Law Moot Court Competition, 2013 and the Philip.C.Jessup International Moot Court Competition, India Rounds, 2016. She was adjudged the Best Speaker of the Finals at the Manfred Lachs Space Law Moot Court Competition, Asia Pacific Rounds, 2014. She is passionate about blogging and is currently involved in an initiative – Examofsmile - that aims to reduce levels of stress and depression among law students across the country.