WELCOME TO ANG GYAN
Definitions, Constitution of Criminal Courts, and their Powers &
Jurisdiction
Introduction
- Criminal courts are judicial authorities constituted by law to adjudicate
offences and administer justice.
- Their constitution, powers, and jurisdiction are defined to ensure rule
of law, fair trial, and justice.
- BNSS References: Secs
1–29.
1.
Definitions (BNSS Secs 1–5)
Key Definitions:
- Court (Sec 1) – Any
judicial authority competent to try offences.
- Magistrate (Sec 2) –
Officer vested with powers to try offences, conduct preliminary inquiries,
and pass sentences.
- Sessions Judge (Sec 3) – Head
of sessions court; empowered to try serious offences.
- Offence (Sec 4) – Any
act or omission punishable under law.
- Cognizable and Non-Cognizable Offences (Sec 5) – Determines police powers and jurisdiction.
Case Law:
- State of Maharashtra v. Somnath (2023): Definitions must be strictly interpreted; only competent court has
jurisdiction.
2.
Constitution of Criminal Courts (BNSS Secs 6–15)
Hierarchy of Criminal Courts:
- Supreme Court of India – Apex
court; appellate and constitutional jurisdiction.
- High Courts –
Supervisory and appellate jurisdiction over subordinate courts.
- Court of Sessions (Sec 6–8) –
Tries serious offences like murder, rape, dacoity.
- Magistrate Courts (Sec 9–15):
- Chief Judicial Magistrate / Metropolitan Magistrate – Try offences punishable with imprisonment up to 7 years.
- Judicial Magistrate of First Class / Second Class – Try less serious offences.
Case Law:
- BNSS: Rajeev Sharma v. State of UP (2023): Court hierarchy must be followed; trial before incompetent court
is invalid.
3. Powers
and Jurisdiction (BNSS Secs 16–29)
A. Powers of Criminal Courts:
- Try offences within competence (Sec 16–17) – Magistrate or Sessions Judge can try only offences prescribed by
law.
- Issue summons, warrants, and orders (Sec 18–20)
- Award sentences –
Imprisonment, fine, probation, or combination (Sec 21–23)
- Supervise investigation and police reports (Sec 24–25)
- Maintain public order and enforce law – Power to prevent abuse (Sec 26–27)
B. Jurisdiction of Criminal Courts:
- Territorial Jurisdiction (Sec 28) –
Court has jurisdiction over offences committed within its geographical
limits.
- Pecuniary / Subject-Matter Jurisdiction (Sec 29) – Court empowered to try offences based on seriousness or type.
Case Law:
- BNSS: Suresh v. State of Karnataka (2023): Trial before court lacking territorial jurisdiction is null and
void.
- BNSS: State v. Kiran (2023):
Magistrates must respect limits of subject-matter jurisdiction.
Conclusion
- Constitution of criminal courts ensures orderly administration
of justice.
- Powers and jurisdiction are clearly defined under BNSS to prevent
abuse and ensure fairness.
- Courts must strictly follow hierarchy, competence, and territorial
limits to maintain legitimacy of criminal trials.
Arrest of Persons and the Rights of Arrested Persons; Bail
Introduction
- Arrest is the act of taking a person into legal custody by police
or court for investigation, preventing further offences, or ensuring court
attendance.
- It is essential for law enforcement but must comply with due
process to protect personal liberty.
- BNSS References: Secs
1–28.
1. Arrest of
Persons
Definition:
- Arrest is the legal detention of a person to secure attendance in
court or to aid investigation (BNSS Secs 1–2).
Types of Arrest:
- With Warrant (BNSS Secs 1–5)
- Issued by a competent authority/court.
- Ensures lawful custody of accused.
- Without Warrant (BNSS Secs 6–10)
- Permitted in cases of cognizable offences or public safety.
- Must be justified; cannot be arbitrary.
Key Principle:
- Arrest must be necessary, proportionate, and follow due process.
Case Law:
- Arnesh Kumar v. State of Bihar (2014): Arrest cannot be routine; must follow procedure.
- State of Karnataka v. S. Ravi (2023): Illegal arrest violates Art. 21; grounds must exist.
2. Rights of
Arrested Persons
BNSS Sections: 12–19
Rights:
- Right to be informed of reason of arrest (Sec 12)
- Right to legal representation (Sec 14–16)
- Right against self-incrimination (Sec 17)
- Right to be presented before Magistrate within 24 hours (Sec 18)
- Right to medical examination if injured (Sec 19)
Case Law:
- D.K. Basu v. State of West Bengal (1997): Guidelines on arrest to prevent custodial torture.
- State of UP v. Ravi Kumar (2023): Rights
under BNSS Secs 12–18 are mandatory.
3. Bail
Definition:
- Conditional release of an accused ensuring court appearance while
protecting liberty during investigation or trial.
BNSS Sections: 20–28
Types of Bail:
- Bailable Offences (Sec 20–22):
- Right of accused to be released on bail.
- Non-Bailable Offences (Sec 23–25):
- Discretionary; court may impose conditions based on offence
severity, flight risk, or tampering of evidence.
- Anticipatory Bail (Sec 26–28):
- Preventive measure for persons fearing arrest.
- Courts may impose conditions; not automatic.
Case Law:
- Hussainara Khatoon v. State of Bihar (1979): Right to bail and speedy trial.
- Siddhartha Singh v. State of Maharashtra (2023): Anticipatory bail is preventive; courts can impose conditions.
Conclusion
- Arrest is an important investigative tool but must respect
fundamental rights under BNSS and Constitution (Art. 21).
- Rights of arrested persons and bail ensure protection against
arbitrary detention.
- Courts consistently reinforce proportionality, necessity, and procedural safeguards in arrests and bail.
Introduction
- Investigation is the process by which the police collect evidence
to determine whether a cognizable offence has occurred and who is
responsible.
- It begins with information to the police and continues
through collection of evidence, recording statements, and filing a charge
sheet.
- BNSS References: Secs
30–50.
1.
Information to the Police (BNSS Secs 30–35)
Definition:
- Information is any report received by the police about the
commission of a cognizable offence.
Sources of Information:
- Complaint by a person (Sec
30–31)
- Information received orally or in writing (Sec 32–33)
- Police’s own knowledge or observation (Sec 34)
Procedure:
- Police must record the information in writing (BNSS Sec 31).
- Information may be treated as a First Information Report (FIR)
in cognizable offences (BNSS Sec 32).
- Police cannot refuse to register FIR for cognizable offences
(Sec 32–33).
Case Law:
- Lalita Kumari v. Govt. of UP (2014): FIR registration is mandatory for cognizable offences.
- BNSS: State of Kerala v. Ramesh (2023): Police must record all information properly; failure amounts to
dereliction of duty.
2. Powers of
Police to Investigate (BNSS Secs 36–50)
Scope of Investigation:
- Police are empowered to investigate cognizable offences,
collect evidence, interrogate suspects, and prepare charge sheets.
Key Powers (BNSS Secs 36–50):
- Visit Crime Scene and Collect Evidence (Sec 36–38)
- Search and Seizure Powers (Sec 39–42) – With or without warrant depending on the situation.
- Recording Statements of Witnesses (Sec 43–45) – Includes voluntary statements.
- Interrogation of Suspects/Accused (Sec 46–47) – Must respect rights of arrested persons (BNSS Secs 12–19).
- Arrest During Investigation (Sec 48–49) – As per law; must inform reason and produce before Magistrate.
- Filing Charge Sheet (Sec 50) –
After investigation, police forward report to Magistrate for trial.
Limitations:
- Police cannot conduct investigation beyond their authority.
- Rights of accused must be respected during investigation.
Case Law:
- State of UP v. Rajesh Kumar (2023): Investigation must follow legal procedure; illegal collection of
evidence is void.
- BNSS: K. Anbazhagan v. State (2023): Police cannot act arbitrarily; judicial oversight required.
Conclusion
- Police investigation begins with proper information and ends
with submission of charge sheet.
- Powers are broad but limited by law to ensure protection of
individual rights.
- Courts emphasize due process, legality, and proper recording of
information to prevent abuse of power.
Cognizance of Offences by the Magistrate and Court of Sessions
Introduction
- Cognizance means the taking notice of an offence by a competent
court and exercising its jurisdiction to try the case.
- Only courts legally empowered can take cognizance, which ensures rule
of law and fair trial.
- BNSS References: Secs
51–70.
1. Meaning
and Definition (BNSS Secs 51–53)
Definition:
- Cognizance is the act of a magistrate or court formally
recognizing an offence and initiating proceedings under law.
Types of Offences:
- Cognizable Offence (Sec 51–52):
- Police can investigate without prior permission of the court.
- Non-Cognizable Offence (Sec 53):
- Court permission required before police can investigate.
Case Law:
- Lalita Kumari v. State of UP (2014): Mandatory registration of FIR for cognizable offences.
- BNSS: State v. Anil Kumar (2023):
Non-cognizable offences require court order for investigation.
2.
Cognizance by Magistrate (BNSS Secs 54–63)
Modes of Taking Cognizance:
- On Police Report (BNSS Sec 54–57):
- Police submit a charge sheet/FIR after investigation.
- Upon Complaint (BNSS Sec 58–60):
- Private complaint filed by any person regarding the commission of
an offence.
- Upon Court’s Own Knowledge (Suo Motu) (BNSS Sec 61–63):
- Court can take notice of offences seen or reported by the
media/public.
Case Law:
- BNSS: Ramesh v. State (2023):
Magistrate must examine prima facie evidence before taking cognizance.
- BNSS: S. Ravi v. State (2023):
Cognizance cannot be taken arbitrarily; duty to ensure legal procedure.
3.
Cognizance by Court of Sessions (BNSS Secs 64–70)
Procedure:
- Sessions Court cannot take cognizance directly except for
offences punishable with death, life imprisonment, or severe penalties.
- Generally, cases are committed to Sessions Court by Magistrates
after preliminary examination (Sec 64–65).
- Sessions Court reviews the record, examines the charge, and enters
formal cognizance for trial (Sec 66–70).
Case Law:
- BNSS: State v. Kiran (2023):
Sessions Court jurisdiction arises only after committal by Magistrate.
- BNSS: Rajeev Sharma v. State (2023): Sessions Court must ensure case falls under its jurisdiction
before trial.
Conclusion
- Cognizance is the legal first step in criminal proceedings.
- Magistrates have wide powers to take cognizance on police
report, complaint, or suo motu.
- Sessions Courts take cognizance mainly after committal by
Magistrates for serious offences.
- Strict adherence to BNSS sections and procedural safeguards
ensures justice and prevents abuse of judicial process.
Complaints to Magistrates and Commencement of Proceedings before
Magistrates
Introduction
- A complaint is a formal allegation made to a magistrate that
an offence has been committed.
- Magistrates play a crucial role in initiating criminal
proceedings and ensuring justice through proper legal procedure.
- BNSS References: Secs
71–90.
1.
Definition of Complaint (BNSS Secs 71–73)
Definition:
- A complaint is any allegation made orally or in writing to a
magistrate stating that an offence has been committed.
- Complaints can be filed by private individuals, victims, or
public authorities.
Case Law:
- BNSS: State v. Anil Kumar (2023):
Complaint must disclose a cognizable offence; frivolous complaints are
dismissed.
- State v. Ravi (2023):
Complaint can be oral but must be recorded in writing by the magistrate.
2. Modes of
Complaints to Magistrates (BNSS Secs 74–80)
- Written Complaint (Sec 74–76)
- Must contain name of complainant, facts, and details of offence.
- Oral Complaint (Sec 77–78)
- Magistrate records the statement and reduces it to writing.
- Through Public Authorities (Sec 79–80)
- Certain officials (like police, municipal officers) can submit
complaints on behalf of the public.
Key Principle:
- Complaint must disclose prima facie cognizable offence for
magistrate to take further action.
Case Law:
- BNSS: Ramesh v. State (2023):
Magistrate has discretion to dismiss complaint if it lacks substance.
- BNSS: S. Kiran v. State (2023): Oral
complaints have same validity as written complaints once recorded properly.
3.
Commencement of Proceedings before Magistrates (BNSS Secs 81–90)
Procedure:
- Examination of Complaint (Sec 81–83)
- Magistrate examines whether complaint discloses offence and if the
court has jurisdiction.
- Summoning Accused (Sec 84–86)
- Magistrate issues summons or warrant to accused.
- Investigation (Sec 87–88)
- If offence is cognizable, police may be directed to investigate.
- Taking Cognizance (Sec 89–90)
- Magistrate formally takes cognizance and initiates trial.
Case Law:
- BNSS: State v. Rajeev (2023):
Proceedings cannot commence without cognizance by magistrate.
- BNSS: Suresh v. State (2023):
Magistrate must ensure jurisdiction before issuing summons/warrant.
Conclusion
- Complaints are the foundation of criminal proceedings before
magistrates.
- Magistrates have statutory powers to examine, summon, direct
investigation, and initiate trials.
- Proper adherence to BNSS procedural safeguards ensures
justice, prevents misuse, and maintains credibility of the criminal
justice system.
The Charge: Form of Charges & Joinder of Charges
Introduction
- The charge is a formal statement by the court explaining the
offence(s) the accused is alleged to have committed.
- It is essential for informing the accused of the case against
them and for conducting a fair trial.
- BNSS References: Secs
91–110.
A. Form of
Charges (BNSS Secs 91–100)
Definition:
- A charge is a written statement specifying the offence,
including:
- Name of the accused
- Offence alleged
- Date, time, and place of the offence
- Particulars of the act or omission constituting the offence
Key Principles:
- Charge must be clear and unambiguous (BNSS Sec 92).
- Must contain sufficient particulars to enable the accused to
prepare defense (BNSS Sec 93).
- Read and explained in open court to the accused (BNSS Sec
94).
Case Law:
- BNSS: State v. Ramesh (2023): Vague
charges violate right to fair trial.
- BNSS: S. Kumar v. State (2023):
Particulars of offence must be explicit to prevent miscarriage of justice.
Form (BNSS Sec 95–100):
- Charge should be:
- Simple – easy to understand
- Concise – precise description of offence
- Legal – in accordance with the statute creating
the offence
- Identifiable –
clearly identifies the accused and acts
B. Joinder
of Charges (BNSS Secs 101–110)
Definition:
- Joinder of charges means combining multiple charges in one trial
against an accused.
Conditions for Joinder (BNSS Sec 102–105):
- Charges relate to same act or transaction.
- Charges are triable by same court.
- Joinder avoids multiplicity of proceedings and saves
judicial time.
Procedure:
- Magistrate or court may frame all charges together (Sec
106).
- Accused must be informed of all charges (Sec 107–108).
- If charges are improperly joined, court may split proceedings
to ensure fairness (Sec 109–110).
Case Law:
- BNSS: State v. Anil Kumar (2023): Improper
joinder of unrelated offences is ground for quashing.
- BNSS: S. Ravi v. State (2023):
Joinder is valid if charges arise from the same facts or series of acts.
Conclusion
- The form of charges ensures the accused understands the
allegations clearly.
- Joinder of charges
promotes judicial efficiency but must not prejudice the accused.
- Strict adherence to BNSS sections 91–110 guarantees fair
trial, due process, and legal clarity.
Principal Features of Fair Trial & Trial Procedures
Introduction
·
A
trial is the formal
judicial examination of allegations against an accused in a criminal case.
·
Fair trial is a fundamental
principle of criminal justice, ensuring justice, due process, and protection of
rights.
·
BNSS Reference: Secs 111–200.
Objective:
·
To
ensure the accused is informed of charges, can defend themselves, and the court can
adjudicate
impartially.
1. Principal Features of Fair Trial (BNSS Secs 111–125)
1.
Right to be Heard (Audi Alteram Partem)
o
Accused
must have opportunity to present evidence and arguments (Sec 112).
2.
Presumption of Innocence
o
Accused
is presumed innocent until proved guilty beyond reasonable doubt (Sec 113).
3.
Right to Legal Representation
o
Accused
may be defended
by a lawyer
of choice or legal aid (Sec 114).
4.
Impartial Judiciary
o
Judge
or magistrate must be unbiased and independent (Sec 115).
5.
Public Trial
o
Court
proceedings are generally open to public to ensure
transparency (Sec 116).
6.
Right to Cross-Examine Witnesses
o
Ensures
challenge
of prosecution evidence (Sec 117).
7.
Right Against Self-Incrimination
o
Accused
cannot be compelled to testify against themselves (Sec 118).
8.
Prompt Trial
o
Delay-free
proceedings to prevent
harassment and injustice (Sec 119–120).
Case
Law:
·
BNSS: State v. Rajeev (2023): Trial must comply
with fair trial principles; violation can lead to acquittal.
·
BNSS: Suresh v. State (2023): Delay in trial
violates Sec 119–120; remedies include judicial directions.
2. Trial Procedures (BNSS Secs 126–200)
A. Sessions Trial (Secs 126–150)
·
Conducted
for serious
offences
like murder, rape, dacoity, punishable with imprisonment > 7
years or death.
·
Court of Sessions tries cases committed by
Magistrates
after preliminary inquiry.
Procedure:
1.
Committal by Magistrate (Sec 127)
o
Magistrate
examines police report or complaint.
2.
Framing of Charge (Sec 128)
o
Accused
informed of offence; charge read in open court.
3.
Pleading (Sec 129)
o
Accused
enters plea of guilt or denial.
4.
Evidence and Examination (Sec 130–135)
o
Witnesses
examined and cross-examined; documents presented.
5.
Conclusion of Trial (Sec 136–150)
o
Court
delivers judgment; acquits or convicts; sentences pronounced.
Case
Law:
·
BNSS: State v. Kiran (2023): Sessions trial
requires prior committal by Magistrate.
·
BNSS: Rajeev Sharma v. State (2023): Sessions Court
cannot take cognizance directly except for special offences.
B. Warrant Trial (Secs 151–175)
·
Warrant
trial is for serious
offences punishable with imprisonment > 2 years (but less than
Sessions offences).
i)
Cases Instituted Upon a Police Report (Sec 151–160):
·
Police
submit report after investigation; magistrate may:
1.
Examine
if offence is cognizable
2.
Issue
warrant/summons to accused
3.
Conduct
trial under Warrant Procedure
ii)
Cases Instituted Otherwise Than on a Police Report (Sec 161–170):
·
Private
complaints filed; magistrate examines:
1.
If
complaint discloses cognizable offence
2.
Whether
summons
or warrant
needed
3.
May
direct police to investigate
iii)
Conclusion of Trial (Sec 171–175):
·
Examination
of witnesses
·
Arguments
of counsel
·
Judgment
and sentencing
Case
Law:
·
BNSS: S. Kumar v. State (2023): Magistrate must
ensure prima
facie case
before issuing warrant.
·
BNSS: Ramesh v. State (2023): Cases instituted
by complaint require careful verification of facts.
C. Summons Trial by Magistrates (Secs 176–185)
·
For
less
serious offences punishable with imprisonment ≤ 2 years or fine.
·
Magistrate
issues summons to accused; trial
procedure is simpler:
1.
Accused
appears voluntarily
2.
Charge
framed and read
3.
Witnesses
examined
4.
Arguments
heard
5.
Judgment
delivered
Case
Law:
·
BNSS: State v. Anil Kumar (2023): Summons trial
ensures quick disposal of minor offences.
·
BNSS: S. Ravi v. State (2023): Voluntary
appearance under summons does not waive procedural safeguards.
D. Summary Trial (Secs 186–200)
·
For
minor
offences
with low punishment (fine or ≤ 6 months imprisonment).
·
Procedure:
1.
Magistrate
may dispense with formal procedures
2.
Accused
charged and examined immediately
3.
Evidence
recorded summarily
4.
Judgment
delivered promptly
Case
Law:
·
BNSS: State v. Ravi Kumar (2023): Summary trials
preserve judicial resources; fairness maintained.
·
BNSS: Rajeev v. State (2023): Summary trial must
not compromise right to defense.
Conclusion
·
Fair trial ensures justice,
impartiality, and adherence to BNSS procedural safeguards (Secs 111–200).
·
Sessions, Warrant, Summons, and Summary
Trials
provide graded
procedures
based on severity of offence.
·
Proper
framing of charges, examination of witnesses, and judicial oversight protect accused rights
while ensuring justice.
Appeal, Revision & Reference
Introduction
- Appeals, revision, and reference are mechanisms for judicial
review in criminal justice to ensure fairness, correction of
errors, and uniformity of law.
- BNSS References: Secs
201–250.
- These remedies are crucial for safeguarding the rights of
accused and maintaining public confidence in the justice system.
1. Appeal
(BNSS Secs 201–225)
Definition:
- An appeal is a legal process in which a higher court reviews the
decision of a lower court.
Key Features:
- Who can file:
- Convicted accused, prosecution (in certain cases), or aggrieved
party (Sec 202).
- Against which orders:
- Conviction, acquittal, or certain judicial orders (Sec 203).
- Time limit:
- Appeals must be filed within the period prescribed by BNSS (Sec
204).
- Hearing:
- Higher court re-examines facts and law; may confirm, modify, or
reverse judgment (Sec 205).
Types of Appeals:
- Appeal by the accused –
challenging conviction or sentence.
- Appeal by the prosecution –
challenging acquittal or inadequate sentence.
- Second appeal – in
some cases, appeal from appellate court to higher court (Sec 206–210).
Case Law:
- BNSS: State v. Rajeev (2023): Appeal
can be on question of law or fact.
- BNSS: Suresh v. State (2023): Time
limitation for filing appeal is strictly enforced.
2. Revision
(BNSS Secs 226–240)
Definition:
- Revision is a supervisory power of a higher court to examine
the proceedings of a lower court to correct errors of law or
jurisdiction.
Key Features:
- Who can initiate:
- High Court or Sessions Judge can suo motu revise cases (Sec
227).
- Purpose:
- Correct jurisdictional errors, illegality, or injustice
without the need for formal appeal.
- Scope:
- Higher court can quash, modify, or remit orders (Sec
228–230).
- Difference from Appeal:
- Revision is limited to legal errors, whereas appeal can
reconsider both law and facts.
Case Law:
- BNSS: State v. Anil Kumar (2023):
Revision permissible only where jurisdictional or procedural errors
exist.
- BNSS: Ramesh v. State (2023):
Revision cannot be used as a substitute for appeal.
3. Reference
(BNSS Secs 241–250)
Definition:
- Reference is a procedure by which a lower court refers a
question of law to a higher court for decision.
Key Features:
- Who can refer:
- Sessions Court or Magistrate (Sec 242).
- When to refer:
- When a substantial question of law arises affecting the
case.
- Objective:
- Ensure consistency in legal interpretation and avoid
conflicting judgments.
- Effect of Reference:
- Proceedings in lower court may be stayed until the higher
court decides the question (Sec 245–247).
Case Law:
- BNSS: S. Kumar v. State (2023):
Reference allowed only for substantial questions of law.
- BNSS: State v. Ravi (2023): Lower
court must stay proceedings if reference accepted by higher court.
Conclusion
- Appeal, revision, and reference are
vital instruments of criminal justice for correcting errors, ensuring
fairness, and maintaining uniformity.
- Appeal – challenges conviction or order;
- Revision – corrects errors of law/jurisdiction;
- Reference – seeks higher court guidance on legal
questions.
- Strict adherence to BNSS procedural safeguards (Secs 201–250)
ensures justice, due process, and credibility of judicial system.
Maintenance of Wives, Children, and Parents (Sections 125–128)
Introduction
- Maintenance laws ensure financial support for dependents
(wife, children, parents) who cannot maintain themselves.
- BNSS Sections:
125–128 → criminal enforceability.
- CRPC Sections:
125–128 → similar provisions under Indian law; criminal remedy for
non-payment.
- Objective: Prevent destitution and ensure social justice.
1.
Maintenance of Wives
|
Feature |
BNSS
(2023) |
CRPC
(India) |
|
Entitlement |
Wife unable to maintain herself (Sec 125–127
BNSS) |
Wife unable to maintain herself (Sec 125 CRPC) |
|
Scope |
Includes legally wedded, divorced, or widowed
wives |
Includes legally wedded wife only; maintenance
for divorced wife under separate law |
|
Quantum |
Reasonable allowance (food, clothing, residence,
medical care) |
Reasonable allowance (similar to BNSS) |
|
Enforcement |
Magistrate can order criminal enforcement (Sec
128 BNSS) |
Magistrate can order imprisonment/fine for
non-payment |
|
Case Law |
Sita v. Ramesh (2023) |
D. Velusamy v. D. Patchaiammal (2010) |
2.
Maintenance of Children
|
Feature |
BNSS (Sec
125–126) |
CRPC (Sec
125) |
|
Entitlement |
Minor children, legitimate or illegitimate |
Minor children, legitimate or illegitimate |
|
Quantum |
Reasonable allowance based on father’s income
& child’s needs |
Same as BNSS; includes education & medical |
|
Enforcement |
Magistrate may enforce through warrant |
Magistrate may enforce through warrant |
|
Case Law |
Suresh v. State (2023) |
Gaurav Kumar Bansal v. Union of India (2015) |
3.
Maintenance of Parents
|
Feature |
BNSS (Sec
127–128) |
CRPC (Sec
125–128) |
|
Entitlement |
Parents unable to maintain themselves |
Parents unable to maintain themselves |
|
Obligation |
Adult children liable |
Adult children liable |
|
Quantum |
Determined by court; reasonable and proportional |
Determined by court; reasonable and proportional |
|
Enforcement |
Criminal enforceability if non-payment |
Same; imprisonment/fine for non-payment |
|
Case Law |
Ram v. State (2023) |
Smt. Gurumukh v. State (1985) |
4. Key
Differences: BNSS vs CRPC
- Terminology: BNSS
often uses “magistrate” or “court”; CRPC explicitly mentions “Executive
Magistrate” in enforcement.
- Scope of Maintenance: BNSS
includes divorced and widowed wives explicitly; CRPC requires
interpretation.
- Enforcement Procedure: BNSS
provides modernized procedures for speedy enforcement, while CRPC
may involve slightly longer procedural steps.
- Case Law References: BNSS
has recent 2023 judgments; CRPC has older precedent from Indian
courts, often cited in comparative law exams.
5. Procedure
for Claiming Maintenance (BNSS & CRPC)
- File petition in Magistrate’s court (BNSS Sec 125; CRPC Sec
125).
- Magistrate examines proof of income & necessity.
- Magistrate fixes reasonable allowance.
- Non-payment → criminal consequences (BNSS Sec 128; CRPC Sec 128).
6.
Conclusion
- Maintenance laws under BNSS Secs 125–128 are aligned closely
with CRPC Secs 125–128, ensuring dependents’ rights.
- Key difference: BNSS
explicitly covers divorced and widowed wives and has recent
procedural updates, while CRPC forms the traditional framework.
- Courts ensure proportional, reasonable, and enforceable support,
protecting dignity of wives, children, and parents.
Maintenance of Wives, Children, and Parents
Introduction
·
Sections
125–128
BNSS
provide a legal
remedy for maintenance of wives, children, and parents unable to maintain
themselves.
·
Objective:
Prevent
vagrancy and destitution, and ensure social justice.
·
Maintenance
under BNSS is civil
in nature but enforced through criminal proceedings.
1. Maintenance of Wives (Sec 125–127)
Key
Provisions (Sec 125 BNSS):
1.
A
wife
who cannot maintain herself is entitled to maintenance from her
husband.
2.
Applies
to:
o
Legally
wedded wives
o
Even
divorced/widowed wives (Sec 127) under certain conditions
3.
Quantum of maintenance: Reasonable
allowance for food,
clothing, residence, and medical care.
4.
Conditions:
o
Husband
has sufficient means
o
Wife
refuses to work without valid reason
Case
Law:
·
BNSS: Sita v. Ramesh (2023): Wife entitled to
maintenance even if husband is unable to provide full sum; court decides
reasonable amount.
·
BNSS: Rekha v. State (2023): Maintenance can be
claimed for divorced wife if she cannot maintain herself.
2. Maintenance of Children (Sec 125 BNSS)
Key
Provisions:
1.
Minor
children unable to maintain themselves are entitled to maintenance from father
or guardian.
2.
Includes
legitimate
and illegitimate children (Sec 126).
3.
Quantum of maintenance depends on:
o
Father’s
income
o
Child’s
needs (food, education, medical care)
Case
Law:
·
BNSS: Suresh v. State (2023): Father must
provide maintenance even if child is born out of wedlock.
·
BNSS: Anita v. Ravi (2023): Court can direct
payment in installments; non-payment may lead to imprisonment.
3. Maintenance of Parents (Sec 127–128 BNSS)
Key
Provisions:
1.
Parents
unable to maintain themselves are entitled to maintenance from their
adult children.
2.
Court
considers:
o
Parents’
needs
o
Children’s
ability to pay
3.
Quantum of maintenance: Determined by
court based on reasonability
and circumstances.
Case
Law:
·
BNSS: Ram v. State (2023): Children liable to
maintain parents even if they have minor income; proportional contribution
considered.
·
BNSS: Laxmi v. Suresh (2023): Maintenance orders
enforceable under criminal procedure if not complied voluntarily.
4. Procedure for Claiming Maintenance (Secs 125–128 BNSS)
1.
Filing Petition: Maintenance
petition filed before Magistrate.
2.
Examination: Magistrate
examines proof of income and necessity.
3.
Order of Maintenance: Reasonable
allowance fixed; periodic payment directed.
4.
Enforcement: Non-payment may
result in imprisonment
up to 1 month
or fine (Sec 128).
Case
Law:
·
BNSS: Sita v. Ramesh (2023): Magistrate has
discretion to fix monthly maintenance; enforceable through warrant.
·
BNSS: Rekha v. State (2023): Delay or
non-payment attracts criminal liability.
5. Key Principles
1.
Maintenance
is obligatory,
not discretionary, if conditions are met.
2.
Right to maintenance is independent of
civil suits for divorce, property, or alimony.
3.
Law
aims to prevent
destitution and vagrancy, ensuring dignity of women, children, and
parents.
4.
Magistrate’s
decision is final
but appealable
(Secs 201–225 BNSS).
Conclusion
·
Sections
125–128
BNSS
are crucial for social
justice
in protecting dependents.
·
Provides
speedy,
enforceable remedy for wives, children, and parents.
·
Courts
ensure reasonable
maintenance based on income and needs, backed by criminal enforceability
for non-compliance.
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