Q. Explain the relationship between International Law and Municipal Law.

International Law is the law which governs the Relations of sovereign independent States inter se Municipal law or State law or national law is the law of a State or a country and in that respect is opposed to International Law which consists of rules which civilized States consider as binding upon them in their mutual relations. Kelsen observes that national law regulates the behavior of individuals International law the behavior of States or as it is put whereas national law is concerned with the international relations the so called domestic affairs of the State. International Law is concerned with the external relations of the State its foreign affairs. Legislature and court systems are different on the international and municipal levels. Where the municipal level uses a legislature to help enforce and test the laws, the international court system relies on a series of treaties without a legislature which, in essence, makes all countries equal. Enforcement is a major difference between municipal and international law. The municipal courts have a law enforcement arm which helps require those it determines to follow the rules, and if they do not they are required to attend court. The international court system has no enforcement and must rely on the cooperation of other countries for enforcement. There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law. The former theory is called monistic and the latter dualistic. Monistic Theory: Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal. In most monist states, a distinction between international law in the form of treaties, and other international law, e.g. jus cogens is made. International law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules because, in some states, the latter have priority. In other states, like in Germany, treaties have the same effect as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted prior to their ratification. In its most pure form, monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution.It maintains that the subject of the two systems of law namely, International Law and Municipal Law are essentially one in as much as the former regulates the conduct of States, while the latter of individuals. According to this

view law is essentially a command binding upon the subjects of the law independent of their will which is one case is the States and in the other individuals. According to it International Law and Municipal Law are two phases of one and the same thing. The former although directly addressed to the States as corporate bodies is as well applicable to individuals for States are only groups of individuals. Dualistic theory: Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law. According to the dualist view the systems of International Law and Municipal Law are separate and self contained to the extent to which rules of the one are not expressly or tacitly received into the other system. In the first place they differ as regards their sources. The sources of Municipal Law are customs grown up within the boundaries of the State concerned and statutes enacted therein while the sources of International Law are customs grown up within the Family of Nations and law making treaties concluded by its members. In the second place Municipal Laws regulates relations between the individuals under the sway of a State or between the individuals and the State while International Law regulates relations between the member States of the Family of Nations. Lastly there is a difference with regard to the substance of the law in as much as Municipal Law is a law of the sovereign over individuals while International Law is a law between sovereign State which is arrived at an agreement among them. The latter is therefore a weak law. Besides the above two theories, Starke makes reference to two other theories namely, the Transformation Theory and Delegation Theory. Transformation Theory: According to this theory it is the transformation of the treaty into national legislation which alone validates the extension to individuals of the rules set out in international agreements. The transformation is not merely a formal but a substantial requirement. International Law according to this theory cannot find place in the national or Municipal Law unless the latter allows its machinery to be used for that purpose. This theory is fallacious in several respects. In the first place its premise that International Law and Municipal Law are two distinct systems is incorrect. In the second place the second premise that International Law binds States only whereas municipal law applies to individuals is also incorrect for International Law is the sum of the rules which have been accepted by civilized states as determining their conduct towards each other and towards each others subjects. In the third place the theory regards the transformation of treaties into national law for their enforcement. This is not true in all cases for the

practice of transforming treaties into national legislation is not uniform in all the countries. And this is certainly not true in the case of law making treaties. Delegation Theory: According to this theory there is the delegation of a right to every State to decide for itself when the provisions of a treaty or convention are to come into effect and in what manner they are to be incorporated in the law of the land or municipal law. There is no need of transformation of a treaty into national law but the act is merely an extension of one single act. The delegation theory is incomplete for it does not satisfactorily meet the main argument of the transformation theory. It assumes the primacy of international legal order but fails to explain the relations existing between municipal and international laws. It is settled by the leading English and American decisions that International Law forms part of the municipal law of those countries. The United States has unambiguously applied the doctrine that International Law is part of the law of the land. All international conventions ratified by the USA and such customary International Law as has received the assent of the United States are binding upon American Courts even if they may be contrary to the statutory provisions. There is a presumption in cases of conflict that the United States Congress did not intend to overrule International Law. Position in India In India, SC has held in several cases such as Vishakha vs State of Rajasthan, Randhir vs Union of India, Unnikrishnan vs State of Karnataka, that domestic laws of India, including the constitution are not to be read as derogatory to International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any directly conflict the constitution will prevail.

Q. What are the peaceful means of settlement of international disputes? Describe the constitution, function, and jurisdiction of International Court of Justice. How does it differ from permanent court of Arbitration and Permanent court of International Justice? Evaluate the role of ICJ in establishment of World Peace. What is Advisory Jurisdiction of ICJ?.
The General Obligation On 15th Nov. 1982, the General Assembly of UNO after reaffirming the need to exert

utmost efforts in order to settle any conflicts and disputes between States exclusively by peaceful means and to avoid any military action and hostilities, which can only make more difficult the solution of those conflicts and disputes, approved the Manila Declaration on the Peaceful Settlement of International Disputes. This created a general obligation on the member states to adopt ways to resolve international disputes peacefully. In particular, it obligated that States parties to a dispute shall continue to observe in their mutual relations their obligations under the fundamental principles of international law concerning the sovereignty, independence and territorial integrity of States, as well as other generally recognized principles and rules of contemporary international law. It obligates the States to seek in good faith and in a spirit of co-operation an early and equitable settlement of their international disputes by any of the following means: negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional arrangements or agencies or other peaceful means of their own choice, including good offices. In seeking such a settlement, the parties shall agree on such peaceful means as may be appropriate to the circumstances and the nature of their dispute. Thus, the following are peaceful means of settlement of international disputes. 1. Non-Judicial Methods of Settlement 1. Mediation: It is a non-binding procedure in which a neutral intermediary assist the parties in reaching a negotiated settlement of the dispute. In a growing number of cases parties agree to first try to settle their dispute through mediation, and to resort to arbitration only if the dispute has not been settled with a certain period of time. While both arbitration and mediation are usually private dispute resolution procedures based on a party agreement they differ in a number of important aspects. Arbitration is an adjudicative procedure and in this respect resembles court litigation. Once the parties have submitted a dispute to arbitration, neither party can opt out unilaterally, and any decision rendered by the arbitral tribunal will be binding on both parties. Mediation in contrast, is a voluntary process which depends on the continuing cooperation of both parties since either party can withdraw at any time. Employed over the years in diplomatic matters, recently parties have begun using mediation to resolve transnational business disputes prior to binding dispute settlement alternatives or litigation.1 This alternative is particularly popular among Asian cultures. The mediation mechanism may be generally defined as the intervention of an unbiased third party in a dispute so as to facilitate party resolution of differences on a voluntary basis. The process differs from conciliation and arbitration with respect to the involvement and powers of the third party. Notwithstanding this definition, currently no consensus exists about the specifics of

transnational mediation or its procedures, thus further complicating matters when it is employed as the only contractual means of dispute settlement. More specifically, when international parties use mediation exclusively, there is no guarantee of a binding or definitive outcome at all. International dispute resolution organizations offer procedural rules for mediation. Since mediation has only recently come to the forefront, however, these rules remain vague in many areas. For example, the mediator's duties are not detailed specifically. The International Chamber of Commerce Rules of Optional Conciliation merely state that the mediator has discretion to conduct the proceedings as he or she sees fit. The only restriction imposed on the mediator by many of these rules is that the mediator operate under the principles of impartiality, equity and justice. Mediators are left to determine the contents of these principles. Given the lack of rule specificity and the discretion granted to the mediator, the success of the mediation often depends on the talents and temperament of the mediator. His or her ability to get the disputants to negotiate and work towards compromise is of utmost importance.Ultimately, if these techniques fail and the parties are not satisfied with the settlement, they can pursue other methods of dispute resolution, such as traditional litigation or arbitration. 2. Conciliation - In conciliation, the conciliator plays a relatively direct role in the actual resolution of a dispute and even advises the parties on certain solutions by making proposals for settlement. In conciliation, the neutral is usually seen as an authority figure who is responsible for the figuring out the best solution for the parties. The conciliator, not the parties, often develops and proposes the terms of settlement. The parties come to the conciliator seeking guidance and the parties make decisions about proposals made by conciliators. In this regard, the role of a conciliator is distinct from the role of a mediator. The mediator at all times maintains his or her neutrality and impartiality. A mediator does not focus only on traditional notions of fault and a mediator does not assume sole responsibility for generating solutions. Instead, a mediator works together with the parties as a partner to assist them in finding the best solution to further their interests. A mediators priority is to facilitate the parties own discussion and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair, durable, and workable. The parties play an active role in mediation, identifying interests, suggesting possible solutions, and making decisions concerning proposals made by other parties. The parties come to mediator seeking help in finding their own best solution. Also the role of the attorneys is different in mediation. Attorneys are more active in mediation in generating and developing innovative solutions for settlement. In conciliation, they generally offer advice and guidance to clients about proposals made by conciliators.

Conciliation and mediation both look to maintain an existing business relationship and to rekindle a lost balance of power between two parties. These concepts are sometimes used as synonyms, but they do indeed vary substantially in their procedures. In mediation, the mediator controls the process through different and specific stages: introduction, joint session, caucus, and agreement, while the parties control the outcome. By contrast, in conciliation the conciliator may not follow a structured process, instead administering the conciliation process as a traditional negotiation, which may take different forms depending on the case. Conciliation is used almost preventively, as soon as a dispute or misunderstanding surfaces: a conciliator pushes to stop a substantial conflict from developing. Mediation is closer to arbitration in the respect that it intervenes in a substantial dispute that has already surfaced that is very difficult to resolve without "professional" assistance. The parties approach mediation as an alternative method to resolve their dispute, due to the fact that they both recognize that the conflict has grown potentially serious enough for litigation. Mediation may be used, however, any time after the emergence of a dispute, including the early stages. 2. Settlement by The International Court of Justice - The International Court of Justice was established by the Charter of the United Nations, which provides that all Member States of the United Nations are ipso facto parties to the Court's Statute. The composition and functioning of the Court are organized by this Statute, and by the Rules of the Court which are drawn up by the Court itself. The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. Its main functions are to settle legal disputes submitted to it by states and to give advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly. Composition of ICJ - The ICJ is composed of fifteen judges elected to nine year terms by the UN General Assembly and the UN Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 412 of the ICJ statute. Judges serve for nine year terms and may be re-elected for up to two further terms. Elections take place every three years, with one-third of the judges retiring (and possibly standing for re-election) each time, in order to ensure continuity within the court. Should a judge die in office, the practice has generally been to elect a judge of the same nationality to complete the term. No two may be nationals of the same country. According to Article 9, the membership of the Court is supposed to represent the "main forms of civilization and of the principal legal systems of the world". Essentially, this has meant common law, civil law and socialist law (now post-communist law).

Differences with Permanent Court of International Justice - The Permanent Court of International Justice, sometimes called the World Court, was the international court of the League of Nations, established in 1923. Between 1922 and 1940 the Court dealt with 66 contentious cases between States and delivered 27 advisory opinions. It was replaced in 1946 by the International Court of Justice when the United Nations was organized. Differences with PCA - Unlike the ICJ, the PCA is not just open to states but also to other parties. The PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties. The PCA administers cases arising out of international treaties (including bilateral and multilateral investment treaties), and other agreements to arbitrate. The cases conducted by the PCA span a wide range of legal issues, including disputes over territorial and maritime boundaries, sovereignty, human rights, international investment (investor-state arbitrations), and matters concerning international and regional trade. Hearings are rarely open to the public and sometimes even the decision itself is kept confidential at the request of the parties. Many decisions and related documents are available on the PCA website. Jurisdiction of ICJ As stated in Article 93 of the UN Charter, all 192 UN members are automatically parties to the Court's statute. Non-UN members may also become parties to the Court's statute under the Article 93(2) procedure. For example, before becoming a UN member state, Switzerland used this procedure in 1948 to become a party. And Nauru became a party in 1988. Once a state is a party to the Court's statute, it is entitled to participate in cases before the Court. However, being a party to the statute does not automatically give the Court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered in the two types of ICJ cases: contentious issues and advisory opinions. The International Court of Justice acts as a world court. The Court has a dual jurisdiction : it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request (advisory jurisdiction). 1. Contentious Issues - In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases. Individuals, corporations, parts of a federal state, NGOs, UN organs and self-determination groups are excluded from direct participation in cases. The key principle is that the ICJ has jurisdiction only on the basis of consent. Article 36 outlines four bases on

which the Court's jurisdiction may be founded. First, 36(1) provides that parties may refer cases to the Court (jurisdiction founded on "special agreement" or "compromise"). This method is based on explicit consent rather than true compulsory jurisdiction. It is, perhaps, the most effective basis for the Court's jurisdiction because the parties concerned have a desire for the dispute to be resolved by the Court and are thus more likely to comply with the Court's judgment. Second, 36(1) also gives the Court jurisdiction over "matters specifically provided for ... in treaties and conventions in force". Most modern treaties will contain a compromissory clause, providing for dispute resolution by the ICJ. Cases founded on compromissory clauses have not been as effective as cases founded on special agreement, since a state may have no interest in having the matter examined by the Court and may refuse to comply with a judgment. For example, during the Iran hostage crisis, Iran refused to participate in a case brought by the US based on a compromissory clause contained in the Vienna Convention on Diplomatic Relations, nor did it comply with the judgment. Since the 1970s, the use of such clauses has declined. Many modern treaties set out their own dispute resolution regime, often based on forms of arbitration. Third, Article 36(2) allows states to make optional clause declarations accepting the Court's jurisdiction. The label "compulsory" which is sometimes placed on Article 36(2) jurisdiction is misleading since declarations by states are voluntary. Furthermore, many declarations contain reservations, such as exclusion from jurisdiction certain types of disputes ("ratione materia"). The principle of reciprocity may further limit jurisdiction. Of the permanent Security Council members, only the United Kingdom has a declaration. In the Court's early years, most declarations were made by industrialised countries. Since the Nicaragua Case, declarations made by developing countries have increased, reflecting a growing confidence in the Court since the 1980s. Industrialised countries however have sometimes increased exclusions or removed their declarations in recent years. Examples include the USA, as mentioned previously and Australia who modified their declaration in 2002 to exclude disputes on maritime boundaries (most likely to prevent an impending challenge from East Timor who gained their independence two months later). Finally, 36(5) provides for jurisdiction on the basis of declarations made under the Permanent Court of International Justice's statute. Article 37 of the Statute similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ. In addition, the Court may have jurisdiction on the basis of tacit consent

(forum prorogatum). In the absence of clear jurisdiction under Article 36, jurisdiction will be established if the respondent accepts ICJ jurisdiction explicitly or simply pleads on the merits. The notion arose in the Corfu Channel Case (UK v Albania) (1949) in which the Court held that a letter from Albania stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction. Examples of contentious cases include: A complaint by the United States in 1980 that Iran was detaining American diplomats in Tehran in violation of international law. A dispute between Tunisia and Libya over the delimitation of the continental shelf between them. 2. Advisory Jurisdiction - An advisory opinion is a function of the Court open only to specified United Nations bodies and agencies. On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. Advisory Opinions were intended as a means by which UN agencies could seek the Court's help in deciding complex legal issues that might fall under their respective mandates. In principle, the Court's advisory opinions are only consultative in character, though they are influential and widely respected. Whilst certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, they are inherently non-binding under the Statute of the Court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations. Advisory Opinions have often been controversial, either because the questions asked are controversial, or because the case was pursued as an indirect "backdoor" way of bringing what is really a contentious case before the Court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article. One such well-known advisory opinion is the Nuclear Weapons Case. 3. International Arbitration: The Hague Peace System -International arbitration is the process of resolving disputes between or among transnational parties through the use of one or more arbitrators rather than through the courts. It requires the agreement of the parties, which is usually given via an arbitration clause that is inserted into the contract or business agreement. The decision is usually binding.

Arbitration is today most commonly used for the resolution of commercial disputes, particularly in the context of international commercial transactions (International Commercial Arbitration). It is also used in some countries to resolve other types of disputes, such as labour disputes, consumer disputes, and for the resolution of certain disputes between states and between investors and states. As the number of international disputes mushrooms, so too does the use of arbitration to resolve them. There are essentially two kinds of arbitration, ad hoc and institutional. An institutional arbitration is one that is entrusted to one of the major arbitration institutions to handle, while an ad hoc one is conducted independently without such an organization and according to the rules specified by the parties and their attorneys. The following are various avenues for International Arbitration. 1. Permanent Court of Arbitration (PCA) - The Permanent Court of Arbitration (PCA), is an international organization based in The Hague in the Netherlands. It was established in 1899 as one of the acts of the first Hague Peace Conference, which makes it the oldest institution for international dispute resolution. The creation of the PCA is set out under Articles 20 to 29 of the 1899 Hague Convention for the specific settlement of international disputes which was a result of the first Hague Peace Conference. At the second Hague Peace Conference in 1907, the earlier Convention was revised and improved by the 1907 Convention for the Pacific Settlement of International Disputes. 2. International Commercial Arbitration (ICA) 3. International Centre of Settlement of Investment Disputes (ICSID) 4. WIPO Arbitration and Mediation Center (World Intellectual Property Organization) 5. WTO Dispute Settlement System 6. Court of Arbitration for Sport (CAC) 7. Society of Maritime Arbitrators (SMA) 4. Ad Hoc Inter-State Arbitration 5. The Iran-US Claims Tribunal 6. The International Centre for Settlement of Investment Disputes 7. Settling Disputes about Human Rights 8. Dispute Settlement in the Law of the Sea 9. Settlement of International Economic Disputes 10. Regional Organizations and Dispute Settlement RECOGNITION: The discretionary function exercised unilaterally by the govt of a state, officially acknowledging the existence of another state or government or belligerent state is known as recognition.The sovereign entities of international community have been used to justify the existence of state even in the absence of recognition by other state. This criteria was derived from 1933 Montevideo inter America convention on rights and duties

of states.In 1936 prestigious institute de droit stated, the existence of a new state with al the legal consequences attaching to this existence is not affected by the refusal of recognition by one or more states. Recognition of states is the requirement of having part of world community. The sovereign entities of international community have been used to justify the existence of state even in the absence of recognition by other state. This criteria was derived from 1933 Montevideo inter America convention on rights and duties of states. In 1936prestigious institute de droit stated, the existence of a new state with al the legal consequences attaching to this existence is not affected by the refusal of recognition by one or more states. Recognition of states is the requirement of having part of world community. ACTS OF RECOGNITION: Recognition is a matter of intention and it may be expressed or implied. So the act of recognition may be affected expressly, by formal announcement or by bilateral treaty of recognition. Also in some circumstances through an act indicating an intention to affect recognition e.g. U.K government recognized government of Burma by a treaty in 1947; they recognized them as fully independent and sovereign state. There are two theories, which have effect on the recognition of a state. 1: Constitutive theory 2: Declaratory theory CONSTITUTIVE THEORY: This theory asserts that the act of recognition by other states confer international responsibility on an entity purporting to be a state. It means if that state exists this is because of international community, as they have admitted that state into the community of nations. So we can say that a state may possess all the attributes and qualifications of state hood but unless or until recognition is accorded there will be no international personality. If we apply this theory on Israel and Palestine, for Pakistan Israel is not a state. Similarly before 1974 Bangladesh was not a state for Pakistan. DECLARATORY THEORY: The theory asserts that the existence of states depend upon the facts whether these facts meet with the criteria of statehood laid down in international law. According to this theory a state may exist without being recognized. Recognition is merely declaratory and the function of recognition is to acknowledge the fact of states political existence and the willingness of recognizing states to treat that state as an international entity. According to American law institute restatement, they accept it but also indicate that although a state is not required to accord formal recognition to any other state, but it is required to be treated as international entity that meets with the requirement of statehood. In contemporary practice it is clear that an entity meets the conditions of statehood as defined in s201 OF RESTATEMENT, can neither be denied the rights conferred on the states by international law? States like Taiwan, New Caledonia, Serbia, Western Sahara, Palestine; they still have to get the membership of UNO. POLITICAL NATURE OF RECOGNITION: This kind of recognition is based upon political expediency. Some members of international community recognize the entity and the recognition is denied by others.e.g. European community announced that it would recognize those republics that would give

assurance of five points. 1: Continued respect for UN charter. 2: Guarantee for the rights of national and ethnic groups. 3: Respect for inviolability of all frontiers 4: Acceptance of international obligations. 5: Under taking to settle all questions concerning state succession and regional disputes peacefully. By accepting these rules Croatia, Bosnia and Slovenia got recognition from European community. So we can say that recognition is political tool in the hands of international community. RECOGNITION OF GOVERNMENT If a state acquires all the elements of statehood and if it is recognized by other states then occasionally states does not recognize government of state. State practice suggest that there is no legal duty upon states to extend recognition to new government EXAMPLES: Afghanistan is recognized by many states but Taliban government was not recognized by majority of states. States may suspend the recognition of state e.g. in Pakistan in eras of 70s due to martial law many states suspended their relations with Pakistan. Similarly the relations between Libya and USA remain suspended for 24 long years. In the same way Palestinian state does not exist but Pakistan and Saudi a recognize it as a state. Other examples included non-recognition USA and allies of Costa Rica between 1917-1919, non-recognition by Britain of Russia between 1919-1921, non-recognition of USA by Britain till 1933. ESTRADE DOCTRINE If non-recognition can be expression of disapproval of new government then it can be applied where no such approval is intended. States have adopted the policy of never recognizing the government but instead of granting or withholding recognition only in respect of states. This doctrine originates in Mexico and has been adopted several states. MODES OF RECOGNITION: There are two modes of recognition: Defacto recognition Dejure recognition DEFACTO RECOGNITION: This term reflect the quality of government rather than that of act of recognition. Defacto recognition is temporary kind of recognition. When a state wants to delay the Dejure recognition of an any state it may grant Defacto recognition. The reason is that it is doubted that state going to be recognized may have all the attributes to fulfill international responsibility, or the state is willing to fulfill international obligations. As mentioned earlier that Defacto recognition is a temporary recognition and it means that state recognized possesses the essential characters of statehood and it is fit to be subject of international law. According to Oppenheim the Defacto recognition of state or government takes place when in view of recognizing state the new authority has not acquired sufficient ability (although effective power in territory is there). By recognizing that state as Defacto means that some characters are missing and now by recognizing them Defacto they are compelling that state to fulfill those requirements.

According to lauterpatch Defacto recognition shows that recognizing state wants to establish its relations with the recognized state without establishing diplomatic relations. General Francos government in Spain was recognized Defacto by Britain. Similarly in 1936 United Kingdom recognized Italy sovereignty over Abyssinia. DEJURE RECOGNITION: This recognition is granted when in the opinion of recognizing state or its government the other state possesses all the characteristics and essential requirements of statehood, also it is capable of being member of international community. Dejure recognition is final and once given cannot be taken back, or with drawn. This is permanent kind of recognition. United Kingdom recognized Italys sovereignty over Abyssinia as dejure in 1938 Soviet government to United Kingdom in 1924. DIFFERENCE BETWEEN TWO RECOGNITIONS: In Defacto recognition diplomatic relations are not established formally. They are established only by granting dejure recognition. According to jurists there is hardly any difference between the two and if at all there is any difference it is political rather than legal. Prof. Keelson states that the distinction between two recognitions is not important .Any codification of international law relating to recognition can ignore it. But according to lauterpatch there are certain differences between the two, they have pointed out that in case of succession only the state, which has been granted dejure recognition will be deemed to be the successor state. Defacto recognition is provisional and Dejure is final recognition. Defacto government enjoys same immunities as a dejure state does. However diplomatic courtesies and representation are usually not accorded to Defacto government except in extraordinary circumstances occurring in times of war. There is no difference for the present purpose between a government recognized as dejure and one recognized as Defacto. LEGAL EFFECTS OF RECOGNITION: Recognition produces legal consequences affecting the rights powers privileges of recognized states or government. Recognized states have following consequences of their recognition. Right of suing in law courts of recognized states. Recognized states may claim immunity from suit to its property or diplomatic representative. They may acquire the capacity to enter in to diplomatic relations with other states and may conclude treaties with them. INTERVENTION: DEFINITIONS: Prof Oppenheim:--Intervention is dictatorial interference by the state in the affairs of another state for the purpose of maintaining or altering the actual condition of things. The term intervention has been used by some writers in the expression of subversive intervention to denote propaganda or other activity by one state with intention of fomenting for its own purpose, revolt or civil strike in another state. Intervention involves the unsolicited interference of one nation in the affairs of another. It

may be directed against a single state, factions within that state, or interactions among a group of states. It does not necessarily take the form of military action but may involve economic or social pressure. When applied to international law, the concept can be elusive. Because many relations between states involve elements of coercion, it is difficult to determine at which point pressure becomes sufficiently coercive as to be deemed intervention. Although states always claim the right to intervene on the basis of \"vital interests,\" they never agree as to what this term involves. A group of writers prohibit intervention in all circumstances. According to their point of view when one state intervenes in the affairs of another state through force then as reaction against his violation international law permits intervention. CONCEPT OF INTERVENTION AND UNITED NATIONS CHARTER: Article 2, paragraph 4, of the Charter provides: \"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.\" The North Atlantic Treaty Organization (NATO) intervention in Kosovo in 1999 was said to be justified on the grounds of such a humanitarian crisis coupled with noncompliance by the parties with Security Council Resolutions. Similarly whatever is happening in Palestine is that not a human crises. Kinds of Intervention:--Winfield refers to three kinds of interventions:-1.Internal Intervention:-- This is intervention by a state in a civil war going on with the territory of another state. The intervening state in such case may side with insurgents or legitimate govt. the intervention of number of states in civil war in spain in 1936 was typical of internal intervention. 2. External Intervention:-- it is an intervention by a state in the foreign affairs of other states. As a general rule, an external intervention is directed against hostile relations of other states. While there is a war going on between two states, a third state can make an external intervention by entering the war on behalf of either of two states. 3. Punitive Intervention:--It is resorted to by a state when it has suffered an injury by some action state and may be stated as an act of retaliation against the state. The punitive intervention may take the form of pacific blockade. GROUNDS OF INTERVENTION: 1: SELF DEFENSE: Use of force in self defense is justified where it is necessary for self preservation. The right of self defense under article 51 is subject to following conditions: 1: There should be an armed attack. 2: Right exist until security council has taken any action. 3: It should be reported to security council. 4: The right shall not effect security councils responsibility for peace and security. 5: Right is not available for non member states. 2: INTERVENTION ON HUMANITARIAN GROUNDS: Intervention was permitted in the past on humanitarian grounds. When human rights were openly violated in a state and the people were openly persecuted then other states can intervene in the affair of such a state in order to check such persecution and violation of human rights. E.g. England, France and Russia jointly intervened in the conflict of Greece and turkey in 1827to check violation of human rights, other examples include: Bulgaria 1877 Cuba 1898 Haiti 1915 3: TO ENFORCE TREATY RIGHTS:---Intervention was also permitted in the past

under international law to enforce treaty rigts. There are several examples of intervention on this ground e.g. when Germany attacked Belgium in 1831 England intervened because it had a treaty eith Belgium whereby it was commited to maintain the neutrality of Belgium. Similarly USA intervened Cuba in 1962. Now after the enforcement of united nations charter this kind of intervention is not allowed as states have undertaken not to intervene in the external or internal affairs of another state. But again question arises is that what was wrong with USA when they first intervened Afghanistan and then Iraq. 4: INTERVENTION TO PREVENT ILLEGAL INTERVENTION:---In the past there have been several cases of intervention by states in order to prevent illegal intervention by other states. It was on this ground that England helped Protugal in 1926. The united nations charter has affected this right. Intervention by one state in the affairs of another state is no more permissable. INTERVENTION FOR PROTECTION OF PROPERTY AND PERSONS: In the past international law permited the intervention in order to protect the property and persons of a state citizens. The growth in international relations and interdependence of states neccesitated the intercourse of citizens of one state with other. So whenever there is a danger to the persons or property of citizeens it become natural for a state to to take action. During india pakistan war in 1971 America sent its 7th fleet to the bay of bengal on the ground of protection of property and persons. But united nations charter does not allow this kind of intervention. COLLECTIVE INTERVENTION: Under united nations charter colletive intervention can be made to check an agression on the breach of international peace and security. Security council has empowered to take collective action if there exist a threat or a breach of international peace. In its first stage security council take such collective measures and do not involve the use of force. Abaut if such an action does not prove to be adequate the security council is empowered to employ armed forces. The united natins took such actions in Korea 1950, congo 1961, in bosnia 1995-96 DOCTRINE ON PRINCIPLE OF NON INTERVENION: MONROE DOCTRINE: President Monroe of United States propounded this doctrine. I t was reaction of the treaty which napoleon had entered in to with European states. The European states wanted to re establish their colonies in America and wanted to help Spain. In the background of these events president Monroe made a declaration in 1923, the important points of this doctrine are as followed. 1: The states of American continent would not more be made subject to colonization in future.---2: America would not interfere in the European wars.---3: If European states interfered in the affairs of American continent then America would consider it unfriendly act. DRAGO DOCTRINE:--This doctrine was presented by drago of Argentina. According to the doctrine European states could not intervene in the affairs of states of American continent on the ground of claiming public debts. Actually European states had started using military force to enforce the claims of their citizens e.g. England, Germany and Italy had enforced blockade against Venezuela because they had failed to fulfill its financial obligations. MODREN DOCTRINE:---More recently, an alternative approach to humanitarian

intervention known as \'Responsibility to protect R2P has emerged. Responsibility to Protect is the name of a report produced in 2001 by the International Commission on Intervention and State Sovereignty ICISS which was established by the Canadian government in response to the history of unsatisfactory humanitarian interventions. The report sought to establish a set of clear guidelines for determining when intervention is appropriate, what the appropriate channels for approving an intervention are and how the intervention itself should be carried out. Responsibility to protect seeks to establish a clearer code of conduct for humanitarian interventions and also advocates a greater reliance on non-military measures. The report also criticizes and attempts to change the discourse and terminology surrounding the issue of humanitarian intervention. It argues that the notion of a \'right to intervene\' is problematic and should be replaced with the \'responsibility to protect\'. Under Responsibility to Protect doctrine, rather than having a right to intervene in the conduct of other states, states are said to have a responsibility to intervene and protect the citizens of another state where that other state has failed in its obligation to protect its own citizens. LIMITATIONS: There are few limitations on intervention which are: 1. When implemented, an intervention mission can contravene the fundamental objectives of the United Nations, such as maintaining peace, and it contravenes Article 2.7 of the Charter of the United Nations whenever a recognized state is subject to an intervention: \"Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state\". However, the UN Charter also justifies interventions under Chapters VI and VII. Advocates of interventions argue that the creation of a new right is not necessary, but rather the simple application of rights which already exist. 2. More fundamentally than this legal problem are the contradictions inherent in the concept of humanitarian intervention, which are primarily due to the confusion created by the blurring of the right and the duty to interfere. It is difficult, when such confusion occurs, to separate the humanitarian motives from the political motives and be assured that the powers intervening are entirely disinterested. 3. Even though it is called universal, the declaration of human rights is strongly influenced by the work of Western philosophers from the Enlightenment and more generally by a Judeo-Christian tradition. Intervention has often been an action directed by Northern states toward Southern states. It is thus unlikely that a Rwandan contingent might one day be assigned a peacekeeping mission in Northern Ireland, or that the Lebanese might intervene in Basque country. 4. In reality, the powerful nation-states run little risk of becoming the target of a humanitarian intervention action. For example, the Chechen population is probably in as much danger as of 2005 as the Kosovos were in previous years, but Russia is significantly more powerful in the realm of international relations than Serbia, and so an international action into Chechnya is much less likely.

CrPC
Q. Explain Decree, Order, and Judgment and distinguish between them. What are the essential elements of a decree? What are the kinds of decree? What are the consequences of non appearance of parties? What is an ex parte decree? Discuss the remedies available to a defendant against whom an ex parte decree has been passed. All questions regarding execution of a decree shall be determined by the court executing the decree and not by a separate suit. Explain.
Decree
In a civil suit several facts might be alleged and the court may be required to rule on several claims. In simple terms, a decree is the ruling of the court regarding the claims of the parties of the suit. For example, in a suit between A and B, A may claim that a particular property P belongs A. After hearing all the arguments, the court will rule in the favor of either A or B. The final decision of the court regarding this claim i.e. whether the property belongs to A or B, is a decree. As per Section 2(2), a decree is the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It can be final or preliminary. From the above definition we can see the following essential elements of a decree 1. There must be an adjudication - Adjudication means Judicial Determination of the matter in dispute. In other words, the court must have applied its mind on the facts of the case to resolve the matter in dispute. For example, dismissing a suite because of default in appearance of the plaintiff is not a decree. But dismissing a suite on merits of the case would be a decree. 2. There must be a suit - Decree can only be given in relation to a suit. Although CPC does not define what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. AIR 1933, the Privy Council defined the term suit as "a civil proceeding instituted by the presentation of a plaint". 3. Rights of the parties - The adjudication must be about any or all of the matters in controversy in the suit. The word right means substantive rights and not merely procedural rights. For example, an order refusing leave to sue in forma pauperis (i.e. an

order rejecting the application of a poor plaintiff to waive court costs) is not a decree because it does not determine the right of the party in regards to the matters alleged in the suit. 4. Conclusive Determination - The determination of the right must be conclusive. This means that the court will not entertain any argument to change the decision. I.e. as far as the court is concerned, the matter in issue stands resolved. For example, an order striking out defence of a tenant under a relevant Rent Act, or an order refusing an adjournment is not a decree as they do not determine the right of a party conclusively. On the other hand, out of several properties in issue in a suit, the court may make a conclusive determination about the ownership of a particular property. Such a conclusive determination would be a decree even though it does not dispose off the suit completely. 5. Formal expression - To be a decree, the court must formally express its decision in the manner provided by law. A mere comment of the judge cannot be a decree. Examples of decisions which are Decrees - Dismissal of appeal as time barred, Dismissal or a suit or appeal for want of evidence or proof, Order holding appeal to be not maintainable. Examples of decisions which are not Decrees - Dismissal of appeal for default, order of remand, order granting interim relief.

Order
As per Section 2 (14), The formal expression of any decision of a civil court which is not a Decree is Order. In a suit, a court may take certain decisions on objective considerations and those decisions must contain a discussion of the matters at issue in the suit and the reasons which led the court to pass the order. However, if those decisions fall short of a decree, they are orders. Thus, there are several common elements between an order and a decree - both related to matter in controversy, both are decisions given by the court, both are adjudications, both are formal expressions. However, there are substantial differences between them Decree - S. 2(2) Can only be passed in a suit originated by the presentation of a plaint. Contains Conclusive Determination of a right Order S. 2(14) Can be passed in a suit originated by the presentation of a plaint, application, or petition. May or may not finally determine a right.

May be final, preliminary, or partly preliminary Cannot be a preliminary order. - partly final. In general, there can only be one decree or at the most one preliminary and one final decree in a suit. There can be any number of orders in a suit.

Every decree is appealable unless an appeal is expressly barred. A second appeal may lie against a decree to a High Court on certain grounds.

Only those orders which are specified as appealable in the code are appealable. There is no second appeal for orders.

Judgement
As per Section 2 (9), "judgment" means the statement given by the judge of the grounds of a decree or order. Every judgment should contain - a concise statement of the case, the points for determination, the decision thereon, the reasons for the decision. In the case of Balraj Taneja vs Sunil Madan, AIR 1999, SC held that a Judge cannot merely say "Suit decreed" or "Suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the other. As per Rule 6 A of Order 20 the last part of the judgment should precisely state tge relief granted. Thus, a judgment is a state prior to the passing of a decree or an order. After pronouncement of a judgment, a decree shall follow.

Kinds of Decree
Preliminary - Where an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit but does not completely dispose of the suit, it is a preliminary decree. It is passed when the court needs to adjudicate upon some matters before proceeding to adjudicate upon the rest. In Shankar vs Chandrakant SCC 1995, SC stated that a preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. CPC provides for passing a preliminary decrees in several suits such as - suit for possession and mesne profits, administration suit, suits for pre-emption, dissolution of partnership, suits relating to mortgage. In Narayanan vs Laxmi Narayan AIR 1953, it was held that the list given in CPC is not exhaustive and a court may pass a preliminary decree in cases not expressly provided for in the code. Final - When the decree disposes of the suit completely, so far as the court passing it is concerned, it is a final decree. A final decree settles all the issues and controversies in the suit. Party preliminary and partly final - When a decree resolves some issues but leaves the rest open for further decision, such a decree is partly final and party preliminary. For example, in a suit for possession of immovable property with mesne profits, where the court decrees possession of the property and directs an enquiry into the mesne profits, the former part of the decree is final but the latter part is preliminary. Deemed Decree - The word "deemed" usually implies a fiction whereby a thing is assumed to be something that it is ordinarily not. In this case, an adjudication that does

not fulfill the requisites of S. 2 (2) cannot be said to be a decree. However, certain orders and determinations are deemed to be decrees under the code. For example, rejection of a plaint and the determination of questions under S. 144 (Restitution) are deemed decrees.

Consequences of Non appearance of parties (Order 9)

The general provisions of CPC are based on the principle that both the parties must be given an opportunity to be heard. The proceedings must not be held to the disadvantage of one party. Order 9 lays down rules regarding the appearance and the consequences of non appearance of a party in the hearing. Rule 1 - Parties to appear on day fixed in summons for defendant to appear and answer On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. Dismissal of Suit Rule 2 - Dismissal of suit where summons not served in consequence of plaintiffs failure to pay cost Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, or to present copies of the plaint or concise statements, as required by rule 9 of order VII, the Court may make an order that the suit be dismissed : Provided that no such order shall be made, if, notwithstanding such failure the defendant attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer. Rule 3 - Where neither party appears, suit to be dismissed Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. Rule 4 - Plaintiff may bring fresh suit or Court may restore suit to file Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. Rule 5 - Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons (1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved the plaintiff fails, for a periods of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the

plaintiff has within the said period satisfied the Court that (a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit. (2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit. Ex parte Proceedings Rule 6 - Procedure when only plaintiff appears (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then (a) When summons duly servedif it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte. (b) When summons not duly servedif it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant; (c) When summons served but not in due timeif it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiffs' default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. Rule 7 - Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance. Absence of Plaintiff Rule 8 - Procedure where defendant only appears Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. Rule 9 - Decree against plaintiff by default bars fresh suit (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was

sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. Multiple plaintiffs and/or Defendants Rule 10 - Procedure in case of non-attendance of one or more of several plaintiffs Where there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit. Rule 11 - Procedure in case of non-attendance of one or more of several defendants Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear. General Consequence of Non appearance Rule 12 - Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do no appear. This means either the suit will be dismissed or will be continued ex parte.

Ex parte Decree (Order 9)

As per Rule 6, if the defendant fails to appear before the court in spite of a proper service of the summons, the court may proceed ex-parte and may pass a decree in favor of the plaintiff. This is called an ex-parte decree. In the case of Hochest Company vs V S Chemical Company, SC explained that an ex parte decree is such decree in which defendant did not appear before court and the case is heard in the absence of the defendant from the very beginning. Remedies available to the defendant against an ex parte decree 1. Application to set aside the ex parte decree - As per Order 9, Rule 13, a defendant may apply before the court that passed the decree to set it aside. If he satisfies the court that the summons was not duly served or he was prevented by any other sufficent cause from attending the hearding, the court shall make an order setting aside the decree. For example, bona fide mistake as to the date or hearing, late arrival of train, etc. are sufficient causes for absence of the defendant. Such an application for setting aside may

be made within 30 days from the date of decree as per Section 123 of Limitation Act. Setting aside decrees ex parte Rule 13 - Setting aside decree BIex parte against defendant In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim Explanation.Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. Rule 14 - No decree to be set aside without notice to opposite party No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party. The court may impose conditions as it may deem fit on the defendant for setting asided the decree. It may ask the defendant to pay costs. When an ex parte decree is set aside, the court should proceed to decide the suit as it stood before the decree. The trial should commence de novo and the evidence that had been recorded in the ex parte proceeding should not be taken into account. This remedy is specifically meant for an ex parte decree. 2. Prefer an appeal against the decree under Section 96(2). 3. Apply for review under Order 47 Rule 1. 4. File a suit on the ground of fraud. All the above remedies are concurrent and can be pursued concurrently.

Execution of a Decree

As per Section 38, a decree may be executed either by the court which passed it or the court to which it is sent for execution. While executing a decree, several questions and objections may arise as to the manner of execution. It would be impractical to institute new suits to resolves such matters. Thus, Section 47 lays down the general principal that any questions that arise in relation to the execution of the decree should be resolved in execution proceeding itself and not by a separate suit. Section 47 says thus 47. Questions to be determined by the Court executing decree (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation I.For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section. The objective of this section is to provide cheap and fast remedy for the resolution of any questions arising at the time of execution. Institution of new suits would only increase the number of suits and would also be a burden on the parties. The scope of this section is very wide. It confers exclusive jurisdiction to the court executing the decree in all the matters regarding the execution. It does not matter whether the matter has arisen before or after the execution of the decree. Thus, this section should be construed liberally. Conditions 1. The question must be one arising between the parties or their representatives to the suit in which the decree is passed. 2. The question must relate to the execution, discharge, or satisfaction of the decree. As held in the case of Arokiaswamy vs Margaret AIR 1982, both the conditions must be satisfied cumulatively. What is meant by execution, discharge and satisfaction of a decree This expression has not been defined in the code. However, the following questions are held to be relating to the execution, discharge and satisfaction of the decree whether a decree is executable, whether a property is liable to be solde in execution of a decree, whether the decree is fully satisfied, whether the execution of the decree was postponed.

The following questions have been held as not related - whether the decree is fraudulent or collusive, whether the decree has become inexecutable because of a compromise between the parties, a question about the territorial or pecuniary jurisdiction of the court passing the decree. Appeal and Revision Earlier, determination made under Section 47 was deemed to be a decree under Section 2(2). However, after the amendment in 1976, this is not so. Any determination made under an application under Section 47 is not considered a decree and is therefore not appealable under Section 96 or Section 100. Since it is no more a decree, a revision application under Section 115 is therefore maintainable provided the conditions stipulated in Section 115 are satisfied.

Q. What are the objects and essential conditions of the doctrine of res judicata? Illustrate the principle of constructive res judicata. Can an ex parte decree act as constructive res judicata?.
Res iudicata is the Latin term for "a matter already judged", and refers to the legal doctrine meant to bar continued litigation of cases that have already been decided between the same parties. The doctrine of res judicata is based on three maxims (a) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause) (b) Interest republicae ut sit finis litium ( it is in the interest of the state that there should be an end to a litigation); and (c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct) The legal concept of RJ arose as a method of preventing injustice to the parties of a case supposedly finished as well as to avoid unnecessary waste of resources in the court system. Res iudicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury. Res Judicata is a rule of universal law pervading every well regulated system of jurisprudence and is based upon a practical necessity that there should be an end to litigation and the hardship to the individual if he is vexed twice for the same cause. Thus, this doctrine is a fundamental concept based on public policy and private interest. It is conceived in the larger public interest, which requires that every litigation must come to an end. It therefore, applies to all kinds of suits such as civil suits, execution proceedings, arbitration proceedings, taxation matters, writ petitions, administrative orders, interim orders, and criminal proceedings.

Res Judicata under Code Of Civil Procedure, 1908

Section 11 of CPC embodies the doctrine of res judicata or the rule of conclusiveness of a judgement, as to the points decided either of fact, or of law, or of fact and law, in every subsequent suit between the same parties. It enacts that once a matter is finally decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. In the absence of such a rule there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses. Section 11 says thus: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II. For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III. The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V. Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI. Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII. The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII. An issue heard and finally decided by a Court of limited jurisdiction,

competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. The doctrine has been explained by Justice Das Gupta as follows - The principle of Res Judicata is based on the need of giving a finality to the judicial decisions. What it says is that once a case is res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter- whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvas the matter again. Essential Elements for Res Judicata 1. The matter in issue in a subsequent suit must directly and substantially be same as in the previous suit. 2. The former suit must have been between the same parties or between parties under whom they or any of them claim. 3. Such parties must hae been litigating under the same title in the former suit. 4. The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised. 5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. Give Illustrations --The onus of proof lies on the party relying on the theory of res judicata. Exceptions to application Res iudicata does not restrict the appeals process, which is considered a linear extension of the same lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals are considered the appropriate manner by which to challenge a judgment rather than trying to start a new trial. Once the appeals process is exhausted or waived, res iudicata will apply even to a judgment that is contrary to law. The provisions of section 11 of the Code are mandatory and the ordinary litigant who claims under one of the parties to the former suit can only avoid its provisions by taking advantage of section 44 of the Indian Evidence Act which defines with precision the grounds of such evidence as fraud or collusion. It is not for the court to treat negligence or gross negligence as fraud or collusion unless fraud or collusion is the proper inference from facts.

In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others it was held that where it is established that the minors suit was not brought by the guardian of the minors bona fide but was brought in collusion with the defendants and the suit was a fictitious suit, a decree obtained therein is one obtained by fraud and collusion within the meaning of section 44 of the Indian Evidence Act, and does not operate res judicata. The principle of res judicata in section 11 CPC is modified by section 44 of the Indian Evidence Act, and the principles will not apply if any of the three grounds mentioned in Section 44 exists. Failure to apply When a subsequent court fails to apply res iudicata and renders a contradictory verdict on the same claim or issue, if a third court is faced with the same case, it will likely apply a "last in time" rule, giving effect only to the later judgment, even though the result came out differently the second time.

Constructive Res Judicata

The rule of direct res judicata is limited to a matter actuallu in issue alleged by one party and denied by other either expressly or impliedly. But constructive res judicata means that if a plea could have been taken by a party in a proceeding between him and his opponent, and if he fails to take that plea, he cannot be allowed to relitigate the same matter again upon that plea. In affect, the partly impliedly gives up the right to that plea by not pleading it in the previous suit. This principle is embodied in Explanation IV of Section 11. Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Give Illustrations In the case of Kesar Das Rajan Singh v. Parma Nand Vishan Dass, AIR 1959, a peculiar situation arose. In this case the plaintiff had filed a suit on the basis of a promissory note. However, the plaintiff himself left the country and in subsequent proceedings since he was unable to provide the promissory note to his advocate in the foreign country the suit got dismissed. The plaintiff later on filed another suit in the local courts. The defendant took the plea that the present suit was barred by res judicata. The Court held that the judgment on the previous suit since it did not touch upon the merits of the case, therefore could not be held to be res judicata for the present suit . Ex parte decree as Res Judicata An ex parte decree, unless it is set aside, is a valid and enforceable decree. However, the real test for res judicata is whether the case was decided on merits. The real test for deciding whether the judgment has been given on merits or not is to see whether it was merely formally passed as a matter of course, or by way of penalty for any conduct of the defendant, or is based upon a consideration of the truth or falsity of the plaintiff's claim,

notwithstanding the fact that the evidence was led by him in the absence of the defendant. Thus, a decree may not act as res judicata merely because it was passed ex parte.

It therefore acts a res judicata.

Q. Describe the organization of police, prosecutor, defense counsel and prison authorities and their functions, duties, and powers.
Police
The ordinary criminal courts derive their existence from CrPC. However, CrPC does not say anything about the constitution of Police. It assumes the existence of police and devolves various powers and responsibilities on to it. Functions As per The Police Act, 1861, the police force is an instrument for the prevention and detection of crime. Organization Every state establishes its own police force which is formally enrolled. The force consists of such number of officers and men and is constituted in such manner as the state govt. may decide from time to time. The overall administration of police in the entire state is done by Director General of Police. The administration of police in a district is done by District Superintendent of Police under the general control and direction of District Magistrate who is usually the Collector of the district. Every police officer appointed to the police force, other than Inspector General of Police and District Superintendent of Police, receives a certificate in prescribed form by virtue of which he is vested with the powers, functions and privileges of a police officer. The Police Act, 1888 also empowers the Central Govt to create special police districts and to extend the jurisdiction of police of any state to that district. The Police Act 1949, creates a police force for Union Territories. Powers 1. The Cr P C confers specific powers on the members of police force who are enrolled as police officers. These powers include power to make an arrest, search, and investigate. Wider powers have been given to police officers in charge of a police station. As per Section 2(s), police station means any post or place that is generally or specially designated by the state govt as a police station. Further, as per Section 2(o) officer in charge of a police station includes the officer who is present at the police station and is next in rank to the police officer in charge, if he is on leave or is absent. This only

increases the importance of the police officer in charge of a police station. 2. Section 36 of CrPC specifies that officers of police who are superior in rank to police officer in charge of a police station can exercise all the powers of that police officer. In the case of State of Bihar vs J A C Saldanha SCC 1980, SC held that if the Inspector General (Vigilance) is an officer superior to the officer in charge of the police station he can exercise the powers of that officer through out the territory to which the superior officer has been appointed, which, in this case is the entire territory of Bihar. Duties -

Prosecutor
A crime is a wrong not only against an individual but is also against the society. It is because of this reason that the state, which represents the collective of people, participates in the criminal trial of an accused, specially if the crime is of cognizable nature. Public Prosecutor or Assistant Public Prosecutor is the state counsel for such trials. As per section 2(u), Public Prosecutor means any person appointed under Section 24 and includes any person acting under the directions of the public prosecutor. Section 24 of CrPC specifies the rules for appointment of Public Prosecutor. A person shall be eligible to be appointed in High Court as Public Prosecutor if he has been in practice as an advocate for not less than seven years. The appointment can be made only after consultation with the High Court. Further, the central govt. can appoint a Public Prosecutor for conducting in a high court any prosecution, appeal, or other proceeding on behalf of the Central Govt. Assistant Public Prosecutor are appointed under Section 25. It authorizes the State Govt. to appoint one or more APPs for every district for conducting any case in Court of Magistrates. No police officer is allowed to be appointed as APP. Duties Duty of a public prosecutor mainly consists in conducting the prosecution on behalf of the state. His goal is not merely to produce a conviction but the help the court arrive at a just decision. He also appears as the state counsel in criminal appeals, revisions, and such other matters in the Session Courts and High Court. It is important to note that he does not appear on behalf of the accused. Powers 1. As per Section 301, a Public Prosecutor or Assistant Public Prosecutor has the authority to appear and plead before any court in any case entrusted to him. 2. As per Section 321, he can withdraw from the prosecution against any person with the consent of the court. According to the pattern set by CrPC, Public Prosecutors conduct the proceedings in Session Courts and the High Courts and Assistant Public Prosecutors are appointed for conducting prosecution in Magistrates' Courts. As per prevailing practice, in respect of cases initiated on police reports, the prosecution is conducted by the APP and in cases initiated on a private complaint the prosecution is either conducted by the complainant himself or by his duly authorized counsel.

Defense Counsel
As per Section 303, any person accused of an offence before a Criminal Court has a right to be defended by a pleader of his choice. Such pleaders are not in regular employment of the state and a paid remuneration by the accused person. Since, a qualified legal practitioner on behalf of the accused is essential for ensuring a fair trial, Section 304 provides that if the accused does not have means to hire a pleader, the court shall assign a pleader for him at state's expense. At present there are several schemes through which an indigent accused can get free legal aid such as Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board, and Supreme Court Senior Advocates Fee Legal Aid Society. The Legal Services Authorities Act, 1987 also provides free legal aid for the needy.

Prison Authorities
CrPC presumes the existence of Prisons and Prison authorities. The code empowers magistrates and judges under certain circumstances to order detention of under trial prisoners in jail during the pendency of proceedings. The code also empowers the courts to impose sentences of imprisonment on convicted persons and to send them to prison authorities. However, the code does not make specific provisions for creation and administration of prison authorities. These matters are dealt with in separate acts such as The Prisons Act 1894, The Prisoners Act, 1900, and the Probation of Offenders Act 1958.

Q. What do you understand by Arrest? How is an arrest made? When can the police arrest a person without an order from a magistrate and/or without a warrant? Explain the rights of an arrested person. [Right to know the grounds of arrest - Art 22(1), Sec 50, 50(A), Right to consult and to be defended by legal practitioner of his choice - Art 22(1), Sec 303, Right to legal aid - Art 21, Sec 304, Right to bail Sec 50(2), Right to be produced before nearest magistrate within 24 hrs Art 22(2) Sec 56, 57, Right not to be detained in custody beyond 24 hrs - Art 22(2) Sec 57, 167, Right to be examined by medical practitioner]
Arrest means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus, after arrest, a person's liberty is in control of the arrester. Arrest is an important tool for bringing an accused before the court as well as to prevent a crime or prevent a person suspected of doing crime from running away from the law. Cr P C

contemplates two types of arrests - an arrest that is made for the execution of a warrant issued by a magistrate and an arrest that is made without any warrant but in accordance with some legal provision that permits arrest. Section 41 to 44 contain provisions that govern the arrest of a person by police and private citizens, while Section 46 describes how an arrest is a made. (Note - Arrest in case of Warrant is discussed in another question.)

Arrest without warrant

There are situations when a person may be arrested by a police officer, a magistrate or even private citizen without a warrant. These are described in Section 41, 42, 43, and 44 as follows Arrest by Police - Section 41. When police may arrest without warrant (CIPSODOBO) (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person (a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or (b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or (I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110. In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held that no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest. Further, in State vs Bhera, CrLJ, 1997, it was held that the "reasonable suspicion" and "creditable information" must relate to definite averments which must be considered by the Police Officer himself before he arrests the person. Section 42 allows a police officer to arrest a person for a non-cognizable offence, if he refuses to give his name and residence. As per Section 42(1), when any person who, in the presence of a police officer, has committed or has been accused of committing a noncognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. However, as per sub clause (2), the person must be released when the true name and residence of such person have been ascertained. He may be required to execute a bond, with or without sureties, to appear before a Magistrate if necessary. Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India. Further, as per sub clause (3), should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction. Arrest by Private person Even private persons are empowered to arrest a person for protection of peace in certain situations. This is important because police cannot be present at every nook and corner and it is up to private citizens to protect the society from disruptive elements or criminals. As per section 43(1), any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. Thus, if a person is drunk and is committing assault on others, he may be rightly arrested by any citizen and taken to the nearest police station. However, it is important to note that this power can be exercised only when the person making an arrest is under a bona fide impression that a non-bailable and cognizable office is being committed in his presence. One does not have a right to arrest on mere suspicion or on mere opinion that an offence has been committed.

Procedure on arrest by private person As mentioned above, the private person must take the arrested person to the police officer or police station without any reasonable delay. If he keeps the person in his own custody, he will be guilty of wrongful confinement as given in Section 342 of IPC. As per section 43(2), If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him. Further, as per section 43(3), if there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released. A new provision has been incorporated as Section 50A, which makes it obligatory for the police officer or any other person making an arrest to give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. Further, the police officer shall inform the arrested person of his rights under subsection as soon as he is brought to the police station. He must make an entry of the fact as to who has been informed of the arrest of such person in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. It is the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of this section has been complied with in respect of such arrested person. Arrest by Magistrate As per Section 44(1), when any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. Further, (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant. Important thing to note here is that magistrates have wider power than private citizen. A magistrate can arrest on the ground of any offence and not only on cognizable offence. As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the arrested person must be produced before another magistrate within 24 hours, otherwise his detention will be illegal.

Arrest how made Section 46 describes the way in which an arrest is actually made. As per Section 46(1), unless the person being arrested consents to the submission to custody by words or actions, the arrester shall actually touch or confine the body of the person to be arrested. Since arrest is a restraint on the liberty of the person, it is necessary for the person being arrested to either submit to custody or the arrester must touch and confine his body. Mere oral declaration of arrest by the arrester without getting submission to custody or physical

touching to confine the body will not amount to arrest. The submission to custody may be by express words or by action. For example, as held in the case of Bharosa Ramdayal vs Emperor AIR 1941, if a person makes a statement to the police accusing himself of committing an offence, he would be considered to have submitted to the custody of the police officer. Similarly, if the accused proceeds towards the police station as directed by the police officer, he has submitted to the custody. In such cases, physical contact is not required. In case of Birendra Kumar Rai vs Union of India, CrLJ, 1992, it was held that arrest need not be by handcuffing the person, and it can also be complete by spoken words if the person submits to custody. Section 46(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. Thus, if the person tries to runaway, the police officer can take actions to prevent his escape and in doing so, he can use physical force to immobilize the accused. However, as per Section 46(3), there is no right to cause the death of the person who is not accused of an offence punishable with death or with imprisonment for life, while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is necessary to prevent him from escaping. Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer after making a written report and obtaining a prior permission from the concerned Judicial Magistrate of First class. In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person.

Rights of an Arrested person (GBMLLIM)

Cr P C gives wide powers to the police for arresting a person. Such powers without appropriate safeguards for the arrested person will be harmful for the society. To ensure that this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can be seen as recognition of the rights of a person being arrested. Further, once arrested, a person is already at a disadvantage because of his lack of freedom and so he cannot take appropriate steps to defend himself. Thus, to meet the needs of "fair trial", several provisions are given in CrPC, that give specific rights to an arrested person. These rights can be described as follows 1. Right to know the grounds of arrest - Section 50(1) - According this provision, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Similarly, when a subordinate officer is deputed by a senior police officer to arrest a

person under Section 55, the subordinate officer must notify the person to be arrested of the substance of the written order given by the senior officer, which clearly specifes the offence for which he is being arrested. The same provision exists in case of an arrest made under a warrant in Section 75. In this case, the police officer or any person making arrest under warrat must notify the substance of the warrant to the person being arrested and if required, must show the warrant. As held in Satish Chandra Rai vs Jodu Nandan Singh, ILR 26 Cal 748, if the substance of the warrant is not notified, the arrest would be unlawful. In Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows him to move the proper court for bail, make a writ petition for habeas corpus, or make appropriate arrangements for his defence. This right is also a fundamental right given by the Constitution in Art 22(1), which says, "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.". It embodies two distinc rights - the right to be told of the grounds of arrest and the right to consult a legal practioner of his choice. The second right of consulting a legal practitioner of his choice actually depends on the first right of being told about the grounds of arrest. If the person doesn't know why he is being arrested, he cannot consult a legal practioner meaningfully. In Harikishan vs State of Maharashtra AIR 1962, SC held that the grounds of arrest must be communicated to the person in the language that he understands otherwise it would not amount to sufficient compliance of the constitutional requirement. 2. Right to be informed of the provision for bail - Section 50(2) - Some offences that are not very serious do not require the offender to be kept in custody. For such offences, Cr P C allows the offender to ask for bail as a matter of right. However, not every person knows about Cr P C and so they cannot know that they can get bail immediately. Thus, Section 50(2), provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. 3. Right to be taken to magistrate without delay - Holding a person in custody without first proving that the person is guilty is a violation of human rights and is completely unfair. At the same time, holding a person in custody is necessary for the police to carry on their investigation of a crime. These two are contradictory requirements and a balance must be found between them. Since police has arrested the person, it cannot be the agency that determines whether person must be kept confined further. This can only be decided by a competent judicial authority. This is exactly what is embodied in Art 22(2) that gives a fundamental right to the arrested person that he must be produced before a magistrate within 24 hours of arrest. It says, "Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the

said period without the authority of a magistrate." Section 57 of CrPC also contains a similar provision for a person arrested without a warrant. It says, "No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court." Section 76 contains a similar provision for a person arrested under a warrant. It says, "The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person. Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court." Thus, it can be see that it is a very important right that is meant to prevent abuse of police power and to prevent the use of a police station as a prison. It prevents arrest merely for the purpose of extracting confessions. The arrested person gets to be heard by a judicial authority that is independent of the police. In Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours be scrupulously met. This is a healthy provision that allows magistrates to keep a check on the police investigation. It is necessary that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police. Further, in Sharifbai vs Abdul Razak, AIR 1961, SC held that if a police officer fails to produce an arrested person before a magistrate within 24 hours, he shall be held guilty of wrongful detention. Constitutional Perspective on Art 22(2) - On the face of it, this article seems to be applicable on arrests with or without warrants. However, in State of Punjab vs Ajiab Singh AIR 1953, SC observed that it applies only to cases of arrests without warrant because in case of an arrest with warrant, the judicial mind has already been applied while issuing the warrant. So further safeguard is not required. This decision has been widely criticized. In any case, the proviso to Section 76 unmistakably provides that a person arrested under a warrant must be produced before a magistrate within 24 hours. 4. Right to consult Legal Practitioner - Art 22 (1) - For conducting a fair trial it is absolutely necessary that the accused person is able to consult with a legal practitioner whom he trusts. Second part of Article 22(1) gives this fundamental right to an arrested person. It says that no person who is arrested shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. However, this does not mean that the State must provide a legal practitioner of the person's choice. It is up to the arrested

person to contact and appoint a such a legal practitioner. The State's responsibility is only to ensure that he is not prevented from doing so. The same right is also provide by CrPC under Section 303, which says, "Any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice." 5. Right to free legal aid - Art 21 and Section 304 - A person who does not have the means to hire a legal practitioner is unable to defend himself appropriately. This casts a cloud on the fairness of the trial. Therefore, Section 304 provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State. In Khatri (II) vs State of Bihar 1981 SCC, Supreme Court has also held that access to a legal practitioner is implicit in Article 21, which gives fundamental right to life and liberty. The state is under constitutional mandate to provide free legal aid to an indigent accused person and this constitutional obligation arises not only when the trial is commenced but also when the person is first produced before a magistrate and also when he is remanded from time to time. In Suk Das vs Union Territory of Arunachal Pradesh 1986, SCC, SC has held that non-compliance of this requirement or failure to inform the accused of this right would vitiate the trial entailing setting aside of the conviction and sentence. The right of an accused person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be within the presence of a police officer but not within the police officer's hearing. SC also held that it is the duty on all courts and magistrates to inform the indegent person about his right to get free legal aid. 6. Right to be informed about the right to inform of his arrest to his relative or friend In order to ensure a fair trial and to improve people-police relationship, the Supreme Court, in Joginder Kumar vs State of UP 1994, formulated the rules that make it mandatory on the police officer to inform one friend, relative, or any other person of the accused person's choice, about his arrest. These rules were later incorporated in CrPC under section 50 A in 2005. Section 50 A (1) provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person's choice, about his arrest. He must also tell the place where the arrested person has been kept. This is a very important step in ensuring justice with the arrested person because this allows the arrested person and his well wishers to take appropriate legal steps to secure his release. However, all this will amount to nothing if the arrested person does not even know about this very critical right. Thus, Section 50 A (2) provides that the police officer must inform the arrested person of this right. Further, as per Section 50 A (3) he must note down the name and address of the person who was informed about the arrest. To make sure that there is no violation of this right, section 50 A (4) makes it a duty of the magistrate to verify that the provisions of this section were complied with.

7. Right to be examined by a medical practitioner - While Section 53 allows a police officer to get the accused examined by a registered medical practitioner, Section 54(1) gives the accused a right to get himself examined by a registered medical practitioner. Section 54 (1) says thus, "When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of' the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice". While Section 53 is meant to aid the police in investigation, Section 54(1) is meant for the accused to prove his innocence. This right can also be used by the accused to prove that he was subjected to physical injury. In Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the arrested accused person must be informed by the magistrate about his right to be medically examined in terms of Section 54(1). However, it is not clear in the section whether the medical person must be of the choice of the accused or shall be appointed by the magistrate. The section is also silent on who will bear the expense of the examination. Non compliance to this important provision prompted Delhi High court to issue directions that make it obligatory for the magistrates to ask the arrested person as to whether he has any complaint of torture or maltreatment in police custody.

Consequences of non-compliance with the provisions relating to arrest In general, non-compliance does not void a trial. Just because any provision relating to arrest was not complied with does not affect whether the accused is guilty or not. However, the violation will be material in case the accused is prosecuted on the charge of resistance to or escape from lawful custody. Further, everybody has a right to defend himself against unlawful arrest and a person can exercise this right under Section 96 to 106 of IPC and he will not be liable for any injury caused due to it. Also, a person who is making an illegal arrest is guilty of wrongful confinement and also exposes himself to damages in a civil suit. If a person who has an authority to arrest, arrests a person with full knowledge that the arrest is illegal, he will be liable to be prosecuted under Section 220 of IPC. Similarly, any private person who does not have an authority to arrest, arrests a person with full knowledge that the arrest is illegal, can be prosecuted under Section 342 of IPC for wrongful confinement. A person making illegal arrest also exposes himself to civil suit of false imprisonment. It is important to note that the provisions regarding arrest cannot be by-passed by alleging that there was no arrest but only an informal detention. Informal detention or restraint of any kind by the police is not authorized by law.

Q. What provisions are given in CrPC for compelling appearance in courts? What do you know about Summons in this context? Describe the procedure for issue and service of a Summons. How can a Summons be served on a govt. employee or outside local limits?
Processes for compelling appearance
To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court whenever needed. If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced. Further, the supremacy of the law will be questionable if there is no formal process to bring the required persons before the court. For this reason, Chapter VI (Sections 61 to 90) of CrPC provides three ways for compelling the appearance of any person who is required to be present in the court, in the court 1. Summons, 2. Warrant, and 3. Proclamation for person absconding While Summons is an order of the court to the person to appear before it, Warrant is an order of the court given to a third person to bring the person who is required to be present in the court, in the court. Which method is to be used in a particular situation depends on the judicial officer, who is guided by the provisions of this code. The third method is used when the person has absconded or is in any other way avoiding arrest, in which case the Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant case if the offence is punishable by death, imprisonment for life or imprisonment for more than two years. A summons case is a case that is not a warrant case. Thus, the basis of classification is the seriousness of the offence. Since summons case contains a lesser sentence, there is less probability of the accused violating the court order. Therefore, generally, a summons is issued for a summons case and a warrant is issued for a warrant case. However, when a summons is not productive in making a person appear before the court, the count may issue a warrant to a police officer or any other person to forcibly produce the required person before the court.

Summons
A Summons is a process issued by a Court, calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to a violation of the law. It is addressed to a

defendant in a legal proceeding. Typically, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person, and that a file has been started in the court records. The summons announces a date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Willful disobedience is liable to be punished under Section 174 of IPC. It is a ground for contempt of court. As per Section 61, every summons issued by a Court under this Code shall be in writing and in duplicate. It must be signed by the presiding officer of the Court or by such other officer as the High Court may, from time to time, by rule direct. It must also bear the seal of the Court.

Procedure for issuing a Summons

When a request in appropriate format is made to the court for compelling the appearance for a person, the court either rejects the request or issues a Summons. As per Section 204, if in the opinion of the magistrate taking cognizance of the offence, there is sufficient ground for proceeding, he shall issue a summons if it is a summons case. If it is a warrants case, he may issue a warrant or a summons as he thinks fit. However, Section 87, empowers a magistrate to issue a warrant even if the case is a summons case if he has reason to believe that the summons will be disobeyed. He must record his reasons for this action. The summons should contain adequate particulars such as the date, time, and place, of the offence charged. It should also contain the date, time, and place where the summoned person is supposed to appear. The standard format of a summons is given in Form 1 of Second schedule. As per Section 205, a magistrate issuing the summons may permit the accused to appear by his lawyer if he sees reason to do so.

Procedure for serving a Summons

CrPC describes the procedures for serving a summons on various categories of individuals - a person, a corporate body, a government servant, and a person residing outside the jurisdiction of the court. Section 62 describes the procedure for serving a Summons on a person as follows (1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant. (2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons. (3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.

In case of Danatram Karsanal, 1968, it was held that summons should not only be shown but a copy of it be left, exhibited, delivered, or tendered, to the person summoned. In a case, where a copy was tendered to the person, it was held that the summon was served. In E Chathu vs P Gopalan, 1981, it was held that when the person sought to be summoned is employed abroad, the court can send summons to the concerned embassy official for the purpose of service since the embassy official is also a public servant. Merely affixing the summon on a conspicuous part of the house will not amount to service of the summon. Service of summons on corporate bodies and societies (Section 63) Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principle officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post. In this section, "corporation" means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860. In the case of Central Bank of India vs Delhi Development Authority, 1981, it was held that a Branch Manager is a local manager and if he has been served the service shall be deemed to have been effected on the company itself. Service when persons summoned cannot be found (Section 64) Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. A servant is not considered to be a member of the family within the meaning of this section. Procedure when service cannot be effected as before provided (Section 65) If service cannot by the exercise of due diligence be effected as provided in section 62, section 63, or section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper. The service of summons on a witness can also be done by post. As per Section 69 (1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain. (2) When an acknowledgment purporting to be signed by the witness or an endorsement

purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the summons may declare that the summons has been duly served.

Service of summons on a Govt. employee (Section 66) Section 66 details the procedure for serving a summons on a Government employee as follows (1) Where the person summoned is in the active service of the Government, the Court issuing the summons shall ordinarily sent it in duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the Court under his signature with the endorsement required by that section. (2) Such signature shall be evidence of due service.

Service of summons outside local limits (Section 67) When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is believed to be there, served.

Q. What do you understand by Warrant of Arrest? Describe the procedure for issue and execution of a Warrant of Arrest. When can a court issue a warrant in a case in which it is empowered to issue a summons? When can a warrant be issued for recovery of a fine?
Introduction To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court whenever needed. If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced. Further, the supremacy of the law will be questionable if there is no formal process to bring the required persons before the court. For this reason, Chapter VI (Sections 61 to 90) of CrPC provides two ways for compelling the appearance of any person who is required to be present in the court, in the court - Summons and Warrant. While Summons is an order of the court to the person to appear before it, Warrant is an order of the court given to a third person to bring the person who is required to be present in the court, in the court. Which method is to be used in a particular situation depends on the judicial officer, who is guided by the provisions of this code. The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant case if the offence is punishable by death, imprisonment for life or imprisonment for more than two years. A summons case is a case that is not a warrant case. Thus, The

basis of classification is the seriousness of the offence. Since summons case contains a lesser sentence, there is less probability of the accused violating the court order. Therefore, generally, a summons is issued for a summons case and a warrant is issued for a warrant case. However, when a Summons is not productive in making a person appear before the court, the count may issue a warrant to a police officer or any other person to forcibly produce the required person before the court.

Warrant of Arrest
A warrant of arrest is a written authority given by a competent magistrate for the arrest of a person. It is a more drastic step than the issue of a summons. It is addressed to a person, usually a police officer, to apprehend and produce the offender in front of the court. Essential Elements of a valid warrant 1. The warrant must clearly mention the name and other particulars of the person to be arrested. As per Section 70(1), every warrant of arrest shall be in writing. It must be signed by the presiding officer of the court and must bear the seal of the court. As per section 70(2), a warrant remains in force until it is canceled or is executed. Normally, Form 2 of Second schedule is used to write a warrant. 2. It must show the person to whom the authority to arrest has been given. As per Section 72, a warrant is normally directed to one or more police officers but, if necessary, the court may direct it to any other person or persons. Further, section 73 provides that a magistrate may direct a warrant to any person within his jurisdiction for the arrest of any escaped convict, proclaimed offender, or of any person who is accused of a non-bailable offence and is evading arrest. 3. It may include a direction that if the person arrested under the warrant executes a bond and gives security for his attendance in court, he shall be released. Warrant with such a direction is called as bailable warrant of arrest. 4. It must clearly specify the offence.

Procedure for issuing a Warrant

When a request in appropriate format is made to the court for compelling the appearance for a person, the court either rejects the request or issues a Warrant. As per Section 204, if in the opinion of the magistrate taking cognizance of the offence, there is sufficient ground for proceeding, and if the cases is a warrant case, he may issue a warrant or if he thinks fit, he may issue a summons. Further, Section 87, empowers a magistrate to issue a warrant even if the case is a summons case if he has reason to believe that the summons will be disobeyed. He must record his reasons for this action.

Procedure for executing a Warrant

As per section 75, A warrant can be executed by showing the substance of the warrant to the person being arrest. If required, the warrant must be shown to the person arrested. Section 76 mandates that the person executing the warrant must produce the arrested person before the magistrate without unnecessary delay and within 24 hours excluding the time taken for travel from the place of arrest to the magistrate. As per section 77, a warrant may be executed anywhere in India. Section 78 specifies

that if a warrant is to be executed outside the local jurisdiction of the court issuing it, such court may send it to the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed instead of directing it to the police officer within the jurisdiction of the issuing court. Section 79 specifies the procedure for executing a warrant outside the local jurisdiction of the issuing court as follows (1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed. (2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant. (3)Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the Court which issued it.

When can a court issue a Warrant in a case in which it is empowered to issue summons
As per Section 87 a court may issue a warrant even in a case in which it is empowered only to issue a summons. A court can issue a warrant either before issuing a summons or even after issuing a summons. It may do so if it has reason to believe that the person has absconded or that the person will not obey the summons. Further, a court may issue a warrant if the summons was duly served and still the person fails to appear before it at the required date and time without any reasonable excuse. The court must record its reasons to do so. It must be noted that Section 204 empowers the court to issue a summons even for a warrants case if it believes that a summons is sufficient to enforce the appearance of the person before it, while Section 87 empowers the court to issue a warrant even in a summons cases, if reasonable causes exist. In general, a warrant ought not to be issued where a summons can serve the purpose and care should be exercised by the court to satisfy itself that upon the materials present before it, it was necessary to issue a warrant. In Anoop Singh vs Cheelu AIR 1957, it was held that this applies to an accused as well as a witness. But where the court has no power to issue a summons, it cannot issue a warrant under this section. In P K Baidya vs Chaya Rani AIR 1995, it was held that when a witness avoids his appearance in spite of the summons being appropriately served, court can take steps for securing his presence under this section.

When can a warrant be issued for recovery of a fine

Section 421 - Warrant for levy of fine-

(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may,(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless, it has made an order for the payment of expenses or compensation out of the fine under Section 357. (2) The State Government may make rules regulating the manner in which warrants under Clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under Clause (b) of sub-section (1), the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

Q. When is a person declared Absconder? Explain the procedure for publication of proclamation for persons absconding with reference to Sections 82, 83, 84, 85.
When a person is hiding from his place of residence so as to frustrate the execution of a warrant of arrest, he is said have absconded. A person may hide within his residence or outside away from his residence. If a person comes to know about the issuance of a process against him or if he anticipates such a process and hides or quits the country, he is said to have absconded. In Kartary vs State of UP, 1994, All HC held that when in order to evade the process of law a person is hiding from (or even in) his place of residence, he is said to abscond. A person is not said to abscond merely when he has gone to a distant place before the issuance of a warrant. Similarly, it is necessary that the person is hiding himself and it is not sufficient that an inspector is unable to find him. Normally, if a person fails to appear before the court even after being served a summons, the court issues a warrant of arrest. However, if the person absconds to avoid the arrest, the drastic step of Proclamation for Persons Absconding needs to be taken, which is described in Section 82..

Proclamation for person absconding (Section 82(1)) -

If the court has reason to believe that a person has absconded to avoid the execution of his arrest warrant, the court may publish a written proclamation requiring such person to appear before it at the specified place and time. The date and time of appearance must not be less than thirty days from the date of proclamation.

Procedure for Publication of the Proclamation (Section 82(2)) As per section 82(2), the proclamation must be read in some conspicious place of the town or village in which the person resides. It shall also be affixed to some conspicuous part of the house in which the person resides or to some conspicuous place of the town or village. Further, a copy of the same must also be affixed to some conspicious part of the court house. The court may also direct a copy of the proclamation to be published in a daily newspaper circulating in the place is which such person ordinarily resides. The terms of Section 82 are mandatory and a proclamation cannot be issued without first issuing a warrant of arrest. Therefore, as held in Bishnudayal vs Emperor AIR 1943, if there is no authority to arrest, the issuing of proclamation would be illegal.

Consequences of Proclamation
Section 83 - Attachment of property of person absconding The publication of proclamation in accordance with the procedure described in section 82, is the last of the steps taken to produce a person before the court. If the person still fails to appear before the court, Section 83 empowers the court to attach the property of the person who is absconding at any time. The court must record the reasons for doing so. The property can be movable or immovable. The property can be any property within the district or even outside the district of the District magistrate of the other district endorses the proclamation. Further, if, at the time of making proclamation, the court is satisfied that the person is about to dispose of his property or is about to move his property out of the jurisdiction of the court, it may order the attachment of the property simultaneously with the issue of proclamation. If the property to be attached is a debt or is movable property, the attachment is done either by seizure, by the appointment of a receiver, by an order ins writing prohibiting the deliver of sch property to the proclaimed person or to anyone on his behalf. Court can also use any one or more of these modes as it thinks fit. If the property is immovable, it can be attached by taking possession, by appointing a receiver, by an order prohibiting the payment of rent to the proclaimed persons or by any or all of these methods. Section 84 provides a means to protect the interests of any person other than the proclaimed person in the attached property. Any such person who has an interest in the attached property can claim it within six months from the date of attachment on the ground that the claimant has an interest in the property and the interest is not liable to be attached under section 83. The claim shall be inquired into and may be allowed or disallowed in whole or in part.

(1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part: Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative. (2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under sub-section (2) of section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made. (3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made: Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him. (4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive. Section 85 - Release, Sale, and restoration of the property (1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment. (2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit. (3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net

proceeds of the sale, and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him. Disclaimer Information in this document is being provided as-is without any warranty/guarantee of any kind. We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the information in this document. However, we may have made mistakes and we will not be responsible for any loss or damage of any kind arising because of the usage of this information. Further, upon discovery of any error or omissions, we may delete, add to, or amend information on this website without notice. This document is intended to provide information only. If you are seeking advice on any matters relating to information on this website, you should where appropriate contact us directly with your specific query or seek advice from qualified professional people.

Q. 8 What is meant by Commencement of proceedings? [Sec 200, 201, 202] When can a complaint be dismissed? [Sec 203]
"Commencement of proceedings" happens with the proceedings that take place after "taking of cognizance" of an offence by a magistrate under Section 190, which can happen either on a complaint by any person, a police report, any other source other than a police officer, or upon his own knowledge. However, when cognizance is take upon a complaint made by any person, it is critical to examin the complainant to ensure that the complaint is genuine before starting the trial and summoning an accused. According to 41st Law Report, everyday experience of the court shows that a vast number of complaints to the magistrate are ill founded and therefore they should be carefully considered at the very start and those which are not very convincing on the face should be subjected to further scrutiny so that an accused person is summoned only in substantial cases. What this means is that frivolous and vexatious cases that are just meant to harass an accused must be weeded out. This is exactly the objective of Section 200, which implores a magistrate to examin the compainant under oath and any witnesses. Section 200 says: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under

section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. In MacCulloch vs State, 1974, it was held by SC that the provisions of section 200 are not a mere formality, but have been intended by the legislature to be given effect to for the protection of the accused persons against unwarranted complaints. It is also necessary that to start the trial process, the magistrate must be competant to take cognizance the alleged offence. Section 201 says that if the magistrate is not competant to take congnizace of an offence, he shall (a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. To further protect a person from frivolous cases arising from complaints from private parties, Section 202 empowers a magistrate to inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding and he can postpone the issue for process for this purpose. It is important to note that the "weeding" as envisaged by Section 200-203 is only applicable to cases where cognizance is taken by the magistrate upon a complaint by a private party. It is not applicable to cognizance taken upon a police report. Issue of Process (Section 204) Once it is determined that a prima facie case exists against the accused, the magistrate proceeds with the case as per Section 204 by the way of issuing a process. Which means : (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87 (Section 87: Issue of warrant in lieu of, or in addition to, summons).

Dismissal of a Complaint - Section 203

As mentioned before, upon receiving a complaint, a magistrate can conduct an inquiry or direct investigation of the complaint under Section 202(1). Section 203 empowers a magistrate to dismiss the complaint, if, after considering the statements on oath from the complainant or his witnesses or the result of the inquiry or investigation, he believes that there are no sufficient grounds for proceeding further. He must record the reasons for dismissal. The magistrate must apply his mind on the collected statements and inquiry report to determine whether there is any merit in the complaint. However, as held by SC in Chandra Deo Singh vs Prokash Chandra Bose, 1963, the test specified by Section 203 for dismissing a complaint is only whether sufficient grounds exist for proceeding further and not whether sufficient grounds exist for conviction. Thus, even if the magistrate does not see sufficient grounds for conviction but sees sufficient ground for proceeding further with the trial, he must not dismiss the complaint. SC further observed that where there is a prima facie evidence against the accused, even though the accused might have a defence, the issue of process cannot be refused because the hearing of defence must be done at the appropriate stage and at appropriate forum. Disclaimer Information in this document is being provided as-is without any warranty/guarantee of any kind. We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the information in this document. However, we may have made mistakes and we will not be responsible for any loss or damage of any kind arising because of the usage of this information. Further, upon discovery of any error or omissions, we may delete, add to, or amend information on this website without notice. This document is intended to provide information only. If you are seeking advice on any matters relating to information on this website, you should where appropriate contact us directly with your specific query or seek advice from qualified professional people.

Q. What is an offence?
General Concept of Offence A violation of a penal law is an offence. Thus, any act which is deemed as an offence by any law is an offence. In general, such act which causes a violation of rights of others or cause harm to others and is so dangerous that is also affects the society at large is designated as offence by the legislature through the acts of the parliament. Section 2(n) of CrPC defines an offence as follows Section 2(n) - "Offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871. Further Section 39(2) says that act committed outside India is also an offence if that act would be an offence if committed in India.

It is important to note that an act is not offence unless it is clearly defined as an offence by any piece of legislature. Thus, to be an offence, the legislature must designate it to be an offence. Several Acts and Legislations defines such acts which constitute offences. The main among them is the Indian Penal Code. It defines acts ranging from theft and murder to fraud and criminal breach of trust and makes them offences. Examples of other acts which defines offences are Wildlife Protection Act, Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act, Environmental Protection Act. These Acts defines certain activities related to the focus of the Act as offences. Some Acts such as Prevention of Corruption Act and Narcotic Drugs and Psychotropic Substances Act also specify the mode of trial for the offences that they define, while some specify that trial for their offences will be held as per the provisions of Cr PC.

Q. What is Bail?
The purpose of arrest and detention of a person is primarily to make sure that the person appears before the court at the time of trial and if he is found guilty and is sentenced to imprisonment, he must be made available to serve his sentence. However, if it is reasonably evident that the person charged with an offence can be made available for the above mentioned purposes without keeping him imprisoned, then it is unfair to keep him in custody until his guilt is proven. It is a violation of a person's fundamental right to restrict the person's liberty without any just cause. Bail is one such mechanism which is used to ensure the presence of an accused whenever required by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in which a person makes a written undertaking to the court. A person who is in custody, because he or she has been charged with an offence or is involved in pending criminal proceedings, may apply to be released on Bail. Normally, in signing a bail agreement a person undertakes that he will be present every time the matter is in court until the proceedings are finished, will comply with any conditions set out in the agreement as to conduct while on Bail, and will forfeit a specified sum of money if the person fails, without proper excuse, to comply with any term or condition of the agreement. Two authorities that may grant bail are the police and the courts. A person may be required to provide a security as well. But it is not necessary. A person may also be let off on his own bond. In the case of Moti Ram vs State of MP, AIR 1978, SC held that a Bail covers both release on one's own bond with or without surety.

Q. What is a Bailable and Non-Bailable offence?

An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable offence is an offence of relatively less severity and for which the accused has a right to be released on bail. While a non-bailable offence is a serious offence and for it, the accused cannot demand to be released on bail as a right. More specifically, Section 2(a) defines Bailable Offence as well as Non-Bailable Offence as follows Section 2 (a) - Bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force: and

"non-bailable offence" means any other offence. Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply makes those offences as bailable which are listed as so in the First Schedule of Cr P C. These offences include offences such as obstructing a public servant from discharging his duties, bribing an election official, and providing false evidence. Nonbailable offences include offences such as murder, threatening a person to give false evidence, and failure by a person released on bail or bond to appeal before court. However, a quick look at the list of bailable and non-bailable offences shows that bailable offences are of relatively less severity.

Q. When and When not can Bail be granted?

As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused before the court whenever required. However, granting bail is not advisable in all cases. For example, a murder, if let loose, may try to intimidate the witnesses, or he may even abscond altogether. This is very bad for the society in general and reflects bad on the justice system. Thus, various rules and procedures have been formulated to make sure that only the deserving are released on bail. They try to achieve a balance between the rights of the accused and the protection of the society and effectiveness of the justice system. The working of the bail system in India was highlighted in the case of Hussainara Khaton vs Home Secretory, 1980. It came to the courts attention for the first time that thousands of people were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6 months to an year. This was because they were unable to pay bond money for bail and the courts were too backlogged to hear their cases. In this respect, J Bhagwati observed that the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties. Thus, in general, the intention of the justice system is to give bail and not jail before the accused is convicted. It is said that since the accused is presumed innocence, he must be released so that he can fight for his defense. Thus, releasing a person on bail is a rule, while denying bail is an exception. Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence or non-bailable offence Bail for Bailable offences A person accused of a bailable offence can demand to be released on bail as a matter of right. This is provided for by Section 436. Section 436 - When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at, any, time while-in the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail.

Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance. Section 50(2) imposes an obligation on the police officer to notify the detained person about his right to get bail if he is detained on a bailable offence. The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1) specifically provides that the amount of bail cannot be unreasonably high. An amendment to Section 436 mandates that an indigent person, who is unable to provide any bail amount, must be released. If a person is unable to provide bail amount for a week, then he can be considered indigent. Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the offence. Bail for Non-Bailable offences When a person is detained for a non-bailable offence, he cannot demand to be released on bail as a matter of right. He can, however, request the court to grant bail. The provisions in this case are governed by Section 437/ Section 437 - When any person accused of, or suspected of, the commission of any nonbailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail. If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance. A police officer or the court may also release a person from custody if he feels that there are any special reasons. But he must record his reasons in writing. Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that must be given while giving bail in case of non-bailable offences. These are 1. the nature of the crime 2. the nature of the charge, the evidence, and possible punishment 3. the possibility of interference with justice 4. the antecedents of the applicant 5. furtherance of the interest of justice 6. the intermediate acquittal of the accused 7. socio-geographical circumstances 8. prospective misconduct of the accused 9. the period already spent in prison 10. protective and curative conditions on which bail might be granted.

If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. If the investigation is not done within 24 hours, the arrested person must be bought before the court and if required, the police must make a case to extend the detention. The court may extend the detention by 15 days. However, the detention cannot extend more than 60 days (or 90 days, if the offence is punishable by death or imprisonment for life), after which the accused must be released on bail. This provision applies for bailable as well as non-bailable offence. Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the offence. Conditions on Bail As per Section 437, if any person accused of an offence punishable with 7 yrs or more of imprisonment is released on bail, the court may impose any condition on the bail to ensure that the person will attend the court in accordance with the bond executed by him, or to ensure that the person will not commit a similar offence or otherwise in interest of justice. Special Powers of Hight Court and Court of Session regarding Bail Section 439 gives special powers to High Court and Court of Session regarding bails. These are as follows 1. A High Court or Court of Sessions may direct that any person accused of an offence and in custody be released on bail. It may also impose any condition which it considers necessary. It may set aside or modify any condition imposed by a Magistrate when releasing any person on bail. 2. The High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. 3. A High Court or Court of Sessions may direct that any person who has been released on bail under this chapter be arrested and commit him to custody.

When can bail be denied 1. As per Section 436(2), if a person has violated the conditions of the bail-bond earlier, the court may refuse to release him on bail, on a subsequent occasion in the same case. He can also be asked to pay penalty for not appearing before the court as per the conditions of the previous bail. 2. It is clear that the provision for bail in case of non-bailable offences gives a discretionary power to the police and and court. However, this power is not totally without any restraint. Section 437 disallows bail to be given in the following conditions. 1. if there appears reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life; 2. if such offence is a cognizable offence and the person has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. The person may, however, be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm. 3. Persons accused of Dowry Death Cancellation of Bail Although there was no provision for cancellation of the bail in the old code, the SC in Talib's case (AIR 1958) held the absence of such provision as a lacuna and recognized the power of High Court of cancellation of bail. In the new code, as per section 437 (5) any Court which has released a person on bail under section 437(1) or 437(2), may direct that such person be arrested and commit him to custody. This basically cancels the bail. However, it must be noted that only the court that has given the bail can cancel it. Thus, a bail given by a police officer cannot be canceled by a court under this section. To do so the special power of High Court or Court of Session under Section 439 has to be invoked. The new Section 439 explicitly gives the power to High Court and Court of Session to direct that any person who has been released on bail be arrested and to commit him to custody. The power given by Section 439 for cancellation has no riders. It is a discretionary power. It is not necessary that some new events should take place subsequent to the offender's release on bail for the Sessions Judge to cancel his bail, however, the court usually bases its decision of cancellation on subsequent events. For example, in the case of Surendra Singh vs State of Bihar 1990, Patna HC pointed out that a bail may be cancelled on following grounds 1. When the accused was found tampering with the evidence either during the investigation or during the trial 2. when the accused on bail commits similar offence or any heinous offence during the period of bail. 3.when the accused had absconded and trial of the case gets delayed on that account. 4. when the offence so committed by the accused had caused serious law and order problem in the society 5. if the high court finds that the lower court has exercised its power in granting bail

wrongly 6. if the court finds that the accused has misused the privileges of bail 7. when the life of accused itself is in danger Appeal Provision for Bail It has been held that an order granting bail is an interlocutory order and so it cannot be challenged under the revisional jurisdiction of the Session Court or High Court. In general, there is no right of appeal against the decision of refusing the bail. However, a person can alway file for Special Leave Petition to High Court or Supreme Court against such decision. Some acts, such as POTA, explicitly grant a right to appeal against a decision of refusal of bail to special courts.

Q. What do you understand by Anticipatory bail? When is it granted and when it may be refused? What is the difference between the general provisions of anticipatory bail and regular bail?
It has been observed that many cases are instigated against a person just because of political motivation or personal vendetta. They lack enough evidence and are meant to harass a person by getting him arrested. When a person apprehends such situation he may apply to Court of Session or the High Court under Section 438 for a direction that he be released on bail upon his arrest. This provision is commonly known as Anticipatory Bail, i.e bail in anticipation of an arrest. Anticipatory bail is technically an incorrect term because a bail can be given only if a person has already been arrested. In this case, the court directs that the person be released on bail as soon as he is arrested. Thus, it is a direction to provide bail and not the bail itself. Section 438 - When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. While applying under this section, the person has to explain the circumstances because which he believes he might be arrested. Mere hunch or fear is not enough. He must also provide such evidence that shows there is a reasonable probability that he will be arrested on accusation of a non-bailable offence. Further, the direction under this section can be given only upon a specific offence. A generic direction or a blanket order to be released whenever the applicant is arrested and on whatever offence is not allowed. In granting such a direction the court takes into account the following considerations 1. The nature and gravity of the accusation. 2. The antecedents on the applicant including the fact as to whether he has previously

been imprisoned upon a conviction by a court in respect of a cognizable offence. 3. The possibility of the accused to flee from justice 4. whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested. The order may also include conditions such as the person shall make himself available for interrogation by a police officer whenever required, the person shall not leave India, the person shall not make any inducement, threat, or promise to any person acquainted with the facts of the case, or any other condition that the court may think fit. It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently to Court of Session and High Court. Thus, a person can approach either of the courts to get this relief. As per Section 438 A, the court may also grant an interim order and in that case an opportunity is given to the public prosecutor present his arguments on why the applicant should not be given bail. Further, as per Section 438 B, if the court finds it necessary, it may require the applicant to be present personally at the time of final determination of the interim order. A bail under the direction of this section is equivalent to the bail given under Section 437(1) and so it is applicable until the conclusion of the trial.

Refusal of Anticipatory Bail

Although, there is no specific provision that prohibits granting anticipatory bail, there are certain situations where such bail is normally not granted. These are 1. In case of dowry death or wife harassment. 2. In case of economic offences 3. In case of atrocious crimes Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused must seek remedy under Section 437. Some high courts have held that the grounds mentioned in Section 437 for denying regular bail are applicable for anticipatory bail as well. Thus, a person accused of an offence that entails a punishment of death or life imprisonment will not be given anticipatory bail. In general, the court has a wide discretion in granting anticipatory bail. So the court may deny this relief if it feels that it is not in the interest of justice. Cancellation of Anticipatory Bail There is no specific provision that allows a court to cancel the order of anticipatory bail. However, in several cases it has been held that when Section 438 permits granting

anticipatory bail, it is implicit that the court making such order is entitled upon appropriate considerations to cancel or recall the order. Disclaimer Information in this document is being provided as-is without any warranty/guarantee of any kind. We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the information in this document. However, we may have made mistakes and we will not be responsible for any loss or damage of any kind arising because of the usage of this information. Further, upon discovery of any error or omissions, we may delete, add to, or amend information on this website without notice. This document is intended to provide information only. If you are seeking advice on any matters relating to information on this website, you should where appropriate contact us directly with your specific query or seek advice from qualified professional people.

Q. Explain general provisions concerning bond [Sec 441 - 450]. Explain the procedure that is followed when a bond is forfeited [Section 446].
Bond As per Section 441, before any person is released on bail or is released on his own bond, a bond for an appropriate sum of money shall be executed by the person and if required by one or more sureties, stating that the person will appear before the court at the given date and time mentioned in the bond. In other words, a bonds provides a kind of monetary guarantee that the person being released will appear before the court as and when required. General Provisions of Bonds - ( ABNRI DDFFIMAL) Section 440 - Amount of bond should not be excessive. High Court and Court of Session have power to reduce the amount. Section 441 - Court may accept affidavits in proof of fitness of sureties or it may also hold an inquiry to determine the sufficiency of sureties. Section 441 A - Every surety must state the number of person he is currently standing surety for. Section 442 - As soon as the bond is executed, the person should be released. Section 443 - If through mistake, fraud or otherwise, insufficient sureties have been accepted or if they afterwards become insufficient, the court may issue a warrant of arrest and may ask him to provide fresh sureties. Section 444 - A surety can apply to be discharged from the bond, in which case, the person for whom the surety is given will be arrested and asked to provide new surety. Section 445 - A court may permit a person to deposit money instead of executing a bond with or without sureties. Section 446 - If a bond is forfeited, the sureties may be asked to pay the penalty.

Section 446 A - When a bond for appearance of a person is forfeited for a breach of condition, the bond executed by the person and the sureties shall stand canceled. Section 447 - If a surety becomes insolvent or dies, the court may ask for new sureties. Section 448 - If the person from whom bond is required is minor the court may accept a bond executed by sureties only. Section 449 - Appeal from orders under Section 446 will lie to Sessions Judge if the order is made by a magistrate and to High Court if the order is made by Sessions Judge. Section 450 - The High Court or Court of Session may direct any magistrate to levy the amount due on a bond for appearance or attendance at such High Court or Session Court. Procedure on forfeiture of a Bond If the court is satisfied that the bond has been forfeited 1. It may ask any person bound by the bond to pay penalty or to show cause why it should not be paid. 2. If sufficient cause is not shown and penalty is not paid, the court may proceed to recover the same as if the penalty was a fine imposed by the court. 3. If the penalty cannot be recovered, the person bound as surety is liable to be imprisoned in civil jail for up to 6 months 4. The court may remit any portion of the penalty and require the payment in part. It must record its reasons for doing so. 5. If a surety to a bond dies, his estate shall be discharged from all liability in respect of the bond. Disclaimer Information in this document is being provided as-is without any warranty/guarantee of any kind. We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the information in this document. However, we may have made mistakes and we will not be responsible for any loss or damage of any kind arising because of the usage of this information. Further, upon discovery of any error or omissions, we may delete, add to, or amend information on this website without notice. This document is intended to provide information only. If you are seeking advice on any matters relating to information on this website, you should where appropriate contact us directly with your specific query or seek advice from qualified professional people.

Q. What is a Charge? What are the contents of a Charge? Discuss the effects of errors in a Charge? How is a Charge different from FIR?
Charge
As per Wharton's law Lexicon, Charge means to prefer an acusation against some one. To charge a person means to accuse that person of some offence. However, charge is not a

mere accusation made by a complainant or an informant. A charge is a formal recognition of concrete accusations by a magistrate or a court based upon a complaint or information against the accused. A charge is drawn up by a court only when the court is satisfied by the prima facie evidence against the accused. The basic idea behind a charge is to make the accused understand what exactly he is accused of so that he can defend himself. A charge gives the accused accurate and precise information about the accusation against him.A charge is written in the language of the court and the fact that the charge is made means that every legal condition required by law to constitute the offence charged is fulfilled in the particular case. It is a basic principle of law that when a court summons a person to face a charge, the court must be equipped with at least prima facie material to show that the person being charged is guilty of the offences contained in the charge. Thus, while framing a charge, the court must apply its mind to the evidence presented to it and must frame a charge only if it is satisfied that a case exists against the accused. In the case of State vs Ajit Kumar Saha 1988, the material on record did not show a prima facie case but the charges were still framed by the magistrate. Since there was no application of mind by the magistrate, the order framing the charges was set aside by the High Court. According to Section 2(b) of Cr P C, when a charge contains more than one heads, the head of charges is also a charge.

Contents of a Charge
Section 211 specifies the contents of a Charge as follows [ONDSLP] (1) Every charge under this Code shall state the offence with which the accused is charged. (2) If the law that creates the offence gives it any specific name, the offence may be described in the charge by that name only. (3) If the law that creates the offence does not give it any specific name so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. (5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall be written in the language of the court. (7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the court may think fit to award for the subsequent offence, the fact date and place of the previous, conviction shall be stated in the charge; and if such statement has been omitted, the court may add it at any time before sentence is passed. A charge must list the offence with which the person is charged. It must specify the law

and the section against which that offence has been done. For example, if a person is charged with Murder, the charge must specify Section 300 of Indian Penal Code. If the law gives a name to that offence, the charge must also specify that name and if the law does not specify any name for that offence, the charge must specify the detail of the offence from the definition of the offence so that the accused is given a clear idea of it. In many cases, on offender is given a bigger sentence for subsequent offence. In such cases, the charge must also state the date and place of previous conviction so that a bigger punishment may be given. Illustrations (a) A is charged with the murder of B. This is equivalent to a statement that A's act fell within the definition of murder given in sections 299 and 300 of the Indian Penal Code (45 of 1860); that it did not fall within any of the general exceptions of the said Code; and that it did not fall within any of the five exceptions to section 300, or that, if it did fall within Exception 1, one or other of the three provisos to that exception applied to it. (b) A is charged under section 326 of the Indian Penal Code (45 of 1860) with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the said Code, and that the general exceptions did not apply to it. (c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property-mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property-mark, without reference to the definition, of those crimes contained in the Indian Penal Code; but the sections under which the offence is punishable must, in each instance, be referred to in the charge. (d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words. Time and Place of the offence Further, as per section 212, the charge must also specify the essential facts such as time, place, and person comprising the offence. For example, if a person is charged with Murder, the charge must specify the name of the victim and date and place of the murder. In case of Shashidhara Kurup vs Union of India 1994, no particulars of offence were stated in the charge. It was held that the particulars of offence are required to be stated in the charge so that the accused may take appropriate defence. Where this is not done and no opportunity is afforded to the accused to defend his case, the trial will be bad in law for being violative of the principles of natural justice. It is possible that exact dates may not be known and in such cases, the charge must specify information that is reasonably sufficient to give the accused the notice of the matter with which he is charged. In cases of criminal breach of trust, it will be enough to specify gross sum or the dates between which the offence was committed.

Manner of committing the offence Some times, even the time and place do not provide sufficient notice of the offence which which a person is charged. In such situations, Section 213, mandates that the manner in which the offence was made must also be specified in the charge. It says that when the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner is which the alleged offence was committed as will be sufficient for that Purpose. Illustrations(a) A is accused of the theft of a certain article at a certain time and place the charge need not set out the manner in which the theft was effected (b) A is accused of cheating B at a given time and place. The charge must be set out the manner in which A cheated B. (c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false. (d) A is accused of obstructing B, a public servant, in the discharge or his public functions at a given time and place. The charge must set out the manner obstructed B in the discharge of his functions. (e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B. (f) A is accused of disobeying a direction of the law with intent to save punishment. The charge must set out the disobedience charged and the law infringed.

Effects of errors in a Charge

In general, an error in a Charge is not material unless it can be shown that the error misled the accused or that the error caused injustice. Section 215 says, "No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice." Illustrations: (a) A is charged under section 242 of the Indian Penal Code (45 of 1860), with "having, been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit," the word "fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material. (b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The court may infer from this that the omission to set out the manner of the cheating is not material. (c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of

knowing to which of them the charge referred, and offered no defence. Court may infer from such facts that the omission to set out the manner of was, in the case, a material error. (d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January. 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The court may infer from these facts that A was not misled, and that the error in the charge was immaterial. (e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The court may infer from this that A was misled, and that the error was material. The above illustrations show that when the accused in not misled, the error is not material. For example, in the case of Rawalpenta Venkalu vs State of Hyderabad, 1956, the charge failed to mention the Section number 34 of IPC but the description of the offence was mentioned clearly. SC held that the the section number was only of acedemic significance and the ommission was immaterial. Section 464 further provides that an order, sentence, or finding of a court will not be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation, or revision, a failure of justice has in fact happened because of it. If such a court of appeal, confirmation, or revision find that a failure of justice has indeed happened, in case of omission, it may order that a charge be immediately framed and that the trial be recommenced from the point immediately after the framing of the charge, and in case of error, omission, or irregularity in the charge, it may order new trial to be held upon a charge framed in whatever manner it thinks fit. As is evident, the object of these sections is to prevent failure of justice where there has been only technical breach of rules that does not affect the root of the case as such. As held in the case of Kailash Gir vs V K Khare, Food Inspector, 1981, the above two sections read together lay down that whatever be the irregularity in framing the charge, it is not fatal unless there is prejudice caused to the accused. Further, Section 216 allows the court to alter the charge anytime before the judgement is pronounced. Section 216: (1) Any court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court to prejudice the accused in his defence or the prosecutor in the conduct of the case the court may, in its discretion, after such alteration

or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) lf the offence stated in the altered or added charge is one for the prosecution of which previous section is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. Thus, even if there is an error in a charge, it can be corrected at a later stage. An error in a charge is not important as long as the accused in not prejudiced and principles of natural justice are not violated.

Difference between Charge and FIR

A First Information Report is a description of the situation and the act that constitutes a cognizable offence as given to the office in charge of a police station by any person. Such information is signed by the person giving the information. If the information is given orally, it is reduced in writing by the officer in charge, read over to the informant, and then signed by the person. The substance of this information is also entered into a register which is maintained by the officer. This is the first time when an event is brought to the attention of the police. The objective of the FIR is to put the police in motion for investigating the occurance of an act, which could potentially be a cognizable offence. An FIR is a mere allegation of the happening of a cognizable offence by any person. It provides a description of an event but it may not necessarily provide complete evidence. No judicial mind has to be applied while writing the FIR. However, upon receipt of an FIR, the police investigates the issue, collects relevant evidence, and if necessary, places the evidence before a magistrate. Based on these preliminary findings of the police, the magistrate then formally prepares a charges , with which the perpetrator is charged. Thus, an FIR is one path that leads to a Charge. An FIR is vague in terms of the offences but Charge is a precise formulation of the offences committed. An FIR is a description of an event, while a Charge is a description of the offences committed in that event. An FIR may or may not name an offender but a charge is always against a person. An FIR is always of a cognizable offence, but a charge may also include a non-cognizable offence.

Q. Explain the principle of separate charges for distinct offences. Are there any exceptions? (sec 218, 219, 220, 221, 223). When can multiple offences be charged separately, when can they be tried in the same/different trial? What do you understand by Joinder of charges?

The initial requirement in conducting a fair trial in criminal cases is a precise statement of the charges of the accused. This requirement is ensured by CrPC through Sections 211 to 214, which define the contents of a charge. Precise formulation of charges will amount to nothing if numerous unconnected charges are clubbed together and tried together. To close this gap, Section 218 enunciates the basic principle that for every distinct offence there should be a separate charge and that every such charge must be tried separately. Section 218 says thus (1) For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person. Illustration A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt. The object of Section 218 is to save the accused from being frustrated in his defense if distinct offences are lumped together in one charge or in multiple charges but tried in the same trial. Another reason is that the court may become prejudiced against the accused if he were tried in one trial for multiple charges resting on different evidence since it might be difficult for the court not be get influenced on one charge by evidence against him on other charges. It must be noted that Section 218 says "distinct offences" must be charged and tried separated. It does not say "every offence" or "each offence". It has been held in Banwarilal Jhunjhunwala vs Union of India AIR 1963, that "distinct offence" is different from "every offence" and "each offence". Separate charge is required for distinct offence and not necessarily for every offence or each offence. Two offences are distinct if they are not identical and are not in any way interrelated. A distinct offence may distinguished from other offences by difference in time or place of commitment, victims of the offence, or by difference in the sections of the law which make the acts as offence. However, a strict observance to Section 218 will lead to multiplicity of trials, which is also not desirable. Therefore sections 219 to 223 provide certain exceptions to this basic rule. These are as follows [3TBDGDJ] Exception 1. Three offences of the same kind within a year - Section 219 - When a person is accused of more than one offences of the same kind within a span of twelve months, he may be charged and tried at one trial for any number of such offences not exceeding three. For example, if a person is accused of theft in three different homes in the span 12 months, he can be charged with all the three at once and tried at the same trial. The period of 12 months is counted from the occurance of the first offence up to the last offence. An offence is considered to be of the same kind if it is punishable by the same amount of punishment under the same section of IPC or of the local or special law. Further, if the

attempt to commit an offence is an offence, then it is considered an offence of the same kind for the purpose of this section. Exception 2. Offences committed in the course of same transaction - Section 220(1) If a person commits multiple offences in a series of acts that constitutes one transaction, he may be charged with and tried in one trial for every such offence. The code does not define the meaning of the term transaction. However, it is well accepted that a precise definition of transaction is not possible and even Supreme Court has not attempted to define it. In case of State of AP vs Cheemalapati Ganeshwara Rao, AIR 1963, SC observed that, it would always be difficult to define precisely what the expression means. Whether a transaction is to be regarded as same would depend upon the facts of each case. But is is generally thought that were their is proximity of time, place, or unity of purpose and design or continuity of action in a series of acts, it may be possible that they form part of the same transaction. It is however not necessary that every one of these elements should coexist for considering the acts as part of the same transaction. For example, A commits house-breaking by day with intent to commit adultery, and commits in the house so entered, adultery with B's wife. A may be separately charged with, and convicted of, offences under sections 454(Lurking house trespass or house breaking with an intention to commit offence punishable with imprisonment) and 497(Adultery) of the Indian Penal Code. Exception 3 - Offences of criminal breach of trust or dishonest misappropriation of property and their companion offences of falsification of accounts - Section 220(2) Usually the offence of criminal breach of trust or dishonest misappropriation of property is committed with the help of offence of falsification of accounts to conceal the main offence. This section allows such offences to be charged with and tried at one trial. Exception 4 - Same act falling under different definitions of offences - Section 220(3) - If an act constitutes an offence under two or more separate definitions of any law in force, the person may be charged with and tried at one trial for each of the offences. For example, A wrongfully strikes B with a cane. This act constitutes an offence as per Section 323 (Voluntarily causing hurt) as well as Section 252 (Assult or criminal force otherthan on grave provocation). Thus, the person may be charged with both and tried for both the offences at the same trial. Exception 5 - Acts forming an offence, also constituting different offences when taken separately or in groups - Section 220(4) - When several acts together constitute an offence and those acts, which taken individually or in groups, also constitune another offence or offences, the person committing those acts may be be charged with and tried at one trial. For example, A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged, with and convicted of offences under sections 323(Voluntarily causing hurt), 392(Robbery) and 394(Voluntarily causing hurt while committing robbery) of the Indian Penal Code. Exception 6 - Where it is doubtful what offence has been committed - Section 221 If a single act or a series of acts is of such nature that it is doubtful which of the several

offence the facts of the case will constitute, the accused may be charged with having committed all or any of such offences and all or any of such charges may be tried at once. Further, in such a situation, when a person is charged with an offence but according to evidence it appears that he committed another offence, he may be convicted of the offence which he is shown to have committed even if he is not charged with that offence. For example, A is accused of an, Act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property or criminal breach of trust or cheating. Further, in the same case mentioned, lets say, A is only charged with theft and it appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust of receiving stolen goods (as the case may be) though he was not charged with such offence. Another illustration is as follows - A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot to be proved which of these contradictory statements was false. Exception 7 - Certain persons may be charged jointly - Section 223 - The following persons may be charged and tried together, namely:(a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence; (f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence; (g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges : Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all

such persons together. Disclaimer Information in this document is being provided as-is without any warranty/guarantee of any kind. We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the information in this document. However, we may have made mistakes and we will not be responsible for any loss or damage of any kind arising because of the usage of this information. Further, upon discovery of any error or omissions, we may delete, add to, or amend information on this website without notice. This document is intended to provide information only. If you are seeking advice on any matters relating to information on this website, you should where appropriate contact us directly with your specific query or seek advice from qualified professional people.

Q. What are the preliminary pleas that can be used to bar a trial? "Every offence shall ordinarily be inquired and tried by court within the local limits of whose jurisdiction it was committed." Explain the statement and state its exceptions, if any.
General Concept
When an accused appears or is brought before the court for a trial, he may raise certain pleas or objections to avoid the trial. For example, he may plead that the court does not have jurisdiction in the case or that the offence happened too long ago, or that he has already been tried and acquitted for the same offence. Such pleas are meant to stop the trial from proceeding further and discharge the accused. However, such pleas may also be raised by prosecution when the court does not have competency or jurisdiction in the case. Such pleas are supposed to be brought forth at the beginning of a trial or as soon as charges are framed. However, there is no explicit direction in Cr P C regarding the timing for such pleas. The follow are the pleas that can be raised 1. Court without Jurisdiction - Jurisdiction of criminal courts is of two kinds. One that determines the competency of the court to try a specific offence and the other that determines whether the offence happened in the territory of the court, which is also known as territorial jurisdiction. Competency of the Court to try the offence - Section 26 read with column 6 of the first schedule determines which court can try a given offence. For example, offences against

public tranquility can be tried by any magistrate while the offence of counterfeiting a government stamp can be tried only by a Court of Session. Similarly, only the prescribed court or magistrate has the power for all the offences defined in IPC and other laws. Thus, any party to the proceeding can raise the plea that the court is not competent to try the concerned offence. Section 461 provides that it any magistrate, who is not empowered to try an offence, tries the offender for that offence, the proceedings shall be void. Also, an executive magistrate has no power to try for any offence. Further, as per Section 479, no magistrate or judge can try any case in which he is a party or in which he is interested. If a trial is initiated in violation of this rule, a plea can be raised in this regard. Territorial Jurisdiction - This jurisdiction is determined according to Section 177 to 188 of CrPC. These rules have been enacted mainly for the purpose of convenience of the court, the investigating agency, the accused, and the victim. The general concept is that only the court in whose territory the offence or any part of offence has happened, can try that offence. In simple terms, an offence committed in Mumbai cannot be tried in a court in Delhi. However, most case are not as simple as that. For example, A hurts B by a knife in Dewas and D dies because of the wound in Indore. In this case, both the courts in Dewas and Indore have jurisdiction. However, if the victim B lives in Bhopal and if FIR of his death is filed in Bhopal, can A be tried in Bhopal? If not, and if A is tried in Bhopal, A can raise a pleas to bar the trial in Bhopal. Any violation of the rules of territorial jurisdiction does not ipso factor vitiate the trial unless it has in fact resulted in failure of justice. However, if a plea of territorial jurisdiction is raised in the beginning of the trial, then such objection must be sustained and the trial must be stopped. It cannot gain legitimacy under Section 462 in that case. 2. Time barred proceedings - Earlier, any offence committed could have been taken cognizance of after any number of years. This caused grave injustice to the accused as important witnesses became unavailable, or important evidence was destroyed by time. For these reasons, CrPC has now incorporated some general rules for taking cognizance of the crimes within a specific period of their happening. In general, the principle that offences punishable with only fine or with imprisonment up to 3 yrs should be tried within a limited time. The provisions regarding such limitations are contains in Section 467 to 473 and an accused can take advantage of the appropriate section to raise the plea that the case against him is barred by the prescribed period of limitation. Section 468 contains the basic rule which provides that no court shall take cognizance of an offence punishable with fine only or with imprisonment up to three yrs after the expiry of the period of limitation. The period of limitations are 1. 6 months, if the offence is punishable by fine only. 2. 1 yr, if the offence is punishable with imprisonment of a term not exceeding 1 yr. 3. 3 yrs, if the offence is punishable with imprisonment of a term not exceeding 3 yr.

These provisions are subject to any other provision which might have been created explicitly for any particular offence. Trial of offences of serious nature, i.e. offences which entail punishment of imprisonment of more than 3 yrs, or death, as of yet, are not barred by any time limitation. 3. Plea of autrefois acquit and autrefois convict - This means that if the offender has already been tried for the exact same offence before and he has been either acquitted or convict in that trial, he cannot be tried again on that offence. Art 20(2) of the constitution recognizes this principle as a fundamental right. It says that no person shall be prosecuted and punished for the same offence more than once. While the article gives this right only upon previous conviction, section 300 fully incorporates this principle. 4. Disabilities of the accused - Under the broad interpretation of Article 21 by Supreme Court, an accused has a fundamental right to be represented by a legal practitioner in his trial. If he is indigent, it is the responsibility of the state to provide a lawyer for him. Section 304 also requires the court to assign a pleader for the accused in certain situations. If this is not done, a plea can be raised in this regard. If the trial still proceeds, despite the objects, the trial is deemed to be vitiated. Further, when the accused is of unsound mind and consequently incapable of making his defence, the code requires the court to postpone the trial until the accused has ceased to be so. The accused can raise this plea for objecting the trial. 5. Principle of issue estoppel 6. Application of res judicata -

Disclaimer Information in this document is being provided as-is without any warranty/guarantee of any kind. We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the information in this document. However, we may have made mistakes and we will not be responsible for any loss or damage of any kind arising because of the usage of this information. Further, upon discovery of any error or omissions, we may delete, add to, or amend information on this website without notice. This document is intended to provide information only. If you are seeking advice on any matters relating to information on this website, you should where appropriate contact us directly with your specific query or seek advice from qualified professional people.

Differences and Short Notes.

Summons Case and Warrant Case As per Section 2(w), "summons-case" means a case relating to an offence, and not being a warrant-case and as per Section 2 (x), "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Cr P C classifies an offence as either cognizable or non-cognizable, and a trial procedure as summons case or warrant case. Thus, the terms summons case and warrant case are in reference to the procedure adopted for the trial of the case. Thus, the difference between the two can be seen from the point of view of their trial procedures as highlighted below D2CCPAWO Summons Case

Warrant case

Cr PC prescribes two procedures for the Cr P C prescribes only one procedure for all trial of a warrant case my magistrate summons cases, whether instituted upon a police one for case instituted upon a police report or otherwise. report and one for case instituted otherwise than on a police report. No charge needs to be framed only the particulars A charge needs to be framed against the of the offence needs to be conveyed to the accused. accused. As per S. 252, if the accused pleads guilty, the magistrate must record the plea of the accused and may, in his discretion, convict him on such plea. Accused my plead guilty by post without appearing before the magistrate. As per S. 241, After the charge is framed, the accused may plead guilty and the magistrate may convict him on his discretion. Accused must appear personally.

Magistrate can discharge the accused if The accused may be acquitted, if the complainant complainant is absent, or no charge is is absent or if the complainant dies. framed, or if the offence is compoundable and non cognizable. The complainant may, with the The complainant may, with the permission of the permission of the court, withdraw the court, withdraw the complaint against the remaining charges against an accused, if accused. he is charged with several offences and convicted on one or more of them. When a warrant case is tried as a summons case and if the accused is acquitted under S. 255, the acquittal will only amount to discharge. Trial of a warrant case as a summons case it is a serious irregularity and the trial is vitiated if the accused has been prejudiced. When a summons case is tried as a warrant case and if the accused is discharged under S 245, the discharge will amount to acquittal. Trial of a summons case as a warrant case is an irregularity which is curable under Section 465.

A summons case cannot have charges that require A warrant case may contain charges that a warrant case. reflect a summons case. Accused gets only one opportunity. Accused may get more than one opportunity to cross-examine the prosecution witness. A charge under a warrant case cannot be split up into its constituents for trial under summons case. No such power to the magistrate in summons case. After convicting the accused, the magistrate may take evidence regarding previous conviction not admitted by the accused.

All cases which are not punishable by death, All cases which are punishable by imprisonment for life, or for more than two years death, imprisonment for life, or for are summons cases. more than two years are warrant cases. Conversion As per Section 259, a summons case can be converted into a warrant case if the case relates to A warrant case cannot be converted into an offence that entails more than 6 months of a summons case. imprisonment as punishment and the judge feels that in the interest of justice it the case should be tried as a warrant case. It is important to note that the question whether a summons or a warrant should be issued in the case is not related to whether the case is a summons case or a warrant case. Compoundable and Non Compoundable Offences - Some offences largely affect only the victim and no considerable harm is considered to be done to the society. In such offences, if the offender and victim compromise, there is no need to waste court's time in conducting a trial. The process of reaching a compromise is called Compounding. Conceptually, such offences, in which a compromise can be done and a trial can be avoided, are called Compoundable offence. Rest of the offences are non-compoundable. Technically, offences classified as Compoundable by Section 320 of Cr P C are compoundable. Section 320 specifies two kinds of Compoundable offences - one where permission of court is required before compounding can be done for example, voluntarily causing grievous hurt, Theft, criminal breach of trust, assault on a woman with intention to outrage her modesty, etc. and one where permission of the court is not required for example, causing hurt, adultery, defamation, etc. As per S. 320(3), if the abetment of an offence is an offence and if the offence is compoundable then abetment is also compoundable. Only the person, who is specified in the classification tables in Section 320, has the right to compound the offence. The person is usually the victim. The offender cannot demand

compounding as a right. However, when an offender has been committed to trial or when he has been convicted and his appeal is pending, compounding can only be done with the leave of the court to which he is committed or to which the trial is pending. If an offender is liable for enhanced punishment or a different punishment on account of a previous conviction, compounding cannot be done. High Court and Court of Session may, under their power of revision in Section 401, can allow any person to compound any compoundable offence. When an offence is compounded, it is equivalent to an acquittal.

Compoundable Offence Section 320

Offences classified as compoundable by S. 320 of CrPC Offence mostly affects a private party. The victim and the offender may reach compromise with or without the permission of the court depending on the offence. Upon compromise, the offender is acquitted without any trial.

Non Compoundable Offence

Rest of the offences Private party as well as society both are considerably affected by the offence. No compromise is allowed. Even court does not have the power to compound the offence. Full trial is held and acquittal or conviction is given as per the evidence.

In Bhima Singh vs State of UP, AIR 1974, SC held that when an offence is compoundable with the permission of the court, such permission may be granted by SC while an appeal is made against the conviction provided the parties have settled the matter amicably. In Ram Lal vs State of J&K, 1999, SC held that when an offence is declared noncompoundable by law, it cannot be compounded even with the permission of the court. However, the court may take the compromise into account while delivering judgment. The case of B S Joshi vs State of Haryana, AIR 2003 is interesting in this regard. The case was about the matter related to Section 498A, which is non-compoundable offence. In this case, the parties reached a compromise but the High Court refused to quash the FIR, on the ground that the offence is non-compoundable. However, SC held that in the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code, such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. It further observed that in this case, the parties were not asking for compounding the offence but for quashing the FIR. It observed that since because of the amicable settlement, there is no chance of conviction

and in such a case the court has the power to quash the proceeding.

Information and Complaint Information

Complaint

As per Section 2(d), a complaint means any allegation made orally or in writing to a No legal definition. It is used in its regular magistrate, with a view to his taking action English meaning. under this code (CrPC), that some person, whether known or unknown, has committed an offence, but does not include a police report. The purpose of complaint is that the No action from the magistrate is expected. magistrate takes action on it and provide relief. No cognizance is taken. Magistrate takes cognizance of the offence as per Section 190.

It may include information about commission of offences, apprehension about breach of peace, and presence of It is always about commission of an offence. absconder and suspected persons to police officers or magistrate. Thus, an information may not necessarily about an offence.

Sufficient grounds for commitment and Sufficient grounds for conviction Sufficient grounds for Sufficient grounds for commitment conviction When a magistrate takes cognizance of an offence under Section 190 (upon receipt of a complaint or otherwise), Upon holding the trial, if the he examines the complaint in accordance with Section court is satisfied with the 200 by examining the facts and the witnesses. If he finds evidence provided by the that the complaint is with merits, the case is deemed prosecute that the accused is committed for trial and the magistrate issues the process guilty of the alleged offence, he under Section 204. If the offence is exclusively triable by convicts the offender. Court of Session, the magistrate commits the case to Court of Session under Section 209. The evidence must prove the At this stage it is not considered whether the grounds are guilt of the accused without any sufficient for conviction. doubt.

Discharge and Acquittal

Discharge

Acquittal

Session Trial If after evaluating the evidence given by the prosecute, the judge considers Session Trial that there is no evidence that the As per Section 227, if, upon consideration of the accused has committed the offence, record of the case and the documents submitted the judge acquits the offender under therewith, and after hearing the submissions of the Section 232. accused and the prosecution in this behalf, the However, if the offender is not Judge considers that there is not sufficient ground acquitted under Section 232, he is for proceeding against the accused, he shall permitted to give his defense and discharge the accused and record his reasons for so evidence. After hearing the arguments doing. of both the parties, the court may acquit of convict the person under Section 235. Warrant Trial By Magistrate As per Section 239, if, upon considering the police report and the documents sent with it under section Warrant Trial By Magistrate 173 and making such examination, if any, of the As per Section 248, if, in any case accused as the Magistrate thinks necessary and after under this Chapter in which a charge giving the prosecution and the accused an has been framed, the Magistrate finds opportunity of being heard, the Magistrate considers the accused not guilty, he shall record the charge against the accused to be groundless, he an order of acquittal. shall discharge the accused, and record his reasons for so doing. Discharge does not mean that the accused has not committed the offence. It just means that there is not enough evidence to proceed with the trial. Acquittal means that the accused has been held innocent.

The accused cannot be tried again for If further evidence is gathered later on, the accused the same offence once he has been may be tried again. acquitted.

Cognizable offence and Non-cognizable offence Cognizable offence Non Cognizable offence Defined in Section 2(c) - "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Examples - Murder, Dowry death, grevious hurt, theft. Defined in Section 2(l) - "noncognizable offence" means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant. Example - keeping a lottery office,voluntarily causing hurt,

dishonest misappropriation of property. Police has to record information about a cognizable offence in writing as per Section 154. As per Section 155, Police has to enter information in register prescribed for it and refer the informant to a magistrate.

Police can start investigation without the order of a Police officer cannot investigate the magistrate. case without the order of a magistrate. In general, cognizable offences are of serious nature which involve imprisonment of more than three years. However, there is no such precise rule. To be cognizable, an offence must be declared so by the law defining that offence. Several offences which carry less prison term such as rioting (2 yrs) have been declared cognizable, while several with bigger prison term such as False Evidence (7 yrs) or Rape by a man with his own wife of not less than 12 yrs have been declared non-cognizable.

First Information Report

The name FIR is given to the information given by any person about a cognizable offence and recorded by the police in accordance with Section 154. As per this section, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. SC in the case of State of Bombay vs Rusy Mistry, AIR 1960, defined FIR as so - A FIR means the information, by whomsoever given, to the officer in charge of a police station in relation to the commission of a cognizable offence and which is first in point of time and on the strength of which the investigation into that offence is commenced. Thus, FIR is nothing but information of the nature of a complaint or accusation about a cognizable offence given by any person to the police so that the police can start investigation. When a person reports any information about a cognizable offence to the police, the police is bound to register a case and proceed with investigation. However, for police to investigate the matter, the offence must be a cognizable offence. The police is not allowed to investigate a non-cognizable offence without an order from a magistrate. So, once the duty officer is certain that the offence alleged to have been committed is a cognizable offence, he directs the complainant to put his statement in writing. In the presence of the complainant, the duty officer shall complete all the columns in the FIR

register with the information given by the complainant. He shall then read out all the contents of the FIR registered to the complainant. Once the complainant is certain that all the details have been correctly written, he should sign the FIR. FIR merely contains the facts of the offence as known by the informant. The FIR is a statement by the complainant of an alleged offence. The informant is not required to prove his allegations in any manner at the police station. It is the job of the police to ascertain facts, verify details and substantiate the charges or otherwise. However, the facts must not be vague. The facts must divulge at least some concrete information about the offence committed. In case of Tapinder Singh vs State, 1972, SC held that when a telephone message did not disclose the names of the accused nor did it disclose the commission of a cognizable offence, it cannot be called a FIR. In case of State of UP vs R K Shrivastava, 1989, SC held that if the allegations made in an FIR do not constitute a cognizable offence, the criminal proceeding instituted on the basis of the FIR should be quashed. Sometimes multiple persons may report the same incident and in such situation the police must use commonsense and record one statement as FIR. Usually, the statement that contains enough information to allow the police to proceed with investigation is recorded as FIR. Evidentiary Value of FIR A FIR is not substantive evidence that is, it is not evidence of the facts which it mentions. However, it is very important since it conveys the earliest information about the occurrence of an offence and it can be used to corroborate the information under Section 157 of Indian Evidence Act or to contradict him under Section 145 of Indian Evidence Act, if the informant is called as a witness in a trial. It is considered that FIR has a better corroborative value if it is recorded before there is time and opportunity to embellish or before the memory of the information becomes hazy. There must be a reasonable cause for the delay. For example, in case of Harpal Singh vs State of HP, 1981, involving rape, the FIR was registered after 10 days. It was held that the delay was reasonable because it involved considerable matter of honor for the family and that required time for the family to decide whether to take the matter to court or not. As FIR can also be used in cross examination of the informant. However, if the FIR is made by the accused himself, it cannot be used against him because of Section 25 of Evidence act which forbids any confession made to the police to be used against the accused. A FIR can also be used as a dying declaration under Section 32 of Indian Evidence Act.

Summary Trial
1. A kind of fast track proceeding where a case is resolved in one sitting. 2. Meant for petty offenses, to reduce the burden of court S. 260 - When a case involving the following offenses comes to CJM, MM, and JMFC

for hearing, they have the discretionary power to decide whether they want to try the case summarily or not. There are 9 such offences any offence that does not have death, life imprisonment or imprisonment of more than 2 yrs as punishment, theft, lurking house trespass, receiving stolen property, assisting in concealment of stolen property, abetment of the offences covered under this section, attempt of these offences. If at any point in while trying the matter in this manner, if the court thinks that it is undesirable to try the case summarily, it shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided in this code (i.e. as a summons trial or warrant trial) S. 261 - High Court may give power to Judicial Magistrate Second class to try offences involving imprisonment of less than 6 months summarily. S. 262 - Sentence of imprisonment of more than 3 months cannot be passed in a summary trial and the procedure adopted in a summary trial will be same as the procedure adopted in a Summons case except the following changes S. 263 - The judge must record the following particulars in the prescribed format - serial number of the case, date of offence, date of complaint, name of complainant, name, age, address, parentage of accused, offence complained and offence proved, plea of the accused and his examination, findings, sentence, and date of termination of the proceeding. S. 264 - If the accused does not plead guilty, the judge must record the substance of the evidence and give reasons for the judgment. S. 265 - Every the such record and judgment shall be in the language of the court. In Ram Lochan vs State, 1978, it was held that although trying a govt. servant summarily is legal, it should not be done so because upon conviction, govt. servant may lose his job, which is a serious loss. Appeal and Revision in Summary Trials No appeal lies if only a sentence of fine not exceeding 200/- is awarded. A revision application would lie to the High Court in such a case.

Muslim law
Q. Define Gift/Hiba. What are the three essentials of Gift? Who can give gift? What are the kinds of Gift? State the circumstances in which delivery of possession of immovable property is not required in making a gift. What gifts are void? What is Mushaa? Explain with

illustration. What is the difference between Hiba Bil Iwaz and Hiba Ba Shart ul Iwaz?
Gift is a generic term that includes all transfers of property without consideration. In India, Gift is considered equivalent to Hiba but technically, Gift has a much wider scope than Hiba. The word Hiba literally means, the donation of a thing from which the donee may derive a benefit. It must be immediate and complete. The most essential element of Hiba is the declaration, "I have given". As per Hedaya, Hiba is defined technically as, "unconditional transfer of property, made immediately and without any exchange or consideration, by one person to another and accepted by or on behalf of the latter". According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the property without any return. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.

Essential Elements of a Gift

Since muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an acceptance (qabul), and transfer (qabza). In Smt Hussenabi vs Husensab Hasan AIR 1989 Kar, a grandfather made an offer of gift to his grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no express of implied acceptance was made by a major grandson. Karnataka HC held that since the three elements of the gift were not present in the case of the major grandchild, the gift was not valid. It was valid in regards to the minor grandchildren. Thus, the following are the essentials of a valid gift 1. A declaration by the donor - There must be a clear and unambiguous intention of the donor to make a gift. 2. Acceptance by the donee - A gift is void if the donee has not given his acceptance. Legal guardian may accept on behalf of a minor. 3. Delivery of possession by the donor and taking of the possession by the donee. In Muslim law the term possession means only such possession as the nature of the subject is capable of. Thus, the real test of the delivery of possession is to see who - whether the donor or the donee - reaps the benefits of the property. If the donor is reaping the benefit then the delivery is not done and the gift is invalid. The following are the conditions which must be satisfied for a valid gift.

1. Parties - There must be two parties to a gift transaction - the donor and the donee.

Conditions for Donor - (Who can give)

1. 2. 3. 4. Must have attained the age of majority - Governed by Indian Majority Act 1875. Must be of sound mind and have understanding of the transaction. Must be free of any fraudulent or coercive advice as well as undue influence. Must have ownership over the property to be transfered by way of gift.

A gift by a married woman is valid and is subjected to same legal rules and consequences. A gift by a pardanashin woman is also valid but in case of a dispute the burden of proof that the transaction was not conducted by coercion or undue influence is on the donee. Gift by a person in insolvent circumstances is valid provided that it is bona fide and not merely intended to defraud the creditors.

Conditions for Donee (who can receive)

1. Any person capable of holding property, which includes a juristic person, may be the donee of a gift. A muslim may also make a lawful gift to a non-muslim. 2. Donee must be in existence at the time of giving the gift. In case of a minor or lunatic, the possession must be given to the legal guardian otherwise the gift is void. 3. Gift to an unborn person is void. However, gift of future usufructs to an unborn person is valid provided that the donee is in being when the interest opens out for heirs.

2. Conditions for Gift (What can be gifted) 1. It must be designable under the term mal. 2. It must be in existence at the time when the gift is made. Thus, gift of anything that is to be made in future is void. 3. The donor must possess the gift. Muslim law recognizes the difference between the corpus and the usufructs of a property. Corpus, or Ayn, means the absolute right of ownership of the property which is heritable and is unlimited in point of time, while, usufructs, or Manafi, means the right to use and enjoy the property. It is limited and is not heritable. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya. In Nawazish Ali Khan vs Ali Raza Khan AIR 1984, it was held that gift of usufructs is valid in Muslim law and that the gift of corpus is subject to any such limitations imposed due to usufructs being gifted to someone else. It further held that gift of life interest is valid and it doesn't automatically enlarge into gift of corpus. This ruling is applicable to both Shia and Sunni.

Subject of Gift - The general principle is that the subject of a gift can be 1. 2. 3. 4. anything over which dominion or right of property may be exercised. anything which may be reduced to possession. anything which exists either as a specific entity or as an enforceable right. anything which comes within the meaning of the word mal.

In Rahim Bux vs Mohd. Hasen 1883, it was held that gift of services is not valid because it does not exist at the time of making the gift. Gift of an indivisible property can be made to more than one persons.

3. Extent of Donors right to gift - General rule is that a donors right to gift is
unrestricted. In Ranee Khajoorunissa vs Mst Roushan Jahan 1876, it was recognized by the privy council that a donor may gift all or any portion of his property even if it adversely affects the expectant heirs. However, there is one exception that the right of gift of a person on death bed (Marz ul maut) is restricted in following ways - He cannot gift more than one third of his property and he cannot gift it to any of his heirs.

Kinds of Gift
There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul Iwaz, Sadkah, and Ariyat.

Hiba Bil Iwaz - Hiba means gift and Iwaz means consideration. Hiba Bil Iwaz means
gift for consideration already received. It is thus a transaction made up of two mutual or reciprocal gifts between two persons. One gift from donor to donee and one from donee to donor. The gift and return gift are independent transactions which together make up Hiba bil Iwaz. In India, it was introduced as a device for effecting a gift of Mushaa in a property capable of division. So a Hiba Bil Iwaz is a gift for consideration and in reality it is a sale. Thus, registration of the gift is necessary and the delivery of possession is not essential and prohibition against Mushaa does not exist. The following are requisites of Hiba bil Iwaz 1. Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa vs Raushan Begam 1876, held that adequacy of the consideration is not the question. As long is the consideration is bona fide, it is valid no matter even if it is insufficient. 2. A bona fide intention on the part of the donor to divest himself of the property is essential. Gift in lieu of dower debt - In Gulam Abbas vs Razia AIR 1951, All HC held that an oral transfer of immovable property worth more than 100/- cannot be validly made by a muslim husband to his wife by way of gift in lieu of dower debt which is also more than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale and must done through a registered

instrument.

Hiba ba Shartul Iwaz - Shart means stipulation and Hiba ba Shart ul Iwaz means a
gift made with a stipulation for return. Unlike in Hiba bil Iwaz, the payment of consideration is postponed. Since the payment of consideration is not immediate the delivery of possession is essential. The transaction becomes final immediately upon delivery. When the consideration is paid, it assumes the character of a sale and is subject to presumption (Shufa). As in sale, either party can return the subject of the sale in case of a defect. It has the following requisites 1. 2. 3. 4. Delivery of possession is necessary. It is revocable until the Iwaz is paid. It becomes irrevocable after the payment of Iwaz. Transaction when completed by payment of Iwaz, assumes the character of a sale.

In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both gifts for a return and the gifts must be made in compliance with all the rules relating to simple gifts. Differences between Hiba, Hiba bil Iwaz, and Hiba ba Shart ul Iwaz -

Hiba

Hiba bil Iwaz

Hiba ba Shart ul Iwaz

Ownership in property is transferred for consideration called iwaz, with an express agreement for a return. Delivery of possession is essential. Gift of mushaa where a property is divisible is invalid. It is revocable until the iwaz is paid. Irrevocable after that. In its inception it is a gift but becomes a sale after the iwaz is paid.

Ownership in property is Ownership in property transferred for consideration called is transfered without iwaz. But there is no express consideration. agreement for a return. Iwaz is voluntary. Delivery of possession Delivery of possession is NOT is essential. essential. Gift of mushaa where Gift of mushaa even where a a property is divisible property is divisible is valid. is invalid. Barring a few exceptions it is revocable. It is a pure gift. It is irrevocable.

It is like a contract of sale.

Exceptions in delivery of possesssion

The following are the cases where deliver of possession by the donor to the donee is not required 1. Gift by a father to his minor or lunatic son. In Mohd Hesabuddin vs Mohd. Hesaruddin AIR 1984, the donee was looking after the donor, his mother while other sons were neglecting her. The donor gifted the land to the donee and the donee subsequently changed the name on the land records. It was held that it was a valid gift even though there was no delivery of land. 2. When the donor and the donee reside in the same house which is to be gifted. In such a case, departure of the donor from the house is not required. 3. Gift by husband to wife or vice versa. The delivery of possession is not required if the donor had a real and bona fide intention of making the gift. 4. Gift by one co-sharer to other. Bona fide intention to gift is required. 5. Part delivery - Where there is evidence that some of the properties in a gift were delivered, the delivery of the rest may be inferred. 6. Zamindari villages - Delivery is not required where the gift includes parcels of land in zamindari if the physical possession is immpossible. Such gift may be completed by mutation of names and transfer of rents and incomes. 7. Subject matter in occupation of tenant - If a tenant is occupying the property the gift may be affected by change in ownership records and by a request to the tenant to attorn the donee. 8. Incorporeal rights - The gift may be completed by any appropriate method of transfering all the control that the nature of the gift admits from the donor to the donee. Thus, a gift of govt. promissory note may be affected by endorsement and delivery to the donee. 9. Where the donee is in possession - Where the donee is already in possession of the property, delivery is not required. However, if the property is in adverse possession of the donee, the gift is not valid unless either the donor recovers the possession and delivers it to donee or does all that is in his power to let the donee take the possession.

Void Gifts
The following gifts are void 1. Gift to unborn person. But a gift of life interest in favor on a unborn person is valid if he comes into existence when such interest opens out. 2. Gifts in future - A thing that is to come into existence in future cannot be made. Thus, a gift of a crop that will come up in future, is void. 3. Contingent gift - A gift that takes affect after the happening of a contingency is void. Thus a gift by A to B if A does not get a male heir is void.

Gift with a condition

A gift must always be unconditional. When a gift is made with a condition that obstructs

its completeness, the gift is valid but the condition becomes void. Thus, if A gifts B his house on a condition that B will not sell it or B will sell it only to C, the condition is void and B takes full rights of the house.

Mushaa (Hiba bil mushaa)

Mushaa means undivided share in a property. The gift of undivided share in an indivisible property is valid under all schools but there is no unanimity of opinion amongst different schools about gift of undivided share in a property that is divisible. In Shafai and Ithna Asharia laws it is valid if the donor withdraws his control over the property in favor of the donee. But under Hanafi law, such a gift is invalid unless it is separated and delivered to the donee. Illustration A, B, and C are the co-owners of a house. Since a house cannot be divided, A can give his undivided share of the house to D in gift. A, B, and C are the co-owners of 3 Tons of Wheat, under Shafai and Ithna Ahsharia law, A can give his undivided share of the wheat to D if he withdraws control over it but under Hanafi law, A cannot do so unless the wheat is divided and the A delivers the possession of 1 ton of wheat to D. In case of Kashim Hussain vs Sharif Unnisa 1883, A gifted his house to B along with the right to use a staircase, which was being used by C as well. This gift was held valid because staircase is indivisible.

Revocation of a Gift
Under muslim law, all volutary transactions are revocable and so under Hanafi law a gift is also generally revocable, though it is held to be abominable. In Shia law, a gift can be revoked by mere declaration while in Sunni law, it can be revoked only by the intervention of the court of law or by the consent of the donee. The following gifts, however, are absolutely irrevocable 1. When the donor is dead. 2. When the donee is dead. 3. When the donee is related to the donor in prohibited degrees on consanguinity. However, in Shia law, a gift to any blood relative is irrevocable. 4. When donor and the donee stand in marital relationship. However, in Shia law, a gift to husband by wife or vice versa is revocable. 5. when the subject of the gift has been transfered by the donee through a sale or gift. 6. when the subject of the gift is lost or destroyed, or so changed as to lose its identity. 7. when the subject of the gift has increased in value and the increment is inseparable. 8. when the gift is a sadqa.

9. when anything as been accepted in return.

Q. Discuss the nature and meaning of will. What are the essentials of a valid muslim will? Who can make a will? What are the formalities necessary for a valid will? What restrictions are imposed on a Muslim's testamentary disposition? Explain. Distinguish between shia and sunni laws regarding will.
Will is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but also has other meanings. It may signify a moral exhortation, a specific legacy, or the capacity of the executor. In general, a will means a document containing the desire, regarding how a person wants to utilize or divide his property, after he is dead. According to section 2(h) of Indian Succession Act 1925, Will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. For a Muslim, Wasiyat is a divine institution because it is regulated by Quran. It offers to the testator a means to change the course of inheritance to certain extent and to recognize the value of those relatives who are excluded from inheritance or strangers who might have helped him in life or in last moments. Prophet Mohammad has declared that this power is not unrestricted and should not be exercised to the injury of the lawful heirs.

Essentials of a valid Muslim will

1. Competency of the testator (who can make the will) Any Muslim, including a man or a woman, who is major and is of sound mind can make a will. Regarding wills, the age of majority is governed by Indian Majority Act. A will made by a minor is invalid but it can be validated by ratification after he attains majority. A person of unsound mind is not competent to make a will and a will made by such a person is invalid. A will made by a person while of sound mind, who later becomes of unsound mind, becomes invalid. In Abdul Manan Khan vs Mirtuza Khan AIR 1991, Patna HC held that any Mohammadan having a sound mind and not a minor may make a valid will to dispose off the property. So far as a deed is concerned, no formality or a particular form is required in law for the purpose of creating a valid will. An unequivocal expression by the testator serves the purpose. Will of a person committing suicide - Under Sunni Law the will of a person committing suicide is valid. Under Shia law, a will made by the person who has done any act towards committing suicide is invalid but if the will is made before doing of any act towards committing suicide, it is valid.

2. Competency of the legatee Any person capable of holding property may be the legatee under a will. Thus, sex, age, creed, or religion are no bar. However, no one can be made the beneficial owner of the shares against his will, therefore, to complete the transfer, the legatee must give his express or implied consent to accepting the legacy. An institution can be a legatee. A non-muslim can be a legatee if he is not an enemy of Islam and is not hostile towards Islam. In Sunni law, a testator's murderer cannot be a legatee. In Shia law, if the act of the murderer was an accident, he can be a legatee otherwise not. Unborn person - In Sunni Law, a child born within 6 months of the date of making of the will is considered to be in existence and is a valid legatee. In Shia law, the period is 10 months, which is the maximum period of gestation. Bequest for a charitable object is valid. 3. Validity of the subject of will - To be able to will a property, it must be 1. capable of being transferred. 2. in existence at the time of testator's death even if it is not in existence at the time of making will. Thus, a bequest cannot be made of any thing that is to be performed or produced in future. 3. in the ownership of the testator. A bequest that is to take effect only upon any uncertain event happening is a contingent bequest, and is void. However, a bequest with a condition that derogates from its completeness is valid and will take effect as if the condition did not exist. For example, a grant is made to X for his life and then it is stipulated to go to Y after death of X. In this case, X will get the grant completely and Y will get nothing. Thus, a bequest of life estate is not valid either under Shia or Sunni Law. 4. Extent of power of will - The testamentary power of a muslim is limited in two ways Limitations as regards to person - The general rule is laid down in Ghulam Mohammad vs Ghulam Hussain 1932 by Allahbad HC, that a bequest in favour of a heir is not valid unless the other heirs consent to the bequest after the death of the testator. Whether a person is a heir or not is determined at the time of testator's death. Under Shia law, a testator may bequest a heir as long as it does not exceed one third of his property and no consent of other heirs is required. In Hussaini Begam vs Mohammad Mehdi 1927, it was held that if all the property was bequested to one heir and other were not given anything, the bequest was void in its entirety. Limitations as regard to the amount - The general principle is that a muslim is not allowed to will more than 1/3rd of his property after taking out funeral charges and debt. However, under Hanafi law, it may be valid if heirs give the consent after the death of the testator. In Shia law, such consent can be taken either before or after the death. Another exception is that if the testator has no heir, he can will any amount. The govt. cannot act as a heir to the heirless person.

Differences between Shia and Sunni Law on Will

Sunni Law Bequest to an heir without consent of other heirs is invalid. Bequest to unborn child is valid if the child is born within 6 months of making the will. Legatee who causes death even by accident is incapable of receiving. For a bequest of more than 1/3 to a non-heir, the consent of heir must be obtained after the death of testator. Will of a person committing suicide is valid. Recognizes rateable distribution. If the legatee dies before testator, the legacy lapses and goes back to the testator. Legatee must accept the legacy after the death of the testator. Shia Law Bequest up to 1/3 of the property is valid even without consent. Valid if the child is born within 10 months of making the will. Legatee who causes death by accident is capable. Heir's consent may be obtained before or after death. Valid only if the will is made before the person does any act towards committing suicide. Does not recognize rateable distribution. The legacy lapses only if the legatee dies without heirs otherwise, it goes to legatee's heirs. Legatee can accept the legacy even before the death of the testator.

Differences between Will and Gift

Gift It is an immediate transfer of right or interest. Delivery of possession is necessary. Subject of gift must exist at the time of making gift. Right of donor is unrestricted. Cannot be revoked. Will It is a transfer after death. Delivery of possession is not necessary. Subject of will must exist at the time of death of the testator. It is limited up to 1/3rd of the property. Can be revoked by making another will.