കൊടുക്കാമോ അത്രയേ വേണ്ടൂ. ആധാരമെഴുത്ത് എന്നത് ഒരു ഫോം പൂരിപ്പിക്കലായി ലഘൂകരിക്കപ്പെട്ടിരിക്കുന്നു എന്ന വസ്തുത കേരള സമൂഹം ഇനിയു

പുരിപ്പിക്കാൻ അറിയില്ലെങ്കിൽ നാട്ടിൽ അറിയുന്ന ആരെക്കൊണ്ടെങ്കിലും പൂരിപ്പിച്ചാൽ മതി. ആധാരമെഴുത്തുകാർ തന്നെ വേണമെന്നില്ല. ആധാരമെഴുത്തുകാരെ കൊണ്ട് പൂരിപ്പിക്കുകയാണെങ്കിൽ തന്നെ പൂരിപ്പിക്കുന്നതിനുള്ള ഒരു ചെറിയ പ്രതിഫലം കൊടുത്താൽ മതി. പഴയത് പോലെ ആധാരത്തിൽ കാണിക്കുന്ന വിലയുടെ ശതമാനക്കണക്കിൽ പതിനായിരങ്ങൾ കൊടുക്കേണ്ടതില്ല. ഒരു ഫോം പൂരിപ്പിക്കാൻ എത്ര കൊടുക്കാമോ അത്രയേ വേണ്ടൂ. ആധാരമെഴുത്ത് എന്നത് ഒരു ഫോം പൂരിപ്പിക്കലായി ലഘൂകരിക്കപ്പെട്ടിരിക്കുന്നു എന്ന വസ്തുത കേരള സമൂഹം ഇനിയും മനസ്സിലാക്കിയിട്ടില്ല എന്നത് ലജ്ജാകരമാണ്. ആളുകൾ കാലത്തിനൊപ്പം അപ്‌ഡേറ്റ് ആകാത്തത് നിരാശാജനകമാണ്.

Section 65-B(1) of the Indian Evidence Act, 1872 defines Admissibility of electronic records

Section 65-B(1) of the Indian Evidence Act, 1872 defines Admissibility of electronic records

“65B. Admissibility of electronic records:

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

In the High Court of Bombay

(Before R.G. Ketkar, J.)

Nyati Builders Pvt. Ltd.

v.

Mr. Rajat Dinesh Chauhan and Ors

Writ Petition No. 7329 of 2015

Decided on December 18, 2015

R.G. Ketkar, J.:— Not on Board. At the request of Mr. Sawant, taken up for admission. Heard Mr. Rohan Sawant, learned counsel for the petitioners.

2. By this Petition under Article 227 of the Constitution of India, the petitioners, hereinafter referred to as ‘defendant no. 1’, have challenged the Judgment and order dated 15.9.2014 passed by the learned 3rd Jt. Civil Judge, Senior Division, Pune below Exhibits 96 and 99. By that order, the learned trial Judge permitted respondents no. 1 and 2, hereinafter referred to ‘plaintiffs', to furnish fresh certificate as contemplated under section 65B (2) and (4) of the Indian Evidence Act, 1872 (for short, ‘Act’). After submission of the said certificate, the e-mails will be treated as a primary document and will be admitted in evidence as a proved document.

3. Mr. Sawant strenuously contended that on 5.10.2011, the learned trial Judge passed order on application Exh.59. The application Exh.59 was filed by defendant no. 2 praying for “not exhibiting copies of computer output of email correspondence filed by the plaintiffs. On the same day, learned trial Judge passed following order.

“The document is exhibited subject to objection, its admissibility will be decided at the time of final argument”.

4. Mr. Sawant submitted that by that order, the learned trial Judge specifically kept objection as regards admissibility open to be decided at the time of final argument. In other words, objection as regards admissibility of document was to be decided while deciding the suit itself and not in earlier point of time. He submitted that the plaintiffs did not challenge the order dated 5.10.2011. It is, therefore, not open to the trial Court to decide the admissibility of the document in midway of the suit. The application Exh.96 filed by the plaintiffs was to permit them to lead secondary evidence in the form of printouts already produced and exhibited at Exhibits 63 to 79 as per section 65 of the Act. Application Exh.99 was filed by the plaintiffs for filing on record certificate in the form of an affidavit under section 65B(4) of the Act. However, by the impugned order, the learned trial Judge has treated e-mails as a primary document and admitted them in evidence as a proved document. He submitted that the learned trial Judge was not justified in admitting e-mails in the evidence, that too, as a primary document. He lastly submitted that at any rate the document so produced and admitted in evidence cannot be treated as a primary evidence. In support of this submission, he relied upon the decision ofAnvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 and in particular paragraph 22 thereof.

5. I have considered the submissions advanced by Mr. Sawant. I have also perused the material on record. Section 59 of the Act lays down that all facts, except the contents of document or electronic records, may be proved by oral evidence. Section 62 gives meaning of the expression ‘primary evidence’. Section 63 deals with secondary evidence. Section 65 provides cases in which secondary evidence relating to documents may be given. Section 65-A lays down special provisions as to evidence relating to electronic record and section 65-B deals with admissibility of electronic records. In the case of Anvar P.V. (supra), Apex Court has observed in paragraph 22 thus:

“22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court inState (NCT of Delhi) v. Navjot Sandhu case (2005) 11 SCC 600, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”

6. Perusal of the above extracted portion clearly shows that electronic record by way of secondary evidence shall not be admissible in evidence unless the requirements under section 65B are satisfied.

7. Mr. Sawant submitted that when the plaintiff filed electronic record, they did not file certificate in terms of section 65B and therefore the learned trial Judge was not justified in admitting electronic record in evidence.

8. Perusal of the impugned order shows that at the time of filing the electronic record the plaintiffs did not file certificate containing the details in terms of section 65B (4). The learned trial Judge, therefore, did not admit those documents on 5.10.2011 and kept the issue open. The plaintiffs, thereafter filed application Exh.99 seeking permission to produce the fresh certificate under section 65B (4) and the learned trial Judge permitted the plaintiffs to file fresh certificate in compliance of requirements of Section 65B (4).

9. Mr. Sawant submitted that the plaintiffs did not challenge the order dated 5.10.2011 and, therefore, it will operate as res judicata. This aspect was considered by the learned trial Judge in paragraph 16. The learned trial Judge observed that issue of admissibility of the e-mails was kept open at the stage of final hearing. In other words, e-mails were neither discarded nor admitted in evidence. In view thereof, the order passed on 5.10.2011 did not finally decide issue of admissibility of e-mails on record. Principle of res judicata will not be applicable as the learned trial Judge did not decide the said issue on merits and it was in fact kept open at the stage of final argument.

10. Mr. Sawant submitted that in any case the learned trial Judge was not justified in passing the impugned order and ought to have considered this aspect only at the time of final hearing of the suit. It is not possible to accept this submission as no provision was pointed out prohibiting the plaintiffs from applying for admitting the documents subject to compliance of requirements of section 65B(4).

11. Section 65-B(1) reads thus:

“65B. Admissibility of electronic records:

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

12. Perusal of the above provision shows that if the conditions mentioned in Section 65B are satisfied in relation to the information and computer in question, it shall be admissible in any proceedings without any further proof or production of the original as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

13. In view thereof, I do not find that the learned trial Judge has committed any error in admitting e-mails in evidence.

14. That leaves me to consider the contention advanced by Mr. Sawant that the learned trial Judge should not have treated as primary evidence. In view of paragraph 22 of the decision of Apex Court in Anvar P.V. Case (supra), the learned trial Judge should have treated these e-mails as secondary evidence. Subject to this modification, no case is made out for invocation of powers under Article 227 of the Constitution of India. Petition fails and the same is dismissed.

15. It is, however, expressly made clear that where a decree is appealed from by the petitioner, any error, defect or irregularity in the impugned order affecting the decision of the case, may be set forth as a ground of objection in Memorandum of Appeal as contemplated by Section 105(1) of C.P.C.

What are the stages of a crime? What is an attempt to commit an offence? Distinguish between Preparation and Attempt

Q. What are the stages of a crime? What is an attempt to commit an offence? Distinguish between Preparation and Attempt. What do you mean by attempt to commit murder? Whether without causing injury can a person be held guilty of attempt to commit murder? Do the elements of Sec 511 (attempt to commit an offence) apply to section 307, 308, & 309 (attempt to commit murder, culpable homicide, and Suicide)?

In general, an offence passes through the following stages -
Conceiving the idea of performing a legally defined harm - It is immaterial whether the person conceiving such an idea knows that it is illegal to perform it. At this stage, there is no action taken to harm anybody and it is not a crime to merely think of doing harmful activity because the person thinking it may not even want to actually do it. For example, merely thinking killing 1000s of people instantaneously, is not a crime.
Deliberation - At this stage, a person consolidates his devious ideas and identifys ways of doing it. Again, there is no action taken and there is no harm done to anybody nor is there any intention to cause injury to anybody. It is still in the thinking stage and is not a crime. For example, merely thinking about how to build a device that can kill 1000s of people instantaneously, is not a crime.

From a legal standpoint the above two stages are inconsequential because man being a thoughtful animal, he thinks about innumerable things without any material result.

Intention (Mens Rea) - This stage is a significant progress from mere deliberation towards actual commission of the crime. At this stage, the person has made up his mind to actually implement or execute his devious plans.  There is an intention to cause harm but he hasn't yet taken any action that manifests his intention. Further, there is no way to prove an intention because even devil can't read a human mind. Thus, this is not considered a crime. For example, intention to kill anyone is not a crime in itself. However, it is an essential ingredient of crime because without intention to cause harm, there can be no crime. On the other hand, even a thoughtless act, without any deliberation, can be a crime if there is an intention to cause harm.

Preparation - As this stage, the intention to cause harms starts manifesting itself in the form of physical actions. Preparation consists of arranging or building things that are needed to commit the crime. For example, purchasing poison. However, it is possible for the person to abandon his course of action at this stage without causing any harm to anyone. In general, preparation is not considered a crime because it cannot be proved beyond doubt the goal of the preparation. For example, purchasing knife with an intention to kill someone is not a crime because it cannot be determined whether the knife was bought to kill someone or to chop vegetables.

However, there are certain exceptions where even preparation for committing an offence is crime. These are -
    Sec 122 - Collecting arms with an intention of waging war against the Govt. of India.
    Sec 126 - Preparing to commit depredation on territories of any power in alliance or at peace with the Govt. of India.
    Sec 235 - Counterfeiting operations for currency.
    Sec 399 - Preparation to commit dacoity.

Attempt - This stage is attained by performing physical actions that, if left unstopped, cause or are bound to cause injury to someone. The actions clearly show that the person has absolutely no intention to abandon his plan and if the person is left unrestricted, he will complete the commission of the crime. Since the intention of the person can be determined without doubt from his actions, an attempt to commit a crime is considered a crime because if left unpunished, crime is bound to happen and prevention of crime is equally important for a healthy society.

Actual commission of the offence - This is the final stage where the crime is actually done.

Distinction between Preparation and Attempt

There is a very fine line between preparation and attempt. While, IPC does not define either of them, it is very important to distinguish between them because attempt is a crime but preparation is not. Both, Preparation and Attempt are physical manifestations of the criminal intention. But attempt goes a lot father than preparation towards the actual happening of crime. While in Preparation, there is a possibility that the person may abandon his plan, but attempt leaves no room for that. For example, keeping a pistol in pocket and looking for the enemy to kill is a preparation because one can abandon the plan anytime, but taking out the piston and pulling the trigger is attempt because it leaves no room for turning back.. Thus, in general, Preparation involves collecting material, resources, and planning for committing an act while attempt signifies a direct movement towards commission after the preparations are made.
Ordinarily, to constitute an attempt the following elements are needed -

    mens rea to commit the crime
    ant act which constitutes the actus reus of a criminal attempt
    failure in accomplishment

In the case of R vs Cheesman 1862, Lord Blackburn identified a key difference between the two.  He says that if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.

However, this is not the only criteria for determining an attempt.  The following are four tests that come in handy in distinguishing between the two -

    Last Step Test or Proximity Rule
    As per this test, anything short of last step is preparation and not attempt. This is because as long as there is a step remaining for completion of the crime, the person can abandon it. For example, A obtains poison to kill B and mixes it with food that B is supposed to eat. But he has not yet given the food to B. Thus, it is still preparation. As soon as he keeps the food on the table from where B eats everyday, the last step is done and it becomes an attempt.
    In the case of R vs Riyasat Ali 1881, the accused gave orders to print forms that looked like they were from Bengal Coal Company. He proofread the samples two times and gave orders for correction as well so that they would appear exactly as forms of the said company. At this time he was arrested for attempt to make false document under section 464. However, it was held that it was not an attempt because the name of the company and the seal were not put on the forms and until that was done, the forgery would not be complete.
    In the case of Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the Patna University for MA exam and he supplied documents proving that he was a graduate and was working as a headmaster of a school. Later on it was found that the documents were fake. It was held that it was an attempt to cheat because he had done everything towards achieving his goal.
    Indispensable Element Test or Theory of Impossibility
    As per this test, all of indispensable elements must be present to equal attempt. For example, a person has the gun to kill but he forgot the bullets. In this case, it would not be an attempt.  Further, he goes to place where victim should be but is not then he is not guilty of attempt under this test.  In other words, if there is something a person needs to commit the crime but it is not present, then there is not an attempt.  This test has generated a lot of controversy ever since it was laid in the case of Queen vs Collins, where it was held that a pickpocket was not guilty of attempt even when he put his hand into the pocket of someone with an intention to steal but did not find anything. Similarly, in the case of R vs Mc Pherson 1857, the accused was held not guilty of attempting to break into a building and steal goods because the goods were not there.

    However, these cases were overruled in R vs King 1892, where the accused was convicted for attempting to steal from the hand bag of a woman although there was nothing in the bag. Illustration (b) of section 511 is based on this decision.
    But For Interruption Test
    If the action proves that the person would have gone through with the plan if not for the interruption such as  arrest, then it is an attempt. For example, a person points a gun at another and is about to pull the trigger. He is overpowered and was stopped from pulling the trigger. This shows that if he had not been interrupted, he would have committed the crime and he is thus guilty of attempt even though the last step of the crime has not be performed.
    Unequivocality Test or On the job Theory
    If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. For example, in the case of State of Mah. vs Mohd. Yakub 1980, three persons were found with a truck loaded with silver near the sea dock. Further, the sound of engine of a mechanized boat was heard from a nearby creek. They were convicted of attempting to smuggle silver. J Sarkaria observed that what constitutes at attempt is a mixed question of law and the facts of a case. Attempt is done when the culprit takes deliberate and overt steps that show an unequivocal intention to commit the offence even if the step is not the penultimate one.

Attempt to commit murder

Section 307 of IPC states that whoever does any act with intention or knowledge, and under such circumstances, that, if by that act he caused death he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act the offender shall be either liable to imprisonment for life.

This means that if a person intentionally does something to kill another and if the other person is not killed, he would be liable for attempt to murder. However, his action must be capable of killing. For example, if a person picks up a pebble and throws it on someone saying, "I will kill you", it is not attempt to murder because it is not possible to kill someone with a pebble. But if someone swings a thick lathi and misses the head of another person, it is attempt to murder.

Illustrations -

    A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
    A, with the intention of causing the death of a child of tender years, exposes it is a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
    A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of ] this section.
    A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence defined in this section. A places the food on Z' s table or delivers it to Z's servant to place it on Z's table. A has committed the offence defined in this section.

Is Injury necessary
From the wordings of this section, it is clear that a person is liable under this section even if no injury is caused to anyone. However, if hurt is caused, the punishment is more severe. Further, as held in the case of State of Mah. vs Balram Bama Patil 1983, SC held that for conviction under sec 307, it is not necessary that a bodily injury capable of causing death must be inflicted but the nature of the injury can assist in determining the intention of the accused. Thus, this section makes a distinction between the act of the accused and its result.

Whether act committed must be capable of causing death
In Vasudev Gogte's Case 1932, the accused fired two shots at point blank range at the Governor of Bombay. However, it failed to produce any result because of defect in ammunition or intervention of leather wallet and currency. It was held that to support conviction under this section the accused must have done the act with intention or knowledge that but for any unforeseen intervention, it would cause death. Thus, he was held guilty.

Penultimate Act not necessary
In the case of Om Prakash vs State of Punjab, AIR 1961, SC held that a person can be held guilty under this section if his intention is to murder and in pursuance of his intention he does an act towards its commission, even if that act is not the penultimate act. As per J B K Sharma, the intention of the culprit is the key and it must be gathered from all the circumstances and not merely from the location, number, and type of injury.

Section 307, 308, 309 and Section 511

Attempts are dealt with in IPC in three ways -
1. Some sections such as 196 and 197, deal with the offence as well an attempt for that offence.
2. Some sections such as 307 and 308 deal exclusively with an attempt of an offence.
3. The attempts for offenses that are not dealt with in above two are covered by section 511.

Thus, a case of attempt to murder may fall under section 307 as well as section 511. There is a conflict of opinion among the high courts regarding this matter.  In the case of R vs Francis Cassidy 1867, Bombay HC held that section 511 is wide enough to cover all cases of attempt including attempt to murder. It further held that for application of section 307, the act might cause death if it took effect  and it must be capable of causing death in normal circumstances. Otherwise, it cannot lie under 307 even if it has been committed with intention to cause death and was likely, in the belief of the prisoner, to cause death. Such cases may fall under section 511. However, in the case of Queen vs Nidha 1891, Allahabad HC expressed a contrary view and held that sec 511 does not apply to attempt to murder. It also held that section 307 is exhaustive and not narrower than section 511.

In the case of  Konee 1867, it was held that for the application of section 307, the act must be capable of causing death and must also be the penultimate act in commission of the offence, but for section 511, the act may be any act in the series of act and not necessarily the penultimate act. However, this view has now been overruled by SC in the case of Om Prakash vs State of Punjab AIR 1967, where the husband tried to kill his wife by denying her food but the wife escaped. In this case, SC held that for section 307, it is not necessary that the act be the penultimate act and convicted the husband under this section.

A, the licensee of a petrol pump, and his 9 yr old brother are caught adulterating petrol in an underground storage. What offence is committed by A and his brother?

In this case, there are two people who are doing the act - one is an adult and one is a boy between the age of 7 and 12. Thus, as per section 83, first of all it will be determined if the boy had the maturity to understand what he was doing and what could be the consequences of his act. If upon analyzing the facts of the situation and cross examining the boy, it is determined that the boy was mature enough to understand the nature of his act, he will be treated as an adult.  In this case,  as per section 34 (Act done by several persons in furtherance of common intention) both will be charged with the same offence as if they had done it alone. Otherwise, the boy will be acquitted by giving the benefit of section 83 and only the man will be charged.

Regarding the charges -

    The man is a licensee of the petrol pump and is thus an agent of the petrol company. He is supposed to keep and sell petrol according to the terms of license. Since he was caught adulterating it, he has committed the offence of criminal breach of trust as per section 405. However, since he is an agent, this becomes a special case and he will be punished under  section 409, which is meant for public servant, banker, attorney, merchant or agent.
    The boy is not a licensee so he cannot be charged for this offence even if he did not get benefit of 83 as mentioned before.
    Their actions show that they had full intention to cheat public by selling adulterated petrol and if the police hadn't stopped them, they would have sold the adulterated petrol. Since the whole underground tank was being adulterated it can be safely assumed that they had left no option to change their intention. However, since the petrol was not sold yet, no body was cheated and thus, they will be charged under section 511 read with attempt to commit  the office of cheating, which is defined in section 415 and the punishment for which is given in Section 417.
    However, the boy is neither the licensee nor is the seller of petrol. It is not given that he was working as an employee of the licensee of the petrol pump. As such, he owes no fiduciary responsibility to either the licensee or to the customers. Thus, his involvement in adulterating petrol is not a crime against the customers, nor against the company. Further, his involvement in adulterating petrol is not a tortious act against the licensee either because he was doing it with the consent of the licensee. Thus, even if the boy does not get the benefit of section 83, he has not done any crime and should be acquitted.

How can the case be transferred from one state to another

How can the case be transferred from one state to another.

Criminal Procedure Code, 1973 — Ss. 406 and 482 — Transfer of criminal case — Investigation by CBI — Prayers for: Supreme Court will transfer a case from one State to another State only if there is a reasonable apprehension on the part of a party to a case that justice will not be done. Mere apprehension that the accused are influential may not be sufficient to transfer the case. Moreover, extraordinary power of constitutional courts in directing CBI to conduct investigation in a case must be exercised rarely in exceptional circumstances, especially, when there is lack of confidence in investigating agency or in national interest and for doing complete justice in the matter. [Sujatha Ravi Kiran v. State of Kerala, (2016) 7 SCC 597]

  Supreme Court of India

Sujatha Ravi Kiran vs State Of Kerala And Ors on 12 May, 2016

Author: R Banumathi

Bench: T.S. Thakur, R. Banumathi, Uday Umesh Lalit

REPORTABALE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITION (CRIMINAL) NO. 351 OF 2013 | SUJATHA RAVI KIRAN @ | | SUJATASAHU …Petitioner VERSUS | STATE OF KERALA & ORS. | …Respondents| WITH WRIT PETITION (CRIMINAL) NO.164 OF 2013 AND TRANSFER PETITION (CRIMINAL) NO. 384 OF 2013 J U D G M E N T

R. BANUMATHI, J.

Transfer Petition (Crl.) Nos. 351 of 2013, 384 of 2013 have been filed to transfer the petitions filed underSection 482 of the Cr.P.C. being Criminal M.C. No.2551 of 2013 and Criminal M.C. No.2424 of 2013 pending before the High Court of Kerala at Ernakulam to the High Court of Delhi.

2. The petitioner got married to Lt. Ravi Kiran Kabdula on 09.03.2012 as per Hindu rites and customs. Petitioner's husband Lt. Ravi Kiran Kabdula is a naval officer who was then posted at Kochi, Kerala. After marriage, the petitioner was residing with her husband at Kochi. As brought on record, the relationship between the petitioner and her husband was not very cordial. On 22.02.2013, the petitioner gave an oral complaint that her husband was withholding her identity card, laptop, mobile phone, original marriage certificate etc. The respondent was called to the police station and directed to handover the belongings to the petitioner. On 04.04.2013, the petitioner lodged a complaint against her husband, her parents-in-law and sister-in-law alleging that they have subjected her to physical and mental cruelty. The petitioner had also levelled charge of sexual abuse against five naval officers and wife of one of the naval officers. Based on her complaint, a case was registered in FIR No.260 of 2013 for the offences punishable under Sections 498-A, 354,506 (Part-I) IPC read with Section 34IPC against the petitioner's husband Lt. Ravi Kiran Kabdula, her parents-in-law, sister-in-law and the said five naval officers and wife of one of them. In the complaint lodged subsequently, the petitioner had made allegations of wife-swapping and also implicated new names. Investigation in the said case is pending with Harbour Police Station, Kochi, Kerala.

3. Petitioner's husband had moved an anticipatory bail application before the High Court of Kerala, which was rejected vide order dated 10.06.2013. While declining anticipatory bail, the High Court has directed that a thorough investigation must be conducted by the police. Pursuant to the said order of the court, Deputy Commissioner of Police vide order dated 12.06.2013 constituted a special team headed by the Assistant Commissioner of Police, Kochi.

4. Navy officers shown as accused in FIR No.260 of 2013 and private respondents in these transfer petitions namely, Capt. Ashok K Aukta, Preena Aukta, Lt. Ishwar Chand Vidyasagar, Anand Balakrishnan and Ajay Jaykrishnan have filed petitions under Section 482Cr.P.C. in Criminal M.C. No. 2551 of 2013, and Criminal M.C. No.2424 of 2013 before the High Court of Kerala, which the petitioner now seeks to transfer. The petitioner claims transfer of the said two petitions contending that she has no means or a male member in her family to support her to pursue the case at Kerala. The petitioner also alleges that she faces threat to her life on account of the private respondents. When these transfer petitions came up for hearing, by an order dated 16.09.2013, this Court granted interim stay of further proceedings in the said quash petitions.

5. We have heard the counsel appearing for the parties at considerable length and perused the impugned order and material on record.

6. As noticed earlier, investigation in FIR No. 260 of 2013 registered at Harbour Police Station, Kochi, is pending in the State of Kerala and stated infra, we have directed further investigation in the said case by a special team of state police officers. When the investigation is pending in the State of Kerala, it is desirable that the quash petitions filed under Section 482, Cr.P.C. are heard in the High Court of Kerala, as the High Court will be in a better position to take note of further progress in the investigation and also consider the evidence recorded. The Supreme Court will transfer a case from one State to another State only if there is a reasonable apprehension on the part of a party to a case that justice will not be done. The petitioner has pleaded that “the atmosphere in Kerala is not conducive for the case to progress and reach its judicious end”. The petitioner has only alleged that the accused are naval officers and are influential. Mere apprehension that the accused are influential may not be sufficient to transfer the case. Since a special team of state police officers is constituted for further investigation, we are not inclined to order the transfer of the criminal miscellaneous petitions from the High Court of Kerala to the High Court of Delhi. As the petitioner has expressed difficulties in travelling Kerala and pursuing the matter, we request the Kerala State Legal Services Authority to nominate a senior counsel to represent the petitioner in the matters before the High Court.

7. In Writ Petition (Crl.) No. 164 of 2013, the petitioner has prayed for issuance of writ, directing investigation of FIR No. 260 of 2013, to be entrusted to an independent investigating agency or Central Bureau of Investigation (CBI) to ensure fair and impartial investigation. The petitioner has alleged lackadaisical approach by the state police to defeat petitioner's case. In the writ petition on 20.09.2013, this Court passed an interim order staying of the investigation in connection with FIR No. 260 of 2013 and also proceedings before the Board of Enquiry, INS Vendurthy, Naval Base, Kochi.

8. The State of Kerala has filed counter affidavit denying petitioner's allegation of inaction and lackadaisical approach by the state police. In the counter affidavit filed by the State, it is stated that after taking over the investigation by the special team on 14.06.2013, the petitioner was examined on 10.07.2013 and subjected to medical examination at Safdarjung Hospital, New Delhi on 11.07.2013. It is further stated that as many as seventy one witnesses, including the petitioner, friends of the petitioner, doctors and other witnesses have been examined and investigation is continuing. It is further stated that in the anticipatory bail application filed by the husband in B.A. No. 2719 of 2013, the High Court of Kerala on 10.06.2013 passed certain remarks about the investigation of the case and directed a thorough investigation by police. Pursuant to that, vide order dated 12.06.2013, Deputy Commissioner of Police, Kochi City had constituted a special team headed by Assistant Commissioner of Police, Crime Detachment, Kochi City and investigation of the case was taken over by them on 14.06.2013. Pursuant to the order of the High Court, the state police did proceed with the further investigation.

9. It is well settled that the extraordinary power of the constitutional courts in directing C.B.I. to conduct investigation in a case must be exercised rarely in exceptional circumstances, especially, when there is lack of confidence in the investigating agency or in the national interest and for doing complete justice in the matter. A Constitution Bench of this Court inState of West Bengal & Ors. vs. Committee for Protection of Democratic Rights, West Bengal & Ors. (2010) 3 SCC 571 held as under:

“69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction underArticle 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.

70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts, must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merley because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.

71. In Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya(2002) 5 SCC 521, this Court had said that an order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency. We respectfully concur with these observations.”

10. Taking into account the law laid down by this Court in Committee for Protection of Democratic Rights (supra), direction for investigation by C.B.I. was declined by this Court in the case of K. Saravanan Karuppasamy & Anr. v. State of Tamil Nadu & Ors. (2014) 10 SCC 406 and Sudipta Lenka v. State of Odisha & Ors. 2014 (11) SCC 527.

11. Considering the facts and circumstances of the case in hand, in the light of the above principles, we are of the view that the case in hand does not entail a direction for transferring the investigation from the state police/special team of State Police Officers to C.B.I. The facts and circumstances in which the offence is alleged to have been committed can be better investigated into by the state police. However, having regard to the nature of allegations levelled by the petitioner, we deem it appropriate to direct the State of Kerala to constitute a special team of police officers headed by an officer not below the rank of Deputy Inspector General of Police to investigate the matter.

12. In the result, the Writ Petition (Criminal) No. 164 of 2013 is disposed of with direction to the Director General of Police, Kerala to constitute a special investigation team headed by a police officer not below the rank of Deputy Inspector General of Police to take up further investigation in FIR No.260 of 2013. The special investigation team shall take up further investigation in accordance with law and complete the investigation at an early date preferably within a period of three months from today. We request the High Court to take up the Criminal M.C. Nos.2551 of 2013 and 2424 of 2013 after the special investigation team completes the investigation.

13. The Transfer Petitions (Criminal) Nos. 351 of 2013 and 384 of 2013 are dismissed. This order, however, shall not prevent the petitioner from seeking transfer of Divorce Petition filed by the husband if she is so advised. We make it clear that we have not expressed any opinion on the merits of the matter.

….……...................CJI.

(T.S. THAKUR) ……….......................J.

(R. BANUMATHI) ………......................J.

(UDAY UMESH LALIT) New Delhi, May 12, 2016.

What are the stages of a crime? What is an attempt to commit an offence? Distinguish between Preparation and Attempt

Q. What are the stages of a crime? What is an attempt to commit an offence? Distinguish between Preparation and Attempt. What do you mean by attempt to commit murder? Whether without causing injury can a person be held guilty of attempt to commit murder? Do the elements of Sec 511 (attempt to commit an offence) apply to section 307, 308, & 309 (attempt to commit murder, culpable homicide, and Suicide)?

In general, an offence passes through the following stages -
Conceiving the idea of performing a legally defined harm - It is immaterial whether the person conceiving such an idea knows that it is illegal to perform it. At this stage, there is no action taken to harm anybody and it is not a crime to merely think of doing harmful activity because the person thinking it may not even want to actually do it. For example, merely thinking killing 1000s of people instantaneously, is not a crime.
Deliberation - At this stage, a person consolidates his devious ideas and identifys ways of doing it. Again, there is no action taken and there is no harm done to anybody nor is there any intention to cause injury to anybody. It is still in the thinking stage and is not a crime. For example, merely thinking about how to build a device that can kill 1000s of people instantaneously, is not a crime.

From a legal standpoint the above two stages are inconsequential because man being a thoughtful animal, he thinks about innumerable things without any material result.

Intention (Mens Rea) - This stage is a significant progress from mere deliberation towards actual commission of the crime. At this stage, the person has made up his mind to actually implement or execute his devious plans.  There is an intention to cause harm but he hasn't yet taken any action that manifests his intention. Further, there is no way to prove an intention because even devil can't read a human mind. Thus, this is not considered a crime. For example, intention to kill anyone is not a crime in itself. However, it is an essential ingredient of crime because without intention to cause harm, there can be no crime. On the other hand, even a thoughtless act, without any deliberation, can be a crime if there is an intention to cause harm.

Preparation - As this stage, the intention to cause harms starts manifesting itself in the form of physical actions. Preparation consists of arranging or building things that are needed to commit the crime. For example, purchasing poison. However, it is possible for the person to abandon his course of action at this stage without causing any harm to anyone. In general, preparation is not considered a crime because it cannot be proved beyond doubt the goal of the preparation. For example, purchasing knife with an intention to kill someone is not a crime because it cannot be determined whether the knife was bought to kill someone or to chop vegetables.

However, there are certain exceptions where even preparation for committing an offence is crime. These are -
    Sec 122 - Collecting arms with an intention of waging war against the Govt. of India.
    Sec 126 - Preparing to commit depredation on territories of any power in alliance or at peace with the Govt. of India.
    Sec 235 - Counterfeiting operations for currency.
    Sec 399 - Preparation to commit dacoity.

Attempt - This stage is attained by performing physical actions that, if left unstopped, cause or are bound to cause injury to someone. The actions clearly show that the person has absolutely no intention to abandon his plan and if the person is left unrestricted, he will complete the commission of the crime. Since the intention of the person can be determined without doubt from his actions, an attempt to commit a crime is considered a crime because if left unpunished, crime is bound to happen and prevention of crime is equally important for a healthy society.

Actual commission of the offence - This is the final stage where the crime is actually done.

Distinction between Preparation and Attempt

There is a very fine line between preparation and attempt. While, IPC does not define either of them, it is very important to distinguish between them because attempt is a crime but preparation is not. Both, Preparation and Attempt are physical manifestations of the criminal intention. But attempt goes a lot father than preparation towards the actual happening of crime. While in Preparation, there is a possibility that the person may abandon his plan, but attempt leaves no room for that. For example, keeping a pistol in pocket and looking for the enemy to kill is a preparation because one can abandon the plan anytime, but taking out the piston and pulling the trigger is attempt because it leaves no room for turning back.. Thus, in general, Preparation involves collecting material, resources, and planning for committing an act while attempt signifies a direct movement towards commission after the preparations are made.
Ordinarily, to constitute an attempt the following elements are needed -

    mens rea to commit the crime
    ant act which constitutes the actus reus of a criminal attempt
    failure in accomplishment

In the case of R vs Cheesman 1862, Lord Blackburn identified a key difference between the two.  He says that if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.

However, this is not the only criteria for determining an attempt.  The following are four tests that come in handy in distinguishing between the two -

    Last Step Test or Proximity Rule
    As per this test, anything short of last step is preparation and not attempt. This is because as long as there is a step remaining for completion of the crime, the person can abandon it. For example, A obtains poison to kill B and mixes it with food that B is supposed to eat. But he has not yet given the food to B. Thus, it is still preparation. As soon as he keeps the food on the table from where B eats everyday, the last step is done and it becomes an attempt.
    In the case of R vs Riyasat Ali 1881, the accused gave orders to print forms that looked like they were from Bengal Coal Company. He proofread the samples two times and gave orders for correction as well so that they would appear exactly as forms of the said company. At this time he was arrested for attempt to make false document under section 464. However, it was held that it was not an attempt because the name of the company and the seal were not put on the forms and until that was done, the forgery would not be complete.
    In the case of Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the Patna University for MA exam and he supplied documents proving that he was a graduate and was working as a headmaster of a school. Later on it was found that the documents were fake. It was held that it was an attempt to cheat because he had done everything towards achieving his goal.
    Indispensable Element Test or Theory of Impossibility
    As per this test, all of indispensable elements must be present to equal attempt. For example, a person has the gun to kill but he forgot the bullets. In this case, it would not be an attempt.  Further, he goes to place where victim should be but is not then he is not guilty of attempt under this test.  In other words, if there is something a person needs to commit the crime but it is not present, then there is not an attempt.  This test has generated a lot of controversy ever since it was laid in the case of Queen vs Collins, where it was held that a pickpocket was not guilty of attempt even when he put his hand into the pocket of someone with an intention to steal but did not find anything. Similarly, in the case of R vs Mc Pherson 1857, the accused was held not guilty of attempting to break into a building and steal goods because the goods were not there.

    However, these cases were overruled in R vs King 1892, where the accused was convicted for attempting to steal from the hand bag of a woman although there was nothing in the bag. Illustration (b) of section 511 is based on this decision.
    But For Interruption Test
    If the action proves that the person would have gone through with the plan if not for the interruption such as  arrest, then it is an attempt. For example, a person points a gun at another and is about to pull the trigger. He is overpowered and was stopped from pulling the trigger. This shows that if he had not been interrupted, he would have committed the crime and he is thus guilty of attempt even though the last step of the crime has not be performed.
    Unequivocality Test or On the job Theory
    If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. For example, in the case of State of Mah. vs Mohd. Yakub 1980, three persons were found with a truck loaded with silver near the sea dock. Further, the sound of engine of a mechanized boat was heard from a nearby creek. They were convicted of attempting to smuggle silver. J Sarkaria observed that what constitutes at attempt is a mixed question of law and the facts of a case. Attempt is done when the culprit takes deliberate and overt steps that show an unequivocal intention to commit the offence even if the step is not the penultimate one.

Attempt to commit murder

Section 307 of IPC states that whoever does any act with intention or knowledge, and under such circumstances, that, if by that act he caused death he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act the offender shall be either liable to imprisonment for life.

This means that if a person intentionally does something to kill another and if the other person is not killed, he would be liable for attempt to murder. However, his action must be capable of killing. For example, if a person picks up a pebble and throws it on someone saying, "I will kill you", it is not attempt to murder because it is not possible to kill someone with a pebble. But if someone swings a thick lathi and misses the head of another person, it is attempt to murder.

Illustrations -

    A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
    A, with the intention of causing the death of a child of tender years, exposes it is a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
    A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of ] this section.
    A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence defined in this section. A places the food on Z' s table or delivers it to Z's servant to place it on Z's table. A has committed the offence defined in this section.

Is Injury necessary
From the wordings of this section, it is clear that a person is liable under this section even if no injury is caused to anyone. However, if hurt is caused, the punishment is more severe. Further, as held in the case of State of Mah. vs Balram Bama Patil 1983, SC held that for conviction under sec 307, it is not necessary that a bodily injury capable of causing death must be inflicted but the nature of the injury can assist in determining the intention of the accused. Thus, this section makes a distinction between the act of the accused and its result.

Whether act committed must be capable of causing death
In Vasudev Gogte's Case 1932, the accused fired two shots at point blank range at the Governor of Bombay. However, it failed to produce any result because of defect in ammunition or intervention of leather wallet and currency. It was held that to support conviction under this section the accused must have done the act with intention or knowledge that but for any unforeseen intervention, it would cause death. Thus, he was held guilty.

Penultimate Act not necessary
In the case of Om Prakash vs State of Punjab, AIR 1961, SC held that a person can be held guilty under this section if his intention is to murder and in pursuance of his intention he does an act towards its commission, even if that act is not the penultimate act. As per J B K Sharma, the intention of the culprit is the key and it must be gathered from all the circumstances and not merely from the location, number, and type of injury.

Section 307, 308, 309 and Section 511

Attempts are dealt with in IPC in three ways -
1. Some sections such as 196 and 197, deal with the offence as well an attempt for that offence.
2. Some sections such as 307 and 308 deal exclusively with an attempt of an offence.
3. The attempts for offenses that are not dealt with in above two are covered by section 511.

Thus, a case of attempt to murder may fall under section 307 as well as section 511. There is a conflict of opinion among the high courts regarding this matter.  In the case of R vs Francis Cassidy 1867, Bombay HC held that section 511 is wide enough to cover all cases of attempt including attempt to murder. It further held that for application of section 307, the act might cause death if it took effect  and it must be capable of causing death in normal circumstances. Otherwise, it cannot lie under 307 even if it has been committed with intention to cause death and was likely, in the belief of the prisoner, to cause death. Such cases may fall under section 511. However, in the case of Queen vs Nidha 1891, Allahabad HC expressed a contrary view and held that sec 511 does not apply to attempt to murder. It also held that section 307 is exhaustive and not narrower than section 511.

In the case of  Konee 1867, it was held that for the application of section 307, the act must be capable of causing death and must also be the penultimate act in commission of the offence, but for section 511, the act may be any act in the series of act and not necessarily the penultimate act. However, this view has now been overruled by SC in the case of Om Prakash vs State of Punjab AIR 1967, where the husband tried to kill his wife by denying her food but the wife escaped. In this case, SC held that for section 307, it is not necessary that the act be the penultimate act and convicted the husband under this section.

A, the licensee of a petrol pump, and his 9 yr old brother are caught adulterating petrol in an underground storage. What offence is committed by A and his brother?

In this case, there are two people who are doing the act - one is an adult and one is a boy between the age of 7 and 12. Thus, as per section 83, first of all it will be determined if the boy had the maturity to understand what he was doing and what could be the consequences of his act. If upon analyzing the facts of the situation and cross examining the boy, it is determined that the boy was mature enough to understand the nature of his act, he will be treated as an adult.  In this case,  as per section 34 (Act done by several persons in furtherance of common intention) both will be charged with the same offence as if they had done it alone. Otherwise, the boy will be acquitted by giving the benefit of section 83 and only the man will be charged.

Regarding the charges -

    The man is a licensee of the petrol pump and is thus an agent of the petrol company. He is supposed to keep and sell petrol according to the terms of license. Since he was caught adulterating it, he has committed the offence of criminal breach of trust as per section 405. However, since he is an agent, this becomes a special case and he will be punished under  section 409, which is meant for public servant, banker, attorney, merchant or agent.
    The boy is not a licensee so he cannot be charged for this offence even if he did not get benefit of 83 as mentioned before.
    Their actions show that they had full intention to cheat public by selling adulterated petrol and if the police hadn't stopped them, they would have sold the adulterated petrol. Since the whole underground tank was being adulterated it can be safely assumed that they had left no option to change their intention. However, since the petrol was not sold yet, no body was cheated and thus, they will be charged under section 511 read with attempt to commit  the office of cheating, which is defined in section 415 and the punishment for which is given in Section 417.
    However, the boy is neither the licensee nor is the seller of petrol. It is not given that he was working as an employee of the licensee of the petrol pump. As such, he owes no fiduciary responsibility to either the licensee or to the customers. Thus, his involvement in adulterating petrol is not a crime against the customers, nor against the company. Further, his involvement in adulterating petrol is not a tortious act against the licensee either because he was doing it with the consent of the licensee. Thus, even if the boy does not get the benefit of section 83, he has not done any crime and should be acquitted.

INSOLVENCY AND BANKRUPTCY -- REGULATIONS, 2017

INSOLVENCY AND BANKRUPTCY -- REGULATIONS, 2017 - Submission of Claims by Creditors other than Financial Creditors and Operational Creditors
Sandeep Suri, Advocate, Rohit Suri, Advocate
Chandigarh

The Insolvency and Bankruptcy Board of India has introduced Provision of a Form for Submission of Claims by Creditors other than Financial Creditors and Operational Creditors of the Corporate Debtor under Corporate Insolvency Resolution Process.

Section 18 (1) of the Insolvency and Bankruptcy Code, 2016 (Code), inter alia, provides that an interim resolution professional shall “collect all information relating to the assets, finances and operations of the corporate debtor for determining the financial position of the corporate debtor …” and “receive and collate all the claims submitted by creditors to him, pursuant to the public announcement made under sections 13 and 15”.

These provisions envisage submission and collation of all claims from all creditors. All creditors, including operational creditors and financial creditors, need to submit claims to the interim resolution professional.

The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, and the Insolvency and Bankruptcy Board of India (Fast Track Insolvency Resolution Process for Corporate Persons) Regulations, 2017 provide for Forms for submission of claims by operational creditors (including workmen and employees), and financial creditors.

However as in the case of Jaypee Industries, there could be claims from a creditor who is not a financial creditor or an operational creditor and it needs a specific form for submitting its claim.

The Insolvency and Bankruptcy Board of India has amended these regulations to provide for a form (Form F) for submission claims by creditors other than financial and operational creditors.

Please download the Form by following the following link to

Insolvency and bankruptcy notification - August-17/

SC: Proving of Will - Will has to be proved by the propounder in accordance with Section 68.*_

_*⭐SC: Proving of Will - Will has to be proved by the propounder in accordance with Section 68.*_

_Evidence Act, 1872 - Section 68 - Proving of Will  - Will has to be proved by the propounder in accordance with Section 68 even if its execution is not denied by anybody._

_Case:_
_*Ramesh Verma (D) TR.LRS. v. Lajesh Saxena (D) By LRS & Anr.*_

_Citation:_
_*2016 (8) Supreme 688*_
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Remedy to a person aggrieved by an order passed by the Registrar –

Supreme Court Rules, 2013 – Order XV Rule 5 – Remedy to a person aggrieved by an order passed by the Registrar – The Supreme Court Rules have envisaged a remedy being an appeal within 15 days of the making of the order of refusal by the Registrar to receive a petition on the ground that it discloses no reasonable cause. The petitioner therefore, had an efficacious alternate remedy available to him by way of an appeal prescribed under the Rules and has admittedly failed to invoke the same. Justice C.S. Karnan Vs. The Honble Supreme Court of India [Delhi High Court, 23-08-2017] https://www.lawkam.org/delhi/highcourt-justice-karnan-supreme-court/15385/

Procedure for filing Criminal Complaint

Procedure for filing Criminal Complaint
.
A detailed procedure for filing criminal complaints has been laid down in India, as per the Criminal Procedure Code. The following steps will clear any doubts you may have over filing a criminal complaint in India:
Filing an FIR-
In case you are the victim of a cognizable offence, the first step you would take is to approach the police. The police, on receiving information, prepares a written document, known as a First Information Report (FIR). The duty of the police lies in hearing the aggrieved and directing him to the District Magistrate for further action. An FIR can be filed by you if you are the person against whom the crime has been committed or know about an offence that has been committed. There are no charges for filing an an FIR, it being a crucial document that sets the criminal justice system in process.
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What can you do if your FIR is not registered?
It is illegal to not register an FIR. The remedies available are:
1. You can meet the Superintendent of Police or other higher officers like Deputy Inspector General of Police & Inspector General of Police and bring your complaint to their notice.
2. You can send your complaint in writing and by post to the Superintendent of Police concerned. If the Superintendent of Police is satisfied with your complaint, he shall either investigate the case himself or order an investigation to be made.
3. You can file a private complaint before the court having jurisdiction.
4. You can also make a complaint to the State Human Rights Commission or the National Human Rights Commission if the police does nothing to enforce the law or does it in a biased and corrupt manner.
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What is the next step after filing an FIR?-
The police conducts investigation, which may include arrests. Once the investigation has been concluded the police will record all their findings in a Challanï or charge sheet. If it is deemed that there is enough proof on the charge sheet the case goes to court.On the flipside, after their investigations if the police conclude that there is not enough evidence or proof that a crime has been committed they can close the case after justifying their reasons in court. If the police decide to close the case, they are bound to inform the person who filed the FIR of their decision.
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What is a zero FIR and when should it be used?-
A zero FIR is used for crimes such as murder,rape etc. where immediate investigation is required and time cannot be wasted in reaching the police station under whose jurisdiction the crime falls. The main idea of a Zero FIR is to initiate the investigation or urge the police to take their initial action. Once you have lodged a Zero FIR, make sure that your complaint is not transferred to the appropriate police station in your jurisdiction without any initial action or investigation.A zero FIR is necessary for crimes where immediate action is required,eg in case of murder,rape etc, or when the police station under whose jurisdiction the crime was committed is not easily accessible, eg in case of crimes while travelling.
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Criminal Complaint: The Plaint-
It is a document submitted by the complainant to file a criminal complainant against an accused. In layman’s language, it is simply the written allegations of the complainant and it contains a summary of the facts of the case he seeks to present and the relief he seeks for the same.
If you are filing a plaint, you are the ‘plaintiff’ and the person whom you are filing against, is the ‘defendant’. There are certain regulations set by the ‘Limitation Act,1963’ for filing of plaints.
For instance, there is a time limit within which the plant should be filed, and it differs for different courts.
The Plaint, as per the Act, should be filed within 90 days in High court and within 30 days from the date of the crime that is being appealed against.
The details required to be mentioned in the plaint are:
A.The name of the court
B.The nature of the complaint
C.The name and addresses of both the parties.
All of this is normally typed in English, with double-line spacing.
It is also important to remember that it has to be filed within a certain time limit of the occurrence of the act in question as prescribed by the Limitation Act. A plaint filed after an unreasonable delay will not be entertained in the court of law. It should also contain a verification from the complainant with an assurance that all facts stated in the plaint are correct and true to his knowledge.
As the plaint procedure is simple, and if you have enough proof in hand, you can file them with the help of an expert in no time.
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Criminal Complaint: Vakalatnama-
This document is submitted by the complainant authorizing an advocate to argue the case on his behalf. Although an individual can file their Vakalatnama, the terms used are highly technical for a layman to understand, and respond in case of queries. Hence, a vakalatnama is a document that gives the advocate (who is appearing on your behalf) the authorization to fight for justice, and handle all court procedures on your behalf.
It contains the terms and conditions of this authorization, and lists out the rights of the advocate. The terms and conditions, mentioned in the Vakalatnama include:
1. The advocate will not be held responsible for any decisions taken by him/her during the course of an investigation, in the best interests of the clients.
2. The advocate will be paid the requisite fees as well as the fees for the court proceedings.
3. The advocate can be disengaged at any time during the proceedings, if the client wishes, and so on.
The basic idea of a Vakalatnama is to engage a lawyer to fight for the case in the court, and to provide him the authorization to do it with the permission of the plaintiff.
The vakalatnama is affixed with the plaint and submitted to the court by the advocate authorized to represent the case.
Although no fees are paid for submission, some courts demand a stamp ‘Advocate Welfare Stamp’ to be pasted on it.
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Criminal Complaint: Court Fees-
The plaints are required to pay the court fees, as per the rules and regulations set by the Court fees Stamp Act.
The nominal court fee is then paid by the Complainant as required by the Court Fees Stamp Act. The court fees usually amount to a nominal percentage of the value of a claim or the suit being made in the case filed and thus, differs depending upon the case.
The advocate authorized to carry on with the dealings of the case will be able to instruct about the procedures and also the court fees to be paid.
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SC: Hear-say evidence.

_*⭐SC: Hear-say evidence.*_

_Section 6, Evidence is an exception to rule of evidence that hearsay evidence is not admissible._

_Case:_
_*Javed Alam Vs. State of Chhatisgarh*_

_Citation:_
_*(2009) 6 SCC 450: JT 2009 (8) (SC) 40.*_
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_*Shared by:*_
_*ADV.Jacob Samuel
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Admissibility-of-Xerox-Documents

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Procedure for filing Criminal Complaint

Procedure for filing Criminal Complaint
.
A detailed procedure for filing criminal complaints has been laid down in India, as per the Criminal Procedure Code. The following steps will clear any doubts you may have over filing a criminal complaint in India:
Filing an FIR-
In case you are the victim of a cognizable offence, the first step you would take is to approach the police. The police, on receiving information, prepares a written document, known as a First Information Report (FIR). The duty of the police lies in hearing the aggrieved and directing him to the District Magistrate for further action. An FIR can be filed by you if you are the person against whom the crime has been committed or know about an offence that has been committed. There are no charges for filing an an FIR, it being a crucial document that sets the criminal justice system in process.
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What can you do if your FIR is not registered?
It is illegal to not register an FIR. The remedies available are:
1. You can meet the Superintendent of Police or other higher officers like Deputy Inspector General of Police & Inspector General of Police and bring your complaint to their notice.
2. You can send your complaint in writing and by post to the Superintendent of Police concerned. If the Superintendent of Police is satisfied with your complaint, he shall either investigate the case himself or order an investigation to be made.
3. You can file a private complaint before the court having jurisdiction.
4. You can also make a complaint to the State Human Rights Commission or the National Human Rights Commission if the police does nothing to enforce the law or does it in a biased and corrupt manner.
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What is the next step after filing an FIR?-
The police conducts investigation, which may include arrests. Once the investigation has been concluded the police will record all their findings in a Challanï or charge sheet. If it is deemed that there is enough proof on the charge sheet the case goes to court.On the flipside, after their investigations if the police conclude that there is not enough evidence or proof that a crime has been committed they can close the case after justifying their reasons in court. If the police decide to close the case, they are bound to inform the person who filed the FIR of their decision.
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What is a zero FIR and when should it be used?-
A zero FIR is used for crimes such as murder,rape etc. where immediate investigation is required and time cannot be wasted in reaching the police station under whose jurisdiction the crime falls. The main idea of a Zero FIR is to initiate the investigation or urge the police to take their initial action. Once you have lodged a Zero FIR, make sure that your complaint is not transferred to the appropriate police station in your jurisdiction without any initial action or investigation.A zero FIR is necessary for crimes where immediate action is required,eg in case of murder,rape etc, or when the police station under whose jurisdiction the crime was committed is not easily accessible, eg in case of crimes while travelling.
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Criminal Complaint: The Plaint-
It is a document submitted by the complainant to file a criminal complainant against an accused. In layman’s language, it is simply the written allegations of the complainant and it contains a summary of the facts of the case he seeks to present and the relief he seeks for the same.
If you are filing a plaint, you are the ‘plaintiff’ and the person whom you are filing against, is the ‘defendant’. There are certain regulations set by the ‘Limitation Act,1963’ for filing of plaints.
For instance, there is a time limit within which the plant should be filed, and it differs for different courts.
The Plaint, as per the Act, should be filed within 90 days in High court and within 30 days from the date of the crime that is being appealed against.
The details required to be mentioned in the plaint are:
A.The name of the court
B.The nature of the complaint
C.The name and addresses of both the parties.
All of this is normally typed in English, with double-line spacing.
It is also important to remember that it has to be filed within a certain time limit of the occurrence of the act in question as prescribed by the Limitation Act. A plaint filed after an unreasonable delay will not be entertained in the court of law. It should also contain a verification from the complainant with an assurance that all facts stated in the plaint are correct and true to his knowledge.
As the plaint procedure is simple, and if you have enough proof in hand, you can file them with the help of an expert in no time.
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Criminal Complaint: Vakalatnama-
This document is submitted by the complainant authorizing an advocate to argue the case on his behalf. Although an individual can file their Vakalatnama, the terms used are highly technical for a layman to understand, and respond in case of queries. Hence, a vakalatnama is a document that gives the advocate (who is appearing on your behalf) the authorization to fight for justice, and handle all court procedures on your behalf.
It contains the terms and conditions of this authorization, and lists out the rights of the advocate. The terms and conditions, mentioned in the Vakalatnama include:
1. The advocate will not be held responsible for any decisions taken by him/her during the course of an investigation, in the best interests of the clients.
2. The advocate will be paid the requisite fees as well as the fees for the court proceedings.
3. The advocate can be disengaged at any time during the proceedings, if the client wishes, and so on.
The basic idea of a Vakalatnama is to engage a lawyer to fight for the case in the court, and to provide him the authorization to do it with the permission of the plaintiff.
The vakalatnama is affixed with the plaint and submitted to the court by the advocate authorized to represent the case.
Although no fees are paid for submission, some courts demand a stamp ‘Advocate Welfare Stamp’ to be pasted on it.
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Criminal Complaint: Court Fees-
The plaints are required to pay the court fees, as per the rules and regulations set by the Court fees Stamp Act.
The nominal court fee is then paid by the Complainant as required by the Court Fees Stamp Act. The court fees usually amount to a nominal percentage of the value of a claim or the suit being made in the case filed and thus, differs depending upon the case.
The advocate authorized to carry on with the dealings of the case will be able to instruct about the procedures and also the court fees to be paid.
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DIFFERENCE BETWEEN CONTRACT AND AGREEMENT


 DIFFERENCE BETWEEN CONTRACT AND AGREEMENT

 rickjohn Posted 14 Jun 2017 Post Comment Visitors: 4037

Difference between Contract and Agreement 

“All contracts are an agreement, but all agreements are not contracts” is an old statement which means that agreement is different from a contract. We may come across hundreds of agreement daily without knowing the fact that it may or may not bound us legally. Agreements which bind us legally are known as a contract.


An agreement can be made without legal involvement whereas a contract needs to be legalized. Agreements are generally made are usually held by taking someone’s word and for small things. When there is an involvement of important issues where a promise cannot suffice then a contract is made. Even though contracts and agreements are used for the same purpose, a contract is said to be a professional agreement.

There are different types of contracts which can be developed. Financing contract is one which created between a debtor and a lender. Contracts created between workers and the person who is paying them to complete a certain project is known as project management contract. Other types of contracts are building contracts, service contracts, and even marriage can be also considered marriage as contract. Agreements are differ from contract in that they are made on a personal understanding with a trust that a person will complete their half of the agreement. Agreements can also be made for the forgoing things; however it does not provide legal guarantee that other person should fulfill the agreement. Agreements are generally made between friends or family members and are similar to promises. Agreements can be broken as there are no legal repercussions.

For a contract to become binding, there are certain essential elements that it must possess. It must demonstrate universal acceptance and also plausible. Whereas when an agreement is made, only a verbal acceptance by the parties involved is needed. Agreement can also be made if the stipulations are impossible. The parties are able to modify an agreement as they see fit and when they want.

Agreements and contract are created with the same purpose. The difference lies in the formality of the contract and the personalization of an agreement.

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Adv 45b of Kerala stamp act 1959

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List Of Basic Legal Terms

List Of Basic Legal Terms

1. ad valorem: - According to the value; in proportion to value. 

2. air rights: - Rights to use the air above land; air rights accompany land ownership of land, with some limitations, e.g., a landowner has the right to recover damages from airlines that interfere with his or her use of the land, but is not allowed to pollute the air. 

3. Aleatory: - Random, uncertain, depending on chance. 

4. Anton Piller: - order: an order by the High Court. It gives the applicant permission to search the defendant's premises for evidence, inspect it and take it away. It is intended to prevent evidence being destroyed or hidden which would be relevant to the case. (Since April 1999, this has been known as a 'search order'.) 

5. Bailiwick: - the area over which a bailiff has jurisdiction. 

6. Bona vacantia: - goods or an estate belonging to nobody. 

7. Cartel: - an agreement between businesses to restrict competition and keep prices high. 

8. Caveat: - a warning. 

9. Chattel: - any property except freehold land. 

10. Corpus delicti: - Is the body of a person who has been killed unlawfully; or the facts which make up an offense. 

11. Euthanasia: -killing someone to end their suffering.