LEGAL STUDY FOR LAW STUDENTS

Monday 9 July 2018

Rape cases

ACTUAL OFFENDER IN RAPE CASE MUST BE PUNISHED

AND COURT SHOULD NOT BE PREJUDICE.

As a Criminal Lawyer, my experience says, MOST OF THE ACTUAL RAPE VICTIMS IN INDIA DO NOT GO TO COURT due to fear of COURT HARASSMENT and fear of loosing her social image. What do you say?

Offence of Rape are mostly found committed by relatives, friends and boyfriends [with assurance of marriage]. Sometimes, male customers are found involved in rape case by alleged Call Girls when any dispute arose on payment. Office colleagues are sometimes got involved with ulterior motive. FIR in many of cases are found registered very late, when the lady became pregnant or she was caught red-handed or when the matter had been disclosed to the family members. Factual position is that at the time of occurrence Free consent or Partial Consent of the female [victim] was involved. But all of them became Rape cases in all circumstances as the victim gave statement to police and before Magistrate that offence has committed without her consent or consent was obtained with assurance of marriage and/or by putting fear of life. Such statement is enough to register a case or to punish the offenders. RESULT WOULD BE RIGOROUS PUNISHMENT FOR THE PERIOD OF MINIMUM 7 YEARS.

Court and public both have full sympathy towards the Rape victim. Law also says if Rape is committed and if victim said, it was without her consent, means the offence has been proved.

I would say, 80% of RAPE cases in court are like those, which are not within the meaning of an ACTUAL RAPE CASE where victim had no consent and fought to resist herself. Fact is this, A MAN ALONE CAN NOT RAPE A LADY , IF SHE RESISTS HERSELF.

MOST OF THE RAPE CASES IN COURT ARE FALSE CASE.

ACTUAL OFFENDER MUST BE PUNISHED AND COURT SHOULD NOT BE PREJUDICE.

Secondly:

If there are many skin disease in the body, the ointment would not be proper medicine. It require BLOOD PURIFICATION. In our society ladies used to put such dresses, wherein every anatomy of her body is visible. They wants to show their secret parts [Tattoo on breast, waist] to male by looking them sexy. In print media are now not the news papers but pornography materials.TV shows, advertisements and cinemas are projecting sex feelings and pictures, programes for increasing TRPs. one can't watch them with family. Our Census Board and even courts are mum as they like to copy western culture. Hence Blood purification of the society is required then punishing the Rape Offenders.

Sorry if I hurt anyone,

Asit Kumar Roy,

Advocate

mail@Legumconsultants.com

Ph: 8802888820

wwww.Legumconsultants.com

JUSTICE ID NOT SO EASY IN OUR COUNTRY.

I have hundreds of guanine incidents, where police did not register FIR. Supreme court said No FIR can be registered under WRIT jurisdiction as option is available U/S 156 (3) Cr.P.C.

Practically Ld. M.M. uses power of 156(3) in a mechanical manner. If someone able to success in registering FIR through M.M. under 156(3) Cr.P.C., police do not investigate properly and submits negative final report. Ultimately you can not get justice.

If a Complainant go for complaint case U/s 200 Cr.P.C., complainant sufferers more than offenders and being summon trial, this is bailable and there is very less chances to prove the case because complainant has limited scope of investigation to collect evidence and to prove his case. SO, JUSTICE ID NOT SO EASY IN OUR COUNTRY.

http://www.nationalturk.com/en/indian-supreme-court-makes-registration-of-fir-in-cognizable-office-mandatory-44489

I have hundreds of guanine incidents, where police did not register FIR. Supreme court said No FIR can be registered under WRIT jurisdiction as option is available U/S 156 (3) Cr.P.C.

http://www.nationalturk.com/en/indian-supreme-court-makes-registration-of-fir-in-cognizable-office-mandatory-44489

300 Legal Words for Drafting

300 LEGAL Words are most helpful for Legal drafting.

Expedient – To Prioritize , to rush

Cavil – Argument by which a conclusion evidently false , is drawn from a principle evidently true.

Elusive – Difficult to find , catch or achieve.

Scuffle – a short , confused fight or struggle at close quarters.

Credential – a qualification, achievement , quality, or aspect of a person ‘s background , especially when used to indicate their suitability for something.

Oblivious – Aware.

Accustomed – Customary ; usual.

Treacherous – Guilty of or involving betrayal.

Erudite – learned.

Accentuating – More noticeable.

Crescendo – Progressive increase in intensity.

Tedious –Too long , slow or dull.

Dreadful – involving great suffering.

Enigma – Mysterious or difficult to understand.

Sceptical – Doubtful.

Sardonic – grimly mocking or cynical.

Habeas corpus – a prerogative writ to a person who detains another in custody and which commands him to produce or ‘ have the body of that person before him ‘

Mesne – middle, intervening or tame by nature.

Per se – by itself

Nocumentum – an annoying , unpleasant or obnoxious thing or ptactice.

Non obstante – notwithstanding

Prima facie – on the face of it.

Aequitas – Equity i.e fair or just according to natural law.

Bona fide – in good faith.

Certiorari – a writ of a superior court calling forth the records and entire proceedings of an inferior court or a writ by which causes are removed from an inferior court into a superior court.

Obiter dictum – an incidental and collateral opinion uttered by a judge while delivering a judgement and which is not binding.

Pari material – on the same material.

Pendente lite – during the process of litigation.

Supra – above.

Status quo – the state in which the things are , or were.

Volkogeist – general awareness of the people.

Res judicata – a case or suit already decided.

RE – in the matter of.

Ratio Legis – according to spirit of law

Scienter – knowledge ; an allegation in a pleading that the thing has been done knowingly.

Ex gratia –as an act of grace or favour.

In rem – an act , proceeding or right available against the world at large, as opposed to in personam.

Noscitur a socits – a word known by its associates , i.e the meaning of a word cab be gathered from the context.

Res sub judicata – a matter under judicial consideration.

Ad hoc – created or done for a particular purpose as necessary.

Pertinent – Relevant or applicable to a particular matter , apposite.

Curative petition – question arises whether an aggrieved person is entitled to any relief against the final judgment / order of the Supreme Court, after dismissal of a review petition

Erect –rigidly upright or straight.

Advent – arrival of a notable person or thing.

Submergence – to cover ; bury.

Vicinity –the area near or surrounding a particular place.

Detention –the act of detaining someone or the state of being in official custody.

Rebuttable – an instance of rebutting evidence or an accusation.

Preclude – prevent from happening ; make impossible.

Discrepancy – an illogical or surprising lack of compatibility or similarity between two or more facts.

Superannuation – pension paid to a retired employee who has contributed to a superannuation fund.

Ordinance – An authoritative order

Promulgation – to make known by open declaration; publish ; proclaim formally or put into operation.

Consortium – the right of association and companionship with one’s husband or wife

Averred – allege as a fact in support of a plea

Estoppel – the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination.

Plenary – unqualified ; absolute

Impugned – dispute the truth , validity or honesty of ( a statement or motive ) ; call into question.

Prejudiced – harm or injury that results or may result from some action or judgement.

Legal Luminary – a person who inspires or influences others , especially one prominent in a particular sphere.

Plagiarized – the act of appropriating the literary composition of another , or parts or passages of his writings , or the ideas or language of the same , and passing them off as the product of one’s own mind.

Evacuee – A person evacuated from a place of danger.

Demarcate – Set the boundaries or limits of.

Unfettered – not confined or restricted

Discernible – able to be discerned ; perceptible.

Arenas – a place or scene of activity , debate , or conflict.

Transgression – An act that goes against a law , or code of conduct ; an offence.

Construed – interpret in a particular way.

Consonance – Agreement or compatibility , between opinions or actions.

Retrospectively – looking back.

Dissuade – persuade not to take a particular course of action.

Rationale – set of reasons.

Embezzlement – Theft or misappropriation of funds placed in one’s trust or belongings to one’s employer.

Perished - die , especially in a violent or sudden way.

Inter alia – among other things

Arbitration – the use of an arbitrator to settle a dispute.

STAGES OF CRIMINAL TRIAL.

Normally a Criminal Trial has to travel through main stages from the lodging of F.I.R. till its judgment, they are as under :-

1. FIR :- Any person can launch prosecution against the person committing any legal wrong. A complaint can be lodged orally or reduced in to writing before the police station within whose jurisdiction an offence is committed. The Police Officer in-charge of the police station considers the complaint and registered

2. Inquiry and Investigation :- An police officer after the receipt of the complaint under section 154 of the Code of Criminal Procedure, and matter is taken up for the investigation.

2-A. If the Police Officer in-charge does not found any material in the complaint then he can register the complaint under section 155(2) of Code of Criminal Procedure and issues a receipt thereof to the complainant.

3. Upon registering the F.I.R. and during investigation, a Police Officer can arrest the suspect and took him for remand. Soon after the arrest the accused has to be produced before the Magistrate within 24 hours from the time of his arrest, for authorizing further detention as contemplated under section 57 of Code of Criminal Procedure.

4. The Police Officer in-charge can ask for Police Custody of the accused under section 167 of Code of Criminal Procedure if the investigation cannot be completed within 24 hours. (See Sec 57 of Cr.P.C.)

5. The magistrate considering the application can grant Police Custody to the accused which shall not be more than fifteen days in the whole.

5-A. If the magistrate does not fit it proper to grant police custody then the accused is taken in Magisterial Custody. (See Sec 167 of Cr.P.C.)

6. Soon after the MCR, an accused can apply for grant of Bail, within the provisions of section 436, 437 and 439 of Code of Criminal Procedure.

7. During the investigation, a police officer in-charge can search, seize the material from the possession of accused, or elsewhere kept by the accused. ( See Section 27 of Evidence Act )

7-A. Duty of Investigation officer :Record statement of witnesses U/s 161 Cr.P.C., collect material evidences and seal them for FSL report, record statement of victim/complainant, Took injured for medical examination/ post mortem (as per requirement), Arrest the accused and conduct his personal search, make arrest memo, record his disclosure statement, arrest co-accused by the help of accused and make recovery if any, make side plan, take photos, send Rukka to police station, maintain diary and memos in writing on every activities with signature of other police officials/witnesses present there …. etc.

8. After the completion of investigation, if the police officer found incriminating substance and prima facie case is made out, then he put up charge sheet against the accused. If the offence is punishable with death, life or not less than 10 years, then charge sheet is to be filed within 90 days. Whereas the offence is punishable less than 10 years then charge sheet is to be filed within 60 days. ( See Section 167 (2) (a) (i) and (ii) of Cr.P.C. ( Failing which the offences will be bailable under section 167 (2) of Code of Criminal Procedure)

8-A. Upon receipt of charge sheet under section 173 of Code of Criminal Procedure, the court can either accept the charge sheet and put the accused to trial or reject the charge sheet and discharge the accused.

8-B. If upon the completion of investigation, the police officer does not found any prima facie case, then he can file a final report requesting a discharge of accused.

8-C. Upon receipt of the final report, the magistrate can either direct the police officer to file a report after further-investigation or can issue notice to the complainant for hearing upon the final report requesting the discharge of accused.

8-D. If the complainant does not satisfy with the final report requesting discharge of accused, he can request for treating the same as protest petition and try the accused independently.

9. On acceptance of charge sheet, the accused has to take necessary bail from the court and mater is posted for plea or charge as the case may be. Whenever the offence is punishable with two years of punishment, then such cases are called as summons case and tried as summary trial within the exception of section 260 of Cr.P.C. and the rest of the matters are tried as summons case. (See Section 239, 240 and 251 of Cr.P.C.)

10. On complying section 251 or 240 as the case may be, the matter is posted for evidence of the prosecution witness. (See section 242 and 254 of Cr.P.C.)

11. Sometimes prior to commencement of evidence of pro

11. Sometimes prior to commencement of evidence of prosecution the prosecution issues notice under section 294 of Cr.P.C. to admit documents to the accused. By this way the evidence of the witnesses for which the document is admitted is curtailed during the trial.

12. Whenever the evidence is to be recorded, the court has to record the evidence as provided under section 274 of Cr.P.C. for summons case and section 275 of Cr.P.C. for warrant case. For summary trial u/s 260 of Cr.P.C. the evidence is recorded as provided under section 263 of Cr.P.C.

13. After recording the evidence, the matter is posted for statement of accused (without Oath) under section 313 of Cr.P.C, wherein the incriminating evidence brought against the accused is explained to the accused.

14. Thereafter the matter is posted for evidence of the defense if any. If the accused does not desire to adduce his own evidence or any other evidence in his defense then matter is posted for Arguments. (See Section 314 of Cr.P.C. for arguments )

15. After the completion of arguments the matter is posted for judgment. If there is a judgment of acquittal in summons case then it is to be given under section 255(1) of Cr.P.C. and conviction under section 255(2) of Cr.P.C.

16. Similarly the judgment of acquittal in warrant cases are given under section 248(1) of Cr.P.C. and conviction under section 248(2) of Cr.P.C.

17. If the conviction is given, then the copy of the judgment is to be provided to the accused forthwith free of cost.

18. In case of sentence the magistrate is empowered to pass the sentence up to three years and fine not exceeding Rs. 10,000/-. Similarly the CJM can pass sentence up to 7 years. ( see Section 29 of Cr.P.C.)

19. The sentence of imprisonment in default of payment of fine can be given not exceeding 1/4th of the sentence which magistrate can inflict as punishment. (See Section 30 of Cr.P.C.)

20. The magistrate can also award compensation to the complainant while recording the judgment of conviction. ( See Section 357(1) and 357 (2) of Cr.P.C.)

21. If the accused has undergone any detention during the period of investigation and trial then while convicting him, a set off can be given under section 428 of Cr.P.C.)

22. Upon conviction, accused can request for suspension of sentence (generally said Bail) under section 389 (3) of Cr.P.C.

23. In view of section 437-A of Cr.P.C. accused has to submit bail bonds to appear before the next appellate court.

ASIT KUMAR ROY

ADVOCATE

LEGUM CONSULTANTS

0-8802888820

WWW/LEGUMCONSULTANTS.COM

asitroyadvocate@gmail.com

BAD DAYS FOR LAWYERS

BAD DAYS FOR LAWYERS

Please think, how Govt and judiciary both kicked out advocates from their profession. The District Court lawyers are mostly effected.
Eearlier the poor new advocates ( who had no brief ) could earn a good amount from traffic challans, misc works and affidavit works. Around 1995 all Traffic challans goes to traffic courts, which were mostly situated very far from main court building. Magisterial Affidavit works were fixed to the area SDM courts, situated in deferent parts of Delhi. Earlier it could be attested by any SDM and two SDMs were sitting in Patiala House. Court marriage etc. became online. And SDM does not like advocates interference in marriage registrations. All court Orders became online etc. etc. So, earning from certified copies, misc. works traffic challans, affidavits etc. are reduced for junior lawyers.

Private buses and private Transporters are almost removed from Delhi with several pretexts (issues of unleaded petrol, CNG, 15 yrs old Veh. etc.). Factories, small scale industries are already removed in the name of pollution. Poor people were washed out at the time of commonwealth game, then by Metro rail corporation. Registration of FIR became reduced to keep the DATA clean in police record. Most of the cases are settled in police station or suffered for no registration of FIR. False cases like illegal possession of Knife or illegal possession of liquor are stopped in Delhi since the time of police commissioner Mr. Daddwal. Now there is no such case in Delhi. Mobile theft pick-picketers are there but rarely any cases registering. Now media is strongly effects indirectly on our legal systems. So, Delhi became crime free zone. There are few types of cases like cheque bouncing, matrimonial disputes, cheating, assault and 70% false rape cases. Boom of cheque bouncing cases by Banks have been gone.
There are many other factors also, like development in Judiciary with plea bargaining, mediation, Lok-adalat and many other directions like DAR in MACT case, no arrest in 498A, etc. So MACT advocates are almost finished. Bail matters are burgeoning matters in Electricity Act, 420 IPC and few other cases. Even otherwise as a general practice of Court, the Bail is Jail otherwise no Jail. Advocates has no answer to satisfy their client.

In bifurcation advocated are effected badly. Whole works were distributed from Tis Hazari to Rohini, Patiala House to Dwarka and again to Saket, causing end number of losses in their income i.e. 75% approximately.

There is no remedy and nobody raises voice. Since 1879 there is no amendment on Pleaders fees in Delhi High Courts rule. Advocates Act itself against the Advocates and there is no amendment since the British period. On the other hand, BCA is going to impost cost against Advocates in many issues. In many occasions, a lawyer has to spend whole day to attend single case at evidence stage. So attending other court became impossible.

Students spends 15 to 20 Lacks to complete their LL.B, with lot of HOPES. but this is the reality in Delhi.

What the BAR Associations doing on these issues?

Or the Bar association takes higher rent from the Canteens, resulted poor quality of food by hire price. Otherwise poor and new advocates may get good food in low cost, like other staff canteens. Where does the new & poor advocates go?

Asit Roy, Advocate

How to be a good advocate

How to be a good advocate

Earlier I have discussed how to develop the knowledge, quality and ability of an advocate. Ability and source both are equally important to become a good advocate. Now I will discuss how to build up the sources.
Advocate must be well behaved and sober. He must be involved in social activities and must take part in social functions, cultural activities, make friends and continue friendships. The response, Reply and way of talking should be logical effective and in short. Most important is unacceptable words will spoil the impression of advocates. Listen and understand others carefully, make phone call to wish friends on their birthdays or anniversaries. Most important is the activity should be real and trustworthy, Planned and time bound. No cheating, I know many advocates who have developed very much by cheating but later on finished from their profession.
Remember if you don't have quality, the sources will be useless. ..,,, Asit Roy

Saturday 9 June 2018

How to make a positive environment // Asit Roy

Behavior and Business:

Your behavior is directly proportional to the progress of your business. Your friends, relatives, known people and near-and-dear ones, if they like you, know your behaviour and trust your ability, they will approach you. So, it is necessary to improve your nature and overall quality and your business will itself flourish.

Criticism:

Criticism is a horrible thing. It impacts you and the people around you. If you do not like criticism how can you expect others to accept it. So, do not criticize anyone.

Free Advice:

Unless it’s your immediate family, no individual would like to have unwanted free advice from you so spare yourself from giving any. Every individual have their own way of living their lives, and what seems right to you might not be the approach of someone sitting right next to you. So why bother.

Appreciate:

Learn to appreciate the good qualities of a human being. No matter how bad a person is, he or she always will give you a lesson of life which would help you grow. So, appreciate life and appreciate the people around you.

Help and Expectation:

If you have expectations from one while you help him/her then its better don’t help. A support with prior expectation is not help but lending a help and that’s not a way of life.

Tell Attractive Words:

Tell I am glad to meet you, etc.. and also tell at the end that I am happy to talk to you. It will bring people closer.

Be a good listener:

Your words will be logical, meaningful and appreciated by others. If your words are not acceptable, ignoring, must stop and don’t say.

Speak slowly and sober manner, not loudly.

Hope above tips will change your life with a positive environment