Advocates Act, 1961 with Professional Ethics
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Law governing legal profession in India.
Advocates Act, 1961 governs the legal profession in India. According to it there are two classes of lawyers entitled to practice law in India i.e. Advocates and Senior Advocates. The Act has provisions for entry into profession as well as discipline and exit from profession. All the three aspects are looked after by the Bar Councils created under the Act which is a body of lawyers themselves. Bar Council also frames the Code of Conduct and Rules of Professional Ethics to be followed by every practicing lawyer. This book contains lucid commentary on all aspects of Advocates Act, 1962. This ebook also contains a specific chapter on Professional Ethics covering material from all over the Globe.
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The book titled “Commentary on Advocates Act, 1961 and Professional Ethics” is also available at Amazon Kindle Store. Check it by clicking the picture below: Continue reading “Ebook on Legal Profession in India”
Necessity to record reasons by Appellate Court
In this regard Order XLI Rule 31 CPC reads as follows:
“Order XLI. Appeals from Original Decrees
31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state—
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.”
On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial Court and reversing the same is founded on different parameters as per the judgments of this Court.
Investigation after taking cognizance
Section 156 & 173 of Cr.P.C.
The investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand. Continue reading “Magistrate directing further investigtion”
Liberty and community
Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational rights of the agency. It must result in minimum interference with the personal liberty of the accused and the right of the agency to investigate the case.
Considerations for grant of bail
The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Continue reading “Grant of bail to an accused.”
An ebook on Law of Ownership and Transfer of Property in India.
Ownership of property is a matter of fact. For example, I have an immovable property and I can enjoy it till I am interrupted by some one. However in law a person in possession of property is not necessarily its owner. Yet a person in possession too have certain rights. All these aspects of ownership and possession are discussed in this book. Continue reading “Law of Ownership and Transfer of Property in India”
Supreme Court: Triple talaq is manifestly arbitrary.
(An abstract of the decision of Supreme Court dated 22 August 2017)
Types of Talaq in Muslim Law
‘Talaq-e-hasan’ is pronounced in the same manner, as ‘talaq-e-ahsan’. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked.
The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). ‘Talaq’ is pronounced again. After the second pronouncement of ‘talaq’, if there is resumption of
cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so,
either expressly or by resuming conjugal relations, ‘talaq’ pronounced by the husband becomes ineffective, as if no ‘talaq’ had ever been expressed. If the third ‘talaq’ is pronounced, it becomes irrevocable.
Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third ‘tuhr’ (period of purity), as soon as the third declaration is made, the ‘talaq’ becomes
irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required ‘iddat’ (the period after divorce, during which a woman cannot remarry. Continue reading “Triple talaq is sinful and no more lawful in India”
Application of mind
Framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case.
Continue reading “Framing of Charge”
Section 392 of the Penal Code which provides for robbery is as under:
“Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.”
As per Section 397, the sentence of imprisonment to be awarded under Section 392 cannot be less than 7 years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person.
Meaning of ‘uses’
A difficulty arose in several High Courts as to the meaning of the word “uses” in Section 397. The term ‘offender’ in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon- The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment no another offender who had not used any deadly weapon. Continue reading “Robbery with Air Gun”
Right to privacy debate
Whether citizens of India have a fundamental right of privacy?
The controversy about right to privacy has been argued in a larger constitution bench of nine judges and judgement has been reserved. But what exactly is the controversy?
The fourth Amendment in the Constitution of USA provide following clause:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Constitution of India has no such clause but in some of the cases the right to privacy has been read into the right to life because the life means a meaningful life and not merely an animal existence. Thus to make life more than animal existence, privacy is held to be part of right to life guaranteed by article 21 o Constitution of India, which is as under:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Continue reading “Fundamental Right to Privacy: Does it exist?”
Definition of Conspiracy
Section 120A of IPC defines criminal conspiracy which reads thus:
“120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,-
1) an illegal act, or
2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Continue reading “Criminal Conspiracy: Meaning and proof.”