LEGAL KNOWLEDGE. Administrative Law How the (administration) government will perform it's functions Administrative Law - Droid Administrative (France)

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1 LEGAL KNOWLEDGE International Law Term coined by - Jeremy Bentham (18 th Century) Relations b/w States a.k.a Law of Nations Prize Law Regulates practices of capture of ships and cargo in wartime Established after - India & Pakistan war (1971) Private International Law Between the Foreign Individuals Enforced by Municipal Courts Municipal Law Between the State and Citizens - National Law Administrative Law How the (administration) government will perform it's functions Administrative Law - Droid Administrative (France) Criminal Law To maintain order and peace in society - Public Law Punishments - Indian Penal Code, 1860 Private Law Society is regulated by this - Civil Law Personal Law Eg. of Private Law Hindu Marriage act, 1955 Transfer of Property Act, Transfer of Immovable Property Sales of Goods Act, Deals with Movable Property Indian Contract Act, Agreement enforceable by law is Contract Law of Tort - There is no contract in Law of Tort Law of Tort Remedies for Civil Wrongs - Unliquidated Damages 1

2 Condified Written Uncodified Unwritten Things to Remember 2 Courts - Civil & Criminal Misdemeanour - Less serious crime Complainant - Person who files complaint Civil Wrong - Solved by monetary compensation Criminal Wrong - Punishment is given Civil Procedure Code, CPC Code of Criminal Procedure, Cr.PC Civil Case - Person can t be arrested at time of enquiry Criminal Case - Accused can be arrested during or before trial or prosecution Decree - Final adjudication that includes legal consequences Order - Final by Judge Judgment - Statement given by judge on grounds of decree of order Res Ipsa Loquitor - Burden on defendant to prove his innocense Only case in Criminal Wrongs where accused is assumed guilty - Dowry Death Rest all Criminal Wrongs - Accused is assumed innocent unless proven guilty Tribunals - Ouasi Judicial Administrative Agencies eg. Nyaya Panchayats Court - Created by Statutes Judicial Magistrate & Session Judge - Criminal Cases Executive Magistrate & Civil Judge - Civil Cases Tribunals - Quasi Judicial Bodies CAT - Central Administrative Tribunal To resolve disputes of central government employees Chairman of CAT - ex. CJI or Sr. High Court Judge Chairman for allotment in Central Administrative Tribunal - Judge of Supreme Court Mens Rea + Actus Reus = Crime When both 'Mens Rea' and 'Actus Reus' are present - Crime has happened 2

3 4 Stages of Crime: Intention Preparation Attempt Commission Actus non facit reum, nisi means sit rea - Act does not make one guilty unless the mind is guilty too Note: Injury can be caused to a person on - Body, Mind, Reputation, Property Statutes in Criminal Law: Indian Penal Code, List of Crimes Criminal Procedure Code, Procedure for investigation and trial Indian Evidence Act, Kind of Evidence allowed in court Note: 1 st Law Commission of India - under Thomas Macaulay (President) General Exceptions under Indian Penal Code: i.e. Crime is not punishable under certain cases Child under 7 years of age (Doli Incapax) Child 7-12 years with immaturity Person of unsound mind Person intoxicated against the will Private Defense - should not be more harm than it is necessary Section 304 (IPC) - culpable homicide not amounting to murder Less Degree to cause death - Section 299 High Degree to cause death - Section 300 Note: Culpable Homicide - intention of causing death i.e. not amounting to murder or amounting to murder 3

4 Section 304A (IPC) - non culpable homicide i.e. no intention of causing death or death caused by negligence Punishment for causing death by negligence - upto 2 years or fine or both Example: Driving under influence of alcohol Section 304A - non culpable homicide i.e. driving without alcohol but causes death due to negligence (zero intention to kill) Section culpable homicide not amounting to murder i.e. driving negligently under influence of alcohol also aware mistake can happen and causes death (no intention to kill but broke the law by consuming alcohol while driving) i.e. knowledge of mistake can happen Section culpable homicide amounting to murder i.e. want to kill directly by car with intention (murder ) Section 304B (IPC) - Dowry Death i.e. Constructive Homicide Death of woman within seven years of marriage outside normal circumstances Death due to husband or any relative of husband Wrongful Restraint - To abstruct any person from proceeding in any direction i.e. to stop a person illegally Wrongful Confinement - Wrongful restraining any person by setting a limit from preventing him/her to cross it Assault - Physical gesture indicating criminal force Kidnapping - Taking away a minor from lawful guardianship without consent of guardian Male below 16 years of age Female below 18 years age Person of unsound mind of any age 4

5 Robbery - Theft or Extortion or Both i.e in a robbery there is either theft or extortion Dacoity - When 5 or more people commence robbery together Dishonest Misappropriation of Property - Converts property of another to self property dishonestly Note: property in dishonest misappropriation - movable property Mischief - Intention to cause harm or destruction to a person or property Forgery - To make false evidence or document (fraud) Note: Forgery is done to claim false title eg. on property Mental Harassment - Criminal Intimidation Criminal Intimidation - To threaten another person to cause injury to him/her i.e. intention to cause alarm to that person (mental harassment) Defamation - Against reputation of a person Note: Defamation can be caused by words (spoken or written) or by visible representation Criminal Conspiracy - Agree to do illegal act by two or more person. Attempt to commit offence: Punishment - Half the imprisonment provided for that offence Abetment - Supporting the illegal act intentionally eg. Abetment to Suicide (offence) Constructive Liability - Acts done by several persons with common intention Note: Section 34 (IPC) - Common Intention Common Criminal Intention - All persons involved are equally liable/punished as if done by one person alone 5

6 Offences by Unlawful Assembly Unlawful Assembly - Assembly of 5 or more persons to commit an offence (common object) Rioting - Unlawful Assembly gives rise to riots Riots - Force or violence used by unlawful assembly is an offence (Section 146) Note: All members of Unlawful Assembly present at the time of offence are guilty Public Nuisance - Causing injury, danger or annoyance to public Affray - When 2 or more persons fight in public and disturb public peace (fighting in public) Bigamy - Offence of marrying again even having husband/wife Note: Bigamy Marriage - Void Punishment for Bigamy - Term upto 7 years plus fine Adultery - Sexual intercourse with wife of another man Note: In case of Adultery - Wife is also punishable Wife - Adultor i.e. having sex with someone else even having husband Women Cruelty - Drive the women to commit suicide Note: Women Cruelty can be caused by husband or any relative of husband Section 498A (IPC) - Cause injury to women (mental or physical) Danger to her life Harassment for property Punishment for Women Cruelty - Term upto 3 years plus fine Outraging modesty of woman - Shocking the sense of decency of a woman 6

7 Hurt - Hurt amounts to serious body pain (Section 319, Indian Penal Code) Kinds of Hurt: Damage either eye Damage either ear Dislocate any joint Destruction of any joint Damage hand or face Fracture of bone Dislocate any tooth Note: Hurt - Any hurt when victim is in pain for more than 20 days i.e. unable to follow normal schedule Acid Attack - Section 326A, Indian Penal Code Note: Acid Attack - added to IPC after amendment, 2013 Punishment for Acid Attack - Not less than 10 years/life sentence plus medical expenses Sexual Harassment - Committed by man on a woman Acts included in Sexual Harrasment: Unwanted physical contact Demand or request for sexual favours Showing porn to women against her will Making sexual remarks Voyeurism - Watching or capturing the image of a naked women without her consent Note: Sharing the images to third persons without the consent of women is also an offence of Voyeurism 7

8 Trafficking - Purpose is exploitation of a person Stages of Trafficking: Recruit Transport Hide from police Transfer Received by a person Note: Consent of victim does not matter in trafficking Section 375 (IPC) - Definition of Rape Section 376 (IPC) - Punishment for Rape Rape - Penetrates penis or any body part or any material into private parts of woman Circumstances: Without her consent (against her will) With her consent when another person is put in fear in front of her She believes him to be her husband but man is not lawfully married to her Intoxicated or of unsound mind With or without consent below 18 years of age Can not communicate Note: Sexual Intercourse between man and his wife of age 15 years or above - Not a Rape Punishment for Rape - 7 years upto life sentence (14 years) Punishment for Rape - Minimum 10 years For - Repeaters ; Government Officials; Employer; Army; Police; Hospital Staff; etc. Punishment for Rape causing death - Minimum 20 years or life sentence (until death) Punishment for Gang Rape - Minimum 20 years Punishment for Repeat Offenders - Imprisonment for life until death Note: Rape - (Amendment) Act, 2013 (after - Nirbhaya Case) Cr.PC Procedure for investigation and trial 8

9 Substantive Law - Defines rights, duties, liabilities and obligation of citizens eg. Elements that define murder in a case Procedural Law - Steps to be taken in enforcing legal rights i.e. Procedure how rights and duties are enforced eg. All persons involved in a case are treated fairly and equally at all times during trial Bailable Offence - Right of accused to obtain bail by police or court Bailable Offence - (minor offences) Non-Bailable Offence - Right to obtain bail is not given to accused i.e. bail can only be granted by court Non-Bailable Offence - (major offences) Cognizable Offence - Police can arrest and investigate without warrant from court Cognizable Offence - (serious offences) Non-Cognizable Offence - Police must get warrant from magistrate to arrest and investigate Non-Cognizable Offence - (less serious offences) Compoundable Offence - Proceedings may be dropped after settlement between victim and accused (no court permission required) Non-Compoundable Offence - Proceedings may not be dropped even after settlement between victim and accused (only after permission of court) 9

10 Stages for prosecution of offence: Registration of FIR Investigation starts by investigating agency Accused is presented in front of magistrate within 24 hours of the arrest Accused appeals for bail in court After investigation - police report/charge-sheet is filed On prima-facie (i.e. 1 st evidence) - if no offence then accused is discharged or further investigation takes place Trial begins after this Public Prosecutor and Defence Attorney present their arguments Accused is either acquitted or convicted If accused is convicted then judgment and sentence is passed by court Note: Accused who is convicted has right to appeal in appellate court Plea Bargaining - Accused pleads guilty in exchange of reduced sentence Applicable in offences where punishment is upto 7 years Not Applicable in offences related against women or child (14 years of age) Civil Procedure Code, 1908 Plaint - Filed by plaintiff Plaint - Consist of statements of claim made by plaintiff Suit - Plaint accepted by the court is a suit Suit must be accompanied with affidavit Affidavit - Declaration of facts signed by officer Plaintiff - suit is filed by plaintiff against defendant Summon - Court issues summon to defendant on basis of suit filed by plaintiff Court issues summon to defendant to present himself before the court Written Statement - Filed by defendant in reply to plaint filed by plaintiff Injunction - Order given by court to do something or not to do something (instruction) To Do something (mandatory injunction) Not To Do something (prohibitory injunction) Injuction: In favour of plaintiff Against the defendant 10

11 Status Quo - Existing Condition Dismissed Case: Plaintiff is absent in court Defendant is absent in court Dismissed Case: Plaintiff is absent in court Defendant is present in court Ex Parte: Plaintiff is present in court Defendant is absent in court Res Subjudice - A suit is already filed for a case so another suit between same parties on same matter will not proceed in court Judgment - Statement by judge giving reasons why particular order/decree was passed Decree - Rights of both the parties ordered by judge in a case Order - Final order by judge Decree Holder - Person in whose favour decree is passed (winner of case) Judgment Debtor - Person against whom decree is passed (loser of case) 2 models of legal system in world: Adversarial System Inquisitorial System Adversarial System - Judge; Lawyers; Evidence; Parties i.e. Common Law System eg. US; UK; Australia; India Inquisitorial System - Judge (decision maker); Facts i.e. Civil Law System eg. Roman Law; Napoleonic Code 11

CENTRAL LAW PUBLICATIONS. LAW PUBLISHERS & BOOK SELLERS 107, DARBflANGA COLONY, ALLAHABAD (INDIA)

CENTRAL LAW PUBLICATIONS. LAW PUBLISHERS & BOOK SELLERS 107, DARBflANGA COLONY, ALLAHABAD (INDIA) [ACT NO. XLV OF I860] (As amended by Information Technology Act, 2000) By R.N. SAXENAMAUB Formerly Lecturer, C.M.P. Degree College, Allahabad Author of: "A Text Book on Code of Criminal Procedure.' Revised