Mentoassociates.com – Legal Articles

Chapter IV of the Indian Penal Code, 1860 contains some interesting rights available to a citizen, from sections 96 to 106 under the caption, “Right of Private Defense”. This is an exceptional area where the law permits the victims to react, when they themselves or their fellow beings are subjected to an offence. In fact nothing is an offence under the eyes of law, which is done in the exercise of private defense.

Every person has a right, subject to few restrictions enumerated in section 99 IPC, to defend his own body and of any other person, against any offence affecting human body or to defend his or another person’s property where such property is subjected to offences of theft, robbery, mischief etc. The right of private defense of the body extends even to causing harm or death of the assailant, if the offence one faces, is that which causes a reasonable apprehension of death, rape, unnatural lust and kidnapping. In the cases of other lesser serious offences, the victim can cause reasonable harm to the assailant during the exercise of the right of private defense.

There are, however, few restrictions to the exercise of this valuable right. This right cannot be exercised against a public servant acting in good faith, under the color of his office, which does not cause a reasonable apprehension of death or grievous hurt, thought his act may not be strictly justifiable under law. Similarly, if there is sufficient time for the victim, to have recourse to the protection of authorities, then this right cannot be exercised. Also a person cannot inflict more harm on the assailant than that is necessary for the purpose of defense.

It is interesting to note that this right is available not only to victims of offence, but it also permits others to interfere if another person or property is subjected to an offence.

Section 138 of the Negotiable Instruments Act 1881, was introduced in the year 1989 which made the dishonor of cheques, for various reasons, enumerated therein, a punishable offence. The present punishment is imprisonment for a term, which may extend to two years or with fine, which may extend to twice the amount of cheque, or with both.

A cheque needs to be presented within 6 months of the date of drawing, to the bank. After the cheque gets dishonored, the payee has to make a demand by giving a notice in writing to the drawer of the cheque, within 30 days of the receipt of information from the bank regarding the dishonor of the cheque. The payee need to wait for another 15 days after the said notice is served on the drawer to see whether the drawer is making the payment of the cheque amount. If, within 15 days, the drawer does not make the payment, the payee can file a complaint before the jurisdictional magistrate, within 30 days. It is interesting to note that such a complaint cannot be filed before the police authorities.

There are special courts in Bangalore to try cheque-bouncing cases. In addition to the criminal prosecution, a person can approach the civil court for the recovery of the money under the same cheque. Hence a person has double remedy under the law. In a prosecution for an offence of cheque dishonor, the defenses available to an accused are very limited. Most of the recent decisions of various High Courts and the Supreme Court are in favour of conviction in matters of Cheque bouncing.

The Code of Criminal procedure 1973 provides the valuable right of Anticipatory Bail to a person who apprehends arrest in a non-bailable offence. This power to enlarge a person on anticipatory bail is vested only in High Court and Court of Sessions. After a person is enlarged on anticipatory bail in connection with an offence, if an officer in charge of police station arrests him, then he shall be immediately released on bail and shall not be subjected to unnecessary restraints.

The Court granting anticipatory bail may impose few conditions like to be present for interrogation before the investigation officer, not to induce or threat witnesses, not to leave the country without the permission of the court etc. The pendency of investigation is not a ground to refuse anticipatory bail. Even after the summons is issued to an accused person from the court, he can be enlarged on anticipatory bail, if the court thinks fit. The anticipatory bail granted will continue till the conclusion of trial or its cancellation.

It is not compulsory that the FIR should be registered against a person or that his name shall be there in the FIR to be eligible for applying for anticipatory bail. What is required is that there should be a reasonable apprehension of arrest by the person applying. It can be filed at a place where the accused apprehends arrest.

Contempt of Court may be Civil Contempt or Criminal Contempt. Civil Contempt means willful disobedience to any judgment, decree, direction etc., or a willful breach of an undertaking given to a court. Criminal Contempt means the publication of any matter or doing of any act which scandalizes or lowers the authority of any court; or which prejudices or interferes with the due course of any judicial proceeding; or interferes or obstructs the administration of justice. The Contempt of Courts Act 1971 defines and limits the powers of courts in punishing contempt of courts and regulates the procedure involved therein.

However a fair and accurate report of judicial proceedings does not amount to contempt. Similarly fair criticism of judicial acts and fair comment on the merits of any case, which has been heard and finally decided, also does not amount to contempt.

High Court is the competent court to punish contempt of courts subordinate to it and also of itself. A contempt of court may be punished with simple imprisonment for a term, which may extend to six months or with fine, which may extend to two thousand rupees or with both. The limitation period for institution of any proceedings of contempt is one year from the date on which the contempt is alleged to have been committed.

The Dowry prohibition Act, 1961 prohibits the giving or taking of dowry. Dowry means any property or valuable security given by one party to a marriage to the other party to the marriage, at or before or any time after the marriage, in connection with the marriage of the said parties.

If any person gives or takes dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees. If any person demands any dowry from the parents or relatives of a bride or bridegroom, he shall be punishable with imprisonment for a term which shall not be less than 6 months, but which may extend to two years and with fine which may extend to ten thousand rupees. However, presents which are given at the time of marriage to a bride or bridegroom, without any demand, in that behalf does not constitute dowry. But such presents are to be entered in a list as prescribed under the Dowry Prohibition Rules.

If any person, through any advertisement, offers any share in his property or any money or a share in his business as consideration for the marriage of his son or daughter or if any person prints or publishes any such advertisement, he shall be punishable with imprisonment for a term which shall not be less than 6 months, but which may extend to 5 years, or with fine which may extend to fifteen thousand rupees.

A Police officer has the power to arrest any person without a warrant,  (a) who has been concerned in a cognizable offence or against whom a reasonable complaint has been made (b) who has in his possession any, implement of house breaking, without lawful excuse,(c) who is a proclaimed offender (d) in whose possession stolen property is found (e) who obstructs a police officer in the execution of his duty, or who has escaped or attempts to escape from lawful custody and (f) who is a deserter from the armed forces of the Union.

When any person commits a non-cognizable offence in the presence of a police officer and refuses to gives his name and residence or gives a false name or residence, then he may be arrested by such officer in order to ascertain his name or residence.

A private person may arrest or cause to be arrested any person who in his presence commits a non bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

If a person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, the police officer may use all means necessary to effect the arrest. However the police officer shall not cause of the death of a person, while trying to arrest, who is not accused of an offence punishable with death or with imprisonment for life.

Section 154 of the Code of Criminal Procedure 1973 deals with the formalities pertaining to the recording of the First Information Report, or more popularly known as FIR. When information relating to the commission of a cognizable offence, is given orally to an officer in charge of a police station, it shall be reduced into writing by him or under his direction. The matter so written shall be read over to the informant and such information whether given in writing or reduced to writing shall be signed by the person giving the said information. The substance of the said information shall be entered in a book to be kept by such officer.

A copy of the FIR shall be given immediately to the person who gives the information, free of cost. The said officer shall immediately send a copy of the FIR to the jurisdictional magistrate. The police officer has no power to refuse the registration of an FIR. Further there shall be no delay in registering the FIR. If the police officer refuses to register an FIR, then the aggrieved person can approach the superior officers.

The officer in charge of a police station can investigate a cognizable offence without the order of a magistrate. Investigation of a cognizable offence comes after the registration of FIR. After the receipt of an FIR, the officer in charge of a police station, shall proceed in person or depute one of his subordinate officers to proceed to the spot to investigate the case and if necessary, to take measures for the discovery and arrest of the offender.

“Where there is a will there is a way,” goes the age-old adage. Obviously, a properly drafted Will ensures smooth succession in property matters. A Will is a statement made by a person stating the manner in which his property must be distributed after his death. The person making the will is called testator. The person whom the testator bestows benefits in his will is called legatee or beneficiary. If the testator bequeaths all his property to one beneficiary through a will, such a person is called a universal legatee. Sometimes the testator may appoint a person to give effect to his will after his death. Such a person is called an executor.

It is not compulsory to register a will. If registered it does not require the payment of stamp duty. A will should have at least two witnesses who shall sign the document in the presence of the testator, and at the request of the testator and in the presence of each other. A witness cannot take benefit under the will to which he is a witness.

A certificate proving a will issued by the court is called a probate. A beneficiary or the executor may apply the court for the same. If a person writes more than one wills, the last will have preference over others.

Any person of sound mind and above eighteen years of age can dispose off his property by writing a will. An amendment to a will is called a codicil. A testator can revoke a will during his lifetime.

A will must be in writing. However soldiers, airmen and sailors while they are in action may pronounce their will orally in presence of two witnesses. Such wills are called privileged wills.

In this article let us have a bird’s eye view of the procedure and formalities for Divorce among Hindus. Section 13 of the Hindu Marriage Act 1955, deals with the manner of Divorce among Hindus.

A Hindu husband or wife can apply for divorce of his or her marriage to a Family Court on grounds of cruelty, desertion, and mental disorder of/from part of his or her partner. Further conversion to other religions, adultery, venereal and leprosy diseases in the partner are also grounds for divorce. If the partner is not heard of being alive for 7 years or more, renunciation of the world by joining any religious order etc are also grounds for a decree of divorce. The act also gives few additional grounds for wife such as acts of rape, sodomy and bestiality by husband, marriage during minority etc.

No petition for divorce can be filed before the lapse of one-year after the marriage. The petition shall be filed before the jurisdictional Family Court by the party aggrieved.

In tune with the emerging social changes, the act also provides for divorce by mutual consent of the parties. In fact there is a great increase in the number of cases of this nature filed, particularly in metro cities. The parties to a marriage can obtain an order of divorce by mutual consent, on the ground that they were living separately for a period of one year or more, and they have been not able to live together. The court may, in its discretion, not earlier than 6 months of the presentation of the petition and not later than 18 months after the presentation of the petition, pass a decree of divorce declaring the marriage to be dissolved.

We hear about children claiming maintenance from their parents, wives seeking maintenance from their husbands, but it is very uncommon to have heard parents claiming maintenance from their children. In the present technology driven society where children fail to take care of their parents, this is a valuable right available to aged and infirm parents, which is found in Chapter 9 of The Code of Criminal Prodcedure, 1973.

A father or mother who is unable to maintain himself or herself, and who has a son or daughter who has sufficient means and who refuses or neglects to maintain his parents, may file a petition before a magistrate of the first class. The magistrate after such enquiry can order the son or daughter to make a monthly maintenance to his or her parent. Such maintenance has to be paid from the date of application or from the date of order as decided by the court.

If any person who is ordered to pay such maintenance fails to comply with the said order, then the magistrate may issue a warrant for levying the amount due, or may even sentence the defaulter to simple imprisonment. It is pertinent to note that the parents need not to have given some assets or share of wealth to their children before they can enforce this right.

The proceedings are normally filed in the jurisdictional family court and may take on an average one to two years for the completion of the proceedings depending on the workload of the respective courts.