Domicile ( definition & explanation)
A domicile is the residence of a person which is fixed and permanent to which he returns or intends to return. For example- a business has its domicile in the state where its headquaters is located. Legally, a person might have several residences, but only one domicile.
Deponent ( definition & explanation)
A person who under an oath or affirmation, gives an affidavit or disposition. A deponent is a person who gives an evidence or acts as a witness . A deponent is someone who testifies to facts or information under oath in a deposition. The deponent’s testimony is always written and carries the deponent s signature.
A deposition is a part of pre-trail stage, which is set up by an attorney for one of the party to the lawsuit demanding the sworn testimony of the party opposing , an expert, or a witness intended to call upon his presence at trail by the opposition.
Delegatus non potest delegare ( Definition & Explanation)
This is a Latin term which means- a delegate cannot delegate. A person to whom an authority or a decision-making power has been delegated by a higher source, such person cannot delegate the power to someone else, unless the original delegtor authorizes him to do so.
For example- An attorney who has been given/delegated a legal authority via a power of attorney, cannot, further delegate the excercise of that authority, without the consent of that person who granted him the power of attorney.
This term is mostly used in constitutional law.
Criminal Law- The Code of Criminal Procedure, 1973
Can a Private Person himself Arrest the accused ? If yes, then what’s the Procedure?
Section 43 of The Code of Criminal Procedure, 1973 gives the answer to this question. The section says –
(1) Any private person may arrest or cause to be arrested any person who in his presence has committed an offense which is non- bailable and cognizable in nature, 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 the police officer, take such person or cause such person to be taken in custody to the police station which is nearest to the place.
(2) If there is a reason to believe that such person comes under the provision s of section 41, a police officer shall re-arrest him.
(3) If there is a reason to believe that a person has committed a non-cognizable offense, and he refuses on the demand of the police officer to give his name and residence address, or gives a name or a residence address which the police officer has a reason to believe to be false, he shall be dealt with under the provisions if section 42 , but if there is no such sufficient reason to believe that the person has committed any offense , he shall be at once released.
Criminal Law – The Code Of Criminal Procedure, 1973
Which are the Courts having the power and authority to try offenses?
Section 26 of CrPc gives the answer to this question. Which says –
Subject to the other provisions of this Code –
(a) Any offense under the Indian Penal Code (45 of 1860) may be tried by –
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other court by which such offense has been shown in the First Schedule to be triable.
Provided that any offense under section 376, section 376A, 376B, 376C, 376D or section 276E of the Indian Penal Code (45 of 1860) shall be tried by as far as possible and practicable by a Court presided over by a women.
(b) Any offense under any other law shall, when any court is mentioned in this behalf in such law, be tried by such court and in the absence of such court not mentioned, may be tries by –
(i) the High Court, or
(ii) any other court by which such offense is shown in the First Schedule to be traiable.
STATE AMENDMENT OF THIS SECTION
Uttar Pradesh –
In section 26 for clause (b), the following clause shall be substituted, namely –
(b) Any offense under any other law may be tried –
(i) when any court is mentioned in this behalf in such law, by such court, or by any court superior in rank to such court, and
(ii) when any court is so mentioned, by any court by which such offense is shown in the First Schedule to be traiable, or by any court superior in rank to such court.
Criminal Law- The Code of Criminal Procedure, 1973
Classes of Criminal Courts under CrPc –
Section 6 of the Code specifies the classes of criminal courts. It says-
Besides the High Courts and the courts constituted under any law, there shall be in every State the following classes of Criminal Courts namely-
(i) Court of Session- District Court is referred to as Session Court when it exercises its jurisdiction on criminal matters under The Code of Criminal Procedure.
(ii) Judicial Magistrate of First Class, Metropolitan Magistrate in any metropolitan area
These Courts are on the second lowest level of the Criminal Court structure in India. These Courts may be established by the State Government in consultation with the High Court of the respective State, at such places in the district and in any number by issuing a notification.
As per section 29 of CrPc these Courts may pass a sentence of imprisonment for a term not exceeding three years, or a fine not exceeding five thousand rupees, or both.
These Courts are on the second lowest level of the Criminal Court structure in India. These Courts may be established by the State Government in consultation with the High Court of the respective State, at such places in every metropolitan area and in any number by issuing a notification.
A Metropolitan Magistrate who is the first class Magistrate is under the control of sessions Judge and is subordinate to the Chief Metropolitan Magistrate.
As per section 28 of CrPc a Metropolitan Magistrate may pass a sentence of imprisonment for a term not exceeding one year or a fine not exceeding five thousand rupees.
(iii) Judicial Magistrate of the Second Class –
These Courts may be established by the State Government in consultation with the High Court of the respective State, at such places in the district and in any number by issuing a notification.
As per section 29 (3) of CrPc, these Courts shall reward imprisonment for a term not exceeding one year, or fine not exceeding one thousand rupees, or both.
(iv) Executive Magistrate
Criminal Law – The Code of Criminal Procedure, 1973
Arrest by Magistrate. Can a Magistrate arrest a Person?
Yes. A Magistrate has the authority to himself arrest the person or cause the person to be arrested under certain specified circumstances which are mentioned under section 44 of the Code of Criminal Procedure, 1973.
Section 44 says – Arrest by Magistrate
(1) When any offense has taken place or committed in the presence of the Magistrate within his local jurisdiction, whether Executive or Judicial, he may himself arrest or cause the arrest of the offender by his order, and may thereupon,. subject to the provisions herein contained as to bail, commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial,within his local jurisdiction, may at any time direct the arrest or himself arrest, in his presence, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
De facto (Definition & Explanation)
De facto literally means “in fact” or “in reality”. It is something which exist in fact although not nescessiraly approved legally. For example- A common law spouse may be called as a de facto wife or ade facto husband , although not married legally, but lead their lives as if married. A de facto appliaction includes de facto authority, de facto, de facto court, de facto officers and others.
Criminal Law – The Code Of Criminal Procedure, 1973
Can a Police Officer arrest without Warrant? If yes, When?
Yes. A Police Officer under certain circumstances can arrest a person without a warrant. This has been specified under section 41 of The Code of Criminal Procedure 1973.
Section 41 –
(1) Any police officer may without an order from a Magistrate and without a warrant, can arrest any person under the following circumstances –
(a) a person who has committed any cognizable offense, or against whom a reasonable complaint has been made, or credible information against him has been received, or a reasonable suspicion exist against him, of his having been so concerned, or
(b) who in his possession has wtihout a lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking, or
(c) who has been officially announced as an offender either under this Code or by an order of the State Government, or
(d) if anything is found in his possession which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offense in reference to such thing, or
(e) who obstructs or block the police officer while in the execution of his duty, or who has or attempts to escape, from lawful custody, or
(f) who has reasonably suspected of being a deserter from any of the Armed Forces of the Union, or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or against whom a credible information has been received, or a reasonable suspicion exist against him, of his having being concerned in, any act committed at any place outside India which, if committed in India, would have been punishable as an offense, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India, or
(h) who being a released convict, has committed a breach of any rule made under subsection (5) of section 356, or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, but provided that the requisition specifies that the person to be arrested and the offense or other cause for which the arrest is to be made and it appears from there that the person might lawfully be arrested without a warrant by the officer who issued the requisition, or
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, who is belonging to one or more of the categories of persons specified in section 109 or section 110.
Covenant- (Defined & Explained)
An agreement, a contract, a written promise between two individuals which constitutes a pledge/promise to do or not to do a certain act.
Covenants are quite common in leases, where the landlord covenants with the tenant to give him the premises/flat/house on rent and the tenant in response covenants to pay the rent on time and keep the property in good condition (basically all conditions settled by both the parties in the covenant).
Under a Covenant, the person who makes the agreement or promise is known as the ‘covenantor’ and the person to whom such promise is made is known as the ‘covenantee’.
There are two major categories of covenants- Covenants for land and covenants for title.
Covenants if validly reached, are enforceable by a Court.
Contributory Negligence
It is a Negligence which is not the main cause of the tort, but which combined with the act or omission of another person resulting in causing a damage. Under this negligence, if a person got injured in part due to his/her own negligence (his/her negligence contributed to the act) the party who got injured would not be in a position to collect any damages (money) from the party who caused the accident.
For Example –
Section 299 Culpable Homicide
Definition of Culpable Homicide – Section 299 of Indian Penal Code, 1860
Who ever causes death by committing an act with an intention of causing death, or with an intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause a death, commits an offense of culpable homicide.
Illustrations –
(a) A lays a stick and turf over a pit, with the intention of causing a death, or with the knowledge that the death is likely to be thereby caused. B believing the ground to be firm, treads on it, falls in and is killed. A has committed the offense of culpable homicide.
(b) A knows Z to behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z’s death, induces B fires and kills Z. Here B may be guilty of no offense, but A has committed the offense of culpable homicide.
Explanations –
Explanation 1
A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2
Where the death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilfull treatment the death might have been prevented.
Explanation 3
The causing of the death of the child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of the living child, if any part of that child has been brought forth, tough the child may not have breathed or completely born.
Cases/Case Laws Related to this section-
Caveat (Definition & Meaning)
It literally means “beware”. It is a warning or a formal notice given by an interested party to a court, or a judge, or a ministerial officer, in opposition to certain acts within his power and jurisdiction.
It is a notification to a court or an officer to the court, not to take certain steps or action till the notifier has been heard.
Burden of Proof ( Meaning & Definition)
Burden of proof is a rule of evidence that requires a party to prove a disputed fact in the court, or else the contract will be assumed by the court. For example, in a criminal trial, the prosecution has the burden of proving the accused guilty beyond a reasonable doubt ( because of the presumption of innocence). It is the prosecution’s duty to demonstrate to the jury that the defendant is guilty of an offense, so that the jury may convict him/her.
However,under some jurisdictions, the defendant has the burden of establishing the existence of certain facts that give rise to a defense, for example- the insanity plea. In civil cases, normally the plaintiff is charged with burden of proof, but the defendant can be required to display certain defenses.
In which Language a PIL should be Framed?
The basic language which is entertained and accepted by the court is English. However, the court may entertain a PIL petition in nay other Indian Regional Language as well. But, because the court’s language is English, a PIL petition should be framed in English for the convenience of the court and the respondents to the PIL.
Is there a Time Frame of deciding a PIL?
No. There isn’t any fixed time frame of deciding a PIL by the Court. However, the court gives every PIL the priority and importance that it deserves, depending upon the issues and the subject matter raised in it.
For Example – the petition seeking an immediate action when people in Delhi were dying due to Dropsy, which was caused by the adulteration of mustard oil, the Delhi High Court dispensing with the normal practice of issuing of notice, called for counter-affidavits by the respondents, and summoned the concerned authorities of the government the very next day and also issued direction which proved to be beneficial in saving and controlling the situation as otherwise hundreds more could have been the victim and died because of inaction by the Government machinery.
Does a Foreigner also has an authority to file a PIL?
Yes. Even Foreigners who reside in India or visiting India on visas also have certain constitutional and statutory rights. If any of their rights are tampered or infringed or threatened in India, they have full authority and equal rights as citizens of India, to move the court for its intervention by way of a Public Interest Litigation (PIL)., if the issues are such of a kind that the concerned people or a section of them are not in a position to themselves reach out to court for relief.
Some public spirited person or a group or an association of such persons (foreigner’s) can file a PIL seeking relief for them. However, the authority of entertaining the PIL is completely the court’s discretion.
Bill of Lading (Meaning & Definition)
A Bill of lading is a legal document used in foreign trade, between the shipper of a particular good and the carrier which provides the details such as the type, quantity and destination of the goods being carried to. It is an acknowledgement that a company has received the goods for transportation. The Bill of Lading serves as a receipt to the goods, until they reach their final destination.
The Bill of Lading must me signed by an authorized representative from the carrier, shipper and receiver.
Beneficiary (Meaning & Definition)
A beneficiary is a natural person or a legal entity who receives money , profit , advantage or a gift under a will from the benefactor. For example- A person named to receive something or some profit in a will is the beneficiary under such will. Similarly, the beneficiary of a life insurance policy is the person who receives the payment of the insurance amount after the insured’s death.
A beneficiary is that person, entity who is named to receive profits or assets from a trust, an estate, an insurance policy or any instrument in which there is distribution.`
“Incidental beneficiary” and “Third party beneficiary” are related to the concept of “beneficiary”, who, although are not specifically named, but still gain a benefit, such as someone who will make a profit if a piece or part of property is distribute to another.
Bill of Exchange
A Bill of Exchange is an instrument which is written and signed which requires the person to whom it is addressed to pay on demand (or on a future date) a fixed amount of money either to the person recognized as payee or to anyone presenting the bill of exchange. A cheque is a form of bill of exchange.
