Lawwatch

Need for an All India Judicial Service to Revitalise Indian Judiciary

No other reform is as important as establishing an All India Judicial Service (AIJS) in revitalising Indian judiciary. But the proposal for setting up an AIJS, in the lines of Indian Civil Service, is hanging fire for more than five decades despite there were several proposals and decisions including that of the apex court, in its favour. It is quite curious that a key judicial reform of such a magnitude remains wholly neglected at a time when more than 5000 judicial posts are lying vacant and as many as 2.3 crore cases are pending in the country. There is widespread hope that AIJS can deal with great many ills Indian judiciary face right now and revitalize it into a far more vibrant constituent of Indian governance and democracy.

Bail and the law relating to it

Bail is the rule but not its refusal

Bail is the rule and refusal of bail is the exception. When the bail is refused the personal liberty of the citizen is deprived. Such deprivation can be done only by following the principles and procedures known to law. That means refusal of bail must be done by following due process of law. Bail can be granted at any stage of the trial.

National Investigation Agency (NIA) & its functions

NIA deals with terrorism & such activities

The National Investigation Agency Act provides for creation of the National Investigation Agency (NIA) in the country.

The NIA Act was enacted in the aftermath of the Mumbai terrorist attacks of 2008. The enactment of NIA Act in fact was a course of action perilously close to crossing the constitutional limits because policing is a state subject under the Constitution. No central police force could be established except having the Central Bureau of Investigation (CBI) which is acting as a substitute for a national police force at times as police is not a union subject for law making. However there has been a plea for enacting a CBI Act for creating a national police force which did not go much forward.

NIA is the only federal agency in the country, along the lines of the Federal Bureau of Investigation (FBI) in the United States of America. NIA is much more powerful than the CBI though its resources and facilities are quite limited.

Encumbrance Certificate doesn’t show all liabilities

Encumbrance means what

The term encumbrance refers to the charge created on any property, particularly the immoveable property.

An Encumbrance Certificate (EC) discloses whether the property in question is free from any liability or is with liability such as a mortgage or an un-cleared loan. The certificate is issued by the Department of Registration. It contains all the transactions registered relating to a particular property for a period requested for. It will show the proper entitlement of the particular property.

Not to disclose 164 Statement during Investigation

Introduction

An accused or any other person is not entitled to get a certified copy of the deposition recorded under Section 164 CrPC (Criminal Procedure Code, 1973) during the stage of investigation in a rape case, even though the statement is a public document.

Plea Bargaining and its Procedures

What is plea bargaining?

Plea bargaining essentially is pre-trial negotiation (bargaining) between the accused and the prosecution. In plea bargaining, what really happens is that the accused pleads guilty in exchange of seeking some reduction in the charges or sentence.

Plea bargaining is in operation since 2006, by adding a Chapter XXI-A (Sections 265A to 265L) through an amendment in the Criminal Procedure Code, 1973 (CrPC).

The precise object of plea bargaining is to reduce the delay involved in criminal trial and to punish the accused with a lesser sentence when he pleads his guilt.

Elements of Murder under Indian Penal Code

Murder is the gravest form of culpable Homicide (punishable killing). It is the most serious crime having the highest punishment in the Indian Penal Code, 1860 (IPC). Murder is an act of a person who is causing death of another person. A crime has four elements: an offender, mens rea (guilty mind), actus reus (guilty act) and the victim.

The courts find it difficult to differentiate a case of murder from a case of Culpable Homicide not amounting to Murder because the descriptions in both are provided by using similar words or phrases.

Culpable Homicide v Murder under IPC

The crime of killing a human being by another human being is categorized as Culpable Homicide under Section 299 and as Murder under Section 300 of the Indian Penal Code (IPC). The Sections separate the most heinous killing from those which are less serious ones in nature.

Both of them are distinct offences. But the definition and description of both Culpable Homicide and Murder look almost similar in grammatic construction. Therefore making out the subtle distinction between them is quite difficult, even for a learned law professional. Capable Homicide is defined in the code. But neither the term Homicide nor Murder is defined, except by some explanations.

Lok Adalats & Legal Service Authorities

Lok Adalat means people’s court. It is an Alternate Dispute Redressal (ADR) mechanism periodically being conducted under the stipulations in the Legal Services Authorities Act, 1987.

The legal services authorities established under the act aims to provide free and competent legal services to the weaker section and to organize lok adalats to secure justice to such people in equal terms with others.

The Lok Adalat, being periodically conducted at different levels, settles disputes or cases pending in the court of law or at the pre-litigation stage, in a manner quite satisfying to both the parties.

Importance of Mens Rea in Criminal Cases

The term Mens rea is a crucial ingredient in any crime. It is a mental element of the doer of the crime. It refers to the guilty intention, knowledge or state of mind of an accused in committing a crime. It has come to fore as an indispensable element of crime in tune with a Latin maxim which means, “there can be no crime without a guilty mind” (actus non facit reum, nisi mens sit rea).

An act done by a person becomes a crime only when it is done with a guilty intention or mental state, in normal course. In other words, an act done with absolutely no guilty intention or state of mind may not become a crime.