Lawwatch

Arrest of an Accused is not a must in every Cognisable Case

Introduction

The issue that this article discusses is whether registration of a First
Information Report (FIR) against an accused needs to be followed by
his/her imminent arrest.

Nowadays, when an allegation of committing a cognizable offence comes up
against a person - particularly a celebrity - there will be a public
outcry for his/her arrest even though such an arrest is unwarranted in
accordance with criminal jurisprudence or its practice. Unnecessary
arrests and unjustified pre-trial detention pose grave threat to many
citizens accused of committing cognizable criminal offences.

The five member constitutional bench of the Supreme Court in
Lalithkumari case
categorically stated that the arrest of a person is not directly linked
to the registration of FIR. The verdict states both are entirely
different concepts operating under different parameters and if a police
officer misuses his power of arrest, he can be tried and punished under
Section 166 of the Indian Penal
Code
. Therefore a police officer
should apply his mind independently while taking a decision on arresting
anyone. He should ignore the vociferous public outcry for arrest that
goes just against what is stated in the statue book. Arrest and
detention of the accused in custody is treated by people in general as a
procedural punishment for the accused.

Role of an attesting witness in a Will

Attesting witness

An attesting witness is a person who puts his sign or mark on a deed or
will at the request of its creator, immediately after its execution, for
the purpose of proving and identifying that it is executed by the maker
of it. Unless the maker of the document wants the witness to attest it,
the latter will not be considered an attesting witness even though he
may have seen the persons executing it.

In the case of a Will, an attesting witness is the one who witnesses the
testator making the Will by signing it. The execution and attestation
are clearly distinct formalities. The former is the act of the parties;
the latter is of the witnesses.

In attestation clause of the Will, the witnesses certify that the
instrument has been executed before them.

Reliability of a Child Witness in Judiical Proceedings

The witness is a prime source of evidence in judicial proceedings. A
witness is the person who gives testimony or evidence before any
judicial institution. A child witness is the one who at the time of
giving testimony is below the age of eighteen years. T
he law in India
recognises that the child is a competent witness. A witness is
said to be competent when there is nothing in law that prevents him from
appearing in court and giving evidence. The key concerns about child
witnesses are their competence and credibility as witness. It has now
been well settled that the evidence of a child witness is not
required to be rejected per se.

Exercise of Discretion by Courts in Deciding Bail Applications

When an allegation of a cognizable case crops up against a person, for any genuine or other reason, before the police for necessary legal action, the Station House Officer (SHO) is duty bound to register the First Information Report (FIR). Thereon the police, in a ritualistic manner as being done over the years, would arrest him/her and put in lock-up. The detention may continue for many years before the case is finally decided by the court. Later when the bail application for his/her release is moved before the court the judge will refuse to grant him/her bail in yet another ritualistic response. Denial of bail is an easy option for the magistrate in not getting into unnecessary allegation or trouble. The magistrate ignores the fact that the granting
or denial of bail is to be exercised with utmost care and caution by applying pristine discretion, unequivocally granted to him by Section 78 read with 81 of the Criminal Procedure Code (CrPC).

Cruelty turns to be a key ground for Divorce

Cruelty is an adequate ground for dissolving a marriage solemnized under a valid law, on a petition filed by either of the party in marriage. But what constitutes cruelty is not spelt out in law. This creates some confusion among the stakeholders of divorce petition and they bring in anything and everything under the sun as an instance of cruelty to get a quick divorce which the law has never envisaged at all. The legislature has consciously left this job of determining what all things come under cruelty, to the concerned court to be determined on assessing all the facts and circumstances of each case. This is primarily meant to avoid
auto-limitation and restrictive operation in deciding divorce cases and thereby enable the court to keep its ambit wide open.

Command of Language is a key Tool for an Advocate

Nothing else is more crucial for an advocate for his professional
success than his command of language. In fact the command of language is
the key to success in any profession in which words count. Advocacy is a
profession where command of language - both in written and spoken form -
plays a decisive role. Since English is the language in which many
materials required for an advocate are available, this article refers to
an advocate’s command over English language alone.

The Remedies the Specific Relief Act 1963 provides

Introduction

A contract establishes a contractual obligation on the parties involved.
It binds them either to do or not to do certain things. When there is a
failure in performance of the obligation, either of the parties can sue
the other. The most common, easiest and well established legal remedy
for breach of a contract is to provide compensatory or punitive
compensation, in terms of money, to the other party.

But in some cases of contractual obligation, the compensatory or
punitive compensation is inadequate or inequitable. This happens when
the unmet contractual obligation in the contractual relation cannot be
calculated in money terms. For instance, in a contract when there is an
obligation on a party to return an invaluable thing like an
irreplaceable object of a particular kind, failure of which cannot be
compensated by any other means, the legal remedy required is to return
that object and nothing else. Similarly, if someone dispossesses another
person, as part of a contractual relation, of his home which is
invaluable to him in non-monetary terms, the only option is to recover
the possession of that house.

On Improving Drafting or Writing Skills

Writing is done by everyone, every professional and every lay person. In
this digital world no literate person can keep away from writing in one
form or other. A lawyer has to write a lot many things compared to any
other professional. Writing is no longer a skill that some people are
born with and some others are not. Anyone can acquire it. Without it no
lawyer can survive successfully.

Adverse Possession and Consequent Change of Ownership

Introduction

Adverse possession is a peculiar kind of possession of land where a
person not having legal title to the land enters and occupies the land
for long period with no continuing permission of the legal owner and the
true owner subsequently loses his ownership rights after a legally
permissible period of his inaction in recovering the possession from the
possessor. The owner might have initially permitted the possessor in
entering the land on the basis of a lease or licence.

It is the Section 5 of the Specific Relief Act that provides for
recovery of specific property on the basis of the title one holds. Who
owns a better title of the property has the power to possess it over the
other. The Section 6 of the act makes it possible for a title holder to
file a suit for recovery of possession of the property, but
dispossession of any property by illegal means is unlawful as it is an
offence under Section 145 of Criminal Procedure Code.

In law, possession itself is a prima facie proof of ownership or right
on property. Possession gives a rebuttable presumption of ownership,
unless the contrary is established. Since the true owner cannot evict a
possessor of property after a long period of non-possession, an actual
possessor who sets up a claim for the property exclusively on the basis
of his possession for long becomes a legally valid title holder of the
property against the interest of the true owner. It is called adverse
possession.

Power to make Preventive Arrest by Police

The Criminal Procedure Code, 1973 (CrPC) provides not only for taking
punitive action on crimes already committed but also for taking possible
measures to prevent commissioning of crimes, as well.