Lawwatch

Concept of Relevancy in Evidence Act

The term evidence is a bit ambiguous one. It refers to what is adduced by a party in a court proceeding as a means of establishing a fact or its truth. Evidence essentially refers to those items or things that make the truth of a disputed matter quite apparent to a court.

All about Revision in Criminal Cases

Introduction

Revision is the process of examination of an order of a lower court by a
higher court, so as to rectify any improper exercise of judicial power.

The precise purpose of revision is to examine the correctness, legality
or propriety of any proceedings before any inferior court. Revision
keeps the lower court within the bounds of their authority and makes
them work according to well defined principles of law. Revisional
jurisdiction is analogous to power of supervision and superintendence.

An Outline of a Trial before a Court of Session

Introduction

A Court of Session is the court, which deals with serious criminal cases and passes any sentence including death, at the district (sessions division) level. It cannot take cognizance of any offence directly, except when it functions as a special court, in accordance with some
special laws.

Therefore a Magistrate initially has to take cognizance of the offence even in a serious criminal case and has the right to exercise the powers relating to bail/remand to custody then. He, thereafter on due examination of the seriousness of the offence, commits the serious case to the Court of Session by sending the record of the case along with the
connected articles, if it is triable exclusively by the latter, and informs the Public Prosecutor of its commitment.

The Court of Session will conduct the case thus committed to it, as provided for in the sections 225 to 237 of the Criminal Procedure Code, 1973 (CrPC).

Law Relating to Succession & Other Certificates

Legal Heirship Certificate, Succession Certificate and Letters of
Administration have close relation. They serve a common purpose – they
are being used for devolution of some rights on the property of a person
died intestate, to their legal descendants. These certificates, because
of their names rather than their contents, create some confusion in the
minds of not only ordinary people but some learned lawyers also. The
purpose of this write up is to bring in some clarity in regard to the
basic nature of those certificates governing inheritance and succession.

The bank accounts, property, personal assets and investments that a
person leaves behind when he dies are altogether called ‘estate’. When
there is a contest in the nature of devolution of the ‘estate’ to the
descendants, it is necessary to obtain legal authority from the court.
Normally, Will is the legal instrument by which a person makes a plan
for disposition of his property after his death. When the deceased
person leaves no Will or his Will cannot be executed due to some
reasons, there comes the role of such a certificate for disposing of his
‘estate’.

Duly Executed Ancient Will Needs No Further Proof

Execution and attestation of Will

A Will, as per Section 63 of the Indian Succession Act, 1925 (ISA),
requires to be attested by two or more witnesses. Each of the witnesses
must have either seen the testator sign or affix his mark to the Will,
or give directions to someone to affix his signature in his presence, or
get personal acknowledgement by the testator of such testator’s assent
to the Will. Above all, each of the witnesses to the ‘Will’ should have
signed the ‘Will’ in the presence of the testator.

Normally the propounder of the Will must show by cogent (and
satisfactory) evidence that the ‘Will’ which the propounder relies on
was signed by the testator, and that the testator was in sound disposing
mind when he signed the ‘Will’, and that he understood the nature and
effect of the disposition, and that he placed his signature on the Will
of his own freewill (and accord), and that too without any force,
coercion or undue influence of whatsoever nature.

Law relating to Will in a Nutshell

Introduction

Will is a legal declaration in the form of a document, expressing the intention of a testator, about how his property would be devolved on whom after his death. It is a personal document of a testator of sound mind, in regard to the disposition of his property in the event of his death. The law authorises any person of full testamentary capacity to
dispose of his property by means of a Will.

The legal provisions governing the Will are provided for mainly in Part VI of the Indian Succession Act, 1925. In proving a Will various sections of the Indian Evidence Act, 1872 would apply.

Testator is a person who makes a Will or testament. The term testator also includes any person appointed by a competent court to administer the estate when the testator does not name an administrator in the Will. The testator of a Will can assign in the Will an administrator (propounder) who has the authority to execute the Will when the testator
dies.

Acquittal of the Accused before Defence Evidence

Introduction
Acquittal before defence evidence in sessions trial is something very
rarely happens in Indian courts but there is a legal provision in the
Criminal Procedure Code, 1973 (CrPC), for the purpose. It is a mechanism
incorporated in the law to end the criminal proceedings against the
person accused of criminal offence unnecessarily, at an early
opportunity in the trial process.

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.

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.