Hastings Chambers
3rd Floor, Room #3A, 7C, Kiran Shankar Roy Road,
Kolkata - 700 001, West Bengal, India.

 

Mobile No. : 98311 03325 / 98304 21737

 

Phone No. : +91-33-2242 8829 / 30 / 2248 4094

 

E-mail : utpalmajumdaradvocates@gmail.com

Home I About Us I Our Team I Clientele I Our Judgments I Area of Expertise I Legal Aid I FAQ I Office Gallery
Career I Office Location I Enquiry I Contact I Social Work I News
Utpal Majumder Utpal Majumder Utpal Majumder Utpal Majumder Utpal Majumder
 
GENERAL FAQ

1) Criminal Law

 

Q) What are the powers of the police to interrogate a person?
A) The police can require the attendance of the person who appears to be acquainted with the facts and circumstances to appear before him. The person has to answer the questions that may be put to him, but is not bound to answer such questions that have a tendency to expose him to a criminal charge or penalty. The guarantee against self incrimination is available to the person even at the time of the investigation. However, the police officer cannot compel a women or a child of less than fifteen years to attend the police station. A police can record the statement of the person, but the person cannot be asked to sign such a statement. A self incriminating confession made to the police officer is inadmissible in a court of law.

 

Q) What happens after the police completes investigation?
A) After the completion of the investigation by the police, if the police is satisfied that there is prima facie case for proceeding against the accused or any of them, then he may file a charge sheet in the court of the Magistrate. In case the police officer feels that the evidence collected is deficient then, it may file what is called a B report. The police should also file all the documents and the objects that are gathered in case of the investigation. The Magistrate is expected to apply his m.

 

Q) What is the hierarchy of criminal courts in India?
A) The hierarchy of criminal courts in India is as follows: Supreme Court High Court Session Court (The Sessions Court can award any sentence authorized by law,including a sentence of death) Chief Judicial Magistrate(CJM) or Chief Metropolitan Magistrate(CMM) (The CJM/CMM can award a maximum sentence of 7 years and/or fine) Judicial Magistrate First Class(JMFC) or Metropolitan Magistrate(MM) (The JMFC/MM can award a maximum sentence of three years and fine upto Rs. 5,000/=).

 

Q) What if the Magistrate takes cognizance of the offence?
A) A Magistrate may take cognizance of the offence on the basis of the police report or the complaint. The magistrate is supposed to apply his mind to the material before him and is not bound by the police opinion in the matter. In certain cases, i.e .in cases against public servants and judges for example there is a need for sanction before the Magistrate can take cognizance of the offence. When the magistrate does take cognizance of the offence, then Magistrate may issue process i.e. either issue summons or a warrant to the accused. The Magistrate is obliged to give to the accused copies of all the documents that have been produced before him. In cases the offences are exclusively triable by a Sessions Court, then the magistrate has to commit the case to the Sessions Court.

 

Q) What is a first information report (FIR)? What is the procedure for filing an FIR?
A) A First Information Report is the information that a police officer receives about the commission of a crime. Some of the salient points of the law regarding the First Information Report are: An FIR must be in writing, duly signed and a copy must be handed over to the informant. Any person can lodge a FIR. It is not necessary for such person who lodges it to be present at the scene of incident. An FIR must contain the place, date and time of incident. An elaborate description of incident is also necessary.The basic purpose of filing an FIR is to record a true and correct version of incident or commission of the offence. An FIR can be filed at any police station in the country and there is no necessity that it needs to be filed only at the place where the offence has taken place. It is the duty of the police officer to ensure that it is sent to the police station which has jurisdiction over the matter. A denial to lodge an FIR is illegal on the part of the police officer. The informant should along with the details of the incident report a case of this kind to the Superintendent of Police of the area in writingThere is no fixed time for filing an FIR but it’s best if it’s filed at the earliest, soon after the incident as delay may prove to be fatal for the victim.

 

Q) What is a complaint? What is the procedure for lodging a complaint?
A) In cases when the offences are non cognisable i.e. where the police cannot arrest a person without a warrant, the police is not empowered to investigate the offence unless so authorized by the magistrate. Therefore, in cases of non-cognisable offence a complaint has to be filed. In addition, in the case the police officer refuses to register a report as regards an offence, a person can file an complaint before the magistrate. The complaint made orally or in writing is made with a view that he may take action under the Code of Criminal Procedure.

 

Q) What does the police do when an information as regards the commission of a crime is received by them?
A) On receipt of the information by the police, the police is obliged to investigate into the matter. On receipt of the information the police is obliged to forward a copy of the FIR to the Magistrate that is empowered to take cognizance of the case. The Station House Officer or the investigating officer is then obliged to proceed to the scene of the crime make investigations and make efforts to arrest the offender. The police is empowered to gather evidence to bring the culprit to book and for that purposes have the power to question the persons who are likely to have relevant information and also have the power of search and seizure.

 

Q) What are the rights of a person who is arrested?
A) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags and their designations. The person who arrests must prepare a memo of arrest at the time of arrest before a family member of the arrestee or a respectable person of the locality. It should mention the date and time of the arrest as well. The person must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. In case a person has been arrested he has every right to know the ground for arrest. Such person cannot be kept in detention for more than 24 hours without being produced before a magistrate. Such person has a right to a counsel even during the interrogation, but not during the whole time of the interrogation. He has a right to remain silent and also entitled to free legal aid. Such person should not be handcuffed, such handcuffing is only allowed after an order of the Court in the interest of security. A woman or a child below 15 years of age cannot be forced to a police station for interrogation. If the offence alleged is of such a nature that the accused needs to be medically examined then it shall be done at the instance of a Police Officer not below the rank of a Sub Inspector. If a person is tortured than he can bring the incident to the light of the Magistrate when he is produced before him. In such case the magistrate is obliged not to send the person to police custody, but can remand him to judicial custody i.e. the jail.

 

Q) When and how can bail be granted?
A) The are two types of offences Bailable offence -When a person is accused of a bailable offence, bail may be asked as a matter of right by the accused. Non bailable offence - In such offences bail may or maynot be granted at the discretion of Court on an application of bail being presented to it. The basic purpose behind the concept behind the denial of bail during the period of investigation is that the person can help the police to find evidence and may not do anything that would be.

 

Q) What is anticipatory bail?
A) A person who has reason to believe that he may be arrested for a non bailable offence, may move an application to the High Court or Court of Sessions Judge for grant of anticipatory bail. The Court on being satisfied about the circumstances of the case and if it deems fit may grant anticipatory bail. This is founded on apprehension and relates to arrest, which has not taken place but is likely to in future. In the event of arrest of such person he shall be released on bail.

 

Q) When can bail be cancelled?
A) Bail maybe cancelled depending on the behaviour of the person after the grant of bail. If there is sufficient reason to believe that the accused may abscond, repeat the offence, tamper with evidence, threaten witnesses then the Court may cancel bail. On obtaining sufficient proof regarding the involvement of the accused in crime the Court may cancel bail.

 

Q) When can a search be conducted by the police?
A) Police can only search after they are armed with a search warrant. Search warrant is a written authority given to a Police Officer by a competent magistrate or Court for search of any place. Cases in which a search warrant may be issued by the court are: Where any Court has reason to believe that a person to whom a summon or order has been addressed will not produce the document or thing as required, or If any District Magistrate or any other Class One Magistrate has reason to believe that a person has been wrongfully confined , then he may issue a search warrant for such a person, or Where the Court has reasons to believe that the purposes of an inquiry will be served by search or inspection of a place, or If any District Magistrate or any other class one Magistrate has reason to believe that any place is being used for deposit or sale of stolen property or for the sale or deposit of objectionable articles like counterfeit coins, currency notes, false seal etc, he may by warrant authorize any police office above the rank of a constable to enter and search the place and seize such items.

 

Q) When can an officer search without a warrant?
A) During investigation, if there is no time to obtain a warrant, and an immediate search of such a place is necessary, the investigating officer may conduct a search without a warrant. However the following precautions have to be kept in mind before conducting such a search. The search should not be a general search but one for particular things. This power can only be exercised by a police officer in charge of a police station or any other officer so authorized. A police officer conducting the search must have reasonable grounds to believe that the specific thing required for the facilitation of investigation may be found in that place and in his opinion it may be too late to find such thing if time is spent on obtaining a search warrant from a Magistrate. A police officer before proceeding to search a place must record the grounds for his belief as to the necessity of such a search.

 

Q) What are safeguards that must be observed while conducting a search?
A) When a place is liable to be searched any person in occupation of such a place shall allow free ingress and afford all reasonable facilities for a search. If such ingress cannot be obtained, then the officer can enter the place and in order to make such entrance he can break open any outer or inner door. The search is to be conducted in the presence of atleast two independent witnesses of the locality where the search is to be conducted. The occupant of the place of search, or his nominee, shall in every case be permitted to attend the search. A list of all the things seized during the search shall be prepared by the person conducting he search and shall be signed by the witnesses. The witnesses need not be called appear before Court to facilitate proof of articles seized, the presence of the police officer who conducted search can suffice in Court. Where a Magistrate issues a search warrant erroneously and in good faith the search proceedings cannot be set aside merely on the ground that the Magistrate was not authorized to do so. If the procedure followed by the officer is not strictly legal then the occupant can obstruct the officer attempting such search.

 

Q) What is the right of private defence?
A) Where a citizen's own body or his property is faced with an imminent danger and no immediate aid from the State is available, he is entitled to act in any manner he thinks best in the given situation to protect his property and his life. When a man is faced with an assault on his person, which causes reasonable apprehension of death or grievous hurt, he has a right of private defence. The preventive measure, which the person is granted, must be relative to the danger and excessive in relation to the force exerted. Right of private defence shall prevail only as long as the apprehension of danger continues.


2) Family Law

 

Adoption :

 

Q) When can a Hindu male adopt a child?
A) Any Hindu male who is of: Sound mind, and Not a minor, has the capacity to take a son or daughter in adoption. This is subject to the condition that if he has a wife living he can only adopt with the consent of the wife. Consent of the wife is not necessary if she has renounced the world or ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

 

Q) When can a Hindu female adopt a child?
A) Any Hindu female has capacity to take a son or a daughter in adoption provided she is Of sound mind and Not a minor The following conditions also need to be fulfilled: She is not married, or if married, Such marriage has been dissolved, or Her husband is dead, or Her husband has completely and finally renounced the world, or Her husband has ceased to be a Hindu, or Her husband has been declared by a Court of competent jurisdiction to be of unsound mind.

 

Q) Who is capable of giving a child in adoption?
A) Only the father, mother or guardian of a child shall have the capacity to give the child in adoption. This is subject to the following: The father, if alive shall alone have the right to give in adoption with the consent of the mother. The mother may give the child in adoption if the father is dead, or has ceased to be a Hindu, or if he has renounced the world or has been declared by a Court of competent jurisdiction to be of unsound mind.

 

Q) When can the guardian of a child give him/her in adoption?
A) A guardian can give a child in adoption under the following circumstances: Where both the father or mother are dead, or they Have renounced the world, or Have been declared by a Court of competent jurisdiction to be of unsound mind, or Have abandoned the child. The guardian may give the child in adoption with the previous permission of the Court to any person including self.

 

Q) Who is capable of being adopted?
A) According to the Hindu Adoption and Maintenance Act, the persons who satisfy the following requirements are capable of being adopted: He or she is a Hindu He or she has not been adopted before. He or she has not been married unless there is a custom or usage applicable to the parties, which permits persons who are married to be taken to adoption. He or she has not completed the age of 15 years unless there is a custom or usage applicable to the parties that permits persons who have completed the age of 15 years to be taken into adoption. Further, if the adoption is of a male, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son living at the time of adoption. If the adoption is of a female, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter living at the time of adoption. Further, if the adoption is of a female and the person adopting is a male then there should be an age gap of at least 21 years between the two. Similarly, if a male is adopted by a female, there should be an age gap of at least 21 years between them.

 

Q) What is the legal standing of a person adopted?
A) The adopted child shall be deemed to be the child of the adoptive parents for all purposes with effect from the date of adoption. On the date of adoption all the ties of the child's family of birth shall be deemed to be severed and be replaced by that of the adoptive family. Except that: The child cannot marry any person whom she or he could not have married if he or she has carried on living in the family of his/her birth. Any property that vested in the adopted child before the adoption shall continue to vest in such person subject to the obligation if any. The adopted child shall not divest any person of any estate which vested in him or her before the adoption.

 

Hindu Marriage Act :

 

Q) What are the laws governing marriage, divorce, succession and adoption among Hindus?
A) The Hindu Code enacted in 1956 codifies the law relating to marriage, divorce, succession, adoption and guardianship for Hindus. The Hindu Code comprises of: Hindu Marriage Act, 1956. Hindu Succession Act, 1956. Hindu Minority and Guardianship Act, 1956.

 

Q) Who can present a petition for divorce by mutual consent?
A) Both the parties to marriage may jointly present a petition for divorce by mutual consent. They may apply on the ground that they have been living separately for a period of one year or more and they have mutually agreed that their marriage should be dissolved. The Court, on being satisfied after hearing the parties and making such inquires as are necessary that the averments in the petition are true, may pass a decree of divorce. The Court should be satisfied that there is no fraud been placed.

 

Q) On what grounds can a divorce petition or a petition for judicial separation be moved?
A) The law of divorce in India is fault based divorce law to a large extent. There are grounds under which either the husband or the wife can apply for divorce. Accordingly, marriage may be dissolved by a decree of divorce on the ground that any party to marriage has: After solemnization of marriage indulged in adultery, or After solemnization of marriage treated the petitioner with cruelty, or Has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of petition, or Has ceased to be a Hindu by conversion to another religion, or Has been suffering incurably from unsoundness of mind to the extent that the petitioner cannot reasonably be expected to live with the respondent, or Has been suffering from virulent and incurable form of leprosy, or Has been suffering from venereal disease in a communicable form, or Has renounced the world by entering any religious order, or Has not been heard of as being alive for a period of seven years or more. The wife can additionally move the Court for divorce if the husband has been guilty of rape, sodomy or bestiality. In 1976, a provision for divorce based on mutual consent was incorporated in the Hindu Marriage Act.

 

Q) When can a court pass an order for maintenance?
A) The Court on passing a decree for divorce, judicial separation or subsequent to it can order that the respondent shall pay maintenance to the applicant. Such an order is passed on the basis of an application made to it by either party.

 

Q) Will maintenance be allowed even though no proceedings under the Hindu Marriage Act are pending in any Court?
A) Section 125 of Criminal Procedure Code ("Cr. P C") lays down that a wife can petition the Magistrate for maintenance if the husband has refused to maintain the her. The Court under Cr. P.C. can award a maximum maintenance of rupees five hundred for the wife and rupees two hundred for each child. The proceedings under the Cr.P.C is a separate proceeding that can be moved without filing for divorce. In case the husband fails to pay the maintenance granted under this provision, he will be criminally liable.

 

Q) Who is generally granted custody of children after a divorce?
A) The court while granting divorce may make such order as it may seem to be just and proper with respect to custody maintenance and education of minor children, consistent with their wishes. In most cases especially where the child is below 5 years, the Court would grant custody to the mother as it is presumed that a mother's love is very essential for the normal growth of the child, as she is most sensitive to the needs of the child.

 

Q) Who does the Hindu Marriage Act apply to?
A) According to the Hindu Marriage Act, the term "Hindu" includes: A follower of Hinduism in any of it's forms, including a Virashaiva, a lingayat or a follower of the Brahmo Samaj, Prathana Samaj, or Arya Samaj, Jains, Sikhs, Buddhists, and Any other person who is not a Christian, Parsi or Jew. A Hindu marriage may be solemnized between any two persons who are "Hindus" by religion.

 

Q) What should a woman do if she is being harassed for dowry?
A) Where the husband or relatives of the husband subject a woman to cruelty, she can find relief under section 498A of the IPC. There are special women cells that exist in all the major cities that are sensitive to these problems. The offence under Section 498A is non bailable and a cognisable offence. The victim can lodge an FIR against the persons subjecting her to cruelty. The FIR can be filed at any police station and not necessarily at the place where the offence was committed. In certain cities there is a special wing of the police which is specifically sensitised to deal with this issue of dowry harassment and are empowered to take all necessary action in this behalf. For eg., the 'Crime Against Women Cell' in Nanakpura, Delhi is one such agency functioning under the aegis of the Delhi Police. Further specialised agencies in this regard is generally the D.C.P.(Womens Cell ) functioning in nearly all major cities in India.

 

Q) Would the Hindu Marriage Act, 1956 apply in case of marriage between a Hindu and a follower of any other religion?
A) The Hindu Marriage Act, 1956 would not apply in case of marriage between a Hindu and a follower of any other religion. Such marriages have to be solemnized under the personal law of the non Hindu partner, if such personal law so permits, or under the Special Marriages Act.

 

Q) Where can a Hindu Marriage be registered?
A) For the purpose of facilitating proof of Hindu marriages, the parties to the marriage may have the particulars of their marriage entered into the Marriage Certificate Book, maintained by the Registrar of Marriages. For this purpose, they need to apply to the Marriage Officer stating that they have gone through the ceremonies of the marriage and are living as husband and wife. Further it should also be confirmed that: Neither party has at the time of registration more than one spouse living, Neither party is an idiot or a lunatic at the time of registration, The age of the parties at the time of the marriage should be twenty-one years for a boy and eighteen years for a girl, The parties are not within the prohibited degree of relationship, and They have been residing in the district for the preceding thirty days. However, it is not mandatory to register a Hindu marriage in order for it to be valid.

 

Q) What is the minimum age of marriage prescribed under the law? What are the consequences if the age of the parties to the marriage is less then the age prescribed under the Hindu Marriage Act?
A) The age of the parties at the time of the marriage should be twenty-one years for a boy and eighteen years for a girl. Though the breach of this requirement may lead to prosecution under the Child Marriages Restraint Act, it does not impinge on the validity of the marriage.

 

Q) Is divorce possible under Hindu law? What is the difference between divorce and judicial separation?
A) Divorce is possible under Hindu law and the law also contemplates that a party to the marriage may apply for a decree of judicial separation on the same grounds as of divorce. In a divorce proceeding, the Court may instead of passing an order for divorce pass an order for judicial separation. However if there is no resumption of marital relations, between parties for a period of one year upwards, the Court may pass a decree of divorce.

 

Indian Christian Marriage Act :

 

Q) What are the conditions for solemnization for a marriage under Indian Christian Marriage Act, 1872?
A) Every marriage between persons, one or both of who is or are a Christian or Christians, can be solemnized in accordance with the provisions of the Act. In fact, the Christian Marriage Act provides that if the marriage between such persons is not solemnized under the Act, it shall be void. Therefore, the Special Marriage Act has provided an exception by stating that notwithstanding anything contained in any other law, the Special Marriage Act is applicable to Christians and non Christians alike, in the case of those who choose to marry under the Special Marriage Act or want to register under it. The Christian Marriage Act gives a detailed procedure regarding the solemnization of the marriage and also provides for the registration of marriages.

 

Q) When can a marriage under the Act be declared null and void?
A) The Court may declare a marriage to be null and void if the respondent at the to time of marriage: Was impotent, The parties were within the prohibited degrees of relationship, Either party was a lunatic or idiot at the time of the marriage, Either party had a spouse living at the time of the marriage.

 

Q) When can a Christian apply for a divorce?
A) The law of divorce for Christians in India is contained in the Indian Divorce Act, 1869. It provides that a husband can apply for a divorce on the grounds that the wife has been guilty of adultery. On the other hand, a wife can petition for divorce only on the following grounds: the husband has been guilty of incestuous adultery, or bigamy with adultery or of rape, sodomy or bestiality or of adultery coupled with cruelty or with adultery coupled with desertion, without reasonable excuse for two years upwards.

 

Laws of Succession :

 

Q) What are the laws of succession governing Hindus?
A) Hindus are governed by the Hindu Succession Act, 1956, which prescribes the way the property of the Hindu would devolve on his death. The Hindus can will their property and in case it is a valid will, made according to the law, then the property would devolve according to the will.

 

Q) In case a Hindu has not left a will, how is the property of a Hindu divided?
A) In case a Hindu does not leave a will, then the property of a Hindu would be divided as follows: The property shall first devolve to the following(not in equal proportions though); son, daughter, mother, children of predeceased children, widow of a predeceased son, children and widow of a predeceased son of a predeceased son. These heirs are called Class I heirs. In the absence of these heirs, the property would devolve on what is called Class II heirs. These are mentioned in the schedule of the Hindu Succession Act. These include father, children of predeceased children of a predeceased daughter amongst others. In absence of the Class II heirs, the property would devolve on the agnates i.e. people related wholly through male and in their absence on cognates i.e. people not wholly related through the males.

 

Q) Do the rules of succession apply even in case of joint family property?
A) In case of a Joint Hindu Family, such devolution will take place only when there is a female heir of Class I and not otherwise. In that case there is notional partition of the joint family property to that extent. In absence of a female heir, the property would devolve by survivorship according to Mitakshara law upon the coparceners.

 

Q) How is the property of a Muslim, Christian or a Parsi distributed after the death of such a person?
A) In case of a Muslim, the property of the deceased would devolve as per the law of succession laid down in Muslim Law. In case of Christians and Parsis, in case they have not left a will, the succession would be governed by the Indian Succession Act, 1925.

 

Muslim Marriage Act :

 

Q) How can a Muslim marriage be contracted?
A) The Shariat law governs Muslim marriages in India. The parties can get married under the Shariat by a ceremony called 'nikah'. Under the Muslim law, marriage is essentially a contract. Mehr or dower is the sum or property that a wife is entitled to receive from the husband in consideration for marriage.

 

Q) Is divorce possible under Muslim law? On what grounds is divorce possible?
A) Muslim marriage being essentially a contract can be rescinded by mutual agreement. Under the law, the husband can divorce the wife by what is called the 'triple talaq'. In 1939, the Muslim women were given the right to divorce under the Dissolution of Muslim Marriage Act, where on limited grounds the Muslim women can get divorce. These grounds are as follows: That the whereabouts of the husband have not been known for a period of 4 years; That the husband has neglected or has failed to provide for her maintenance for a period of 2 years; That the husband has been sentenced to imprisonment for a period of 7 years or upwards; That the husband has failed to fulfill his marital obligation for a period of 3 years; That the husband has been insane for 2 years or is suffering from leprosy or a virulent form of venereal disease; That the husband was impotent at the time of marriage and continues to be so; That the woman, having been given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18.

 

Q) Can divorced Muslim women claim maintenance under law?
A) The Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted after the judgment in the Shah Bano case. In this case, the Supreme Court had held Section 125 of the Cr. P.C applies to Muslim women as well and that Muslim women were eligible to claim maintenance if the husband failed/neglected to maintain them. This decision was not received well in the Muslim community and hence the Muslim Women (Protection of Rights on Divorce) Act, was enacted to appease the Muslim community. This Act provides that the wife is only entitled to claim mehr or dower upon divorce and the husband is not responsible to maintain the wife after a specified period of time (even under the Cr P C). It provides that the relatives of the wife or in their absence, the state wakf board would be responsible to maintain the wife. It gives the right to the women to approach the Magistrate for this purpose.

 

Special Marriage Act :

 

Q) Whom does Special Marriage Act apply to?
A) This Act applies to all Indian citizens either residing in India or abroad irrespective of caste creed or religion. This is the Act under which people from different religions can get married.

 

Q) What are the conditions under marriage can be contracted under this Act?
A) The conditions under which a marriage can be validly contracted under this Act are: Neither party has a spouse living, Neither party is an idiot or lunatic, Neither party - Is incapable of giving a valid consent to the marriage because of unsoundness of mind, or Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children. Has been subject to recurrent attacks of insanity, The male has completed twenty-one years of age and the female eighteen years. The parties are not within the prohibited degrees of relationship as mentioned in the Act.

 

Q) What is the procedure to be followed to solemnize a marriage under the Special Marriage Act?
A) The procedure to be followed is as follows: When a marriage is intended to be solemnized under this Act the parties are required to give notice in writing in a prescribed form to the Marriage Officer of the district not less than 30 days before the intended date of marriage. The notice has to be given to the marriage officer of the district where either one party has been residing for a period of at least thirty days immediately preceding the date on which such notice is given. If a marriage is not solemnized within 3 calendar months from the date on which notice thereof has been given, a new notice would have to be given in the prescribed manner again. The marriage officer is required to enter the details of the parties intending to marry in a Register maintained for this purpose. The Officer shall publish the notice by affixing a copy of the same at a conspicuous place in his office. Any person having an objection to the marriage may make his objection within a period of thirty days of the publication of the notice. These objections can be filed on the grounds that it would contravene the conditions for the solemnization of a valid marriage under Section 4 of the Act. The Marriage Officer has been given the power to inquire into the matter of the objection. In case there are no objections raised the parties can solemnize the marriage at the office of the Marriage Officer. When the marriage is solemnized the Marriage Officer would record a certificate thereof in a book and such certificate shall be signed by the parties and the three witnesses. Three witnesses are required to be present at the occasion and they are required to sign the register. A certificate of marriage is handed over to the married couple, which bears signatures of all the three witnesses, the married couple and the Marriage Officer. The Certificate is conclusive evidence that the marriage has been solemnized and that all formalities respecting the signature of the witnesses has been complied with.

 

Wills :

 

Q) What are the conditions for making a valid will?
A) The conditions for making a will are briefly summarized below: The person who wishes to make a will, must sign or mark the document thereby indicating its authenticity. The will should be attested by two or more witnesses, each of them who has seen the testator sign the will or has received from the testator a personal acknowledgement of the signature. Each of the witnesses shall sign the will in presence of the testator. A will need not be made on a stamp paper and can be made on any plain paper. There is no need for registration of a will, though it can be deposited with the Registrar and an entry to that effect can be made in the register. The will may be revoked by another will, or any other writing executed in the same way as that of the will or by destroying the same.

 

Q) How is the property of the deceased either through a will or interstate administered after the death of a person?
A) In case of a person dying interstate, the Court, on application to it, may grant the administration to a person who is one of the persons entitled to the property of the deceased. The person so appointed shall administer the property. In case a will mentions the executor, the Court will grant a probate of the will to the executor. The executor will be responsible to ensure that the property of the deceased is distributed as per law or the wishes of the testator as the case may be. The grant of the probate or the letters of administration is conclusive proof that the person has the representative title of the property of the deceased and can be used for all necessary purposes required by law. However, the requirements are not mandatory in cases of most of the Hindus, who can work out the legal formalities with the help of a succession certificate. In case of a Christian or Parsi dying interstate also there is no need for letters of administration.

 

3) Misc Law

 

Consumer Protection :

 

Q) How can the Consumer Protection Act help me?
A) The Consumer Protection Act promotes and protects the interest of consumers against deficiencies and defects in goods or services availed of by such consumer. It also seeks to secure the rights of a consumer against unfair or restrictive trade practices, which may be practiced by manufacturers and traders. There are various levels of adjudicatory authorities that are set up under the Act, which provide a forum for consumers to seek redressal of their grievances in an effective and simple manner.

 

Q) What are the rights of a consumer?
A) Right to be protected against the marketing of goods and services which are hazardous to life and property. Before purchasing, consumers should insist on the quality of the products as well as on the guarantee of the products and services. They should preferably purchase quality marked products such as ISI, AGMARK, etc; - Right to be informed about the quality, quantity, potency, purity, standard and price of goods or services so as to protect the consumer against unfair trade practices; - Right to be heard and to be assured that consumers' interests will receive due consideration at appropriate forums; The consumers may form non-political and non-commercial consumer organizations which can be given representation in various committees formed by the Government and other bodies in matters relating to consumers; - Right to seek redressal against unfair trade practices and unscrupulous exploitation of consumers; it also includes right to fair settlement of the genuine grievances of the consumer.

 

Q) Where can a consumer file a complaint?
A) The consumer will have to file a complaint in accordance with pecuniary jurisdiction, ie the value of the relief sought for: - In cases where the value of goods and services involved is less than five lakhs the consumer will have to file the complaint in the District Forum constituted in the specified districts of a State - In cases in where the value of goods and services involved is above five lakhs but below 20 lakhs the consumer will have to file the complaint with the State Commission constituted in the capital cities of the different states. - In cases where the value of goods and services involved exceeds twenty lakhs then the consumer has to file a complaint with the National Commission which has been constituted only in New Delhi.

 

Q) What is medical negligence?
A) Medical negligence means deficiency in service performed by a medical practitioner including a physician, surgeon, doctor, nurse etc. It is the failure on the part of the medical practitioner to discharge his duty in accordance with medical standards, which are being practiced by any other competent doctor. However the services rendered by the Government hospitals & charitable hospitals are exempted from the purview of the Consumer Protection Act as the services are rendered at such institutes free of charge. Medical Negligence would include amongst other acts the following - Prescribing the wrong dosage to a patient. - Leaving cotton or medical instruments inside the body of a patient after a surgery has been performed. - Failure to give proper instruction while prescribing medicine. - Lack of interest in patients. - Lack of proper arrangement to meet an emergency. Usage of wrong medicines. - Lack of proper checks to test side effects of various drugs. - Therefore, a doctor can be termed negligent if his actions are of such a nature as to imply absence of reasonable skill as compared to the ordinary level of skill required in the profession.

 

Q) Who is a "consumer" ?
A) According to the Consumer Protection Act, any person/entity who buys goods or hires a service for personal use against consideration can be termed as a "consumer". It would however not include goods bought for commercial purposes or resale. Similarly a person who avails of a service for a commercial purpose is not a consumer. The term "consumer" also includes any person who uses goods with the consent of the person who buys goods. A person who hires services or a beneficiary of such hired services is a "consumer".

 

Q) What is the role of consumer organization under the Act?
A) The Act makes provisions where the machinery under the Act can be set in motion by the consumer organizations involved in consumer awareness movements in the country. The Act provides the agencies can be moved by "recognized consumer associations". The organization can take up the case of the consumer and it is not necessary that the consumer is member of the organization.

 

Q) Is a student a "'consumer" and what are his rights?
A) A student is regarded as a consumer provided that he is paying consideration for the education being imparted to him. Various Courts have laid down the following principles in this regard: - Safety of the life of a student is the responsibility of the school. - If an institute falsely represents that it is affiliated to a University and the nature of the course so requires, then the student is entitled to compensation as this a unfair trade practice and deficiency in service. - If the student cancels his admission the school can only retain the admission fee and the rest of the amounts have to be refunded. - If the admission is not granted the full capitation fees has to be refunded and there can be no deductions on such refund - Security deposit taken need not be refunded if withdrawal of admission creates permanent vacancy. - If a course is not commenced and the student has deposited the requisite fee, there is deficiency in service and the student is entitled to refund of the fees. - Delay in declaration of results is deficiency in service. But in some cases it has been held that in conducting examinations, evaluating answer papers and publishing the results of the candidates the University does not perform any service for consideration and a candidate cannot be considered as a consumer who had availed of the services of the University for compensation. - Institute giving computer coaching is rendering service and hence comes under the purview of the Consumer Courts. - Issuing of erroneous certificate is a deficiency in service. - Issuing of roll number is not rendering of service. Loss of employment due to incorrect evaluation of marks is to be compensated and the consumer Courts can be moved for such a relief. - Providing of bus service is not a legal obligation of the school management.

 

Q) What is the advantage to the consumer under this law?
A) The consumer under this law is not required to deposit court fee, which earlier used to deter the consumers to approach the Courts. Lawyers are also not mandatory and the procedures used are simple as compared to the normal courts, which helps in quicker redressal of grievances.

 

Contract Law :

 

Q) What is a "contract" ?
A) A contract is a legally enforceable agreement between two or more parties. In order to form a contract there should first be an agreement between parties. For this, one party (the "offeror" / "promisor") makes an offer which is accepted by the other party (the "offeree" / "promisee"). An offer is a proposal to form a contract and the acceptance is the promisee's assent to the terms of the offer.

 

Q) How can I ensure that I enter into a valid contract?
A) In order to form a valid contract there must exist a valid agreement between the parties. The important points that should be kept in mind to form a valid agreement are: - When an offer has been made, no contract is formed until the promisee accepts the offer. Contractual liability is based on consent. Therefore acceptance to an offer should never be assumed but should be expressly obtained. - When an offer is made to you, do not assume that an offer will remain open indefinitely. In general, an offeror is free to revoke the offer at any time before acceptance by the offeree. Once the offeror terminates the offer, the offeree no longer has the legal power to accept the offer and form a contract. - If you need time to make up your mind before accepting an offer, get the offeror to give you a written promise to hold the offer open for a few days. That will give you time to decide whether to accept. - When you are the offeree, do not start contract performance before notifying the offeror of your acceptance. Prior to your acceptance, there is no contract. An offer can be accepted by starting performance if the offer itself invites such acceptance, but this type of offer is rare. - Except for the simplest deals, it generally takes more than one round of negotiations to form a contract. Often, the offeree responds to the initial offer with a counter-offer. A counter-offer is an offer made by an offeree on the same subject matter as the original offer, but proposing a different bargain than the original offer. A counter-offer, like an outright rejection, terminates the offeree's legal power of acceptance. Once the agreement is reached, it should satisfy the following conditions to become a contract: 1. There should be some consideration involved. 2. The parties should be competent to contract. 3. The consent of parties to the agreement should be free. 4. The object of the agreement should be lawful. Once these four conditions are satisfied, the contract becomes enforceable in the courts.

 

Q) Who are the persons who are competent to enter into a contract?
A) All persons/entities are generally assumed to have full power to bind themselves by entering into contracts, unless they fall into one or more of the following categories: - Minors (the legal age for entering into contracts is 18. However, in cases where a guardian of the minor’s person or property has been appointed by court, the age of majority is 21) - Mentally incompetent persons (The test for mental capacity is whether the party understood the nature and consequences of the transaction in question.) - Person/entity who is disqualified from entering into the contract by the law to which he/it is subject. A company has a separate legal existence and is competent to contract. Companies enter into contracts through the acts of their agents, officers and employees. Whether a particular employee has the power to bind the corporation to a contract is determined by the position held by that person in that company and the specific authorisation given to him in that regard. If you doubt whether an individual with whom you are dealing has authority to enter into a contract with you, insist that the person produce the specific authorisation given to him, for eg: a Board resolution or a Power of Attorney.

 

Q) What are the provisions that are typically found in contracts?
A) Contracts are in a sense, private law created by the parties and hence there is significant flexibility in setting out its terms. Depending on the type of contract that is entered into and its purpose, certain special types of provisions to reflect the intent of the parties and comply with applicable laws, may be included. Subject to this, certain common types of provisions that are normally found in all contracts are enumerated below: - Duties and Obligations The duties and obligations section of a contract is a detailed description of the duties and obligations of the parties and the deadlines for performance. As far as possible detailed specifications should be stated to avoid ambiguity at a later stage. - Representations and Warranties A warranty is a legal promise that certain facts are true. Typical representations or warranties in contracts concern such matters as ownership of the contract's subject matter (for example, real estate) and the right to sell or assign the subject matter. - Confidentiality clauses This clause is inserted to ensure that the parties keep the terms of the contract and any information which comes into the possession of that party, due to the contract, confidential. In business contracts, normally, a company is also required to bind its employees and agents by the confidentiality clause. - Force Majeure clauses Events of force majeure are events which make the performance of the contract impossible, not due to any fault of the parties concerned, for eg, war, strikes, lockouts, natural calamities etc. The force majeure clause generally provides that no party will be liable for non-performance arising out of an event of force majeure and may also specify how the parties would tackle such event. - Term and termination Clauses A contract may remain in force for a specified term period or until the happening of a particular event. This is stated in the "term" clause of the contract. The termination clauses ensure that either or both parties have the right to terminate the contract under certain circumstances. Generally, termination clauses describe breach of contract events that trigger the right to terminate the contract (for example, nonpayment of dues). Termination clauses also describe the methods of giving notice of exercise of the termination right, and whether the breaching party must be given an opportunity to cure the breach before the other party can terminate the contract. - Remedy Clauses These clauses state what rights the nonbreaching party has if the other party breaches the contract. In contracts for the sale of goods, remedy clauses are usually designed to limit the seller's liability for damages. - Arbitration Clauses An arbitration clause states that disputes arising under the contract must be settled through arbitration rather than through court litigation. Such clauses generally include the name of the organization that will conduct the arbitration, the city in which the arbitration will be held, and the method for selecting arbitrators. - Governing law and jurisdiction In international contracts, it is important to state which country’s law would be applicable to the contract provisions. In the event there is a failure of the arbitration machinery provided for, under the contract, it is necessary to specify which court would have jurisdiction over disputes.

 

Q) Are there any general tips I can keep in mind when entering into a contract?
A) The contract formation process varies widely, from contracts formed quickly in face-to-face meetings to contracts formed after teams of attorneys have spent months in negotiations. However given below are certain general tips for persons who propose to enter into a contractual relationship. - Write it down. Though both oral and written contracts are valid, it is highly recommended that all contracts should take the form of a written document signed by both parties. You do not have to hire an attorney to create a simple written contract. If you reach an agreement over the phone or in a meeting, write the agreement as soon as possible and have the other party sign the written memorandum. If you are making a written offer, you may want to make your offer in the form of a letter, with a space at the end for the offeree to indicate acceptance by signing. If you have to go to court to enforce a contract or get damages, a written contract will mean less dispute about the contract's terms. It must also be noted that some types of contracts must be in writing to be enforced. The Copyright Act requires a copyright assignment to be in writing. - Make sure you are comfortable with your obligations. If a term - for example, a deadline - makes you uneasy, make a counter-offer that substitutes a term with which you are more comfortable. Do not assume that the other party will excuse you from strict compliance and do not rely on the other party's oral assurances that it will not insist on strict compliance. - Consider all possibilities. Before you sign a contract, consider what could go wrong or what could make performance of your obligations difficult or expensive. If the actual performance is more difficult or expensive than you anticipated, that is not a valid excuse for not performing. Enter into a contract only if you believe that you can meet your obligations. - Don't leave anything out. Accurately cover all aspects of your understanding with the other party. If the other party wrote the agreement based on an oral understanding reached earlier, make certain that the written terms match the terms of your oral agreement. Don't leave points out of the written document, even if the other party says, "We don't need to put that in writing." - Cover all options. Cover all options, consequences, and possibilities. You should not fail to address an issue because it is "sensitive." Deal with the sensitive issue during the negotiations. Make sure that your contract includes a merger clause to avoid disputes about whether proposals made during negotiations but not included in the final written agreement are part of your contract. - Don't use unclear language or ambiguous terms. If you don't understand exactly what the other party is expecting you to do, don't try to camouflage the lack of understanding by using vague language. Vague language leads to misunderstandings, disputes, and lawsuits. Use simple language that accurately expresses your agreement with the other party and to avoid misunderstandings, define any terms that may be ambiguous. - Be careful using "legal terms." There are some words with specific meaning in the law. "Assignment," for example, has a number of meanings in the English language. In intellectual property law, "assignment" means a transfer of ownership of intellectual property. Use "assignment" in your contracts when you mean transfer of ownership of intellectual property. Don't use the word in its other meanings or you will create confusion. - Use Terms Consistently. When you write contracts, you are creating your own law. Therefore terms should be used consistently in the contract. Don't use "royalty" in one paragraph, "license fee" in a second paragraph, and "use fee" in a third paragraph. Pick one term and stay with it throughout the contract.

 

4) The Legal System

 

Advocates :

 

Q) Who is the Attorney General and what are his functions?
A) The Attorney General for India is appointed by the President of India under Article 76 of the Constitution and holds office during the pleasure of the President. He must be a person who has the requisite qualifications to be appointed as a Judge of the Supreme Court. It is the duty of the Attorney General of India to give advice to the Government of India upon such legal matters and to perform such other duties of legal character as may be referred or assigned to him by the President. In the performance of his duties, he has the right of audience in all courts in India as well as the right to take part in the proceedings of Parliament without the right to vote. In discharge of his functions, the Attorney General is assisted by a Solicitor General and four Additional Solicitor Generals.

 

Q) What is the difference amongst Senior Advocate, an Advocate on Record and an advocate?
A) The Advocates Act makes a provision for two kinds of advocates i.e. Senior Advocates and advocates. However, the Supreme Court of India has, in exercise of its rule making power, made a provision for advocate on record. The distinction amongst them are as follows: (i) SENIOR ADVOCATES Senior Advocates are designated as such by the Supreme Court of India or by any High Court. The Court can designate any advocate, with his consent, as Senior Advocate if in its opinion by virtue of his ability and standing at the Bar or special knowledge or experience in law, the said advocate is deserving of such distinction. A Senior Advocate is not entitled to appear without an Advocate-on-Record in the Supreme Court or without a junior in any other court or tribunal in India. He is also not entitled to accept instructions to draw pleadings or affidavits, advise on evidence or do any drafting work of an analogous kind in any court or tribunal in India or undertake conveyancing work of any kind whatsoever, but this prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior. (ii) ADVOCATES-ON-RECORD Only these advocates are entitled to file any matter or document before the Supreme Court. They can also file an appearance or act for a party in the Supreme Court. No other High Court in India has a similar provision. (iii) OTHER ADVOCATES These are advocates whose names are entered on the roll of any State Bar Council maintained under the Advocates Act, 1961 and they can appear and argue any matter on behalf of a party in any court or tribunal. However, in the Supreme Court, they are not entitled to file any document or matter before the Court.

 

Q) Who is an Advocate General and what are his duties?
A) There is an Advocate General for each State, appointed by the Governor, who holds office during the pleasure of the Governor. He must be a person qualified to be appointed as a Judge of High Court. His duty is to give advice to State Governments upon such legal matters and to perform such other duties of legal character, as may be referred or assigned to him by the Governor. The Advocate General has the right to speak and take part in the proceedings of the State Legislature without the right to vote.

 

High Courts :

 

Q) What is the place of the High Courts in our Constitutional scheme and who are eligible to be appointed as judges of the High Court?
A) The High Court stands at the head of a State's judicial administration. There are 18 High Courts in the country, three having jurisdiction over more than one State. Among the Union Territories, Delhi alone has a High Court of its own. Other six Union Territories come under the jurisdiction of different State High Courts. Each High Court comprises of a Chief Justice and such other Judges as the President may, from time to time, appoint. The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the State. The procedure for appointing puisne Judges is the same except that the Chief Justice of the High Court concerned is also consulted. They hold office until the age of 62 years and are removable in the same manner as a Judge of the Supreme Court. To be eligible for appointment as a Judge one must be a citizen of India and have held a judicial office in India for ten years or must have practised as an Advocate of a High Court or two or more such Courts in succession for the same period.

 

Q) What are the powers of the High Courts?
A) Each High Court has power to issue to any person within its jurisdiction directions, orders, or writs including writs which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights or for any other purpose. This power may also be exercised by any High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or residence of such person is not within those territories. Each High Court has powers of superintendence over all Courts within its jurisdiction. It can call for returns from such Courts, make and issue general rules and prescribe forms to regulate their practice and proceedings and determine the manner and form in which book entries and accounts shall be kept.

 

Legal Aid :

 

Q) Under what circumstances can free legal aid be provided?
A) A person is entitled to free legal aid, if he/she falls within one or more of the following categories: - He/she belongs to the poor section of the society having annual income of less than Rs. 18,000/-per annum, or - He/she belongs to Scheduled Caste or Scheduled Tribe, or - He/she is a victim of natural calamity, or - He/she is a woman or a child or a mentally ill or otherwise disabled person or an industrial workman, or - He/she is in custody including custody in protective home, Free legal aid to such persons is provided by the Supreme Court Legal Aid Committee. The aid so granted by the Committee includes cost of preparation of the matter and all applications connected therewith, in addition to providing an advocate for preparing and arguing the case. Any person desirous of availing legal service through the Committee has to make an application to the Secretary and hand over all necessary documents concerning his case to it. The Committee after ascertaining the eligibility of the person provides necessary legal aid to him/her. Persons belonging to middle income group i.e. with income above Rs. 18,000/- but under Rs. 1,20,000/- per annum are eligible to get legal aid from the Supreme Court Middle Income Group Legal Aid Society, on nominal payments.

 

Q) What is the government policy on free legal aid?
A) Article 39A of the Constitution enjoins that the State shall secure that the operation of legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The Central Government in 1980 constituted a high powered Committee for Implementing Legal Aid Schemes (CILAS) which worked out a comprehensive legal aid programme on uniform basis throughout the country providing a four-tier legal aid programme at National, State, District and Taluk levels. As a sequel to this, the Government of India enacted the Legal Service Authorities Act in 1987 which was enforced with effect from November 9,1995. Under this Act, the National Legal Services Authority (NALSA) was set up as Central Authority at the apex. Since then, legal aid agencies are being set up at States and Union Territories levels, District levels and Taluk levels all over the country at the moment. The implementation of Legal Aid Programmes under the Legal Services Authorities Act, 1987, as amended, is the responsibility of the Central Authority constituted under Section 3 of the Act. The Chief Justice of India is the Patron-in-Chief and Shri Justice S.P. Bharucha,Judge, Supreme Court of India is the Executive Chairman of the Central Authority known as National Legal Services Authority (NALSA) The Government has been providing free legal aid services to the poor in two segments. The first segment relates to court oriented legal aid and the second segment covers preventive or strategic legal aid. Both the legal aids are provided under the aegis of the National Legal Services Authority, State Legal Services Authorities, District Legal Services Authorities, Supreme Court, High Court and Taluka Legal Services Committees. Under the court oriented legal aid, the legal aid has been provided in 24,10,450 cases, so far. The number of legal aid beneficiaries belonging to the weaker sections of the society are as follows: scheduled castes 3,88,446, scheduled tribes 2,24,380, backward classes 1,01,832, women 2,72,834 and children 9,176 cases. Under the preventive or strategic legal aid, legal aid has been provided on promotion of legal literacy, setting up of legal aid clinics in universities and law colleges, training of para-legals and holding of legal aid camps, lok adalats and public interest litigation.

 

Q) When can an advocate be appointed by the Court?
A) If a petition is received from the jail or in any other criminal matter, and if the accused is unrepresented, then an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters also the Court can appoint an advocate as amicus curiae if it thinks it necessary in case of an unrepresented party. The Court can also appoint amicus curiae in any matter of general public importance or in matters where the interest of the public at large is involved i.e. most advocates in environmental matters are amicus curiae.

 

Q) What are Lok Adalats?
A) Lok Adalats are voluntary agencies and are monitored by the State Legal Aid and Advice Boards. They have proved to be a successful alternative forum for resolving of disputes through the conciliatory method. The Legal Services Authorities Act, 1987 provides statutory status to the legal aid movement and it also provides for setting up of Legal Services Authorities at the Central, State and District levels. These authorities will have their own funds. Further, Lok Adalats which are at present informal agencies will acquire statutory status. Every award of Lok Adalats shall be deemed to be a decree of a civil court or order of a Tribunal and shall be final and binding on the parties to the dispute. It also provides that in respect of cases decided at a Lok Adalat, the court fee paid by the parties will be refunded.

 

Ministry of Law and Justice :

 


Q) What is the composition of Ministry of Law and Justice?
A) Ministry of Law And Justice comprises of the following three wing; a) the Department of Legal Affairs b) the Judicial Department c) the Legislative Department The Department of Legal Affairs is concerned with advising the various Ministries of the Central Government while the Legislative Department is concerned with drafting of principal legislations for the Central Government.

 

Q) What are the functions of the department of Legal Affairs (Vidhi Karya Vibhag)?
A) The functions of the Department of Legal Affairs renders may be summarized as follows: - Rendering advice to the various Ministries/Departments of the Government of India on legal matters, - Carrying out the conveyancing work of the Central government, - Attending to the litigation work of the Central Government in the Supreme Court, High Courts and some of the subordinate courts. - Entering into treaties and agreements with foreign countries in matters of civil law, - Authorising officers to execute contracts and assurances of property on behalf of the President under article 299(1) of the Constitution of India, - Signing and verifying of plaints and written statements in suits by or against the Union of India. - Appointing Law Officers, namely, the Attorney General for India, the Solicitor-General of India and the Additional Solicitor-Generals of India, members of the Indian Legal; Service etc.

 

Q) What are the functions of the Judicial Department (Nyaya Vibhag)?
A) The Judicial Department is concerned with the formation, maintenance and administration of the Courts and quasi judicial authorities all over the country.

 

Supreme Court :

 

Q) When and how was the Supreme Court constituted?
A) The Supreme Court was constituted by Article 124 of the Constitution with original, advisory and appellate powers. The Supreme Court was the successor of the Federal Court. After its inauguration on January 28, 1950, the Supreme Court commenced its sittings in Chamber of Princes, a part of the Parliament House. The Court moved into the present building at Tilak Marg, New Delhi in 1958. The building is shaped to project the image of scales of justice. The Central Wing of the building is the Centre Beam of the Scales. In 1994, two New Wings - the East Wing and the West Wing - were added to the complex. In all there are 15 Court Rooms in the various wings of the building. The Chief Justice's Court is the largest of the Courts located in the Centre of the Central Wing.

 

Q) What is the constitution of the Supreme Court Registry?
A) The Registry of the Supreme Court is headed by the Registrar General who is assisted in his work by three Registrars, four Additional Registrars, twelve Joint Registrars and other staff. Article 146 of the Constitution deals with the appointments of officers and servants of the Supreme Court Registry.

 

Q) When can the Supreme Court transfer a case?
A) The Supreme Court has been conferred with power to directly transfer any civil or criminal case from one High Court to another High Court or from a court subordinate to one High Court to another court subordinate to a different High Court, in the interests of justice and on the application of a party. The Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases by itself.

 

Q) When can the Supreme Court entertain appeals from the High Courts in civil and criminal matters?
A) The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgment, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution. Appeals lie to the Supreme Court in civil matters if the High Court concerned certifies: (a) that the case involves a substantial question of law of general importance, and (b) in the opinion of the High Court the said question needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme Court. The Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court. The Enlargement of Criminal Appellate Jurisdiction Act, 1970 has conferred a wider power to the Supreme Court in this respect. The Supreme Court has also a very wide appellate jurisdiction over all courts and tribunals in India in as much as, it may, in its discretion, grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, determination, sentence or order in any cause or matter, passed or made by any court or tribunal in the territory of India.

 

Q) What are the powers of the Supreme Court to punish for contempt?
A) Under Articles 129 of the Constitution the Supreme Court has been vested with power to punish for contempt of any court including the Supreme Court itself. The Contempt of Courts Act, 1971 provides for punishment for contempt and makes a distinction between civil and criminal contempt. In case of contempt, the Court may take action (a) suo motu, or (b) on a petition made by Attorney General or Solicitor General, or (c) on a petition made by any person.

 


5) Indirect Tax

 

Advertising Agencies :

 

Q) Can Cinema theatres be treated as advertisement agencies as they project advertisement?
A) The Cinema theatres cannot be treated as advertisement agencies as they project advertisements only on behest of advertising agencies. Further it has already been clarified that the amount paid by advertising agency for space and time in getting the advertisement published in print media (i.e. newspapers, periodicals etc), or the electronic media (Doordarshan, Private T.V. Channels, AIR, Cinema theatres etc) will not be includible in the value of taxable service for the purpose of levy of Service Tax.

 

Banking and Financial Service :

 

Q) Whether Finance Companies providing banking and Financial services and having proprietary/ partnership status are liable to Service Tax?
A) The Banking and Financial services provided by a banking company or a financial institution including a non banking financial company or any other body corporate is chargeable to Service Tax. The term body corporate means a private limited public limited company or a Government company. Such companies should be either a banking company or a financial institution or pen banking financial company to come under the tax net. In other words individuals proprietorship or partnership firms will not come under the tax net.

 

Q) Whether buying and selling of foreign exchange by the authorised dealers and money changers are under Service Tax net?
A) Only the service of "Foreign Exchange Broking" when provided by the foreign exchange brokers, authorized dealers and money changers has been brought under tax net.

 

Business Auxillary Service :

 

Q) Whether services provided by call centres are taxable?
A) Business auxiliary services provided by call centres, i.e. Commercial Centres which provide assistance, help or informations, through telephone, on behalf of another person are exempted from Service Tax.

 

Q) Whether services provided by medical transcriptions centres are taxable?
A) Business auxiliary services provided by medical transcription centres i.e. commercial concerns which transcribes medical history, treatment, medical observations and the like, are exempted from payment of Service Tax.

 

Payment of Service Tax :

 

Q) How and where to pay Service Tax?
A) The Service Tax amount is required to be paid in Form TR-6 challan (yellow in colour) in the specified branches of designated banks. The list of such Banks and Branches is available in every Commissionerate of Central Excise. Different heads of accounts have been specified for different taxable service by the Govt. under which payment has to be made. While making the payment of service tax to the credit of Central Govt., head of account should be correctly and properly indicated under major and minor heads and sub-heads to avoid misclassification.

 

Q) What is the interest rate applicable on delayed payment of Service Tax?
A) Every person, liable to pay the tax in accordance with the provisions of section 68 or rules made thereunder, who fails to credit the tax or any part thereof to the account of the Central Government within the period prescribed, shall pay simple interest at the rate of fifteen per cent per annum for the period by which such crediting of the tax or any part thereof is delayed.

 

Q) What are the penal provisions if the service tax is not paid / paid late?
A) Any person liable to pay service tax in accordance with the provisions of section 68 or the rules made thereunder, who fails to pay such tax shall pay in addition to paying such tax, and interest on that tax in accordance with the provisions of section 75, a penalty which shall not be less than one hundred rupees but which may extend to two hundred rupees for every day during which such failure continues, so, however, that the penalty under this clause shall not exceed the amount of service tax that he failed to pay.

 

Q) When is Service Tax required to be paid?
A) If the assessee is an individual or a proprietary or partnership firm, the service tax is to be paid on quarterly basis. The payment is to be made by the 25th day of the month following the quarter. For example, Service Tax for the quarter ending 30th June is to be paid by 25th July. In respect of other categories, the tax is payable on monthly basis and is to be paid by 25th day of the succeeding month.

 

6) Writs

 

Q) What is an appeal?
A) An appeal is a request to a higher (appellate) court for that court to review and change the decision of a lower court. Because post-trial motions requesting trial courts to change their own judgments or order new jury trials are so seldom successful, the defendant who hopes to overturn a guilty verdict must usually appeal. The defendant may challenge the conviction itself or may appeal the trial court's sentencing decision without actually challenging the underlying conviction.

 

Q) What are the chances that my conviction will be reversed?
A) Appeals judges generally resist overruling trial court judgments and prefer to give trial judges wide discretion in the conduct of trials. As many appellate courts have said, defendants are not guaranteed "perfect" trials. Normally an appellate court will overturn a guilty verdict only if the trial court made an error of law that significantly contributed to the outcome. Put differently, an error by the trial judge will not lead to a reversal of a conviction as long as the error can reasonably be considered harmless. Not surprisingly, most errors are deemed "harmless," and consequently few convictions are reversed. However, some types of errors are so grievous that they are presumed harmful, such as the use of a coerced confession in violation of the 14th Amendment.
Sentences are a different matter. When the trial judge is given discretion over the sentence, the appellate court will rarely interfere. However, if the law requires a particular sentence and the judge gets it wrong, the appellate court will usually send the case back for resentencing.

 

Q) What is a writ?
A) In most modern American jurisdictions, a "writ" is an order from a higher court to a lower court or to a government official such as a prison warden. Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. (Many states have two levels of appellate courts - an intermediate appellate court and the state supreme court).
Writs, like appeals, are complex and involve picky details. Defendants facing situations where they may be entitled to take a writ should consult counsel.

 

Q) What's the difference between a writ and an appeal?
A) Writs usually are considered to be extraordinary remedies, meaning they are permitted only when the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may take a writ to contest a point that the defendant is not entitled to raise on appeal. As a general rule, this applies to issues that are not apparent in the record of the case itself (such as when an attorney fails to investigate a possible defense).

 

Any one of the following reasons, for example, may prohibit an appeal (and justify a writ):

The defense did not lodge a timely objection at the time of the alleged injustice (but should have).
A final judgment has not yet been entered in the trial court, but the party seeking the writ needs relief at once to prevent an injustice or unnecessary expense.
The matter is urgent. (Writs are heard more quickly than appeals, so defendants who feel wronged by actions of the trial judge may need to take a writ to obtain an early review by a higher court.)
The defendant has already lodged an unsuccessful appeal (defendants may file multiple writs but the right to appeal is limited to one). But filing a writ that simply mimics an unsuccessful appeal is a frivolous writ and will be dismissed immediately.

 

Q) What is a writ of habeas corpus?
A) Defendants who want to challenge the legality of their imprisonment - or the conditions in which they are being imprisoned - may seek help from a court by filing an application for what is known as a "writ of habeas corpus."

A writ of habeas corpus (literally to "produce the body") is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order. Many state constitutions provide for writs of habeas corpus, as does the U.S. Constitution, which specifically forbids the government from suspending writ proceedings except in extraordinary times - such as war.

Known as "the Great Writ," habeas corpus gives citizens the power to get help from courts to keep government and any other institutions that may imprison people in check. In many countries, police and military personnel, for example, may take people and lock them up for months - even years - without charging them, and those imprisoned have no avenue, no legal channel, by which to protest or challenge the imprisonment.

The writ of habeas corpus gives jailed suspects the right to ask an appellate judge to set them free or order an end to improper jail conditions, and thereby ensures that people in this country will not be held for long times in prison in violation of their rights. Of course, the right to ask for relief is not the same as the right to get relief; courts are very stingy with their writs.


7) Suits

 

Q) What Is A Personal Injury Lawsuit?
A) Well it is certain that you may be familiar with the words personal injury lawsuit. There are many lawyers who advertise their services on TV commercials, and who specialize in personal injury lawsuits. However, what exactly is a personal injury lawsuit, how does it work, and when can a person file a personal injury lawsuit? First of all, personal injury lawsuit entails an individual who has experienced some type of injury or harm because of another individual or entities negligence. This could be an auto accident of some sort, simply breaking limb by falling on someone’s or businesses property because of it not being properly maintained, or simply harm that has occurred in some other manner.
A personal injury lawsuit is mainly filed to receive some sort of restitution or compensation for damage that has occurred resulting in medical costs, loss of wages, and pain and suffering. An accident that could have been very well prevented or would not even have occurred if the party had not been negligent in some way or means. There are a few things that indicate that a person’s particular circumstance can be valid enough for it to ensue in court.

 

Q) What Is A Malpractice Lawsuit?
A) In this day and age it is a lawsuit happy world, although there are many unfortunate circumstances that arise that mandate these lawsuit legal actions. This is especially true for malpractice lawsuits. The medical field is full of situations that can stray from a positive outcome. Mistakes occur and can often be quite extensive or even fatal. That is why filing a malpractice lawsuit can be a very intricate process. The lawsuit claims can include health care providers, physicians, nurses, hospitals, agencies, and other professionals that practice in the health care industry.
A medical malpractice lawsuit is valid when a health care entity endangers, harms, or kills an individual due to negligent decisions, actions, and behaviors. Malpractice laws vary from state to state, and internationally. For this reason most medical professionals practicing in any health care niche are required to carry liability insurance. Liability insurance helps to decrease costs and deter the risk associated with a malpractice lawsuit. There are many circumstances where a physician can become liable for malpractice claims.

 

Q) What Is A Discrimination Lawsuit?
A) Discrimination has been a grave problem for ages now, furthermore plenty of businesses, employers, and entities find themselves in trouble when they are slapped with ongoing discrimination lawsuits. Although there are laws that have prohibited being discriminated against for decades, it is still continuing to play a big factor in legal systems. The best way we can address this dilemma is by simply avoiding them at all costs, and doing right by adhering to the laws that protect and defend discrimination.
Discrimination lawsuits involves many different factors. One can be discriminated by race, color, religion, pregnancy, gender, age, religious beliefs, disability, and national origin. There are both federal and state laws that regulate and prohibit discriminatory practices and actions. It is also wise to understand what grounds is considered discriminatory action, and be aware of the laws in detail to avoid unnecessary lawsuits from actions you may consider harmless but another may find offensive and discriminatory.

 

Q) What Is A Class Action Lawsuit?
A) You often hear in the media a lot of talk about class action lawsuits, however do you really know what it is, what it means, and how one is pursued? Class action lawsuits are a lawsuit that entails one company or entity and many parties in unison fighting towards a cause because there has been some way that the company has wronged many people as opposed to a single sole. For instance, say a company has endangered many people’s lives by exposing them to harmful chemical toxins and all of a sudden the people located near this company or manufacturing plant have fallen ill - this deems action by all the parties to file a class action lawsuit.

There are many grounds that a class action lawsuit can be filed under, however these limitations are regulated by certain legal terms that must be adhered to and are required to qualify under the guidelines set. There are many dispute and causes that can be settled by these types of suits, however most prominently are against pharmaceutical companies, companies who have committed numerous crimes against employees, and against companies where negligent behavior has lead to deaths and injury of numbers of people. When someone decides to file a class action lawsuit they:

Forfeit the right to sue the company solely.
May get less, equal, or more of a settlement than other parties included in the lawsuit.
Their awards will be divided into punitive and compensatory damages.
If they lose the suit may not have to compensate the lawyer representing the case.
May be settled out of court or by jury trial.
Can be resolved by ADR or mediation.
If the company being disputed against appeals it could take years.
If the company involved with the lawsuit claims bankruptcy - the awards may never be received.

There are numerous benefit to taking or joining a class action lawsuit, class action enables many people to join forces against a very large company or business where normally a single lawsuit would not work a effectively. Also, many class action lawsuits are first filed in state courts but may fall into federal guidelines that enable the case to be handled in federal courts. However, there is evidence that supports that state courts are more prone to favor the plaintiff, and the federal courts tend to waiver on the defendant's side.

How do class action suits work? Sometimes an individual may have a dispute with a company, and by word of mouth find out that there are many others that are in the same predicament. This person or another consults a lawyer attorney and a deposition follows. The lawyer attorney will try to contact other parties to opt in who share the same grievances with the company and a class action lawsuit is filed. Once more people opt into the class action suite, the company is notified. If the claims against the company are entirely legit and threaten their good reputation, most companies will settle out of court. All of the plaintiffs will then get a portion of the settlement according to the severity of negligence the company has caused them.

More and more class action lawsuits are being filed. You may have received some sort of notice by mail where you could join one.

 

Q) What Questions Should I Ask The Lawyer Attorney?
A) Be mindful that you are hiring the attorney and will pay theattorney to win your case. Though personality between you and the attorney are important, you are not trying to hire a 'friend'. Select the attorney who has the character, reputation and experience to win. You should interview several attorneys as each attorney has his/her own uniqueness and experiences. Here are some general questions that apply when seeking an attorney in almost any area of law.;

How long have you been practicing law?
How much experience do you have in handling the particular type of legal issue I have?
Have you been chosen to give lectures to other lawyers on this or related topics?
Are you a member of any bar associations or committees related to this type of legal matter?
Do you have a website or other information about your professional experiences and credentials?
Will you work on this matter by yourself, or will associate attorneys and paralegals also be involved? If others will be involved, what will be the division of effort?
What are the possible outcomes of this type of matter?
What will you charge me to act as my Attorney?
What types of expenses other than fees will I have to pay?
Do you have malpractice insurance in case a mistake is made?
Have you ever been the subject of public disciplinary action?
Do you use email to communicate?
Are you licensed to practice law?
Have you ever lost a case?
Do you handle cases on contingency basis?

 

Q) What Should I Do Before Meeting With The Lawyer Attorney?
A) In order to save you time and money, prepare to be candid and upfront. You are protected under attorney-client confidentiality. Do your homework. Study legal matter before your meeting. Show up on-time. Make sure you know where the attorney office is located. Arrive a few minutes in advance of your scheduled appointment.

 

Q) Lawyer Retainer: What Does It Mean Pay Only If You Win?
A) Generally, this means the attorney will accept your case but will not receive any fee unless your case is successfully completed. The amount of their compensation is a percentage of your award. It is important to ask the attorney what their percentage is before and after legal expenses are subtracted. By law, when an attorney is retained under a contingent fee agreement the “contingency” does not cover the expenses. This means that the client must always be responsible for case expenses regardless of the outcome. The attorney is permitted to advance these expenses but must be reimbursed at the end of the case. You should always have a written fee agreement with your attorney. This can be a document you actually sign, or a letter from the attorney setting forth the fee arrangement.

 

Q) How Much Will It Cost To Hire A Lawyer Attorney?
A) Before you meet with the attorney, ask about their fees. Most attorneys have retainers. A retainer means a deposit or down payment, held in trust, to be applied against hourly fees. Most attorneys charge by the hour. The hourly rates among attorneys vary depending on the type of work and their level of experience.

 

Q) What Type Of Lawyer Attorney Do I Need?
A) There are general attorneys who perform a wide range of different legal services. There are attorneys who act more as specialists in different areas of the law. Choose an attorney who is able to practice in the judicial system you desire and is highly experienced in the technical area of your lawsuit.

 

Q) How Do I Locate A Good Lawyer Attorney?
A) 1) Personal References. Ask friends, relatives, clergy, or other acquaintances whose judgment you respect may have had a relationship with a lawyer in the field you need and be able to provide you with a personal reference.

2) Legal Directories. Avoid solely using the Yellow Pages. Consult legal directories available online. These directories can be sorted by field of expertise. Research each attorney online before contacting them. Many law firms have their own websites that provide specific information about the firm and its attorneys.

3) Bar Associations. Most bar associations provide lists of attorneys who may have experience pertaining to your lawsuit. Generally, these attorneys are in good standing and have a good reputation among their peers.

 

Q) What Should I Understand Before Filing A Lawsuit?
A) A lawsuit is an adversarial action a threat to someone’s well-being. Before filing a lawsuit, explore these considerations before and after seeking professional legal advice.

01) Do you have a good cause/reason and a good case? Even if you think you have a good case, take some time to think about whether you can win the lawsuit. Unless you have another agenda, the intent of filing a lawsuit is to win and gain a settlement of some kind.

02) Do you have material evidence to prove your case? Hearsay and speculation are just what they are. Review the material evidence you will use to prove your case, including documents, objects, records, witnesses and so on. Determine whether the evidence you think you have exists and, if so, determine where it is. Is it in your possession? If not, do you have knowledge of it’s whereabouts? Do you have access to it? Is there a chance that the evidence will spoil, decompose, deteriorate while you are awaiting trial?

03) Determine whether there are witnesses who will help prove your case. Was there anyone who observed first-hand to verify the issues of the lawsuit? Are there witnesses who can testify about the different types of evidence you will present at trial? Will any of these witnesses be willing to testify on your behalf or would you have to summon them to court? Is there a witness that needs protection or is poor health or is about to move to a different location who would be unable to testify for you in court? Can you lock in witness' testimony through an affidavit or declaration?

04) Determine the money you will need to bring the lawsuit to court. Do you have the money to pay expenses for filing fees and costs; money to cover earnings lost while you pursue the lawsuit, litigation-related fees and attorney fees. Is there anything about your lawsuit that would qualify you for any aid in paying for representation? Are you covered by insurance for the matter of the lawsuit?

05) Consider whether you have the time and physical/emotional energy to pursue a lawsuit. The average time is 2-5 years from start to finish. Whether or not you hire an attorney to represent you, you will be either representing yourself or aiding your attorney in your representation. Either way, you will have to spend a considerable amount of time and energy pursuing the lawsuit. Not only will a lawsuit consume a great deal of your energy, it will also likely be an emotionally draining experience.

06) Will the defendant countersue? There is always a possibility if you sue someone that they will sue you back (countersuit). If this occurs, not only will you be committing the time, energy, and money to your own lawsuit, but you will also be spending time, energy, and money defending a lawsuit.

07) Consider whether you will be able to collect on a judgment if you are successful in court. It rarely makes sense to file a lawsuit if you know in advance that it is unlikely you will collect on a judgment. Conduct an investigation of the party you wish to sue to determine what types of assets are available to satisfy any judgment you might receive.

08) Check whether your lawsuit is timely. Certain types of lawsuits must be filed within certain proscribed periods of time called statute of limitations. If you are not filing within the proper statute of limitations, your lawsuit will be dismissed. Check to see which statutes of limitations apply and whether you are within the proscribed times.

09) Forget Greed and Revenge. A lawsuit is no guarantee that you have a winning lottery ticket. A more realistic approach to a lawsuit is for reasonable, full and fair compensation to allow you to recover all of your past and future expenses, and compensation for all of your past and future pain and suffering compensation.

10) Before you file your lawsuit, make an attempt to settle your dispute through mediation or arbitration. Consider whether there is any other way to resolve the dispute other than by filing a lawsuit.

 

Q) What Is The Difference Between An Attorney, Lawyer, Barrister, And Esquire?
A) The legal profession has as many variations in titles. The titles: attorney, lawyer, barrister and Esquire are frequently used, sometimes interchangeably. By definition, each has a unique meaning.

Attorney: Generally speaking, an attorney, or attorney-at-law, is a person who is a member of the legal profession. An attorney is qualified and licensed to represent a client within a specific judicial system. By most definitions, an attorney may act on the client's behalf, hold power of attorney or guardianship, and plead or defend a case in legal proceedings in front of a judge, jury or both. The English word 'attorney' has French origins, where it meant "a person acting for another as an agent or deputy".

Lawyer: A lawyer, by definition, is someone who is trained in the field of law and provides advice and aid on legal matters. The term 'lawyer' has English roots. Although the terms 'lawyer and attorney' are used interchangeably by many people, there is a distinction. Within some judicial systems, only 'pre-qualified licensed' person known as an attorney can present a case in front of the judge. In some cases, a lawyer in one judicial system can not provide legal advice in another judicial system unless he/she is 'pre-qualified and licensed' in that specific judicial system. When 'pre-qualified and licensed' within a specific judicial system, he/she becomes an attorney not a lawyer. However, this distinctive terminology is rarely used in the public media or within the legal community.

There are barristers, solicitors and esquires. A barrister generally performs trial work, especially in the higher courts, and does not deal directly with clients. A solicitor, on the other hand, speaks with clients, prepares documents and may appear as an advocate in a lower court. An Esquire is an honorary title that has little meaning and is even somewhat controversial. The term Esquire has English roots, where it was considered an honorary title and originally referred only to males. It is now used as a professional title, similar to the use of Dr. or Ph.D.

 
 
Home | About Us | Our Team | Clientele | Our Judgements | Area of Expertise & Services / Practise Area | Legal Aid | FAQ | Office Gallery | Career | Office Location | Enquiry | Contact | Social Work Activities | News
Location
Hastings Chambers
3rd Floor, Room #3A, 7C, Kiran Shankar Roy Road, Kolkata - 700 001, West Bengal, India.
Phone : +91-33-2242 8829 / 30 / 2248 4094
Email : utpalmajumdaradvocates@gmail.com
Website : www.advocatesutpalmajumdar.com
Powered By : www.calcuttayellowpages.com