The Legal Knowledge

Constitutional Law of India: An Overview in 2024

noreply@blogger.com (Adv. Zeenat Khan) — Fri, 27 Dec 2024 13:54:00 +0000

Constitutional Law of India: An Overview in 2024

India's constitutional law, enshrined in the Constitution of India, continues to serve as the bedrock of the country's legal and governance framework. Since its adoption on January 26, 1950, the Constitution has undergone numerous amendments to adapt to the evolving needs of the nation. As we step into 2024, it remains a dynamic document that balances India's democratic ethos, social justice aspirations, and federal structure.
Core Principles of the Indian Constitution
The Indian Constitution is a comprehensive document comprising 448 articles, divided into 25 parts and 12 schedules (as of 2024). It is guided by the following key principles:
Sovereignty, Socialism, Secularism, and Democracy: These ideals are enshrined in the Preamble, which reflects the vision of the framers to establish a just and equitable society.
Rule of Law: The Constitution upholds the supremacy of law, ensuring equality before the law and the protection of fundamental rights.
Separation of Powers: It establishes a clear demarcation of responsibilities among the legislature, executive, and judiciary.
Federalism: India’s federal structure provides autonomy to states while maintaining a strong central government.
Key Developments in 2024
In 2024, constitutional law in India continues to address critical issues, reflecting societal changes and political developments. Some of the noteworthy trends include:
1. Judicial Activism and Fundamental Rights
The Supreme Court and High Courts have continued to play a proactive role in safeguarding fundamental rights. Landmark rulings in recent years, particularly regarding privacy, free speech, and gender equality, have strengthened constitutional guarantees. In 2024, the judiciary is addressing pressing issues such as the regulation of online platforms, environmental justice, and the balance between national security and individual freedoms.
2. Federalism and State-Central Relations
Federalism remains a cornerstone of the Indian Constitution, but tensions between state governments and the central government have highlighted the need for cooperative governance. Issues like the division of GST revenues, environmental policies, and regional autonomy have sparked debates. The evolving role of governors and the use of Article 356 (President's Rule) continue to be areas of contention.
3. Constitutional Amendments
With over 100 amendments, the Indian Constitution is among the most frequently amended in the world. In 2024, discussions around amendments include proposals for electoral reforms, the reservation policy, and the regulation of digital currencies. The 128th Constitutional Amendment Act, focusing on women's reservation in legislatures, is a significant milestone for gender representation.
4. Role of Technology and Digital Governance
The Constitution's relevance in the digital age is a significant theme in 2024. Issues such as data protection, artificial intelligence regulation, and cybersecurity are being interpreted within the constitutional framework. The judiciary is increasingly addressing cases that test the boundaries of the right to privacy in the digital realm.
Challenges Ahead
While the Constitution has stood the test of time, challenges remain:
Balancing Rights and Security: The rise of technology and global threats requires balancing individual freedoms with national security.
Judicial Accountability: Calls for greater transparency and efficiency in the judiciary, including debates on the collegium system, persist.
Electoral Reforms: Strengthening democratic processes, addressing voter apathy, and regulating political financing are pressing needs.
Conclusion
In 2024, the Indian Constitution continues to be a living document, reflecting the aspirations and challenges of a diverse and dynamic nation. Its adaptability and resilience underscore the vision of its framers, who sought to create a framework capable of evolving with the times. As India moves forward, the Constitution remains a symbol of its democratic values, federal structure, and commitment to justice, equality, and liberty for all.

Can you insist on addressing a judge (in court) with simply, "Mr." or "Ms." and when they object point out that the custom of "Your Honor" is required by "etiquette" but not by law?

noreply@blogger.com (Adv. Zeenat Khan) — Fri, 27 Dec 2024 13:45:00 +0000

What might happen if I insist on addressing a judge (in court) with simply, "Mr." or "Ms." and when they object point out that the custom of "Your Honor" is required by "etiquette" but not by law?

Imagine you’re standing before someone who, depending on the circumstances, has the power to influence your charges, your verdict, and even your sentence. Do you think it’s worth risking their respect over something trivial?

I recently found myself wrongly accused of a traffic violation that could have resulted in a misdemeanor and jail time. Fortunately, I kept detailed records of the incident. In the end, it came down to my word against the officer’s—he had mistakenly pulled DMV records on the wrong day, which gave him inaccurate information. Throughout the process, I made sure to be respectful: I dressed neatly, addressed the judge as "Your Honor," and referred to the officer as "The Officer." I treated all authority figures with courtesy. As a result, the judge reviewed the evidence and reduced the charge to just a fine. The misdemeanor was dropped.

Do you think this would have happened if I hadn’t shown respect? Absolutely not.

In court, the judge is tasked with making a judgment about who you are. They’re evaluating whether you’re trustworthy, how much you may have contributed to the situation at hand, and many other factors. That’s why it’s crucial to dress well, act respectfully, and demonstrate that you understand proper legal etiquette. There’s no place where your personal impression matters more than in a courtroom.

There is typically no statute requiring litigants or attorneys to address a judge as "Your Honor." However, courtrooms operate on established conventions to ensure decorum and respect. Judges have the authority to enforce decorum in their courtrooms. Persistently refusing to follow customary forms of address could be seen as disruptive or disrespectful.

If you explain your reasoning respectfully, a judge might tolerate it. However, pushing the point could be seen as confrontational. The judge might:

Issue a direct order for you to follow the customary address.
Warn you about potential contempt of court if your actions disrupt proceedings.
Compromise: If you have strong reasons for avoiding "Your Honor," consider using "Judge [Last Name]" instead. This strikes a balance between your preferences and courtroom decorum.
Respectful Explanation: If questioned, calmly and respectfully explain your position without being argumentative.

law related to live in relationship in India 2023

noreply@blogger.com (Adv. Zeenat Khan) — Fri, 24 Feb 2023 20:26:00 +0000

law related to live in relationship in India

Live-in relationships, or cohabitation, refers to a domestic arrangement where two individuals live together in a romantic or sexual relationship without being married. In India, live-in relationships are not yet socially accepted and are often considered taboo. However, the legal recognition of live-in relationships has evolved over the years, and the Indian judiciary has recognized them as a valid form of relationship under certain circumstances.

The Indian legal system does not have a specific law that governs live-in relationships. However, the courts have recognized live-in relationships as a form of "relationship in the nature of marriage." This means that if a couple lives together for a considerable period of time, they may be entitled to certain legal rights and protections similar to those of married couples.

The Supreme Court of India, in its landmark judgment in 2010, held that a couple living together for a long period of time would be presumed to be in a valid marriage, and the woman in such a relationship would be entitled to maintenance if the relationship breaks down. The court stated that if a man and a woman lived together as husband and wife for a long time, they would be presumed to have entered into a marriage, and the burden of proof would shift to the party denying the existence of a marriage.

However, the court also laid down some conditions for the recognition of live-in relationships as "relationships in the nature of marriage." The court held that the couple should hold themselves out to society as being akin to spouses and must have lived together for a significant period of time. The court also stated that the relationship must be of a "permanently cohabiting nature," and the parties must have lived together in a shared household.

The concept of a shared household is essential in determining the legal rights of the parties in a live-in relationship. The Protection of Women from Domestic Violence Act, 2005, defines a shared household as a household where the person aggrieved lives or has lived in a domestic relationship, either singly or along with the respondent, and includes such a household owned or tenanted by either the person aggrieved or the respondent.

Therefore, if a couple lives together in a shared household, and the woman is subjected to domestic violence, she can seek legal protection and remedies under the Domestic Violence Act.

Another significant development in the legal recognition of live-in relationships is the recognition of the rights of children born out of such relationships. The Supreme Court has held that a child born out of a live-in relationship would be entitled to the same rights and privileges as that of a child born out of a valid marriage. The court has held that a child born out of a live-in relationship would be legitimate and would be entitled to inherit the property of the father.

In conclusion, while there is no specific law governing live-in relationships in India, the judiciary has recognized them as valid forms of relationships under certain circumstances. The recognition of live-in relationships as "relationships in the nature of marriage" has provided legal protection and remedies to parties in such relationships. However, the legal recognition of live-in relationships is still evolving, and there are ongoing debates about the need for a specific law to govern them.

India's legal system in 2023

noreply@blogger.com (Adv. Zeenat Khan) — Fri, 24 Feb 2023 20:23:00 +0000

India's legal system is a complex and dynamic network of laws and regulations that govern the country's citizens. The legal system of India is a mix of common law, customary law, and statutory law. The Constitution of India is the supreme law of the land, which lays down the framework for the governance of the country.

The legal system in India is divided into two types of courts - civil courts and criminal courts. Civil courts deal with civil cases, such as property disputes, breach of contract, and family disputes. Criminal courts, on the other hand, deal with criminal cases, such as murder, theft, and assault.

The Supreme Court of India is the highest court in the country and has the power to interpret the Constitution and other laws. It is the final court of appeal and can hear appeals from all lower courts. The High Courts are the second-highest courts in the country and have jurisdiction over a particular state or group of states. They hear appeals from subordinate courts and have original jurisdiction in certain cases.

The lower courts in India are the District Courts, which are divided into civil courts and criminal courts. The civil courts deal with civil cases, while the criminal courts deal with criminal cases. The District Courts are the courts of first instance and have original jurisdiction over all civil and criminal cases within their jurisdiction.

India's legal system has undergone significant reforms in recent years to address the challenges faced by the country. One of the most significant reforms is the introduction of the National Judicial Appointments Commission (NJAC) Act, which aimed to replace the existing collegium system of appointing judges to the Supreme Court and High Courts.

The NJAC Act was passed by the Parliament in 2014 and was subsequently challenged in the Supreme Court. In 2015, the Supreme Court declared the NJAC Act unconstitutional and upheld the existing collegium system for appointing judges. However, the issue of judicial appointments remains a contentious one in India, and there are ongoing debates about the need for reform in this area.

Another significant reform in India's legal system is the introduction of alternative dispute resolution mechanisms, such as mediation and arbitration. These mechanisms aim to provide a faster and more cost-effective way of resolving disputes, particularly in civil cases.

India's legal system faces several challenges, including delays in the disposal of cases, inadequate infrastructure, and a shortage of judges. The backlog of cases in the Indian courts is a significant challenge, with millions of cases pending at different levels of the judicial system. The shortage of judges is another significant challenge, with a judge-to-population ratio that is one of the lowest in the world.

In conclusion, India's legal system is a complex and dynamic network of laws and regulations that govern the country's citizens. While significant reforms have been introduced in recent years, there are ongoing debates about the need for further reform to address the challenges faced by the system. Despite these challenges, India's legal system remains a vital part of the country's democratic framework and plays a crucial role in ensuring justice for all its citizens.

Elements of Agreement

noreply@blogger.com (Adv. Zeenat Khan) — Mon, 26 Sep 2022 17:56:00 +0000

What is an Agreement?

Definition:

In legal parlance, the word ‘agreement’ is used to mean a promise/commitment or a series of reciprocal promises which constitutes consideration for the parties to contract

The term ‘agreement’ is broader in comparison to ‘contract‘, as in “Every contract is an agreement, but vice versa is not possible”. This is because, all the contracts, contains the elements of the agreement, i.e. offer and acceptance, however, not all the agreement contains the main element which constitutes a contract, i.e. Legal enforceability. So, we can say that every agreement is not a contract.

The main characteristics of the agreement are discussed below:

Plurality of Persons: To constitute an agreement, at least two persons should be there, as one person cannot make an agreement with himself/herself.
Consensus ad idem: It is a Latin term, which implies “Concurrence of Minds”, i.e. when in an agreement there is a common understanding between the parties with respect to the terms and conditions of the agreement.

This means that the parties to the agreement must agree upon the same thing in the same sense, as it was intended, with respect to their corresponding rights and duties, concerning the performance of promises in the past or future.

Basically there are two key elements of the agreement, which are discussed as under:-

Offer/Proposal: A person makes an offer, when he/she expresses to another person his/her willingness to undertake an obligation, in exchange for a promise, act or abstinence. The person who expresses his/her willingness or the one who makes the offer is known as offeror or proposer, whereas the person to whom the offer is made, is regarded as the offeree. Offer made by the offeror must be clear, i.e. the terms concerning the offer must be certain. In addition to this, the offer should be communicated to the offeree, which is considered as complete when the offeree comes to know about it.

Acceptance: As the name signifies, when the offeree gives his/her assent to the offeror, either expressly or impliedly to receive or undertake something which is proposed to him/her, it is considered as acceptance. It is required to be communicated to the person who makes the offer, in the prescribed mode, within a reasonable time. It must be unqualified and absolute. Further, when the offer is made to a particular person, it is required to be accepted by that specific person only. However, in case of a general offer, it is open to all and anyone can accept it.

Examples

Alex offers to sell his Royal Enfield to Ben for Rs.80,000. So, when Ben accepts the offer, it becomes an agreement.

John orders pizza from Domino’s, which is executed by Domino’s by sending pizza at the given address. In this case, John’s order for pizza results in an offer, which was accepted by Domino’s by sending Pizza, which constitutes an agreement.

Alpha Ltd. sends an offer letter with respect to a job opening to Peter when the offer letter is accepted and signed by Peter, it amounts to an agreement.

AGREEMENT FOR SALE format Maharastra

noreply@blogger.com (Adv. Zeenat Khan) — Fri, 23 Sep 2022 19:29:00 +0000

AGREEMENT FOR SALE

THIS AGREEMENT FOR SALE is made and executed on this _______ day of ___________month of _____________ year at ___________

BETWEEN Smt./Sri.__________________________ W/o. / Sri.______________ aged _____ years residing at ___________________________________ hereinafter called the “SELLER” (which expression shall mean and include her legal heirs, successors, successors-in-interest, executors, administrators, legal representatives, attorneys and assigns) of ONE PART.

AND Smt./Sri.__________________________ W/o. / Sri.______________ aged _____ years residing at ___________________________________ hereinafter called the “PURCHASER” (represented by his _____________ as power of attorney holder) which expression shall mean and include his heirs, successors, executors, administrators, legal representatives, attorneys and assigns) of the OTHER PART.

WHERE AS THE SELLER is the absolute owner in possession and enjoyment of the residential / Commercial property bearing No.______________________ measuring East to West _____ feet and North to South _____ feet which is morefully described in the schedule hereunder and hereafter called the “SCHEDULE PROPERTY”.

WHERE AS the schedule property is the self acquired property of Sri.______________ vide registered Sale deed bearing No.________ Volume No.______ Page _____ to ______ dated ________ registered at Sub-Registrar’s Office, _________________. He having acquired the same without any aid or assistance from his family of any quarters/ built the schedule property entirely with his own earnings.

WHEREAS said Smt./Sri._____________________ bequeathed the entire schedule property in favour of SELLER _________________ a will dated ________ / a registered will bearing No._________ Book III, Volume ____ Page_____ to _____ dated ___________ registered at Sub-Registrar Office,___________________.

WHEREAS there are no encumbrances, liens, charges, Government dues, attachments, acquisition, or requisition, proceedings and whereas the SELLER has clear and marketable title to the Schedule Property and he/she has absolute power to convey the same.

WHEREAS the SELLER being in need of funds for the purpose of __________________________________________________________________ has decided to sell the schedule property after obtaining consent of his wife/her husband, sons and daughters.

WHEREAS the SELLER offered to sell and transfer the schedule property to the PURCHASER for a sale consideration of Rs.____________ (Rupees_________________ only) and the PURCHASER herein has agreed to purchase the same for the aforesaid consideration on the following terms and conditions:

NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:

1. The Sale Value of the Schedule Property is fixed at Rs.___________ (Rupees_____________________only).

2. The PURCHASER has paid a sum of Rs.___________ (Rupees_____________________only) by cash/cheque/D.D. bearing No.____________ drawn on __________ dated ________ as advance, the receipt of which sum the SELLER does hereby acknowledges.

3. The balance payment of Rs.___________ (Rupees_____________________only) will be paid by the PURCHASER to the SELLER at the time of execution of the Absolute Sale Deed and thus complete the Sale transaction.

4. The parties herein covenant to complete the Sale transaction and to execute the Absolute Sale Deed by the end of_________________.

5. The SELLER confirms with the PURCHASER that he/she has not entered into any agreement for sale, mortgage or exchange whatsoever with any other person relating to the Schedule Property of this Agreement.

6. 3 SELLER agrees to put the purchaser in absolute and vacant possession of the schedule property after executing the sale deed and registering the same in the jurisdictional Sub-Registrar’s office.

7. The SELLER covenants with the purchaser that he/she shall not do any act, deed or thing creating any charge, lien or encumbrance in respect of the schedule property during the subsistence of this Agreement.

8. The SELLER has specifically agreed and covenants with the PURCHASER that he/she shall do all acts, deeds and things which are necessary and requisite to convey absolute and marketable title in respect of the schedule property in favour of the PURCHASER or his nominee.

9. IT IS AGREED between the parties that all expenses towards Stamp Duty and Registration charges shall be borne by the PURCHASER only.

10. The SELLER covenant to obtain at her cost necessary permission from the competent Authority, Income Tax Clearance Certificate and such other Certificate / Document as may be required at the time of Registration of Sale Deed in pursuance of this Agreement.

11. The PURCHASER shall have the right to nominate or assign his right under this agreement to any person / persons of his choice and the SELLER shall execute the Sale Deed as per terms and conditions of this Agreement in favour of the PURCHASER or his nominee or assignee.

12. The SELLER has agreed to get consent deed duly executed to this Sale transaction from his wife/her husband, sons and daughters on or before date of registration of Sale Deed and assured that they all join to execute sale deed in favour of the purchaser.

13. It is hereby expressly provided and agreed by the parties here to that both parties are entitled to enforce specific performance of the agreement against each other in case of breach of any conditions mentioned in this Agreement. 14. The original of the “AGREEMENT” signed by both the parties shall be with the PURCHASER and copy of the same similarly signed shall be with the SELLER.

SCHEDULE

All the piece and parcel of 1 ___________ property bearing No.____________ situated at ___________________________________ measuring East to West ________ feet (_________ feet) and North to South _______ feet (___________feet) in all ___________ sq.ft. or ___________sq.mtrs. and bounded on:

NORTH : By _______________

SOUTH : By _______________

EAST : By _______________

WEST : By _______________

Details of the Building:

i) Plinth area of the building

ii) Type of Roof.

iii) Type of flouring.

iv) Type of wood used.

v) Amenities available.

vi) Year of construction.

SALE DEED

noreply@blogger.com (Adv. Zeenat Khan) — Fri, 23 Sep 2022 19:15:00 +0000

DEED OF ABSOLUTE SALE

This DEED OF ABSOLUTE SALE is made and executed on this _______ day of ______________, Two Thousand _______

BETWEEN

Sri ____________________, son/wife/daughter of Sri/Late _______________, aged about _______ years, holding PAN _____________, by Caste ________, by Nationality Indian, residing at _____________________________________________, hereinafter called the "SELLER" (which expression shall mean and include his legal heirs, successors, successors-in-interest, executors, administrators, legal representatives and assigns) of the ONE PART.

AND

Sri __________________________________, son of _______________________, aged about _______ years, by Caste __________, by Nationality Indian, holding PAN _____________, residing at _____________________________________________, hereinafter called the "PURCHASER" (which expression shall mean and include his legal heirs, successors, successors-in-interest, executors, administrators, legal representatives and assigns) of the OTHER PART.

The SELLER and the PURCHASER are hereinafter referred collectively as parties and individually as party.

WHEREAS the SELLER is the absolute owner, in possession and enjoyment of the piece and parcel of ______ land measuring about ____ decimal, lying and situated in R.S. Plot Number ____, corresponding L.R. Plot Number ____, Recorded in R.S. Khatian Number _____ and L.R. Khatian Number ____, at Mouza _____, J.L. Number _____, Touzi Number ______, under Police Station __________, Registration Sub-District _________, in the district of ________________, more fully and particularly described in the schedule here under written and hereafter referred to as the "SCHEDULE PROPERTY”.

ANDWHEREAS the SCHEDULE PROPERTY was the self acquired property of __________, deceased father of the SELLER and he purchased the same from Sri __________________, son of _____________ of _________________________________, by virtue of a Sale Deed dated ________________, registered in the office of the _____________________________, in Book 1, Volume No. ____, Pages ____ to _____, Being Number ___________ for the Year _____.

ANDWHEREAS the said _________ died in-estate on _________ leaving behind his only son namely, Sri _______________, the SELLER herein, as the only legal heir.

ANDWHEREAS the SELLER herein, as the only legal heirs of the deceased ____________, have become the absolute owner of the SCHEDULE PROPERTY since the death of his father _____________ on and he has been enjoying the same with absolute right, title and interest sice then and he has clear and marketable title to the SCHEDULE PROPERTY.

ANDWHEREAS the SELLER being in need of funds to meet his personal commitments and family expenses have decided to sell the SCHEDULE PROPERTY and the PURCHASER has agreed to purchase the same.

ANDWHEREAS the SELLER agreed to sell, convey and transfer the SCHEDULE PROPERTY to the PURCHASER for a total consideration of Rs._________ (Rupees ___________________________) only and the PURCHASER herein agreed to purchase the same for the aforesaid consideration and to that effect the parties entered into an agreement on the _________________ .

NOW THIS DEED OF SALE WITNESSETH:

1. THAT in pursuance of the aforesaid agreement and in consideration of a sum of Rs._________ (Rupees ___________________________) only received by the SELLER in cash/cheque/bankdraft and upon receipt of the said entire consideration of Rs._________ (Rupees ___________________________) only (the SELLER doth hereby admit, acknowledge, acquit, release and discharge the PURCHASER from making further payment thereof) the SELLER doth hereby sells, conveys, transfers, and assigns unto and to the use of the PURCHASER the SCHEDULE PROPERTY together with the water ways, easements, advantages and appurtenances, and all estate, rights, title and interest of the SELLER to and upon the SCHEDULE PROPERTY TO HAVE AND TO HOLD the SCHEDULE PROPERTY hereby conveyed unto the PURCHASER absolutely and forever.

2. THAT THE SELLER DOTH HEREBY COVENANT WITH THE PURCHASER AS FOLLOWS:

i. That the SCHEDULE PROPERTY shall be quietly and peacefully entered into and held and enjoyed by the PURCHASER without any interference, interruption, or disturbance from the SELLER or any person claiming through or under him.

ii. That the SELLER have absolute right, title and full power to sell, convey and transfer unto the PURCHASER by way of absolute sale and that the SELLER have not done anything or knowingly suffered anything whereby their right and power to sell and convey the SCHEDULE PROPERTY to the PURCHASER is diminished.

iii. That the property is not subjected to any encumbrances, mortgages, charges, lien, attachments, claim, demand, acquisition proceedings by Government or any kind whatsoever and should thereby and the SELLER shall discharge the same from and out of his own fund and keep the PURCHASER indemnified.

iv. That the SELLER hereby declares with the PURCHASER that the SELLER have paid all the taxes, rates and other outgoings due to local bodies, revenue, urban and other authorities in respect of the SCHEDULE PROPERTY up to the date of execution of this sale deed and the PURCHASER shall bear and pay the same hereafter. If any arrears are found due for the earlier period, the same shall be discharged/borne by the SELLER.

v. That the SELLER have handed over the vacant possession of the SCHEDULE PROPERTY to the PURCHASER on ___________ and delivered the connected original title document in respect of the SCHEDULE PROPERTY hereby conveyed on the date of execution of these presents.

vi. That the SELLER will at all times and at the cost of the PURCHASER execute, register or cause to be done, all such acts and deeds for perfecting the title to the PURCHASER in the property hereby sold and conveyed herein.

vii. That the SELLER do hereby covenants and assures that the PURCHASER is entitled to have mutation of his name in all public records, local body and also obtain all documents in the name of the PURCHASER and undertakes to execute any deed in this respect.

SCHEDULE OF PROPERTY

All that piece and parcel of _____ land measuring about _____ decimal, lying and situated in R.S. Plot Number ____, corresponding L.R. plot Number ____, Recorded in R.S. Khatian Number ____ and L.R. Khatian Number ____, at Mouza _____, J.L. Number ____, Touzi Number _______, under Police Station ______, Registration Sub-District ______, in the district of ____________, butted and bounded by:

On the North :

On the South :

On the East :

On the West :

IN WITNESS WHEREOF the SELLER and the PURCHASER have set their signatures on the day month and year first above written.

______________________________

SELLER

______________________________

PURCHASER

WITNESSES:

STAGES OF CRIME

noreply@blogger.com (Adv. Zeenat Khan) — Sat, 04 Jun 2022 11:33:00 +0000

STAGES OF CRIME

SYNOPSIS

A. A. Introduction

B. B. Stages of crime

1. Intention

2. Preparation

3. Attempt

4. Commission

C. C. Case law

D. D. Conclusion

A. INTRODUCTION

When a penal statute prescribes punishment for an act or illegal omission, it becomes a crime There is no satisfactory definition acceptable to all and applicable in all situations. Indian Penal Code is a basic criminal law which came into force on 1st January 1862 in India. It is a general and substantive criminal law operative throughout the country. Criminal law provides the ultimate means to society for the protection of its individuals and institutions. The liability of the offender is to be determined by the court. The stages of crime are grouped into four categories.

B. STAGES OF CRIME

Every offence before it is committed passes through the following four stages:

1. Intention

2. Preparation

3. Attempt

4. Commission

1) Intention

In these four stages, the first stage is considered to be too tender and so it is not punishable This is also evident from the famous Latin Maxim "Actus non facit reum nisi sit rea" which indicate suggests that to constitute a crime there must be both actus reus and mens rea i.e. act and guilty mind. The mere act is not punishable unless it is done with a particular intention.

Mens rea or guilty mind alone without an actus reum or guilty act and vice versa according to the maxim do not constitute a crime. Bowen L. J. said, "Devil doth not know what is running in man hind". Therefore, if intention alone is made punishable, there will be great difficulty. The concerns mens rea is very wider, to includes intention, knowledge, motive, recklessness and negligence etc.

Intention - Intention means a purpose or desire to bring about a contemplated result or foresight at certain consequences that will follow from the conduct of a person. For instance, if a man pushes a boy from a high tower or cuts off his head, it is obvious that he desires the victim’s death.

Motive- Intention must be distinguished from motive. Motive is the reason or ground of action, whereas intention is the violation or active desire to do an act. In other words, the intention is an operation of a will directing an open act, while motive is the feeling that prompts the operation of will the ulterior object of the person willing, eg. 'A' kills 'B'. The intention was to cause death and the motive was to remove political rivalry thus motive is an ulterior object for which the act is done. One can find out the motive of a person by asking why he did that act and the intention of a person by asking how he did it. Motive is not a basis for criminal liability - Criminal law takes into account only a man's intention and not his motive. A good motive will not render it lawful, which is in fact a crime. If a man steals food in order to feed his starving child, the act amounts to theft, though the fact that motive behind the act is to save the life.

Knowledge- Intention is also distinguishable from knowledge. An intention to commit the offence may be inferred from knowledge, though, at times, intention and knowledge merged into each other. Knowledge is the awareness of the consequences of an act. A man may be aware of the consequences of the act, though he may not intend to bring them about.

E.g. A got attacked by a tiger. calls out to B to fire in order to save him, B fired and caused the death of A. B is not liable for A's death because the act was not intentional.

Recklessness - It is a state of mind of a person who foresees the possible consequences of his conduct, but acts without any intention or desire to bring them out. In other words, recklessness is an attitude of mental indifference to obvious risk.

E.g. Driving at high speed through a narrow and a crowded lane is a reckless act. E.g Salman Khan caused death by driving a car with recklessness.

Negligence- Negligence is used to denote want of care and precautions, which a reasonable man would have taken under the particular circumstances of the case. It is a state of mind of a man, S. who pursues a course of conduct without adverting at all to its consequences. In crimes, negligence, imp unlike in the case of torts, is not the basis of liability in general. It is only in a few cases that IPC fixes criminal liability on the ground of negligence, for instance, if a man affects the life, or personal safety of others, such as in case of rash and negligent driving, etc.

2) Preparation.

The second stage in the commission of the offence is preparation. This stage is also considered tender and is not made punishable as a general rule except in three specific cases. The preparation consists in devising means for the commission of the offence. The preparation consists of devising or arranging means or measures necessary for the commission of an offence. Preparation is remotely connected with the offence. Mere preparation is not punishable as a general rule except when the preparation is made.

1. to wage war against the Government of India S.122:

2. to commit depredation on the territories of any power at peace with the Government of India S.126:

3. to commit dacoity S.399.

1. S.122. Collecting arms, etc. with intention of waging war against the Government of India

Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the Government of India, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years and shall also be liable to fine.

2. S.126. Committing depredation on territories of Power at peace with the Government of India

Whoever commits depredation or makes preparation to commit depredation (destruction). on the territories of any power in alliance or at peace with the Government of India, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and to forfeiture of any property used or intended to be used in committing such depredation, or acquired by such depredation.

S.399: Making preparation to commit dacoity

Whoever makes, any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to men years, and shall also be liable to a fine.

3.) Attempt

This is such a developed stage that it is punishable under S. 511 of the Indian Penal Code An attempt to commit a crime is to be carefully distinguished from an intention to commit and from the preparation made for the commission of that crime. An attempt is a direct movement towards the commission after preparation has been made. According to Stephen an attempt to commit a crime s an act done with intent to commit a crime and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. An attempt to commit an offence can be said to be when the preparations are complete and the culprit begins to do something to commit the offence and which is a step towards the commission of the offence. In other words. an attempt is a direct movement toward the commission of an offence after the preparations are made.

S. 511: Punishment for attempting to commit offences punishable with imprisonment for life or another imprisonment

Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be. one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.

Illustrations

1. A makes an attempt to steal some jewels by breaking open a box and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft and therefore is guilty under this Section.

2. A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A failed in the attempt is a consequence of Z's having nothing in his pocket. A is guilty under this Section.

This section deals with only punishment for 'attempt to commit an offence where no express provision is made by this Code for the punishment of such attempt. The Code provides for punishment for criminal attempts in the following three different ways:-

Sections in which the commission of an offence and the attempt to commit it are dealt with in the same section, the extent of punishment being the same for both. These sections are

S.196: Using false evidence.

S.197: Using false certificate

S.213: Obstruction by a person to his lawful apprehension.

S.224: Resistance or obstruction to lawful apprehension of another person.

S.239: Delivery of coin as genuine, which when first possessed the deliverer did not know to be counterfeit.

S.250: Delivery of coin, possessed with knowledge that it is altered.

S.387: Putting a person in fear of injury to commit extortion.

S.385: Putting a person in fear of death orgrievous hurt to commit extortion.

S.389: Putting a person in fear of accusation of offence, to commit extortion.

S.391: Dacoity

In the case of three grave offences, separate specific punishments are prescribed separate " sections "

S.307: punishes attempt to commit murder.

S.308: punishes attempt to commit culpable.

S.309: Punishes attempt to commit suicide homicide.

S.393: punishes attempt to commit robbery.

Where this section of the Indian Penal Code, viz. S. 511 is the residuary section dealing with attempts.

S.120 Definition of attempt

A person attempts to commit an offence. When

a) he, with the intention or knowledge requisite for committing it, does an act towards its commission;

b) the act so done is closely connected with, and proximate to, the commission of the offence and,

c) the act fails in its objects because of facts not known to him or because of circumstances beyond his control

Illustrations:

i. A intends to murder Z, buys a gun and loads it. A is not yet guilty of an attempt to commit murder. A fired the gun at Z, he is guilty of an attempt to commit murder.

ii. A intends to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping. A is not yet guilty of an attempt to commit murder. A placed the food on 7's table or delivers it to Z's servant to place it on Z's table. A is guilty of an attempt to commit murder.

iii. A, with the intent to steal jewels, breaks Z's open box and finds that there is no jewel in it. As hu act failed in its object because of facts not known to him, he is guilty of an attempt to commit theft.

S. 120: PUNISHMENT FOR ATTEMPT

Whoever is guilty of an attempt to commit an offence is punishable with imprisonment for life or with imprisonment for a specified term, shall, where no express provision is made for the punishment of such an attempt. be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life, or as the case may be. one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.

4) Commission.

It is the last stage of the commission of a crime. The offender has crossed all three stages i.e. intention, preparation and attempt and has entered into the last stage of commission. The act committed by the offender includes illegal omission also.

S. 32 of I.P.C. states that words referring tan o the act include illegal omission. S. 32 reads "every part of this Code, except where a contrary intention appears from the context words which refers to acts done extend also to illegal omissions.

S. 33: Act' and 'Omission' - The word act denotes as well as a series of acts as a single act the word 'omission' denotes as well as a series of omissions as a single omission.

S. 43: defines illegal' and it reads: The word 'illegal' applies to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action, and a person is said to be 'legally bound to do whatever it is illegal in him to omit.

There are certain omissions for which I.P.C. expressly provides.

Omission to produce documents, S. 175.

Omission to give notice of information, S.176. (These two omissions are made crimes if done by persons who are bound)

Omission to assist a public servant, S.187.

Omission on the part of a public servant to apprehend, S. 221 and S. 222.

C. CASE LAW

i) State of Maharashtra V. Mohd.Yakub, AIR 1980 SCI.

The offence of attempting to smuggle silver out of India is punishable u/s 135 (2). Customs Act, 1962, and S. 12 (1) of the FERA, 'attempt to define a precise and exact definition. It is a fixed question of law and fact. Broadly speaking, all crimes, which consist of the commission of affirmative acts, are preceded by some covert or overt conduct, which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate steps to commit the offence. Such an overt act or step to be criminal' need not be a punishable act towards the commission of the offence. It is sufficient if such act or acts were deliberately done and manifest a clear intention to commit the offence aimed, being reasonably proximate to the commission of the offence.

In the instant case, the fact that the truck was driven up to a lonely creek from where the silver could be transferred into the sea-faring vessel was suggestive or indicative though not conclusive. that the accused wanted to export the silver. It might be transported in the course of inter-coastal trade. But, the circumstances that all this was done clandestinely, in the dead of night, revealed with reasonable certainty that ty, the intention of the accused that the silver was to be exported

D. CONCLUSION

Under the Indian Penal Code, every offence committed passes through above mentioned four stages. In the first stage intention alone is not punishable itself. Intention includes knowledge, motive, recklessness and negligence etc. The stage of preparation is not made punishable as a general rule except u/s 122,126 and 399 of I.P.C. The third stage attempt is punishable whether the accused succeeds or fails. When the offender crossed all three stages and entered the last stage of commission, then it is crime. The act committed also includes an illegal omission.

5 Top Benefits of Blogging for Advocates

noreply@blogger.com (Adv. Zeenat Khan) — Wed, 01 Jun 2022 13:09:00 +0000

5 Top Benefits of Blogging for Advocates.

In this era of the Internet world, people are used to browsing social media and entertainment platforms on the internet, and they could be found and interacted easily on the internet platform. Being an advocate it is hard to create a client base. An advocate has to create his reputation to build his client base which results in his/her career. which plays an important role in the field of legal practice and profession. Therefore, one must build his reputation to have a good career.

There are 2 kinds of ways to build up a reputation which are as follows:-

1. Building a strong client base offline. ( Without the use of the internet)

2. Building a strong client base online. ( With the use of the internet)

Today we will see how creating an online client base could help an advocate for a good reputation and career.

To create an online client base, it is important to reach out to people on the internet by adding value to their lives and providing knowledge, expertise, help, etc to them as and when they need it.

The first step is to start blogging, where you can showcase your knowledge and expertise.

How Blogging is the most important step?

1. Attract and increase client base.

https://stock.adobe.com/in/search

The more the blogposts a person will write, the more are his/her chances of being noticed on the internet. Blogging is a great way to make your presence felt online. Online legal forums and blogs are on a rise these days and these are getting a lot of attention from other advocates and potential clients. These are great places to showcase your expertise. A section of clients can be impressed by the very fact that his/her counsel is a known personality online and a veteran at blogging. An advocate can establish himself as an expert in a chosen area without violating advocates ethics by showcasing his expertise in the form of a blog. When he publishes in-depth blog posts that help potential clients or customers solve their problems, they come to trust the lawyer and respect him as an expert in the field. They are likely to be interested in hiring the lawyer blogger who they follow online already rather than a stranger they don’t know at all.

2. Connect with the people.

https://stock.adobe.com/in/search

An advocate is always learning. He can always improve his writing and research skills and blogging is one of the ways to stay sharp. Stephen King said if you want to become a great writer then read a lot and then write a lot. Blogging not only allows you to cultivate an audience and enthrall them with your writing but even gives you a strong reason to keep yourself updated with new developments and what people are talking about on the law street. A person who blogs on a specific area of expertise is very likely to closely follow all developments in that area of law in the interest of his blog and this would have ripple effects on other aspects of his practice and level of expertise.

3. Let the Search engine love you.

https://stock.adobe.com/in/search

How cool is it when your name or article is shown on top of the search results on Google? Google’s algorithm makes an attempt to serve the most relevant results on top of every Google search, and well written, thoughtful articles which people enjoy reading or sharing with friends are very likely to show up on top of google searches, driving massive traffic to your posts. Imagine potential clients searching for a lawyer sitting in another country and your name popping up on the top of a google search will you not like that.

4. In-coming Opportunities.

There can be many new opportunities brought in by blog readers and those who follow your work online. Opportunities can be clients, new projects or invitations to events or organizations to deliver a talk. When online visibility builds up to a certain point, these derivative benefits will come across your way.

5. Book assignments.

Publishers often approach popular bloggers to write books – because a popular blogger has already established a connection with the audience. The publisher needs no further proof that the blogger’s writing is well received in the market. Since lawyers often write books and consider writing a book published through a well-known publishing house to be an accomplishment – blogging is a first step towards the same.

INTRA & EXTRATERRITORIAL OPERATION OF INDIAN PENAL CODE

noreply@blogger.com (Adv. Zeenat Khan) — Fri, 28 Jan 2022 18:14:00 +0000

Intra- territorial and Extraterritorial Operation of I.P.C

INTRA & EXTRATERRITORIAL OPERATION OF PENAL CODE.

A critical note on Intra-territorial and plain the Intra-territorial and Extra-territorial operation of IPC.

Table of content.
1.) Introduction.
2.) Intra-territorial operation of the Indian Penal Code.
  a) Scope of Intra-territorial operation of India.
  b) Exceptions to Intra-territorial operation of Indian Penal.
  c) Case law.
3.) Extra-territorial operation of the Indian Penal Code.
  a) Offence committed on land.
  b) Offences committed on high seas.
  c) Offences committed of aircraft.
  d) Caselaw.
4.) Conclusion.

To Understand and learn more about the law of Crime please visit us on the below-given link:-

The Legal Knowledge - Law of Crime

1. Introduction.

The object of the Indian Penal Code is to provide a general penal code for India. The Indian Penal Code came into operation in 1860. As per S.1 of I.P.C., it extends to the whole of India, except the State of Jammu & Kashmir. The Indian Penal Code is a substantive law that prescribes the rights and liabilities of parties.

2.) Intra-territorial operation of the Indian Penal Code.

Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.

a) Scope of Intra-territorial operation of India.

Under this section, all persons are liable for the offences committed by them irrespective of their nationality, caste or creed. It makes the Code universal in its application to every person in any part of India for every act or omission contrary to the provisions of the Code. A foreigner who enters the Indian territories and thus accepts the protection of Indian laws submit himself to this operation. It is no defence on behalf of a foreigner that he did not know that he was doing wrong, and the act not being an offence in his own country. Thus, adultery is an offence in India under this Code, whereas it is not an offence in France or Germany. So if a Frenchman or German commits adultery in India he will be punished under this Code. Ignorance of Indian law is also no excuse or defence.

If the offences are committed on the high seas, then a stretch of water within 12 miles from the land falls within the territorial jurisdiction of land, so if the offence is committed within the belt of 12 miles in the sea near Bombay will be cognizable and tried by Bombay court.

Thus, if an offence is committed on the high seas but within 12 miles from the coast of India, then it is punishable under this Code as if committed within the territorial limits of India. This is called the maritime territory of the State, which is based on the Territorial Water Jurisdiction Act, under International Law.

b) Exceptions to Intra-territorial operation of Indian Penal.

The general rule is that every person is liable to be punished for an offence under this Code committed in India. However, criminal courts have no jurisdiction to try certain persons even though they have committed an offence under this Code. They are as follows:-

i) The President and Governors:

The President and Governors of the States under Art.361 of the Indian Constitution have exempted from civil and criminal liabilities, for the exercise and performance of powers and duties in their official capacities. They are exempted from the jurisdiction of the Court.

ii) Ambassadors and High Commissioners:

They are representative of independent sovereign states. They are also exempted from criminal liability. They enjoy immunity which his sovereign is entitled to. The principle on which the immunity of Diplomatic Personal is based is that he should be free to perform official business on behalf of his country without interference or interruption. The immunity of an Ambassador and High Commissioners from the jurisdiction of the Courts of the country to which they are accredited is based upon his being a representative of the independent Sovereign or State which sends him.

iii) Foreign Sovereign:

They cannot be punished under the Code according to rules of International Law. No Court can entertain an action against the foreign sovereign for anything done, or omitted to be done by him in a public capacity as a representative of a nation of which he is head.

iv) Alien Enemies:

If the war is declared between two or more States, they are the alien enemies of each other. If the act is connected with war, alien enemies cannot be tried by the criminal courts and not be dealt with by martial law. However, if the alien enemy commits a crime not connected with war, he can be tried by the ordinary criminal courts of the State. E.g. theft.

V) Foreign Army:

When they are engaged with their military duties and if the members of such an army commit an offence within or outside the area in which the force is stationed they are not liable to be punished under the Penal Code. However, if they are engaged in non-military duties and commit a crime, they are liable to be punished under the Code.

vi) Warship:

The warship engaged with military duties, and such ship in the foreign water, the men of war are exempted from the jurisdiction of the State within whose territorial Jurisdiction they are.

C) Caselaw:

1. Crown v/s Esop, 1886,

In one leading case, Crown v/s Esop, 1886, the accused has committed an unnatural offence on the board of East India Company's Ship. The contention or argument of the accused was that he was a native of Baghdad where an unnatural act is not an offence, but the Court held him guilty and punished him.

2. Mubarak Ali v/s State of Bombay, AIR 1957, SC 857

In Mubarak Ali v/s State of Bombay, AIR 1957, SC 857 a court has convicted the Pakistani. National for the offence of forgery committed in India under this Code. Thus S.2 is applicable to every person whether foreigner or not, who commits an offence in India. Offences committed on land by any person are punishable under this Code.

3.) Extra-territorial operation of the Indian Penal Code.

S.2 imposed liability upon the person committing an offence within the territory of India and are liable to be punished under this code. However, there are certain types of persons who are liable to be tried by Indian Courts although they have committed offences outside India. S.3 and S.4 lays down that an offence committed outside India may be tried as an offence committed in India when an offence is committed by -

a) Any citizen of India in any place without and beyond India.

b) Any person on any ship or aircraft registered in India, wherever it may be.

Illustration

A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India, which would be punishable under the Indian Penal Code.

S.4 lays down the scope and extent to which the Indian Penal Code applies to the offence committed outside India. S.4 provide an extension of the Code to extra-territorial offences. If the offence is committed outside India but the offender is found within India - then.

He may be surrendered for the trial in the country where the offence is committed. This process of giving up the offender to the country is called extradition under International Law. However. there must be an extradition treaty between the requested and requesting State. The principle underlying the extradition is that the criminal shall not go unpunished, or,
He may be tried in India, which is known as extra-territorial Jurisdiction. Indian Courts are empowered to try offences committed outside India-

On land
On the high seas, and
On aircraft.

A. Offences committed on Land.

Indian Courts can take cognizance of offences committed outside the limits of India. The provision is given in the Criminal Procedure Code, which lays down that if the offence is committed by-

i) Any citizen of India, in any place beyond India, or

ii) Any person on any ship or aircraft registered in India, whenever such ship or aircraft may be. Then such a person may be dealt with in respect of an offence as if the offence had been committed at any place in India at which such a person may be found.

B) Offences committed on high seas.
The jurisdiction to try offences committed on high seas is known as Admiralty Jurisdiction. It is based on the Principle that a ship on the high seas is a 'floating island' belonging to the nation whose flag it is flying.

C) Offences committed of aircraft.
The provisions of the Indian Penal Code also apply to any offence committed by any aircraft registered in India wherever it may be.

D) Caselaw.

i) Veer Savarkar Case, 1910.
Veer Savarkar was a great Indian Patriot; he was accused of the offence of high-treason against British Gove. When he was being brought from London to Bombay by ship, on the way, he escaped a France port. France Govt gave the custody of Veer Savarkar to British Govt., Savarkar was thus re-arrested and he was tried by Special Magistrate at Nashik.
ii) Jugal Kishor More 1969
Jugal Kishor More 1969. Supreme Court held that S.4 of IPC defines the extraterritorial application of the Indian Penal Code. The procedure for securing surrender is governed by the Extradition Act, of 1962.

4.) Conclusion.

As per S.2 of the Indian Penal Code, every person including a foreigner is liable for the act which is an offence under I.P.C. committed within India. S.2 focus on the operation of Code within India. But it is to be read with sections 3 and 4 which provides for its extra-territorial operation, S.3 of L.P.C. applies only to a person liable by any Indian law to be tried for an offence committed beyond India. If the Indian law does not have an extra-territorial operation then S.3 does not apply. S.4 does not apply where the offender is not a citizen of India.

SUGGESTED READINGS -

Ratanlal and Dhirajlal. Indian Penal Code

K.D. Gaur. A textbook on The Indian Penal Code

PS. A. Pillai. Criminal law

Mishra S. N, The Indian Penal Code

T. Bhattacharya The Indian Penal Code

IMPORTANT CASE LAWS:

Mubarak Ali Ahmed vs. State of Bombay, AIR 1957 SC 857
State of Maharashtra v. Syndicate Transport Co.(P) Ltd., AIR 1964 Bom 195
United Nations Privileges and Immunities Act, 1947
Walker, Oxford Companion to law(1980) 600
United Nations Privileges and Immunities Act, 1947
United Nations Privileges and Immunities Act, 1947
Ins. By Criminal Law (Amendment) Act, 2013
Abdul Kadir vs. State of Assam, 1985 SCC 603
Darshan Singh vs. State of Punjab(2010) 2 SCC 3

Bibliography

Code of Criminal Procedure, B.B.Mitra, 21st edition, Kamal Law House Kolkata, Vol 1
Indian Penal Code, B.M. Gandhi's Fourth Edition
R.V. Kelkar's Criminal Procedure
Ratanlal & Dhirajlal, Commentary on The Code of Criminal Procedure, 18th enlarged Ed, Vol.1
Ratanlal & Dhirajlal, Law of Crimes, Enlarged Edition
Takwani, Criminal Procedure, 3rd Ed. Lexis Nexis
The Code of Criminal Procedure, by Batuklal
The Code of Criminal Procedure, S.N.Misra, Central law Publication.

ELEMENTS OF CRIME Actus non facit reum, nisi mens sit rea

noreply@blogger.com (Adv. Zeenat Khan) — Mon, 24 Jan 2022 21:32:00 +0000

Element of crime

ELEMENTS OF CRIME

The two essential ingredients constitute an offence as per the provision of the IPC. "Actus non facit reum, nisi mens sit rea".
The principle "actus non facit reum, nisi mens sit rea" and the importance of Mens Rea in criminal offences.

Table of content.

Introduction
Meaning of actus reus.
Meaning of mens rea.
Mens rea under the Indian penal code,
Strict liability
Caselaw
Conclusion

1. INTRODUCTION

Crime is an act committed or omitted in violation of a public law forbidding or commanding. Some criminologists define crime in terms of criminal behaviour. According to them." Crime is act that has been shown to be actually harmful to society or that is believed to be a socially harmful group of people that has the power to enforce its beliefs, and that places such act under the ban of itive penalties." The meaning of Latin maxim, actus non facit reum, nisi mens sit rea, there can no crime without a guilty mind.

To make a person criminally liable, it must be proved that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, physical elements and a mental element, usually called actus reus and mens rea respectively.

2. MEANING OF ACTUS REUS

ACTUS REUS

The word actus connotes a "deed', a physical result of human conduct. The word reus means bidden by law. The word artus reus, may, therefore, be defined as 'such result of human conduct the law seeks to prevent. The ectus reus is made up of three constituent parts, namely:

human action which is usually termed as 'conduct'
the result of such act in the specified circumstances, which is designated as 'injury, and
such an act is prohibited by law.

Haman action: conduct

The first chief characteristic of a crime is that the offender or accused is a human being. It a defined as "an event subject to the control of the will of the human being". Thus, an act means something done voluntarily by a human being. These human actions include acts of commission as Il as acts or omissions, e. g. giving a blow, failure to arrest accused, etc. For the purpose of fixing criminal liability, the act may be analyzed as consisting of three parts

its origin in some mental or bodily activity or passivity of the doer, that is, a willed movement or omission
its circumstances
its consequences

Under modern criminal law, only persons are made criminally liable. U/s. 11 of Indian Penal Code person includes any company or association or body of persons whether incorporated or not. In short, the word person includes not an only human beings, but also legal persons. There are certain offences that are also committed by legal persons though short of human limbs. Because of the development of industrialization, the emergence of new corporate jurisprudence, corporate criminal liability came into existence. Even public corporations like State will be subject to criminal liability for the criminal wrongs unless otherwise provided for.

Result of conduct

It is one of the essential to constitute the crime that there must always be a result brought about by human conduct, a physical event which the law prohibits, e. g. in case of murder the death is caused by the conduct of the accused, which is actus reus. Thus, crime is constituted by the event and not by the activity which causes the event.

Acts prohibited by law

Only those acts are crimes that are prohibited by law. Thus, no act is a crime unless prohibited by law, e. g. no crime is committed when a soldier on a battlefield shoots an enemy because the act is authorized by law. The Queen is not actus reus of crime, for there is a lawful justification for it. Similarly, no crime is committed when a person exercises his lawful right of private defence causing harm to another. In the same way, an act of omission, to be punishable must be an illegal omission of a breach of legal duty, e.g. a jailor will be guilty of murder if he starves the prisoners in charge to death

S. 32 of LP.C. provides that words referring to act include illegal omission.
S. 32 reads "every part of this Code, except where a contrary intention appears from the context words which refer to acts done extend also to legal omissions."
S. 43 defines illegal and it reads the word 'illegal' is applicable to everything which is an offence of which is prohibited by law, or which furnishes ground for a civil action, and a person is said to be "legally bound to do whatever it is illegal in him to omit.
S. 33 Act' 'Omission' - The word act' denotes as well as a series of acts as a single act; the word 'omission denotes as well as a series of omissions as a single omission. S. 36 Effect caused partly by act and partly by omission Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence.

Illustration

A, intentionally causes Z's death, partly by illegally omitting to give Z. food, and partly by heating / A has committed murder.

Illustrations of omission' to do acts amounting to crimes.

There are certain omissions for which IPC expressly provides

Omission to produce documents, S. 175.
Omission to give notice of information, S. 176.

(These two omissions are made crimes if done by persons who are bound)

Omission to assist a public servant, S. 187. JV)
Omissions on the part of a public servant to apprehend, S. 221 and 222.

3. MEANING OF MENS REA:-

MENS REA

Actus reus refers to the physical aspect in a crime. Besides this, there is a mental element in a crime. Thus, crime consists of actus reus plus mens rea. This can be seen from the maxim. "Actus non facit reum nisi mens sit rea".

Mens rea is a technical term, generally taken to mean some blameworthy mental condition. whether constituted by intention, knowledge or otherwise. There must be a mind at fault to constitute a crime. No act per se criminal, the act becomes criminal when the Actor does it with a guilty mind, c. g. causing injury to the assailant in self-defence is no crime, but the moment injury is caused with intent to take revenge, the act becomes criminal. In the same way, shooting in the air is not a crime but shooting with the intent to kill a man is a crime.

Mens rea is a wider concept. It includes intention, motive, knowledge, recklessness and negligence, etc., which are often used to indicate the different possible mental attitudes constituting actus reus of a particular crime. "Guilty mind" is an intention to do that which one knows to be wrongful or prohibited by law. Where a person does a wrong, he is a wrongdoer. It is that condition of mind that attracts liability.

Glandwill Williams says that a guilty mind implies

The conduct is voluntary and,
There should be an intention to produce evil consequences or recklessness in mens rea it is necessary to have a clear conception of words like producing them that the conduct is voluntary and. To appreciate the meaning of intention, motive, knowledge, recklessness, negligence, etc. which are often used to indicate the different possible mental attitudes are conditions constituting the actus reus of a particular crime.

1. Intention-

Intention means a purpose or desire to bring about a contemplated result or foresight that certain consequences will follow from the conduct of a person. For instance, if a man throws a boy from a high tower or cuts off his head, it is obvious that he desires the victim's death.
Motive Intention must be distinguished from motive. Motive is the reason or ground of an action, whereas intention is the violation or active desire to do an act. In other words, the intention is an operation of a will directing an open act, while motive is the feeling that prompts the operation of the will the ulterior object of the person willing.

e.g., A kills B. The intention was to cause death and the motive was to remove political rivalry.

Thus, the motive is an ulterior object for which the act is done. One can find out the motive of a person by asking why he did that act and the intention of a person by asking how he did it. Motive is not a basis for criminal liability- Criminal law takes into account only a man's intention and not his motive A good motive will not render lawful that is in fact a crime. If a man steals food in order to feed his starving child, the act amounts to theft, though the fact that motive behind the act is to save the life.

Knowledge - Intentions is also distinguishable from knowledge. An intention to commit an offence may be inferred from knowledge, though, at times, intention and knowledge merged into each other. Knowledge is the awareness of the consequences of an act. A man may be aware of the consequences of the act, though he may not intend to bring them about, c. g. An attack by a tiger calls out to B to fire in order to save him. B fired and caused the death of A. B is not liable for A's death because the act was not intentional.

Recklessness - It is a state of mind of a person who foresees the possible consequences of his conduct, but acts without any intention or desire to bring them about. In other words, recklessness is an attitude of mental indifference to obvious risk, c. g. driving at high speed through a narrow and crowded lane is a reckless act., c. g. Salman Khan caused death by driving a car with recklessness.

Negligence - Negligence is used to denote want of care and precautions, which a reasonable man would have taken under the particular circumstances of the case. It is a state of mind of a man, who pursues a course of conduct without adverting at all to its consequences. In crimes. negligence, unlike in the case of torts, is not the basis of liability in general. It is only in a few cases that IPC fixes criminal liability on the ground of negligence, for instance, if a man affects the life, or personal safety of others, such as in case of rash and negligent driving, etc.

4. MENS REA UNDER THE INDIAN PENAL CODE

The doctrine of meus rea has no application to the offences in the general Code, unlike the common law. The framers of IPC have not mentioned mens rea the Code. However, the doctrine has been incorporated in two ways.

The provisions as the state of mind required for a particular offence have been added in the section itself by using such words as "intentionally", knowingly, voluntarily, fraudulently, and dishonestly, etc. depending upon the gravity of the offence. Therefore, it is said that there is no room for the doctrine of mens rea in the Indian Penal Code.
The concept of mens rea has been incorporated into the proviso is relating to general exceptions 2 in Chapter of the Code.

5. STRICT LIABILITY

The legislature may pass an Act that whoever commits a wrong whether knowingly or unknowingly should be punished. In such cases, even though there is no mens rea, they are punished. These are the cases of absolute or strict liability. Generally, public welfare offences or regulatory offences come under strict liability, e. g. selling adulterated goods, violating licensing laws.

A general rule is that mens rea applies to all criminal offences but it is subject to certain exceptions. In other words, in some exceptional circumstances, a person is held responsible for his criminal act even though there was no mens rea. Such offences to term as offences of strict liability or absolute liability. The doctrine of mens rea not applicable

The acts are not criminal in any real sense but are of quasi-criminal nature and are prohibited in the public interest under penalty, e. g. social and economic offences, offences relating to food and drugs
The second category includes the cases of public nuisance, libel and contempt of courts.
The category includes cases in which the proceeding is criminal. It is really a mode of enforcing a civil right,

e. g., cases of violation of municipal law and regulations

6. CASE LAW

case law

i) Crown V. Prince (1875) LR 2 CCR 154 (HL):

Henry Prince took an unmarried girl named Annie Philips out of the possession and without the consent of her father. She was under 14 but looked very much older than 16. She told Prince that she was 18. Prince's defence was that when he took her, he believed her on reasonable grounds to be - 18. Held he was guilty u/s 55 of the Offences against the Person Act, 1861 which states Whoever shall unlawfully take or cause to be taken any unmarried girl being under the age of 16 years out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her shall be guilty of a misdemeanour.

On a case being reserved for crown cases, by a majority of fifteen to one, the court was of opinion that the conviction was correct. It was proved that the accused believed on reasonable grounds that the girl was above sixteen (eighteen years old) and the jury found upon reasonable evidence that before the accused took her away she told him that she was eighteen, and that the accused bonafide believed that statement and that such belief was reasonable. The lower court convicted the accused and the House of Lords by a majority of fifteen to one, upheld the conviction.

The Court held that the accused though has not knowledge actually that the girl was above eighteen years, he knew that he was committing something immoral and herice possesses mens rea.

i) Queen V. Tolson (1889) 23 (QBD 168(HL):

In 1888, the prisoner Martha Ann Tolson was convicted of bigamy at the court of Assizes at Carlisle. The marriage of the prisoner to Tolson took place on 11 September. 1880, that Tolson deserted her on 13 December 1881; and that she and her father made inquiries about him and learned from his elder brother and from general reports that he had been lost in a vessel bound for America. which went down with all hands-on board. On 10 January 1887, the prisoner, supposing herself to be a widow, went through the ceremony of marriage with another man. The circumstances were all known to the second husband, and the ceremony was in no way concealed. In December, 1887, Tolson returned from America

Stephen J. directed the jury that a belief in good faith and on reasonable grounds that the husband of the prisoner was dead would not be a defence to a charge of bigamy. The jury convicted the prisoner, stating, however, that they thought that she in good faith and on reasonable grounds believed her husband to be dead at the time of the second marriage, and the judge sentenced her to one day's imprisonment.

The Court for Crown cases, by a majority of nine to five, quashed the conviction. It was held that she bonafide believed that her husband be dead, she has no mens reu. An innocent act always makes a defence in the common law.

i) Supreme Court of India in Director of Enforcement V. M.C.T.M., Corporation Pvt. Ltd. & Others, AIR 1996, SC 1100,

Observed that mens rea is a state of mind. Under Criminal Law 'mens rea' is considered as the 'guilty intention' and unless it is found that the accused had the guilty intention to commit the crime, he cannot be held guilty of committing the crime.

7. CONCLUSION

Thus, actus and mens rea are the two basic elements to constitute a crime. No act per se is criminal. The act becomes criminal when the actor does it with a guilty mind. The concept of the guilty mind is very wider. It includes intention, motive, knowledge, recklessness negligence etc. A guilty mind is an intention to do that act which he knows to be wrongful or prohibited by law.

SUGGESTED READINGS -

Ratanlal and Dhirajlal. Indian Penal Code

K.D. Gaur. A textbook on The Indian Penal Code

PS. A. Pillai. Criminal law

Mishra S. N, The Indian Penal Code

T. Bhattacharya The Indian Penal Code

REFERENCES -

i) Basu's queue. Indian Penal Code - Vol. 1 and 2.

ii) Dr Srillari Singh Gour's. Penal Law of India, Vol. 1 to 4.

iii) Gaur K.D., Criminal Law Cases and Materials

iv) Jaspal Singh. The Indian Penal Code

v) Kenny's. Outlines of Criminal Law.

vi) 6.. R.C. Nigam. Principles of Criminal Law.

Nature, Scope, Definition of Jurisprudence.

noreply@blogger.com (Adv. Zeenat Khan) — Sat, 22 Jan 2022 13:24:00 +0000

NATURE SCOPE AND DEFINATION OF JURISPRUDENCE

NATURE, SCOPE AND UTILITY OF JURISPRUDENCE

Define Jurisprudence, the importance and scope of Jurisprudence?
The nature and scope of jurisprudence - Key to the science of jurisprudence is an analysis of the first principles of law?

Table of content

1. Introduction

2. Meaning of Jurisprudence

3. Definition of Jurisprudence

4. Scope of Jurisprudence

5. Contents or subject matter of Jurisprudence

6. Utility of Jurisprudence

7. Relation of Jurisprudence with other social science

8. Conclusion

9. Recommended books and reading

1. INTRODUCTION

The word. jurisprudence has been derived from the Latin word jurisprudentia, which means a "knowledge of low" The word "Juris" means law and "prudential" means knowledge, science or skill Thus jurisprudence signifies knowledge or science of law and its application. In this sense, jurisprudence covers the whole body of legal principles in the world. It could be seen that in England, in the formative era of common law, the term, "jurisprudence"

It could be seen that in England, in the formative ERA of common law, the term “Jurisprudence” was being used in a generic sense to include the study of various facets of laws. At the beginning of the 19th century, theories propounded by Bentham and Austin gave a definite meaning to the term Jurisprudence.

The impression of law has assumed different meanings at different times. There cannot be a commonly agreed definition of the law. The growth and development of law in different countries has been simultaneous and under different social and political conditions. The word "law" used in different contest convey different meanings. With the evolution of society being of a dynamic nature, it is very difficult for a definition of low to get recognition of all the legal systems.

By Thermos (Thermos) - Own work, CC BY-SA 2.5,

The perception of the law has a long history of evolution beginning from the classical Greek period to 21st-century modern jurisprudence with several changes in its nature in various stages of our evolution. The rapid changes in modern times have given me new problems and issues, which are to be tackled by law through a practical approach in interpreting the law. While doing so, jurisprudence has to take into consideration the socio-economic and political conditions, changing pattern for the society which has widens its scope as a source of law.

2. MEANING OF JURISPRUDENCE

As seen above jurisprudence in its widest sense means "knowledge of the law" but in its limited sense, it means evolution and explanation of general principles upon which actual rules of law are based. It is mainly concerned with the rules of external conduct which people are compelled to obey. Therefore, sometimes it is said that jurisprudence is the science that gives us knowledge about "law" but the term "law" we always use in its abstract sense i.e., not in the sense of concrete statutes but the sense of principles underlying law.

Thus, for example, there are various branches of law existing in the modern legal system such as contract, torts, crime, trust, properties, companies, labour etc. In jurisprudence, we have to study the basic principles of each of these branches and we are not concerned with the detailed rules of these laws.

We, definitely study these laws in detail when we study those branches of law separately. Jurisprudence examines the general principles of law therefore jurisprudence may be considered to be the study and systematic arrangement of the general principles of law.

Jurisprudence in its other sense may be regarded as the philosophy of the law dealing with the nature and the function of the law. In modern times the term "jurisprudence" often is used because of the rapid social changes, as functional jurisprudence. So far India is concerned, the Indian jurisprudence has its origin in the ancient concept of Dharma which was considered to be the best way to discipline the mind of human beings.

The practice of Dharma enabled citizens to have a sense of discipline in conducting themselves in the society which brought about peace and prosperity in the society. However, as social progress, the concept of law has changed radically. India, being a welfare State, a new Indian jurisprudence needs to be developed to ensure that law becomes an effective instrument to bring social change. Law plays a significant role in sustaining a stable social order. It has to play the functional role of harmonizing the conflicting interest of individuals in society by balancing the interest between the freedom of individuals on one hand and social welfare on the other hand.

3. DEFINITION OF JURISPRUDENCE

The term "jurisprudence" has been defined differently at different times because of different methods of inquiry and approaches to the study of the subjects. Some of the definitions of the term Jurisprudence" given by various eminent jurists as under

1. Julius Stone - "jurisprudence is lawyer's extraversion". It means jurisprudence involves the examination of precepts, ideas and techniques of law by lawyers in the light of disciplines other than the law.

2. Ulpian -"jurisprudence means knowledge of the law" He was a Roman jurist who defined Jurisprudence as, "the observation of things, human and divine, the knowledge of just and unjust

3. Gray-"Jurisprudence is the science of law, the Statement and systematic arrangement of the rules followed by the Courts and the principals involved in those rules”

4. Salmond- Jurisprudence is the science of the first principles of the civil law." Civil law consists of rules applied by Courts in the administration of justice.

5. Austin - "Jurisprudence is the philosophy of positive law "He was the first justice to make jurisprudence a science. He emphasized that positive law is only proper law as it is given by political superior having the power to make it.

6. Holland - "Jurisprudence is the formal science of positive law According to hum jurisprudence should only concern itself with the basic principles of concepts underlying in any Meaning of Jurisprudence natural system of law.

7. Dr Allen - Jurisprudence is a scientific synthesis of the essential principles of law.

8. H.L.A. Hart - A legal system consisting of primary and secondary rules. These rules explain the nature of law and provide a key to the science of jurisprudence. He viewed jurisprudence as a science of law in a border perspective by co-relating law and morality.

9. Roscoe Pound - "Jurisprudence is a science of law, a body of principles recognized and enforced by public and regular tribunals in the administration justice." He concentrated on the functional aspect of law and the impact of law and society on each other.

10. Dr M.J. Sethna - Jurisprudence is a study of fundamental legal principles including their philosophical, historical and sociological bases and analysis of legal concepts.

From the above-discussed definitions of various jurists, it is pertinent to note that there is no commonly agreed definition of jurisprudence. Each jurist is guided by his conscience but since the conception of the term law till the beginning of the 20th century, a new approach to the study of law about society is given. Some jurist, therefore, treats law as "social engineering" an instrument to bring social change. Thus, the function of law is a supplement to social sciences.

4. SCOPE OF JURISPRUDENCE

In jurisprudence, we mainly study the nature of law, which includes its definition, classification, its nature and purpose, the nature of rights and duties the other questions related to it. Jurisprudence includes all concepts of human order and human conduct in State and society.

According to Justice P.B. Mukherjee, "jurisprudence is both an intellectual and idealistic abstraction as well as the behavioural study of man in society. It includes political, social, economic and cultural ideas. It covers the study of a man about State and society."

According to the great jurist Radcliffe, "jurisprudence is a part of history, a part of economics and sociology, a part of ethics and philosophy of life.

Salmond observed, "in jurisprudence, we are not concerned to derive rules from authority and apply them to the problem, we are concerned rather reflect on the nature of legal rules, on the underlying meaning of legal concepts and the essential features of the legal system."

5. CONTENTS OR SUBJECT-MATTER OF JURISPRUDENCE

Following are the contents of jurisprudence –

1. Sources - The basic features of the legal system are mainly to be found in its authoritative sources and the nature and the working of the legal authority behind these sources. Hence, they become the content of jurisprudence. It includes the study of sources of law such as custom, legislation and precedent, the merits and demerits of codification of laws. method of judicial interpretation and reasoning, an enquiry into the administration of justice etc.

2. Legal concepts - It includes analysis of legal concepts such as rights, obligations, property, ownership, possession, acts, negligence, legal personality and the related issues. The study of these abstract legal concepts furnishes a background for a better understanding of law in its various forms.

3. Legal Theory - Legal theory also constitutes one of the components of jurisprudence. Legal theory is concerned with law as it exists and its function the society, how the law is made and enforced and also the influence of social opinion and law on each other. The legal theory also relates law with other branches such as religion, philosophy, ethics, politics etc. and pursue its study in a wider social perspective.

The legal theory comprises the philosophy of law. It seeks to examine and analyze the philosophical contents of law. It attempts to answer what is the law to clarify, most of the legal concepts. Legal theory is one aspect of jurisprudence, Jurisprudence covers a wider field of study. It involves an investigation of law, whereas legal theory is an attempt to answer what is the law.

6. UTILITY OF JURISPRUDENCE

There is always confusion as to the practical utility of jurisprudence as a subject, as it is said that jurisprudence is an abstract and theoretical subject but this view is rejected by various jurists Salmond pointed out that jurisprudence has its intrinsic interest like any other subject. The legal research on jurisprudence may well have an effect on contemporary socio-political thought and at the same time may themselves be influenced by these ideologies. Jurisprudence has its practical applicability. It seeks to rationalize the concepts of law which enable us to solve different problems. Moreover. jurisprudence has great educational value.

The logical analysis of legal concepts widens the outlook of the lawyers and sharpens their logical technique. Holland observed that jurisprudence throw light on the basic ideas and the fundamental principles of law in a given society. Therefore, some of the jurists call it, "the eye of law."

Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of laws passed by the legislatures by providing the rules of interpretation. It furnishes them to find out the lacunae, shortcomings and defects in the laws framed by the legislatures. The defect can be cured through their judicial interpretation. The study of jurisprudence helps the students in rationalizing their thinking and prepares them for an upright civil life. The knowledge of the law and legal precepts helps them to face the exigencies of human life boldly and courageously.

Jurisprudence is helpful to legislators who play a vital role in the process of law-making. The study of jurisprudence helps them to understand the technicalities of the law and legal precept and thereby make their job easy and interesting.

According to R. W.M. Dias, the study of jurisprudence provides an opportunity for lawyers to bring theory and life into focus, for it concerns human thought about social existence.

7. RELATION OF JURISPRUDENCE WITH OTHER SOCIAL SCIENCES

Jurisprudence is closely interrelated with other social sciences since all of them are concerned with human behaviour in society. Dean Roscoe Pound who propounded the theory of law as a "Social Engineering pointed out that jurisprudence is closely inter-related with ethics, economics, politics and sociology. All the social sciences must coordinate with jurisprudence to make it a functional branch of knowledge

1. Jurisprudence and Ethics: -

Ethics deals with human conduct and lays down the ideas of human behaviour It relates to morality and public opinion which changes from place to place, time to time and person to person. Public opinion and morals go on changing with social evolution, culture and development. Jurisprudence deals with positive morality since the law is considered an instrument to regulate human conduct in society. Some of the jurists like Dr M.J. Sethna has pointed out that the laws of communities are reflected in their culture, ideology and social norms. Hence ethical value cannot be excluded from jurisprudence.

2. Jurisprudence and Psychology: -

Psychology is a branch of knowledge concerned with the working of mental faculty Jurisprudence is mainly concerned with human action and it is the human-made which controls human actions. Thus, there is an inter-relation between psychology and jurisprudence. Psychology plays a dominant role in the study of criminology and penology. The psychology of the offender is one of the important factors in deciding the nature of the punishment of the convicted person. The legal concept such as negligence, intention, motive, recklessness, mens rea etc, deals with the faculty of mind and therefore they form a part of a study of psychology as also the jurisprudence.

3. Jurisprudence and History: -

We could appreciate the present law and legal system by taking into consideration its past historical evolution. Therefore, there is a close interconnection between history and jurisprudence History consists of the study of past events. Thus, to understand the Constitutional jurisprudence of a country, it is necessary to look into its past Constitutional history.

4. Jurisprudence and Sociology: -

To some extent sociology also includes the study of a part of the law, for example, criminology relates to both sociology and law. Jurisprudence includes in its ambit the sociology of law, that is the practical functioning of law in society. Sociology, as well as the study of jurisprudence, is concerned with the regulation of human conduct in society hence both are closely related.

5. Jurisprudence and Economics: -

Economics being a science of money and wealth and jurisprudence a science of law, both are related closely, Economics deals with the production and distribution of wealth for satisfying human wants. It is one of the main factors for the incidence of crime. Many laws try to regulate the economic activities of mankind. For example, laws relating to banking, companies, negotiable instruments, consumer protections, the ceiling of lands and wealth, payment of wages, bonuses, etc. are made to regulate one or the other activity of a man in the society. The ultimate aim of economics, as well as jurisprudence, is to improve the standard of life of the people for the welfare of the community as a whole.

6. Jurisprudence and Politics: -

Political science deals with the principles governing the organization. The state is a politically organized society that makes laws for the good governance of the people. Politicians are the representatives of the people and law-making organs of the government. It reflects on the relationship of jurisprudence with politics.

7. Comparative Jurisprudence: -

Comparative jurisprudence implies a comparative study of laws in the legal institution of two or more legal systems in different countries of the world. Prof. Gutteridge has rightly stated that." comparative jurisprudence is a term we suggest the use of the comparative method as a tool to find our differences and similarities between the different legal systems. It includes a comparison of precepts. doctrines and legal institutions which are found in a different system of law. The importance of comparative jurisprudence lies in the fact that it enables a country to know about the shortcomings of its legal system and it can be cured through the method of comparison.

7. CONCLUSION

Jurisprudence means knowledge of law or science of law. It signifies knowledge or science of law and its applications. It covers the whole body of legal principles in the world. The concept of law has assumed different meanings at different times. There cannot be a commonly agreed definition of the law. In Jurisprudence, we mainly study the nature of law which includes its definition, classification, its nature, purpose, the nature of rights and duties and other questions related to it. Jurisprudence includes all concepts of human order and human conduct in state and society.

Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of laws passed by legislatures by providing the rules of interpretation. The defect in the law can be cured through their judicial interpretation Jurisprudence is closely interrelated with other social sciences since all of them are concerned with human behaviour in society.

A. Recommended books and reading: -

1. Fitzgerald PJ. Salmond on Jurisprudence
2. Dias, Jurisprudence
3. Sethna MJ. Jurisprudence
4. Mahajan V D, Jurisprudence and Legal Theory
5. Tandon M P. Jurisprudence
6. Dhyani S N. Jurisprudence and Legal Theory
7. Paranjpe, Jurisprudence

LLB Subjects, Syllabus, for Entrance exam, Books 2022-23

noreply@blogger.com (Adv. Zeenat Khan) — Fri, 21 Jan 2022 17:24:00 +0000

LLB or Lex Legum Baccalaureus is popularly known as Bachelor of Law

LLB or Lex Legum Baccalaureus is popularly known as Bachelor of Law.

LLB is a three-year law degree course in India. This course is specially curated for the aspirants willing to make a career in the field of legal studies and research. This course not only helps an individual to have better judgment of things but also develops skills like problem-solving, etc.

To be fully eligible for the LLB course, individuals must have 45% in their higher secondary level from any recognized board. Admissions to LLB courses are offered generally through entrance exams like CLAT, TS LAWCET, AILET etc.

The course revolves around popular LLB subjects like Labour law, Family law, Crime Law of Tort & Consumer Protection Act, Constitutional Law, Legal Writing Arbitration, Conciliation and Alternative Dispute Resolution System, etc.

Throughout the course, individuals not only study theoretical aspects of law and legal structure but also experience various court trials and sessions, seminars and internships.

There are plenty of colleges offering LLB in India, and some of the top national universities include National Law University, New Delhi, Delhi University, BHU, Symbiosis Law School, etc. The average cost to study this program ranges from INR 1 to 2 lakhs.

Table of Contents:-

LLB Syllabus.
LLB Optional Subjects.
LLB Subjects.
LLB Books.

1. LLB Syllabus

Semester 1	Semester 2
Labor Law	Family Laws II
Family Law I	Law of Tort & Consumer Protection Act
Criminal law	Constitutional Law
Women & protect of woman Law	Professional Ethics
Semester 3	Semester 4
Law of Evidence	Jurisprudence
Human Rights & International Law	Practical Training - Legal Aid
Environmental Law	Property Law including the transfer of Property Act
Arbitration, Conciliation & Alternative	International Economics Law
Semester 5	Semester 6
Civil Procedure Code (CPC)	Code of Criminal Procedure
Interpretation of Statutes	Company Law
Legal Writing	Practical Training - Moot Courtland
Land Laws including ceiling and other local law practical practical practical practical practical	Practical Training II - Drafting
Administrative Law	Criminology

2. LLB Optional Subjects

Some of the optional LLB subjects are mentioned as follows:

Contract
Trust
Women & Law
Criminology
International Economics Law

3. LLB Subjects

From different types of law to teaching legal methods and writings, the course covers all the major LLB subjects throughout the course

Tabularized below are some of the core LLB subjects, which helps the students to get a complete understanding of the profession.

English (Communication)	Legal Methods	Principles of Economics
Jurisprudence	Law of TORT including Consumer Protection Laws and M. V. Act	Criminal law economic.
Economic Development and Policy	Political Science: An Introduction	Law in Changing Society: Contemporary Issues and Prospects
Civil Procedure Code and Limitation Act	Sociology: An Introduction	Family Law
Law of Evidence	Drafting Skills (Law of Pleadings in Civil Matters)	Property Law
Administrative Law	Labour and Industrial Law	Law of Taxation
Merger and Acquisitions	Copyright Law, Prospects and Protection	Law on Education
Financial Market Regulation	Penology and Victimology	Law of Trademarks, Design, and Practice
Contract Law	Constitutional Law	Corporate Law

4. LLB Books

Some of the LLB books to help you understand critical legal topics like Criminal law, Law of Taxation.

Name of the Book	Author
Law of Contract and Specific relief	Dr. Avtar Singh
Introduction to Arbitration	Mallika Taly
Company Lawler	Dr. Avtar Singh
Environmental Law	Prof. Satish C. Shastri
International Law	Dr. Gurdip Singh
Business Lawler	Dr. Avtar Singh
Legal History- Evolution of Indian Legal System	Nilakshi Jatar
Banking Law	Bimal N. Patel, Dolly Jabal
An Introduction to Tort Law, 2nd ed, 2006, Oxford University Press.	Tony Weir

Post successfully completing LLB, ample opportunities open up for these graduates in the industries like Law firms, MNCs, Government Agencies, Judicial Bodies etc. Every year top recruiters Khaitan & Co., DSK Legal, Anand & Anand, etc not only hire these candidates for various legal posts but also offer average salaries ranging from INR 4 to 6 Lakhs.

Thank you.

For more information please feel free to contact us.

What is Law?

noreply@blogger.com (Adv. Zeenat Khan) — Tue, 18 Jan 2022 21:25:00 +0000

What is LAW?

What is Law?

In simple words, we can understand that Law is a set of rules, made for the people by the people to bring peace and harmony to their lives. It is a binding custom or practice of a community or state.

It is a set of norms and guidelines including contract laws, regulatory laws, prohibition laws, personal laws etc. To balance the damage done by the victim against the person and society in general.

It is created and enforced by the bodies that have the power to enforce the law. These bodies may be corporate, social, or governmental institutions. It has been variously described as a science and the art of justice.

State-enforced laws can be made by a group legislature or by a single legislator, resulting in statutes; by the executive through decrees and regulations; or established by judges through precedent, usually in common law jurisdictions.

Private individuals may create legally binding contracts, including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation.

The creation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people

How can we define Law?

Law is defined as, “a set of special legal rules, enforceable by the courts, regulating the government of the state, the relationship between the organs of the state and relationship or conducts subjects towards each other.” It is a body of rules made by the legislature.

Various Definitions of Law:-

There are broadly five definitions of Business Law.

1. Natural School

In the natural school of thought, a court of justice decides all the laws. There are two main parts to this definition. One, to actually understand a certain law, an individual must be aware of its purpose. Two, to comprehend the true nature of law, one must consult the courts and not the legislature.

2. Positivistic Definition of Law

John Austin’s law definition states “Law is the aggregate set of rules set by a man as politically superior, or sovereign to men, as political subjects.” Thus, this definition defines law as a set of rules to be followed by everyone, regardless of their stature.

Hans Kelsen created the ‘pure theory of law’. Kelsen states that law is a ‘normative science’. In Kelson’s law definition, the law does not seek to describe what must occur, but rather only defines certain rules to abide by.

3. Historical Law Definition

Friedrich Karl von Savigny gave the historical law definition. His law definition states the following theories.

Law is a matter of unconscious and organic growth.
The nature of law is not universal. Just like language, it varies with people and age.
Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness because of customs.
Law has its source in the common consciousness of the people.
The legislation is the last stage of lawmaking, and, therefore, the lawyer or the jurist is more important than the legislator.

4. Sociological Definition of Law

Leon Duguit states that law is “essentially and exclusively as a social fact.”

Rudolph Von Ihering’s law definition. – “The form of the guarantee of conditions of life of society, assured by State’s power of constraint.”

This definition has three important parts.

One, the law is a means of social control.
Two, the law is to serve the purposes of society.
Three, law due to its nature, is coercive.

Roscoe Pound studied the term law and thus came up with his own law definition. He considered the law to be predominantly a tool of social engineering. Where conflicting pulls of political philosophy, economic interests, and ethical values constantly struggled for recognition. Against a background of history, tradition and legal technique. Social wants are satisfied by law acting which is acting as a social institution.

5. Realist Definition of Law

The realist law definition describes the law in terms of judicial processes.

Oliver Wendell Holmes stated – “Law is a statement of the circumstances in which public force will be brought to bear upon through courts.”

According to Benjamin Nathan Cardozo who stated “A principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged, is a principle or rule of law.”

As the above law definitions state, human behaviour in society is controlled with the help of law. It aids in the cooperation between members of society. Law also helps to avoid any potential conflict of interest and also helps to resolve them.

What is a Court Display Board?

noreply@blogger.com (Adv. Zeenat Khan) — Tue, 18 Jan 2022 00:18:00 +0000

What is a Court Display Board?

The Court Display Board is a live tracker in a paper form or in a digital form that lets you know which matter is being heard in which Court Room of the Hon'ble Court. The Court board is also known as the cause list.

The court display board gives information of the matters that may be either proceeded through physical hearing or through video conferencing. It consists of all the regular daily matters that will be kept for proceeding for the current day's agenda of the concerned court, it shows information related to the case status and information about the case like Who is the accused and complainant, who is the prosecution and defendant.

It simply states that the matter is on serial number 1,2,3... and will be heard by which court. In the sessions court, the court display board functions under the eCourt project in this judgeship to facilitate litigants and lawyers for knowing their called out cases status through the display board screen.

EG:

Court number
Coram
Sr.no
Case status

Once an individual is aware of the Sr.no of case matter then he can address the hon'ble court by simply telling the serial number of the matter.

Matters are displayed according to the status of the matter eg if it is kept for cross, argument, ready, unready etc.

The court calls up the matter for adjudication according to the display board of the court. The individual needs to be present before the hon'ble court as soon as the matter is called by the court.

What Is an Easement?

noreply@blogger.com (Adv. Zeenat Khan) — Mon, 17 Jan 2022 22:55:00 +0000

What Is an Easement?

An easement, or an easement agreement, is a real state concept that defines a scenario in which one party uses the property of another party, where a fee is paid to the owner of the property in return for the right of easement. Let's say for example the right of way, the right to air or right to light, the right to build, the right to the uninterrupted flow of water. All these are known as examples of a property owner's easement rights.

Definition of the easement.

An easement" defined. -An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain another land not his own.

These are Examples of easements as follows:-

A as the owner of a certain house, has a right of way over his neighbour B's land for purposes connected with the beneficial enjoyment of the house. This is an easement
A, as the owner of a certain house, has the right to go on his neighbour B's land, and to take water for the purposes of his household out of a spring therein. This is an easement.
A, as the owner of a certain house, has the right to conduct water from B's stream to supply the fountains in the garden attached to the house. This is an easement.
A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B's field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C's tank, or timber out of D's wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees on E's land.

An easement is in no way a transfer of property. It could be made, altered, or released as well and should always be in a written form, except when it has been enjoyed for a very long time without restrictions. A written document helps either party to challenge it in a court of law.

The types of immovable properties judicially recognized in India.

noreply@blogger.com (Adv. Zeenat Khan) — Mon, 17 Jan 2022 21:09:00 +0000

What is immovable property and the incidents of immovable property which are judicially recognized in India?

Synopsis:-

Introduction
Definition of immovable property
Incidents of Immovable property recognized judicially
Case laws
Conclusion

1) Introduction:-

The transfer of property Act 1882 is enacted to Define and amend the law relating to transfer of property by Act of parties and not to transfer by operation of law. This act came into force on 1st July 1882.

Objectives

a) to bring the rules which regulate the transmission of property between living persons into harmony with rules

b) to complete the code of contract law, so far as it relates to immovable property

The transfer of property at is a substantive law establishing the right and duties of the parties under transaction, i.e transfer and not a procedural law. Therefore it has no retrospective effect. Some of the principal of this art are based on principle Justice equality and good conscience.

2) Definition of immovable property:-

Section 3 of transfer of property Act 1882 defines the term immovable property as:-

it provides in this Act unless there is something repugnant in the subject or context-

immovable property does not include standing Timber growing crops or grains.

The definition of immovable property given in this section is not exhaustive. It simply says: immovable property does not include standing Timber, growing crops or grass. The definition of immovable property in the General Clause Act 1897 Section 3 (26) is also not exhaustive.

That Definition is as follows:

Immovable property shall not include land, benefits to arise out of land, and things attached to the Earth all permanently fastened do something attached on Earth.

The definition of immovable property in the general Clauses Act, 1897 applies to transfer of property Act, the transfer of properties at exclude certain things while the general Clause Act includes certain things in the definition of immovable property. If we read both the definitions of immovable property. If we read both the definition then the term immovable property includes 1) land, 2) benefits arise out of land, 3) things attached to the Earth; except standing Timbers, growing crops and grass.

The definition of immovable property under Section 3 of Indian registration act 1908 is more adequate and appropriate which leads as under:-

immovable property includes land, buildings, hereditary allowances, right to ways, lights, ferries, fisheries or any other benefits to arise out of land and things attached to the Earth but does not include standing Timber green crops or grass.

The definition of immovable property given in this three statutes give no guidance as to what is meant by attached and permanently fastened.

Let's see various aspect in the definition:-

a) land-

The term land includes the following elements:-

It determinate portion of the surface of the Earth
The ground beneath the Earth
All objects which are on or under the surface in its natural states including mineral, lakes, ponds, and river within its boundary
All objects placed by human Agency on or under the surface wedding intention of permanent annexation including thereby buildings, walls and fences.

b) Benefits to arise out of land-

Every benefit arising out of immovable property and every interest in such property is also regarded as immovable property. The Indian registration Act, expressly include benefit to arising out of land heredity allowances right of way lights ferries and fisheries. In the definition of immovable property. A debt secured by mortgage of immovable property is an interest in the land, is, therefore, regarded as immovable property. The right to collect lac from the trees, a right to take minerals, rent from Marketplace or house are instance benefits to arise out of land hands, regarded as immovable property.

c) Things attached to the Earth-

The term attached to the Earth includes:-

Things rooted in the Earth- it includes such things as trees or as shrubs such as standing timber. Trees and shrubs once cut off becomes movable property. if the intension is to use them for the purpose of enjoying their fruits, they will be regarded as immovable property.
Things imbedded in the Earth- It includes houses and buildings. An anchor imbedded in the land to hold a ship is not immovable property. Thus, what is imbedded in the earth depends upon the circumstance of each case. Things imbedded must be for the permanent beneficial enjoyment of that thing to which it is attached e.g. :- The doors and windows of the house are attached to the house for permanent enjoyment of the house.
Chattel attached to the earth or building- The degree, manner, extent and strength of attachment of the chattel to the earth or building, are the main feature to be regarded. It may be a movable property attached to the earth.
Standing timbers, growing crops, grass - These are regarded as severable from the land on which they stand and therefore they are not included in the term immovable property.

3) Ingredients of immovable property recognized judicially:-

The following have been judicially recognized as a immovable property-

Right to collect rent of immovable property,
Right to collect dues from affair on piece of land,
Right to Ferry,
Right of way,
Right of Fishery, i.e the right to catch and carry away the fish,
A debt secured by mortgage of immovable property,
hereditary offices,
right to receive future rent and profit of land,
The equity of redemption,
A factory,
The right to collect lac from trees,
The interest of a mortgagee in immovable property,
Reservation in property leased.

But the following are not immovable property

Right of worship,
A royalty,
a degree for sale of immovable property,
I right to recover maintenance allowance,
Machinery which is not permanently attached to the Earth,
Government promissory notes,
Standing Timber growing crops and grass.

4) Case law:-

a) Perumal vs. Ramaswami, AIR 1963 Mad. 346.

Court Held that the attachment of oil engine to earth is a fixture, is for the beneficial enjoyment of the engine itself and in order to use engine, it has to be attached to the earth and attachment lasts only so long as the engine is used. when it is not used it can be detached and shifted to some other place. The attachment in such case does not make the engine part of the land and hence not immovable property.

b) Shantabi vs. State of Bombay, AIR 1958 S,C 532,

Court Held that, things that rooted in the earth includes such things as trees and shrubs, but where such trees constitute standing timber they are not immovable property. But if the intention is to cut them down sooner or later for the purpose of utilizing the wood for building or other industrial purposes it would be timber and would accordingly be regarded as movable property.

c) Shiv Dayal vs. Pattu Lal AIR 1933 AIL.50.

Court held that a mortgage with possession of a fruit bearing tree with the intention that the mortgagee is to enjoy the fruit but not to fell the tree , is a mortgage of immovable property.

d) Sukry Kurdepa vs. Goondakull, 1872.

In this case judicial Holloway of Madras High Court explain the distinction between movable and immovable property. If a thing cannot change its place without injury to the Quality by virtue which it is, what it is, it is immovable. Certain things such as piece of land are in all circumstances immovable property. Other things such as trees attached to the land are, so long as they are so attached, immovable; when the severance has been effected they become movable.

5) Conclusion :-

On going through a definition of immovable property given in transfer of property Act, Indian Registration Act and general Clauses Act, the definition of immovable property includes land, benefit to arise out of land, and things attached to earth but does not include standing timber growing crops and grass. The Supreme Court of India and various High courts of States have recognized by judicial pronouncement various properties as immovable as well as movable mentioned above.

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