PAPER ON GENERAL LEGAL ISSUES IN CIVIL AND CRIMINAL MATTERS

LEGAL REFRESHER

By Ambrish Tandon Advocate

There are basicaly Two Legal Branches in Judicial System,

which is governed by two Important Codes;

First is : Civil Procedure Code,

Second : Criminial Procedure Code.

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 CIVIL PROCEDURE CODE
Acts Covered
• Specific Relief Act

• Transfer of Property Act

• Indian Contract Act

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 SPECIFIC RELIEF ACT 1963
• In this Act Two types of Rights are defined as;
• Moral Rights and Legal Rights
• Discussion on Legal Rights
• ( a ) Civil Rights ( b) Penal Rights
• In Civil Rights there are some conditions for the institution
of a suit which are as;
• ( a) Dispossession of any person
• ( b) Dispossession of immovable property
• ( c) Disposssession without due course of law
• (d) Dispossession without consent of such person
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 Contract Not Specifically Enforceable
• * Contract of no performance of which
compensation of money is adequate relief.

• * Contract which run into minute or numerous

details
• * Contract which it its value determinable
• * Contract which involves the performance of
continuous duty which the court cannot
supervise.
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 Categories of Remedies provided by the
Specifc Relief Act
• ( a ) Compensation
• ( b) Specific Performance
• (c ) Specific Performance and Compensation
• Provision As to Injunctions
Main cases are covered as , “Civil Nature”
such as Injunctions , which are Preventive ,
Perpetual Nature, Mandatory Nature and
Interlocutory Nature.
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 Temporary Injuncitons
• In operation during the pendency of the suit.
• In operation for a Specific Time
• Are in operation until furter orders

PERPETUAL INJUNCTION ARE GRANTED

* To prevent breach of obligations
* In case of invasion of plaintiff right or
enjoyment of property
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 Civil Procedure Code
• The issue which relates to Civil Nature i.e.
Immovable Property, Enforcing the Contracts,
Declaratory Suit , Partition Suit, are dealt with
Civil Procedure Code.

Civil Procedure Code has various Sections and

Orders and Rules which governs whole Civil
Procedure Code.

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 CRIMINAL PROCEDURE CODE
• The matters related to Criminal Nature are
dealt with Criminal Procedure Code.

Major Acts cover under this Act are;

• Indian Evidence Act

• Inidan Penal Code

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 Classification of General
Exception
Section 77-106 under
Indian Penal Code

Judicial act(Ss. 77,78)

Trifling Act(section 95)

Consent (Section 87,91

Absence of Criminal indent
(Ss 81-86 ,92-94)
Mistake of facts
(section 76,79)
Private Defence (Ss.96-106)
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 Mens Rea not an
essentail ingreated

Cases not criminal in any real

sense but prohibited in public
interest

Public nuisance

Cases criminal in form but

which are only a summary
mode of enforcing a Civil
Right
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 Kinds of Punishments

*Death

*Imprisonment of (Simple Or Rigorous)

life
*Imprisonment

*Forfeiture of property

*Fine
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 LAW
Substantive Procedural

LAW CAN BE
Codified Uncodified

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 Offence for Death Punishment
•Waging war of against Govt. of India (Sec. 121)

•Abetment of sucide of a minor, or as in sence

or intoxicate person (Sec. 305)

• Abetting muting actually Committed (Sec. 132)

• Dacoity accompained muder (Sec. 396)

•
• Giving or fabricating falase incidence upon which an innocent
suffer deaths (Sec. 194).

• Attempt to murder by a person under sentence of

imprisonment for life, if hurt is censed (Sec. 307)
• Murder (Sec. 302) 13
 Processes Which Insure
Appearane of a person Before
The Court

 Summons

 Warrant

 Proclamination & attachment

 Other rules

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 Type Of Trail

 Triails before a Court of - Session

 Triails of warrant – Cases by Magistrates

Triail of summons – By Magistrates

Summary trials

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 Filing of Complaint
• F I R Word is not mentioned in Cr.P. C
• F I R is Filed under section 154 of Cr. P C
• After filing F I R investigaton starts under
Section 155 by the Police Officer
• Court is empower to order for filing F I R
• Under Section 156 ( 3)
• Examination of Witness under Section 161
Cr.P.C
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Cr. P. C. Section 164 Recording of Confession
And Statement
• Any Metropolitan or Judicial Magistrate may
record any confession or statement made to him in
the course of investigation.

• Section 164 A Cr. P C Medical Examination of the

victim of Rape.

• Section167 Cr. P C. : Procedure when investigation

can not be completed in Twenty Four Hrs.
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 Section 175 OF Cr.P. C. Power to Summon
Person by Police.
• A Police Officer proceeding under section 174
may by order in writing, may summon two or
more person as aforesaid for the purpose of
investigation in the case.

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 Chapter XIV
Condition Requisite for Initiation of Proceedings
• Section 190. Cognizance of Offence by Magistrate:
• (a) Upon receiving a complaint of facts which
consatitue such offence .

• (b)Upon a Police Report of such facts;’

• (C) Upon information received from any person

other than a Police officer, or upon his own
knowledge, that such offence has been committed.
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 SANCTION
• Section 197 : Sanction of Prosecution of
Judges and Public Servants.

• Section 199 : Prosecution for defemation.

• Under the Prevention of Currption Act;
• Section 19 : It is mandatory to get sanction for
launching Prsecution against any Public
Servant
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 COMPLAINTS TO MAGISTRATE

• Section 200 Cr.P.C. : Examination of

Complainant ; A Magistrate taking cognizance
of an offence on compliant shall examine upon
oath the complainant and the witnesses

• present, if any and the substance of such

examination shall be reduced to writing an shall
be signed by the complainant and the witness
and also by the Magistrate;
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 Section 200 (a) Cr. P. C.
• If a public servant acting or purporting to act
in the discharge of his official duties or a
Court has made the complaint.

200 (b) if the Magistrate makes over the case

for inquiry or trial to another Magistrate
under section 192

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 Postponement of issue of prcess

• Section 202 Cr. P. C. Any Magistrate may

postpone the issue of oprocess against the
accused, and either inquire into the case
himself or direct an investigation to be made
by a police officer or by such other person as
he thinks fit for the purpose of deciding
whether or not there is sufficient ground for
proceeding.

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 DISMISSAL OF COMPLIANT
• Section 203 Cr. P. C.- If after considering the statements on oath of
the complainant and of the witness and the result of the inquiry or
investigation under section 202 the Magistrate is of opinion that
there is no sufficient ground for proceeding , he shall dismiss the
complaint and in every such case he shall briefly record his reasons
fo so doing.

• Section 204 Cr. P. C. Issue of Process

• If in the opinion of a Magistrate taking cognizance of an offence

ther is sufficient ground for proceeding and the case appears to be
;

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 .

• (a) a summons-case He shall issue his summons for the

attendance of the accused,
• (b) a wrrant –case, he may issue warrant .
• Section 204 (2) : filing of List of prosectuon witness
• Section 205 : Magistrate may dispense with personal
attendance of acused.
• Section 207 : Supply to the accused of copy of police
report and other documents.
• Section 209 : Committal of cae to Court of Session when
offence is triable exclusively by it.
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 Trial Before A court of Session
• A Case which relates the prosecution for more than 7
years is tried before Court of Session is call S T trial.

• Section 228 Framing of Charge

• Section 230 : Date for prosecution evidence
• Section 231 : Evidence for prosecution
• Section 232 : Acquittal
• Section 233 : Entring upon Defence
• Section 234 : Arguments
• Section 235 : Judgement of Acquittal or Conviction
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 Trial of Warrant Cases By Magistrate
• Section 238 : Compliance with Section 207

• Section 244 : Evidence for Prosecution

• Section 245 : When Accused shall be Discharged;

• If upon taking all the evidence referred to in Section 244, the Magistrate considers, for
reasons to be recorded,that no case against the accused has been made out which, if
unrebutted, would warrant his conviction, the Magistrate shall discharge him.
•
• Procedure where accused is not discharged

• Evidence for Defence: The accused shall then be called upon to enter upon his defence
and produce his evidence.

• Section 248 : Acquittal or Conviction

Section 249 : Absence of Complaint Absence of Complainant

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 Section 300 :Person once convicted or acquitted not to be tried same offence.

• Section 304: Legal aid to accused at State expense

in certain cases.
• Section 311 : Power to summon material witness
or examine person present.
• Section 313: Power to examine the accused.
• Section 319 : Power to summon Accused
• Section 320 : Compounding of Offence.
• Section 366 : Sentence of death to be submitted
by Court of Session for Confirmation.
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 Section 368 : Power of High Court to confirm
sentence or annual conviction.
• In any case submitted under section 366, High Court-
• (a) May confirm the sentence, or pass any other
sentence warranted by law, or

• (b) may annul the conviction and convict the accused of

any offence which the Court of Session might have
convictd him, or order a new trial on the same or an
amended charge,or

• (C) may accuit the accused person.

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 Section 375 : No Appeal in certain cases
when accused pleads guilty.
• Section 376 : No Appeal in Petty Cases:
• (a) Where a High Court passes only a sentence of imprisonment for a term not
exceeding six months or fine not exceeding one thousand rupees, or of both.

• (b) Where court of session or a M. M. passess only a sentence of

imprisonment for a term not exceeding three months or of fine not exceeding
two hundered rupees, or of both.

• ( C ) Where a Magistrate okf first class passes only a sentence of fine not
exceeding One Hundred Rupees.

• ( d ) where,in a case tried summarily, a Magistrate passes only a sentence of

fine not exceeding Hundred Rupees.

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 Transfer Of Criminal Cases
• Section 406 : Power of Hon’ble Supreme Court
to transfer cases cases and appeals.

• Section 407 : Power of High Court to transfer

cases and appeals.

• Section 408 : Power of Sessions Judge to

Transfer cases and appeals.
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 Power to Commute Sentence
• Section 433 : The appropriate Government may without
the consent of the person sentenced commute –
• (a ) a sentence of death, for any other punishment
provided by the Indian Penal Code.
• ( b ) a sentence of imprisonment for life, for imprisonment
for a term not exceeding fourteern or for fine.
( C ) a sentence of Rigorous imprsonment , for simple
imprisonment for any term to which that person might
have been sentenced, or for fine
( d ) a sentence of simple imprsonment , or fine.

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 Provisions As To Bail and Bonds
• Section 436 : In What cases bail to be taken.
• Section 437 : When bail may be taken in case
of Non Bailable Offence.
• Section 438 : Anticipatory Bail not Applicable
in the state of Uttar Pradesh.
• Section 439 : Special Powers of High Court of
Session regarding Bail.

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 DISPOSAL OF PROPERTY
• Section 451 : Order for custody and disposal of
property pending trial in certain case.

• Section 452 : Order for dispsal of property at

conclusion of trial.

• Section 459 : Power of Court to sell perishable

propety.

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 Limitation for taking Cognizance of Certain
Offences
• Section 468 : Bar to taking cognizance after lapse of period of limitation ;
• Time specified for limitation as;

• ( a ) Six Months : if offence is punishable with fine only;

• ( b ) One Year : if the offence is punishable with imprisonment for a term oine
exceeding One Year;

• (c ) Three Years : If the offence is punishable with imprisonment for a term

exceeding one year but not exceeding three years.
Section 469 : Commencement of period of Limitation is on the date of the
offence; or where the commission of the offence was not known to the person
aggrieved by the offence or to any police offier the first day on which suich offence
comes to the knowledge of such person or to any polioce opfficer which ever is
earlier.

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 Saving Of Inherent Power of
Hon’ble High Court
• Section 482 : Nothing in this Code shall be deemed to
limit or affect the inherent powers of the High Court to
make such order as may be necessary to give effect to
ahy order under this Code or to prevent abuse of the
process of any Court or otherwise to secure the ends of
Justice.
• Section 483 : Duty of High Court to exercise continuous
superintendence over courts of Judicial MagistratesL: to
ensure that that there is an expeditious and proper
desposal of cases by such Magistrates.

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 CONSTITUTION OF INDIA
• Source of the Constitution:
• Govt of India Act 1935
• British Constitution
• Canadian Constitution
• U S Constitution
• Irish Constitution
• Australian Constitution
• Soviet Constitution
• French Constitution
• South African Constitution
• Japan Constitution

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 Article 19 Gurantees
• Right to freedom of Speech and Expressio

• Right to assemble peaceably and with out fire

arms
• Right to form Associations ok Unions
• Right to move freely throughout the territory of
India
• Right to reside and settle in any part of the
territory of India
• Right to practice any profession or carry on any
occupation trade or business 38
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 TYPES OF WRITS ISSUED BY THE Hon’ble
Supreme court and High court
• Habeas Corpus
• Mandamus
• Certiorari
• Quo – Warrranto
• Prohibito

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 IMPORTANT SUPREME COURT RULINGS

• Prohibition of Smoking at Public Places:

• “Murli S Dewda V/s Union Of India Air 2002”
• Third Gender Case:
• “Naaz Foundation V/s Delhi Adminstration
• Sectiion 377 of I P C”
• Right to Life but not the Right to Die:
• “Gian Kaur V/s State Of Punjab”

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 .
• Strike by the Advocates ( Prohibition )
• “Lily Thomas V/s Union Of India”
• Right to Livelyhood Case Article 21 of the
Constitution
• “Olga Telis V/s Bombay Municipal Corporation
AI R 1986 “
• Right to Education Case;
• “Mohini Jain V/s State of Karnatak”
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 Amendment in Central Excise, Custom and
Service Act 1944

• With Effect From 10.05.2013 The amendment

in Central Excise Act has come in force.
• Under Section 9 of the Act Amendment has
been done;
• Now the Excise Duty Evasion beyond the duty
of Rs. 50 Lacs and above is Cognizable and
Non Bailable.
• Latest Case : Union Of India V/s V. S. Rathore

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THANKS

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