http://kannanpersonal.com/index.htmlHow to File a Civil Suit? (Part: 1)

Civil Suit -A Known Process, but Unknown(or complex) Procedure

A civil suit is the commonly resorted litigation by the public both individuals and business houses. It covers a wide range of legal remedies. As civil laws are too extensive, separate courts are constituted for specific branches of law. Thus we have Labour Courts for redressal of grievances under Industrial Disputes Act. Government Servants can approach the Central Administrative Tribunal (CAT) for the problems faced in their Service. Landlords and tenants can approach the Rent Control Courts for matters relating disputes with regard rented/leased accommodation. But even in these matters the High Courts have appellate jurisdiction. It may pointed out that all courts dealing with civil matters follow nearly a common procedure, while administrative tribunals being quasi judicial forums adhere to their own rules of procedure based on the principles of natural justice.

The Code of Civil Procedure, 1908 deals with the procedures to be followed by the civil courts from the ordinary munsifs Court, Small causes Court, City Civil Courts, or High Courts. The Code of Civil Procedure is a procedural law, which lays down the rules of procedure. For a layman, the code is extremely confusing and complicated. An attempt is therefore made is furnish salient steps in a capsule.

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The person who desires to file a civil suit normally engages an advocate (legal practitioner) and thereafter all the steps in connection with filing of the suit are attended by the advocate. The advocate knows the law, but it cannot help him unless the client (litigant) briefs him precisely the essential and relevant facts of the dispute. Initially the advocate provides you legal consultation. Thereafter he prepares your plaint and readies the other documents to be filed in the court in support of the plaint. He examines or cross-examines witness and finally argues your case. The final verdict of the Hon'ble court can be of either ways, i.e. the Hon'ble court may grant your prayers or reject the same. In either case it delivers a speaking order, analysing and weighing the evidences produced and arriving at a logical conclusion. How will you rate your performance with reference to presenting your case before the Hon'ble Court?

Has your advocate

chosen the proper court of jurisdiction for filing the suit?

Drafted correctly the plaint and all reliefs in your favour are included in the Prayer therein ?

included all parties connected with the dispute in the suit?

advised you to file correct documents and witness in support of your claim?

pleaded your case properly?

In case you had lost the case, is it due to the weakness in the substantive part of your case, or due to procedural deficiencies in your presentation.

The client will not be wiser on these matters, unless he himself is fairly through with requisite legal knowledge.

You will definitely consult a competent lawyer and avail his service, but that does not mean that you can keep yourselves blank without the knowledge relating to your legal rights and obligations, as well as the procedures to get them adjudicated.

Many of us normally may have occasion to file civil suits relating to property disputes, suits relating to problems faced in the place of our business, suits for settling disputes relating to defaulted debts. Only if you are well versed with the substantive law applicable to the type of your activities, you can safeguard your interest. On the other hand basic knowledge of the procedural law will enable you to efficiently handle legal proceedings initiated by you or filed against you and secure reliefs and remedies quickly.

The Code of Civil Procedure, 1908 in essence provides the sequential steps that a person desirous of filing suit in a civil court has to follow. These are summarised with regards to both requirement law and practical considerations.

The Sequential Steps for filing a civil suit in a Civil Court

i. Examine the case history and confirm that you have a full-proof bonafide claim that can be enforced by filing a civil suit in a competent court.

ii. Decide the appropriate court and its location having jurisdiction to adjudicate the case

iii. Prepare a brief history of your case, and attach copies of relevant records/documents in support thereof

iv. If you propose to support your case with oral evidence of witnesses, prepare a list of such witnesses and gist of the testimony of each

v. Engage an advocate who practices in the Court, where you are to file the civil suit and hand over the case papers to him for his study

vi. Drafting the Plaint by the advocate. Scrutinise the plaint to confirm-

it contains all material data stated correctly

the plaint is made in the form provided and with data/contents as per legal requirements

vii. Remitting the Court fees into the Court and filing the Plaint

viii. Getting process served to the defendants

ix. Initial hearing

x. Filing of written statement by the defendant

xi. Framing of Issues by the Court

xii. Posting of the suit for evidence

xiii. Filing documents & Leading Evidence

xiv. Evidence by the defendants

xv. Posting for Final Arguments

xvi. Posting the case for Pronouncement of the decree & Passing of Decree

Detailed discussion of processes in each step

Examination of Case History (Step: 1)

Do not venture and resort to frivolous litigation even if your advocate recommends, if you do not have a bonafide and valid claim. It is not enough, you have a valid cause of action, your enforceable remedy through court should not be barred by limitation. If a debtor owes you Rs.10,000/- through a valid pronote, it does not automatically entitle you to go to the court. The debt should have become due for repayment and a proper demand already made to the debtor and he should have failed to repay. Then you have a cause for action for seeking civil remedy through court. If Pronote was executed five years before and there have been not a single repayment or acknowledgement of the debt, your enforceable remedy through court is time-barred. Law expects you to be alert and alive to your bonafide interests. Only then it will come to you aid.

Decide the Appropriate Court and its Location having Jurisdiction to adjudicate your Case (Step:2)

The court in which you should file your case depends on -

a. The subject matter of your case.

For example, you have to go to a consumer forum to file a consumer case,

to a criminal court for filing a case for dishonour of cheque,

to a civil court if you want an injunction or recovery of money,

labour matters are before the labour court,

to the High/Supreme Court if your fundamental right is violated etc.; AND

b. The parties involved.For example, a bank can file a case for recovery of an amount more than Rs.10 lakhs in a Debt Recovery Tribunal; AND

c. The amount of money involved.Each state has a hierarchy of lower courts. The lowest court has powers to grant compensation/ deal with matters valued up to a limit (such as Rs.25,000 or Rs.50,000). Beyond that, matters are dealt with by the court directly above it; AND

d. The place where the transaction in dispute aroseor where your defendant (the person against whom you are filing the case) resides. You can file a case in the court which has power (jurisdiction) over such a place; AND

e. If you are filing a case in respect ofimmovable propertyyou should go to the court which exercises power over that area.

If you propose to support your case with oral evidence of witnesses, prepare a list of such witnesses andgist of the testimony of each (step:3)

This will make you data store complete and comprehensive and make the job quick and easy for the advocate, whose domain should be the legal aspect of the dispute.

Engage an Advocate who Practices in the Court, Where You are to File the Civil Suit (Step: 4)

After securing the services of a competent lawyer you may hand over the case papers to him for study. Select the advocate wisely. If the issues involved are simple and straight and you have indisputable documentary evidence a junior advocate (even with three years practice) but dedicated to the profession will be sufficient. However, where the suit to be filed involve complex issues of both law and fact, you need an advocate specialised in that branch of law. Normally in such cases one having not less than 7 years practice may be considered. To give a final chance to the person(s) against whom the suit is to be filed, the advocate at this stage should issue a final legal notice giving 15 days time for action/settlement of the matter and in this period , he will start preparing and keeping the plaint ready, to be able to file the suit on the 16th day at the court in case of non-compliance by the person to whom notice has been served.

Preparing a proper case history by the client will enable the advocate to quickly and more efficiently handle the task of plaint preparation.

Preparation of Plaint (step: 5)

The plaint is made in the manner and with data/contents as per legal requirements.

Once you file a plaint, you are known as aplaintiffThe plaint that you file should contain the following particulars.

a. The name of the Court in which you file your case.

b. Your name, father's name, age, occupation and address.

c. The name, father's name (if known), age occupation and address of the person against whom you are filing the case. (The person whom you file the case against is known as a "defendant").

d. The facts of the case.

e. The facts stating how you are entitled to file the case and when you became entitled to file the case

f. The reasons for filing the case in the court you have chosen (you have to establish that the said court has the right jurisdiction to decide your case). The fact that the case filed is not debarred by limitation.

g. Your claim (called "relief" or "prayer"). This is to be expressed clearly, because the Court will not grant any relief that has not been prayed, even if it comes that you are entitled for the same. You may also include an omnibus clause seeking for such other reliefs as the Court may please to grant.

h. The "value" of the case and the Court fees paid.

The documents in your possession in support of your statements in the Plaint are also to be filed. In case you desire to secure any interim reliefs, you must file additional applications for the same, along with the plaint.

The plaint is the primary document expressing your full case history and the reliefs you pray for. It has to be drafted very clearly and unambiguously.

Remitting the Court Fees into the Court and filing the PlaintCalculation of Court Fee Payable (Step: 6)

Court fee is calculated as per the Court Fees Act of each state. Depending on the subject matter of the litigation, the court fee prescribed may be-

i. A percentage of the value of the compensation claimed or the value of the property in dispute; OR

ii. A fixed amount for certain categories of cases, such as partition cases.

It also depends upon what you are asking for from the court. Further, the court fees vary from State to State and therefore you will have to check the "fee schedule" of the Court Fees Act passed in your State. Generally, for cases involving recovery of money, the Court Fees court range from 5 - 10% of your claim. In case you succeed in your case, the person whom you file the case against (the defendant), will also be ordered to reimburse the (eligible amount of the ) cost of the suit to you.

You also settle fees for your advocate and make payment of normally 50% of the amount. The advocate will them remit the court fees and do everything necessary to get the suit filed in the Court.

How to File a Civil Suit? (Part: 2)(Steps 7 to 18)Getting process served to the Defendants (Step-7)

Once the case is filed the Court allots a serial number to your case, with a prefix indicating the type of the case.(Like "O.S" for "Original Suit").The judge invariably directs that a notice be issued to the defendant and also specifies the next date on which the case is required to be posted before him. The dates are recorded in the court diary, which is accessible by all. You will have to find out from the court diary when your case is posted and will have to appear before the court on the said date. Of-course this information you will get from your lawyer.

The Court issues a "notice" to the defendant informing him that you have filed a case against him and directing him to appear in the court personally/through lawyer on the appointed date. However if the defendant is an unscrupulous litigant, he will try all tricks to delay the matter. He will avoid receiving the notice sent by the court. The remedy then is to send the notice by Registered Post. In this case he may bribe the postal staff and get the registered post returned as bearing "in-correct address". A final remedy is to publish the process in the local newspaper, widely circulated in the place of the defendant. All this involves expenses and delay.

Another remedy is to pray to the court seeking service of the notice through "affixture". Affixture of notice is basically where an officer of the Court personally visits the house of the defendant and pastes a copy of the notice on his door or some other conspicuous part of his house. He then reports to the court that he has "affixed the notice". Once he does this, the notice is considered to be served. In case he still does not appear before the court on the date mentioned in the notice, the court will proceed with the case in his absence.

Initial hearing (Step: 8)

On the initial hearing when the defendant appears before the Court, time is given to him to file the written statement and next date of hearing is fixed for the defendant to file the written statement. Normally 30 days time is allowed to the defendant. However requests for more time by the defendant are generally granted.

However, it is up to you to be assertive and to oppose any postponement sought by the Defendant. Incidentally, the court is also empowered to levy a fine (called "costs") upon the defendant for his failure to file a written statement. You can either persuade the Court to grant a postponement subject to a payment of fine (which could act as a deterrent) or you can persuade the court to post the case to its next stage, i.e. recording of evidence.

Filing of written statement by the defendant (Step: 9)

When the defendant finally files his written statement in the Court, he would have been advised by his lawyer, to deny all the assertions in the plaint and to force the plaintiff to prove each and everything. This is also another clever device to prolong and delay the final outcome of the case, which may not be in favour of the defendant, if you happen to have a bonafide case.

Framing of Issues by the Court (Step: 10)

Issues to be framed by the court are a list of disputed questions of fact and of law, which the plaintiff has to prove through evidence. Obviously those facts mentioned by the plaintiff in his plaint, which are not expressly disputed by the defendant need not be proved.

Posting of the suit for evidence (Step: 11)

After the Issues are framed the case is then posted for evidence.

Filing documents & Leading Evidence (step: 12)

The evidence of the Plaintiff is first taken for consideration. He has to stand in the witness box and tell the judge his part of the story. The judge will record whatever he says. The plaintiff will also be cross-examined by the defendant's advocate. Importantly, he will have to specifically point out the documents involved, at the time of leading evidence. The court makes a note of these documents. This is called "marking of documents". He must ensure that all the documents you are relying upon are "marked" by the court. The Court does not take into consideration any document, which is not marked.

Next, other witnesses, if any, on behalf of the plaintiff are examined and such witness can also step into the witness box and narrate the facts to the judge. This, in legal terminology, is called "leading evidence". All the witness of the plaintiff will be cross-examined by the defendant.

Evidenced by the defendants (Step: 13)

After the case of the plaintiff is closed, the evidences on behalf of the defendant are taken up. The defendant is allowed to file any documents from his side and these are also marked as records of the case. The witnesses on behalf of the defendant are cross-examined by the Plaintiff (i.e. by the plaintiff's lawyer). After the evidence of both sides are completed, the case is adjourned for final arguments.

Posting for Final Arguments (Step: 14)

Arguments by both sides are intended to brief the judge with a summary and gist of the evidences produced by each side. This is an important stage in the case, since the judge may not be able to read and assimilate lengthy documents covering evidences on both sides, but he is accustomed for quick perception what is stated in the arguments. Documents are not read during the proceedings, and they have to be studied leisurely by the Judge, after court hours. What if the judge has 50 cases in a day and has to study all the papers? It is customary in many cases for the judge to hear the arguments on both sides and to pronounce the judgement at the court immediately on completion of the arguments. This is possible when the issues involved are simple and properly dealt with.

Posting the case for Pronouncement of the decree & Passing of Decree (Step: 15)

After the conclusion of arguments the judge may reserve his judgement to be pronounced on a later date or may deliver the same immediately as said earlier. The judgement is expressed in a speaking form. It sums the case proceedings in the court, makes an assessment of the evidences on either side, and draws the logical conclusion. As per the conclusion the reliefs sough by the winning party is expressed. This is called passing the decree in favour of the concerned party i.e. the plaintiff or defendant, as the court pass a decree along with its judgment. A decree is normally passed in favour the plaintiff, who has filed the suit, if the court accepts his pleas. However when the court rejects the submissions of the plaintiff, the case is dismissed. In some times the defendants in such occasions may be awarded the costs of the litigation at the discretion of the court. The decree would have to contain-

a. The date of the judgment

b. The case number,

c. The description of the parties involved,

d. A clear specification of the relief granted

e. The costs of the case

f. The person who is liable to pay the costs

g. The signature of the judge.

Both parties may apply to the court for a copy of the judgement and it is provided to them on their application. This may normally involves a delay of about 10 days.

Delay in Securing Legal Remedies

The process as above appears very simple, but in real life the litigation is dragged for several months and even years. This is not only on account of the delaying tactics adopted by the defendant, but also due to enormous backlog of litigation piled up and pending in civil courts.

Hearing gets adjourned for some reason or other at every stage several times. What is an adjournment?

An adjournment is a postponement of the hearing of the case to a future date for some valid reason such as the illness of the witness, necessity to get additional documents etc. Adjournments may be asked for at various stages of a case, as there is no limit to the number of times it can be asked for. However, the court may impose a small amount of money as penalty while granting an adjournment. The amendments to the Code of Civil Procedure in 2000 sought to limit the number of adjournments to 3 per side, but this has not yet come into force.

Over all litigation is time consuming and may also be costly. Efforts should be made to resort to litigation only as an ultimate remedy.

Execution of the Decree

The party in whose favour the decree is passed is called the decree holder. The other party is called the judgement debtor. The judgement debtor has to implement the court's decree. If he fails to implement, the decree holder can file an execution petition in the court. The execution petition has to be filed in the court at the place where the judgement debtor resides. If immovable property is to be attached it should be filed in the court at the place, where the property is located. For this purpose the judgement-decree has to be transferred to the concerned court in the first instance.

The decree holder has the following options by way of remedy:

i. He can pray the court for the attachment of moveable properties of the judgement debtor, or

ii. He may pray for attachment of the standing crops of the judgement-debtor if he is an agriculturist, or

iii. He may move for attachment of the immovable property of the judgement debtor, or

iv. He may pray for the arrest and detention of the judgement debtor in the civil prison

In all cases he has to furnish clear particulars of the location and details of the moveable properties, standing crops or immovable property, specified. Further the immovable properties to be attached should be free from prior encumbrance. This the decree holder must satisfy the court by providing a non-encumbrance certificate. Certain items like personal clothing, tools of trade and cooking utensils cannot be attached in satisfaction of debts. In some States the dwelling house in which the judgement debtor resides also cannot be attached.

The judgement debtor may plead before the court for repayment of the decreed-debt in convenient installments. When the terms sought are reasonable, it should be in the interest of the decree holder to accept such a proposal.

Filing of Appeal

When the plaintiff loses the original suit, or when the suit is decreed in his favour, the defendant, i.e. the affected party may appeal, if it is considered there are valid grounds of law, and/or facts for preferring the appeal. The Court immediately higher in the court hierarchy to the court, which passed the final judgment, is the court to which you can appeal. The appeal has to be filed within 90 days from the date of decree.

For filing an appeal a certified copy of the decree should be applied and obtained from the Court and filed with the appeal

The appeal will have to be filed in the prescribed form. The general requirements for filing an appeal are:

a. The appeal document must contain the "grounds of appeal". In other words, you must set forth in your appeal memorandum how exactly you are aggrieved by the lower court's order and will have to pinpoint where the judge erred in passing the order.

b. The appeal will have to be signed by either you or your advocate.

The "appellate court" rehears the entire case. The court will examine the judgment of the lower court to ascertain whether it was right in dismissing your case. It will thereafter proceed to pronounce its judgment. The judgment of the appellate court contains

i. The points considered for determination;

ii. The decision on the above points

iii. The reasons for the decision, and

iv. Where the appeal is allowed, the relief to which the appellant is entitled.(Source- http://www.indialawinfo.com/civil.html)

Legal Reforms - Amendments Code of Civil Procedure - Procedures for Quick Disposal

Civil Procedure (Amendment) Act, 1999 was passed by the Parliament on 12.10.99. The act was further amended by Civil Procedure (Amendment) Act 2002. Both the aforesaid amendments have come into force on 01.07.2002.

Purpose/objectives of the Amendments

To speed up the pace of judicial process and to get over the backlog of civil cases.

The Code of Civil Procedure (Amendment) Act, 2002 brings out radical changes in the-

Service of Summons

allowing Commissioners to record evidence, and

providing for submission of written statements by the defendants within 30 days from the date of service of summons.

All these measures are intended to prevent prolonged litigation and help the courts in settling civil suits within a reasonable time. It implements the policy of time-bound disposal civil cases and is intended to bring relief to the litigants, who hitherto have been waiting for years for the outcome of their cases in courts.

Now the civil suits cannot last longer than a year. Only three adjournments can be sought by a party and the court may order costs occasioned by the adjournments or such higher costs as it may deem fit. The court may also fix a time limit for oral arguments and to avoid delay, it may ask the parties to file written submissions.

Another significant feature of the amended Act is that judgement in a case is to be pronounced within 30 days from the date on which the hearing was concluded. The general power of the court to extend the time for any purpose by the Code without any limit is now being restricted to 30 days. The second appeal is being abolished on money suits where the value does not exceed Rs.215000/-, but appeal to a Division Bench of the High Court against the orders of a single judge is allowed. Also, on filing of revision application against the orders of a subordinate court, its records shall not be called unless the High Court specially orders to do so.

The amendments has further empowered the courts to refer certain suits for conciliation and arbitration. This is expected to reduce the bulk of litigation and decrease the pendency of cases in civil courts

Indian Judicial System -The Unifying Force in a Federal Structure - Part: 2Subordinate Courts

The structure and functions of subordinate courts are more or less uniform throughout the country. Designations of courts connote their functions. These courts deal with all disputes of civil or criminal nature as per the powers conferred on them. They have been derived principally from two important codes prescribing procedures, the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1873 and further strengthened by local statutes.

As per direction of Supreme Court in WP (Civil), 1022/1989 in the All India Judges Association case, a uniform designation has been brought about in the subordinate judiciary's judicial officers all over the country, viz., District or Additional District Judges, Civil Judge (Senior Division) and Civil Judge (Junior Division) on the civil side and on criminal side, Sessions Judge, Additional Sessions Judge, Chief Judicial Magistrate and Judicial Magistrate, etc., as laid down in the Cr PC. Appropriate adjustment, if any, has been made of existing posts by indicating their equivalent with any of these categories by all state governments/UT administrations.

Under Article 235 of the Constitution of India, the administrative control over the members of subordinate judicial service vests with the concerned High Court. Further in exercise of powers conferred under proviso to Article 309 read with Article 233 and 234 of the Constitution, the state Government shall frame rules and regulations in consultation with the High Court exercising jurisdiction in relation to such state. The members of the State Judicial Services are governed by these rules and regulations. However, in pursuance of the Supreme Court's directive in the referred case, for the first time, the Central Government have set up a National Judicial Pay Commission to examine the present structure of emoluments and conditions of service of judicial officers in the states and UTs. The Commission will make its recommendations to the state governments.

The next set of courts is described as courts of district and sessions judge, which also include courts of additional judge, joint judge or assistant judge. The court of the district and sessions judge at district level is the principal court of original jurisdiction. It is presided over by an officer called district and sessions judge. As a rule, the same officer invested with power under both the statutes presides over the court and it is known as district and sessions court. Depending upon workload, a district court may have jurisdiction over more than one district. In some states, there is a court called court of civil and sessions judge. These courts generally have unlimited pecuniary jurisdiction and depending upon the power conferred on the incumbent officer-in-charge of the court, it can handle criminal cases. In some states, these courts with unlimited pecuniary jurisdiction are called courts of civil judge (senior division) while in other states they are described as courts of subordinate judge.

In addition, there are courts known as small causes courts. These are set up either under the Provisional Small Causes Act at the district level or under the Presidency Town Small Causes Court Act in presidency/metropolitan towns.

Family Courts(http://www.nic.in/lawmin/Just.htm)

The Family Courts Act, 1984 aims at promoting conciliation in and securing speedy settlement of disputes relating to marriage and family affairs and related matters. It envisages that courts shall be set up in a city or town with a population of more than 10 lakh and at such other places, as the state government may deem necessary. After the enactment of the Family Courts Act, 1984, 61 Family Courts have been set up so far: Uttar Pradesh-16, Rajasthan-5, Maharashtra -13, Orissa-2, Karnataka-4, Tamil Nadu-5, Kerala-5, Bihar-2, Assam-1, Manipur-1, Andhra Pradesh-6, and Pondicherry-1. After the approval of the Cabinet, orders have already been issued for creation of 15 posts of judges and 202 posts of supporting staff for the setting up of Family Courts in the NCT of Delhi. The NCT of Delhi has also been requested to take urgent steps for setting up the 15 Family Courts in the NCT of Delhi.

National Juidicial Academy

The National Judicial Academy has been set up by the Government of India to provide in-service training to judicial officers. The Academy was registered on 17 August 1993 under the Societies Registration Act, 1860. The Academy located in Bhopal has its registered office in New Delhi. It will provide training to judicial officers of States/UTs as well as ministerial officers working in the Supreme Court of India and the High Courts. Please refer to(http://www.nic.in/lawmin/An_rep/Chapter3.htm), which is a report in web site representing the annual report of Department of Justice (Ministry of Law, Justice and Company Affairs) for more details on this Academy.

Legal Aid

Article 39A of the Constitution provides for free legal aid to the poor and weaker sections of society. The Legal Services Authorities Act, 1987 (as amended by the Act of 1994) which came into force on 9 November 1995, aims at establishing a nation-wide network for providing free and comprehensive legal services to the weaker sections. National Legal Services Authority (NALSA) has been set up for implementing and monitoring legal aid programmes in the country. The Supreme Court Legal Services Committee has been constituted under the Act. In every High Court also, the High Court Legal Services Committees are being established to provide free legal aid to the eligible persons in legal matters coming before the High Courts. The Legal Services Authorities Act also provides for constitution of the State Legal Services Committees, High Court Legal Services Committees, District Legal Services Committees and Taluk Legal Services Committees.

Under the Legal Services Authorities Act, every citizen whose annual income does not exceed Rs 90,000 is eligible for free legal aid in cases before subordinate courts and high courts. In cases before the Supreme Court, the limit is Rs 120,000. This limit can be increased by the state governments. Limitation as to the income does not apply in the case of persons belonging to the scheduled castes, scheduled tribes, women, children, handicapped, etc. The legal aid programme adopted by NALSA include promoting of legal literacy, setting up of legal aid clinics in universities and law colleges, training of para-legals, and holding of legal aid camps and Lok Adalats. You may refer to Supreme Court Middle Income Legal Aid Society at its web site http://supremecourtofindia.nic.in/mig.htm. A detailed account of Legal Aid Movement in India is described in the web site http://causelists.nic.in/nalsa/l1.htm. The site is maintained by the National Legal Services Authority constituted under The Legal Services Authorities Act, 1987.

Lok Adalats

Lok Adalats are alternate dispute resolution forums organized by the various legal aid authorities like the State Legal Aid Authority, The District Legal Aid Authority, The Supreme Court legal services committee, High Court legal aid committees, Taluk legal aid committee. The Lok Adalats aid the resolution of disputes through conciliatory methods. Lok Adalats have proved to be an effective mechanism for resolution of disputes through conciliatory methods. Up to 31 December 1997, about 17,633 Lok Adalats have been held in different parts of the country where about 68.86 lakh cases were settled. In about 3,49,710 motor vehicles accident claims cases, compensation amounting to over Rs. 1,160.07 Crore was awarded. Under the Legal Services Authorities Act, Lok Adalat has been given the status of a Civil Court and every award made by Lok Adalat is final and binding on all parties and no appeal lies to any court against its award. Detailed information on Lok Adalats can viewed from http://causelists.nic.in/nalsa/c6.htm.The web site is maintained by National Legal Services Authority constituted under The Legal Services Authorities Act, 1987.

The Attorney General And His Functions

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

Advocate General and his Duties

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

What is meant by the term "amicus curia"

If a petition is received from the jail or in any other criminal matter and if the accused is unrepresented, then an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters also the Court can appoint an advocate as amicus curiae if it thinks it necessary in case of an unrepresented party. The Court can also appoint amicus curiae in any matter of general public importance or in matters where the interest of the public at large is involved i.e. most advocates in environmental matters are amicus curiae. It is a device to make legal service available to a cause not represented by an advocate at the initiative of the Court, in the interest of better justice and equity.

Composition of Ministry of Law and Justice>

Ministry of Law And Justice comprises of the following three wing;

a. The Department of Legal Affairs

The Department of Legal Affairs is concerned with advising the various Ministries of the Central Government while the Legislative Department is concerned with drafting of principal legislation for the Central Government. The functions of the Department of Legal Affairs renders may be summarized as follows: -

Rendering advice to the various Ministries/Departments of the Government of India on legal matters,

Carrying out the conveyancing work of the Central government,

Attending to the litigation work of the Central Government in the Supreme Court, High Courts and some of the subordinate courts.

Entering into treaties and agreements with foreign countries in matters of civil law, - Authorising officers to execute contracts and assurances of property on behalf of the President under article 299(1) of the Constitution of India

Signing and verifying of plaints and written statements in suits by or against the Union of India. - Appointing Law Officers, namely, the Attorney General for India, the Solicitor-General of India and the Additional Solicitor-Generals of India, members of the Indian Legal; Service etc.

b. The Judicial Department

The Judicial Department is concerned with the formation, maintenance and administration of the Courts and quasi-judicial authorities all over the country.

c. The Legislative Department

he Legislative Department is mainly concerned with drafting of all principal legislation for the Central Government viz., Bills to be introduced in Parliament, Ordinances to be promulgated by the President, measures to be enacted as President's Acts for States under the President's rule and Regulations to be made by the President for Union Territories. The responsibility of maintaining up to date the statutes enacted by Parliament is also with this Department.

Public Interest Litigation

A Public Interest Litigation (PIL) can be filed in any High Court or directly in the Supreme Court. It is not necessary that the petitioner has suffered some injury of his own or has had personal grievance to litigate. PIL is a right given to the socially conscious member or a public spirited NGO to espouse a public cause by seeking judicial for redressal of public injury. Such injury may arise from breach of public duty or due to a violation of some provision of the Constitution. Public interest litigation is the device by which public participation in judicial review of administrative action is assured. It has the effect of making judicial process little more democratic.

According to the guidelines of the Supreme Court any member of public having sufficient interest may maintain an action or petition by way of PIL provided: - -

There is a personal injury or injury to a disadvantaged section of the population for whom access to legal justice system is difficult,

The person bringing the action has sufficient interest to maintain an action of public injury,

The injury must have arisen because of breach of public duty or violation of the Constitution or of the law,

It must seek enforcement of such public duty and observance of the constitutional law or legal provisions

Categorisation of Laws in India

The body of law can be organized in countless ways. Each method of organization provides a way of distinguishing one area of law from another. First, all law can be defined as substantive or procedural. In addition, law can be divided into criminal and civil law (of which contract law and tort laws are types).

Criminal Versus Civil Law

Civil lawgoverns the issues that arise between parties over private rights. Thus, a citizen who sues another for acquisition of a disputed property has grounds for a civil case. An example of a civil case is an individual suing the government for infringement of his fundamental rights. Still another example is a suit by one citizen against another for property damage or physical injury caused by an automobile accident. A civil case is brought by the injured party for damage to his or her personal rights, person, or property. The injured party seeks some sort of compensation (usually monetary) for the injury or damage to the person or property.

A criminal caseis a suit that is brought by the government for violation or injury to public rights. Even though a crime may be perpetrated against a single victim, the public as a whole takes up the cause of the affected individual. An individual who violates the provision of law against anyone violates the rights of the public as a whole. The government enforces the rights of the public through prosecution based on criminal law, which ranges from petty offences to committal of murder. Criminal law includes all laws designed by the legislature to maintain order and safety in our society. It carries a penalty of a fine or imprisonment. A court may also order restitution (compensation) to the victim. With the exception of an order of restitution, generally any claim for damages by a victim who may have been injured by a crime must be resolved in a civil suit against the alleged criminal brought by the injured party.

In a civil case, the penalties are quite different. For example, there is no imprisonment. Secondly, any judgment that awards money is payable to the individual whose rights were invaded and injured. The award of money should be sufficient to compensate the injured party for the reasonable cost of the injuries, thus the termcompensatory damages.Additionally, in cases where money cannot adequately compensate but some action could, the guilty party may be ordered to act or refrain from acting in a certain way. This is called injunctive relief and, more particularly, specific performance. This type of relief is quite limited. Some jurisdictions also permit the recovery of punitive damages (also Compensatory Damages- An award of money payable to the injured party for the reasonable cost of the injuries. known as exemplary damages), which are additional monies that the defendant is ordered to pay as a form of punishment. The reasoning behind punitive damages is that some actions are so grossly improper that the defendant should be punished in a way that will serve as an example to others who might contemplate the same wrongful conduct.

In civil cases, procedural law takes effect when citizens bring a dispute to the legal system. In criminal law, the law enforcement agencies and prosecutors who are part of the legal system initiate a claim against a citizen. Therefore, criminal procedural law begins at the time the law enforcement personnel anticipate that they will bring a dispute into the legal system.

Substantive LawSource -http://www.westlegalstudies.com/.]

This is the law that creates and resolves the issue between the parties. Legal standards that guide conduct and that are applied to determine whether or not conduct was legally appropriate.

Substantive lawcreates, defines, and regulates rights, as opposed to adjective, procedural, or remedial law, which provides a method of enforcing rights. It is exactly what its name implies, the body, essence, and substance that guide the conduct of citizens. It encompasses principles of right and wrong as well as the principle that wrong will result in penalty. It includes the rights and duties of citizens, and it provides the basis to resolve issues involving those rights. Every citizen has the right to live and enjoy his or her own property free from intrusion by other citizens. All members of a populous society are obligated to respect and to not interfere with the rights of others. Substantive law establishes the extent of this right and obligation to which all persons are subjects. When a person engages in conduct that has an adverse effect on another individual, an injury may occur. An innocent injured party who wants to be compensated for the damage caused by the injury may request assistance from the legal system on the basis that the injuring party acted wrongfully. Such wrongful conduct gives rise to the dispute between the two parties. The court will examine the situation to determine whether the conduct of the party alleged to be at fault was indeed wrongful by society's standards. If it was, the party will be judged and will be penalized. If it was not, the party will be judged innocent. In either situation, the court resolves the issue based on what society has determined to be right and wrong conduct between individuals and entities

Procedural Law(Procedural Law is the Law used to guide parties fairly and efficiently through the legal system.)

Procedural lawprescribes a method of enforcing rights or of obtaining redress for the invasion of rights. The basic function of civil procedural law is to facilitate the movement of a lawsuit through the legal system. Procedural laws are created to ensure that each party will be afforded fair and impartial treatment. Further, procedural law has its goal that judges and juries will receive only evidence that will allow them to make a fair and impartial decision. Civil procedure can be likened to a large piece of machinery that assembles a product. It does not feel or possess opinions. The function of procedural law is to assemble all of the pieces into a complete product. The parties to the suit provide the pieces to the product at appropriate times and in the appropriate manner. The completed product delivered from the machine is the decision that resolves the dispute. This decision is based on the pieces of information (substantive law and facts of the case) that have been fed into the machine and assembled. The principles of law that were applied in a case to determine who should prevail, based on the most reasonable explanation of the facts, is substantive law. Procedural law also plays a part in the litigation and includes the following:

The time limit for bringing a lawsuit.

There are distinct and sequential steps in filing a civil suit seeking specific remedies against particular persons (called "defendants".) These are discussed in detail in the next chapter.

Subordinate Legislation or Delegated Legislation[Source- (http://alfa.nic.in/rs/publ/pandp/book13.html)]

Subordinate legislation, is the legislation made by an authority subordinate to the sovereign authority, namely, the legislature. According to Sir John Salmond, "Subordinate legislation is that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority." Most of the enactment provide for the powers for making rules, regulations, by-laws or other statutory instruments, which are exercised by specified subordinate authorities. Such legislation is to be made within the framework of the powers so delegated by the legislature and is, therefore, known as delegated legislation,

Necessity for subordinate legislation

The need and importance of subordinate legislation has been underlined by the Supreme. Court in theGwalior Rayon Mills Mfg. (Wing) Co. Ltd. V. Asstt. Commissioner of Sales Tax [(. India Reporter 1974 SC1660 (1667). ]* thus:Most of the modern socio-economic legislation passed by the legislature lay down the guiding principles and the legislative policy. The legislatures because of limitation imposed upon by the time factor hardly go into matters of detail. Provision is, therefore, made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation. The practice of empowering the executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a modern welfare State.

In a modern welfare State, government activity has pervaded every field of human endeavour, social, economic, industrial, scientific and technical. Elaborate legislation by democratic process of discussion is not merely time consuming but is also becoming an increasingly complicated and technical affair. What a legislature can possibly do and actually does is that it lays down the policy and purpose of the legislation and leaves it to the executive, experts and technocrats to provide for working details within the framework of the enactment by way of rules, regulations, bye-laws or other statutory instruments.

That is why, delegated legislation is increasingly assuming an important role in the process of law making, comprising an important component of legislation. Powers have also been conferred under various provisions of the Constitution of India on the different functionaries {e.g., the President, the Government i.e., the executive), to frame rules, regulations or schemes dealing with various aspects.

Nature of subordinate legislation

"Subordinateness" in subordinate legislation is not merely suggestive of the level of the authority making it but also of the nature of the legislation itself. Delegated legislation under such delegated powers is ancillary and cannot, by its very nature, replace or modify the parent law nor can it lay down details akin to substantive law. There are differences where pieces of subordinate legislation, which tended to replace or modify the provisions of the basic law or attempted to lay down new law by themselves had been struck down asultra viresControl of legislature on delegated legislation

While in the context of increasing complexity of law-making, subordinate legislation has become an important constituent element of legislation, it is equally important to see how this process of legislation by the executive under delegated powers, can be reconciled with .the democratic principles or parliamentary control. Legislation is an inherent and inalienable right of Parliament and it has to be seen that this power is not usurped nor transgressed under the guise of what is called subordinate legislation

What A Public Servant Should Know aboutThe Code of Criminal Procedure, 1973 (Part: 1)

Indian Penal Code provides the source legislation to deal with offenders who commit physical and intellectual crimes. But how to initiate proceedings and enforce the law? The answer to this question can be found from the contents of two other enactments. They cover in detail, the steps for filing of complaint, investigation and trial of criminal offences and the procedures for recording evidence in Court. The criminal procedures deals not only with lodging a complaint, investigation thereof and arrest the offenders under IPC, but also covers the rights of the accused or arrested person, the procedure for getting bail and for conducting trial in the different courts competent to deal with criminal law. The two enactments referred are:

i. The Code Criminal Procedure, 1973

ii. The Indian Evidence Act, 1872.

Is it useful to know the various offences and the punishments provided therefor? The Police conduct investigation and lawyers the prosecution. Is it of interest for the common man to know all about these legal maze and conundrums, which aptly belongs to the realm of professional lawyers to study? The answer is that, if it is useful for the common man to know all about health care and disease prevention, while there are specialist doctors to look after us, why is it not equally worthwhile to know the basic information about the common law affecting our day to day life. We do approach the lawyer to enrich that knowledge and plan our action for redressal of the problems confronting us. Lawyers and doctors make themselves available for consultation on matters relating to their respective discipline and tendering expert advice. We make the decision and they offer thereafter a course of their services as per our request. Law deals with day to day matters affecting our lives. It is informative and hence will be interesting.

The common man should know the common law, the businessman the mercantile law, and the banker, the banking law. If we possess an academic knowledge of the law, it will be more beneficial to us, to interact and brief properly our lawyers, who possess a professional knowledge of law and legal practice. Even otherwise it is useful to know basic things, as the common man, though not having committed any offence, may at times unfortunately get trapped within the intimidating criminal justice system. It is of interest to know that all complaints investigated do not result in prosecution and all cases prosecuted do not result in proving the guilt and awarding punishment. It also happened that while a lower court gives a verdict of guilty on an accused, the higher court of appeal have reversed the decision and acquitted him.

We deal with the Code of Criminal Procedure here and will discuss about the Indian Evidence Act separately in another chapter.

The Code of Criminal Procedure- What is it?

The Code of Criminal Procedure commonly referred to, as CrPC is a procedural law. It deals with rules of investigation of crime, methods of conducting trials, provision for appeal etc. All offences under IPC are investigated and tried according to the provisions of Cr.P.C. The Act was originally passed in 1898 and was later amended in the year 1973. The Act of 1973 is applicable even today. The various provisions of the Act are also generally applicable to cases against public servants under the Prevention of Corruption Act, except in respect of specific provisions of the Act, which have been amended by the PC Act, 1988.

Various offences under both the Act are classified as "bailable offence" and "non-bailable offence", as also "cognizable offence" and "non-cognizable offence". Various offences under the Indian Penal Code and offences under other enactment are classified in Annexure 1 of the Code of Criminal Procedure, as bailable or non-bailable and cognizable or non-cognizable It also states the type of judicial courts, competent to conduct trial of each these offences.

The procedure for grant of bail in bailable offence is covered under Section 436 of the Code and in respect of non-bailable offence bail can be obtained as per procedure set in Section 437.

a. Acognizable offenceis defined as an offence for which, and a"cognizable case"means a case for which a police officer may, in accordance with the First Schedule or under any other Law for the time being in force, arrest without warrant (Section 2(c)).

b. Anon-cognizable offenceis defined as an offence for which, and a"non-cognizable case"means a case for which a police officer has no authority to arrest without a warrant. (Section 2(l))

c. Awarrant casemeans a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

d. Asummons casemeans a case relating to an offence and not being a warrant case.

Constitution of Criminal Courts and Offices

Chapter II of the Act deals with the different types of courts competent to try the offences. Every State will have the following classes of criminal courts besides High Court. (Section 6)

Courts of Sessions

Judicial Magistrate of First Class and in Metropolitan Cities, Metropolitan Magistrate.

Judicial Magistrates of Second Class.

Executive Magistrate.

Court of Sessions

The State Government shall establish a Court of Sessions for every sessions division. It is presided by a Sessions Judge appointed by the High Court. High Court may appoint Additional Sessions Judge and Assistant Sessions Judge who are subordinate to Sessions Judge. A session division may consist of one or more districts.

The High Court may, if requested by the Central or State Government confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a judicial Magistrate of the first class or second class in any local area, not being a metropolitan area. The appointment of Judicial Magistrates, will be subject to the person possessing such qualification or experience in relation to legal affairs as the High Court may by rules specify. In every district, not being a metropolitan area, the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate. The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of the Chief Judicial Magistrate, as the High Court may direct. Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge, and every other Judicial Magistrate shall subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.

The High Court shall in relation to every metropolitan area, within its local jurisdiction appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such metropolitan area. In every such metropolitan area, there shall be established as many Courts of Metropolitan Magistrate, as the State Government may after consultation with the High Court specify. The High Court may appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate, who will have all or any of the powers of the Chief Metropolitan Magistrate, as the High Court may decide. Every Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge, and every other Metropolitan Magistrate shall subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate.

In every district and in every Metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them as the District Magistrate. The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate will have such of the powers of the District Magistrate as the State Government may decide.

All Executive Magistrates, other than Additional District Magistrate, shall be subordinate to the District Magistrate and every Executive Magistrate (other than the sub-Divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the sub-Divisional Magistrate, however, to the general control of the District Magistrate.

Public Prosecutors - Section 24 & 25

For every High Court the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such court any prosecution, appeal or other proceeding on behalf of the Central or State Government, as the case may be. The Central Government may appoint one or more Public Prosecutors or the purpose of conducting any case or class of cases in any district or local area. The State Government may also appoint a public prosecutor and one or more Additional Public Prosecutors for each district The State Government may also appoint one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. For appointment of Public Prosecutor or Additional Public Prosecutor, a person must be an advocate for not less than 7 years.

The District Magistrate in consultation with the Sessions Judge, prepare a panel of names of persons, who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. And such appointments will be made only from out of these names.

Chapter III - Powers of the Court

The powers of different Courts to pass sentences are as under:

High Court may pass any sentence authorized by law. (Section 28 (1))

Sessions Judge or Additional Sessions Judge may also pass any sentence authorized by law. But any death sentence passed by them is subject to confirmation by the High Court.(Section 28 (2))

Chief Judicial Magistrate cannot sentence imprisonment for a term exceeding 7 years.(Section 29(1))

First Class Magistrate cannot pass sentence of imprisonment for a term exceeding three years or fine exceeding Rs.5000/-. (Section 29 (2))

Second Class Magistrate can pass a sentence of imprisonment for a term not exceeding one year or fine not exceeding Rs.1000/-.(Section 29(3))

The court of the Chief Metropolitan Magistrate shall have the powers of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate rate of the first class. (Section 29 (4)

What A Public Servant Should Know about The Code of CriminalProcedure, 1973 (Part: 2) - Chapter -V: Arrest of PersonsWho can make an Arrest?

Any police officer, with or without warrants in certain cases. (Section 41)

Any private person in whose presence a non-bailable and cognizable offence has been committed. (Section 43)

Magistrate - when an offence is committed in his presence within his local jurisdiction. (Section 44)

Rights Of Arrested Persons

Person arrested to be informed of grounds of arrest and right of bail (Section 50(1))

Right to be released on bail in case of bailable offence when arrested by police officer without warrant. (Section 50(2))

Right to medical examination of his body.(Section 54)

If arrested by police without warrant, the person arrested cannot be detained in custody for more than 24 hours without special order from Magistrate. (Section 57)

Powers/Duties of Police Officers with reference to Arrested Persons

If the person forcibly resists the endeavour to him, or attempts to evade arrest ,the police offer may use all means necessary to effect the arrest(Section 46(2))

Search of place entered into by person sought to be arrested (Section 47)

Pursuit of offenders into other jurisdictions (Section 48)

Person arrested should not be subjected to more restraint than is necessary to prevent his escape

.

Search of arrested persons (Section 51)

Examination of accused by medical practitioner at the request of the police officer.

Person arrested to be taken before Magistrate or officer in charge of police station.

Power on escape to pursue and retake (Section 60)

Information to Police and their Powers to Investigate - Chapter XII

In popular usage, the filing of First Information Report (FIR) is referred to and is covered by Section 154 of Chapter XII, though the words 'FIR' or 'First Information report' is not used in this Section. This is an important source to remedy for victims of offences by unscrupulous persons. The entire Section is therefore quoted:

"Information in cognizable cases:- (1) Every information relating to the commission of cognizable offence, if given orally to an officer in charge of a police station, shall be reduced in writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced in writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-Section (1) shall be given forthwith, free of cost, to the informant.

(3)Any person aggrieved by the officer in-charge of police station to record the information referred to in sub-Section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned, who if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by this Code, and such other officer shall have all the powers of the officer in-charge of the police station in relation to that offence.".

A similar procedure is prescribed under Section 155 for dealing with Information Report in respect of non-cognizable offences, except as provided in sub-section (2) of the Section.

No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

Any officer in-charge of a police station may investigate a cognizable case without the order of a Magistrate, provided such case falls within jurisdiction of a local court to try.(Section 156). However the officer in-charge of the police station shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report

Procedure for Investigation by Police

The Officer In-charge of the Police station may himself proceed to the spot and carry out investigation of the facts and circumstances of the case or he may depute a subordinate officer for such investigation. (Section 157)

A Police Officer making investigation can order in writing attendance before himself of any person within his limits. Such person shall be bound to attend the investigation and answer truly all questions put by police officer relating to the case. The statement may be reduced to writing and copy thereof be given to the person. But such statement made to police officer is not to be signed by the person making the statement. (Section 160)

Preliminary Inquiry

The Magistrate on receiving the Report under Section 157 may direct an investigation, or if he thinks fit at once proceed, or depute any Magistrate subordinate to him to proceed to old a preliminary inquiry into, or otherwise dispose of the case in the manner provided by the court (Section 159)

Completion of Investigation

If upon investigation, the officer in charge of police station feels that there is no sufficient evidence, he may release the accused, if the accused is in his custody. If however, he feels that there is sufficient evidence he shall forward the accused to a Magistrate. (Section 173)

Commencement of Proceedings Before Magistrate

If in the opinion of Magistrate taking cognizance of an offence there is sufficient ground for proceedings, he shall issue summons or warrants for attendance of the accused, based on either the case is taken under summons or warrant procedure. (Section 204 (1) Before this however the prosecution must file a list of witnesses. (Section 204 (2)). The Magistrate if he feels justified may dispense with the personal attendance of the accused. (Section 205 (1)).

The accused shall be given a copy of the following documents free of cost: (Section 207)

Police report

FIR recorded under Section 154

Statement recorded. Under Section 161

The confessions and statements, if any, recorded under Section 164

Any other document/relevant extracts forwarded to Magistrate with police report

.Commitment of case to Court of Sessions when offence is triable exclusively by it. In this case the Magistrate will commit the case to the Court of Sessions after complying with provisions of Section 207 or 208 (Section 209)

Statement of the Charges Against the Accused

The content of the charge, i.e. the language or words by which the charge is to express precisely is described in section 210 to 214.

The offence committed should be specified as per legal terminology used in the law defining it, quoting the law and its Section.

If the accused was previously convicted and liable for enhanced punishment particulars of the previous conviction should be stated in the charge.

The time and place and the person against whom the offence was committed is to be specified.

Where warranted as per Section 213, the manner in which the alleged offence was committed is also to be stated

The court can alter the charge or add to the charge at any time before judgement. In case of error either in stating the charge or the particulars about the charge, it will not affect the proceedings, unless the accused was in fact misled by such error or omission, and it has occasioned in a failure of justice.

Procedure For Conduct of Trial

The Code of Criminal Procedure distinguishes the procedures for trials to be conducted before different courts as under:

i. Trial before a Court of Session(Section 225 to 237)

ii. Trial of Warrant case by Magistrate

A. Cases instituted on a Police Report (Section 238 to 243 )

B. Cases instituted otherwise than on Police Report (Section 244 to 250)

iii. Trial of Summons by Magistrate (Section 251 to 259)

iv. Summary Trials (Section 260 to265)

The procedure for different trials as above is broadly the same, except for certain special features in respect of each individual case. Broadly the common features are as under.

When the accused appears before the Court, the prosecutor, who is to conduct the case opens the case by describing the charges brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. If the Judge considers that there is no sufficient ground for proceedings against the accused, the accused is discharged. If however, on consideration, it appears that the accused has committed an offence, the Judge frames charge against the accused that are read over and explained to him.

The accused is then asked whether he pleads guilty of these offences charged or claims to be tried. If the accused pleads guilty, the Judge records the plea and may convict the accused thereon. If however, the accused claims to be tried, the case is listed for prosecution evidence.

If after prosecution evidence and arguments, it appears that there is no evidence that accused committed, the offence, the judge records an order of acquittal. If however, he is not acquitted, the case is listed for defence evidence of the accused.

After evidence of both parties, the prosecutor sums up his case and it is replied by the accused or his pleader. After the accused or his pleader replies, provided that where any point of law is raised by he accused or his pleader the prosecution with the permission of the judge, make its submission with regards to such point of law.

After hearing arguments, the judge gives his judgment in the case. If the accused is convicted, the Judge passes sentence on him in accordance with law.

The aggrieved party may challenge the judgment in higher court.

In respect of Summary Trials described in Chapter XXI, no sentence of imprisonment exceeding 3 months shall be passed.

Guiding Principles in Bail Matters

When a person accused of bailable offence is arrested or detained without warrant by police, he shall be released on bail, on his executing a bond without sureties. (Section 436)

In case of non-bailable offences also the court may grant bail to accused after considering following aspects and satisfying that the granting of bail will not come in the way of conducting the trial against accused without impediments

Whether there is or is not reasonable ground for believing that the applicant has committed the offence with which he is charged?

Nature & gravity of the charge

The danger of applicant absconding if he is released on bail

Likelihood of accused tampering with evidence. (Section 437

Application for Grant of Anticipatory Bail

As per Section 438 (1) when any person has reason to believe that he may be arrested on an accusation of having to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this Section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. This is subject to provisions under sub Section (2) and (3)

This is only an outline of main topics of the Code in a nutshell. Code of Criminal Procedure was codified by the British and has been applied for criminal enforcement in our country for over a century. Needless to say that this is a comprehensive time-tested procedural legislation. Completely explaining all its 484 provisions is well beyond the scope of this literature. But we have included and covered the salient essentials. Please secure a copy of the Act or refer to the Internet for the same and go through the Act for an exhaustive understanding