Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
Section 148. Rioting armed with deadly weapon
Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 147. Punishment for Rioting
The section states that anyone who participates in a riot can be punished with imprisonment for up to two years, or with a fine, or with both.
Rioting is defined as the criminal behavior of five or more people acting jointly to attain an illegal shared goal by force or violence in Section 146 of the IPC. Each and every participant is held accountable for the riot because it was primarily devoted to further a common goal. The accused would be entitled to an acquittal if the prosecution failed to prove that they shared a same goal.
Essential Ingredients of Roiting
Assembly of 5 or more person shall be unlawful;
They were animated by a common unlawful object;
Force or violence was used by unlawful assembly or any member thereof;
That such force or violence was used in the prosecution of their common unlawful object.
Liability of owner of land on which Riot takes place
Sec.154-156 deals with constructive liability on the person for whose benefit riot takes place. Sec.154 imposes criminal liability on the owner or occupier of land on which unlawful assembly is held.
Section 154. Owner or occupier of land on which an unlawful assembly is held.â
Whenever an unlawful assembly or riot occurs, the owner or occupant of the land on which such unlawful assembly or riot is being held, and having an interest in or claiming to own such land Any person who does so shall be subject to a fine of up to 1 million yen. Any person or agent acting on behalf of a senior officer if he or she knew that such violations were being committed or had been committed or had reason to believe that such violations were likely to be committed; The person or supervisor shall be fined Rs.1,000. Please report to the nearest police station as soon as possible and if you have reason to believe that the action is about to take place, do not use any lawful means to stop the action. All legal means at your disposal to disperse or suppress a riot or unlawful assembly.
Section 155. Liability of person for whose benefit riot is committed.â
When the riot takes place for the benefit of or on behalf of a person who is an owner or resident of, or has a right to be the subject of, that land or the riot is connected to the place where the riot is taking place; At any time, a person who initiates a riot, or who accepts or derives any benefit from a riot, that such person or his or her agent or manager is likely to have committed such a riot, or A fine shall be imposed if there is reason to believe that there has been misconduct. If there is a possibility that such a rally or riot may occur, even if it is a rally that caused such a disturbance, use all legal means to prevent the holding of such a rally or riot or suppress or suppress it. must not.Â
Section 156. Liability of agent of owner or occupier for whose benefit riot is committed.â
Whenever an insurrection takes place in or for the benefit of any person who is the owner or resident of the land on which the insurrection is taking place or has a right to an interest in such land or the subject matter of the insurrection. If there is reason to believe that such rioting is likely to have occurred or that an illegal assembly has taken place, the person’s representative or manager shall be fined if they cause such dispute. The country in which such riots occur will not use all authorized and lawful means to prevent, suppress or disperse such riots or gatherings.Â
Precisely and simply, section 154 requires the owner or occupant of land on which an unlawful assembly or unlawful riot has occurred to have his servants or managers failure to take appropriate legal action. Failing to notify the authorities of an illegal assembly or an occurrence of an illegal assembly or riot on land owned by its owner or occupant;Â . These failures can be further elaborate as-
Failure to provided the earliest information to principle officer of the nearest police station.
Intentional failure
Failure to take adequate legal measures on its own to suppress or disperse or prevent riot or unlawful assembly
Here, as provided owners liability does not depend upon Servant or manager intention or act.
An individual may be held accountable for the crime of rioting with a dangerous weapon upon the proof of the aforementioned conditions. According to Section 148 of the Indian Penal Code, 1860, the penalty for this offense is a term of up to three years in jail, a fine, or both.
The accused may be found guilty of the crime of rioting with a dangerous weapon if the prosecution can establish these factors. It is crucial to remember that in order for an offense to be established, the use of a weapon must be deliberate and not accidental.
It is a claim to any debt, other than secured by mortgage of immovable property or pledge or hypothecation of some movable property, or to any beneficial interest in movable property, not in possession either actual or constructive of the claimant. Section 3 of Transfer of Property Act, 1882 defines ;  âactional claim means a claim to any debt , other than a debt secured by mortgage of immovable property or by the hypothecation or pledge of movable property , or to any beneficial interest in movable property not in the possession, either actual or constructive , of the claimant, which the civil courts recognises as affording grounds for relief, whether such debt or beneficial interest be existent, accruing ,conditional or contingent.â
Letsâ analyse above definition; Actionable Claims means a claim to â Any debt, other than a debt secured â By a mortgage of immovable property, or By hypothecation or pledge of movable property, or Any beneficial interest in the movable property- not in possession (either actual or constructive) of the claimant; which the civil courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.
An actionable claim is property and the assignee has a right to sue to enforce the claim. A right to recover an unascertained amount of damages resulting from breach of contract or tort is a mere right to sue. If, however, one has a right to recover an ascertained and definite debt, he may transfer it because it is an actionable claim. Thus, suppose A is indebted to B for ` 2000 and B transfers the right to recover the debt of C, the transfer is void. A beneficial interest in specific movable property is also an actionable claim. It has been held that the right to claim the benefit of an executory contract constitutes a beneficial interest in movable property [Jaffer Meher Ali v. Budge Budge Jute Mills (1906) ILR 33 Cal. 702.]
A Debt may be Secured or Unsecured. Where a debtor gives security of any immovable or movable property to secure payment of debt, called Secured Debt and other the other hand where no security has given for payment of debt, called unsecured debt. An Unsecured Debt is treated as Actionable Claim.
1. Where a debt is already due and become payable is called âExisting Debtâ
2. on the other hand, where a debt or sum of money is due at present but payable on a future date, it is âAccruing Debtâ; Where the claim for a sum of money exists but the payment depends upon the fulfilment of any condition, the debt is known as âConditional Debtâ.
CLAIMS WHICH ARE HELD TO BE ACTIONABLE CLAIM; following claims are included under the category of Actionable Claims;
1. A Claims for arrears of rent;
2. A share in partnership;
A Claim for money due under any insurance policy; 1. A claim for rent to fall due in future accruing debt; 2. A Claim for the return of earnest money; 3. A Claim for unpaid dower of a Muslim Woman; A right to get back the purchase-money when sale is set aside; A benefit of an executory contract for the purpose of goods is a beneficial interest in the movable property; 1. A right to proceeds of a business.
CLAIMS WHICH ARE NOT TREATED AS ACTIONABLE CLAIM; 1. A Decree is not an Actionable Claim; 2. A Right to get damages under the law of torts or for breach of contract; A Claim to mesne profit is not an actionable claim but it is a mere right to sue; 1. A Copyright; 2. A Debt secured by mortgage of immovable property or hypothecation of movable property.
TRANSFER OF ACTIONABLE CLAIM: Â Section 130 of Transfer of Property Act, 1882 provides that
(1)Â The transfer of an actionable claim (whether with or without consideration )shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent, shall be complete and effectual upon the execution of such instruments, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not: Provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer.Â
(2)Â The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the same in his own name without obtaining the transferorâs consent to such suit or proceeding and without making him a party thereto
Transfer of actionable claim takes effect only after execution and signing of the instrument. After execution, all the rights and remedies of the transferor vest in the assignee. The Assignee(transferee) becomes entitled to recover the claims and sue in his own name. The assignee also become liable for all the liabilities and equities to which the transferor was subject at time of the transfer.
Assignment of Insurance Policy: The insured has assigned his policies to a bank. He then made a claim as a complaint under the Consumer Protection Act against the insurance company. In this case it was held that the Bank has right to claim amount from insurance company on the basis of decree passed by consumer court. The Bank need not to get permission from the insured.
 Subrogation of claim under insurance: A consignor has filed a suit against the carrier of cargo for loss of stock due to negligence and heavy rain. The insurance company after accessing claim amount has paid to the consignor and filed a recovery suit against the carrier on the basis of letter of subrogation and power of attorney received from the insured(consignor) in its own name. The court held that the suit of recovery of loss should be in the name of consignor name, not in the name of the insurance company on the basis of Power of Attorney;
 Notice of Assignment: A notice of assignment to the debtor is not compulsory to perfect the title of the assignee(transferee) but until the debtor receives notice of the assignment to a third person, his dealings with original creditor shall be protected. Thus, it is necessary for an assignee to give notice to the debtor as soon as possible;
Exception: the provisions of Section 130 are not applicable to the transfer of a marine or fire insurance policy or affect the provisions of Section 38 of the Insurance Act, 1938.
Indu Kakkar Vs. Harayana State Industrial Development Corporation Ltd., AIR 1999 SC 296C (1999): The Supreme Court held that the transferee cannot compel the corporation allotting the land to treat him as an allottee. In this case a plot was allotted to the allottee for the establishment of an industrial unit within a specified time-period by the Industrial Development Corporation. The original allottee has transferred the plot without the consent of the corporation. The Supreme Court held that the corporation could not ne compelled to treat him as an original allottee. He has no locus standi to challenge the order of resumption passed by the corporation.
Section 131 of The Transfer of Property Act, 1882 deals with Notice in case of assignment of Actionable Claim: Â provides that every notice of transfer of actionable claim must be in writing and signed by the transferor or his duly authorised agent in this behalf. Where transferor refuses to sign, then the notice must be signed by the transferee or his agent. The notice must be in express terms of notice and name and address of the transferee must be written clearly on the notice. Notice must be unconditional.
Sadasook Ramprotap Vs. Hoar Miller & Co. Â Â it was held that there is no time limit within which the notice must be given. Notice given within one year was held to be reasonable.
Section 132 of the Transfer of Property Act, 1882 deals with Liability of Transferee of Actionable Claim; the transferee of an actionable claim shall take it subject to all the liabilities and equities and to which the transferor was subject in respect thereof at the date of the transfer.
Example: Letâs consider Mr. X transfers to Mr. Y a debt due to him by Mr. Z, Mr. X being then indebted to Mr. Y. Mr. Z sues Mr. Y for the debt due by Mr. Y to Mr. X. In this case Mr. Y is entitled to set off the debt due by Mr. X to Mr. Z, although Mr. Y was unaware of it at the date of transfer.
Note: â The principal of this section is that the assignee can get no better title than the assignor. If nothing is due to the assignor the assignee gets nothing.
Section 133 of the Transfer of Property Act, 1882 : Where the transferor of a debt warrants the solvency of the debtor, the warranty, in the absence of a contract to the contrary, applies only to his solvency at the time of the transfer, and is limited, where the transfer is made for consideration, to the amount or value of such consideration. A warranty of solvency is not implied. Warranty is sometimes given by the transferor as a precautionary measure that the debtor is solvent so that the transferee becomes assured that he may not lose his claim. The warranty of solvency of debtor is limited only for the time of transfer or time of the assignment. Where the transfer is for consideration, such warranty extends only to the amount of such consideration.Â
Section 134 of Transfer of Property Act, 1882 provides that; where a debt is transferred for the purpose of securing an existing or future debt, the debt so transferred, if received by the transferor or recovered by the transferee, is applicable; First, in payment of the costs of such recovery; Secondly, in or towards satisfaction of the amount for the time being secured by the transfer; and Residue if any, belongs to the transferor or other person entitled to receive the same.
Section 135[ inserted by 1944 amendment act of the Act, 1882 Assignment of rights under policy of insurance against fire.âEvery assignee by endorsement or other writing, of a policy of insurance against fire, in whom the property in the subject insured shall be absolutely vested at the date of the assignment, shall have transferred and vested in him all rights of suit as if the contract contained in the policy has been made with himself.
Section 135 provides that any assignee of a policy of insurance against fire, in whom the property in the subject insured shall be absolutely vested at the date of the assignment shall have transferred and vested him all rights of suit as if the contract contained in the policy has been made with him.
Note: Â Section 130 of the Act, 1882 exempts the assignments of marine or fire policies of insurance from its operation because mere assignment of such policy does not entitle the assignee to the ownership of the subject matter of policy.
Section 136 deals with the incapacity of officers connected with the Court of justice. The person who includes in section 136 are as Legal practitioner; Judges of the Court; and The legal or officer who concerned with the justice of the Court. And the last Section 137 describes the saving of negotiable instruments and etc.In the case, State of Kerala and Ors. Vs. Mini Shamsudin and Ors State of Kerala and ors. Vs. Mini Shamsudin and ors, (2009) insc 1 (2 jan 2009)., the Court said that actionable claims are âgoodsâ and movable property but it is not for the purpose of the sales tax acts. SECTION 137 of the Transfer of Property Act, 1882:  the provisions of Sections 130 to 136 of the Transfer of Property Act, 1882 dealing with transfer of actionable claim do not apply to stocks, shares or debentures , or to instruments whish are for the time being , by law or custom, negotiable ,or to any mercantile document of title to goods.
Mercantile Document of Tile of Goods; includes a bill of landing, dock-warrant, warehouse-keeprsâ certificate, railway receipt, warrant or order for the delivery of goods, and any other document used in ordinary course of business as a proof of the possession or control of goods, or authorising or purporting to authorise ,either by endorsement or by delivery, the purpose of the document to transfer or receive goods thereby represented.
what is actionable claim in gst?
Actionable Claims are those that meet the definition outlined in Section 3 of the Transfer of Property Act, 1882, according to Section 2(1) of the CGST Act, 2017.
According to Section 2(52) of the CGST Act, âgoodsâ include any type of moveable property other than money and securities, including anything attached to land that is agreed to be severed before supply, growing crops, grass, and actionable claims.
Is GST applicable on actionable claim?
Transactions/activities in actionable claims are kept outside the ambit of GST, except for the following claims: lottery, betting, and gambling
Why actionable claims are not goods?
2(7) of the Act. It states that “‘goods’ means every kind of movable property other than actionable claim and money”. Thus, actionable claims are not covered by the provisions of the Sale of Goods Act. This is because they are defined and dealt with under the Transfer of Property Act.
Why is actionable claim a good?
Actionable claims are recognised by the court of law in order to provide with relief in reference to unsecured debt or beneficial interest in movable property. Debt: A debt is a liquidated or certain sum of money which debtor is under the obligation to pay. It can vary from being in present and in future
Conclusion
Every debt in movable property that could be enforced by the court is referred to as a “Actionable Claim.” Any type of financial claim, regardless of whether the amount was fixed or undetermined, is actionable under this definition. These were sometimes made unclear, and there used to be decisions that conflicted; the law was inconsistent or unclear. The Transfer of Property Act should be revised to include both parties’ rights and obligations in transactions..
The provision of review is stated in Section 114 & Order 47 of the Civil Procedure Code, 1908.
According to section 114 of CPC, any person aggrieved by a decree or order from which an appeal is allowed but not filed, or a decree or order from which no appeal is allowed, can file a review petition in the same court which passed such decree or order on the following grounds:
Where a decree or order is passed which is appealable under the CPC and no appeal is preferred;
Where a decree or order is passed which is not appealable under the CPC; and
Where a decision is given on a reference from a Small Causes Court.
There is no provision of reviewing an order already reviewed, unlike an appeal where there is a provision of second appeal. As per Rule 5 only those judges who heard the application initially shall have the power to hear it again except where they shall be absent for a period of six months or more after the date of application.
Grounds of review
Discovery of new evidence: – When something new is discovered which was not filed by the deceased person at the time of decree or was not within the knowledge of the deceases person at the time of decree, then a review petition can be filed.
Mistake or error :- When any mistake or error can be seen which is apparent on record and didnât require any extra evidence to establish it, then review petition can be filed.
No right to Appeal:– When no right to appeal is allowed as per the decree of the order, then the deceased can file for a review petition.
Appealable Decree:- When appeal is allowed for the decree against the deceased person and he did not appeal, then review petition can be filed.
Any other ground:- Party may file review petition, if the Court agrees to it that it has sufficient ground to file.
The ‘Miscellaneous’ section of the 37th Chapter of the Code of Criminal Procedure, 1973, which is titled ‘Inherent powers of the Court,’ contains Section 482. The provisions for the quashing of criminal proceedings are laid out in the code under this clause. The CrPC’s Section 482 declares the high courts.
âSaving of inherent powers of High Court-  Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.â
Why inherent power vested with High Court?
When someone commits an offense, it’s not simply a wrong against them; it’s also a crime against society. It directly affects people’s quality of life and right to personal freedom, as well as the interests of a broader society. Therefore, it was wise to only give these powers to the higher courts and highly qualified judges. This also supports (affirms) Section 483, which states that the High Court has the authority to continuously supervise the subordinate judicial magistrate.In Madhu Limaye v. Maharashtra AIR 1978 (47), the Court has observed the following principles that would govern the High Courtâsinherent jurisdiction:
That inherent power must not be resorted to, if specific provision for redressal of grievances is been given.
That it should be carefully used to prevent abuse of process of any Court or otherwise to secure ends of justice.
That it should not be exercised against the express provision given in any other statute. The inherent power would come into play there being no other provision in the code for the grievance redressal of the aggrieved party.
Scope of inherent powers of High Court
Inherent powers include â justice by having the authority to stop any criminal case now before the High Court or lower courts, including any ongoing investigations or FIRs. Only when no other provisions are available are these powers used. It is not an issue as to when the High Court may intervene in criminal cases handled by lower courts. Only when there has been a miscarriage of justice or in cases of unusual circumstances will the High Court intervene.
.The object and purpose of Section 482 Cr.P.C. has been enunciated by the Supreme Court in Dinish Dutt Joshi v. State of Rajasthan (2001) 8 SCC. case as follows: âThe principle embodied in the section is based upon the maxim quando lex aliquid alicui concedet, concedera videtur et if sine qua res ipsae esse non potest. This maxim means that when the law gives to anyone, it gives all those things without which the thing itself would be available.
The jurisdiction of the Supreme Court under Article 142 of the Constitution of India, depends on the facts and circumstances of each case Minu Kumari v State of Bihar (2006) 310 SCC. The High Court in exercise of its powers under Section 482 Cr.P.C. and the Supreme Court under Article 142 of the Constitution of India would not direct quashing of a case involving a crime against the society particularly when both the learned special judges as also the High Court have found that a prima facie case has been made out against the appellants herein for framing a charge.Smt. Rumi Dhar v. State of West Bengal: (2009) 6 Hence, section 482 does not confer new powers. It only recognises and preserves powers which inhere in the High Court. The invocation of the jurisdiction of the High Court to quash a First Information Report is not the same as the invocation of jurisdiction for the purpose of compounding an offence under section 320. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.
What is the inherent power to quash FIR?
The High Court under Section 482 has the power to quash an FIR even after filing of Charge Sheet by the prosecution. The parties can also reach a modus vivendi case. The accused can also appraise the Court that there is no material evidence against him even after the investigation in the matter.
There are various ways through which FIR an be quashed. Those are as follows:
Quashing of FIR after filing of Charge Sheet
Even after the prosecution files a Charge Sheet, the High Court has the authority to revoke a FIR under Section 482. A modus vivendi may also be reached by the parties. Even after the case has been investigated, the accused may inform the court that there is no solid evidence against him. On the basis of all the evidence and facts gathered against him in the charge sheet, the accused also has the option of pleading guilty to charges of inherent improbability. Given that the High Court’s authority under Section 482 is sufficiently broad, it may issue a quashing of FIR order in such cases.
Quashing of FIR on the basis of Compromise
The High Court has the right to revoke the FIR at any time based on a compromise. A compromise between the accuser and complainant is possible. Under Section 482 CrPC, all parties have the option to file a joint plea to have the FIR quashed. The Court would then carefully consider the facts, circumstances, and other factors of the case before making a decision about the quashing of the FIR. The High Court may reject quashing on the basis of compromise if the Court is dissatisfied with the circumstances underlying the compromise. If the offense is compoundable and the High Court declined to drop the FIR, the parties may go before the Trial Court.
Quashing of FIR in Matrimonial Cases
Under Sections 498 A and 406 of the Indian Penal Code, women may falsely accuse their husbands and relatives of cruelty in certain matrimonial conflicts . The parties to the matrimonial issue do, however, eventually reach a solution. They typically put it in writing and create a Mutual Compromise Deed that contains all of the settlement’s terms and conditions. To record their remarks and for identification purposes, the parties must appear before the High Court.
Quashing of FIR in Financial Disputes
When a financial disagreement is resolved after the parties reach an agreement, quashing the FIR in cases of economic offenses is the natural line of action. If certain major offenses other than economic offenses are involved, parties frequently turn to a Compromise Deed and seek to have the FIR quashed. In accordance with the authority granted by Section 482 of the Criminal Procedure Code, the High Court may issue an order for quashing on the basis of settlement while taking the case’s facts and circumstances into consideration.
Mahendera KC Vs State of Karnataka 2021 in this case two tests to quash an FIR 1st whether the allegations made in the complaint, prima facie constitute an offence. 2nd the court noted that the allegations shall be so improbable to appeal to a prudent man and e would not arrive at the finally there is a sufficient ground to proceed with the complaint.
Conclusion
In order for the High courts to carry out their duties and achieve the goal of justice, Section 482 Cr.P.C. has a very broad reach. However, it should be highlighted that because of its size, this power is also quite ambiguous and subject to interpretation. It is crucial that courts use it carefully and in accordance with the rules established by the Supreme Court and High Courts. With the times and as necessary in any circumstance, Section 482 has undergone numerous alterations in its current form.
âUbi Jus Ibi Remediumâ, comes in a play. It is a Latin maxim, it means that âWherever there is a right, there is a remedy.â We can simply put that remedies are the life of rights.
The main two ingredients of the doctrine are âjusâ and âremediumâ. Where âjusâ means legal authority to do or to demand something from and âremediumâ means right of action. This right to a remedy, includes more than the plain meaning of term âremedyâ in English law, as it includes a right of action.
The principle says that wherever there is breach of anyoneâs right, the law gives him/her the remedy to protect it or to recover the damages for any loss.
In a landmark case, Ashby v. White, 1 SM LC 253 Holt C.J. observed that there should be no wrong without remedy. Wherever the common law gives right, there is always a remedy for itâs enforcement. It was held that, â When the law clothes a man with a right he must have means to vindicate and maintain it and remedy if he is injured in the exercise and enjoyment of it, and it is a vain thing to imagine a right without a remedy are reciprocalâ.
Essentials of Ubi jus ibi remedium
The maxim ubi jus ibi remedium can be applied only where the right exists and that right should be recognized by the court of law;
A wrongful act must have been done which violates the legal rights of a person clearly.
This maxim can be used only when sufficient relief has not been provided by the court to the person who sustained the injury.
This maxim is applicable if any legal injury had been caused to any person, if no legal injury has been caused then the maxim damnum sine injuria will be used which means damage without any legal injury.
Limitations of ubi jus ibi remedium
The maxim ubi jus ibi remedium does not apply to moral and political wrong which are not actionable.
This maxim is not applied to those cases in which proper remedy is given in case of breach of right under common law.
If there is no legal damage which has been caused to any person then this maxim will not be applicable.
No remedies are available in case of breach of marriage vows or personal commitment as these all are the promises made without consideration and are based on trust.
This maxim is also not applicable in case of public nuisance unless and until a plaintiff shows that he suffered more injury than other members or peoples of the society.
This maxim is not applicable where the plaintiff is negligent or there is negligence on the part of the plaintiff.
A bail bond is a written document signed by the accused or his friends or family (known as surety) to assure that the accused will be present before the court at the stipulated time and date, as specified by the court
a formal agreement to pay a specific sum of money determined by a court or police official, signed by the offender or by someone who guarantees the offender’s appearance in court when required. Once the case is over, the sum paid for the execution of the bond may be returned after deducting any administrative fees.
The indemnifies who guarantee the offender’s appearance when the court requests it are known as sureties. He is the one who covers the cost of the bail bond when the offender is unable to provide his own.
But after being granted bail, may an accused person substitute a bank guarantee for surety bonds? A bank guarantee is a document that the bank issues pledging its commitment to provide protection in the event that a party fails to carry out their obligations. As a result, it is a third-party guarantee, which implies the bank will pay the bond if neither the surety nor the accused could.
The court in Afsar Khan v. State by Girinagar Police, Bangalore 1992 Cr.LJ 1676 (7). held that a reading of the entire chapter which deals with the provisions relating to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. Further, court cannot demand cash deposit as a condition of bail. Rajballam Singh v. Emperor, AIR 1943 Patna 375, Thus, bank guarantee can be permitted by the court to pay for the bail.
Chapter 33 of the Criminal Procedure Code, 1973 (hereafter referred to as the Cr.P.C.) contains provisions relating to bail bonds. According to Section 440 of the Code, the sum so determined by the court must be reasonable and take into account all of the facts surrounding the case. This clause gives the Sessions Court and High Court the authority to tell the magistrate or police officer to lower the bail bond amount.
According to Section 441 of the Code, the criminal who has been released on bail or his own bond must sign a bond for the amount of money that the police officer or the court determines is required to guarantee his appearance at the time specified in the bond or until any other time specified by the court. Therefore, a bond ensures that the criminal will appear in court when required to do so, whether to answer the accusation or not. If a minor is compelled to sign a bond, the police officer or the court in their place may only do so with the backing of one or more sureties. Conditions may be in a bond. When executing the bond, such terms must be stated there.
If the surety or sureties is found to be insufficient or later becomes insufficient, or if the surety or sureties applies before the court for the direction of discharge of either whole bond or any part as related to the applicants, the court has the authority to commit the person released on bail to jail. Before sending such a person to jail, the court may ask him to come up with enough surety to release him on bail once more. When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond.
The courts must keep their authority in check whether there is just a delay in the payment of the bond or when the indemnitor chooses to no longer be liable for the bail. The court may, however, lose the bail bond under Section 466 of the Code if the need for the production of any property is not met or if the fine is not paid for an adequate reason. In this context, forfeiture refers to keeping the bond money even after the case is ended. If even the surety is unable to save the criminal in the second scenario, the offender may face up to six months in prison.
But what occurs following the forfeiture of the bond? The court must order the person whose security was demanded to provide a new security bond if the surety dies, becomes bankrupt, or when any forfeiture is carried out in the aforementioned cases. If this happens, the magistrate of first class may proceed as though there had been a failure to comply with the original order of bond.
Following any forfeiture of bond in case of any breach of the conditions mentioned in it, result into cancellation of such bond where the alleged offender thereafter cannot seek release on bail on his own bond except when the police officer or the court is of the view that no sufficient cause of failure can arise of the person bound by the bond to comply with its condition.[9]Above were the provisions of bail bond but what actually happens after an order is passed in this regard? How to execute a bail bond after the passing of such order?
When practically seen the execution requires certain documents such as:
Bail application
Id proof of the person executing it
Id proof of the surety giving guarantee for the person
Demand draft or cheque for the sum to be paid for the bond
Property papers in case a property is being charged for the purpose of furnishing the bail bond and tax return receipts.
Declaration by the surety or sureties
Letter of undertaking
The surety is required to make arrangements for the application of the offender’s bail bond undertaking. Additionally, he needs to provide proof that he is solvent and has sufficient assets to stand surety. Additionally, he must certify as an indemnitor that he is aware of the terms of the execution of the bail bond and that he guarantees the offender’s compliance with those terms. Thus, the execution of bail is finished at the police station after completing the necessary paperwork and paying the bond amount.
The Inter-University Board passed a resolution after the Constitution of India had been established on January 26, 1950, emphasizing the necessity of an all-India bar and the significance of maintaining consistently high standards for law examinations at various Universities. Under Shri S. Varadachariar’s leadership, the Madras Provincial Lawyers Conference decided in May 1950 that a committee constituted by the Indian government should develop a plan for an all-India bar and revise the Indian Bar Councils Act to be in line with the new Constitution. A bill to alter the India Bar Councils Act was put out by member of parliament Shri Syed Mohammed Ahmad Kazmi on April 12, 1951. The Indian government came to the conclusion that the bill needed to be sponsored by the government. A Committee of Inquiry was established in August 1951 to examine the viability of a unified bar in India, the continuation or elimination of the dual system of counsel for each state, the potential for a separate bar council for the Supreme Court, and the revision of laws governing the legal profession.
A statutory entity that oversees and represents the Indian bar is the Bar Council of India. The Advocates Act of 1961, passed by Parliament, authorized its creation. It establishes etiquette and professional conduct guidelines and has disciplinary authority over the bar. Additionally, it establishes requirements for legal education and recognizes universities whose degrees in law will allow graduates to register as attorneys once they graduate.
Composition of the Bar Council Of India- Section-4
There are 18 members of the Indian Bar Council. The remaining 16 members of the council represent the 16 State Bar Councils in the nation, while the Attorney General of India and the Solicitor General of India are Ex-officio Members. The Chairman and Vice-Chairman are chosen from among the members of the Bar Council of India for terms of two years each, while the Members are elected for terms of five years for the Members. The Bar Council also has a number of committees, including the Legal Education Committee, the Disciplinary Committee, the Executive Committee, the Legal Aid Committee, the Advocates Welfare Fund Committee, the Rules Committee, and numerous additional Committees created to look into certain concerns that occasionally arise.
Who can contest and participate in the elections? The elected members of a State Bar Council shall be elected by and from amongst advocates, vakils, pleaders and attorneys who, on the date of the election, are entitled as of right to practice in the High Court and are ordinarily practising within the territory (including a Union Territory) for which the Bar Council is to be constituted. [Section 53 of the Advocates Act] Conduct of the elections Section 15 of Advocates Act states that a Bar Council may make rules to carry out the election of members of the Bar Council by secret ballot and also lay down guidelines regarding the manner of election of the Chairman and the Vice Chairman of the Bar Council. Disqualification of members of Bar Council According to Section 10B of the Advocates Act, a person can cease to be a member of the Bar Council in the following 3 situations:
If he is declared by the Bar Council of which he is a member to have been absent without sufficient excuse from three consecutive meetings of such Council.
If his name is, for any cause, removed from the roll of advocates.
If he is otherwise disqualified under any rule made by the Bar Council of India.
Constitution, functions and procedure of Committees of the Bar Council of India
The Council may appoint from among its members, one or more Committees as it may deem necessary, in addition to those specified in the Act and delegate such powers, duties, and functions to such Committees as it deems fit.
Any casual vacancy in the above Committees shall be filled up by the Council.
Save where the Chairman or the Vice-Chairman is a member of the Committee or the Sub-Committee, the Committee or the Sub-Committee shall choose its Chairman for the meeting unless at the time of the constitution thereof the name of the Chairman has been specified.
Unless otherwise determined at the time of the election, the term of the members of the Committees of the Council shall be as follows: I. Executive Committee â 2 years II. Disciplinary Committee â 3 years III. Legal Education Committee â 4 years IV. Legal Aid Committee â 2 years V. Advocates Fund Committee â 2 years VI. Any other Committee not falling under the above clauses â 2 years.
Functions Of Bar Council of India
The Bar Council of India was established by Parliament under the Advocates Act, 1961. The following statutory functions under Section 7 cover the Bar Councilâs regulatory and representative mandate for the legal profession and legal education in India:
To lay down standards of professional conduct and etiquette for advocates.
To lay down procedure to be followed by its disciplinary committee and the disciplinary committees of each State Bar Council.
To safeguard the rights, privileges and interests of advocates.
To promote and support law reform.
To deal with and dispose of any matter which may be referred to it by a State Bar Council.
To promote legal education and to lay down standards of legal education. This is done in consultation with the Universities in India imparting legal education and the State Bar Councils.
To recognize Universities whose degree in law shall be a qualification for enrolment as an advocate. The Bar Council of India visits and inspects Universities, or directs the State Bar Councils to visit and inspect Universities for this purpose.
To conduct seminars and talks on legal topics by eminent jurists and publish journals and papers of legal interest.
To organize legal aid to the poor.
To recognize on a reciprocal basis, the foreign qualifications in law obtained outside India for the purpose of admission as an advocate in India.
To manage and invest the funds of the Bar Council.
To provide for the election of its members who shall run the Bar Councils. The Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of (a) giving financial assistance to organize welfare schemes for indigents, disabled or other advocates; (b) giving legal aid or advice in accordance with the rules made in this behalf; (c) establishing law libraries.
For all or any of the purposes listed in subsection (2), the Bar Council of India is eligible to receive grants, donations, gifts, or benefactions, which must be credited to the relevant fund or funds established under that subsection.Grants, contributions, and gifts may also be given to the Bar Council of India for any of these uses. Regarding the sixth argument (mentioned above), the Supreme Court has made it quite plain that it is the responsibility of Indian Universities, not the Bar Council of India, to decide whether to import legal education.The only thing the Bar Council can do is advise strategies for encouraging poor legal education to be delivered by universities, and for that reason it may set educational standards. Sections 7 do not give the Bar Council the authority to create its own regulations defining pre-enrolment as an advocate.
According to Section 7(a) of the Advocate Act of 1961, the Bar Council of India may join international legal organizations like the International Bar Association and International Legal Aid Association, give such organizations any money it sees fit in the form of subscriptions or other payments, and approve spending for its representatives to attend any international legal conferences or seminars.
Appointment of committees and Staff members Section 9 of the Advocate Act empowers The Bar Council of India to appoint one or more disciplinary committees, Legal aid committeeâs u/s 9-A executive committee u/s 10(2), Legal Education Committee, etc. Section 11 of the Advocate Act empowered the Bar Council to appoint a secretary and accountant and such number of other persons as may deem necessary the secretary and accountant, if any shall possesses such qualification.It is mandatory that the Bar Council shall have a secretary.
Other powers and functions of Bar Council of India ďˇ To give such financial assistance as it fit to the State Bar Council in need of funds for the purpose of performing its function. ďˇ To prevent a citizen of any country from practicing profession of law in India when that country specified by the central government in this behalf, prevents citizen of India from practicing the profession of law in their country. ďˇ To call for the record of any proceedings from any State Bar Council or Committee thereof to see legality and proprietary of such proceeding. ďˇ To give its own order of any of its committee accept the disciplinary committee. ďˇ To give direction to the State Bar Council or any other Committee thereof for the proper and efficient discharge of the functions of the State Bar Council. We can say that BCI has very important role to play in the field of legal education and profession of the country. It prescribes standards of professional conduct, etiquettes and exercises disciplinary jurisdiction over the bar. It also sets standards for legal education and grants recognition to Universities whose degree in law will serve as a qualification for students to enroll themselves as advocates upon graduation
Solicitors advise with clients, create pleadings and other paperwork, but they also hire attorneys to represent them in court. To become a solicitor, an attorney must pass an exam. throughout India. Before an Indian lawyer can become a solicitor, two years of practice are also necessary. Unlike an advocate, a solicitor can handle a huge clientele. Typically, lawyers operate on a retainer basis for large firms in exchange for a significant salary. Lawyers are consulted by business clients for guidance on a variety of issues, including litigation, property, tax, and finance.
Personal legal problems like wills, property conveyancing, divorce, and child custody are frequently dealt with in private client services. There are a variety of sizes and types of law firms, so it’s vital to do your homework to choose which one is best for you. A variety of abilities are required for solicitors. They must be able to work closely with colleagues, pay close attention to detail, and be willing to put in long hours in addition to being able to engage with clients and establish good working relationships with them. To deal with complex information, they also require initiative and sound judgment.
What is the difference between advocate and solicitor in India?
An advocate who represents the central government or government is called an attorney general. He provides legal advice to the central government as well as represents its cases. The Solicitor general assists the attorney general in his work.
Difference between Lawyer, Barrister, Solicitor, Advocate
Lawyer
To make things easier, any law student will be referred to as a lawyer. But this person needs to finish graduation. He or she will be referred to as a lawyer after graduating. Of course, duration is irrelevant. Academic course length varies from nation to nation. For instance, India offers both a 3 and a 5 year program. A student can become a lawyer if they have completed one of these two courses. But the most important query is now.
Whether a lawyer can represent their clients?
The answer is NO. A lawyer canât represent his or her client in court.
Barrister
Just like a lawyer, Barrister is also a similar concept. But the law graduates from England, Wales, New Zealand and Australia are called Barristers. A barrister canât represent his or her client in court. To represent a client in court, he has to obtain a licence from the Bar Council.
Solicitor
A solicitor normally proofreads documents, meets clients, drafts case notes and these types of things. Basically, a solicitor gets the case when a client walks in the door and hands it off when it goes to the court stage. So a majority of works are done by a solicitor.
Difference between Barrister and Solicitor
The differences between these two are getting narrower with time. Traditionally, what would happen is a client would go to a solicitor first. The solicitor would go through the case and run the case. Then a solicitor will go to a barrister for specialist advice. It could be for a specialist opinion, court documents, etc. The barrister will mainly do the advocacy. But in recent times, solicitors are doing more and more advocacy and now the barristers have public access as well. So, anyone can directly approach a barrister.
Advocate
When a lawyer passes the Bar exam, then he is called Advocate. Every country has a bar council. This Bar Council gives a licence when a lawyer passes the exam.
That means an Advocate is a lawyer who has passed the Bar Exam. An advocate can represent his client in court. So minimum requirements for an Advocate is a law degree and licence from Bar Council. An advocate is authorised to appear in court.
Senior Advocate
Senior Advocate title is given by the Supreme Court or High Court. There are criteria that need to be followed to be a Senior Advocate. This criterion differs from country to country. In India, 45 years of age and at least 20 years of practice as an advocate is mandatory. Senior advocatesâ gowns are different from Advocateâs.
Attorney General
An advocate who represents the central government or government is called an attorney general. He provides legal advice to the central government as well as represents its cases.
The Solicitor general assists the attorney general in his work.
Public Prosecutor and Government Pleader
If a crime is committed against an individual, then it will be deemed as the crime is committed against society at large i.e. state. Here the victimâs name is replaced by the state. Modern jurisprudence supports this idea.
Public Prosecutor: In criminal cases, the person who appears on behalf of the state is called a public prosecutor. He is also called PP. \
Government Pleader: In terms of civil cases, the person who appears on behalf of the state is called Government Pleader.
Who can give solicitors?
It is part of a new, four-stage route to becoming a solicitor, introduced in 2021. To qualify through the SQE route you’ll need to: Have a degree (or equivalent) in any subject. Pass SQE1 and SQE2 assessments*
The Solicitors Qualifying Examination (SQE) is being phased in to become the new centralised way to qualify as a solicitor in England and Wales. It will eventually replace the Legal Practice Course (LPC) route to practice.
Can a non lawyer own a law firm in India?
Yes a non-lawyer can be owner of the Law Company, such person can do administrative work of running the company and not appearing in the case before the Court or Tribunal etc. 1. A “FIRM” is a legal entity, registered as a OPC or a LLP or a Pvt.
Can solicitors appear in court?
Solicitors represent clients in disputes and represent them in court if necessary. In complex disputes however, solicitors will often instruct barristers or specialist advocates to appear in court on behalf of their clients.
Why is a lawyer called a solicitor?
A lawyer is anyone who could give legal advice. So, this term encompasses Solicitors, Barristers, and legal executives. A Solicitor is a lawyer who gives legal advice and represents the clients in the courts. They deal with business matters, contracts, conveyance, wills, inheritance, etc.
How to register a Law Firm in India?
Types of Law Firms in India.
A law firm is an organization that represents various government agencies, corporations, individuals in the court of law. Legal services are centered on analyzing legal challenges and providing fair and sound advice to attain justice. Most of the individuals in the legal field aspire to establish a legal firm of their own.
Before establishing a legal firm it is vital to know about the process of establishing, registering, and other legal-related documents. Registration of legal firms not only helps in creating a mark but also safeguards the rights of that organization.
Sole Proprietorship:
This Law Firm handle by a single person, who is the owner. All decisions of management, records, maintenance, financial & tax will be take care by him alone and the tax will be applicable as per his personal income.
Documents required (Sole Proprietorship)
Shop Establishment Registration Certificate.
Letter of CA regarding nature of business.
Firm Letterhead with name and address.
Stamp having name of proprietorship firm.
Address and ID Proof of proprietor alongwith office address proof.
Partnership Firm:
This Law Firm handle by two or more partners to the firm and all the partners can give their opinions and decisions as per their choice and experience in their fileds.
Partnership firms in India are governed by the Indian Partnership Act, 1932 and it is not mandatory to register partnership firm. That the tax will be applicable at the flat rate of 30%.
Documents required
(Partnership firms)
Application for Registration having Name of Firm, Place, Joining date of partners, duration of firm, date of establishment, permanent addresses of partners etc. alongwith supporting Affidavit alongwith prescribe fee.
Certified copy of the Partnership Agreement.
Proof of place of business.
Limited Liability Partnership:
In this law firm (LLP) the partnership work in protected ways compare to a common partnership. That the advantage of an LLP Law Firm is, to protect the personal assets of partners in the case of dispute arise between partners. Now a days most of the Law Firms (Partnership) are adopting this model after itâs enactment in India.
In LLP model the liabilities of its partners is limited to their contributions to the business and protection them from the misdeeds, negligence, or incompetence of the other partners.
Documents required
(Limited Liability Partnership)
Apply for designated Partner Identification Number (DPIN).
Apply for Digital Signature Certificate (DSC).
Then apply for the unique name of LLP Firm which will be used to file incorporation with the MCA. Thereafter certificate of Incorporation will be issued.
Thereafter approval from Ministry of Corporate required to get the LLP name.
Remember that every LLP needs a registered Permanent Account Number (PAN) and Tax Account Number (TAN).
Can an advocate run a law firm?
According to Rule 47.
An advocate shall not personally engage in any business; he can be a sleeping partner in a firm and do business that is deemed appropriate by the State Bar Council, the nature of the business should not be inconsistent with the dignity of the profession.
Are Advocates Allowed to do Business in India?
The Bar Council of India puts various restrictions on advocates such as an advocate cannot take up other employment such as running a business while serving as an advocate.
These restrictions given by the bar council are enumerated from Rules 47 to 52 of Bar Council of India Rules, frames under Advocates Act 1961z
According to Rule 47. An advocate shall not personally engage in any business; he can be a sleeping partner in a firm and do business that is deemed appropriate by the State Bar Council, the nature of the business should not be inconsistent with the dignity of the profession.
According to Rule 48. An advocate may be the Director or the Chairman of the Board of Directors of a Company, provided none of his duties are of an executive character. Advocates are restricted from being a Managing Director or a Secretary of any company.
According to Rule 49. An advocate cannot be a full-time salaried employee of any government, person, firm, corporation or concern, during the reign of his practice. An intimation to the bar council is to be given if he wants to do so. An intimation, thus, will lead to termination of his practice, as long as he continues such employment.
According to Rule 50. An advocate who has inherited, or succeeded by survivorship to a family business may continue it, but not personally participate in the management.
Advocates are permitted to do the following things such as review Parliamentary Bills for a remuneration, edit legal textbooks at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal. (Rule 52)
So, it is necessary for advocates to adhere to the rules given by the bar council of India. Otherwise, they would be subjected to various penalties and would have to bear the consequences. So Advocates cannot do individual business in India.
Conclusion
It is to be kept in mind that different countries have different systems. For example, South Africa, Bangladesh, India, Srilanka, and Pakistan have almost the same structure and hierarchy. So, the terms are the same in these countries. But, the UK, Wales and many other countries have different terms as well.
The practice of advocacy is a right under Sections 29 to 34 of the 1961 Advocate Act. “The Advocates are the only recognized class of persons entitled to practice law,” according to Section 29 of the Advocate Act of 1961. It should be highlighted that just one group of peopleâAdvocatesâare permitted to practice under the terms of this section, subject to the Act’s provisions. A person who is not an advocate listed on the High Court’s roll has no right to represent the accused, according to the ruling in D.A.S. Swami vs. Kubendran AIR 1967.
Right to Practice :Â
A) Advocates to be the only recognized class of persons entitled to Practice law (Section.29)
Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates.
B) Right of Advocates to practice (Article 30)
Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories to which this Act extends â
(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorized to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice..
C) Advocates alone entitled to practice (Section 33)
Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act.
 Conditions for Right to PracticeÂ
Bar Council of India has framed rules accordingly and Chapter III of the Bar council of India rules regarding conditions for right to practice provides as follows :
1) Every Advocate shall be under an obligation to see that his name appears in the roll of State Council within whose jurisdiction he ordinarily practices:
However, if an advocate does not request to have his name added to the State Bar Council’s roll within six months of beginning his practice, it will be assumed that he has engaged in professional misconduct within the meaning of Section 35 of the Advocate Act.
2) An advocate shall not enter into a partnership of any other arrangement for sharing remuneration with any person or legal practitioner who is not an advocate.
3) Every advocate shall keep informed the bar council on the roll of which his name stands, of every change of his address.
4) The Council or a State Council can call upon an advocate to furnish the name of the state council on the role of which his name is entered, and call for other particulars.
        5) i) An Advocate who voluntarily suspends his practice for any reason whatsoever shall intimate by registered post to the State Bar Council on the rolls of which his name is entered, of such suspension together with his certificate of enrollment in original.
ii) Whenever any such advocate who has suspended his practice desires to resume his practice shall apply to the Secretary of the State Bar Council for resumption of practice along with an affidavit damping stating whether he has incurred any of the disqualifications under Section 24A, Chapter III of the Act during the period of suspension.
           iii) The Enrollment Committee of state Bar Councilmay order with the resumption of his practice and return the certificate to him with necessary endorsement. If the enrollment committee is of the view that the Advocate has incurred any of the disqualifications the committee shall refer the matter under proviso to Section 26(1) of the Act.
iv) On Suspension and resumption of his practice the Secretary shall act in terms of rule 24 of part IX.
6) i) An advocate whose name has been removed by order of the Supreme Court or a High Court or Bar Council as the case may be, shall not be entitled to practice the profession of law either before the court or before the authorities mentioned under Section 30 of the Act, or in Chambers or otherwise.
ii) An advocate who is under suspension shall be under the same disability one in which he held office.
7) An officer after his retirement or otherwise ceasing to be in service shall not practice for a period of 2 years in the area in which he exercised jurisdiction for a period of 3 years before his retirement or otherwise ceasing to be in service.
8) No Advocate shall be entitled to practice if in the opinion of the Council he is suffering from such contagious disease as makes the practice of law hazard to the health of others. The disqualification shall last for such period as the Council directs from time to time.
 Advocate Alone entitled to practiceÂ
Section 33 of Advocates Act, 1961 provide that except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act. it means advocates alone are entitled to practice in a Court or in any Authority.
Case Law –Â
 Hari Shankar Rastogi vs. Girdhari Sharma AIR 1978 SC 1019 In this the Case Supreme court has held that a private person who is not an advocate , has no right to barge into Court and claim to argue for a party.Â
Difference between Right and Privilege:
No
Right
Privilege
1
Right means the standard of permitted action by law. Right is a legally enforceable claim, inseparably associated with remedy. Rights are legally protected interests. Â
Privilege is a benefit or immunity conferred by law on a person or Group of Persons. In simple words Privilege means the freedom which a person has i.e. to do or not to do something.
2
A right involves something to be done or abstained by another person for the benefit of the person with the right.
Privilege carries the idea that the person who enjoys liberty can by himself do or abstain from doing what he has the right to do or abstain from doing.
3
In a right the action or the forbearance comes from the one who is burdened to satisfy the right.
In privilege there is no one else who has to carry out the act or abstinence; it is the enjoyer of the privilege who is himself to act or abstain.
4
Right implies duty cast on another person who must not disregard the right.
Law cannot interfere in case of privilege. Privilege is absence of restraint.
In the Widest sense of the term right, right may be taken to include privilege.
Right to practice as advocate not an absolute right, says SC
The Supreme Court has held that the right to practice as an advocate is not an absolute right, but it is a statutory right subject to control and regulation….
The apex court said that the courts can supervise and regulate the right to practice in order to ensure administration of justice.
A bench of Justice A K Sikri and Justice N V Ramana said the right to appear and conduct cases in the court is a matter..on which the court must and does have major supervisory and controlling power.
Hence, courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate, the bench said.
The court explained the legal position while upholding the Allahabad High Court rules,.which stated an advocate, who is not registered with the Bar Council of Uttar Pradesh, is allowed to appear, act or plead in the said court only when he files his âvakalatnamaâ along with an advocate enrolled with the Bar Council of Uttar Pradesh and ordinarily practiced in the Allahabad High Court.
It rejected a plea by Jamshed Ansari, who contended that the rules put unreasonable restriction on his fundamental right to practice his occupation and also violated Section 30 of the Advocates Act.
The petitioner also claimed that such rules were contrary to the provisions of Article 22 of the Constitution and Section 303 of the Code of Criminal Procedure, which provided the citizens a right to defend themselves by a legal practitioner or plead.ader of their choice. The court, however, said that the restriction was reasonable and done keeping in mind the public interest.
The whole object of the rules in question is furtherance of the administration of justice and to ensure that the advocates who can be easily located or accountable to the courts are allowed to practice before the court,â the bench said.
Legal Services includes providing Free Legal Aid to those weaker sections of the society who fall within the purview of Section 12 of the Legal Services Authority Act, 1987. It also entails creating legal awareness by spreading legal literacy through legal awareness camps, print media, digital media and organizing Lok Adalats for the amicable settlement of disputes which are either pending or which are yet to be filed, by way of compromise. NALSA also undertakes necessary steps by way of social action litigation with regards to any matter of special concern to the weaker sections of the society. Legal services also encompasses facilitating the beneficiaries to get their entitlements under various government schemes, policies and legislations
What is included in free legal services/aid provided by the Legal Services Authorities? / What is the nature of free legal services?
Free legal aid is the provision of free legal services in civil and criminal matters for those poor and marginalized people who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any Court, Tribunal or Authority. These services are governed by Legal Services Authorities Act, 1987 and headed by the National Legal Services Authority (NALSA).
Provision of free legal aid may include:
Representation by an Advocate in legal proceedings.
Payment of process fees, expenses of witnesses and all other charges payable or incurred in connection with any legal proceedings in appropriate cases;
Preparation of pleadings, memo of appeal, paper book including printing and translation of documents in legal proceedings;
Drafting of legal documents, special leave petition etc.
Supply of certified copies of judgments, orders, notes of evidence and other documents in legal proceedings.
Free Legal Services also include provision of aid and advice to the beneficiaries to access the benefits under the welfare statutes and schemes framed by the Central Government or the State Government and to ensure access to justice in any other manner.
According to Section 2(c) of the Legal Services Authorities Act, 1987, âlegal servicesâ includes any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter.
Is Free Legal Aid Confined to the Cases before the Subordinate Courts?
No, free legal aid is not confined to cases before the subordinate Courts. Legal Aid is provided to the needy from the lowest Court to the Supreme Court of India. Legal Aid Counsel represent such needy persons before the lower Courts, High Courts and also before the Supreme Court of India.
What kind of cases can I apply free legal aid for?Â
According to Section 13 (1) of the Act, any individual who satisfies any criteria under Section 12 is entitled to receive legal services, provided that the concerned Legal Services Authority is satisfied that such person has a genuine case to prosecute or defend the matter. There is hence no bar as to which kind of cases one can apply and not apply for. All kinds of cases are included as long as the individual satisfies the eligibility under Section 12 of the Act.
Can I choose a lawyer of my choice under the free legal services/aid?
Yes, it is possible to avail the services of a lawyer of your choice under free legal services. According to regulation 7(6) of the National Legal Services Authority (Free and Competent Legal Services) Regulations 2010, the application for legal services will be scrutinized by the Member-Secretary or the Secretary and if the applicant has mentioned/expressed his/her choice of a lawyer on the panel, such Member-Secretary or Secretary can consider and allow the same.
Can I get only free legal consultation even if I do not want to pursue a proper case in the courts?
Yes, it is possible to get any kind of legal service under free legal aid/services.
Can I get free legal aid lawyer at any stage of case? Can I get free legal aid at the time of appeal even though I had my personal lawyer before the appellate stage?
Yes, you can apply to get free legal aid at any stage of the case as long as you are eligible to attain free legal services as per Section 12 of the Legal Services Authorities Act, 1987. Even if you had your personal lawyer before and require a lawyer under free legal aid only at the stage of appeal (and are eligible under Section 12), you can make an application to avail the same.
8.When can Legal Aid be Denied or Withdrawn? Legal Aid can be denied at the initial stage before the application for legal aid is accepted. It can also be withdrawn at the later stage after the application has been accepted and legal aid has been provided. Legal aid can be denied or withdrawn in the following circumstances: Legal aid can be denied if a person is found ineligible under Section 12 of the Legal Services Authorities Act, 1987 Legal aid can be withdrawn if the aided person who applied under the income category is found to possess sufficient means; Legal aid can be withdrawn where the aided person obtained legal services by misrepresentation or fraud; Legal aid can be withdrawn where the aided person does not cooperate with the Legal Services Authority/Committee or with the legal services advocate;
Legal aid can be withdrawn where the person engages a legal practitioner other than the one assigned by the Legal Services Authority/Committee; Legal aid can be withdrawn in the event of death of the aided person except in the case of civil proceedings where the right or liability survives; Legal aid can be withdrawn where the application for legal service or the matter in question is found to be an abuse of the process of law or of legal services.
What if the Person in need of Free Legal Aid is Illiterate? Such persons can be assisted by the SLSAs/DLSAs/TLSCs or panel Advocates etc., once they approach the legal services institutions. The Para Legal Volunteers (PLVs) who are stationed in the villages can also gather necessary information of such applicants and fill up the forms for them. The applicant is required to affix signature initials or thumb impression on the same. What is the procedure after my application is submitted with the Legal Services Institutions? Legal aid is provided to the entitled persons through legal services authorities existing from the National to Taluka levels including the NALSA, State Legal Services Authorities, District Legal Services Authorities, Taluk Legal Services Committees, Supreme Court Legal Services Committee and High Court Legal Services Committees. If, however, an application or request for legal aid is received by NALSA, NALSA forwards the same to the concerned authority. Once the application is submitted with the proper authority, it would be perused by the concerned Legal Services Institution as to what action is needed upon the same. The information about the next step on the application would then be sent to the parties concerned. The action taken on an application received would vary from providing counselling/advice to the parties, providing a lawyer to represent them in the court, etc.
9. What is the procedure after my application is selected/legal aid is granted? Once the application is selected, the applicant is given intimation about the assignment of a lawyer. A letter of appointment is also issued to the assigned lawyer with a copy to the applicant. The lawyer would thereafter contact the applicant at the earliest. The applicant may also contact the lawyer in the meanwhile. What is the average time taken for an application to be processed and for an individual to be assigned a free legal aid lawyer? According to Regulation 7(2) of the National Legal Services Authority (Free and Competent Legal Services) Regulations 2010, a decision on the application for free legal aid is to be taken immediately and not more than 7 days from the date of the receipt of the application.
10. How will I get an intimation/information of the acceptance, success, failure, etc. of my application? By email, SMS or Courier? Once the application is scrutinized by the concerned authorities, the information of its success or failure is given to the applicant in the following ways:
If the application was made physically at the front office of any Legal Services Authority, an address (either residential or email) for correspondence is usually noted and information regarding the application is sent to the same. If the application is made online via the NALSA website or the online portals of the Legal Services Authorities, an application number is generated and the appropriate Legal Services Authority is contacted. The applicant can track the status of the application on the online portal itself. If the application has been received from Government Departments / CPGRAM, an email is sent to the applicant. The applicant can also get a scanned copy of the application on the CPGRAM website. Remarks regarding the application are also made on CPGRAM website and the website of the Legal Services Authority
