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LAWCET

CONTRACT

The Indian Contract Act, 1872 defines the term “Contract” under its section 2 (h) as “An agreement enforceable by law”. In other words, we can say that a contract is anything that is an agreement and enforceable by the law of the land.

contract, in the simplest definition, a promise enforceable by law. The promise may be to do something or to refrain from doing something. The making of a contract requires the mutual assent of two or more persons, one of them ordinarily making an offer and another accepting

In simple terms, a contract means when two parties put into writing an agreement which contains certain obligations (promises) which are to be performed by such parties, and when such written agreement becomes enforceable by law, it becomes a Contract. Enforceable by law means when the agreement has acquired the force of law only for those who are a party to it and a violation of those obligations would attract legal action, including repudiation of the entire contract.

TYPES OF CONTRACT

Implied Contract

A Contract inferred by

• The conduct of person

• The circumstances of the case.

By implies contract means implied by law (i.e.) the law implied a contract through parties never intended.

According to sec 9 in so for as such proposed or acceptance is made otherwise than in words, the promise is said to be implied.

Example: A stops a taxi by waving his hand and takes his seat. There is an implied contract that A will pay the prescribed fare.

Quasi-contract

In such a types of contract, the rights and obligations arise not by an agreement but by operation of law.

Example: If Mr A leaves his goods at Mr B’s shop by mistake, then it is for Mr. B to return the goods or to compensate for the price.

E-contract

An E-contract is a contract made through the digital mode.

Example: Via Internet

Executed contract

In an executed contract both the parties have performed their promises under a contract.

Example: A contracts to buy a car from B by paying cash, B instantly delivers his car.

Executory contract

In a Executory contract both the parties are yet to perform their promises.

Example: A sells his car to B for Rs. 2 lakh. If A is still to deliver the car and B is yet to pay the price, it is an Eexecutory contract.

Partly Executed and partly executory contract

In a partly executed and partly executory contract, one party has already performed his promised and the other party has yet to execute his promise.

Example: Anuj sells his bike to Bibek. Though Anuj has delivered the bike, Bibek has yet to pay the price. For Anuj, it is an executed contract, whereas it is an executory contract on the part of Bibek since the price has yet to be paid.

Unilateral Contract

A unilateral contract is also known as a one-sided contract. It is a type of contract where only one party has to perform his promise.

Example: Anuj promises to pay Rs. 1000 to anyone who finds his lost cellphone. B finds and returns it to Anuj. From the time B found the cellphone, the contract came into existence. Now Anuj has to perform his promise, i.e. the payment of Rs. 1,000.

Bilateral contract

A Bilateral contract is one where the obligation or promise is outstanding on the part of both the parties. It is also known as a two-sided contract.

Example: Aj promises to sell his car to Bj for Rs. 1 lakh and agrees to deliver the car on the receipt of the payment by the end of the week. The contract is bilateral as both the parties have exchanged a promise to be performed within a stipulated time.

Valid contract

If the contract entered into by the parties and satisfies all the elements of a valid contract as per the act, it is said to be a valid contract.

Void contract

Section 2 (j) states as follows: “A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable”. Thus a void contract is one which cannot be enforced by a court of law.

Example: Mr Aj agrees to write a book with a publisher. After few days, Aj dies in an accident. Here the contract becomes void due to the impossibility of performance of the contract.

It may be added by way of clarification here that when a contract is void, it is not a contract at all but for the purpose of identifying it, it has to be called a void contract.

Voidable contract

Section 2(i) defines that an agreement which is enforceable by law at the option of one or more parties but not at the option of the other or others is a voidable contract.

This infact means where one of the parties to the agreement is in a position or is legally entitled or authorized to avoid performing his part, then the agreement is treated and becomes voidable.

Such a right might arise from the fact that the contract may have been brought about by one of the parties by coercion,undue influence, fraud or misrepresentation and hence the other party has a right to treat it as a voidable contract.

Illegal contract

Illegal contract are those that are forbidden by law. All illegal contracts are hence void also. Because of the illegality of their nature they cannot be enforced by any court of law.

In fact, even associated contracts cannot be enforced. Contracts which are opposed to public policy or immoral are illegal. Similarly contracts to commit a crime like supari contracts are illegal contracts.

Unenforceable contract

A type of contract which satisfies all the requirements of the contract but has technical defects is called an unenforceable contract.

A contract is said to have a technical defect when it does not fulfil the legal formalities required by some other act. When such legal formalities are compiled with, later on, the act becomes enforceable.

Difference Between Void and Voidable Contract

BasisVoid ContractVoidable Contract
NatureValid when made but subsequently becomes unenforceable.It remains as voidable until cancelled by the party
PerformanceParty cannot demand the performance of contract.If aggrieved party does not cancel it within a reason-able time, performance can be demanded.
DamagesParty cannot claim damages.Party can demand damages in certain cases.
Right or RemedyNo legal remedy is available for the void contract.Aggrieved party has a remedy to cancel the contract.
DefinitionIt means contract which ceases to be enforceable.It means an agreement enforceable by law, by one or more parties.
ReasonContract becomes void due to change in law or circumstances.If consent is not obtained freely then it is regarded as a voidable contract.

JURISDICTION AND  KINDS

In simple words, jurisdiction can be defined as the limit of judicial authority or the extent to which a court of law can exercise its authority over suits, cases, appeals, and other proceedings. The rationale behind introducing the concept of jurisdiction in law is that a court should be able to try and adjudicate only in those matters with which it has some connection or which fall within the territorial or pecuniary limits of its authority.

The basis to determine jurisdiction

Jurisdiction is determined mainly on the grounds of:

  1. Fiscal value;
  2. Geographical boundaries of a court;
  3. The subject matter of court.

So, the Court, before accepting notice of crime, needs to take into consideration the following characteristics:

  • The Fiscal value of the trial.
  • The specialties of the case.
  • The regional limits of the court.

Territorial or local jurisdiction

Under this territorial or local jurisdiction, the geographical limits of a court’s authority are clearly delineated and specified. It cannot exercise authority beyond that geographical/ territorial limit

Section 16 that the suit pertaining to immovable property should be brought to the court. The court does not have the power to decide the rights of property which are not situated. However, the court can still pass a relief if the opposite party agrees to try the suit in such a case.

Pecuniary jurisdiction

Pecuniary means ‘related to capital.’ It approaches the question of whether the court is competent to try the case of the financial value. The code allows analyzing the case unless the suit’s value exceeds the financial limit of the court. Section 15 of the Code of Civil Procedure commands the organization of the suit in the court of the low grade. It refers to the pecuniary jurisdiction of the Civil court.

Jurisdiction as to the subject matter

The subject matter can be defined as the authority vested in a court to understand and try cases concerning a special type of subject matter. In other words, it means that some courts are banned from hearing cases of a certain nature. No question of choices can be decided by the court which does not have subject matter jurisdiction.

Original and appellate jurisdiction

Appellate jurisdiction refers to the court’s authority to review or rehearse the cases that have been already decided in the lower courts. In the Indian circumstances, both the High Court and Supreme Court have the appellate jurisdiction to take the subjects that are bought in the form of appeals.

Original Jurisdiction refers to the court’s authority to take notice of cases that could be decided in these courts in the first instance itself. Unlike appellate jurisdiction wherein courts review the previously decided matter, here the cases are heard afresh.

Exclusive and concurrent jurisdiction

In Civil Procedure, exclusive jurisdiction means where a single court has the authority to decide a case to the rejection of all the courts. This jurisdiction is decided on the basis of the subject matter dealt with by a specific court. For example, the U.S District courts have particular jurisdiction over insolvency topics.

Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a particular case. In this situation, parties will try to have their civil or criminal case heard in the court that they perceive will be most favorable to them.

General and special jurisdiction

General jurisdiction means that general courts do not limit themselves to hearing only one type of case. This type of jurisdiction means that a court has the power to hear all types of cases. So the court that has general jurisdiction can hear criminal, civil, family court cases,s and much more.

Specific jurisdiction is the ability of the court to hear a lawsuit in a state other than the defendant’s home state if that defendant has minimum contacts within the state where the suit will be tried.

Legal and equitable jurisdiction

Equitable jurisdiction belongs to the authorities of the courts to take specific actions and pass some orders in order to deliver an equitable and reasonable outcome. These judgments are usually outside the purview of law, in the sense that support provided by the courts may not be necessarily confirmed by the statute.

Expounding and expanding jurisdiction

Expounding jurisdiction means to describe, clarify and explain jurisdiction. Expanding jurisdiction means to develop, expand or prolong jurisdiction. It is the duty of the court to clarify its jurisdiction and it is not proper for the court to extend its jurisdiction.

Execution  & Attachment

The word ‘execution’ is not defined in the C.P.C. It simply means the process for enforcing the decree that is passed in favor of the decree-holder. As per Rule 2 (e) of Civil Rules of Practice “Execution Petition” means the Petition to the court for the execution of any decree or order.

Choice of the mode of execution

There are various modes of execution that are acceptable according to Sec.51 of the Code of Criminal Procedure. According to this section, the various modes of execution of a decree are:

  • Delivery of any property that is specifically mentioned in the decree;
  • Attachment and sale of property;
  • Sale without an attachment of property;
  • The arrest of the judgment debtor;
  • Detention of the judgment debtor;
  • Appointment of a receiver.

Section 47 of the Code of Civil Procedure provides certain questions to be determined by the Court before executing the decree. The Court has to determine all questions arising between the parties to the suit, like:

  • Execution of decree;
  • The satisfaction of decree;
  • Discharge of the decree;
  • The Court can also determine whether the person is representative of a party or not.

The application of execution has to be filed by the decree-holder and the application can either be an oral application or a written application.

Modes of executing decrees

There are various ways to execute a decree, the Court has to follow the appropriate rules provided in Order 21 while executing a decree. According to Order XXI Rule 10, an application has to be filed in the Court by the decree-holder if he desires to execute it.

Delivery of property

Delivery of property is one of the most famous modes of executing a treaty. According to order XXI Rule 79, it is said that when the property that is sold is a movable property of which actual seizure has been made, it shall be delivered to the purchaser. Rule 35 of Order XXI discusses the rules regarding the decree of immovable property. According to this rule,

  • When the decree is for the delivery of immovable property, the property can be delivered to the person to whom it has been adjudged or to the representative of that person;
  • This delivery has to be made after removing any person bound by the decree who refuses to vacate the property; 
  • When the decree is for the joint possession of the immovable property, the possession shall be delivered after affixing the copy of the warrant in a place that is visible;
  • When the person in possession is not providing free access to the property, then the Court can remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession after giving proper warning to the women in that property.

 Attachment and sale of property

Section 60 of the Code of Civil Procedure provides the list of properties that are liable to attachment and sale in execution of the decree. The list which is liable to be attached for enforcement of decree according to this Section is:

  • Land;
  • Houses or other buildings;
  • Goods and Money;
  • Banknotes and cheques;
  • Bill of exchanges and promissory notes;
  • Hundis;
  • Government Securities, bonds, and other securities for money;
  • Debts; 
  • Shares in the corporation;
  • All other saleable property that belongs to the judgment-debtor can be movable or immovable.

Section 61 of the Code of Civil Procedure provides a partial exemption of agricultural produce.

Order XXI Rule 3 of the Code of Civil Procedure provides that if the immovable property is located within more than the local limits of the jurisdiction of one or more courts, then one of the Courts can sell and attach the property. According to order XXI Rule 13, there has to be certain information in the application for attachment of immovable property. According to Order XXI Rule 31, the decree for the specific movable property can be executed by:

  • Seizure of the property if it is practicable;
  • Delivery of the property to the person whom it has been adjudged;
  • The detention of judgment debtors in the civil prison.

Rule 41 of the Order XXI provides power to provide orders to the Court to examine the property of judgment debtors. The court may provide orders to the judgment debtor or officers in the case of firms to submit the relevant books and documents for examination. The value of the property is assessed in order to examine whether it would be sufficient for satisfying the decree. The judgment debtor, the officer in the case of corporations, and any other relevant person can be orally examined. According to Section 64 of the Code of Civil Procedure, any private alienation or transfer of property after the attachment, then the transfer would be considered void. Section 74 of the Code of Civil Procedure provides the power to arrest the judgment-debtor if they have obstructed or restricted the decree-holder from obtaining possession of any immovable property. The judgment debtor can be detained in prison for thirty days by the order of the Court.

Arrest and detention

Section 55 of the Code of Civil Procedure deals with various rules regarding arrest and detention. According to this Section,

  • The judgment debtor can be arrested at any time of the day and can be brought before the Court.
  • The detention of the Judgment debtor should be in civil prison.
  • No officer can enter the dwelling-house after sunset and before sunrise for making an arrest.
  • The officer should release the judgment debtor once the amount is paid.

Rule 37 of the Order XXI in the Code of Civil Procedure provides discretionary power to the judgment debtor to show cause against detention in prison. According to this rule:

  • Where the application is made for the execution of the decree for the payment of money by the arrest and detention of a judgment-debtor in the civil prison, then the Court provides an opportunity to the judgment debtor to show cause why he should not be sent to the civil prison.
  • The Court provides notice to the judgment debtor to appear before the court on a specified date and provide show cause.
  • The Court will also not provide the notice in certain situations, for example, if the court feels it would delay the process of execution or the judgment debtor might abscond within that time.

According to Rule 38, the warrant for the arrest of the judgment debtor will direct the officer authorized for execution to produce him in the Court within a reasonable time. Rule 39, of Order XXI, is an important provision that deals with the subsistence allowance. The decree-holder has to pay a certain sum that is fixed by the Court for the maintenance of the judgment debtor in the civil prison from the time of his arrest until he can be brought before the Court. No judgment debtor can be arrested if the decree-holder has not paid the subsistence allowance. Section 56 of the Code of Civil Procedure provides protection to women and according to this Section, women cannot be arrested in the execution of the decree for money. The scale for the monthly allowance is fixed under Section 57of the Code of Civil Procedure or else the Court can fix an amount that it thinks is sufficient. The payment has to be made in advance to the authorized officer in the beginning and the officer of prison in the later stage. The sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil prison shall be deemed to be costs in the suit. Rule 40 provides various proceedings that have to be followed after the appearance of the judgment debtor after providing the notice. Section 58 of the Code of Civil Procedure deals with the rules regarding detention and release. According to this section, the judgment debtor can be detained in a civil  prison:

  • For a period not exceeding three months- When the decree amount is more than a thousand rupees;
  • For a period not exceeding six weeks- When the decree amount is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees.

Section 59 of the Code of Civil procedure provides that the judgment debtor can be released on the grounds of illness. 

Set off (Order VIII, Rule 6)

Definition:

Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has a claim of some amount against the plaintiff what he does is he can claim a set-off in respect of the said amount. This right of the defendant to claim set-off has been recognized under Order 8, Rule 6 of the Code.

Essential Conditions:

  1. A defendant may claim a set-off, if:
  2. The suit is for the Recovery of money;
  3. The sum of money must be ascertained;
  4. Such sum must be legally recoverable;
  5. It must be recoverable by the defendant or by all the defendants, if not more than one;
  6. It must be recoverable by the defendant from the plaintiff(s);
  7. It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
  8. Both the parties must fill in the defendant’s claim to set-off, off the same character as they fill in the plaintiff’s

Effects:

When a defendant claims set-off, he is put in the position of the plaintiff as regards the amount claimed by him. Where the plaintiff doesn’t appear and his suit is dismissed or he withdraws, it does not affect the claim for set-off by the defendant and a decree may be passed in his favor if he is able to prove his claim.

Types of Set-Off

Set-off is of two kinds viz., legal set-off and equitable set-off. Rule 6 speaks of legal set-off only. In contrast to legal set-off, an equitable set-off can be claimed for unascertained money but it must arise from the same transaction. For example, where a servant sues his master.

for recovery of the amount of salary, the master can claim set-off for loss sustained by him due to negligence of servant since it arises out of the same relationship.

Legal Set-Off

It is apparent from a reading of the above provisions that in order to constitute legal set-off, the following conditions must be fulfilled, viz.,

  1. The suit must be for the recovery of money.
  2. The defendant must claim an ascertained sum of money. A sum of money due in respect of a disputed transaction cannot constitute an ascertained sum.
  3. That ascertained sum must be legally recoverable from the plaintiff, i.e., it is not barred by the law of limitation.
  4. The plaintiff’s claim and the set-off must be claimed in the same character. The amount must be recoverable by the defendant and if there is more than one defendant, then by all the defendants. Again, the amount must be recoverable by the defendant from the plaintiff and if there is more than one plaintiff, then from all the plaintiffs.
  5. The set-off should be within the pecuniary jurisdiction of the Court.

Equitable set-off

The Court of Equity in England allowed set-off when cross-demands arose out of the same transaction, even if the money claimed by way of set-off was an unascertained sum of money. The Common Law Courts refused to take notice of equitable claims for they were not ascertained sums. The Courts of Equity, however, held that it would be inequitable to drive the defendant to a separate cross-suit and that he might be allowed to plead a set-off though the amount might be unascertained. Such a set-off is called an equitable set-off.

In India, the distinction between legal and equitable set-off remains. The provisions as to legal set-off are contained in Order VIII, Rule 6, C.P.C. The same has now been enlarged by insertion of Rule 6-A with regard to counter-claim by the defendant. So far as equitable set-off is concerned it is provided in Order XX, Rule 19(3), C.P.C., which states that:

The provisions of this rule (relating to a decree for set-off or counter-claim and an appeal therefrom) shall apply whether the set-off is admissible under Rule 6 of Order VIII or otherwise.

WHITE COLLAR CRIMES

ECONOMIC OFFENSES (WHITE COLLAR CRIMES)

The concept of white-collar crime found its place in criminology for the first time in 1941 when Sutherland first published his research paper on white-collar criminality in the American sociological review. He defined white-collar crime as a crime committed by persons of high social status in the course of their occupation. e.g. -misrepresentation through fraudulent advertisement, infringement of patents, copyrights, and trade-marks, a publication of fabricated balance sheets and profit and loss account of business,etc. 

“White-collar crimes are committed by persons of status, not for need but for greed” sir Walter reckless 

White Collar Crimes are committed by people who are involved in otherwise lawful businesses and cover a wide range of activities. The perpetrators hold respectable positions in the communities unless their crime is discovered. The laws relating to white-collar crimes depend upon the exact nature of the crime committed.

Types of White Collar Crimes.

Extortion:

When a person illegally obtains someone’s property by actual or threatened force.

Insider-Trading:

When someone uses the confidential information to trade in shares of publicly held corporations.

Money-Laundering:

it means the concealment of origin of illegally obtained money.

Tax fraud:

It means evading tax by providing wrong information in tax forms or illegally transferring property in order to avoid tax etc.,

OFFENSE

What is an offense?

An offense is a crime that breaks a particular rule/law and requires a particular punishment.

An offense is a transgression of the law, by action or omission. That means there may be some cases where the law requires you to abstain or refrain from performing a particular act. There may also be cases where the law requires you to take a positive action, failing which you may be held liable for the offense

Civil offenses are against private persons (individuals like you and me) but criminal offenses are against the State. The State, represented by the Prosecutor, will argue the case against the defendant. So now, the prosecutor will make the case against the suspect, by submitting the issue sheet (pleadings) and the necessary evidence.

What is the difference between crime and offense?

Every society has a system of written rules and regulations to deal with people who deviate from normal, accepted behavior. People who violate these rules are treated as criminals and punished according to the enactment.

Offense:  any act that violates civil or criminal law. This violation of such a nature brings harm to the society and makes the culprit liable to serve a sentence in prison with a possible financial penalty.

Sec. 2(n) of Cr.P.C Act defines the word “  Offense “ to mean any act or omission made punishable by any law for the time being in force and sec.40 of the I.P.C which states that ‘offense denotes a thing made punishable by the code.

CLASSIFICATION OF OFFENCES

An offence is an illegal act or crime punishable in the eyes of law, The Code of Criminal Procedure Code, 1973 has recognised offences under three categories:-

  • Cognizable & Non-Cognizable offence
  • Bailable & Non-Bailable offence
  • Compoundable & Non-Compoundable offence
  1. COGNIZABLE AND NON- COGNIZABLE OFFENCE

COGNIZABLE OFFENCE

A cognizable offence is an offence where the police officer in accordance to the first schedule or under some other law can convict an accused without a warrant, usually, these offences are of heinous nature like murder, rake, kidnap, theft, dowery death…etc. In such offences the accused must be produced before the court in the stipulated time.

It is essential to file a First Information Report (FIR), under section 154 Cr.P.C, it mandatory for a police officer to note the commission of a cognizable offence in writing, which gives him the opportunity to collect evidence. In-State of Haryana v/s Bhajan Lal, the supreme court held that the FIR must contain a piece of information disclosing the commission of the cognizable offence.

It is the duty of the police officer to lodge an FIR and investigate the same, The courts have no power under section 482 Cr.P.C to interfere with the investigation by the Police or staying of arrest in cognizable cases.

EXAMPLES OF COGNIZABLE OFFENCE

  • Hiring or engaging persons to take part in an unlawful assembly or taking part in itself
  • Negligently or deliberately engaging into an act which is likely to spread infection of any dangerous disease
  • Counterfeiting Indian coin, selling false weights or measures for fraudulent use
  •  Rioting armed with dangerous weapons

BAIL OF COGNIZABLE OFFENCE

  • After investigation, if the charge sheets turn out to be against the accused then the magistrate can order an arrest.
  • During the Trial, bail application can be filed against the concerned magistrate, In appropriate cases, interim bail can be granted pending disposal of the final bail application, since arrest or detention can cause harm to a person’s reputation causing irreparable loss
  • Cognizable offences are both bailie and non- bailable.

NON- COGNIZABLE OFFENCE

Non- cognizable offences are those where a police officer cannot arrest the accused without the warrant, as listed under the first schedule of Indian penal code. These are usually not as serious as cognizable offence such as  forgery, cheating, defamation,..etc

In such offences, FIR is lodged to the magistrate after which the concerned police officer initiates the investigation. A charge sheet is further filed by the police officer which is followed by the trial and final order of arrest if the case has been made out. Any investigation without the requisite permission or order by the magistrate would be one without the jurisdiction[5]. Under section 155 of CrPC, if two or more offences are committed and one of them is cognizable then the officer will not be debarred from the further investigation as well as arrest can take place. 

EXAMPLES OF NON- COGNIZABLE OFFENCE

  • A public servant disobeying law with intent to cause harm to any person.
  • Bribing during elections
  • The false claim in a court of justice
  • Buying a slave
  • Misappropriation of movable property

BAIL OF NON-COGNIZABLE OFFENCE

  •  If the case is fit for trial,  accused is put forward the magistrate and if the case turns out against him then arrested.
  • In Hamid v/s Rashid alias, in case of addition of serious non-cognizable offence is required to surrender and apply for bail for newly added offences to save him from arrest.
  • The non-cognizable offence is bailable

2. BAILABLE OFFENCE AND NON- BAILABLE OFFENCE

BAILABLE OFFENCE

A Bailable offence is a one where bail is an absolute and indefeasible right, it could be granted by the police officer in whose custody he is or concerned magistrate. Such offences are being a member of an unlawful assembly, giving false evidence in a judiciary, causing a disturbance in an assembly..etc. In Rasiklal v/s Kishor, it was held that under section 436 of the code a bailable offence is entitled to be released on bail pending his trial. The offender is released on the basis of a “Bail Bond”.

BAIL UNDER BAILABLE OFFENCE

Bail can be granted on the basis of “Bail Bond” which contains the following conditions :-

  • Not to leave the territorial jurisdiction without the permission of the court.
  • Shall be present before the police whenever required to do so.
  • Not to tamper with the evidence. 

In Public prosecutor v/s Raghuramaiah, it was held under section 496 of the code, it is envisaged to realize the accused person on bail, further, the bond or sureties will be decided by the court itself. The court may refuse to grant bail to a bailable offence if the offender does not comply with the bail bond.

NON BAILABLE OFFENCE

A Non- bailable offence is the one where bail is not the matter of right, bail can only be granted in discretion of the court, such offences usually include murder, rape..etc. In State of Maharastra v/s Ramesh Taurani, it was held that along with other considerations, nature and gravity of the offence are essential to decide whether bail seal be granted to a Non- Bailable offence. Here,“ Bail Bond “ is used to grant bail along with more stringent conditions than of bailable offence. In state v/s Caption Jagjit Singh, it was held that a non – bailable offence cannot be granted bail if convicted for life imprisonment or the death sentence.

If the accused has been arrested for two offences the. He must get a bail bond for both the offences and satisfy conditions under them; At any point, if at any point the conditions of a bail bond are fulfilled then the bail will be forfeited.  In such conditions any Appel can be made against a forfeited order, Appel shall lie against the same judge and court where the order of forfeiture was passed.

BAIL UNDER NON- BAILABLE OFFENCE

  • The application of bail is granted before the magistrate conducting the trial.
  • Under section 497 of CrPC, it well settled that a judge has the discretion to grant or refuse bail to a person accused of a non – bailable offence.
  • He may be refused of bail if attempted to abscond or is doubtful of his credentials. 
  • Accused may apply for anticipatory bail to either high court or session court in order to get direction under section 438 of CrPC if he thinks he might get arrested. Anticipatory bill id different from that of normal bail, it is issued before an arrest takes place and becomes operative after the arrest has taken place.

Anticipatory Bail

It is applicable on bailable and nonbailable offences, the power given under anticipatory bail is privileged to a person who is under the apprehension of arrest thus when abused it can be taken back under section 439 of CrPC. In K. Gajendra Baidu v/s State of A.P, it was held that granting bail is necessary as at times influential persons implicate their rivals into false cases.

3. COMPOUNDABLE OFFENCE AND NON- COMPOUNDABLE OFFENCE

COMPOUNDABLE OFFENCE

The compoundable offence is where the complainant can drop his charges and enter into a compromise, the compromise must be Bonafide and not something to which he is not entitled, the court grants permission when convinced that the offence is entirely personal in nature and therefore does not affect public tranquility and compromise would bring peace as well as the secure end of justice, in such cases pursuing prosecution would be waste of time and energy.

Section 320 of CrPC splits up compoundable offences into two:-

  • Taking permission of the court is not necessary- such as criminal trespass, causing her, defamation…etc
  • Taking permission of the court is necessary:-  There are offences where the complainant has to take the permission of the court to drop the charges, the permission is usually required for offences grievous in nature and a bad example for the society such as voluntarily hurting someone with dangerous weapons, intentional alteration or destruction of valuable property during delivery…etc
  • Application for such offences shall be made before the same court where the trial is proceeding, once the charges are drop, the case is treated as the accused has been acquitted of the charges. 

NON- COMPOUNDABLE OFFENCE

A Non- compoundable offences cannot be compounded, can only be quashed as they are generally of heinous and criminal nature, thus the accused cannot be allowed to go Scot-free. All offences not mentioned in section 320 of Cr.P.C fall under Non- compoundable offenses. The complaint is generally filled by: the state” like police..etc hence the question to drop charges does not arrive, even the court does not have the power to compound such offences , the trial ends with acquittal or conviction of the offence, with the final order, the criminal trial ends. 

Decree

As per sec 2(2) of the Code of Civil Procedure, a “decree” is a formal adjudication’s expression that conclusively recognizes the parties’ rights with regard to all or some of the issues in the matter and may be either preliminary or final.

A decree must contain the following:

  1. Rejection of a plaint.
  2. Any dispute arising under Section 144 of the Code.

A decree must contain a formal statement of adjudication: A decree must contain a formal expression of adjudication. In other words, the court must declare its decision officially in the way prescribed by law.

Different Types of DecreesAccording to the Civil Procedure Code, there are three distinct sorts of decrees. They are as follows:

Preliminary Decree:
It is issued in cases where the court must first assess the parties’ rights and additional actions are required before the suit may be totally dismissed.

Final Decree:
A final decree is issued when a lawsuit is totally resolved and all issues in dispute between the parties have been resolved.
A decree may be conclusive in one of these ways:

  1. If no appeal is lodged within the specified time period against the decree,
  2. Where the subject has been determined by the highest court by decree.
  3. Where the decree terminated the matter totally.

Partially preliminary and partially final decree:
A decree is considered to be partially preliminary or partially final if it just establishes the parties’ rights and leaves the remainder of the issues to be resolved in subsequent processes.

REMAND & CUSTODY

REMAND

 The word remand generally means to return or to send back but, in the legal world, it has two different meanings.

  1. It means to send the accused back in the custody of the competent authority and
  2. It means to send back the cases from the appellate court to the lower court.

Remand is the act of sending a prisoner back into custody, specially in order that further evidence on the charge may be obtained.  Remand means to send a prisoner back to police custody, after preliminary or partial hearing before a court or magistrate, to be kept until the hearing is resumed or the trial comes on.Sec. 309 contemplates a remand to judicial lockup and not police custody.

The power of a court to remand an accused to custody is governed by a number of provisions of the Cr.P.C, these being Sections of these 167(2), 209(b) and 309(2). Each provisions is independent of each other and come into play at different stages of the criminal trial. The remand under Section 167(2) relates to the stage of investigation and is ordered for furthering the investigation and can be either in judicial custody or police custody. The remand under S.209(b) relates to the stage when the magistrate commits the case, he can remand the accused to the custody during and until the conclusion of the trial subject to the provisions of bail under the code and finally remand under S.309(2) relates to a stage after cognizance and can only be sent to judicial custody.

 CUSTODY

Custody relates to the possession or control of the certificates as physical objects. Custody means judicial or penal safe keeping. As per Sec. 167 of Cr. P.C,if the investigation into an offence is not completed within 24 hours and the accused is in custody, the concerned police officers shall forward the accused to the nearest Judicial Magistrate. If the accusations made are well-founded, the accused shall not be released on bail unless his/her detention is authorized by a magistrate from time to time. In the case of a woman under 18 years of age, the detention shall be in a remand home or a recognized social institution

CUSTODY

Custody relates to the possession or control of the certificates as physical objects. Custody means judicial or penal safe keeping.As per Sec. 167 of Cr.P.C if the investigation into an offence is not completed within 24 hours and the accused is in custody, the concerned police officers shall forward the accused to the nearest Judicial Magistrate. If the accusations made are well-founded, the accused shall not be released on bail unless his/her detention is authorized by a magistrate from time to time. In the case of a woman under 18 years of age, the detention shall be in a remand home or a recognized social institution.

TYPES OF CUSTODY

Police custody

Police custody means that the physical custody of the accused is with the Police, the accused is lodged in a lock-up of a police station. After an FIR is lodged for a cognizable offense (provides punishment for more than three years), the accused is arrested by the police to prevent the tampering of evidence or influencing the witnesses. 

Under Sec. 57 of Cr. P.C , the police officer cannot keep the accused for more than 24 hours, irrespective of whether the investigation is complete or not. The accused is produced before the concerned Magistrate within 24 hours of the arrest, the police seek his remand to police custody in order to complete the investigation expeditiously, the police decides for how long the accused must be kept in custody, which cannot exceed a period of 15 days.

Judicial Custody

Judicial custody is there in case of serious offenses, where the Court may accede on the request of the police to remand the accused in judicial custody after the police custody period expires, that is to prevent the tampering of evidence or witnesses.

It is mandatory in criminal cases to file a chargesheet within 90 days. If there is failure in the filing of a charge-sheet within 90 days, the bail is normally granted to the accused. But, in case if heinous offenses, like rape or murder, the accused is generally kept in a judicial custody (that is kept in jail under the custody of the court) for a longer duration despite the filing of a chargesheet, in order to not influence the process of trial.

The judicial custody may be for a period of 60 days for all other crimes, if the Court finds it convincing that sufficient reason exists, following which the suspect or accused may be released on bail.

Custom as a source of law

Custom refers to the code of conduct that has the express approval of the community that observes it. In primitive societies, there were no institutions that acted as authority over the people. This led to people organizing themselves to form cohesive groups in order to maintain fairness, equality, and liberty. They started developing rules with coordinated efforts to make decisions. They eventually started recognising the traditions and rituals practiced by the community routinely and formed a systematized form of social regulation. In India, laws relating to marriage and divorce are mostly developed from customs followed by different religious communities. Additionally, several communities belonging to the Scheduled Tribes category have their own customs related to marriage. As a result of that Section 2(2) of the Hindu Marriage Act, 1955 has exempted Scheduled Tribes from the application of this Act. 

Requisites of a valid custom

  1. Reasonability: The custom must be reasonable or practical and must conform with the basic morality prevailing in the modern-day society. 
  2. Antiquity: It must have been practiced for time immemorial. 
  3. Certainty: The custom must be clear and unambiguous on how it should be practiced.  
  4. Conformity with statutes: No custom must go against the law of the land. 
  5. Continuity in practice: Not only the custom must be practiced for time immemorial, but it should also be practiced without interruption. 
  6. Must not be in opposition to public policy: The custom must adhere to the public policy of the state. 
  7. Must be general or universal: There must be unanimity in the opinion of the community or place in which it is practiced. Hence, it should be universal or general in its application.