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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.

SUBSTANTIVE & PROCEDURAL LAWS

SUBSTANTIVE LAW

substantive law is also called as statutory law that defines and determines the rights and obligations of the citizens be protected by law; defines the crime and also their remedies. it deals with the structure and facts of the case, relationship between the people and State therefore, substantive law defines the right and duties of the people.it includes all categories of public and private law.

SUBSTANTIVE CIVIL LAW

It can be defined as a Law which includes any private wrong, which unfairly causes someone else to suffer loss or harm resulting in legal liability.

SUBSTANTIVE CRIMINAL LAW

what constitutes the crime e.g.( I.P.C) Indian Penal Code defines various penal offences and lists the elements that must be proved to convict a person of a crime. it also provides for punishment applicable to those offences.

PROCEDURAL LAW

procedural law is also called as Adjective law prescribes procedure for the enforcement of rights and liabilities. it deal with the enforcement of law that is guided and regulated by the practice, procedure and machinery. procedural law defines the modes and conditions of the application of remedies to violated rights; provides for mechanism for obtaining evidence by police and judges, conduct of searches, arrests, bail and presentation of evidence at trail and process of sentencing. it is the law of action that includes all legal proceedings, Civil or Criminal.

ORDER

According to Section 2(14) of the Code, “order” refers to the formal statement of any Civil Court judgement that is not a decree.

The Fundamental Components of an Order:

  • Formal Expression of court.
  • The term “Formal Expression” should not be construed as a decree.
  • A civil court must render the decision.

Ordering Styles/TypesOrders that are appealable:
Orders that are appealable. Orders referred to in Section 104 and CPC Order 43 Rule 1 are instances of appealable orders.

As a general rule, on Order of a Court is founded on the objective consideration and such judicial order must contain a discussion of the question at issue and the reasons which prevailed in the court which led to the passing of the Order

Orders can be classed as follows:

Final Order:
The final order establishes the parties’ rights in the Suit.

Interlocutory Order:
Temporary orders were made by the Court through out the case. it only settle and intervening matter relating to the cause, interlocutory order is also known as Interim Order. it is decision of the Court which does not deal with the finality of the case but rather settles a subordinate issue relating to the main subject matter.
 

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.

SOLATIUM

Meaning of Solatium

Solatium means  A thing given to someone has compensation. It means a thing given to someone as compensation for consolation. It is being given to meet with the unwillingness of the persons interested to part with the property being acquired.

LEGAL MEANING OF SOLATIUM 
  1. Something is given in compensation for inconvenience, loss, injury, or the like recompense.
  2. Law damages awarded to a plaintiff as compensation for personal suffering or grief arising from the injury 
SOLATIUM IN LAND ACQUISITION 

Solatium is part and parcel of compensation that is payable for compulsory acquisition of land, which may fetch a better price in the market to the landowner. Solatium and interest are integral parts of compensation that is awardable to persons whose lands have been compulsorily expropriated.

Section 30 award of solatium is the Right to fair compensation and transparency in land acquisition, rehabilitation, and resettlement act 2013

Importance of solatium 

  1. The collector having determined the total compensation to be paid , shall, to arrive at the final award,impose a solatium amount equivalent to 100% of the compensation amount i.e;; solatium amount shall be in addition to the compensation payable to any person whose land has been acquired

.Explanation.—For the removal of doubts, it is hereby declared that the solatium amount shall be in addition to the compensation payable to any person whose land has been acquired.

  1. The collector shall issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the first schedule.
  2. In addition to the market value of the land provided under section 26, the collector shall,in every case, award an amount calculated at the rate of 12% annum on such market value for the period commencing on and from the date of publication of the notification of the social impact assessment study under section 4 (2) in respect of such land ,till the date of the award of the collector or the date of taking possession of the land whichever is earlier .

CONSIDERATIONS FOR SOLATIUM 

  1. The MARKET value of property +compensation for 
  • Severance 
  • Injurious affection 
  • Temporary and permanent loss of business
  • Shifting charges 
  • Damages to standing crops 

PROBATION OF OFFENDERS

probation means ‘I prove my worth’ and is derived from the Latin word ‘ probare‘ meaning ‘tested’ or ‘proved’. The legal concept of probation is conditional suspension of sentence and it is a part of the decision making process of the judge at the time of sentencing. Thus probation is a method of penal non-institutional treatment of offenders developed as an alternative to imprisonment out of a realization that short-term imprisonment is harmful and ineffective. There is no precise legislative definition of the term probation. Neither the Criminal Procedure Code 1973 nor the Probation of Offenders Act 1958 define what probation means. Both these enactments use the words „release on probation of good conduct‟ without actually defining the term.

The object is to reform and reintegrate offenders without submitting them to the stigma of prison life. It is applicable against those offenders who are redeemable such as young offenders and first-time offenders where criminal tendencies are not deep-rooted.

The Probation of Offenders Act 1958 and Criminal Procedure Code – Sec..360 and 361. In Probation sentencing, when any convicted person is found fit to be released on probation the court may not pronounce any sentence against him but he may be released on probation for good conduct. In such a situation if the person violates the terms and conditions of probation or he is not reformed, the court then considers the sentence to be imposed

Power of court to release certain offenders on probation of good conduct

Section 4 of the Act deals with the power of the court to release certain offenders on probation for good conduct. An offender may be released on probation if the following conditions are fulfilled:

 (i) Any person is found guilty of having committed an offense; 

(ii) The offense so committed must not be punishable with death or imprisonment for life; 

(iii)The court by which the person is found guilty is of the opinion that it is expedient to release him on probation of good conduct;

 (iv)The court may form such an opinion having regard to (i) the circumstances of the case, (ii) the nature of the offense, and (iii) the character of the offender.

 If the above conditions are fulfilled, the court may, instead of sentencing him at once to any punishment, direct that the offender should be released on entering into a bond to appear and receive a sentence when called upon during the period of probation. The bond so directed may be taken with or without securities. The period of probation will be such as the court may direct but it will not exceed three years.

BAIL

 ‘Bail’ is derived from the old French verb ‘ballier’ meaning to ‘give or deliver’.

Bail has not been defined in the Code of Criminal Procedure, but the dictionary meaning of Bail is the security with securities for the prisoners’ appearance to answer the charge at a specified time and place.  The bail is the process by which a person is released from custody while the judicial release from custodial juris.

 In simple words, Bail is the process of release under the guarantee that a person arrested on a criminal charge will appear for trial for examination when duly requested if he is temporarily released.  According to Section 439(2) the code of criminal procedure, the High Court or Court of Session may direct that any person who has been released on bail under chapter XXXIII (i.e., relating to bail) be arrested and committed to custody.

Objective

The primary objective of arrest is to ensure that the accused in a criminal case appears before the court for the conveyance of justice. However, if the person’s presence can be guaranteed for the court trial without putting the person in jail, it would be unfair and unjust to violate a person’s liberty. Thus, bail can be granted as a conditional liberty to the accused.

Types Of Bail 

There are commonly 3 types of bail in India which a person can apply depending upon the stage of the criminal matter:

  1. Regular Bail: A regular bail can be granted to a person who has already been arrested and kept in police custody. A person can file a bail application for regular bail under Section 437 and 439 of the CrPC.
  2. Interim Bail: Interim bail is a bail granted for a short period of time. Interim bail is granted to an accused before the hearing for the grant of regular bail or anticipatory bail.

Anticipatory Bail: A person who discerns that he may be arrested by the police for a non-bailable offense, can file an application for anticipatory bail. It is like an advance bail obtained under Section 438 of the Cr PC. A bail under Section 438 is a bail before arrest and a person cannot be arrested by the police if the anticipatory bail has been granted by the court.

Conditions For Bail In Bailable Offenses

Section 436 of the CrPC lays down that a person accused of any bailable offense under the IPC can be released on bail.  Bailable offenses under the IPC include unlawful assembly (Section 144 of CrPC), payment of bribe during elections, fabrication of false evidence, sale of poisonous food or drink knowingly, participation in riots, being armed with deadly weapon, furnishing false information, threat of injury to public servant, selling adulterated drug, selling obscene book, causing death by negligence (Section 304A), stalking, criminal defamation, etc.

However, there are certain conditions on which a bail can be granted in case the person is arrested or is likely to be arrested for a bailable offense:

  1. There are sufficient reasons to believe that the accused has not committed the offense.
  2. If, as per the court, there is sufficient reason to conduct further enquiry in the matter.
  3. The person is not accused of any crime for which is punishable with death, imprisonment for life or imprisonment up to 10 years.

Conditions For Bail In Non-Bailable Offenses

An accused does not have the right to apply for bail in case of a non-bailable offense. The power to release a person on bail in a non-bailable offense lies with the court. Section 437 of the CrPC lays down the power of court to grant a bail to a person even in a non-bailable offense.

Non-bailable offences under the I.P.C include sedition, waging or attempting to wage war against the government, counterfeit of Indian currency, adulteration of drug, murder (Section 302), culpable homicide not amounting to murder (Section 304), dowry death (Section 304B), abatement of suicide, abetment of suicide, abduction of child under 10, trafficking of person, rape (Section 376), cruelty by husband or his relatives (Section 498A), etc. The conditions on which the court grants a bail in a non-bailable offense are as follows:

  1. If the accused is a woman or child, bail can be granted in a non-bailable matter.
  2. If there is a lack of adequate evidence, the court can grant a bail in non-bailable offense on discretion.
  3. If there is a delay in registering the FIR by the complainant.
  4. If the person accused is physically or gravely sick.
  5. If there is some corroboration as to personal animosity between the accused and the person who filed the criminal matter.

Cancellation Of Bail

The court has the power to cancel a bail granted even at a later stage. The power of the court is laid down under Section 437(5) and 439(2) of the CrPC. The court can cancel the bail granted by it and give directions for the arrest of the person in police custody. However, the court does not have the power to cancel a bail granted by a police officer.

FIR 

FIR (First Information Report) is a report which comes under criminal procedure code (C.r.pc) section 154 in 1973. An FIR can be registered only for cognizable offenses. Cognizable offenses are those offenses in which the officer-in-charge of a police station can arrest a person without a warrant. It is recorded in the manner under section 154 of c.r.pc. Every police station has a jurisdictional area for which they can take up the investigation if an offense commission of cognizable offense comes under their area of jurisdiction.

First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offense. It is a report of information that reaches the police first at that point in time and that is why it is called the First Information Report. A cognizable offense is one in which the police may arrest a person without a warrant. They are authorized to start an investigation into a cognizable case on their own and do not require any orders from the court to do so. Non-cognizable Offense A non-cognizable offense is an offense in which a police officer has no authority to arrest without a warrant. The police cannot investigate such an offense without the court’s permission.

ESSENTIAL ELEMENTS OF F.I.R.

It is information that is given at the first stage to the Police Officer In- charge of the Police station. The information must relate to a cognizable offense. It is on the basis of this information that investigation into the offense commences. The FIR could be in any type i.e. X’, Titten, or oral. It can also be given on the telephone. Sunil v/s State of MP, 1997.It is essential that a detailed explanation of the incident should be given in the FIR. In the case of Navratan Mahanto v/s State of Bihar-1980, the court observed that the prosecution cannot be dismissed merely on the basis that FIR does not contain a complete explanation of happening as only the gist of the happening in a factual position needs to be mentioned.

Section 154 says- As soon as the Officer-in-charge receives information of commission of a cognizable offense, entry to this effect shall & immediately be made in the Register maintained for this purpose without delay. If any information is given orally, it should be recorded and then read and obtained the signature of the person giving information. In the case of State of A.P v/s P. Ramulu: 1993, the court observed that FIR cannot be refused to be recorded on the ground that the offense was committed not within the jurisdiction There should be no delay in registering FIR.

Who Can File an FIR

First Information Report (FIR) can be filed by any person. He need not necessarily be the victim or the injured or an eye-witness. First Information Report may be merely hearsay and need not necessarily be given by the person who has first hand knowledge of the facts.

Where to file an FIR

An FIR can be filed in the police station of the concerned area in whose jurisdiction the offense has occurred. The first is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty person.

Why FIR should be filed promptly

This is the golden principle of law prescribed in the Code of Criminal Procedure, 1973 that the First Information Report should always be filed promptly and without wasting any time. Such a report gains maximum credibility and is always welcome and appreciated by the courts.

According to the Supreme Court, the FIR recorded promptly before the time afforded to embellish or do away with the evidence is useful. It eliminates the possible chance of giving rise to suspicion.

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. 

Sources of Law

John Salmond, a legal scholar renowned for his ideologies on law in the field of jurisprudence, classified the sources of law into mainly two categories,i.e., material sources and formal sources.

Material sources

Material sources of law are those sources from which the law gets its content or matter, but not its validity. There are two types of material sources which are legal sources and historical sources. 

Legal sources 

Legal sources are the instruments used by the state which create legal rules. They are authoritative in nature and followed by courts of law. These are the sources or instruments that permit newer legal principles to be created. According to Salmond, legal sources of English law can be further classified into four categories- 

  • Legislation, 
  • Precedent, 
  • Customary law, and
  • Conventional law. 

Historical sources

Historical sources are sources that influence the development of law without giving effect to its validity or authority. These sources influence legal rules indirectly. The difference between legal and historical sources is that all laws have a historical source but they may or may not have a legal source. Decisions given by foreign courts serve as an example for this kind of source.