Nyay Options

MURDER AND CULPABLE HOMICIDE: THE DIFFERENCE

Section 299 and 300 of the Indian Penal Code deals with Culpable Homicide and Murder respectively. Generally, it creates a difficulty to Lawyers and Practitioners as to where to lay their case. The meaning of Murder and Culpable Homicide are closely attached to each other; however, these cannot be used in place of each other.
Both of these phrases refers to the act of killing someone, but they differ in terms of their essentials.

Culpable Homicide is the circumstances which led to the death of a person by another person or a group of persons whereas a Murder is occurred when the death of a person is caused by another person or a group of persons with the intention to cause death.

Ingredients constituting Murder-

• Intention to cause death
• Commencement of act to cause death
• Knowledge of the act as to cause death

Ingredients constituting Culpable Homicide-

• Causing Death
• Death must have been caused due to the act
• Act must be done with-

1. Intention to cause death
2. Commencement of act to cause death
3. Knowledge of the act as to cause death

INTENTION becomes the key difference between the acts of Culpable Homicide and Murder. For the Act of killing someone to be classified as a murder, the act here should be unlawful and should consist of a malicious afterthought.

CONCLUSION
The main difference between culpable homicide and murder is that murder occurs when one person or a group of persons successfully kill a person with an intention or premediated aim of ending the latter’s life, while culpable homicide refers to such an act which led to the death of a person but does not amount to murder.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

ABHINAV KUMAR
www.nyayoptions.com

SELF INCRIMINATION: CAN THE ACCUSED BE COMPELLED TO REVEAL THEIR MOBILE PASSWORDS?

Mobile Phones have not only become a part of our lives, but they have now become a part of the human mind. Our lives have become incomplete without mobile phones. All the things we do such as the places we visit, the people we talk to, the food we eat, is known by our mobile phones. Our mobile phones know more about us than our friends and family. Everything which is done using a mobile phone leaves digital footprints everywhere.

If an accused in a criminal matter is asked for his password, fingerprint scan or face- scan for the purpose of unlocking their mobile phone leaves us with the following questions-

-Can the accused be compelled to do so?
-Does this infringe the right to privacy?
-Does it amount to being a witness against oneself?

According to Article 20(3) of the Constitution of India, “No person accused in an offence shall be compelled to be a witness against himself.”

Self- Incrimination means communication of information depending upon the personal knowledge of the accused and it cannot merely include the traditional process of producing documents in the Court.

Directing an accused to submit his handwriting sample, password, fingerprints, face-scan in order to unlock a mobile phone was said to be not in violation of Article 20(3) by the Supreme Court of India in the case of State of Bombay vs Kathi Kalu Oghad.

The Court held that testimonial evidence means “to be a witness” and being a witness “may be equivalent to furnishing evidence in the sense of making oral or written statements, but not in the larger sense so as to include giving of thumb impressions or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for the purpose of identification.”

Thus it is sufficient to say that an accused cannot refuse to unlock a phone protected by a fingerprint, or face or iris scan as none of them are testimonial in nature.

However, this fact cannot be denied that revealing the password, or fingerprint or face/iris scan for that purpose, can lead to a possibility of Self- Incrimination.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

ABHINAV KUMAR
www.nyayoptions.com

WHY POLICE IS RELUCTANT TO REGISTER AN F.I.R?

As we all know that the role of Police is to maintain Law and Order in the society and as per section 154 Cr.P.C. a police officer is bound to register an FIR in cognizable offence. However, Police is reluctant to register an F.I.R. even when a cognizable offence is reported as once an F.I.R. is registered, police machinery comes into action. On registration of an F.I.R., the same is marked to a police officer for investigation. During investigation, the police officer is to do a lot of work in respect to the investigation like visiting incident spot, prepare site map (Naksha Moka), record statements of witnesses, make seizures, collect samples/medical reports, send the seizures for forensic, trace accused person, recover case property, record accused statement, prepare search and arrest memos, prepare chargesheet etc.

The Police officers are always overburdened/stressed due to overload of work, shortage of police officers, multiple cases, VIP/festival/emergency deputations, court hearings etc., that they become reluctant to register an F.I.R. as they know that they will always be witness in the case at the time of trial of the case before court of law irrespective of their retirement from the Police department. Meaning thereby that a police officer registering an F.I.R along with other police officers connected with the investigation of the case shall always be bound to produce themselves before the court as and when the court summons them to depose at the time of trail which takes a lot of time and energy. Further, there is always probability of a departmental enquiry in case of acquittal due to improper investigation in the case. However, this does not give any right to the police officer to not register an F.I.R. in a cognizable offence.

If the Police officers are reluctant to register an F.I.R., it is advisable to immediately approach the senior police officers for registration of F.I.R. and lastly one must file an application under section 156(3) Cr,P.C. before the Metropolitan Magistrate seeking directions to the police for registration of F.I.R.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar
Advocate
9958319099
www.nyayoptions.com

WHY DO ADVOCATES NEED VAKALATNAMA FROM CLIENTS?

Vakalatnama is Power given by a litigant to his/her Advocate to appear/plead before any court of law on his/her behalf. It is also known as Power, Vakil Patra, VP. An Advocate is engaged by a person or entity by signing Vakalatnama. Without Vakalatnama, an Advocate cannot appear before court of Law on behalf of the client.

It is a usual practice of Advocates to get Vakalatnama signed by their client at the first instance. Litigants usually do not read the contents/terms stated in the Vakalatnama at the time of signing the same. It is advisable to read the terms of the Vakalatnama so as to avoid unwanted controversy going forward as Vakalatnama is a contract of agency which states the acts which an Advocate can perform on behalf of his client. Further, the terms of the Vakalatnama states that the Advocate cannot be held responsible for the outcome of the case. It also states, the fee paid to the advocate shall not be refunded and if the case prolongs more than 2-3 years, the original fee is to be paid again to the Advocate.

Apart from aforesaid terms in the Vakalatnam, there may me other terms incorporated in the Vakalatnama and hence, it makes sense to read the contents/terms of the Vakalatnama before signing the same. The client/litigant has a right to withdraw the power given to the advocate at any stage of the case and similarly the advocate can withdraw his/her vakaltnama at any stage but with the permission of the court.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar
Advocate
9958319099
www.nyayoptions.com

IS SENDING A LEGAL NOTICE MANDATORY BEFORE INITIATING CIVIL/CRIMINAL PROCEEDINGS?

A legal notice is an attempt to resolve a dispute before initiation of the legal proceeding. It is not mandatory to send a legal notice before initiating civil/criminal proceedings and hence, legal notice is a formal communication made to the other party who has done some wrong to the sender of the notice whereby it is brought to the notice of the wrongdoer to comply the terms of the legal notice within time stated in the notice or face consequences of Law. The legal notice is also served upon the wrongdoer to settle the dispute out of court as the sender intends to initiate legal proceeding, in case of non-compliance.

However, there are Statutes/Acts which mandates service of statutory legal notice upon the other party before initiation of proceedings under specific Acts like proceedings under The Negotiable Instrument Act mandate service of statutory legal notice. Similarly, The Insolvency and Bankruptcy Code, 2016, Recovery of Debts and Bankruptcy Act (RDB Act), 1993, Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests Act (SARFAESI Act), 2002, The Arbitration& conciliation Act etc mandates service of Statutory legal notice before proceeding under such acts. In nutshell legal notice is a formal communication and Statutory legal notice is a notice which the Staute/Act mandates.
Advocates in India charge anything between Rs.5,000/- to Rs.1,00,000/- for sending a Legal Notice/Statutory legal Notice. It is advisable to send a legal notice through your Advocate, as on one hand, it communicates to the other party your intention of initiating legal proceedings and on the other hand, either the other party upon receiving the legal notice may settle the matter which would save time, money and energy or the other party may choose to send a reply to your legal notice, admitting certain facts which will be important in the litigation going forward.
The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.
Vikram Kumar
Advocate
9958319099
www.nyayoptions.com

OUTRAGING OR INSULTING MODESTY OF A WOMAN

The term modesty means the s*xual dignity of a woman which is acquired by her since the time of her birth. Any person who assaults or uses criminal force to any woman, intending to outrage her modesty, shall be liable to be prosecuted under section 354 IPC and the offence committed is a cognizable and non-bailable offence. On the other hand, any words, sound, gesture, exhibition of any object or any act which is done by any person with the intention of insulting the modesty of a woman, shall be liable to be prosecuted under section 509 IPC and the offence committed is a cognizable but bailable offence.

Every woman has a fundamental right to live her life with dignity and law protects the modesty of a woman. In case of an assault or insult on the modesty of a woman, the incident or such act should be reported immediately by calling police/woman helpline. The victim should also report the incident to the police through a written complaint. In the written complaint, the victim should specifically state the time, place and manner in which the incident took place. Immediate reporting of the offence is of utmost important for the purpose of investigation and prosecution of the offender.

Apart from above provision, The Indian Penal Code, 1860, lays down many other provisions to penalise the offenders for committing offences against women like R**e (Sections 375, 376, 376A, 376B, 376C, 376D and 376E), Dowry Death, Abetment of Su***de (Section 304B and 306),Cruelty by husband or his relatives (Section 498A),Sexual harassment (Section 354A),Assault on women with intent to disrobe a woman (Section 354B),Voyeurism (Section 354C),Stalking (Section 354D)etc.
The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar
Advocate
9958319099
www.nyayoptions.com

WHAT IS ZERO FIR?

Zero FIR was inserted in the criminal law amendment by Justice Verma’s Committee after the incident of Nirbhya’s R**e Case.

As per Section 154 of the Code of Criminal Procedure, 1973, whenever an informant comes to the police station for registration of his complaint, the information is to be converted into writing by the Police Station Incharge and keep the record of the said information. An FIR is registered when the said information discloses commissioning of a cognizable offence (cognizable offences are offences which are serious in nature like r**e, murder, robbery, theft, grievous hurt etc.).

Most of the times, the police officers of a particular police station are reluctant to register an FIR on the ground of their jurisdiction by stating that the offence has been committed outside the jurisdiction of their police station and the informant/ victim is directed to report the offence/incident of crime with other police station having jurisdiction over the area wherein, the crime is committed. This often puts the informant/victim to unnecessary hardship and due to said delay in reporting the crime, the evidence of the offence gets destroyed resulting in denial of justice.

After criminal law amendment, the police officers of the police station receiving any information as to the commission of an offence, irrespective of their jurisdiction, are bound to register the FIR as “Zero FIR” and transfer the said FIR to the concerned police station without any delay, within whose jurisdiction the crime is committed. This results in speedy investigation and minimizing scope of destruction/tampering with the evidence and at the same time, Zero FIR fulfills the objective of minimizing hardship to the informant/victim to report the incident of crime.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar
Advocate
9958319099
www.nyayoptions.com

WHAT IS A BAIL BOND?

When an Accused is granted bail by any Court, the Accused is ordered to furnish a bond (with or without surety) to present himself before the Court as and when called upon, to pay the amount fixed by the Court. In case, the court orders for furnishing bail bond by the Accused alongwith surety, in that case, the Accused and the Surety shall furnish bonds for such amount as stated by the Court. The Surety is the person who undertakes to present the Accused before the Court. The Surety has to file an affidavit stating permanent address, relationship with Accused, income and also state the Surety amount. The Surety has to give an undertaking in the affidavit to produce the Accused before the Court on every date of hearing.

Practically, when the Accused fails to appear before the Court, the Court issues non-bailable warrants for Accused and a notice is served upon the Surety to appear before the Court. If, the Accused still does not appear or appears and does not show sufficient cause for his non-appearance before the Court, the Court forfeits the amount of the Surety and cancels, the bail granted to the Accused.

Provisions as to bail bond are provided in Chapter 33 of the Criminal Procedure Code, 1973. Bond and bail bond for attendant before office incharge of police station of Court is given under Section 436, 437, 438(3) and 441 of Cr.P.C.

The courts have discretion to accept bond from the Accused for a particular amount, however, the said amount is required to be fixed on the circumstances of the case. The Court also has discretion to accept bail bond from the Accused without any Surety or in multiple cases against Accused, the Court can also order for one surety, however the bail bond has to be furnished in all cases. The basic purpose of furnishing bail bond by the Accused and Surety is to secure the presence of the Accused before the Court. Many a times, it is seen that the Accused despite having granted bail is lingering in Jail (Judicial Custody) just for the reason that the Accused is not able to give a Surety. In that case, an application can be preferred by the Advocate for the Accused before the Court granting bail for modification of order so far, it relates to furnishing of Surety and can offer Surety in the form of Bank Guarantee or Cash on behalf of Accused.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar
Advocate
9958319099
www.nyayoptions.com

WHERE TO FILE A CLAIM WHEN THERE IS AN INJURY OR DAMAGE TO THE PROPERTY OF A PERSON DUE TO A MOTOR ACCIDENT?

The claim has to be filed before Motor Accidents Claims Tribunal. The Civil Courts do not have jurisdiction to adjudicate the claims pertaining to Motor Accidents. The Motor Accidents Claims Tribunal is created by The Motor Vehicle Act, 1988 so as to provide speedy claims to the victims of accident by motor vehicles.

The Victim (Claimant) has to file an application for payment of compensation under Section 140 and 166 of the Motor Vehicle Act, 1988 in a format which can easily be downloaded from Google. In case, the victim had died due to a motor accident, the application has to be filed by the legal heirs of the deceased/victim.

As per new provision of The Motor Vehicle Act, 1988, the claims before Motor Accidents Claims Tribunal can be filed beyond the limitation period of 6 months with a reasonable cause for delay.

The claim can be filed by person sustaining injury, owner of the damage property, legal heir of the deceased who died in the accident and the same can be filed before the Motor Accidents Claims Tribunal having jurisdiction over the area where the accident took place or where the Claimant resides.

In an application filed before Motor Accidents Claims Tribunal (MACT), the Claimant is required to implead the driver, owner and the insurer of the vehicle that caused the accident. Usually, the insurer of the vehicle that caused accident, settles the claim as per its policy with liberty to recover the said amount from the driver/owner, in case, it is found that the accident had taken place due to fault of the driver or the owner.

It is advisable to immediately report about the motor accident with the police and take photographs of the accident site if possible. One should keep all the medical reports and invoices of expenditure incurred on medication/treatment. If the victim is working in an organization, it is advisable to obtain the medical leave certificate and in case, the victim is self-employed, he/she should keep account of losses incurred in the business due to the said accident.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar
Advocate
9958319099
www.nyayoptions.com

DOES AN ACT OF A COUPLE SITTING IN A PARK AMOUNTS TO OBSCENITY?
Obscenity is defined under Section 294 of The Indian Penal Code and states:

Whoever, to the annoyance of others—
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

The object of Section 294 of IPC is to prevent any harm to the morals of the society and to upkeep the sanctity of public decency. Any act which is offensive to the morals of the society and public decency is an obscene act and in the interest of the society at large, such acts are to be discouraged and punished.
Section 67 of The Information and Technology Act states punishment for publishing or transmitting obscene material in electronic form and whoever publishes or transmits such obscene material shall be punished. The offence of obscenity is cognizable, however, a bailable offence.

The question has arisen number of times before the Courts for testing an act to be obscene or not. In the case of Ranjit D. Udeshi, the court held that the work of art and literature should not be judged and considered as obscene only on the criteria of s*x and nudity. The work of the artist must be considered as a whole and balance should be maintained between freedom of speech and public decency and morality. In case, the public decency or morality is transgressed by freedom of speech, then freedom of speech has to go so as to upkeep public decency and morality in the society.
The Fundamental Right as provided in Article 19 of our Constitution in respect to freedom of speech and expression is not an absolute right and is subject to reasonable restrictions to upkeep the public decency and morality in the society. Hence, all citizens of India should have a sense of responsibility towards the society and abstain from any act which is against public decency or morality.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar
Advocate
9958319099
www.nyayoptions.com

CAN A POLICE OFFICER SEARCH YOUR OFFICE OR HOUSE WITHOUT A SEARCH WARRANT?

Under Section 165 of The Code of Criminal Procedure 1973, whenever a police officer during investigation, has a reason to believe that something necessary may be found in any place which may be required for investigating an offence committed and the place where search is to be conducted, comes within the jurisdiction of the police station of which he is incharge and that thing cannot be otherwise obtained without the search, such officer may, upon recording his belief in writing, cause, search to be made, for such thing.

The police officer may conduct the search in person or order his subordinate to make search, however, the order has to be in writing, specifying the place to be searched and the thing to be searched. The police officer making a search shall call upon two or more independent inhabitants of the locality in which search is to be conducted and the search shall be made in their presence of those witnesses. A list of things seized in the course of such search and the place from which, the searched things are found is to be prepared by such officer and the same is required to be signed by the witnesses. It is called search memos. Though, the police officer can be conduct search without warrant in exceptional emergencies, however, the search are caused by the police without search warrant in most of the cases. It is advisable to allow the police officers to conduct search as obstructing a police officer in discharge of his duty, is a punishable offence under Section 186 of IPC.

On the other hand, search warrants are issued by a Court and the said warrants authorized the police officer to conduct search at the place and in the manner stated in the warrant. The search warrant can be issued by the Court suo moto or on an application by the police. The police/investigating officer is required to state a reason for causing such search. Search is only a temporary interference and does not violate Article 19 nor it amount to infringement of Fundamental Rights under Article 20(3) of The Constitution of India.
The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar
Advocate
9958319099
www.nyayoptions.com

HOW DO ADVOCATES FIX LEGAL FEE IN A CASE?

Like Doctors, Chartered Accountants, advocates are professionals and possess skill and knowledge in the field of law. The litigant at the time of appointing an advocate in a case, believes that the advocate to be an expert in the field which relates to his case and the advocate will profess his skill with due care keeping the interest of the litigant at utmost priority. It is often assumed that, if the professional charges of an advocate are high, the more competent, the advocate must be and the litigants turn up paying a higher fee for taking services of such advocates.

The advocates charging their client for rendering legal services is unregulated in our country. Though, as per Supreme Court Rules 2013, a lawyer should charge a maximum of Rs.8,000/- per hearing. However, advocates in India charge manifold then what has been stated. This happens as most of the advocates charge their client according to their paying capacity.

As per rules of The Bar Council of India, there are guidelines for charging fees by advocates for rendering their legal services. However, there is no rule or fee structure to fix the fee charges for advocates and hence, the advocates charge their client as per their own fee structure. The advocates also provide probono (without charging any fee) legal services to the litigants and a large section of advocates charge a very nominal legal fee from their clients.

The litigant should consider appointing an advocate who must have knowledge in the field which touches upon the case of the litigant. The litigant must interact with the lawyer and observe, whether the advocate can give adequate time to his case and whether the advocate is easily approachable or not. There should be a clarity in respect to the litigation charges payable by the litigant in his case as it is unpredictable as to how much time will it take for the case to be decided. I believe, that the pleadings (written presentation by a litigant/written objections challenging the claim of the litigant) are the backbone of a case and it is very important that the case is well drafted stating all the facts alongwith documents corroborating the facts stated therein and hence, the advocates knowledge and experience play an important role in getting justice for the litigant.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar
Advocate

DIFFERENCE BETWEEN PROMISE TO MARRY AND A FALSE PROMISE TO MARRY

Nowadays, it is common amongst youngsters to fall in love with each other. In most of cases during the period of courtship, there is always a promise by one person to marry the other person. If the promise to marry is broken, however, the intention to marry was genuine, the promise will not come in the category of “False Promise to Marry”. Basically by way of a promise to marry, a consent is obtained by a man from the woman to engage in the s*xual act. Hence, the consent given by the woman is a conditional consent based on promise given by the man to marry her. A false promise to marry by a man can be ascertained from certain facts and circumstances, which shall depict that the man had no intention to marry the woman from whom consent to engage in s*xual act has been obtained, it is called a false promise to marry which amount to cheating and r**e. The man being accused of s*xual act on false promise to marry is liable to be punished under Section 376 of IPC (offence of r**e). Sometimes, the man is married and conceal his marriage from the woman to obtain consent for engaging in s*x on promise to marry. The said promise is a false promise ab-initio as the intention of the man was never to marry the woman and hence, the man is liable for committing offence of r**e on the woman.

There are always chances of a woman entangling the man in false r**e cases by alleging that the consent for s*x was obtained by the man on false promise to marry. Though, there was no such promise and the woman had consented for s*x as per her wish. This happens when there is some kind of enimity between the man and the woman or between their families and the complaint is lodged at the instant of some close relative of the woman. In Indian law, statement of the Victim (upon whom r**e has been committed) is substantial evidence for conviction of the accused and it does not require any corroboration, if the sole testimony of victim is credible and trustworthy.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar
Advocate

CAN I RECORD PHONE CALLS AND USE THEM AS AN EVIDENCE IN THE COURT OF LAW?

In India, taping of telephonic conversation is illegal. Only, Government is enable to tap any phone calls and that is on the basis of specific laws. The Government can tap elephonic/electronic conversations in the interest of public, security of the country etc. It is interesting to note that although, taping of telephonic conversation is illegal, it has been accepted as an important piece of evidence in various cases like family disputes between husband and wife, criminal threats/ intimidation etc. There are following laws which govern tapping of telephonic conversations by the Government:

The Indian Telegraph Act vide its Section 5(2) has granted the government the power to intercept messages.

The Indian Telegraph Rules, 1941 by its Rule 419 A, provide guidelines on the procedure to be followed for telephone taping.

According to Section 3 of the Indian Evidence Act, 1872, electronic records are considered as documentary evidence. Electronic records are admissible as per Section 65A and 65B of The Indian Evidence Act. As per these provisions, call recordings are admissible in the court of law.

In cases, where a party records a telephonic conversation of the second party and produce the same before the court against the Second Party, the same may be considered as a valid evidence, if it fulfils the ingredients stated under Section 65A and 65B of The Indian Evidence Act. Though, recording of telephonic conversation is violation of Fundamental Right of the person, whose conversation is recorded (Violation of Fundamental Rights under Article 20 and 20 (3) of The Constitution of India). The aggrieved person, may file a petition under Article 32 or 226 of The Constitution of India before Supreme Court of India or High Courts for redressal of his/her grievance.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar & Ravi Kant
Advocates