How to make a will?

What is a will?

A will is the testament of a person about how his property both movable and immovable is to be managed; It may also include those persons who may become beneficiaries in his property after his death. A will can only be made with respect to self-acquired property of the testator or pertaining to disposal of his vested share in the ancestral property, A will can only be made by any person who is above the age of 18. In the absence of will the property of the testator could be disposed off according to intestate rules.

 

Essentials for valid will?

1. Declaration In The Beginning: In the first paragraph, person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to write a Will.

2. Details of Property and Documents: The next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. He must also state the place where he has kept all the documents if the will documents are under safe custody of the bank then testator has to write details about the releasing of the Will from the bank. Here it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.

3. Details of ownership By The Testator: A testator while making a original Will should specifically mention that who should own his entire property or assets so that it will not affect the interest of the successors after his death. If testator wishes the name of the minor as beneficiary then a custodian of the property should be appointed to manage the property.

4. Attestation of the ‘Will’ : At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of at least two independent witnesses, who have to sign after his signature, certifying that the testator has signed the Will in their presence. The date and place also must be indicated clearly at the bottom of the Will. It is not necessary that a person should sign all the pages of the Will instrument but he must sign to avoid any legal disturbances.

5. Execution of A ‘Will’: On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court will grant probate .A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. Thereafter, if no objection is received, the probate will be granted and It is only after that Will comes into effect.

Registration of ‘Wills’: According to the Section: 18 of the ‘Registration Act, 1908’ the registration of a Will is not compulsory. Once a Will is registered, It is a strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after. The process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator himself or his authorised agent. Once the scrutiny of Will instrument is done by the registrar and registrar is satisfied with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator. In case if registrar refuses to order Will to be registered then testator himself or his authorised agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the evidence produced by the plaintiff. A suit can only be filed within 30 days after the refusal of registration by the registrar. If the testator willing to withdraw the Will after the process of registration then a sufficient reason has to be given to registrar, if satisfied he will order for the registration of Will.

 

 Probate: It is the copy of the will which is given to the executor together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved. The application for probate shall be made by petition along with copy of last Will and testament of the deceased to a court of competent jurisdiction. The copy of the will and grant of administration of the testator’s estate together, form the probate. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the will and it is the only proper evidence of the executor’s appointment. The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator. Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.

 ‘Wills’ By Muslims Under ‘Mohammedan Law’: A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death. A will may be in the form of oral or written if the will is in writing need not be signed if signed need not be attested. Acc to Shia Law if served bequests are made through a will, priority should be given to determination by the order in which they are mentioned a bequest by way of will. A Will Can be made by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is capable of holding property except unborn persons and heirs. The revocation of will is possible only if the subsequent Will is made by the testator. A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs gives consent or only heir is husband or wife.

Statutes Relating To ‘Wills’: There are many laws which are dealing with the concept of ‘Wills’ as follows:

• Indian Succession Act, 1925

• Hindu Law (Hindus Personal Law)

• Muslim Law (Muslims Personal Law)

• Indian Registration Act, 1908

 

 

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Supreme Court Cases 316-2008
Chaturbhuj Vs. Sitabai,
Dismissing the appeal, the Court
Dismissing the appeal, the Court
HELD: 1.1. The object of the maintenance proceedings is not to punish a person
for his past neglect, but to prevent vagrancy by compelling those who can
provide support to those who are unable to support themselves and who have a
moral claim to support. The phrase “unable to maintain herself” would mean that
means available to the deserted wife while she was living with her husband and
would not take within itself the efforts made by the wife after desertion to
survive somehow. S.125 Cr.P.C. is a measure of social justice and is specially
enacted to protect women and children and falls within constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. It
provides a speedy remedy for the supply of food, clothing and shelter to the
deserted wife. It gives effect to fundamental rights and natural duties of a man
to maintain his wife, children and parents when they are unable to maintain
themselves. [Para 5] [586-B, C,D, E]
Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR (1978) SC
1807 and Savitaben Somabhai Bhatiya v. State of Gujarat and Ors., (2005) 2 Supreme 503, relied on.
1.2. Under the law, the burden is placed in the first place upon the wife to
show that the means of her husband are sufficient. In the instant case, there is
no dispute that the appellant has the requisite means. But there is an
inseparable condition which has also to be satisfied that the wife was unable to
maintain herself. These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his wife. The appellant
has placed material to show that the respondent-wife was earning some income.
That is not sufficient to rule out application of s.125 Cr.P.C. It has to be
established that with the amount she earned the respondent-wife was able to
maintain herself. Whether the deserted wife was unable to maintain herself, has
to be decided on the basis of the material placed on record. Where the personal
income of the wife is insufficient she can claim maintenance under s.125 Cr.P.C.
The test is whether the wife is in a position to maintain herself in the way she was used to at the place of her husband.[Paras 6, 7 and 8] [583-F, G; 584-A, B, C]
Bhagwan v. Kamla Devi, AIR (1975) SC 83, relied on and re-iterated.
2. The trial Court, the Revisional Court and the High Court analysed the
evidence and held that the respondent wife was unable to maintain herself. The
conclusions are essentially factual and they are not perverse. That being so
there is no scope for interference in this appeal. [Para 9] [584-D, E]
Shashindra Tirpathi, Sharad Tripathi and Debasis Misra for the Appellant.
Shashi Bhushan Kumar for the Respondent.
Code of Criminal Procedure, 1973:
s.125-Claim for maintenance by wife-Wife not having sufficient means to maintain
herself and husband having sufficient means-Order of maintenance by Courts below
after analyzing evidence-Interference with-Held: Conclusion of courts below that
wife was unable to maintain herself was essentially factual and not
perverse-Thus, interference not called for-Constitution of India-Article 136.
s.125-Maintenance proceedings-Object of-Held: s.125 is a measure of social
justice, especially enacted to protect women, children and parents when they are
unable to maintain themselves, and falls within constitutional sweep of Article
12(3) reinforced by Article 39 of the Constitution-Constitution of India,1950-Articles 15(3) and 39-Social justice.
Words and phrases: “unable to maintain herself“-Meaning of-In the context of
s.125 of Code of Criminal Procedure, 1973.
The respondent-wife filed an application under s.125 Cr.P.C. claiming
Rs.10,000/- as maintenance from the appellant-husband. In the application, it
was claimed that she was unemployed and unable to maintain herself.
The stand of the appellant was that the wife was living in the house constructed
by him; that she had let out the house on rent and since 1979 was residing with
one of their sons; that the wife had sold the agricultural land and sale
proceeds were still with her; and that she could maintain herself from the money
received from the sale of agricultural land and rent.
Considering the evidence on record, the trial Court directed husband to pay
Rs.1500 per month opining that the wife did not have sufficient means to
maintain herself. The revisional Court analysed the evidence and dismissed the
revision petition holding that the appellant’s monthly income was more than
Rs.10,000/- and the amount received as rent by the respondent-wife was not
sufficient to maintain herself.
Appellant filed an application under s.482 Cr.P.C. before the High Court. The
High Court dismissed the application holding that the conclusions by the trial
Court and the Revisional Court were arrived at on appreciation of evidence and
therefore there was no scope for any interference. Hence the present appeal.
2008 AIR 530 , 2007(12 )SCR577 , 2008(2 )SCC316 , 2007(13 )SCALE402 , 2008(1)JT78
CASE NO.:Appeal (crl.) 1627 of 2007
PETITIONER:Chaturbhuj
RESPONDENT:Sita Bai
DATE OF JUDGMENT: 27/11/2007
BENCH:Dr. ARIJIT PASAYAT & AFTAB ALAM
JUDGMENT:J U D G M E N T
CRIMINAL APPEAL NO. 1627 OF 2007
(Arising out of SLP (Crl.) No.4379 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Madhya Pradesh High Court,
Indore Bench, dismissing the revision petition filed by the
appellant in terms of Section 482 of the Code of Criminal
Procedure, 1973 (in short ‘Cr.P.C.’). The challenge before the
High Court was to the order passed by learned Judicial
Magistrate, First Class, Neemuch, M.P. as affirmed by the
learned Additional Sessions Judge, Neemuch, M.P. The
respondent had filed an application under Section 125 of
Cr.P.C. claiming maintenance from the appellant.
Undisputedly, the appellant and the respondent had entered
into marital knot about four decades back and for more than
two decades they were living separately. In the application it
was claimed that she was unemployed and unable to maintain
herself. Appellant had retired from the post of Assistant
Director of Agriculture and was getting about Rs.8,000/- as
pension and a similar amount as house rent. Besides this, he
was lending money to people on interest. The appellant
claimed Rs.10,000/- as maintenance. The stand of the
appellant was that the applicant was living in the house
constructed by the present appellant who had purchased 7
bighas of land in Ratlam in the name of the applicant. She let
out the house on rent and since 1979 was residing with one of
their sons. The applicant sold the agricultural land on
13.3.2003. The sale proceeds were still with the applicant.
The appellant was getting pension of about Rs.5,700/- p.m.
and was not getting any house rent regularly. He was getting
2-3 thousand rupees per month. The plea that the appellant
had married another lady was denied. It was further
submitted that the applicant at the relevant point of time was
staying in the
house of the appellant and electricity and water
dues were being paid by him. The applicant can maintain
herself from the money received from the sale of agricultural
land and rent. Considering the evidence on record, the trial
Court found that the applicant-respondent did not have
sufficient means to maintain herself.
3. Revision petition was filed by the present appellant.
Challenge was to the direction to pay Rs.1500/- p.m. by the
trial Court. The stand was that the applicant was able to
maintain herself from her income was reiterated. The
revisional court analysed the evidence and held that the
appellant’s monthly income was more than Rs.10,000/- and
the amount received as rent by the respondent-claimant was
not sufficient to maintain herself. The revision was
accordingly dismissed. The matter was further carried before
the High Court by filing an application in terms of Section 482
Cr.P.C. The High Court noticed that the conclusions have
been arrived at on appreciation of evidence and, therefore,
there is no scope for any interference.
4. Section 125 Cr.P.C. reads as follows:
“125. (1) If any person having sufficient means
neglects or refuses to maintain
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or
(c) his legitimate or illegitimate child (not being
a married daughter) who has attained
majority, where such child is, by reason of any
physical or mental abnormality or injury
unable to maintain itself, or
(d) his father or mother, unable to maintain
himself or herself,
a Magistrate of the First Class may, upon proof of
such neglect or refusal, order such person to make
a monthly allowance for the maintenance of his wife
or such child, father or mother, at such monthly
rate not exceeding five hundred rupees in the whole,
as such Magistrate thinks fit, and to pay the same
to such person as the Magistrate may from time to
time direct:
Provided that the Magistrate may order the
father of a minor female child referred to in clause
(b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is
not possessed of sufficient means.
Explanation .For the purposes of this Chapter,
(a) ‘minor’ means a person who, under the
provisions of the Indian Majority Act, 1875 (9
of 1875), is deemed not to have attained his
majority;
(b) ‘wife’ includes a woman who has been
divorced by, or has obtained a divorce from,
her husband and has not remarried.”
[“(2) Any such allowance for the maintenance or
interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so
ordered, from the date of the application for
maintenance or interim maintenance and expenses
of proceeding, as the case may be.”;]
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant
for levying the amount due in the manner provided
for levying fines, and may sentence such person, for
the whole, or any port of each month’s allowance 4
[allowance for the maintenance or the interim
maintenance and expenses of proceeding , as the case
may be] remaining unpaid after the execution of the
warrant, to imprisonment for a term which may
extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section
unless application be made to the Court to levy
such amount within a period of one year from the
date on which it became due:
Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.-If a husband has contracted marriage
with another woman or keeps a mistress, it shall
be considered to be just ground for his wife’s
refusal to live with him.
(4) No wife shall be entitled to receive an 4 [allowance
for the maintenance or the interim maintenance and
expenses of proceeding , as the case may be] from her
husband under this section if she is living in
adultery, or if, without any sufficient reason, she
refuses to live with her, husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in
adultery, or that without sufficient reason she
refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate
shall cancel the order.”
5. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent vagrancy
by compelling those who can provide support to those who
are unable to support themselves and who have a moral claim
to support. The phrase “unable to maintain herself” in the
instant case would mean that means available to the deserted
wife while she was living with her husband and would not take
within itself the efforts made by the wife after desertion to
survive somehow. Section 125 Cr.P.C. is a measure of social
justice and is specially enacted to protect women and children
and as noted by this Court in Captain Ramesh Chander
Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807)
falls within constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India, 1950 (in short the
‘Constitution’). It is meant to achieve a social purpose. The
object is to prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing and shelter to
the deserted wife. It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The
aforesaid position was highlighted in Savitaben Somabhai
Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).
6. Under the law the burden is placed in the first place
upon the wife to show that the means of her husband are
sufficient. In the instant case there is no dispute that the
appellant has the requisite means.
7. But there is an inseparable condition which has also to
be satisfied that the wife was unable to maintain herself.
These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his
wife. It is has to be established that the wife was unable to
maintain herself. The appellant has placed material to show
that the respondent-wife was earning some income. That is
not sufficient to rule out application of Section 125 Cr.P.C. It
has to be established that with the amount she earned the
respondent-wife was able to maintain herself.
8. In an illustrative case where wife was surviving by
begging, would not amount to her ability to maintain herself.
It can also be not said that the wife has been capable of
earning but she was not making an effort to earn. Whether the
deserted wife was unable to maintain herself, has to be
decided on the basis of the material placed on record. Where
the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C. The test is whether
the wife is in a position to maintain herself i
n the way she was
used to in the place of her husband. In Bhagwan v. Kamla
Devi (AIR 1975 SC 83) it was observed that the wife should be
in a position to maintain standard of living which is neither
luxurious nor penurious but what is consistent with status of
a family. The expression “unable to maintain herself” does not
mean that the wife must be absolutely destitute before she can
apply for maintenance under Section 125 Cr.P.C.
9. In the instant case the trial Court, the Revisional Court and the High Court have analysed the evidence and held that the respondent wife was unable to maintain herself. The conclusions are essentially factual and they are not perverse.
That being so there is no scope for interference in this appeal which is dismissed.

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What is duration of life imprisonment?

Indian Penal Code provides for six types of punishments for offences therein. Life imprisonment (also known as a life sentence or life incarceration) is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life. Life imprisonment, as distinct punishment for certain grave offences under the Indian Penal Code was authorized by law w.e.f. 1st January 1956 when the Code of Criminal Procedure (Amendment) Act, 1955 came into force. It was earlier known as transportation for life. There are in all fifty-one sections in the Indian Penal Code which provide punishment with imprisonment for life [3] . There is always a debate as to the exact duration of imprisonment of life. This article purports to analyse the law in India relating to life imprisonment through study of various statutes and case- laws prevalent in India.

 

TERM AS PER STATUTORY LAW :-

Various statutes in India dealing with criminal law have laid down provisions relating to life imprisonment. Some of the important provisions are as follows:

Indian Penal Code,1860 :

Section 55: Commutation of sentence of imprisonment for life

In every case in which sentence of [imprisonment] for life shall have been passed, [the appropriate Government] may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years.

Section 55, I.P.C. provides that when sentence of imprisonment for life has been passed, the appropriate Government may without the consent of the prisoner commute the punishment for imprisonment of either description for a term not exceeding fourteen years. This section empowers the appropriate Government to commute the sentence of imprisonment of life. Exercise of such right is at the discretion of the appropriate government. This section does not lay down that life imprisonment shall be an imprisonment for fourteen years and a prisoner is not to be automatically released after expiry of fourteen years of imprisonment. It is for the appropriate Government to commute the sentence and for this purpose Rules have been framed by the State Government.

Section 57 – Fractions of terms of punishment

In calculating fractions of terms of punishment, [imprisonment] for life shall be reckoned as equivalent to [imprisonment] for twenty years.

Section 57 of I.P.C. provides that in calculating fractions of terms of imprisonment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. Section 57 does not say that imprisonment for life shall be deemed to be transportation for 20 years. For all purposes, imprisonment for life must, prima facie, be treated as imprisonment for whole of the remaining period of the convicted person’s natural life.

Code of Criminal Procedure :-

Section 432 – Power to suspend or remit sentences.

(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions that the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

Section 433 – Power to commute sentence.

The appropriate Government may, without the consent of the person-sentenced commute –

A sentence of death, for any other punishment provided by the Indian Penal Code, 1860;

A sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

A sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced, or sentenced, or for fine;

A sentence of simple imprisonment, for fine.

Section 433A:- Restriction on powers of remission or commutation in certain cases.

Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least fourteen years of imprisonment.

The appropriate Government has power under Sections 432 and 433, Cr. P.C. to suspend or remit or commute the sentence while Section 433A of Cr. P.C. imposes restrictions on the powers of remission or commutation in certain cases.

Under Section 432 of the Code of Criminal Procedure, the appropriate Government has the power to remit the whole or any part of sentence to which the person is convicted. Under Section 433 of the Code, the appropriate Government has the power to commute the sentence of imprisonment for life to imprisonment for a term not exceeding fourteen year or to a fine. Section 433A was enacted to deny premature release before completion of 14 years of actual incarceration to such convicts who stand convicted of a capital offence. The period of detention undergone by an accused as an under trial prisoner against the sentence of life imprisonment can be set-off only if the appropriate authority passes an order under Section 432 or Section 433 of the Code. In the absence of such an order passed, and apart from the provisions of the relevant Jail Manual, imprisonment for life would mean imprisonment for remainder of life.

TERM OF IMPRISONMENT FOR LIFE IN OTHER COUNTRIES:-

USA –

In the USA, life imprisonment generally continues till the prisoner dies. Sometimes life terms are given in sentences are disproportionate to the duration the prisoner is expected to live, for example, a 300-year sentence for multiple murders. In actuality, a life sentence does not always mean “imprisonment for life.” Once a period of 10 years or more is over, the convict can be set out on parole.

MEXICO –

In Mexico, life imprisonment is an indeterminate sentence. Its term may range from 20 years up to a maximum of 40 years.

UNITED KINGDOM –

In the UK, “imprisonment for life” means a prison sentence of indeterminate length. In many cases, the Home Secretary sets the “tariff”, i.e., the length of the term, for life imprisonment convicts. He has to undergo sentence about 15 years before he can be paroled out.

GERMANY –

The German law has fixed minimum time to be served for a sentence of life imprisonment, which is 15 years after which the prisoner can apply for parole.

AUSTRALIA –

In Australia, term of life imprisonment is usually 25 years.

Therefore, it can be observed that in most of the countries, duration of life imprisonment is indeterminate but after undergoing imprisonment for certain period, parole can be asked for.

JUDICIAL ACTIVISM:-

Many people misunderstood life imprisonment as imprisonment for 14 or 20 years. As the criminal law in India did not provide for fixed duration of life imprisonment, there was still a big confusion. Then the Indian judiciary took the responsibility to clean the air and in numerous cases which came before it, laid down the law regarding life-term.

Gopal Vinayak Godse v. The State of Maharashtra and Ors. [4]

It was held b
y a Constitution Bench that the meaning of a sentence of imprisonment for life is no longer res integra. A sentence of transportation for life or imprisonment for life must, prima facie, be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life. It was further held that unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Cr.P.C., a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison.

State of Madhya Pradesh v. Ratan Singh [5]

This issue again cropped up here and it has been held that, as laid down in Godse’s case, imprisonment for life means sentence for entire life which does not expire automatically at the end of twenty years including remission, because the rules framed under the various Jail Manuals under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code.

Shri Bhagwan v. State of Rajasthan [6]

In this case, after considering the facts and circumstances of the case, the Court held that ordinarily ‘imprisonment for life’ means sentence of imprisonment for whole of the remaining period of the convicted person’s natural life and that the rules framed under the Prisons Rules do not substitute a lesser sentence for a sentence for life.

Kartik Biswas v Union of India [7]

The Supreme Court made it clear that life imprisonment is not equivalent to imprisonment for 14 years or for 20 years. Elaborating the point further the Apex Court ruled that there is no provision either in IPC or in Cr.P.C. whereby life imprisonment could be treated as 14 years or 20 years without there being a formal remission by the appropriate government.

Mohd. Munna v. Union of India [8]

In this case it was reiterated that life imprisonment was not equivalent to imprisonment for 14 years or 20 years. Life imprisonment means imprisonment for the whole of the remaining period of the convicted person’s natural life. This Court observed that there was no provision either in the Indian Penal Code or in the Criminal Procedure Code, whereby life imprisonment could be treated as either 14 years or 20 years without there being a formal remission by the appropriate Government.

Swamy Shraddananda v. State Of Karnataka [9]

Supreme Court substituted death sentence to life imprisonment and directed that the accused shall not be released from jail till the rest of his life. The Court observed that if the case of accused does not fall in rarest of rare cases, instead of giving capital punishment, accused can be sentenced to life imprisonment, i.e., till the last breath of his life.

R.Suresh S/o Rowthram v State represented by The Inspector of Police,

P-3, Vyasarpadi Police Station, Chennai. [10]

In this case, Hon. Supreme Court held that the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. The rules framed by State government under Section 59 of the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.

It thus comes out loud and clear from above mentioned decisions that the “life imprisonment” must be treated to mean an imprisonment for the whole of a convicted person’s natural life. As on today there is no provision either in the Indian Penal Code or in the Cr.P.C, which treats such imprisonment for a definite period of fourteen years or twenty years. The result is that no convict sentenced to life imprisonment can claim release as a matter of right after serving a sentence of 14 years or 20 years, any formal remission or commutation by the Government under law notwithstanding.

CONCLUSION:-

What conclusion can be drawn from the above decisions is that life imprisonment is to be interpreted as being imprisonment for the whole of a convict’s natural life within the scope of Section 45 of the I.P.C.

On a careful study of Sections 45 and 47 of the I.P.C. and Sections 432, 433 and 433A Cr.P.C., it can be clearly seen that a prisoner sentenced to life sentence has to serve at least 14 years in prison.

By virtue of Section 433A, the minimum term of imprisonment in respect of an offence where death is one of the punishments provided by law or where a death sentence has been commuted to life sentence, has been prescribed as 14 years. In the series of judgments after the decision in Godse’s case, ‘imprisonment for life’ has been repeatedly held to mean imprisonment for the natural life term of a prisoner, though the actual period of imprisonment may be reduced by virtue of remissions earned. But unless the President, under Article 72 of the Constitution, or the Governor, under Article 161 of the Constitution, exercises his power even with remissions earned life imprisonment cannot be reduced below 14 years. It is, therefore, left to the discretion of the empowered authorities to determine the actual length of imprisonment having regard to the gravity of the offence.

Although Supreme Court in a catena of cases has fixed the term of life imprisonment, but the government however, should come up with a law fixing a definite period of life imprisonment resolving dichotomy and thus, put an end to the series of life imprisonment term-determination cases.

By=: http://www.lawteacher.net/indian-law/essays/life-imprisonment-for-life-law-essays.php

No offence u/s 138 of N.I. Act is committed for dishonour of cheque given as security deposit

Security cheque and offence under 138 NI act

NI 138 Quashing

How your Security cheque can save you from cheque bouncing offence under NI 138

Is it cheating?

Judgment IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Joseph Vilangadan. v. Phenomenal Health Care Services Ltd. & Anr. CRIMINAL WRIT PETITION NO.2243 OF 2009 CORAM : J.H.Bhatia, J. DATE : 20th July, 2010 1 Rule. Rule made returnable

READ ALSO Cheque as a security and Offence under NI 138

How your Security cheque can save you from cheque bouncing offence under NI 138

forthwith. Heard the learned counsel for the parties. 2 There is no dispute that the respondent no.1/complainant and M/s. Encon Engineering and Contractors (Hereinafter referred to as ‘Contractors’) had entered into an agreement on 28th January, 2005 whereby Contractors had undertaken to carry out certain works for the respondent. As per the said contract, Contractors deposited the sum of Rs. 10 lacs by undated cheque no.027840 drawn against South Indian Bank Ltd., Palarivattom Branch, Cochin branch with the respondent no.1 as refundable security deposit for the due performance of the agreement. The said undated cheque was in custody of the respondent no.1 and it appears that the respondent no.1 filled in the date on undated cheque as “4.6.2008″. The cheque was presented to the drawee bank through the banker of the respondent no.1. Cheque was returned unpaid on the ground that the drawer had stopped the payment. Therefore, notice was issued by the respondent to the contractor as well as it’s managing partner for the payment of the cheque amount . In spite of notice, payment was not made. Therefore, the respondent no.1 filed complaint under Section 138 of the Negotiable Instruments Act, in the Court of Metropolitan Magistrate 44th Court, Andheri. Process was issued against the accused, who is the petitioner before this Court. Petitioner/accused challenged the issuance of process by filing revision application no.789/2009 before the Sessions Court, Gr. Bombay. By the impugned order dated 8th June, 2009, the learned Additional Sessions Judge rejected the revision application. Hence this petition. 3. At the outset it may be stated that before the revisional Court, petitioner had taken several grounds challenging the issuance of process. However, during the arguments before this Court, the learned counsel for the petitioner restricted the challenge only to one point. According to him, cheque was not issued in discharge of any debt or liability and as the cheque was issued as security deposit, provisions of Section 138 are not applicable. The learned counsel placed reliance upon several authorities in support of his contention. The learned counsel for the respondent/complainant contended that the said cheque was deposited in lieu of the amount of Rs. 10 lacs which would be otherwise required to be deposited as security by the contractor with the respondent for due performance of the contact and, therefore, it must be held that the cheque was issued in discharge of “other liability.” 4. Section 138 of the Negotiable Instruments Act provides that where any cheque was drawn by a person on account maintained by him with the banker for the payment of any amount of money to another person for discharge in whole or in part of any debt or other liability and it was returned by the drawee bank unpaid either because the amount of money in the account is insufficient or it exceeds the amount arranged to be paid, such person shall be deemed to have been committed offence and shall be liable to punishment with imprisonment or with fine or with both. Of course, before the offence is committed, several other conditions are required to be fulfilled. We are not concerned with the same for the decision of the present matter. mportant ingredient for the offence punishable under Section 138 is that cheque must have been issued for the discharge in whole or in part of any debt or other liability. If the cheque is not issued for the discharge of any debt or other liability, Section 138 can not be invoked. It is now well settled legal position that if the cheque is issued only as security for performance of certain contract or an agreement and not towards the discharge of any debt or other liability, offence punishable under section 138 is not made out. In Travel Force v. Mohan N. Bhave and Another 2007 Mh.L.J.3339 , the cheque in question was issued by the accused for investment in fixed deposit and it was accepted by the complainant as fixed deposit in the scheme. As the cheque was dishonoured, the complaint under Section 138 of the Negotiable Instruments Act was filed. Process was issued by the Magistrate. However, the Sessions Court set aside the order issuing the process holding that the cheque was not issued for discharge in whole or in part of any debt or other liability and, therefore, presumption under Section 139 could not arise in favour of the complainant. Revision application filed by the complainant was rejected by this High Court holding that when the cheque was issued only as a deposit and not in discharge of any debt or liability, offence under Section 138 is not made out. 5. In M.S.Narayana Menon @ Mani v. State of Kerala and Another (2006) 6 SCC 39, accused and the complainant were brokers working in the stock exchange and the complainant was to enter into certain transactions on behalf of the accused. The cheque was issued for an amount of Rs. 2,95,033/by the accused in favour of the complainant. On presentation, the cheque was dishonoured. After notice also the payment was not made. In the case under Section 138 plea of the accused was that the complainant was in dire need of financial assistance and the said cheque was issued so as to enable him to tide over his financial difficulties and not in discharge of any debt or liability payable to the complainant. During the trial, it was revealed that there was discrepancy of more than Rs. 14 lacs in the account maintained by the complainant. Accused was convicted by the trial Court but was acquitted by the appellate Court . High Court set aside the acquittal and convicted the accused. Accused went to the Supreme Court. After going to the facts and circumstances, the Supreme Court observed thus in paragraph 52: “52. We, in the facts and circumstances of this case, need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of the debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The appellants clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act.” From these observations, it appears that if the cheque was not issued for discharge of any debt or liability but as a security only, offence is not made out under Section 138. 6. Coming to the facts of the present case from the complaint as well as particulars of the agreement executed on 28.1.2005, it is clear that cheque was issued as a security deposit at the time of entering into contract for due performance of the terms of the contract. Agreement shows that the contractor had deposited the undated cheque no.027840 with the respondent as refundable security deposit for due performance of the agreement. Even the allegations in the complaint are not different. Admittedly, when this agreement was entered into, no debt or liability was in existence and under that agreement, parties had entered into a contract whereby contractor was to perform certain works for the respondent. Naturally, as per the terms of the contract and the allegations made in the complaint if the contractor would fail to perform the agreement, respondent could encash the cheque and recover an amount of security deposit. 7. The learned counsel for the respondents vehemently contended that the contractor was to perform so many works and in respect of some works, his ra
tes were higher and in respect of some other, rates were lower than the other bidders. He was also advanced certain amount for carrying out certain works from time to time. Contractor had completed works in which higher rates were given to him but he ignored to carry out those works where the rates were less and thereafter he ignored to complete those particular works resulting into the disputes between the parties. Admittedly, the disputes had occurred in the year 2006 and the contractor filed a suit against the respondent in the year 2006. Not only was this, admittedly, matter also referred to arbitrator in respect of said disputes. The learned counsel for the respondents pointed out that undated cheque was lying with the respondent since 28.1.2005. However, for the first time a date “4.6.2008” was put on him and then cheque was presented for encashment, which was returned unpaid with endorsement “payment was stopped”. It shows that date was put on the cheque by the respondents long after disputes had arisen between the parties. Proviso (a) to Section 138 requires that the cheque should be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. In the present case though the cheque was drawn and handed over on 28.1.2005, date was not put on it. If the date would have been put, cheque would have been valid for six months from 28.1.2005. However, the respondent put the date 4.6.2008, i.e., almost three years after the period of cheque was over. Thus, the cheque was not presented to the drawee bank within six months from the date when it was actually drawn. Anyhow, it is not necessary to enter into that controversy for the purpose of deciding the present petition. Fact remains that the cheque was issued towards the security deposit and not towards the discharge of any debt or liability. 8 . The learned counsel for the respondent contends that it is not necessary that the cheque should be issued for discharge of a debt.According to him, it may be issued towards the discharge of other liability also and in support of this, he placed reliance on ICDS Limited v. Beena Shabeer and Another (2002) 6 SCC 426. In that case, husband of the accused/respondent no.1 had obtained a car under hire purchase agreement from the complainant. The accused was a guarantor for payment of the amount by her husband and towards the part payment of the said transaction, she had issued a cheque in favour of the complainant. Cheque was dishonoured and the payment was not made in spite of the notice. High Court quashed the complaint on the ground that cheque from the guarantor could not be said to have been issued for the purpose of discharge of any debt or liability. However, the Supreme Court set aside the order of the High Court. The Supreme Court observed thus in paragraphs 10 and 11. “10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words “Where any cheque”. The above noted three words are of extreme significance, in particular, by reason of the user of the word “any”the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment. 11. The issue as regards the coextensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the statute depicts the intent of the lawmakers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. “Any cheque” and “other liability” are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. Any contra interpretation would defeat the intent of the legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantor’s liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus do not lend any assistance to the contentions raised by the respondents.” Supreme Court in ICDS Ltd. v. Beena Shabeer and Another (2002) Supreme Court Cases 426 considered provisions of the law and held that when the cheque is issued by the guarantor in discharge of such other liability, provisions of section 138 are applicable. Infact, section 138 itself specifically provides that the cheque should have been issued by a person for the discharge of any debt or other liability. The guarantor may not be himself a debtor but he guarantees the repayment of the loan taken by the principal debtor. By giving such a guarantee, the guarantor incurs a liability towards the creditor and for the discharge of that liability, if he issues cheque, he will be covered by the provisions of Section 138. As the cheque was issued for the discharge of “other liability” case would be covered by Section 138. 9 In the present case, there was no liability or debt towards the complainant/respondent when the cheque was issued by the contractor. From the language of the agreement as well as allegations made in the complaint, it is clear that said cheque was issued as security deposit and not towards the discharge of any debt or lone. The learned counsel for the respondent contended that in M.S.Narayana Menon @ Mani (Supra), evidence was led by the parties and on the basis of evidence, the Supreme Court came to conclusion that the cheque was issued as a security and, therefore, Section 138 would not be applicable. According to the learned counsel, in this case only process has been issued and the parties are yet to go to the trial and, therefore, said authority in M.S. Narayana Menon @ Mani (Supra) would not be applicable. It would be difficult to accept this contention. Ratio in M.S.Narayana Menon @ Mani (Supra), is applicable to the facts of the present case. When on the face of the complaint itself, it is clear that the cheque was issued as a security deposit and not towards the discharge of any debt or other liability, case under Section 138 is not made out. When the complaint itself does not make out criminal case to issue the process, to force the accused to undergo trial would be clear misuse of the process of the Court and this should not be allowed. The Additional Sessions Judge while rejecting the revision application dealt with the liability of the contractor on the basis of terms of the contract and the cheque. The learned counsel for the respondent also contended that the matter was referred to arbitrator and arbitrator also held that the contractor is liable to pay on the basis of that cheque. As far as civil liability of the contractor/petitioner is concerned, it is not necessary to look into the same in present matter. Suit was filed in the year 2006 and the arbitrator was also appointed in 2008, therefore, civil liability of the parties against each other can be looked into the said litigation or arbitration proceedings. In the present matter, we have only to see whether the offence under Section 138 of the Negotiable Instruments Act is made ou
t or not. The learned Revisional Court did not address to this question properly before rejecting revision application. 10 In view of the facts and circumstances, I find that no case to issue process under Section 138 was made out and, therefore, process issued by the trial Court is liable to be quashed. 11 For the aforesaid reasons, petition is allowed. The order passed by the learned Metropolitan Magistrate to issue process under Section 138 is hereby quashed. Rule made absolute accordingly.

An overview of a Rape Trial

We all know recently the rape incident happened in Delhi which had shaken the conscience of the whole nation yes the Nirbhaya case which outraged the people and the society as a whole and which directed the legislature to look into the laws related to sexual offences.

But here we are looking at the procedure adopted by the courts to try and punish the perpetrators, How police Investigate the issue and how strings of justice are pulled, and what ground the perpetrators seek to evade, are they successful or not. Here the different elements which are the key ingredients to prosecute the perpetrators.

  1.    FIR/Complaint-: The first step taken by the prosecutrix or the family after any rape incidence is to lodge a complaint in a nearest police station ideally without any delay, but a delay in lodging an FIR could be taken as a defence but is not a strong defence, As court would normally believe that the Delay is due to gravity of the offence and normally The amount of embarrassment faced by the prosecutrix and her family, would not facilitate her to open up and report the matter.Tulshidas Kanolkar v The State of Goa – Citation: (2003) 8 SCC 590 – Supreme Court of India

 

  1. Medical Evidence-: Medical evidence from the prosecutrix as well as from accused is taken and sent to forensic investigation, Medical evidence like Blood Sample, Semen, Vagina swabs, Test of Hymen etc. ossification test is also done in some  cases in which the age of the prosecutrix or the appellant is to be determined, but this test only gives indication and question related to juvenile accused could get settled.  However it is the fundamental right of the accused that he can refuse to give medical sample, However this act may weaken up his case, Even if the medical report does not show torn hymen or any injury due to which the prosecutrix was subjected to rape, This does not weaken up the case as medical evidence is not so conclusive that the incidence have not taken place. The medical evidence is usually opinion evidence (Duraipandi Thevar v. State of Tamil Nadu, AIR 1973 SC 659: 1973 Cr. L.J. 602). The medical opinion by itself, however, does not prove or disprove the prosecution case, it is merely of advisory character.
  1. The testimony of prosecutrix -: It is the statement of the prosecutrix which has a high weight than any other evidence, First instance of prosecutrix statement is when an FIR was lodged and it is before the investigating officer that she gives the detailed information about the incidence. Then again she has to make a statement before the magistrate u/s 164 CrPC.Now if there is minor variation between the two statements then it can be easily ignored, major variations that change the direction of the trial can be used as a defence by the accused.Supreme Court has held that in rape cases the testimony of the victim cannot be considered to be the gospel truth, though in normal circumstances her statement has to be relied upon.

However the general rule is “If the totality of circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.Dyava v/s State of Karnataka”

  1. The statements of other witnesses-: The statements of prosecution witnesses are used for corroboratingthe statements of prosecutrix, but can be rebutted by virtue of cross examination un corroborated statements of prosecutrix which is not a minor raise a suspicion but uncorroborated statements of a minor girl is presumed to be true unless they are not contradictory to other facts. If a witness turns hostile then there is presumption that the witness was influenced by the defence.

The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. The view that the evidence of the witness, who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of Supreme Court in the cases : a. KoliLakhmanbhaiChanabhai v. State of Gujarat (1999) 8 SCC 624, b. Prithi v. State of Haryana (2010) 8 SCC 536, c. SidharthaVashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1, d. Ramkrushna v. State of Maharashtra (2007) 13 SCC 525.

Conclusion

There is a general presumption that no woman would stake her future prospects of marrying and her respect for falsely implicating the accused, especially if the girl is minor.

Generally court favour the victims unless it is shown that there are highly probable grounds that the accused has not done the heinous act, even the plea that character of the woman is bad do not hold ground as law does not permit that even if the woman is a prostitute no one has a right to rape her.

Why Emergence of social media has made IT act obsolete?

The IT act came into existence to protect the users from the crime related to electronic space, we know that India is a IT hub and a largest democratic country, That’s why we need IT laws .But Laws don’t keep pace with technology.
And at one point of time the technology surpasses and comes above the law, when this happens then the need to amend the law arises. This is what happened with the 66A IT act.
Let us first look at it what is 66A:
*[66A. Punishment for sending offensive messages through communication service, etc..-
Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
The analysis of the current IT act gives an Idea that the 66A IT act is vague it talks about the information but how it gets transmitted to other person this is not mentioned as in the year 2000 there was only one way to transmit information i.e. through E-mails or may through few websites but the concept of blogging or “free speech” was not there at that time. Because information through speech is different than other form of information. For example-: we have Article 14 for freedom of speech but for intimidating someone with information passed through messages does not come under freedom of speech.
The 66A IT act certainly needs to be amended as IT act was passed in year 2000 at that time there was no concept of social media, the 66A act was intended to cover only email messages ,the messages of email cannot be compared with that of post on social media. The email messages are personal in nature and is generally intended to single person, But in social media you have an audience and the case of posting on the wall certainly comes under freedom of speech,  so the posting on the facebook wall must be equated with article 14, and same limitation must be applied to it rather than treating it as a message. So with current technological advancement there certainly need to amend the IT laws.
By: Nitish Banka

THE ART OF CROSS EXAMINATION

Cross Examination-: Cross examination is a part of the trial process in which the witness called by the one’s opponent is examined.

AN INTRODUCTION TO CROSS-EXAMINATION

Purposes of Cross-Examination

The first decision to make is whether you should even cross-examine a witness.

In order to make that decision, you must know what you want to accomplish by cross examining a witness. Authorities on trial practice, following are the factors which are to be considered-:

1 . Did the witness hurt your case by the testimony given on direct Examination? If so, can you minimize or repair the damage on cross-examination?

2. Can you obtain testimony on cross-examination to help your case?

3 . Can you obtain testimony on cross-examination that will hurt your Adversary’s case?

4. Do you need the witness to establish an evidentiary foundation to admit a document or other exhibit in evidence?

5. Can you discredit the testimony given on direct examination? In other words, can you demonstrate inconsistencies in the testimony given on direct examination? Can you demonstrate that the testimony given on direct examination conflicts with the testimony of other witnesses?2

6. Can you discredit the witness? For example, can you show that the witness is biased? Prejudiced in favor of your adversary and/or against your client? Has a motive to lie? Is personally, financially, or otherwise interested in the outcome of the litigation? Was not in a position to see or hear the event that he/she testified about on direct examination?

7. Can the cross-examination be used to enhance or destroy the credibility of other witnesses?

8. Is the witness so important that you should undertake some sort of crossexamination to fulfill the expectations of the case?

Unless the answer to one or more of these questions is “yes,” you would be well advised not to cross-examine the witness.

you state “No questions.” The judge  may even understand that you have no questions for the witness because the testimony given on direct examination was not important.

Guidelines for the Cross-Examination

Cross-examination almost always ventures into dangerous territory. The reason for this is that the witness is usually adverse or hostile to your client’s position.

Therefore, you must control the witness and, more particularly, the witness’ testimony. This can be accomplished by following certain guidelines during the cross-examination.

1. Do not ask a question unless you are reasonably certain that you already know the answer. (Some would say do not ask the question unless you are certain you know the answer). Cross-examination is not the time to discover new facts. It is not the time to be curious. Remember, curiosity killed the cat. It may likewise kill your case.

2. Treat the witness fairly. You should not be hostile, especially if you want to gain concessions from the witness, including that he/she may have been mistaken in his/her testimony on direct examination.

3. Use leading questions. A leading question suggests the answer, which is usually “yes” or “no.”

4. Never ask open-ended questions—questions that ask “how” or “why” or that require the witness to explain. These types of questions can lead to disaster. Never allow a witness to explain anything on cross-examination.

5. Listen to the answers. Do not mechanically ask one question after another without listening to the witness’ answers. The answers may contain the favorable testimony that you are seeking to obtain in the crossexamination. When this happens, you have accomplished your task and you should consider ending your cross-examination. On the other hand, if

you do not listen to the answers you may not hear damaging testimony

that should be addressed.

6. Do not allow the witness to repeat (and therefore reinforce in the mind of the judge) the testimony given on direct examination. There is no reason to

ask a question that allows the witness to repeat his testimony. The odds

are very small that the witness will testify differently on cross examination. You know the testimony given on direct examination, the

witness knows the testimony, the judge knows the testimony. So just dive

into your cross-examination.

7. Keep your questions “short and sweet” and in plain English. Your goal is to obtain one fact with each question. Ideally, each question should be posed as a declaratory statement of a single fact calling for affirmation by the witness. This will make the cross-examination much more manageable for you, prevent objections from your adversary (for example,that you are asking compound questions), and allow the judge to more easily follow and understand your cross-examination.

8. Ask the important questions at the beginning and end of your cross-examination. People, including jurors, remember best what they hear first and last. Conclude your cross-examination on a high note—your strongest point.

9. Your cross-examination should be brief. Remember, you are trying to

“score points” to be used in your closing argument. In a lengthy crossexamination, your strongest points will be lost and the less significant points will be forgotten by the judge.

10. Control the witness’ answers. The best way to control the witness’ answers is to ask simple and clear questions. By doing so, you will not give the witness an opportunity to provide harmful testimony. If your question calls for a “yes” or “no” answer and the witness provides additional testimony that is harmful to your case, you should ask the court to strike the testimony as being nonresponsive to your question. Although you cannot “unring a bell,” the judge eventually will understand that the5 witness’ conduct is improper. If the witness answers a question other than the one you asked, ask it again, and yet again if necessary.

11. Do not ask one question too many. Remember the purpose of crossexamination—you are trying to obtain favorable testimony so it can be used in your closing argument. You need not ask the ultimate question that will drive your point home to the judge. Instead, your cross-examination should only suggest the point to the judge. Your closing argument will Drive the point home. Remember Irving Younger’s line from his famous lecture on cross-examinations: “Sit down!”

The use of these guidelines will allow you to be in control of the crossexamination. By being in control, you will be in a better position to obtain the testimony to fulfill the purposes of your cross-examination.

Scope of Cross-Examination

The evidence rules provide that “[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.credibility need not be based on evidence adduced at trial. As a result, you will always be entitled to establish, for example, that the witness is biased or prejudiced, has a motive

to lie, is interested in the outcome of the case or has made a prior inconsistent statement. These areas of impeachment will be briefly examined shortly. In addition to the subject matter of the direct examination and matters affecting the credibility of the witness, the cross-examination may also delve into “additional matters”, subject to the court’s discretion. This means that a witness who “opens the door” to additional matters during the cross-examination may be questioned on the matters as if they were discussed during the direct examination. Moreover, as a practical matter, at the “end” of your cross-examination, you may ask the court for permission to examine the witness on matters not covered on direct examination rather than later calling the person back to the stand as your witness. Challenging the Reliability of the Testimony

At this point, you should have an understanding, or at least an appreciation, of the purposes, guidelines and scope of cross-examination. Now we will examine several specific areas of cross-examination, including challenging the reliability of the witness’ testimony and impeaching the credibility of the witness by demonstrating bias, interest, prejudice, motive, and prior inconsistent statements. Assuming that you proceed with cross-examination, you must, if at all possible, challenge the reliability of the witness’ testimony. This area of cross-examination involves examining the witness on what he/she saw, heard, remembers and is able to describe about an event. It seeks to discredit the witness’ testimony. For example, on direct examination a witness may testify about the cause of an accident (what he/she saw or heard). On cross-examination, you should seek to obtain testimony that the accident occurred quickly and unexpectantly, that the witness was not in a good position to see the accident, etc. The cross-examination should plant a seed in the minds of the judge that the accident may not have happened as described by the witness on direct examination. You should also establish that the witness has forgotten details of the event and/or is unable to accurately testify about an event. This will cause the judge to question the accuracy or reliability of the witness’ testimony on direct examination. For example, on direct examination the witness may have testified about the distances between vehicles before an accident. On cross-examination, you should seek to establish that the witness’ testimony about the distances is not accurate or reliable.

Impeachment

Impeachment means discrediting the witness. In other words, attacking the credibility of a witness. The goal is to demonstrate that the witness and/or the witness’ testimony on direct examination should not be believed. There are various methods of impeachment, including bias, interest, motive, prejudice and prior inconsistent

SUPREME COURT: CAN’T SUE LAWYERS FOR WRONG ADVICE

At a time when it is the norm to seek legal opinion prior to taking a decision, theSupreme Court has come to the rescue oflawyers by ruling that they cannot be prosecuted for rendering wrong advice if there is no link between them and perpetrators of a fraud or offence.
But the court said the advocate’s opinion must be bona fide as all legal practitioners owe “an unremitting loyalty to the interests of a client and it is the lawyer’s responsibility to act in a manner that would best advance the interest of the client”.A bench of Justices P Sathasivam and Ranjan Gogoi gave this judgment while dismissing the CBI’s appeal against an Andhra Pradesh High Court order quashing criminal proceedings against an advocate for rendering legal opinion on genuineness of title deeds for sanction of loans, which resulted in a multi-crore loan fraud involving a nationalized bank.

Writing the judgment for the bench, Justice Sathasivam said, “Merely because his opinion may not be acceptable, he cannot be mulcted (punished) with criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence but cannot be charged for the offence under Section 420 (cheating) and 109 (abetment) along with other conspirators without proper and acceptable link between them.”

The court drew a parallel between lawyers and other professionals like doctors and said none of them could guarantee success – either in litigation or in treatment.

“A lawyer does not tell his client that he shall win the case in all circumstances. Likewise, a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on,” the bench said.

“The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect,” the court said.

“Judged by this standard, a professional may be held liable for negligence on one of the two things – either he did not possess the requisite skill which he professed to have possessed or he did not exercise, with reasonable competence in the given case, the skill which he possessed,” it added.

Quoting an earlier judgment, the court said it was not necessary for every professional to possess the highest level of expertise in that branch which he practiced. It quoted another judgment of the SC, in which it had ruled that “mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct”.

CONCEPT OF ESTOPPEL

1.0 INTRODUCTION

 All of us know what estoppel is. I first heard about it when I was reading section 28 of the Partnership Act, 1932 which provides that a person holding out to an outsider providing credit to the firm is estopped from pleading that he is not a partner when circumstances indicated that he so represented himself. There are varieties of other estoppels like those found in Contact law, law of sale of goods and law of evidences. This article seeks to discuss estoppel in contract law.
1.1 ESTOPPEL
The word “Estoppel” is derived from the French word “ESTOUPE” from which the word estopped in English language emerged. A man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth” (See Lord coke in Co. Litt 352(a) as cited by the Hon’ Supreme Court in B.L. Sreedhar v/s K.M. Munireddy(2003) 2 SCC 355 at 365. Estoppel, simply put, means this: a man who made a promise or representation etc to another person who based on that promise or representation altered his position or situation, then the promisor shall be estopped in law to go back on his promise or representation.
It is a rule of equity invented by the courts to do justice. It is also a rule of Evidence. Section 115 of the Indian evidence act, 1872 contains express provisions recognizing the doctrine of Estoppel.Section 43 of the Transfer of Property Act also contains provisions recognising the doctrine of estoppel.
2.0 CONTRACT LAW
Let us see the application of the doctrine in the arena of contract law. It is settled that a contract without consideration is void subject to the exceptions for which the law makes specific provisions. But we may come across situations where there is no contract in law yet it requires to be enforced in the interests of equity, justice and good conscience. But the stringent rule of consideration would stare at us. Is there any remedy or solution when the statute provides none?
 
2.1 HISTORY OF THE DOCTRINE
When we strive to look into the history of application of this doctrine of “Promissory Estoppel” in the field of contract law, we may begin with JORDEN v MONEY (1854) 5 H.L.C 185, a decision of the House of Lords in England. In that case Mr. Money borrowed 1200 pounds from Marvell who died. Mrs.Jorden took the bond as successor. Money was about to marry and this debt caused concern for him. But Mrs. Jordan came to his rescue and promised that she will never enforce the bond. So he married. But Mrs.Jorden sought to enforce the bond after 5 years. Mr.Money defended the action by pleading that she be estopped. The House of Lords held that he is liable as estoppel work only in respect of a statement of existing fact was not to representations about future. But lack of consideration for the promise of Mrs.Jorden stood in the way. Thus the Lords refused to give relief to Money.
2.2 METROPOLITAIN RAILWAY CO CASE
The second case in line in the history of the doctrine is Hughes v/s Metropolitan Railway co (1877) 2 AC 439. It is definitely worthwhile to look into the famous passage from the speech of Lord
Cairns which is set out below.
“It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results – certain penalties or legal forfeiture – afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.”
2.3 THE DOCTRINE GETS WIDENED
The third case is Birmingham and District Land Co v London and NW Railway Co (1888) 40 Ch.D 268. it was stated by Bowen LJ that Estoppel is wider than cases of forfeiture and stated as follows.
“It seems to me to account to this, that if persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in abeyance or suspense for some particular time, those persons will not be allowed by a court of Equity to enforce the rights until such time has elapsed…”
So by 1888 the doctrine assumed wider dimensions than before.
2.4 HIGH TREES….HIGH TREES…….HIGH TREES
The fourth but the most important land mark case is Central London Properties Trust Ltd. v/s High trees House Ltd (1941) 1 KB 130. The case is popularly known as High tree’s case. This judgment was delivered by none other than the great Lord Denning who shall ever be regarded as the one of the greatest English judges of the last century. He was only a junior judge of the Kings Bench of the High Court.  I shall set out below the facts of the case briefly as stated by the great judge himself in his book “the discipline of Law”.
2.5 FACTS OF THE HIGH TREES CASE
 The facts were quite simple. During the war many people left London owing to the bombing. Flats were empty. In one block, where the flats were let on 99 year leases at 2500 a year, the landlord had agreed to reduce it by half and to accept 1250 a year. Then the bombing was over, and the tenants came back, the landlord sought to recover the full 2500 a year.
2.6 LORD DENNING TURNS HERO
Lord Denning held that Landlord cannot recover the original rent of 2500 a year when the flats were empty. The learned judge in his judgement stated as follows which has become classic.
“If I were to consider this matter without regard to recent developments in the law, there is no doubt that had the plaintiffs claimed it, they would have been entitled to recover ground rent at the rate of 2500 a year from the beginning of the term, since the lease under which it was payable was a lease under seal which, according to the old common law, could not be varied by an agreement by parol (whether in writing or not), but only by deed. Equity, however, stepped in, and said that if there has been a variation of a deed by a simple contract (which in the case of a lease required to be in writing would have to be evidenced in writing), the courts may give effect to it…. That equitable doctrine, however, could hardly apply in the present case because the variation here might be said to have been made without consideration. With regard to estoppel, the representation made in relation to reducing the rent, was not a representation of an existing fact. It was a representation, in effect, as to the future, namely, that –payment of the rent would not be enforced at the full rate but only at the reduced rate. Such a representation would not give rise to an estoppel, because, as was said in Jorden v Money, a representation as to the future must be embodied as a contract or be nothing”
2.7 LORD DENNING LEAPS OVER THE FENCES   
Thus time has come to do something to do justice and to leap over the fences created by law and the binding decision of the House of Lords in Jorden v Money (1854) 5 HLCas185.  Lord Denning observed as follows:
“In my opinion, the time has now come for the validity of such a promise to be recognized. The logical consequence, no doubt, is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration: and if the fusion of law and equity leads to this result, so much the better. That aspect was not considered in Foakes v Beer. At this time of day however, when law and equity have been joined together for over seventy years, principles must be reconsidered in the light of their combined effect. It is to be noticed that in the sixth Interim report of the Law Revision Committee, paras 35, 40, it is recommended that such a promise as that to which I have referred, should be enforceable in law even though no consideration for it has been given by the promise. It seems to me that, to the extent I have mentioned, that result has now been achieved by the decisions of the courts”.
Thus justice has been done even in the absence of consideration for the variation in the terms of the contract.
3.0 CANNOT BE OVER THROWN BY A SIDE WIND
Thus now the doctrine is firmly established and “cannot be over thrown by a side wind”. Thus the doctrine came to be accepted as legally firm and conceptually sound. There was no going back. There was no appeal to the Court of Appeal or to the Lords. Thanks to the parties. On a close look at High trees case it can be seen that the court intended to assist the parties for defending an action and has not recognised the doctrine of promissory estoppel as a cause of action.
3.1 NOT A SWORD
Soon came the decision of the Court of Appeal in Combe v Combe(1951) 2 KB 215 decided by Lord Denning himself now a judge of the Court of Appeal (CA). It was in 1950.Mr.Combe promised to give Mrs.Combe an annual maintenance amount before divorce. But after divorce Mr.Combe refused to pay. Mrs.Combe thought that there is a breach of promise. Mr.Combe promised, she relied on that promise and in fact acted upon the promise (by not seeking assistance of courts for getting maintenance order). So she thought she can rely on HIGH TREES and get relief. The lower court allowed her claim based on High trees. But on appeal to Court of Appeal (CA) the matter came up before Lord Denning and the very person who is regarded as the defender of the doctrine refused to apply the same.
He stated the estoppel could only be used as a “shield” and not a “sword”. In the High Trees case, there was an underlying cause of action outside the promise. Here, promissory estoppel created the cause of action where there was none. In this case, the court could not find any consideration for the promise to pay maintenance. He further stated that the High Trees principle should not be stretched so far as to abolish the doctrine of consideration, He went on to add “”The doctrine of consideration is too firmly fixed to be overthrown by a side-wind….it still remains a cardinal necessity of the formation of a contract”.
4,0  AS CAUSE OF ACTION
Presently the subject matter of discussion among legal experts is regarding the limitation placed by Combe v Combe. They plead for widening the scope of its application. The doctrine should be capable of being used as a cause of action  in addition to its application as a shield of defence. It is to be noted that United states abandoned this restriction long back in Hooffman v Red owl stores 133 NW 2d 267 (1965). Australia also in a recent case in Walton’s stores (Interstate) v Maher (1988) 164 CLR 387 widened or stretched it to give relief as a cause of action. It may also be noted that the House of Lords (now Supreme Court) is yet to discuss the doctrine of promissory estoppel and its limitations.
5.0 PROPRIETORY ESTOPPEL
The courts have invented a new species of estoppel known as “Proprietory Estoppel” which is related to promises on properties. The Hon High Court of Kerala in a very recent decision in Jammeela Beevi V Basheer and others reported in AIR 2012 KER107 held that the seller shall not be allowed to go back on the representation when the purchaser acted upon it in full faith of the representation so made. The Hon Court relied on the judgement of the Hon Supreme court in Jumma Masjid Mereara v Kodimaniandra Devian and others reported in AIR 1962 SC 847.
6.0 CONCLUSION
To sum up, let us try to understand the main ingredients necessary for application of the doctrine in the field of contract law.There must be a promise by one person to another which can be enforced in a court of law. The promisor makes a representation to the promisee and the promisee based on that representation acts or alters his position fully relying on the representation.. Then subsequently the promisor shall not be allowed to go back on his promise and on an action by the promisor the promise can invoke the doctrine of promissory estoppel as a defence. He can even use it positively as a cause of action in view of the developments in US and Australia etc after the land mark decision in High Tree’s case. This article is mainly confined to English decisions and the application of the doctrine in the field of English law.