How to negotiate a Case?

Negotiation is a method by which people settle the dispute outside the court. It is a process by which people compromise and reached at one solution while avoid argument and dispute. In any disagreement individuals understandably aim to achieve the best possible outcome for their position. However, the principles of fairness, seeking mutual benefit and maintaining a relationship are the keys to a successful outcome.

Negotiation is an open process for two parties to find an acceptable solution to a complicated conflict. There are some specific conditions where negotiation will achieve the best results:

  • When the conflict consists of two or more parties or groups
  • A major conflict of interest exists between both parties
  • All parties feel that the negotiation will lead to a better outcome
  • All parties want to work together, instead of having a dysfunctional conflict situation

STAGES OF NEGOTATION

In order to achieve a desirable outcome, it may be useful to follow a structured approach to negotiation. The process of the negotiation includes the following stages:

  1. Preparation
  2. Discussion
  3. Clarifying the goals
  4. Negotiate towards a win – win outcome
  5. Agreement
  6. Implementing the course of action.

PREPARATION

Before any negotiation takes place, a decision needs to be taken as to when and where a meeting will take place to discuss the problem and who will attend. Setting a limited time – scale can also be helpful to prevent the disagreement continuing. This stage involves ensuring all the pertinent facts of the situation are known in order to clarify your own position.

DISCUSSION

During this stage, individuals/members of each side put forward the case as they see it i.e. their understanding of the situation. It is extremely important to listen as when disagreement takes place it is easy to make the mistake of saying too much and listening too little. Each side should have equal opportunity to prevent their case.

CLARIFYING THE GOALS

From the discussions, goals, interests and viewpoints of both sides of the disagreement need to be clarified. It is helpful to list these factors in order of priority. Through this clarification it is often possible to identify or establish some common ground. Clarification is an essential part of the negotiation process, without it misunderstandings are likely to occur which may cause problems and barriers to reaching a beneficial outcome.

NEGOTIATE TOWARDS WIN – WIN OUTCOME

This stage focusses on what is termed a win – win where booth sides feel they have gained something positive through the process of negotiation and both sides feel their point of view has been taken into consideration. A win – win outcome is usually the best result. Suggestion of alternative strategies and compromises needs to be considered at this point.

AGREEMENT

Agreement can be achieved once understanding of both sides viewpoints and interest have been considered. It is essential to for everybody involved to keep an open mind in order to achieve an acceptable solution. Any agreement needs too be made perfectly clear so that both sides know what has been decided.

IMPLEMENTING A COURSE OF ACTION

From the agreement, a course of action must be implemented to carry through the decision.

WIN – WIN STARTEGIES

There are 5 strategies under win – win process which are as follows:

  1. Make multiple offers
  2. Include a matching right
  3. Try a contingent agreement
  4. Negotiate damages upfront.
  5. Search for post settlement

MAKE MULTIPLE OFFERS

When you put only one offer on the table at a time, you will learn very little if the other party turns it down. By contrast, think about what happens when you simultaneously present multiple offers, each of which is equally valuable to you. If the other side refuses all of your offers, ask her which one she likes best. Her preference for a specific offer should give you a strong clue about where you might find value-creating, win-win trades and generate mutual gain. In addition to identifying potential win-win moves, when you make multiple offers simultaneously, you signal your accommodating and flexible nature, as well as your desire to understand the other party’s preferences and needs. So, the next time you are about to make an offer, advises Bazerman, consider making three that you value equally instead.

INCLUDE A MATCHING RIGHT

In negotiation, including a matching right a guarantee that one side can match any offer that the other side later receives—can be a classic win-win move, Imagine that you’re a landlord negotiating with a prospective tenant. You want to keep the ability to sell the apartment to someone else in the future, while the prospective tenant wants a commitment to rent the apartment for as long as she wants. Offering the tenant a matching right—the power to match any legitimate third-party offer—would allow you to preserve your own flexibility while giving the tenant the opportunity to avoid the disruption of a move. In this manner, matching rights can improve the odds of a win-win agreement.

TRY A CONTINGENT AGREEMENT

In negotiation, parties often reach impasse because they have different beliefs about the likelihood of future events. Contingent commitments often create incentives for compliance or penalties for noncompliance. You might propose paying specified penalties for turning your project in late or agree to significantly lower your rates if you go over budget, for example. To add a contingent agreement to your contract, begin by having both sides write out their own scenarios of how they expect the future to unfold. Then negotiate expectations and requirements that seem appropriate to each scenario. Finally, include both the scenarios and the negotiated repercussions and rewards in your contract. A contingent agreement can greatly increase your odds of being satisfied with whatever remedies are in place—and help generate a win-win deal.

NEGOTIATE DAMAGES UPFRONT

If one party sues the other side for breach of contract down the line, the plaintiff (if she wins) will be awarded monetary damages rather than the specific goods or services that were lost. Therefore, negotiating upfront exactly how much will be paid for each late or missed delivery, for example, may streamline any alternative dispute-resolution measures or lawsuits that arise. In addition, negotiating damages puts a new issue on the table—and thus expands the potential for value creation. In this manner, adding new issues to the mix increases the opportunity for win-win negotiations.

SEARCH FOR POST SETTLEMENT

Imagine that you’ve just reached an agreement. You are fairly happy with the deal but suspect you could have eked more value out of it. you should quit talking about the agreement with your counterpart and move on, lest you spoil the deal. asking the other party whether he would be willing to take another look at the agreement to see if it can be made better. Explain to your counterpart that you would each be free to reject a revised deal if it doesn’t improve both of your outcomes. This type of post-settlement settlement can lead to new sources of value to divide between you. It can also help generate a win-win contract if you didn’t have one before. Your success in hammering out your initial agreement may have established the trust needed to explore the possibility of an even stronger deal.

Annulment of Marriage on fraud

Annulment of Marriage under Hindu Law

Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. In Hindu Law, Marriage is treated as a Samaskara or a Sacrament. A Hindu marriage joins two individuals for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families together. The colours are normally red and gold. It is a vow between two people to stay together and uphold traditional family values in accordance with Dharma. In the traditional Hindu system of marriage, there is no role for the state as marriage remained a private affair within the social realm. Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu samskaras, or life-cycle rituals. Divorce, however is a thorny question and Annulment is a very unusual remedy. In our modern world, an Annulment tends to be more a creature of religion than of law. Annulments are rarely granted and when they are, very specific circumstances must exist.

Fraud:– It is essential to note that the section does not speak of fraud in any general way or of every misrepresentation or concealment which may be fraudulent but fraud whereby the consent of the petitioner was obtained to the solemnization of the marriage. If there was actual consent to the solemnization of the marriage with the respondent the marriage cannot be annulled on the ground of fraud. In matrimonial law when fraud is spoken of as a ground for avoiding a marriage, it does not include such fraud as induces a consent but is limited to such fraud as procures the appearance without the reality of consent. This distinction is clearly brought out by the case where it was held that concealment by a woman from her husband at the time of her marriage of the fact that she was then pregnant by another man was no ground for avoiding the marriage on the plea that the consent was obtained by clause (d). It will be noticed that the Legislature has in view of this expressly provided in clause (d) that in such a case the marriage may be annulled if the petitioner was at the time of the marriage ignorant of that fact. In another case, which seems to illustrate the rule it was held that concealment of the fact that the wife had been a naikin by profession and even in the keeping of more than one person prior to the marriage was not fraud if there was consent to the marriage (e). A person who freely consents to a solemnization of the marriage with the other party in accordance with customary ceremonies, that is, with knowledge of the nature of the ceremonies and intention to marry, cannot raise an objection to the validity of the marriage on the ground of any fraudulent representation or concealment. Thus for instance a marriage cannot be avoided by showing that the petitioner was induced to marry the respondent by fraudulent statements relating to family or fortune or caste or religion or age or character of the respondent(cl). The test is that there should be real consent to solemnization of marriage and consent to marry the particular person. Where, however, there is no real consent, as for instance where a party is kept under the impression that what is being performed is only a betrothel or there is deception as to the identity of the other party, that would be fraud which affords a ground for annulment of the marriage under the rule laid down in this clause.”

In Som Dutt v. Smt. Raj Kumari, , husband sought annulment of marriage for fraud committed upon him by his wife in concealing her true age from him and thereby inducing him to marry a woman much older than him in age. Date of birth of wife as mentioned in her horoscope compared with that of her husband showed her to be a year younger than her husband. She admitted her date of birth which made her three years older than her husband. Her date of birth as recorded in her matriculation certificate made her seven years older than her husband. No effort was made to get the date corrected in case of any error in it. Wife was also suffering from recurrent attacks of hysteria and garrulity. In an attack after marriage she was found to be anxious and irritable and had suicidal feelings and there was also disturbance of her memory and intelligence. In these circumstance, a single Judge has held, “marriage was liable to be annulled due to gross matrimonial fraud committed upon husband both with regard to age of his wife as also her mental state.”

Division Bench of this Court in Sujatha v. Hariharan, (1995) 2 Mad LJ 327 has held that it must be of such a nature which affects ordinary marital life of the parties. In the said case there was an eye defect curable by proper treatment. Concealment of such fact at the time of the marriage cannot said to be fraud, hence annulment of marriage on that ground cannot be granted. After analysing various earlier case laws of other High Court as well as this Court and in the light of Section 12(1)(c) of the Act, the Bench has come to the following conclusion:–

“To summarise the above case law, to have a cause of action for annulling a marriage under Section 12(1)(c) of the Hindu Marriage Act, to constitute fraud there must be some abuse of confidential position, some intentional imposition or some deliberate concealment of material facts which are the fundamental basis of the marriage contract. (See laws of Marriage and Divorce by H.K. Saharay, second edition at page 127). The above case law makes it clear that the concealment, even if any, must be of such nature which affects the ordinary marital life of the parties. In this case, it has come out in evidence that the appellant is a post-graduate. She is now undergoing B.Ed. course and has also studied Hindi for three courses. It has also come out in evidence that while she was in her husband’s house, she was doing all manual and household work and the petitioner has even taken her to a cinema. How far the marital life is affected, is not explained by the petitioner. He only says that he had did not like the respondent (wife) and hence there is no consummation of marriage. Pending trial, the Family Court has got a report from another doctor where also the eye defect was stated to be minus 15 and minus 17. No attempt was made by the petitioner to give treatment to the wife, and he has not even ascertained whether it can be cured or not. Unless it is incurable, as observed in the earlier case law, any concealment of the same, will not amount to concealment of a material fact which will give a cause of action for annulling the marriage. According to the appellant and her father, the eye defect is curable if proper treatment is given. Even in the present state, it does not affect her marital life. She says that the marriage was consummated and they had physical contact on many days. If the eye defect is not a material fact which does not affect the marital life, the petitioner cannot have any cause of action for annulling the marriage. In this case, he has not adduced any evidence whether the eye defect is curable or not, and whether the decree of the defect could be reduced, he takes her to the doctor only for the purpose of ascertaining and assessing the defect, and not to get it cured. That also show that his intention is not bona fide. We have stated that even according to his own showing, he did not consider the eye defect is a material fact. According to him, it is alleged mental illness of the respondent that causes him concern and if it is for that reason he wanted the annulment of marriage. To say that he has taken her to a Psychiatrist, but that is a evidence regarding her alleged mental defect. On the contrary, we have the oral evidence of R.W. I herself where she ably speaks before court about her mental condition.”

Mahila Cell CAW role

Crime Against Women Cell mostly referred to as CAW Cell, is also known as Mahila Thana or Parivar Pramarsh Kender in various States in India. The primary job of these cells is to bring about reconciliation between the warning couple. Mostly now a days in Dowry Harassment cases also known as 498A cases or Domestic Violence Cases. CAW Cells are trying to bring about reconciliation between the parties. In Delhi First CAW Cell was established in 1983 at Nanakpura Under Section 19 of Delhi Police Act, 1978.

As per the judgements of the Delhi High Court it was held that CAW Cells can only make reconciliatory efforts between the parties that also up to the stage of pre-registration of FIR. Here are some judgments extracts from Delhi High court giving useful information about the powers and procedures of Crime Against Women (CAW) Cells.  The interesting thing is that in all judgments the high court says that CAW is supposed to do reconciliation.  Well in that case they should change the name to something else.  Because implicitly a complaint in CAW cell will be treated as crime done by someone against a woman (read wife).  After all it is all there in the name. The judgments are as follows:

  1. Raj Kumar Khanna v. The State (NCT of Delhi) and Ors.; 2002 (1) JCC 327
  2. W.P. (Crl.) No.1032/2007 and Crl.M.A.No. 8989/07 on 10.8.2007
  3. Crl.M.A. No. 8813/07 in 
    W.P.(Crl.) No. 1009/2007

PROCEDURE TO BE FOLLOWED BY CAW CELLS

CAW Cells cannot take suo-motu action that means the complainant has too visit the CAW Cell and give her complaint in writing. After receiving the compliant CAW Cell examine the alleged offences followed by the counselling session of the complainant. However, if the complainant unwilling to take back the compliant, request letters are sent to the opposite party asking them to appear for the purpose of conciliation. In case of matrimonial dispute, the complainant wife is asked to submit a list of Istridhan kept at matrimonial home in case the wife is no longer staying with the husband.

Generally, when the husband visits the CAW Cell in Delhi for the first time, a counsellor tries to ensure patch up between the warning couple. If there is any chances of a mutual reconciliation, the process is carried forward at future later else the husband is given a list of Istridhan to be replied by the next due date given by the counsellor.

It is most important that the husband should apply for the compliant through the RTI Cell of the concerned CAW Cell. From a husband’s perspective it is important to maintain calm and display confidence. Please be informed it has been noticed that the wife or any relative from her family might to try to instigate the husband or his relatives during the conciliation proceedings, the counselor same in cross signed by both the parties. It is in favor of the husband to attend each and every proceeding at CAW Cell.

After a few meetings generally 5-7 meetings and after a meeting SHO/ACP of the CAW Cell, if there is no scope of any reconciliation between the parties, the compliant is referred to the legal cell of the CAW Cell.

The legal Cell goes through the compliant and makes it recommendations for filing of FIR at the concerned police station. From husband perspective, this is the most appropriate time to seek a Notice Bail/Anticipatory Bail.

The crux is that CAW Cells / Mahila Thanas are merely for reconciliation efforts and it is not prudent to run a mini trial there with all the evidences. Evidences should be used at the time of trial.

How to bankrupt a company?

The Insolvency and Bankruptcy Code, 2016 (IBC) is the bankruptcy law of India which seeks to consolidate the existing framework by creating a single law for insolvency and bankruptcy. The bankruptcy code is a one stop solution for resolving insolvencies which previously was a long process that did not offer an economically viable arrangement. The code aims to protect the interests of small investors and make the process of doing business less incommodious.

Insolvency Resolution

The Code creates various institutions to facilitate resolution of insolvency.  These are as follows:

  • Insolvency Professionals: A specialized cadre of licensed professionals is proposed to be created. These professionals will administer the resolution process, manage the assets of the debtor, and provide information for creditors to assist them in decision making.
  • Insolvency Professional Agencies: The insolvency professionals will be registered with insolvency professional agencies. The agencies conduct examinations to certify the insolvency professionals and enforce a code of conduct for their performance.
  • Information Utilities: Creditors will report financial information of the debt owed to them by the debtor. Such information will include records of debt, liabilities and defaults.
  • Adjudicating authorities: The proceedings of the resolution process will be adjudicated by the National Companies Law Tribunal (NCLT), for companies; and the Debt Recovery Tribunal (DRT), for individuals. The duties of the authorities will include approval to initiate the resolution process, appoint the insolvency professional, and approve the final decision of creditors.
  • Insolvency and Bankruptcy Board: The Board will regulate insolvency professionals, insolvency professional agencies and information utilities set up under the Code.  The Board will consist of representatives of Reserve Bank of India, and the Ministries of Finance, Corporate Affairs and Law.

Insolvency Regulator

 The Code establishes the Insolvency and Bankruptcy Board of India, to oversee the insolvency proceedings in the country and regulate the entities registered under it. The Board will have 10 members, including representatives from the Ministries of Finance and Law, and the Reserve Bank of India.

Insolvency professionals

The insolvency process will be managed by licensed professionals. These professionals will also control the assets of the debtor during the insolvency process.

Bankruptcy and Insolvency Adjudicator:

The Code proposes two separate tribunals to oversee the process of insolvency resolution, for individuals and companies: (i) the National Company Law Tribunal for Company and Limited Liability Partnership Firms; and (ii) the Debt Recovery Tribunal for individuals and partnerships.

Procedure

  • Initiation: When a default occurs, the resolution process may be initiated by the debtor or creditor. The insolvency professional administers the process.  The professional provides financial information of the debtor from the information utilities to the creditor and manage the debtor’s assets.  This process lasts for 180 days and any legal action against the debtor is prohibited during this period.
  • Decision to resolve insolvency: A committee consisting of the financial creditors who lent money to the debtor will be formed by the insolvency professional. The creditors committee will take a decision regarding the future of the outstanding debt owed to them.  They may choose to revive the debt owed to them by changing the repayment schedule or sell (liquidate) the assets of the debtor to repay the debts owed to them.  If a decision is not taken in 180 days, the debtor’s assets go into liquidation.
  • Liquidation: If the debtor goes into liquidation, an insolvency professional administers the liquidation process. Proceeds from the sale of the debtor’s assets are distributed in the following order of precedence: i) insolvency resolution costs, including the remuneration to the insolvency professional, ii) secured creditors, whose loans are backed by collateral, dues to workers, other employees, iii) unsecured creditors, iv) dues to government, v) priority shareholders and vi) equity shareholders.

Amendments

First Amendment  

The Bill prohibits certain persons from submitting a resolution plan in case of defaults. These include: (i) willful defaulters, (ii) promoters or management of the company if it has an outstanding non-performing debt for over a year, and (iii) disqualified directors, among others. Further, it bars the sale of property of a defaulter to such persons during liquidation

Second Amendment

  • The Bill amends the Insolvency and Bankruptcy Code, 2016 to clarify that allottees under a real estate project should be treated as financial creditors.
     
  • The voting threshold for routine decisions taken by the committee of creditors has been reduced from 75% to 51%.  For certain key decisions, this threshold has been reduced to 66%.
     
  • The Bill allows the withdrawal of a resolution application submitted to the NCLT under the Code.  This decision can be taken with the approval of 90% of the committee of creditors.

How you can prove electronic evidence in court in 498A cases?

Generally in 498 A cases you will get an opportunity to lead defense evidence.

Sometime in court during the cross examination of the wife she always says that she or their relatives have never threatened to implicate husband in the false evidence.

Now in that case if there is a positive proof of such threats which generally in the form of call recordings then they can be proved in court of law

Procedure to prove recordings in court

As per the the Judgement of RM Malkani v. State of Maharashtra[4]. In this case, the prosecution case was based solely on the tape recorded conversation, which clearly proved the appellant’s intention to obtain a bribe. Tape recordings are also admissible evidence in court of law

The situation regarding the admissibility of the tape recordings as evidence was finally made clear by the Supreme Court in the case of Ram Singh v. Colonel Ram Singh. The apex court in this case laid down following principles regarding admissibility of such recordings:

  1. The voice of the person, against whom such recording is being produced as evidence, must be duly identified by the person who is producing such recording as evidence.
  2. The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence, either direct or circumstantial.
  3. Every possibility of tampering with either whole or any part of the tape-recorded statement must be ruled out; otherwise, it may render the said statement out of context and, therefore,
  4. The statement must be relevant according to the rules of the Indian Evidence Act.
  5. The recorded cassette must be carefully sealed and kept in safe or official custody.
  6. The voice of the person should be clearly audible and not lost or distorted by other sounds or disturbances.
Image result for evidence electronic

The evidence produced such as electronic evidence from the phone recording have to undergo 3 important steps.

  1. Relevancy-the evidence of mobile phone recording must pertains to facts in issue. i.e if the trial is of 498A then the defence must foocus on provinmg that the case is false any other matrimonial issue is dis credited.
  2. Reliability- That the court can rely on such a piece of evidence for this a certificate under 65B of the Evidence Act must be accompanied with the evidence it is the person who can take the ownership of the evidence.
  3. Authenticity- This can be proved by producing un altered original evidence. Which can also be examined by an expert.

SUCCESSION CERTIFICATE IN DELHI

How to Get Succession Certificate in Delhi

Succession Certificate is a certificate granted by the Courts in India to the legal heirs of a person dying intestate leaving debts and securities. A person is said to have passed away intestate when he/she does not leave a legal Will. Succession certificate entitles the holder to make payment of debt or transfer securities to the holder of certificate without having to ascertain the legal heir entitled to it. Succession certificate provides indemnity to all persons owing such debts or liable on such securities with regards to all payments made to or dealings had in good faith with a person to whom a certificate as granted. Hence, many organisation and person request for succession certificate before settling the debts or securities of the deceased in favour of the person claiming such debts or securities.

Procedure for Obtaining Succession Certificate

To obtain succession certificate, a petition to the District Judge within whose jurisdiction the deceased person ordinarily resided at the time of his or her death or, if at that time he or she had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found.

Petition for Certificate

A petition for succession certificate must contain the following particulars:

  • Time of death of the deceased;
  • Residence or details of properties of the deceased at the time of death within which Judge the jurisdiction falls under;
  • Details of family or other near relatives;
  • The rights of the petitioner;
  • Absence of any impediment to the grant of certificate;

Grant of Certificate

On making the petition, if the District Judge is satisfied as to the ground of making the petition, can grant an opportunity of hearing to persons who, in his/her opinion, should be heard. After hearing all parties, the Judge can decide the right of the petitioner to be granted the succession certificate. The Judge would then pass an order for grant of  certificate specifying the debts and securities set forth in the application empowering the person to receive interest or dividend or to negotiate or transfer or do both.

Restriction on Succession Certificate

A court can sometime require a bond with one or more surety or sureties or any other security for rendering an account of debts and securities received by the petitioner of succession certificate for indemnifying the persons who may be entitled to any part of the debt or securities.

Validity of Succession Certificate

A succession certificate has validity throughout India. If a certificate is granted in a foreign country by an Indian representation accredited to that State, it should be stamped in accordance with the Court Fees Act 1870 to have the same effect in India as a certificate granted in India.

Lawyer in Supreme Court/Advocate Supreme Court


Advocate Nitish Banka is a practicing advocate in Hon’ble Supreme Court of India. He has total experience of 7+ Years in Hon’ble supreme court and represented many clients. He has also worked in collaboration with renowned senior Advocates in Supreme Court like Siddharth Luthra, Geeta Luthra, Salman Khurshid and Prashant Bhushan.
Advocate Nitish Banka is a specialist in SLP both civil and criminal as well as writ petitions, Transfer petition in Supreme Court.
Advocate Nitish Banka is working with ultimate goal of giving relief to clients at best affordable fees.

Making Hon’ble Supreme Court approachable for a common man with quality to get best relief.

Recent Cases

SLP filed against Father in law just too harass him got dismissed by Supreme Court. Case Argued by Nitish Banka

Successful case transfer from Waynad to Bangalore. Case Argued by Nitish Banka

Transfer petition in favor of Husband a rare order Argued by Advocate Nitish Banka

Impounding of Passport as a Bail condition in 498a or other Criminal Offences

Generally we see that NRI’s are the worse hit when criminal proceedings are lodged against them in India.

These people work for their living in abroad and are on Indian Passport and on foreign visa. Any criminal proceedings in India can dent their employment prospects and Visa rejection.

Some courts in India give anticipatory bail on a condition that passports is impounded.

Can this condition be imposed?

No, Why? Because Section 10(3) of the passports act says the Passport authority has a power to impound passport and no other authority can.

Held in Capt. Anila Bhatia Vs, State of Haryana.

Section 10(3)(e) of the Passport Act specifically deals with impounding of passport whereas Section 104 Cr.P.C., allows the Court to impound the document to produce before the Court. The Passport Actoverrides the provision of Cr.P.C., for the purpose of impounding passport. In the present case in hand, the order directing to surrender the passport indefinitely amounts to impounding of the passport itself.

11 of 14 In the present case, while granting anticipatory bail to the petitioner, a condition has been imposed to surrender his passport before the trial Court. The petitioner is working a Pilot in Air India Airlines and her nature of duties are such that she is to fly aeroplane and as per duty roster assigned to her, she is to fly abroad on certain occasions where she is not aware about the next program as only a short notice is there during which it is very difficult for the petitioner to take prior permission and to have the the passport in case, the same is deposited.

No doubt, as per Section 102(1) of Criminal Procedure Code, the power of police officer is there to seize certain property. The police may have the power to seize a passport under Section 102(1) of the Criminal Procedure Code but it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967. There is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his/her possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document, the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document. In the Law Lexicon by P. Ramanath a Aiyar (2nd Edition), the word “impound” has been defined to mean “to take possession of a document or thing for being held in custody in accordance with law”. Thus, the word “impounding” really means retention of possession of a good or a document which has been seized.

12 of 14 Hence, while the police may have power to seize a passport under Section 102 Criminal Procedure Code if it is permissible within the authority given under Section 102 of Criminal Procedure Code, it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Criminal Procedure Code), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any opportunity of hearing to a party vide State of Orissa v. Binapani Dei AIR 1967 SC 1269. The trial Court cannot impound a passport. No doubt,Section 104 Criminal Procedure Code states that the Court may, if it thinks fit, impound any document or thing produced before it but this provision will only enable the Court to impound any document or thing other than a passport as impounding a “passport” is provided for in Section 10(3) of the Passports Act. It is a settled law that the special law prevails over the general law. The Passports Act is a special law while the Criminal Procedure Code is a general law. Hence, impounding of a passport cannot be done by the Court under Section 104 Criminal Procedure Code though it can impound any other document or thing.

Adv. Nitish Banka

The Importance of Statement of Witnesses in 498a Acquittal.

When Police investigates 498a cases. The Statements of all the witnesses are important and it gets recorded under 161 CrPC and becomes part of chargesheet.

CrPC 161 says:

 Examination of witnesses by police.(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

161 CrPC and Acquittal

Now the importance of 161 CrPC is that it can be used for contradiction. When police witnesses come too the court for Statements under Oath.

Now there are two ways to show contradiction

The portion of statement which is about to use for contradiction first brought to the notice of witness, and should be questioned about it. If the witness admits that he made said statements before police then no further proof is needed. But if witness denies that he made confronting statements that he did not make before police then, comes the role of contradiction, court is bound to note the said statements and give exhibit number. By that process contradiction merely brought on record but those are subject to proof. It is said to be proved if investigating officer who recorded statement is confronted with the said statement asking whether witness stated about passage beofre him or not. If he gives affirmative answer, then the said contradiction said to be proved. In a case reported in AIR 1958 Bom 225, Syyed Husan Vs State, their lordship held that the correct way and the proper way of proving a contradiction or omission is to ask the investigating officer (SI) about it in his evidence, as to whether a certain statement was made before him by a witness. If such a procedure is not adopted, it cannot be said that there was proof that in fact the statement concerned was not made by the witness. It is for the trial judge to decide in each case, after comparing the part or parts of the statement recordedby the police with that made in the witness box, to give a ruling having regard to the aforesaid principles whether the recital intended to be used for contradiction satisfies the requirements of law.

How to Fight False 498a-Get out of it Fast

How to Fight False 498a-A complete Guide

498a is filed by wife just to harass you.

False 498a cases are very common in the society and lot of steps has been taken by Hon’ble Apex court also to prevent its misuse. Quashing of false 498a is possible but first you need to know the reason for false 498a

These days false 498a cases gropes all the relatives father, mother sister who may be staying away from the matrimonial home still they become party to 498a.

Here are the reasons wife has filed false 498a cases on your family.

Image result for false 498a

1.Money

Your wife may be after your money wants to harass you and your family in false 498a cases. Because mental harassment can cause you settle at a very handsome amount.

2.You refused to give her divorce

If you have refused to give him/her divorce then you may definitely face proceedings under false 498a and 406 and now 377 IPC are common.

 3. Pressure from her relatives

Matrimonial discords are common in marriages sometimes relatives make it a bigger issue. Negative relatives can lead to false 498a cases.

4. She has an affair

if wife having an affair somewhere else and you got to know then also wife can put these  false cases for only reason called harassment so that you may not be able prosecute her for adultery.

What happens in false 498a cases

Police calls in false 498a cases

You receive a call from the police station and on the other line there is an Investigating officer is on the  other side of the line.For one moment panic strikes you and you come to know that your wife has lodged a false 498a case against you and your family.

The Io asks you to visit police station so called CAW cell.

When you go and visit CAW cell harassment starts poring in the IO and other mediators starts pressurizing you to settle the matter. You gain strength and refuse to settle the matter and comes back to your home.

Then again you receive the call from the CAW cell to come and join then again then again….

Reasons for harrasment

These calls from CAW cell are against the law and just meant to harass you. Even if you join the mediation  process and attend N number of dates present defence evidence to the IO. Still the CAW complaint gets converted into FIR and these calls fails to stop…

The reason for such calls is done with clear motive of harassment and put pressure to settle the issue with estranged wife and if you fail to settle then FIR is converted.

How to deal with police harassment.

As per the Delhi High Court Judgement they have prescribed certain guidelines which is envisaged under Section 41A of CrPC that a written notice with prescribed format has to be sent to the accused while summoning him to appear before IO. So if IO calls the accused i.e husband and relatives of the husband by making a mobile call that is impermissible as per law.

Anticipatory bail in 498a

Anticipatory bail in 498a is advisable and recommended

A family comes under pressure when they come to know that a FIR under section 498a has been lodged in police station.

The first cause of stress is call be Investigating Officer to join investigation to old parents, husband, husband sister or brother.

The trauma is whether they can be arrested or not.

It is not advisable to visit investigating officer without protection from the court this protection is termed as Anticipatory Bail.

The process of getting Anticipatory Bail in 498a

The chances of getting bail under 498a is quite high as I have already discussed in detail in one of my articles

chances of getting anticipatory bail 

The conditions of anticipatory bail are not very stringent but if they are stringent it can always be challenged. I have discussed in detail the conditions Conditional Anticipatory Bail

Now as per the judgement of 498a under Rajesh Sharma versus State of Uttar Pradesh. there is a stay on automatic arrest in the cases of 498a. But this judgement is challenge in higher bench and revisit the judgement.

Judgement on 41A by Delhi High Court

(i) Police officers should be mandatorily required to issue notices under Section 41A Cr.P.C (in the prescribed format) formally to be served in the manner and in accordance with the terms of the provisions contained in Chapter VI of the Code. Model…

http://www.livelaw.in/delhi-hc-lays-procedure-issuance-notice-appearance-police-officers-u-s-41a-cr-p-c-read-judgment/

Dismissal of false 498a cases(Quashing)

Quash false  -Vague allegations in Fir

Quash false 498a -Vague allegations in Fir The case of 498a can be quashed when there are vague the allegations in the FIR. A FIR is a first document on which whole investigation and chargesheet is based.

Stages of 498a

Chargesheet Stage in 498a and Framing of charge as well as Discharge.

After completion of investigation police will file charge sheet at this stage evidence of the police has to be seen. If there is no evidence or contradictory evidence then you can seek discharge.

Argument on discharge is an important stage in fighting false 498a.

If there is no statements of witnesses or no medical evidence then you may argue on discharge.

Prosecution Evidence and Defence Evidence as well as Cross examination

Evidence-based prosecution’ (sometimes termed “victimless prosecution”) refers to a collection of techniques utilized by prosecutors in domestic violence cases to convict abusers without the cooperation of an alleged victim. It is widely practiced within the American legal system by specialized prosecutors and state’s attorneys and relies on utilizing a variety of evidence to prove the guilt of an abuser with limited or adverse participation by the abuser’s victim, or even no participation at all.

Cross-examination of a person called to produce a document (S. 139):

A person summoned to produce a document does not become a witness, by the mere fact that he produces it, and cannot be cross-examined, unless and until he is called as a witness.

A witness summoned merely to produce a document does not become a witness for purposes of cross-examination, since he may either attend the Court personally or may even depute any person to produce the document in Court.

A witness may be cross-examined as to previous statements made by him in writing (or reduced into writing), and relevant to matters in question, without such writing being shown to him, or being proved. However, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

Final Arguments and Judgement Stage

concluding statement of each party’s counsel reiterating the important arguments for the trier of fact, often the jury, in a court case. A closing argument occurs after the presentation of evidence. A closing argument may not contain any new information and may only use evidence introduced at trial. It is not customary to raise objections during closing arguments, except for egregious behavior.[1] However, such objections, when made, can prove critical later in order to preserve appellate issues.

What can I do against wife after I get acquittal in false 498a case?झूठे 498a मामले में बरी होने के बाद मैं पत्नी के खिलाफ क्या कर सकता हूं?

Whenever a false case is filed against the husband and his family members. All the family members and the husband suffer for many Years in litigating in courts which only brings harrasment to the husband and the family members.

What is the solution after getting Acquittal or discharge in false 498a case?

If the case ends up in either bdischarge or acquittal in false 498a. What the husband family can do against wife/complainant this comes into mind in every harassed family.

Here comes two sections of the IPC to help you, one is IPC 182 and 211 IPC.

Sec. 182 prescribes a punishment for six months and fine in case any person gives false information to a public servant, on the basis of which the public servant takes certain action which he might not have taken if he had known the true state of facts. On the other hand, u/s 211, there is an ono use of the term ‘public servant’. As per this provision, any person who institutes or causes to be instituted any criminal proceedings against a person to cause him injury, knowing that the complaint and allegations are false, is liable to face imprisonment for a period which may extend to two years. Further, if the charge alleged discloses an offence which is punishable by death, or a minimum imprisonment for seven years, is punishable with imprisonment for a maximum period of 7 years.

Procedure for initiating Criminal Action?

In the cases of 182 IPC in which the false information is given to police. Then in that case that police office can write a complaint and forward it to concerned senior officer. Who than forward a formal complaint to the court which than initiate proceedings under 182 IPC

In the cases of 211 wherein the case is already pending against the accused person in court. Than in that case the court in which trial was running A application under section 340 CrPC is filed and then court initiates further action under 211 IPC.

Conclusion

Initiating proceedings under 211 IPC and 182 IPC will put pressure on the other side and will help in fighting and solving matrimonial issues by way of informal settlement.