PERSONS ENTITLED FOR FREE LEGAL AID

 PERSONS ENTITLED FOR FREE LEGAL AID  

• − A person with an annual income of less than Rs.1,00,000/- 
• − A Woman or a Child 
• − A member of Scheduled Caste or scheduled Tribe. 
• − A victim of trafficking in human beings beggar. 
• − An under trial in custody, including a juvenile. 
• − A person with disability such as suffering from blindness, leprosy loco motive disability, hearing impairment, mental derangement 
• − A victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster. − An industrial workman. 
• − A person upto the age of 18 years in a protective home or mentally ill person in a psychiatric hospital or psychiatric nursing home. 
• − A transgender whose annual income is less than Rs.2,00,000/- 
• − A senior citizen whose annual income is less than Rs.2,00,000/-

Besides the above categories, free legal services can also be provided

in the under mentioned situations:-

    i. In a test case, the decision of which is likely to effect cases of

numerous other persons belonging to the poor and weaker sections

of the society; or

    ii. To a person in a special case, who, for reasons to be recorded in

writing, is considered otherwise deserving of legal service where the

means test is not satisfied;

    iii. Persons in favour of whom our High Court or the Supreme Court

directs grant of legal service;

Sec .313 vs. Sec. 315 of CrPC

Sec .313 and Sec. 315 of Code of Criminal Procedure Code,1973

Provisions of Section 313 CrPC enables the accused to offer his explanation to evidence adduced against him by the prosecution whereas provisions of 315 enable the accused to adduce evidence in his favour. 

                                                   DIFFERENCES

Sec. 313 of CrPC Sec. 351 of BNSS	Sec. 315 of CrPC    Sec. 353 of BNSS
Power to Examine the Accused	Accused Person To be competent Witness
By the Court	By the Accused
Duty of court to give chance to the accused to offer his explanation	Accused holds the duty to offer his explanation as a witness
No oath shall be required under this provision	Oath shall be required under this provision
Statement of accused not constituted as evidence under Sec. 3 of Indian Evidence Act,1872 as there is no oath.	Statement of accused constituted as evidence under Sec. 3 of Indian evidence Act,1872.
Relevant for examining the veracity of the prosecution case or judgement.	Considered as an evidence for the  Defence of the Accused or any person charged together with him at the same trial.
Application is not required in this provision. The court may at any stage can ask questions to the accused without any previous warning.	Accused shall not be called as a witness except on his own request in writing.
Accused is asked to explain himself on court’s discretion but may not be as Witness	Any person accused of an offence before a Criminal Court shall be a competent witness for the defence.
The accused shall not render himself liable to punishment by refusing to answer such questions or by giving false statements.	Failure of such person to give evidence shall not be made the subject of any comment or rise to any presumption against the accused or any other person proceeded against together with him at the same inquiry except under Sec.98 (101 BNSS - minor and spouse are excluded), 107 (126 BNSS- Security for keeping the peace in other cases) or under Chapter IX or under Part B, Part C or Part D of Chapter X

BNSS Sec 348: (CrPC 311): Power to summon material witness, or examine person present.

Any Court may, at any stage of any inquiry, trial or other proceeding under this Sanhita, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case

Validity of GPA in Title and Sale of Property in Delhi (after Suraj Lamps Judgement)

 1. What is a general power of attorney? 

Ans. A general power of attorney is an instrument that is used by a person (granter) to confer authority on other person (grantee) to act on his behalf. The action done by GPA holder is deemed as if performed by the granter. 

2. Whether there is any provision in the Stamp Act or in the Registration Act which brings GPA equivalent to Sale deed? 

Ans. No. GPA is a device where by power can be enjoyed by the grantee till the pleasure of the granter. 

3. What are risks of transactions based on GPA/SA/WILLs? 

Ans. Following are certain risks:- 

I) This is not a legal form of transfer of title or ownership in immovable property. 

II) The owner of property can any time transfer the immovable property to person other than the GPA holder and he can do so either by way of a sale deed or in form of a fresh GPA in other’s name. This has increased risk of forgery and cheating to many folds. 

III) You may be charged for transactions in black money as there is surely exchange of unaccounted money. 

IV) You may get entangled in property disputes and criminal assaults on you due to lack of title and in that case your legal position in court will also remain disadvantageous to you. 

4. What is the effect of Order of Hon’ble Supreme Court of India in its recently delivered judgment titled “Suraj Lamps & Industries Pvt Ltd. v. State of Haryana and another (Special Leave Petition (C) No.13917 of 2009-Decided on 11-10-2011)? 

Ans. Hon’ble Supreme Court of India has declared that there cannot be transfer of title by GPA/SA/WILLs transactions. Only registered sale deed /conveyance is a valid mode of transfer of title in immovable property. Based on this only, a circular has been issued by the Inspector General of Registration, Delhi. 

5. After the issuing of the circular whether GPA, Will, Agreement to sell, or SPA can be registered by people in SR Office? 

Ans. Yes, there is no ban on registration of these instruments in bonafide transactions. However, the GPA, Agreement to sell, Will or SPA collectively or separately shall not be recognized as a valid mode of transfer of title. These documents do not give ownership rights in an immovable property.Genuine cases of registration of such documents are not stopped. For Example:- 

i) A person may give power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance on his behalf. 

ii) A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement to sell and grant a power of attorney empowering the developer to execute agreements for sale or conveyance in regard to individual plots of lands or undivided shares in the land relating to apartments in favor of perspective purchasers. 

6. Status of GPA, Agreement to sell, Will or SPA registered before 11.10.2011:- 

i) What will be fate of GPA, Agreement to sell, Will or SPA registered before the date of Supreme Court order i.e. 11.10.2011? 

Ans. The GPA, Agreement to sell, Will or SPA registered before the order of the Hon’ble Supreme Court of India i.e. 11.10.2011 are not affected. The person who have entered into such transactions may regularize the transaction by obtaining deeds of conveyance. 

ii) How can a person having GPA registered before the date of the SC order, further sell/transfer the property? 

Ans. Further transfer of immovable property shall be permissible only through a registered sale deed. 

7. Status of GPAs registered after 11.10.2011? 

Ans. GPAs are not meant for transfer of property. 

8. What is the prevalence of registration of GPA, Agreement to sell, Will or SPA as against sale deeds? 

Ans. Contrary to the misconceptions, a larger number of sale deeds are registered as compared to the GPAs. For Example, out of the total 21017 documents registered in April 2012, 6378(30.35%) were sale deeds and only 1264 (6.01%) GPAs with considerations and 1101(5.24%) agreement to sell were registered in Delhi. 

9. What is the relative revenue generation through GPA, Agreement to sell, Will or SPA as against that of sale deeds? 

Ans. The revenue generated through GPAs/SPAs/Sale agreement/Will is roughly only about 15% of the total Revenue generated through the Registration of all instruments. For example, in the four months from Jan 2012 to April 2012, out of total revenue of Rs 687 crores, Sale deeds generated Rs 560 Crores (81.5%) whereas GPAs/SPAs/Sale agreement/Will generated Rs 127 Crores(18.5%). 

10. What is the impact of the Order of the Hon’ble Supreme Court? 

Ans:- 

i) Peace of mind to the citizens:- By executing proper deed of Conveyance/Sale deed, the purchaser shall obtain the actual title of the property purchased. There shall be reduced risk of forgery and fraud by the land mafias in form of multiple transfers of the same property to many at the same time through invalid instruments like GPA/Sale Agreement and Will etc. 

ii) Decriminalization of the real estate transactions:- The end of the SA/GPA/Wills transactions shall ensure that the real title of the property is actually transferred at the time of registration and that it cannot be altered or influenced thereafter by the use of muscle power/ Arm twisting/extortion/gangster activity/ life threats / use of arms and ammunitions etc. 

iii) Curbing of Black Money and check on artificial inflation in real estate through speculative commodity trading resulting in lack of affordable housing for the common man. This is because unscrupulous Builders/Real Estate Dealers/ Unscrupulous Elements indulge in speculative trading of properties through multiple GPA/Sale Agreement and Will etc creating Benami transactions leading to artificial shortage of housing stock, ballooning of property prices and evasion of Capital Gains tax, Wealth tax, Income tax and Stamp Duty. 

iv) Drastic Reduction in property litigation:- GPA/Sale Agreement and Will etc. transactions have resulted in lack of correct property title trail thereby leading to excessive property litigation in various courts which take sometimes even more than a generation to get disposed of. The resultant agony of the citizens will get avoided through this order of the Hon’ble Supreme Court. 

v) Enhanced Revenue Generation:- Contrary to misconceptions, the implementation of the orders of the Hon’ble Supreme Court will result in greater revenues as the requisite duty on sale deeds is two times higher than the duty on GPA/Sale Agreement and Will etc. Besides, the revenues accruing to the central government/ local bodies in the form of capital gains tax, Wealth tax, Income tax and transfer duty/conversion charges shall increase substantially. 

Ref: Circular released by the Department of Revenue, Govt. of NCT of Delhi

Circular 1

Circular 2

SURAJ_LAMP_JUDGEMENT

Difference between Section 34 & 149 of IPC (Indian Penal Code 1860)

 Both Sections 34 & 149 of IPC deals with crimes involved by several people but its applicability and objects are different, some of the major difference between Section 34 & Section 149 of IPC are discussed under.

SECTION 34 IPC SECTION 3(5) BNS	SECTION 149 IPC SECTION 190 BNS
Title: Acts done by several persons in furtherance of common intention.	Title: Every member of unlawful assembly guilty for offence committed in prosecution of common object
The number of people must be more than one	The unlawful assembly must consist of at least a group of five people (Ref: Sec 141)
Requires common intentions	Requires common objects
A Prior meeting of the people is necessary	The prior meeting of a group of people is not required
Active participation in the crime is necessary	Active participation in the offence is not required
Each person is liable for the act in the same manner as it were done by him alone	Does not create separate offence but only declares vicarious liability of all members.
Intention is required	Knowledge is enough

Sec 141 IPC (Sec 189(1)) = Definition of Unlawful Assembly

(1) An assembly of five or more persons is designated an “unlawful assembly”, if

the common object of the persons composing that assembly is—

(a) to overawe by criminal force, or show of criminal force, the Central Government

or any State Government or Parliament or the Legislature of any State, or any public

servant in the exercise of the lawful power of such public servant; or

(b) to resist the execution of any law, or of any legal process; or

(c) to commit any mischief or criminal trespass, or other offence; or

(d) by means of criminal force, or show of criminal force, to any person, to take or

obtain possession of any property, or to deprive any person of the enjoyment of a

right of way, or of the use of water or other incorporeal right of which he is in possession

or enjoyment, or to enforce any right or supposed right; or

(e) by means of criminal force, or show of criminal force, to compel any person to

do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.—An assembly which was not unlawful when it assembled, may

subsequently become an unlawful assembly.

ACT & RULES UNDER WHICH VICTIM COMPENSATION APPLICATION CAN BE FILED IN POCSO CASES

 General Statutory Rule for POCSO  [G.S.R. 165(E)]

 :: Where the Special Court, under sub-section (8) of section 33 of the Act read with sub-sections (2) and (3) of section 357A of the Code of Criminal Procedure, 1973 (2 of 1974) makes a direction for the award of compensation to the victim, [Rule 9 (3)] ::

Rule 9 (3)(i): type of abuse, gravity of the offence and the severity of the mental or physical harm or injury suffered by the child;

Rule 9 (3)(ii): the expenditure incurred or likely to be incurred on child’s  medical treatment for physical or mental health or on both;

Rule 9 (3)(iii):  loss of educational opportunity as a consequence of the offence, including absence from school due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason;

Rule 9 (3)(iv):  loss of employment as a result of the offence, including absence from place of employment due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason;

Rule 9 (3)(v): the relationship of the child to the offender, if any;

Rule 9 (3)(vi): whether the abuse was a single isolated incidence or whether the abuse took place over a period of time;

Rule 9 (3)(vii): whether the child became pregnant as a result of the offence;

Rule 9 (3)(viii): whether the child contracted a sexually transmitted disease (STD) as a result of the offence;

Rule 9 (3)(ix): whether the child contracted human immunodeficiency virus (HIV) as a result of the offence;

Rule 9 (3)(x): any disability suffered by the child as a result of the offence;

Rule 9 (3)(xi): financial condition of the child against whom the offence has been committed so as to determine such child’s  need for rehabilitation;

Rule 9 (3)(xii): any other factor that the Special Court may consider to be relevant.

GROUNDS FOR DIVORCE IN INDIA

Hindus, Christians, and Muslims are governed under separate marriage acts and grounds for divorce in India.

1.GROUNDS FOR DIVORCE UNDER THE HINDU MARRIAGE ACT, 1955

The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.

Adultery – [Sec 13(1)(i)]The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed adultery. Adultery is counted as a criminal offense and substantial proof are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty –  [Sec 13(1)(ia)] A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill-treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty.

Desertion –  [Sec 13(1)(ib)] If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Conversion –  [Sec 13(1)(ii)] In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.

Mental Disorder –  [Sec 13(1)(iii)] Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.

Leprosy –  [Sec 13(1)(iv)] In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

Venereal Disease –  [Sec 13(1)(v)] If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. Sexually transmitted diseases like AIDS are accounted to be venereal diseases.

Renunciation –  [Sec 13(1)(vi)] A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

Not Heard Alive –  [Sec 13(1)(vii)] If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation –  [Sec 13(1A)(i)(ii)] It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

THE FOLLOWING ARE THE GROUNDS FOR DIVORCE IN INDIA ON WHICH A PETITION CAN BE FILED ONLY BY THE WIFE.

1)  [Sec 13(2)(i)] If the marriage is solemnised before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.

2) [Sec 13(2)(ii)] If the husband has indulged in rape, bestiality and sodomy.

3) [Sec 13(2)(iii)] If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce, 

4) [Sec 13(2)(iv)] A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.

2. GROUNDS FOR DIVORCE UNDER THE DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939

Based on the Dissolution of Muslim Marriage Act, 1939 

a Muslim woman can seek divorce on the following grounds for divorce in India.

1)The husband’s whereabouts are unknown for a period of four years.

2)The husband has failed to provide maintenance to the wife for at least two years.

3)The husband has been under imprisonment for seven or more years.

4)The husband is unable to meet the marital obligations.

5)If the girl is married before fifteen and decides to end the relationship before she turns eighteen.

6)The husband indulges in acts of cruelty.

3.GROUNDS FOR DIVORCE UNDER THE INDIAN DIVORCE ACT, 1869

The following are the grounds of divorce mentioned under the Indian Divorce Act, 1869.

1) Adultery

2) Conversion to another religion

3) One of the couples suffering from an unsound mind, leprosy or communicable venereal disease for at least two years before the filing of the divorce.

4) Not been seen or heard alive for a period of seven or more years.

5) Failure in observing the restitution of conjugal rights for at least two years.

6) Inflicting cruelty and giving rise to mental anxiety that can be injurious to health and life.

7) Wife can file a divorce based on the grounds of rape, sodomy and bestiality.

4.GROUNDS FOR DIVORCE UNDER THE PARSI MARRIAGE AND DIVORCE ACT, 1936 (Amendment 1988)

The following are the grounds for divorce in India included in the Parsi Marriage and Divorce Act, 1936 and the amendment of the same in 1988.

1) Continuous absence of seven years.

2) Non-consummation of marriage within one year.

3) Unsound mind provided the other spouse was unaware of the fact at the time of marriage and the divorce must be filed within three years of marriage.

4) Pregnancy by some other man, provided the husband was unaware of the incident during the time of marriage and that he must not have undergone sexual intercourse after he came to know about the situation. The divorce must be filed within two years of marriage.

5) Adultery, bigamy, fornication, rape, or any other type of perverse sexual act.

6) Act of cruelty

7) Suffering from venereal disease or forcing the wife into prostitution.

8) Sentenced to prison for seven years or more

9) Desertion for two or more years

10) Non-resumption of cohabitation after passing an order of maintenance or a decree of judicial separation.

Difference between MIS-JOINDER & NON-JOINDER

 

MIS-JOINDER	NON-JOINDER
When mistakenly a party was added to the suit is misjoinder. That means when a party was added but he doesn’t have to do anything with the present issue then it considered to be misjoinder.	When a party is necessary to the suit and he was not added to the suit, then it is a non-joinder.
In case of misjoinder the court should not dismiss the suit rather; may order in such kind as the order not bind on the misjoined party and the relief should be sought only upon the respective necessary party.	When the court found about the non-Joinder of the party who are necessity to the suit, and adjudicating on such matter without them is a matter of waste, then the court can dismiss the suit, or may order the plaintiff to add the necessary parties or may add the party on their own.
There is no possibility of dismissal, since it won’t much affect the interest of the party at large.	There is a possibility. Of dismissing the suit, in respect to the effectiveness of the decree/order.