CHAPTER 4 INDIGENT PERSON
Ch. 4.1 Informa Pauperis
(Suits by indigent person)
Provisions are made in C.P.C. to enable a pauper to file a suit subject to certain conditions. 0rder.33 Rule. 1 to 16 provide for this.
A person is a pauper when he is not possessed of sufficient means to pay the court fee to institute a suit. Where no such fee is prescribed, the person is a pauper when his entire property is below Rs.1000/- value excluding his necessary wearing apparel and of course the matter of the suit.
0rder.33 provides for the procedure to file a suit informa pauperis. Every application for leave (permission) to sue informa pauperis must contain the particulars as required in a plaint. Also a schedule of any movable or immovable property with estimated value should be annexed. The plaint should be duly signed and verified.
The application should be presented to the Court by the applicant or agent capable of answering material questions put to him by the court.
The applicant is examined, if the application is proper and duly presented and if the court thinks fit to examine. The examination relates to the merits of the claim and property of the applicant.
The court rejects the application:
If there is no reason to reject the application, the court shall fix a day for receiving the evidence by the applicant to prove his pauper- ism. Evidence to disprove pauperism may be allowed. (Notice to the opposite party and Govt. pleader necessary). On the day fixed the court shall examine the witnesses produced by either party and may examine the applicant and make a memorandum thereof. Thereupon the court may give its decision allowing the application or its refusal.
Admission of application: If the application is granted it should be numbered and registered. It shall be deemed to be a plaint and the suit shall proceed of course without payment of Court fees.
The court may dis-pauper him. Under the new C.P.C. the court is empowered to assign a pleader to an indigent person who is not represented by a pleader Order 33, Rule 18 also provides for free legal services to such persons.
Where the plaintiff succeeds, the court shall calculate the amount of court fees and recover the same from the plaintiff.
Ch. 4.2.: Pauper Appeals
A pauper who is entitled to go for an appeal but who is unable to pay the fees is allowed to appeal as a pauper subject to the same provisions as provided above.
The court entertains the appeal if, the lower court’s decision is contrary to law usage or is erroneous or unjust.
SUITS AGAINST GOVT.
Ch.3 Sections 79 & 80 Suits against Government
Suits may be (i) General or (ii) of a particular kind.
In respect of suits in general it is not necessary to give notice to the defendant before filing a civil suit. However, in respect of suits against the Government, it is essential that notice under Section. 80 C.P.C. must be served. The object is to provide an opportunity to the Govt. to reconsider the legal position, and to amend or settle the claim without any litigation. The Central Government shall be called the Union of India and the State Government shall be called the State, e.g. state of Karnataka for the purpose of serving notice. Period of notice: Two months notice is essential, as per section. 80.
In respect of suits, against the Central Government notice must be given to the Secretary to the Government. (If it relates to the rail- way, notice must be given to the General Manager of the railways).
In respect of suits against State the cause of action Government notice must be given to the Secretary to that Govt. or the Collector of the District, as the case may be.
The notice must be in writing, state the name and description and place of residence of the plaintiff and also the relief which he claims.
In case of a public officer, notice under Sn.80 must be delivered to him or left at this office.
The plaint shall contain a statement stating that notice under Sn.80 has been so delivered or left in the office of the person so concerned. If notice has not been so served, then the suit is to be dismissed.
The new C.P.C. Section. 80(2) provides that when a suit to obtain an urgent or immediate relief is to be filed then no notice is necessary if the court so permits. The court in such circumstances shall give the Govt. or the Officer, reasonable opportunity of showing cause. The court also, decides whether there is urgency or not.
No suit under Sn.80 shall be dismissed merely on technical grounds of error or defect in the notice.
If there is no urgency to grant relief, the Court returns the plaint for presentation after giving notice .It must identify the cause of action and reliefs claimed, in the notice and in the plaint.
e.g:- “A” delivers a cloth to “B”, a tailor for making a shirt. The contract between “A” & “B” is bailment. Here, “A” is a bailor, and “B” is a bailee.
As, per Sec,149 Delivery of Goods to bailee may be made by doing anything which has the same effect of putting the goods in the possession of intended bailee.
In the case of Rajshaker Iyer vs. Presidency of Madras
It was held that delivery of goods to the intended bailee/ authorized person is also deemed as the delivery of goods to the actual bailee.
There can be no bailment without a contract.
In the case of Ram gulam vs. Govt. of. U.P., AIR 1950 ALL 106
Like the entire contract Bailment is also one of its specific kinds having the same attributes.
As the delivery of goods is done for some purpose therefore after the purpose is accomplished the goods may be returned to the bailor in the same or in the altered condition.
RIGHTS OF BAILOR:-
DUTIES OF BAILEE:-
RIGHTS OF BAILEE:-
CITY ACADEMY LAW COLLEGE
Section 97 provides that if a Magistrate has reason to believe that any person is confined unlawfully, he may issue a search warrant for the search of such a person, and if the person so confined if found, he is to be taken immediately to a Magistrate, who must pass such order as seems proper in the circumstances of the case.
This section contains an emergency provision, which authorises the Magistrate to issue a search warrant if he has reason to believe the truth of an allegation. It does not require any detailed inquiry, and is not concerned with the guilt of the persons complained against.
In one case, a boy has taken away by his natural father from the house of the alleged adoptive father, alleging that no adoption had in fact taken place. When the adopting father applied for recovery of the boy under this section, it was held that section 97 would not apply, as it was doubtful whether the confinement of the boy by the natural father amounted to an offence.
Similarly, where the information before the Magistrate was that a woman was living in her mother’s house, and there was no suggestion that she was being detained by her mother against her will, it was held that the Court had no jurisdiction to issue a warrant under section 97.
Likewise, if a complaint is made to a Magistrate about the deduction or unlawful detention of a woman or a female child under the age of 18 for any unlawful purpose, the Magistrate may make an order that such a woman should be immediately released or that such a female child should be immediately restored to her husband, parent or other guardian. All such force as may be necessary may be used to compel compliance with such an order. (Section 98)
The main purpose of section 98 is to protect girls and women from detention for immoral purposes, although the section is wide enough to cover detention which is clearly unlawful though not necessarily immoral.
It has been held that the detention of a child in a missionary school against the will of her parents, with a view that she should be brought up in a particular region, which such parents disapproved of, would certainly amount to unlawful detention, as it would not only bring about a total change in the child’s mode of life, but would also deprive the parents of any control in the education or upbringing of child.
However, the detention of a girl by her father in his house, against the will of her husband would not amount to unlawful detention, unless it is shown that the detention was contrary to the girl’s wishes also.
Similarly, it has been held that if a woman is residing with her relatives who are aiding her in producing a divorce, it does not amount to unlawful detention.
It is also to be noted that section 98 applies to female children only, and not to all children. This clearly shows that the purpose of the section has some special reference to the sec of the person, as for instance, adultery, concubinage, prostitution, deflowering etc.
Distinction between provision section 97 & 98
The following are the main points of distinction between section 98 and 99.
|Section 97||Section 98|
|This section refers to any person confined wrongfully.
Child under 18 years for unlawful
|This section refers to unlawful detention of woman or female purposes.|
|Warrant of arrest of female who has been wrongfully confined to someone may be issued under this section.||Restoration of female to her liberty or lawful guardian is the only order which can be passed underthhis.|
Subject to circumstances and condition mentioned below, Judicial Officer can be arrested.
Guidelines to arrest Judicial Officer
In Delhi Judicial Services Assn. v. State of Gujarat, 1991 (4) SCC 406, it was held that if a judicial officer is arrested then following guidelines should be followed..
Thus in brief it can be said that, generally there is no arrest of a judicial officer without the order or intimation of the District Judge, or the High Court but if it is not necessary he should not be taken to police station. He should not be hand cuffed and should be allowed to communicate with legal advisor and family members.
Ch.7.1. Approver: Sn.306 Cr.P.C.
An associate in a crime is called an accomplice. No doubt he is a guilty associate, but pardon is granted to him. He is called the ‘Approver’. He is granted pardon:
(i) To obtain evidence relating to the case and
(ii) To use evidence against the other accused. To this end, he is given an assurance by the Magistrate, that no action will be taken against him. He is examined as a witness for the prosecution. Pardon may be granted in the following offences:
(a) Cases triable by Sessions Court,
(b) Offences punishable with 7 years imprisonment or more. Pardon
Pardon may be granted by the District Magistrate, 1 Class Magistrate at any stage from investigation upto trial, but before judgement. Pardon may also be granted by Court of Sessions and High Court.
The pardon is granted on condition that as a return for the pardon, the approvershould make a full and true disclosure of the circumstances known to him.
The Magistrate shall record his reasons for granting pardon.
Pardon is given because there will be no other better evidence available in the absence of the approver’s disclosure.
Ex.:- In Belur Srinivas lyengar Murder Case, Bangalore, Channa became an approver and assisted the prosecution to arrest Krishna, Muniswamy and Govinda Reddy. Channa had made a complete disclosure ofthe conspiracy and the othercircumstances ofthe case.
Breach of promise
If the approver does not disclose fully and truly, the circumstances and the facts of the case, then,he has committed a breach of his promise. In such a case, the Magistrate may try him for so much of the offence as is disclosed by him to the court.
The approver gets full protection only when he has fully and truly disclosed all the relevant facts necessary for investigation. The evidence given by the approver is admissible, but the universal practice of the courts is not to convict the accused on the uncorroborated evidence of the Approver.
The reason is that the Approver is ‘Participes Criminis’ (participate in the crime) He will have a motive to put the blame on the accused or to shift the guilt from himself. (Sn. 133 Evidence Act).
Ch.7.2. First Offenders:- Sn. 360 Cr.P.C.
Provisions are made in Cr.P.C. for those who commit offences for the first time. This is a benevolent legislation. It enables the court to release the accused instead of sending him to the prison. The release is on probation of good conduct.
The object is to avoid the sending of first offender to the prison and of running the risk of turning him into a regular criminal.
When a person above 21 is convicted for 7 years or with fine only or when a person below 21, or a woman is convicted for less than life imprisonment, and no previous conviction is there, the court having regard to the age, character or antecedents and circumstances, may release him on bond,instead ofsentencing him.
He must appeal within 3 years when called upon, and, in the meantime he must keep the peace and be of good behaviour.
This section applies to the accused who is convicted of theft, dishonest misappropriation, cheating or any offence punishable with 2 years imprisonmentorwith fine only.
There must be no previous conviction against the accused.
The court will take into consideration the age, character, antecedents or any extenuating circumstances and instead of sentencing him, releases him on admonition.
The Sessions Court, or any Appellate Court or the High Court may pass an order under this provision.
If the accused fails to observe the conditions imposed by the Court, he may be arrested and sentenced by the Court.
The order issued under this section is in substitution of the pun-ishment,
Ch. 7.3. Habitual Offender: Sn. 110 Cr.P.C.
According to the Cr.P.C. special provisions are made in respect of habitual offenders and desperate characters. The object is to prevent the commission of an offence by such persons, and of securing future good behavior from them.
(i) Habitualrobber,housebreaker, thiefor forgerer.
(ii) Habitual receiver of stolen property or harbourer of thieves,
(iii) Habitual Kidnapper, extortioner abductor or cheat or peace violator
(iv) Habitual violator committing offences under
(a) Drugs & Cosmetics Act. (b) Foreign Exchange Regulations Act. (c) Food Adulteration Act. (d) Custom Act etc.
(v) Habitual offender of hoarding, profiteering and adulteration and
(vi) A person so dangerous and desperate to be a hazard to the community.
The I Class Magistrate, who receives information about such a person, is within his jurisdiction, may require him to execute a bond (with sureties) for his good behaviour for a period not above 3 years.
The Magistrate must give a show cause notice giving all details about the information, value of the bond etc.
Ch.7.4. Juvenile Offenders: Sn.27 Cr.P.C.
Certain benevolent provisions have been made in the Cr.P.C. to meet the Juvenile (Youthful) offenders.
A person under the age of 16 ( as on the date he is produced before the Court), accused of an offence not punishable with death or imprisonment for life is a’ juvenile’ and he may be tried by the Chief Judicial Magistrate or by a Court empowered under the Children Act 1960 or under any law, which provides for treatment, training and rehabilitation.
The objective is to save juvenile offenders from the company of convicted criminals in the jail, and alsp to give them suitable training and to rehabilitate them.
Ch.7.5. Proclaimed Offender: Sns.40(2), 82 and 83.
He is any person proclaimed by the court as an offender who is accused of an offence punishable under Section 302 (murder) 304 (Culpable Homicide), 392 (Robbery) etc. as stated in the Or.P.C
The court must have issued a warrant against him. He must have absconded orconcealed himself.
The proclamation in writing is to be published requiring him to appear within 30 days.
Publication means reading publicity in some conspicuous place, affixing acopy tosome conspicuous part of the house of the accused and the court. It may be published in newspapers.
Attachment of property: After issuing the Proclaimation the
Court may proceed to attach his property. Ifthe proclaimecd offender appears within 30 days, the court may make an order releasing the
property. If he does not appear, the propertyshall beat the disposalof the government. It may sell after six months.
If the offender has not absconded and if he did not know the Proclamation he may appear before the Court within 2years.
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Section 26 provides that a confession to any person which is made in the custody of a police officer cannot be proved against him, unless it is made before a magistrate. Magistrate records confession of accused who is in police custody in accordance with section 164 CrPC.
Meaning of “Police Custody”
Police Custody is taken in a wide sense. A policeman may lay his hand on person, handcuff him or tie his waist with a rope and take with him. Again a police officer may not even touch a person bbut may keep such control over him that the person so controlled cannot go any way he likes. A police officer who has taken some persons may leave him away from him for a short time.
The police officer in the real sense commences from the time where the movements of the accused are restricted or controlled and may be direct or indirect under police surveillance. The crucial test is whether at the time when a person makes a confession he is a free man or his movements are controlled by the police by themselves or through some other agency employed by them. In a case, a woman was taken into custody of the police, a friend of the woman also accompanied her. The policeman left the woman with her friend for some time. In the mean times she confessed her guilt to her friend. The confession was held to be inadmissible because the woman was regarded to be in custody of the police inspite of the fact that the policeman was absent for short time.
In the case of Union of India v. Munna, (2004) 7 Sec 178, accused made a confession before custom authorities the SC said that the admission of accused before custom authorities is not hit bby either section 25 or section 26 of the Indian Evidence Act, 1872. The effect of such admission before aforesaid authorities is a relevant factor.
LEGISLATIVE RELATION BETWEEN THE UNION AND THE STATES
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The division of Governmental powers, or the right to exercise them, between the Union (also known as “the Centre”) and State Governments, in Constitutional parlance is spoken of as the ‘Division of Sovereignty.’
The relation between the Union and the State is of three types:
Legislative Relations (Article 245 – 253)
“Parliament may make laws for the whole or any part of the territory of India, and the legislature of the State may make laws for the whole or any part of the State.” Article 245 defines the territorial limits of the powers of legislation vested in the Parliament and the legislature of the States.
Parliament has exclusive power to make laws with respect to any of the 97 matters enumerated in the Union List.
Parliament and the legislature of any State also have the power to make laws with respect to any of the matters enumerated in the “concurrent list.” This list enumerates 47 matters.
The legislature of any State has exclusive powers to make laws for such State with respect to any of the 66 matters enumerated in the State List.
State Legislature, not a delegate of the Union or Parliament
The State Legislature under the Indian Constitution is not a delegate of Union Parliament. Both the legislatures derive powers from the same Constitution, The State Legislature has independent Legislative powers within its appointed sphere. (State vs. Narayandas, AIR 1958 Bom 68)
The Union Legislature cannot delegate or transfer its powers to the State Legislature, and vice versa. [In re Delhi Laws Act, 1912 (1961) S.C.R. 1747]
When Parliament can legislate with respect to matters in the State List or Concurrent List (Article 248 – 253)
It is clear from Article 248 that all residuary powers of legislation remains with the Parliament. Despite the most elaborate and exhaustive enumeration, it is beyond the wit of a man to anticipate all matters of future legislation.
The Parliament can legislate on a matter in State List in a National interest upon a resolution passed by the Council of States booked by two-third (2/3rd ) of the members present and voting.
While Proclamation of Emergency, the Parliament has the power to make laws for the whole or any part of the territory of India with respect to any matter enumerated in State List.
The Parliament can legislate for two or more States by their consent. Resolution to that affect must be passed by all the houses of the Legislature of such States.
The Parliament has the power to make any law, for implementing a treaty, agreement or convention with other country.
The provision for inconsistency between Union Laws and State Laws are envisaged in Article 251 and Article 254 which declare the principle that when a State Law conflicts with the law made by the Parliament, the latter shall prevail.
by Harshit Sharma