Author: Tapan

What is Default bail  and whats the provision of law ?

What is default bail  is a  question  asked very often . A default bail under Section 167(2) of the CrPC in simple words can be said in cases when   chargesheet is still not filed within the prescribed time period . Apart from that in  cases  the right  to default bail would arise when  the  prosecution files a preliminary or an  incomplete chargesheet, within the period prescribed for offences mentioned therein only to defeat the cause of bail .

How is Article 21 of the constitution of India and Section 167(2) CrPc connected 

Under Article 21 of the Constitution of India,  has its  co-relation with 167(2) of the CrPC which is fundamental rights , of right to life and liberty . There are  many Judicial precedents of the Hon’ble Supreme Court and various High Courts  which have laid emphasis on the co relation between the two.

It is important to keep in mind that  Section 167 of the CrPC  deals with investigation and not about cognizance by the Magistrate.

Is there a concept of automatic bail due to failure in filing charge sheet within prescribed time?

Yes,  when there is  failure on the part of investigation  to file the charge sheet within the prescribed 90/60 day period, as the case may be , that in  itself would result in automatic grant of default bail.

When does the time start for calculation of default bail?

When the  Magistrate remands  the accused person or persons from that day onwards , and within the time   no charge sheet filed within 60 or 90 days  as is contemplated under section Section 167 (2)(a)(ii) of the CrPC,

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Petition under Section 25 of the Guardians and Wards Act, 1890

Welfare of the child is of paramount importance while deciding cases of child custody . When the a ward is not in custody of the guardian , the court weighs various grounds before deciding whether the ward should be given back to the guardian considering the welfare of the child will be justified .  Either of the party if dissatisfied with the order of the Family court may approach the High Court in appeal against the Order of the Family court. A petition under S.25 Guardians and Wards Act is a first step towards informing the court of your grievances.

Appeal under Section 47 of the Guardians and Wards Act, 1890

Against order of impugned  judgment  passed by Family court one has the option of preferring an  Appeal under Section 47 of the Guardians and Wards Act, 1890

The financial status of either party is not the sole determining factor when considering the issue of custody though it may be relevant as has been held in the case of Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112 and reiterated in Smriti Madan Kansagra v.Perry Kansagra 2020 SCC OnLine Del 1414.

Visitation Rights

Usually visitation rights are granted to either spouse who does not have custody of the child. Only in extreme cases where it appears that visitation rights should be denied in such cases court disallows but that’s very rare.

Very notable judgment of  Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67, the Hon’ble Apex Court observed that the child, especially of tender age, requires love, affection, company and protection of both the parents, he is not an inanimate object which can be tossed from one parent to the other. The Court must weigh each and every circumstance very carefully before deciding the manner in which the custody should be shared between the parents. This is to ensure that the child does not lose social, physical and psychological contact with either of the parents. It is only in extreme circumstances that even the visitation rights may be denied.

Conclusion

In case of custody of the ward it is always seen that the welfare of child is of paramount importance . Company of both parents are essential for love and affection of the child. A child grows well in a healthy environment and therefore irrespective of whether is it the mother or father , the essential condition is welfare of the child , the other spouse is not denied visitation rights unless its an extreme case.

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When is probate required is a very common question that arises in the minds of  legal heirs who are unaware of its importance. Although registration of will not mandatory however it is advisable to do so and although both unregistered and registered wills can be challeged in the court of law .  Applying for probate though is not necessary always in some states , but  it is in many ways essential to apply for grant of probate.

In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) by LRs. and Others5 , the Hon’ble Supreme Court  had observed importance of  Will when registered and the Sub-Registrar certifies that the same was read over to the executor who, on doing so, had admitted the contents. Therefore in  each case, the court must be satisfied as to the mandate and requirements of clause (c) to Section 63 of the Indian Succession Act.

In Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through LRs. and Others6 , the Hon’ble Supreme court  referring to Section 63 of the Indian Succession Act had illustrated that the provisions contemplate that in order to validly execute the Will, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or signature of the person signing for him has to be so placed that it was intended to give effect to the writing as a Will. Section 63 mandates that the Will should be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other person sign it in the presence and on the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person and each of the witnesses has signed the Will in the presence of the testator, though it is not necessary that more than one witness be present at the same time and that no particular form of attestation is necessary. The execution and attestation of the Will are mandatory in nature and any failure and deficiency in adhering to the essential requirements would result in invalidation of the instrument of disposition of the property.

Sections 68 and 71 of the Evidence Act, which relate to proof of documents required by law to be attested, read as under:

“68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

71. Proof when attesting witness denies the execution.—If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”

In Jagdish Chand Sharma (supra) referring to Sections 68 and 71 of the Evidence Act, it was observed:

“22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.

22.3. Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient it would be, to scrutinise the evidence adduced by the parties.

The judgment in M.B. Ramesh (supra) also refers to Janki Narayan Bhoir v. Narayan Namdeo Kadam8 in which with reference to Sections 68 and 71 of the Evidence Act, it was observed:

“22. […] 6. … It is true that although a will is required to be attested by two witnesses it could be proved by examining one of the attesting witnesses as per Section 68 of the Evidence Act.

Highlighting the aforesaid aspects in M.B. Ramesh (supra), it was held that:

“28. As stated by this Court also in H. Venkatachala Iyengar and Jaswant Kaur, while arriving at the finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of circumstances. The Court’s role in matters concerning wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator, and whether it is the product of the free and sound disposing mind [as observed by this Court in para 77 of Gurdev Kaur v. Kaki]. In the present matter, there is no dispute about these factors.”

In Jagdish Chand Sharma (supra) reference was made to the facts of the case in M.B. Ramesh (supra) to observe that on consideration of the totality of circumstances emerging from the narration given by the attesting witness, the omission on the part of this witness to specifically state about the signature by the other attesting witness on the Will in the presence of the testatrix would amount to failure to recollect the fact which deficiency could be replenished with the aid of Section 71 of the Evidence Act. It was observed that the validity of the Will in M.B. Ramesh (supra) was upheld in the context of the attendant singular facts.

The Hon’ble Supreme Court in  RAJ KUMARI AND OTHERS  VERSUS  SURINDER PAL SHARMA , CIVIL APPEAL NO.9683 OF 2019,ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 26957 OF 2018) granted leave  while stating in para 28 of its order

“The Will which purportedly makes the bequest, is oddly described as a Will Deed. This possibly explains why Surinder Pal Sharma had claimed in his reply, that he was the owner of the tenement even during the lifetime of the mother Suhagwanti. It is in this context that we have read the different portions of the testimony of Raj Kumari and Surinder Pal Sharma; the notice and the reply to hold that there exists grave doubt whether the “Will Deed” was executed and is a “Will” as it purports to be. The marriage of Veena Malhotra as per her wish is not challenged. The testator was an illiterate lady. Even if we are to accept signatures of the testator and the witnesses, we cannot ignore “other evidence” that Suhagwanti and her family members did not understand the true nature of the document executed. There are substantial and good reasons to legitimately suspect and question execution of the Will, which Surinder Pal Sharma, as the propounder of the Will, has not been able to repel and remove so as to satisfy this Court that the Will was validly executed. For these reasons, we would hold that execution of the Will has not been proved by “other evidence” in terms of Section 71 of the Evidence Act”

29. Looked and examined from all angles, we are satisfied that the present appeal should be allowed and the judgment of the High Court should be set aside. Accordingly, we restore the judgment and decree dated 17.01.2018 passed by the court of Additional District Judge-03, North District, Rohini District Courts, New Delhi. There would no order as to costs.

CONCLUSION:

It is therefore essential that the intention of the testator must be established under circumstances and merely a signed will is not sufficient unless it be proved that the testator knew on what he or she was signing. For more information kindly click here

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        Order XIV CPC

Order XIV CPC  deals with Settlement of Issues and Determination of Suit on Issues of Law or on Issues Agreed upon.

Order 14 of the Code of Civil Procedure (CPC) pertains to the provisions related to the production, impounding, and return of documents in civil proceedings. It lays down the rules and procedures regarding the inspection, verification, and preservation of documents that are relevant to a case. Under Order 14, parties to a civil suit can request the court to order the other party to produce specific documents or categories of documents that are in their possession or control.

The court may issue such an order if it deems the documents to be necessary for the just decision of the case. The order also covers the impounding of documents, which means that if a document is produced in court but is not admitted as evidence, the court may retain it as part of the court records. Additionally, the provision outlines the process for returning the documents to the parties once they are no longer required for the case. The court may direct the return of the documents to the party who produced them or make any other suitable arrangements for their return. It’s important to note that the specifics of the provision may vary slightly depending on the jurisdiction and any amendments made to the code. It’s always advisable to refer to the applicable provisions in the jurisdiction where the case is being heard for accurate information.

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      REMARRIAGE OF DIVORCED PERSONS

Section 15 of the Hindu Marriage Act ,1955 provides for remarriage of divorced persons  in contested divorce cases.

 “15. Divorced persons when may marry again.—When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

The provision of Section 15 of the Hindu Marriage Act,1955 has been subject matter of a recent decision of the Supreme Court in Krishnaveni Rai v. Pankaj Rai and Anr., (2020) 11 SCC 253. In that case the ex-husband of appellant wife remarried as no appeal was filed within period of limitation. The appeal was preferred by the appellant wife almost one year after the expiry of period of limitation. In this factual backdrop, the Supreme Court held that bar of Section 15 was not attracted, it was lawful for the ex-husband to remarry and the appeal was infructous from the inception. The relevant extract of the judgment reads as under:

“28. Section 15 clarifies that when a marriage has been dissolved by a decree of divorce, and there is no right of appeal against the decree, or if there is such a right of appeal, the time for appealing has expired without an appeal having been preferred, or an appeal has been presented but the same has been dismissed, it shall be lawful for either party to the marriage to marry again. Had it been the legislative intent that a marriage during the pendency of an appeal should be declared void, Section 11 would expressly have provided so.

29. As held by this Court in Anurag Mittal v. Shaily Mishra Mittal [Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691 : (2018) 4 SCC (Civ) 550] , the object of Section 15 is to provide protection to the person who had filed an appeal against the decree of dissolution of marriage and to ensure that such appeal was not frustrated. The protection afforded by Section 15 is primarily to a person contesting the decree of divorce. As observed by Bobde, J. in his concurring judgment in Anurag Mittal [Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691 : (2018) 4 SCC (Civ) 550] : (SCC pp. 702-703, paras 31 & 33)

“I am in agreement with the view taken by Nageswara Rao, J. but it is necessary to state how the question before us has already been settled by the decision in Lila Gupta v. Laxmi Narain [Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258] . Even when the words of the proviso were found to be prohibitory in clear negative terms — “it shall not be lawful”, etc., this Court held that the incapacity to marry imposed by the proviso did not lead to an inference of nullity, vide para 9 of Lila Gupta [Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258] . It is all the more difficult to infer nullity when there is no prohibition; where there are no negative words but on the other hand positive words like “it shall be lawful”. Assuming that a marriage contracted before it became lawful to do so was unlawful and the words create a disability, it is not possible to infer a nullity or voidness vide paras 9 and 10 of Lila Gupta case [Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258] . …

33. What is held in essence is that if a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity. Quae incapacity imposed by statute, there is no difference between an incapacity imposed by negative language such as “it shall not be lawful” or an incapacity imposed by positive language like “it shall be lawful (in certain conditions, in the absence of which it is impliedly unlawful)”. It would thus appear that the law is already settled by this Court that a marriage contracted during a prescribed period will not be void because it was contracted under an incapacity. Obviously, this would have no bearing on the other conditions of a valid marriage. The decision in Lila Gupta case [Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258] thus covers the present case on law.”
34. In any case, the bar of Section 15 is not at all attracted in the facts and circumstances of this case, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal. Section 15 permits a marriage after dissolution of a marriage if there is no right of appeal against the decree, or even if there is such a right to appeal, the time of appealing has expired without an appeal having been presented, or the appeal has been presented but has been dismissed. In this case, no appeal had been presented within the period prescribed by limitation.
35. The bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of court, restraining the parties or any of them from remarrying during the pendency of the appeal.

Reference of various judgments are available in here

It can therefore be concluded that a divorce person who has availed a divorce decree without any fraudulent means may remarry after the expiry of the period of limitation for the opposite party to file an appeal. For more information kindly click here

Divorce lawyer fees in kolkata

Divorce lawyer fees in kolkata  is a tricky question , these factors depend on experience of an an advocate  that apart  there are several factors like  the intricacy of the case, the length of the procedures, the lawyer’s experience, expertise, and reputation.

Whom to choose as a Divorce Lawyer in Kolkata

Divorce lawyer in kolkata 

Advocate Tapan Choudhury  charges no fees for filing matters in kolkata related to divorce.  Furthur charges are dependent on the complexity of the case. In case of Mutual consent divorce the fees is very negligible as there are no issues to be adjudicated upon by the court . The only ground however is temperamental differences. Whether the court will allow a mutual consent divorce or not is completely dependent upon the discretion of the court . The court would first see whether it is a valid marriage and secondly the parties are living separately for more than a year.

Divorce lawyer in kolkata

All you need to do is visit the lawyers office at Kolkata for consultation and once satisfied and you feel that your budget allows you to feel comfortable with the divorce lawyer fees in kolkata you have the choice to moving ahead with your case.  Law Office of Advocate Tapan Choudhury makes your work easy as they maintain 100 percent confidentiality and is focussed on efficiency. You will be informed of every step of the case.

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Section 164  Crpc

Section 164 CrPc deals with the recording of statements and confessions of witnesses or accused persons by a Judicial Magistrate. This section is important in criminal proceedings as it lays down the procedure for recording statements and confessions before a Magistrate.Section 164  and section 161 of the Code of Criminal Procedure (CrPC) 1973 are important in evidence.

The section provides that any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any statement or confession made to him in the course of an investigation or inquiry under the CrPC or under any other law for the time being in force, relating to any offence.

The Magistrate must ensure that the statement or confession is made voluntarily and without any threat or inducement. He must also explain to the person making the statement or confession that he is not bound to make it and that it may be used as evidence against him.

The statement or confession must be recorded in the language in which it was made, and the Magistrate must sign the record and also the person making the statement or confession may sign it if he wishes to do so.

The recorded statement or confession can be used as evidence in any inquiry or trial in any case, subject to the rules of evidence. However, if the person making the statement or confession retracts it later, the court must consider the reasons for the retraction and other relevant circumstances before deciding whether to rely on it as evidence or not.

In summary, Section 164 CrPC provides for the recording of statements and confessions of witnesses or accused persons before a Magistrate in a manner that ensures their voluntary and truthful nature, and such recordings can be used as evidence in criminal proceedings.

statement  under Section 164 of the Code of Criminal Procedure, 1973 (“Cr.P.C”) cannot be used as a substantive piece of evidence and can only be used for the purpose of either contradicting or corroborating the witness. Somasundra @ Somu vs. State (2020) 7 SCC 722 .

On the other hand Section 161 Crpc  deals with the power of the police to examine witnesses during an investigation. The section states that:

BOARD RESOLUTION – ESSENTIAL ELEMENTS

A board resolution is a formal document that records the decisions and actions taken by the board of directors of a company. The specific ingredients of a  resolution may vary depending on the nature of the decision being made and the requirements of the company’s governing documents and applicable laws and regulations. However, some common elements of a resolution include:

1. Heading: The heading of the  resolution should include the name of the company, the date on which the resolution was passed, and a reference to the section of the law or the company’s governing documents under which the resolution is being passed.
2. Introduction: The introduction should provide some background information on the matter being considered, including any relevant facts or circumstances that led to the decision.
3. Resolution clause: This clause should clearly state the decision being made by the board. It should be specific and unambiguous, and should include any necessary details such as the amount of funds being allocated, the terms of a contract, or the appointment of a new officer.
4. Voting: The resolution should also include information about the voting process, including the number of directors who voted in favor, against or abstained from voting.
5. Signatures: The  resolution should be signed by the chairman of the meeting, and by all the directors who participated in the meeting.
6. Record keeping: It is important to ensure that the resolution is properly recorded and maintained as part of the company’s official records.

In summary, a  resolution should be clear, concise, and accurate, and should reflect the decisions and actions taken by the board in accordance with the company’s governing documents and applicable laws and regulations.

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