FAQ - Barelaw Legal Services
Law is the very essential component for the administration of justice anywhere around the world, the absence of which would lead to total chaos in a civilization. It prevents properties and persons from harm and punishes the wrongdoers by setting out rules and regulations for maintaining order and granting rights and assigning duties to citizens. Law is a dynamic phrase and keeps changing with the needs of time and society. Hence, it can be best defined as a set of rules and regulations which has been created with the motive of regulating the behavior of citizens and administration of justice.
Constitutional law is the body of rules and regulations through which the operation and authority of the government are exercised. The establishment and interpretation of the constitution of the state are referred to as constitutional law. It contains the fundamental principles laid down in our constitution for the effective functioning of the government. It includes the newly enacted laws and amendments of the old ones.
According to article 13 of the Indian constitution, rule of law refers to the law of land. The rule of law has been defined in the black’s law dictionary as government-approved legal principles of regular application. According to the Oxford advance learner’s dictionary, the rule of law is the system where the State and citizens are governed by the law. Under the Indian constitution, rule of law was adopted from England and was enshrined under part III.
The laws deal with the rights of the creators or inventors or the owners of music, design, or other works. The various areas of intellectual property are patents, trademarks, copyrights, etc. Intellectual property rights were enacted for the protection of the intellectual properties of the owners against infringement for a specific period of time.
Martial law can be defined as a temporary substitution of civilian rule by the military authorities usually in times of natural disasters, war, and rebellions. When martial law is invoked, unlimited authority lies with the metric commander of an area and he has all the powers and freedom to enforce laws. The civilian authority becomes ineffective during such times. Therefore, in simple words, the law that is administered by the military authorities in place of the civilian government in times of emergency or crisis is martial law.
The system of law in Islam is known as Sharia law which has been derived from the holy book of Islam, the Quran, and the saying and deeds of the prophet Muhammad – the Sunnah and the Hadith. Sharia in Arabic means the very trodden and clear path to the water. It is a code of conduct for Muslims. It Lays down principles for governing the mental spiritual and physical behavior of the Muslim community. Sharia law guides the practices of Muslims all over the world. It is a religious law but not a legal system.
Laws related to computing, information technology, and the Internet are collectively known as called the cyber law. Cyber laws are related to the issues of cyberspace i.e., the internet. Cyber law is an essential aspect of law nowadays providing protection against illegal activities in cyberspace and Worldwide Web. In today’s technically growing environment, crimes are also evolving and criminals are using information technology in an unregulated manner which gives rise to the need for cyber law. It includes the areas such as E-Commerce, E-procurement e-Governance, e-transactions, etc.
Cases involving disputes over people, business, or injury come under the ambit of civil cases. Types of cases handled by the civil court are – fraud, defamation, negligence, personal injury, contract claims, equitable claims, landlord issues, tenant issues, etc. Civil law comprises rules, regulations, and procedures to resolve disputes which are not criminal in nature. Civil law in India is governed by a code of civil procedure. In most cases, the aim of civil law is to achieve compensation or remedy for the victim. The four most important kinds of civil laws in India are property disputes, torts, contract disputes, and family disputes.
Anti-defection law lays down the process of disqualifying the MPs and MLAs for the remaining term in response to leaving one party for another by resignation or remaining absent on a crucial vote or for any other reason. It basically acts as a deterrent for the elected members to jump from one party to another. It was provided in the 10th schedule of the constitution under the 52nd amendment of 1985 and came into force on the first of March 1985. The main motive behind the introduction of the anti-defection law was to prevent political defections.d
The first law minister of independent India was Bhim Rao Ramji Ambedkar who was also known as doctor Ambedkar. He was also the chairman of the constituent assembly which was formed for drafting the Indian constitution. He was also known as Babasaheb. Bhimrao Ramji Ambedkar was the law minister for 4 years i.e. August 1947- September 1951.
There is no one “best” type of lawyer for girls, as the best career path will depend on an individual’s goals, interests, and strengths. Girls who are interested in pursuing a career in law should consider their personal goals, as well as the legal needs of their clients or employer, when choosing a practice area.
Some common types of lawyers that may be well-suited for girls include:
Family lawyers: Family law is a broad practice area that covers a range of legal issues related to family relationships, including divorce, child custody and support, and domestic violence. Family lawyers work with clients to resolve disputes and protect their rights and interests.
Criminal lawyers: Criminal law involves representing clients who have been accused of a crime and defending them in court. Criminal lawyers work to protect their clients’ rights and advocate for their interests in the criminal justice system.
Civil rights lawyers: Civil rights lawyers work to protect the rights of individuals and groups who have been marginalized or discriminated against, and advocate for justice and equality.
Environmental lawyers: Environmental lawyers work to protect the environment and advocate for sustainable development. They may work with clients to enforce environmental laws and regulations, or to address environmental issues such as climate change.
Ultimately, the best type of lawyer for a girl will depend on her individual goals, interests, and strengths, as well as the legal needs of her clients or employer. It is important to carefully research and consider your options before making a decision about the type of lawyer you want to be.
The method of creating well-structured memorandums, petitions, wills, contracts, statues, etc., and other legal documents are known as legal drafting. The key feature of drafting is that it contains a brief knowledge about the facts and situations of the case. All relevant facts related to a case a presented in a draft way of drafting.
The set of rules, regulations, and procedures in the written form is accepted by all the citizens of the country to whom it binds. It defines the functions and powers of the governing authority as well as the duties and rights of the citizens. The constitution can also be known as the fundamental law of the nation. It is the supreme law of the country to determine the relationship between the government and its citizens. Dr. B.R. Ambedkar is the father of the Indian constitution.
The constitution serves as a set of rules and principles for a nation, and determines the relationship between the government and the citizens. In a democratic nation like India, it is necessary to have a uniform set of rules for all the individuals who belong to different religious groups in order to secure peace and harmony as it protects the freedom of individuals and their fundamental rights.
The constitution of India has 470 articles in total which are divided into 25 parts with 12 schedules with five appendices.
The original Indian constitution was hand-written in an italic style. Prem Bihari Narayan Raizada was the calligrapher who wrote it.
Dr. Bhimrao Ramji Ambedkar is the father of the Indian constitution.
The constitution guarantees 6 fundamental rights which are as follows-
- Right to equality
- Right against exploitation
- Right to freedom
- Right to freedom of religion
- Right to constitutional remedies
- Educational and cultural rights
There are a number of basic human rights that have been enshrined in the constitution of India and guaranteed to all citizens by law. The fundamental right is a right that is applied to each and every citizen of a nation without any discrimination of gender, religion, race, etc., and has been stated in Part III of the constitution and also forms a part of the basic structure of the constitution.
The Constitution of India guarantees seven fundamental rights which are as follows-
⦁ Right to equality
⦁ Right against exploitation
⦁ Right of freedom and religion
⦁ Right to education and cultural rights
⦁ Right to property
⦁ Right to freedom
⦁ Right to constitutional remedies.
FIR is the first document that is prepared by the police which contains the information about the offense that has been committed after verification of the facts. FIR stands for a first information report. According to section 154 of the criminal procedure code, the informant has the right to furnish the information of the offense whether written or oral. When the information is orally disclosed to the police, the officer is under the obligation to reduce the information into writing.
The first information report contains the information regarding the cognizable offense that has been committed. It contains the very first facts which come to the knowledge of the police.
A cognizable offence is the kind of offence which gives police the freedom to take action without obtaining prior permission from the court, in other words, the offence for which the police may take action without obtaining a warrant is a cognizable offence.
A zero FIR is an FIR that can be lodged at any police station irrespective of the considerations of the jurisdiction of a police station. A zero FIR can be lodged at any police station whether it comes under the jurisdiction of that police station where the incident took place or not. When such FIR is recorded, the police station can transfer it to the police station which has the jurisdiction. FIR number is allotted when the FIR is received by the concerned police station and has been freshly lodged.
The FIR must be filed as soon as possible after the incident took place. In case of a delay, there must be a valid reason for not lodging the FIR on time.
No, the officer cannot conduct an investigation for a crime without recording an FIR first. The knowledge of accusations is obtained by the FIR.
If the police officer refuses to file your FIR, you have the option of complaining about the such refusal to the superintendent of police or police commissioner. In case, no investigation is conducted even after the complaint was made to the police commissioner and the superintendent of police, you can avail the remedy provided under section 156 (3) of the criminal procedure code, where you can directly make an application to the court stating the facts of the offense. Such an application shall be accompanied by the copies of complaints that we initially filed before the police officers and complaints made to the senior officers. In such a case, the magistrate if satisfied, may order the police to register the information report and conduct an investigation.
No, the FIR cannot be amended once it has been lodged.
Bail is permission obtained from the court in the written form to set an accused free and give him liberty, it is usually provided against some surety. It is a conditional release of the accused from the custody of the police until the next stage of the case.
The process where the court orders to send an accused back into custody rather than granting him bail, is said to be kept in remand.
No, a remand order specifies that the accused cannot be granted bail and is bound to stay in jail till the trial continues.
Noncognizable offenses are the crimes for which the police are required to obtain prior permission from the court to investigate the case or register the FIR.
The key difference between cognizable offences and non-cognizable offences is that cognizable offences are serious and heinous crimes like kidnapping, rape, murder, theft, counterfeiting etc. on the other hand non-cognizable offences are minor crimes like cheating, forgery, defamation, assault etc.
The basic principle of criminal law is that there must be a guilty mind behind the act which is sought to be proved as a crime. The various offenses defined in the Indian penal code have a guilty intention or knowledge as an essential ingredient. The words like – voluntary, knowledge, dishonestly, intentionally, etc. Used in the various provisions of the code incorporate the principle of mens rea.
Generally, a person who commits a crime is responsible for the wrong but sometimes a person is liable for the wrongful acts of another person. Such type of liability is known as vicarious liability. In such a case, the wrongdoer is a different person, and the person on whom liability is imposed is a different person. For example, an employer is vicariously liable for the unlawful act of his employee. If an employee operates on equipment in a negligent manner which results in damages to a property, employer shall be held liable in such a case.
The word ‘offense’ has been defined under section 40 of the Indian penal code which defines it as an act or an omission made punishable under a special or local law.
Solitary confinement in general means the separate confinement of a prisoner with only occasional access to any other person and that, only at the discretion of the jailer in a stricter sense it means the complete isolation of a prisoner from all the human society and his confinement in a cell so arranged that he has no direct intercourse with or sight of any human being and no employment or instruction.
The right of private defense is a very valuable right granted to the citizens. It has been granted to protect a person from harm against himself and his property by affective resistance against unlawful aggression because the law does not require a person to behave like a coward on any occasion. Section 96 of the Indian penal code protects a person who exercises his right to defend his person and his property.
Bail is permission obtained from the court in the written form to set an accused free and give him liberty, it is usually provided against some surety. It is a conditional release of the accused from the custody of the police until the next stage of the case.
Riot has been defined under section 146 of the Indian penal code as a chaotic behavior exhibited by an unlawful assembly for the furtherance of some unlawful object. It shall be punished under the Indian penal code with imprisonment of a term which may extend to two years, with a fine, or with both.
When two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. The main ingredients of this offense are-
Two or more persons must fight, in a public place, and must disturb the public peace.
Whoever commits an affray, shall be punished with imprisonment of either description for a term which may extend to one month, or with a fine which may extend to one hundred rupees, or with both.
Section 268 of the Indian penal code defines a public nuisance as “an act or omission which causes any common injury, danger or annoyance to the public or people in general who occupy property in the vicinity or which must necessarily cause injury danger, obstruction or annoyance to any person who may have occasion to use any public right. “In other words, public nuisance is doing of such an act which tends to cause annoyance to the whole community in general or omitting to do anything which the common good requires. It affects the public at large, or the health, safety, comfort, or convenience of the public at large, or tends to the great public and large or tends to degrade public morals is considered a public nuisance.
Murder has been defined under section 307 of the Indian penal code. It is an act committed by a person with such intention or knowledge and under circumstances that can cause death, he would be guilty of murder or attempt to murder.
According to section 339 of the Indian penal code, “whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed is said to wrongfully restrain that person.” In simpler words, when a person obstructs another person in order to prevent him from moving in a direction in which he is legally entitled to move shall be termed wrongful restraint.
According to section 340 of the Indian penal code, “whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits said to wrongfully confine that person.”
Section 360 of the Indian penal code defines kidnapping as, “conveying any person beyond the limits of India without the consent of that person or of some person legally authorized to consent on behalf of that person is said to kidnap that person from India.” The conveying must be without the consent of that person. In case the consent is present, the consent must not be given under the fear of injury or under a misconception. Consent given by a person of unsound mind or by a person under intoxication is no consent given in law.
Acts and omissions which are not criminal in any real sense but are prohibited for public interest and welfare acts of public nuisance, and civil rights protected by criminal law for which a summary remedy is provided by incorporation as an offense having regard to the importance and urgency of maintaining such rights.
Special law as defined under section 41 of the Indian penal code is a law that is not applicable generally but which only applies to a particular specified subject or class of subject, eg. Opium act, cattle trespass act, excise act, etc. Local law as defined under section 42 of the Indian penal code is the law that applies only to a particular locality. Example – port trust act.
Section 52a of the Indian penal code defines the term harbor as supplying a person with shelter, drink, food, clothes, money, ammunition, arms or means of conveyance, or the assistant a person by any means whether of the same kind as those enumerated under section 52a or not, to evade apprehension. Section 157 and section 130 of the Indian penal code is an exception in such cases where the harbor is given by the wife or husband of the person harbored.
Capital punishment may be awarded for abetting mutiny actually committed, murder, abetment of suicide of a minor or an insane or an intoxicated person, or attempt to wage a war or abetting the wage of war against the Government of India or giving or fabricating evidence upon which an innocent person suffers death.
In India, a child below 7 years of age is considered to be an infant. Nothing is an offense that is done by a child under 7 years of age. Infancy is a defect of understanding and infants under the age of discretion or not to be punished by any criminal prosecution whatsoever.
Section 84 of the Indian penal code says that nothing is an offense that is done by a person who at the time of doing it by reason of unsoundness of mind is incapable of knowing the nature of the act or that what he is doing what is either wrong or contrary to law. Logins immunity to insane persons from criminal responsibility as their actions is not governed by their will. It is to be noted that exemption is not granted to all insane persons, it is only a particular kind of infinity that gives exemption from criminal liability.
According to section 98 of the Indian penal code, every person has the right of private defense of the body against the act of a person of unsound mind, and the right of private defense would have been meaningless if it was not allowed to be exercised against the person suffering from incapacities. Similarly, it has been provided against the acts of intoxicated persons. No man is bound to suffer an attack against his person or aggression against his property, merely because the attacker is immature is of unsound mind, or is intoxicated.
If the offence is abetted, be not committed and is punishable with imprisonment and if there is no express provision for the punishment of such abetment then the offender may be punished with imprisonment up to one-fourth of the longest term provided for that offence or with such fine as his provided or with both. But if the person, abetted is the public servant, and is duty bound to prevent the commission of any offence, is abetted to commit such offence, then if a such public servant has not committed that offence then the abettor may be punished for the imprisonment which may extend up to not half of the longest period provided for that offence or such fine as is provided for that offence or with both.
Abetment consists of instigating a person to commit it. On the other hand, conspiracy consist of an agreement with illegal means and an overt act has been done in pursuance of the conspiracy in the latter case. Abetment may consist of conspiracy but conspiracy would not amount to abetment. In the case of criminal conspiracy, mere agreement to commit an offence is an offence even if no step is taken to carry out that agreement while it is not so in the case of abetment. Conspiracy is a substantive offence while abetment per se is not a substantive offence.
According to section 142 of the Indian penal code whoever is aware of the facts which render any assembly, an unlawful assembly intentionally joins that assembly or continuous in it is said to be a member of that unofficial assembly. Therefore if a person who is not aware of apps that render an assembly an unlawful assembly is not a member of unlawful assembly, but as soon as he is aware that the assembly is unlawful and even then he intentionally continues his presence in the assembly he becomes a member of such unlawful assembly.
According to section 143 of the Indian penal code, the punishment for the offense of being a member of unlawful assembly is imprisonment of either description for a term which may extend to 6 months or with a fine or both.
Magistrates acting under Section 156(3) Cr Pc will be competent to order the case (FIR) registration and the subsequent investigation.
The Magistrate does not take cognizance of offence while passing an order under Section 156(3), however, it has to reflect application of the judicial mind. A Magistrate cannot routinely pass an order directing police to investigate.
Under sub- section (3) of Section 156, Magistrate is empowered to direct only officer in charge of a police station to conduct investigation. The power cannot be exercised or directions cannot be issued to officer in charge of police station outside territorial jurisdiction of the Magistrate.
Section 156(3) of CrPC states that a Magistrate who is empowered to take cognizance under Section 190 of Code may order investigation for the cognizable offence. Whereas, Chapter XV of CrPC lays down the procedure to be followed by the Magistrate when a complaint case is filed.
As District Magistrate, he is responsible for law and order and heads the police and prosecuting agency.
The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.
The magistrate or court has not been given powers to interfere in investigations, the Nagpur bench of Bombay high court ruled that the investigation officer (IO) can continue his probe even after court’s contrary orders.
A Judge is appointed by the President of India, whereas the Magistrate is appointed by the High Courts. A Judge has more powers than a Magistrate.
The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years
Magistrate cannot review his own order.
The magistrate has to ensure and record the imperative need for police custody at the time of giving police remand the need to uncover the weapon of offence, the arrests of co-accused by the disclosures, and the investigation of a larger conspiracy are an important consideration.
A Magistrate has the power to direct “further investigation” after filing of a police report in terms of Section 173(6) of the Code. bars exercise of such jurisdiction by the Magistrate.
Hence, Section 156(3) of the CrPC is broad enough to grant a magistrate all the authority required to ensure a proper investigation, including the power to order the registration of an FIR and a formal investigation if the magistrate is convinced that the police have not conducted or are not conducting a proper investigation.
According to Section 203 of CrPC, “The Magistrate can also dismiss the complaint if inquiry or investigation under Section 202 result no ground for proceedings”, i.e, after considering the statements of the complainant and its witnesses under Section 200 and the result of investigation under Section 202, the Judicial Magistrate is of the opinion that there is no sufficient ground to proceed in the matter, he shall dismiss the complaint with brief recorded reasons. A second complaint on the same facts could be entertained only in exceptional cases.
A magistrate in any Indian state or union territory can issue an order prohibiting the gathering of four or more people in a specific area under Section 144. Every member of such an “illegal assembly” can be charged with rioting, according to the law.
Section 144 confers powers to issue an order absolute at once in urgent cases of nuisance or apprehended danger. Specified classes of magistrates may make such orders when in their opinion there is sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable.
The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3) Cr. P.C. and under Section 202 Cr. P.C. The only difference is the stage at which the said powers may be invoked.
The Magistrate has the power of discharging the accused at any previous stage of the case, i.e., even before such evidence is led.
The Chief Judicial Magistrate’s Court exercises jurisdiction on original side in criminal matters arising in the District. On the judicial side, its duty is to receive and dispose the cases and matters pertaining to the administration of justice.
For proper separation of the Judiciary from the executive, the Code has contemplated, as mentioned earlier two categories of Magistrates- Judicial Magistrate and Executive Magistrate. The former is under the control of the High Court, while the latter is under the control of the State Government.
FIR can be canceled by the Police/Investigating officer at the first instance after finding during the investigations that there is lack of evidence or case is not proved, and then file a closure report.
In the court of New Delhi, a court has held that dismissal of a complaint without recording the statement of the complainant is a gross violation of the law.
IAS officers have the power to transfer and post officials under their jurisdiction, including police officers. IPS officers, on the other hand, have the power to transfer and post police officers under their command.
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Section 159 of Code of Criminal Procedure 1973, grants power to the Magistrate to conduct an inquiry and not any local inspection. It is the duty of the Magistrate to verify that whether Investigation Officer has complied with legal requirements before presenting the case to the Court of Session.
In 156(3) the order comes in 2 days as the court has to simply decide whether to order the registration of FIR or itself proceed to take the cognizance and proceed under 200 CrPC.
A person can even make a complaint directly to the Magistrate in writing of the commission of an offence by any person, whether known or unknown, under CrPC. The Magistrate may take cognizance of the complaint upon examination of the complainant along with witnesses if any.
A suspension order of a police man has to be passed by the district police chief and not the district magistrate.
The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.
. In this role they are responsible for operating preventive Sections of Code of Criminal Procedure. They also carry out enquiries in cases of unnatural deaths of women within seven years of marriage and issue directions to the Police for registration of case, if required.
The Magistrate has the judicial powers who administers the law in a town or city. After FIR is lodged into the police station, police investigate about the complaint and summon the accused in front of judicial magistrate.
It can be used only to discredit the maker of the FIR by contradicting him. It can be used for corroborating any statement made by the maker of the FIR in a court during the trial.
The difference between Judge and Magistrate is that the former is appointed by the President of India, while the latter is appointed by the High Court. Magistrates and judges are a part of India’s judicial system.
According to Section 190 of the Criminal Procedure Code, the magistrate is considered to have “taken cognizance” whenever he becomes fully informed of the charges presented therein and decides to move forward with the investigation or trial of the offence.
Police cannot interfere in civil matters, but police has to interfere if there is any law and order situation.
According to Section 197(1), “Court will not take cognizance to offences done by Judges, Magistrates or any Public Servants during the course of employment unless consent in writing is given by the State Government(when offender is under course of employment of state government) or the Central Government(when offender is under course of employment of central government) to initiation of the proceedings.” In the case of State emergency in any state, only Central Government will give consent for such proceedings.
Magistrate has power under Section 216 Code of Criminal Procedure to alter or modify the charge on the basis of an application filed by the informant and further the trial court can alter the charge if some evidence has come on record or on the basis of the material already on record.
In a democratic set up, it may be undesirable to say who is more powerful than the other as everybody has to work within his responsibility and power. However, in the warrant of precedence, a judge of a high court is placed above the IAS officers.
The IAS executive head of a district is known by different designations in different states such as Deputy Commissioner (in Punjab, Haryana, etc.), District Collector (in Rajasthan), District Magistrate (in UP), etc. and gets substantially less salary than the District Judge.
The average Judge salary in India ranges from INR 2.5 lac per month to INR 2.8 lac per month depending on the court. Additionally, after retirement, a judge in India gets a pension monthly along with a dearness relief. The Judge pension in India ranges from INR 13.5 lpa to INR 16.8 lpa depending upon the courts.
Civil Judge (Junior Division) decides civil cases of small pecuniary stake. Judicial Magistrates decide criminal cases, which are punishable with imprisonment of up to three years.
The chief justice of India is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian Judiciary.
Section 144 of Criminal Procedure Code, 1973 gives power to a District Magistrate, a Sub – Divisional Magistrate or any other Executive Magistrate on behalf of the State Government to issue an order to an individual or the general public in a particular place or area to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management.
Criminal court has no power to recall its own order as per Section 362.
The High Court also observed that under Section 397(2) of CrPC, the powers of revision cannot be exercised in relation to an interlocutory order passed in any appeal, inquiry, trial or other proceeding.
Under the Code there is no provision according to which a Magistrate can review his own order. Chap… XXXIV of the Code making provision for disposal of property has also made no provision, whereby, a Magistrate can review his own order.
Article 137 of the Indian Constitution allowed the Supreme Court to review its own orders and judgment. The objective behind this power is to ensure justice.
As a court of record, the High court also has the power to review and correct its own judgement or order or decision, even though no specific power of review is conferred on it by the Constitution.
The Magistrates have the authority to decide whether or not to take cognizance. As Section 200 is a pre-cognizance stage, the Magistrate has the discretion to order an investigation by the Magistrate himself or the police.
