Anticipatory Bail

ABA- (Anticipatory Bail Application)

Directions for grant of bail to person apprehending arrest (Section 438)

1. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

2. When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including--

i. a condition that the person shall make himself available for interrogation by a police officer as and when required;

ii. a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

iii. a condition that the person shall not leave India without the previous permission of the Court;

iv. such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

STATE AMENDMENTS - West Bengal:

To sub-section (1) of section 438 of the principal Act, the following proviso shall be added:---

"Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven day’s notice to present its case.

[Vide West Bengal Act 47 of 1981, s. 3.]

West Bengal.--

For sub-section (1) of section 438, of the principal Act the following sub-sections shall be substituted, namely:-- (1)...

a. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail: Provided that the mere fact that a person has applied to the High Court or the Court of Session for a direction under this section shall not, in the absence of any order by that Court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer-in-charge of a police station.

b. The High Court or the Court of Session, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of such application: Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days notice to present its case.

c. If any person is arrested and detained in custody by an officer-in-charge of a police station before the disposal of the application of such person for a direction under this sub-section, the release of such person on bail by a Court having jurisdiction, pending such disposal, shall be subject to the provisions of section 437.

(1A) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgment, decree or order of any Court, tribunal or other authority.".

[Vide West Bengal Act 25 of 1990, s. 3.]

STATE AMENDMENT – Orissa:

Amendment of section 438.--In section 438 of the Code of Criminal Procedure, 1973 (2 of 1974), to sub-section (1), the following proviso shall be added, namely:-

"Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State notice to present its case.":

[Vide Orissa Act 11 of 1988, s. 2]

STATE AMENDMENT – Maharashtra:

Substitution of section 438 of Act 2 of 1974.--For section 438 of the Code of Criminal Procedure, 1973 (2 of 1974), in its application to the State of Maharashtra, the following section shall be substituted, namely: 438. Direction for giant of bail to person apprehending arrest.—

1. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail; and High Court may, after taking into consideration, inter alia, the following factors:--

i. the nature and gravity or seriousness of the accusation as apprehended by the applicant;

ii. the antecedents of the applicant including the fact as to whether he has, on conviction by a Court previously undergone imprisonment for a term in respect of any cognizable offence;

iii. the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested, and

iv. The possibility of the applicant, if granted anticipatory bail, fleeing from justice, either reject the application forth with or issue an interim order for the grant of anticipatory bail: Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

2. Where the High Court or, as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1), the Court shall indicate therein the date, on which the application for grant of, anticipatory bail shall be finally heard for passing on order thereon, as the Court may deem fit; and if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:--

i. that the applicant shall make himself available for interrogation by a police officer as and when required;

ii. that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to the Court or to any police officer;

iii. that the applicant shall not leave India without the previous permission of the Court; and

iv. such other conditions as may be imposed under sub-section (3) of section 437 as if the bail was granted under that section.

3. Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice, being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Commissioner of Police, or as the case may be, the concerned Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

4. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

5. On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order made under sub-section (1).]

[Vide Maharashtra Act 24 of 1993, s. 2]

STATE AMENDMENT – Uttar Pradesh:

Section 438 of the said Code shall be omitted. [Vide Uttar Pradesh Act 16 of 1976, s. 9]

Section 439.   Special powers of High Court or Court of Session regarding bail.

1. A High Court or Court of Session may direct,--

a. that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

b. that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

2. A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

STATE AMENDMENT – Assam:

439-A. Power to grant bail.--(1) Notwithstanding anything contained in this Code, no person—

a. who, being accused or suspected of committing an offence under any of the following Sections, namely, ---Sections 120B, 121, 121A, 122, 123, 124A, 153A, 302, 303, 304, 307, 326, 333, 363, 364, 365, 367, 368, 392, 394, 395, 396, 399, 412, 431, 436, 449 and 450 of the Indian Penal Code, 1860, Sections 3, 4, 5 and 6 of the Indian Explosive Substances Act, 1908, and Sections 25,26, 27, 28, 29, 30 and 31 of the Arms Act, 1959, is arrested or appears or is brought before a court; or

b. who, having any reason to believe that he may be arrested on an accusation of committing an offence as specified in clause (a), has applied to the High Court or the Court of Sessions for a direction for his release on bail in the event of his arrest, shall be released on bail or as the case may be, directed to be released on bail, except on one or more of the following grounds, namely: --

i. that the Court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in clause (a);

ii. that such person is under the age of sixteen years or a woman or a sick or an infirm person;

iii. that the court including the High Court or the Court of Sessions for reasons to be recorded in writing is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail."

[Vide Assam Act 3 of 1984, s. 5.]

Section 440.   Amount of bond and reduction thereof. 

1. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.

The High Court or the Court of Session may direct that the bail required by a police officer or Magistrate be reduced.

FIR

FIR: All you need to know

What is a FIR?

First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the First Information Report.

It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf.

Anyone can report the commission of a cognizable offence either orally.

What is a cognizable or non-cognizable offence?

A cognizable offence is one in which the police may arrest a person without warrant. They are authorized to start investigation into a cognizable case on their own and do not require any orders from the court to do so.

A non-cognizable offence is an offence in which a police officer has no authority to arrest without warrant. The police cannot investigate such an offence without the court's permission. or in writing to the police. Even a telephonic message can be treated as an FIR.

Why is a FIR important?

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself.

You can file an FIR if:

* You are the person against whom the offence has been committed;

* You know yourself about an offence which has been committed;

* You have seen the offence being committed.

The police may not investigate a complaint even if you file a FIR, when:

* The case is not serious in nature;

* The police feel that there is not enough ground to investigate.

However, the police must record the reasons for not conducting an investigation and in the latter case must also inform you. —[Section 157, Criminal Procedure Code, 1973]

The procedure of filing an FIR is prescribed in Section 154 of the Criminal Procedure Code, 1973.

• When information about the commission of a cognizable offence is given orally, the police must write it down.
  
  
• It is your right as a person giving information or making a complaint to demand that the information recorded by the police is read over to you.
  
  
• Once the information has been recorded by the police, it must be signed by the person   giving the information.
  
  
• You should sign the report only after verifying that the information recorded by the  police is as per the details given by you.
  
  
• People who cannot read or write must put their left thumb impression on the document after being satisfied that it is a correct record.
  
  
• Always ask for a copy of the FIR, if the police do not give it to you. It is your right to get it free of cost.

What should you mention in your FIR:

* Your name and address;

* Date, time and location of the incident you are reporting;

* The true facts of the incident as they occurred;

* Names and descriptions of the persons involved in the  incident; Witnesses, if any.         

Things you should not do: 

* Never file a false complaint or give wrong information to the police. You can be prosecuted under law for giving wrong information or for misleading the police. — [Section 203, Indian Penal Code 1860]

* Never exaggerate or distort facts.

* Never make vague or unclear statements.

What if the police refuse to register my FIR:

• You can meet the superintendent of Police or other higher officers like Deputy Inspector  General of Superintendent of Police is satisfied with your complaint; he shall either investigate the case himself or order an investigation to be made.
  
  
• You can file a private complaint before the court having jurisdiction.
  
  
• You can also make a complaint to the State Human Rights Commission or the National Human Rights Commission if the police does nothing to enforce the law or does it in a biased and corrupt manner.

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Civil Suit Stages

Stages of a Civil Suit

The Civil Suit is basically a dispute which arises between two people or two organisations wherein a subject for dispute is limited to monetary transaction and dispute related to immovable property. 

The Civil Suit, if it is personal in nature than it is governed under Civil Procedure Code and if it is related to business transaction then Commercial Court Act also plays a great role to set out the procedure. The Parties in the Civil Suit are addressed as Plaintiff and Defendant.

Broadly, a civil suit passes through the following five stages:

• Institution of a Civil Suit (Plaint, Written Statement, Replication, etc.)

• Framing of issues.

• Summoning and attendance of witnesses.

• Hearing of Suit and Examination of Witness.

• Decree/Order and the Judgment.

STAGES OF CIVIL SUIT

There are total 18 stages in a Civil Suit which are mentioned herein below:-

1. Plaint

The document in which the fact of the case is mentioned that document is known as Plaint in legal world. The entire Civil Suit is based on Plaint and the Plaint is starting point or the starting stage for all the Civil Suit. Order VII deals with the contents of Plaint and some of the points mentioned under Order VII is mentioned herein below:-

• Particulars

• Name of the Court

• Details of the Party

• Facts of the Dispute involved between the party

• Relief Sort

• Jurisdiction

• The Documents on which the party is relying upon.

2. Summons

After a Plaint is filed the Court may either accept the Plaint or they may reject the Plaint if the Plaint is accepted the Court may call the Party i.e. Defendant against whom the dispute is filed and Court calls party by issuing Summon. Defendant to whom the summons is issued may appear in person or through the legal representative. If the Summons are addressed within the jurisdiction of the Court than the same is addressed under Section 27 of the Code and if the Defendant doesn’t reside in the jurisdiction of the Court but the same resides in the same Country than the Summons are addressed under Section 28 of the Code but if the Defendant is residing outside the Country than the Summons are addressed under Section 29 of the Code. The Summons is also addressed when Plaintiff or Defendants want to produce a witness in the Court, the procedure relating for calling for witness is mentioned under Section 31 of the Code. The procedure for the Service of Summons is mentioned under Order V of the Code.

3. Appearance of the Party

The Party to whom summon is addressed needs to be present before the concerned court and if the person failed to appear before the concerned Court than as per Order V rule 20 an Ex-parte order is passed by the Concerned Court. If both parties are not present on the concerned date thrn the court after giving due chance ay dismiss the matter.

4. Interlocutory Proceeding

Everyone knows that Suit is a Long process as it has many steps before passing Judgment so before starting the stages of Suit sometime the Court has to intervene in the matter to maintain the position as it prevailed. Such Intervention is known as “STATUS QUO”. The Plaintiff can ask for Status Quo order by filing Notice of Motion in the City Civil Court or by filling Interim Application in respective High Court. Following intervention matter are entertain by the Civil Court:-

• Temporary Injunction (order 39)

• Appointment of Court Receiver (order 40)

• Appointment of Court Commissioner(order 26)

• Arrest and Attachment before Judgment (order 38)

5. Written Statement

In the simple language Written Statement is a Document in which the Defendant mentions his/her side of facts of the case and mentions his defence to the Plaint. Order VIII of the code deal with Written Statement. Before Amendment in 2002, there was no limitation period for filing the Written Statement but after the amendment, it is mandatory to file Written Statement within 90 days, after the limitation period is expired it is at the discretion of the Court whether to accept the Written Statement. Under this discretion, the Court will give additional days to file Written Statement but those days won’t exceed 90 days.

6. Examination of Party

After the Written Statement is filed the Court may ask the parties whether they admit the allegation or they deny the allegations pressed by the Plaintiff and such acceptance or denial should be recorded.

7. Framing of Issues

The Court after the Suit is filed and after the Written Statement is filed by the Defendant then the Court may ask the parties to produce Draft Issues and after examining the draft issues the Court may frame Final issues. Order XIV of code deal with Framing of Issues.

8. List of Document relied by the Party

After the Framing of Issue, the Court will ask the Parties to submit a List of Documents on which they are relying upon. The parties submit the list in the form of Affidavit.

9. Discovery and Inspection

After the Document is produced in the Court the Party can apply for inspection of Document. Order XI of the code deals with the Discovery and Inspection of documents. After taking leave from the court the parties can Inspect the Document.

10. Admission and Denial of Document

After the Party has ascertained the Document they may either Admit the Document or they may deny the Document. The Admission and Denial of the Documents are dealt under Order XII of the code.

11. Production of Documents

After the List of Document is relied upon by the Party and after Admission and denial of the Document, the next stage is to produce the Document in the Court. The Party has to submit all original documents in the concerned court. Order XIII of code deals with the production of the Documents.

12. Hearing and Cross Examination of the Witness (Order XVIII)

After the Production of Document, the next stage of a civil suit is hearing of suits and examination of witnesses commence. The first right to begin is of the plaintiff. The plaintiff has to submit the evidence that was earlier marked if any evidence was not marked earlier then it will not be considered by the court. And the defendant’s advocate will cross-examine the plaintiff and also to the witnesses who are from the plaintiff’s side. And the defendant also presents his side of the story supported by his witnesses and evidence from his side and the plaintiff advocate also cross-examined the defendant.

13. Argument

As soon as the stage of the hearing of suits and examination of witnesses is over then the suit is kept for the next stage i.e. argument. Once the evidence has been submitted and cross-examination is conducted by both parties, then both sides are allowed to present a summary of the case and evidence to the judge in the final session.

14. Judgment

After the concerned court has heard the matter the Court will pass Judgment/Decree. The provision related to Judgment and Decree is in Section 33 read with Order XX of the Code.

15. Appeal, Review and Revision

After the Judgment is pronounced and if the concerned party are not satisfied with the Judgment/Decree passed than they can either apply for Review (Section 114 read with Order XLVII) within Thirty Days from the date of pronouncement of Judgment/Decree or the aggrieved party can apply for Revision (Section 115) to the higher court within thirty days of pronouncement of Judgment, or the aggrieved party can also go for an Appeal (section 96 to 110 along with Order XLI to XLV) to the Higher Court within 60 or 90 days from the pronouncement of the Judgment/ Decree.

16. Execution of the Decree

In this stage, decree-holder compels the judgment-debtor to out the mandate of the decree or decree or order as the case may be. It is the process by which a decree-holder recovers the fruits of the judgment. The execution is complete when judgment creditor or decree-holder gets money or other thing awarded to him by judgment, decree, or order.

The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

17. Appeal, Review, Revision 

A. Appeal :-

An appeal may be an appeal from order or an appeal from decree. All orders are not appealable and complete discretion of the appealable order has been given in order 43 of the code of Civil Procedure Code. The appeal has to be preferred within prescribed limitation period before the appellate court. The limitation period for appeal to High Court is 90 days and appeal to District Court is 30 days. If the period of limitation is expired, then application for condonation of delay also is required to be moved.

B. Review :- 

The right of review is having very limited scope under the Civil Procedure Code

A review application is maintainable only when the following conditions are satisfied,

1. If involves a decree or order from which no appeal is allowed or if allowed it is not preferred.

2. The appellant was aggrieved, on the ground, that because of the discovery of a new and important matter of evidence, which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time of decree or on account of some mistake, apparently on the face of the record, or for any sufficient reason, desires to obtain a review of such decree. The other side will be granted an opportunity to be heard, when any review application has been granted.

C. Revision :- 

The High Court in its revision jurisdiction can interfere in any case decided by subordinate court under certain circumstances.

The High Court may call for the record of any case which has been decided

by subordinate court and in which no appeal lies, if such subordinate court appears -

1. To have exercised, a jurisdiction not vested in it by law, or 

2. To have failed to exercise a jurisdiction so vested, or

3. To have acted in exercise of its jurisdiction illegally; or with material irregularity.

18. Execution of Decree (Order 21) :- 

Execution is the medium by which a decree- holder compels the judgment-debtor to carry out the mandate of the decree or order as the case may be. It enables the decree-holder to recover the fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by judgment, decree or order. 

-  Adv. Sunita Nagpure

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Alimony in India

Alimony is a very important matter to deal with during the litigation of a divorce case.

The very perception of right to claim the financial support for post-divorce maintenance was not quite a familiar concept among the Indian divorce seekers, especially women few years back. 

Since the rate of divorce is increasing in India at a rapid speed, people are becoming aware of the various details related to divorce laws. The era of feminist campaigns and spread of education among women, have contributed to the growing applicability of alimony in divorce cases.

The alimony or the spouse support is an obligation by laws in almost all the countries of the world. It is expected that both the spouses irrespective of gender must bear the maintenance support during and after marriage.

The concept of alimony came in vogue due to the indissolubility nature of marriage. According to marriage conventions, marriage is a sacred union. Once the knot is tied, the duties and obligations of marriage are to be carried out for the rest of the life even if there is mental disparity or physical separation between the husband and the wife. The husband is bound to take up the responsibilities for the maintenance of his wife in spite of sharing an estranged relationship. As time changed, the laws and education empowered woman and divorce came as a spontaneous solution for an unsuccessful marriage.

The present society treats men and women equal, as a result the burden of alimony can now fall upon either side of the party depending upon the financial circumstances of the spouses. Even though in the present age of equality, both men and women are equal before the law, in practice men are more liable to provide interim support to his ex- spouse during the litigation procedure.

After divorce either of the spouse has the right to claim alimony. Though not an absolute right, it can be granted by the court depending upon the circumstances and financial conditions of both the spouses.

The following are the conditions depending on which alimony is awarded by the court:

Alimony is generally not granted to the seeking spouse if he or she is already receiving support during the time of divorce. Although the rewarding of alimony can be revised in such events based on the arguments for claiming the support.

In case of a contested divorce, often spouses fail to come to any understanding regarding alimony. In such situations, the court takes up the task of making a decision on the amount of alimony to be paid.

Only under certain compelling situations the court steps out to change the already framed alimony. Sometimes the court might even hand over the burden of paying for the maintenance to a public body.

The following are the factors that influence the duration and amount to be paid as alimony:

The amount and duration of alimony generally depends upon how long the marriage existed. Marriages that lasted more than 10 years are entitled to be granted a lifelong alimony.

Age of the spouse is also taken into consideration while awarding alimony. Normally a young recipient of alimony gets it for a short period of time if the court thinks that he or she will soon be able to become financially sound through prospective career excellence.

Alimony is also in vogue in order to equalize the economic condition of both the spouses. The higher earning spouse is entitled to pay a heavy amount as alimony.

The spouse who is projected to be enjoying a prosperous career is liable to pay high alimony amount.

If one of the spouses is suffering from poor health, the other is subjected to payment of high alimony to ensure proper medication and wellbeing of the other spouse.

The terms and conditions of payment of alimony in India vary from one personal law to another. None of the Indian personal laws are spared from criticism due to existence of laws in framing definite rules for granting alimony.

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Relevancy of Judgements

Relevancy of previous judgments to bar a second suit or trial

–– The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.

Relevancy of certain judgments in probate, etc., jurisdiction. 

–– A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof ––

that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;

that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment 1[order or decree] declares it to have accrued to that person;

that any legal character which it takes away from any such person ceased at the time from which such judgment, 1[order or decree] declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1[order or decree] declares that it had been or should be his property.

Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41. 

–– Judgments, orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

Illustration

A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.

Judgments, etc., other than those mentioned in sections 40, 41 and 42, when relevant. 

–– Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act.

Illustrations

(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.

A obtains a decree against C for damages on the ground that C failed to make out his justification.

The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A’s wife.

B denies that C is A’s wife, but the Court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. C says that she never was A’s wife.

The judgment against B is irrelevant as against C.

(c) A prosecutes B for stealing a cow from him. B is convicted.

        A afterwards sues C for the cow, which B had sold to him before his conviction. As between

        A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against B. C, B’s son, murders A in consequence.

The existence of the judgment is relevant, as showing motive for a crime.

(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue.]

Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. 

–– Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Reproduced from the Indian Evidence Act

- Adv. (Dr.) Darshan Nagpure

The Federal Courts

Introduction To The Federal Court System 

The federal court system has three main levels: 

• District courts (the trial court)

• Circuit courts which are the first level of appeal and 

• Supreme Court of the United States, the final level of appeal in the federal system. 

There are 94 district courts, 13 circuit courts, and one Supreme Court throughout the country.

Courts in the federal system work differently in many ways than state courts. The primary difference for civil cases (as opposed to criminal cases) is the types of cases that can be heard in the federal system. 

Federal courts are courts of limited jurisdiction, meaning they can only hear cases authorized by the United States Constitution or federal statutes. The federal district court is the starting point for any case arising under federal statutes, the Constitution, or treaties. This type of jurisdiction is called “original jurisdiction.” Sometimes, the jurisdiction of state courts will overlap with that of federal courts, meaning that some cases can be brought in both courts. The plaintiff has the initial choice of bringing the case in state or federal court. However, if the plaintiff chooses state court, the defendant may sometimes choose to “remove” to federal court.

Cases that are entirely based on state law may be brought in federal court under the court’s “diversity jurisdiction.” Diversity jurisdiction allows a plaintiff of one state to file a lawsuit in federal court when the defendant is located in a different state. The defendant can also seek to “remove” from state court for the same reason. To bring a state law claim in federal court, all of the plaintiffs must be located in different states than all of the defendants, and the “amount in controversy” must be more than $75,000. (Note: the rules for diversity jurisdiction are much more complicated than explained here.)

Criminal cases may not be brought under diversity jurisdiction. States may only bring criminal prosecutions in state courts, and the federal government may only bring criminal prosecutions in federal court. Also important to note, the principle of double jeopardy – which does not allow a defendant to be tried twice for the same charge – does not apply between the federal and state government. If, for example, the state brings a murder charge and does not get a conviction, it is possible for the federal government in some cases to file charges against the defendant if the act is also illegal under federal law.

Federal judges (and Supreme Court “justices”) are selected by the President and confirmed “with the advice and consent” of the Senate and “shall hold their Offices during good Behavior.” Judges may hold their position for the rest of their lives, but many resign or retire earlier. They may also be removed by impeachment by the House of Representatives and conviction by the Senate. Throughout history, fifteen federal judges have been impeached due to alleged wrongdoing. One exception to the lifetime appointment is for magistrate judges, which are selected by district judges and serve a specified term.

District Courts

The district courts are the general trial courts of the federal court system. Each district court has at least one United States District Judge, appointed by the President and confirmed by the Senate for a life term. District courts handle trials within the federal court system – both civil and criminal. The districts are the same as those for the U.S. Attorneys, and the U.S. Attorney is the primary prosecutor for the federal government in his or her respective area.

District court judges are responsible for managing the court and supervising the court’s employees. They are able to continue to serve so long as they maintain “good behavior,” and they can be impeached and removed by Congress. There are over 670 district court judges nationwide.

Some tasks of the district court are given to federal magistrate judges. Magistrates are appointed by the district court by a majority vote of the judges and serve for a term of eight years if full-time and four years if part-time, but they can be reappointed after completion of their term. In criminal matters, magistrate judges may oversee certain cases, issue search warrants and arrest warrants, conduct initial hearings, set bail, decide certain motions (such as a motion to suppress evidence), and other similar actions. In civil cases, magistrates often handle a variety of issues such as pre-trial motions and discovery.

Federal trial courts have also been established for a few subject-specific areas. Each federal district also has a bankruptcy court for those proceedings. Additionally, some courts have nationwide jurisdiction for issues such as tax (United States Tax Court), claims against the federal government (United States Court of Federal Claims), and international trade (United States Court of International Trade).

Circuit Courts

Once the federal district court has decided a case, the case can be appealed to a United States court of appeal. There are twelve federal circuits that divide the country into different regions. The Fifth Circuit, for example, includes the states of Texas, Louisiana, and Mississippi. Cases from the district courts of those states are appealed to the United States Court of Appeals for the Fifth Circuit, which is headquartered in New Orleans, Louisiana. Additionally, the Federal Circuit Court of Appeals has a nationwide jurisdiction over very specific issues such as patents.

Each circuit court has multiple judges, ranging from six on the First Circuit to twenty-nine on the Ninth Circuit. Circuit court judges are appointed for life by the president and confirmed by the Senate.

Any case may be appealed to the circuit court once the district court has finalized a decision (some issues can be appealed before a final decision by making an “interlocutory appeal”). Appeals to circuit courts are first heard by a panel, consisting of three circuit court judges. Parties file “briefs” to the court, arguing why the trial court’s decision should be “affirmed” or “reversed.” After the briefs are filed, the court will schedule “oral argument” in which the lawyers come before the court to make their arguments and answer the judges’ questions.

Though it is rare, the entire circuit court may consider certain appeals in a process called an “en banc hearing.” (The Ninth Circuit has a different process for en banc than the rest of the circuits.) En banc opinions tend to carry more weight and are usually decided only after a panel has first heard the case. Once a panel has ruled on an issue and “published” the opinion, no future panel can overrule the previous decision. The panel can, however, suggest that the circuit take up the case en banc to reconsider the first panel’s decision.

Beyond the Federal Circuit, a few courts have been established to deal with appeals on specific subjects such as veterans claims (United States Court of Appeals for Veterans Claims) and military matters (United States Court of Appeals for the Armed Forces).

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the American judicial system, and has the power to decide appeals on all cases brought in federal court or those brought in state court but dealing with federal law. For example, if a First Amendment freedom of speech case was decided by the highest court of a state (usually the state supreme court), the case could be appealed to the federal Supreme Court. However, if that same case were decided entirely on a state law similar to the First Amendment, the Supreme Court of the United States would not be able to consider the case.

After the circuit court or state supreme court has ruled on a case, either party may choose to appeal to the Supreme Court. Unlike circuit court appeals, however, the Supreme Court is usually not required to hear the appeal. Parties may file a “writ of certiorari” to the court, asking it to hear the case. If the writ is granted, the Supreme Court will take briefs and conduct oral argument. If the writ is not granted, the lower court’s opinion stands. Certiorari is not often granted; less than 1% of appeals to the high court are actually heard by it. The Court typically hears cases when there are conflicting decisions across the country on a particular issue or when there is an egregious error in a case.

The members of the Court are referred to as “justices” and, like other federal judges, they are appointed by the President and confirmed by the Senate for a life term. There are nine justices on the court – eight associate justices and one chief justice. The Constitution sets no requirements for Supreme Court justices, though all current members of the court are lawyers and most have served as circuit court judges. Justices are also often former law professors. The chief justice acts as the administrator of the court and is chosen by the President and approved by the Congress when the position is vacant.

The Supreme Court meets in Washington, D.C. The court conducts its annual term from the first Monday of October until each summer, usually ending in late June.

Source: https://www.justice.gov/usao/justice-101/federal-courts