ACT VS LAW DIFFERENCE

 An Act and Law resonates to be the same but they are 2 sides of the coin which cannot exist without the others support. In earlier chapters of our blog we have seen how a bill becomes an Act,its procedure etc, but with  repeated doubts we have comeup with difference column for better understanding.

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Fundamental Rights and Directive Principles of State Policy (DPSP) DIFFERENCES

 Fundamental Rights are human rights conferred on the citizens of India. DPSP are ideals which are meant to be kept in mind by the State when it formulates policies and enacts laws.

Fundamental Rights (Articles 14-35) 

Directive Principles of State Policy (DPSP)  (Articles 36-51)

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CONSTITUTION AND LAW DIFFERENCE

 The Constitution of a nation is the supreme law of the land. Law is a set of rules to govern social and governmental institutions. When constitution is the supreme law why do we need to have separate laws, bylaws, rules, regulations?

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JUDGE VS MAGISTRATE

A very common doubt, frequently misunderstood by students until they come to court practice and even later, is a judge and a magistrate the same? Is the power, jurisdiction same?

so here comes the simple chart that shall clear your doubts.

 

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ARBITRATION

 

The Indian law of arbitration is contained in the Arbitration and Conciliation Act 1996 (Act). 

The dictionary meaning of ‘arbitration’ is the process of solving an argument between people by helping them to agree to an acceptable solution

Arbitration is a part of the Alternative Dispute Resolution mechanism that benefits parties who want to avoid the normal lengthy recourse to the local courts for settlement of disputes. It is in fact a legal technique for the resolution of dispute outside the courts, wherein the parties to a dispute refer it to one or more persons namely arbitrator(s) by whose decision (the “award”) they agree to be bound.

The Act is based on the 1985 UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976. The Statement of Objects and Reasons of the Act recognises that India’s economic reforms will become effective only if the nation’s dispute resolution provisions are in tune with international regime.

The more significant provisions of the Act are to be found in Part I and Part II thereof. Part I contains the provisions for domestic and international commercial arbitration in India. All arbitration conducted in India would be governed by Part I, irrespective of the nationalities of the parties. Part II provides for enforcement of foreign awards.

What is Arbitration law?

Arbitration is the dispute settlement process between two agreeable parties to appoint an arbitrator to give a binding solution on the dispute. It is a way to settle disputes outside the courts thereby saving time and resources at the same time.

Arbitration is a legal mechanism encouraging settlement of disputes between two or more parties mutually by the appointment of a third party whose decision is binding on the parties referring the said dispute.

Arbitration is an effective way of expediting resolution of disputes in these modern times when there is scarcity of time.

Can all disputes be arbitrated?

All disputes are not arbitrable and there are certain disputes which fall outside categories of arbitrable disputes as held by the Hon’ble Apex Court in the matter of Booz Allen and Hamilton Inc V. SBI Home Finance Ltd. These are:

a) criminal offences

b) guardianship matters

c) insolvency and winding up proceedings

d) matters of probate, letters of administration, succession certificate etc

e) eviction proceedings

f) patents, trademarks, copyright

g) Anti Trust/ competition laws

h) Bribery/Corruption Laws

i) Fraud

Need for Arbitration

Advancement, liberalisation and globalisation of international business relations necessitated the invention of a flexible, reasonable, favourable and time saving method of resolution of disputes without making the parties to go through the rigorous, time consuming and resource exhausting procedure of the traditional justice delivery system.

Advantages of Arbitration

a) Minimalization of court intervention

b) Reduction in costs of dispute redressal and resolution

c) Expeditious and timely disposal

d) Enforcement of awards through neutrality of arbitrator

e) Encouragement of foreign investment by recognising the country as that having a sound legal framework

f) Effective conduct of and maintaining sound foreign relations

Objects and Reasons set forth the main objectives of the Act as follows:

 

What powers and obligations do arbitrators have?

The Arbitration and Conciliation Act gives the arbitrators broad powers to conduct the proceedings. These include the power to:

• rule on the existence and validity of the arbitration agreement or on its own jurisdiction;
• order interim measures;
• determine the admissibility and weight of the evidence adduced before it;
• decide the dispute on the merits according to the governing law and terms of the contract;
• appoint experts;
• encourage settlement through other mechanisms, including conciliation;
• determine the costs of the arbitration and their apportionment between the parties; and
• deliver a reasoned award.

Conduct of arbitration proceedings: 

The arbitrators are masters of their own procedure and subject to parties agreement, may conduct the proceedings “in the manner they consider appropriate.” 

This power includes- 

• “the power to determine the admissibility, relevance, materiality and weight of any evidence”.
• The only restrain on them is that they shall treat the parties with equality and each party shall be given a full opportunity to present his case,
• sufficient advance notice of any hearing or meeting
• Neither the Code of Civil Procedure nor the Indian Evidence Act applies to arbitrations.
• Unless the parties agree otherwise, the tribunal shall decide whether to hold oral hearings for the presentation of evidence or for arguments or whether the proceedings shall be conducted on the basis of documents or other material alone. However the arbitral tribunal shall hold oral hearings if a party so requests (unless the parties have agreed that no oral hearing shall be held).

This essay will throw light only on few main aspects of the Act to understand what is arbitration and its benefits.

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ACT OR CODE - DIFFERNCES

what is an ACT? 

A formal decision, law, or the like, by a legislature, ruler, court, or other authority; decree or edict; statute; judgment, an instrument or document stating something done or transacted, to operate or function in a particular way; perform specific duties or functions.

It is complete in itself and can be read in isolation. e g. Indian contract act, as it include penalty, liability, duties etc. In itself and not have any requirement of other act to execute.

To be even more precise, Act is a single rule/ regulations passed by legislation (it was introduced as a bill/notification/ regulations then when the both houses of Parliament passed it , with presidential assent it became Act)

To read and know more on how a Bill becomes an Act,types of bill read the previous blog. click the link 

https://adityapedialegal.blogspot.com/2020/07/bill-to-act-part-2.html

https://adityapedialegal.blogspot.com/2020/07/bill-to-law.html

https://adityapedialegal.blogspot.com/2020/07/bill%20to%20an%20act.html

what is a code?

A systematically arranged collection or compendium of laws, rules, or regulations & any set of standards set forth and enforced by a local government agency for the protection of public safety, health, etc.,

The principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision & any written or positive rule or collection of rules prescribed under the authority of the state or nation, as by the people in its constitution.

It is compilation of statutes and it can't be read in isolation. As e g. criminal procedure code. It will be read with evidence act, Ipc etc. It is not complete in itself and require other act or code for its completion. Code is a whole collection of/ system of laws/ set of rules. Such as Code of Civil procedure,Indian penal Code, Criminal Procedure Code.

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CONSUMER PROTECTION ACT

The Consumer Protection Act, 2019

The Consumer Protection Act, 2019 replaced the old Consumer Protection Act, 1986. The new bill was passed by the president on Aug 06, 2019. In our earlier blogs we have discussed how a bill becomes a Law. The new Consumer Protection Act, 2019 came into force on 20th July 2020 and it will empower consumers and help them in protecting their rights through its various notified rules and provisions.

what is the purpose of Consumer Protection Act, 2019 

Consumer Protection Act, 2019 is a law to protect the interests of the consumers. This act was inevitable to resolve a large number of pending consumer complaints in consumer courts across the country. It has ways and means to solve the consumer grievances speedily.

who is a consumer?

As per the act; a person is called a consumer who avails the services and buys any good for self-use. Worth to mention that if a person buys any good and avail any service for resale or commercial purpose, is not considered a consumer. This definition covers all types of transactions i.e. online and offline.

Key features of the Consumer Protection Act, 2019

1. Establishment of the Central Consumer Protection Authority (CCPA):

• The CCPA will regulate cases related to unfair trade practices, misleading advertisements, and violation of consumer rights.
• The CCPA will have the right to impose a penalty on the violators and passing orders to recall goods or withdraw services, discontinuation of the unfair trade practices and reimbursement of the price paid by the consumers.
• The Central Consumer Protection Authority will have an investigation wing to enquire and investigate such violations.
• The CCPA will be headed by the Director-General.

2. Rights of consumers: 

The act provides 6 rights to the consumers;

i. To have information about the quantity, quality, purity, potency, price, and standard of goods or services.

ii. To be protected from hazardous goods and services.

iii. To be protected from unfair or restrictive trade practices.

iv. To have a variety of goods or services at competitive prices

3. Prohibition and penalty for a misleading advertisement: 

The Central Consumer Protection Authority (CCPA) will have the power to impose fines on the endorser or manufacturer up to 2-year imprisonment for misleading or false advertisement.

• Worth to mention that repeated offense, may attract a fine of Rs 50 lakh and imprisonment of up to 5 years.

4. Consumer Disputes Redressal Commission: 

The act has the provision of the establishment of the Consumer Disputes Redressal Commissions (CDRCs) at the national, state and district levels.

The CDRCs will entertain complaints related to;

i. Overcharging or deceptive charging

ii. Unfair or restrictive trade practices

iii. Sale of hazardous goods and services which may be hazardous to life.

iv. Sale of defective goods or services

5. Jurisdiction under the Consumer Protection Act, 2019

The act has defined the criteria of Consumer Disputes Redressal Commission (CDRCs).

• The National CDRC will hear complaints worth more than Rs. 10 crores.
• The State CDRC will hear complaints when the value is more than Rs 1 crore but less than Rs 10 crore.
• While the District CDRC will entertain complaints when the value of goods or service is up to Rs 1 crore.

6. Alternate Dispute Resolution Mechanism of Mediation:

• A complaint will be referred by a Consumer Commission for mediation, wherever scope for early settlement exists and parties agree for it.
• The mediation will be held in the Mediation Cells which will be established under the aegis of the Consumer Commissions.
• There will be no appeal against settlement through mediation.

7.Simplification of the Consumer Dispute Adjudication Process:

• Empowering the State and District Commissions to review their own orders.
• Enabling a consumer to file complaints electronically and in consumer commissions that have jurisdiction over the place of his residence.
• Video-conferencing for hearing and deemed admissibility of complaints if the question of admissibility is not decided within the specified period of 21 days.

8. Punishment for Manufacture or Sale of Adulterated/Spurious Goods:

• In case of the first conviction, a competent court may suspend any licence issued to the person for a period of up to two years and in case of second or subsequent conviction, may cancel the licence permanently.

9.Other Rules and Regulations:

• As per the Consumer Disputes Redressal Commission Rules, there will be no fee for filing cases up to Rs. 5 lakh.
• The credit of the amount due to unidentifiable consumers will go to the Consumer Welfare Fund (CWF).
• State Commissions will furnish information to the Central Government on a quarterly basis on vacancies, disposal, the pendency of cases and other matters.
• Apart from these general rules, there are Central Consumer Protection Council Rules, provided for the constitution of the Central Consumer Protection Council (CCPC).
  
• It will be an advisory body on consumer issues, headed by the Union Minister of Consumer Affairs, Food and Public Distribution with the Minister of State as Vice Chairperson and 34 other members from different fields.
• It will have a three-year tenure and will have Minister-in-charge of consumer affairs from two States from each region- North, South, East, West, and North-East Region.

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CPC 1908 civil suit stages in India

 

STAGES IN DETAIL:

1.  Plaint (Order 7) : The entire legal machinery under the Civil Law is set in motion by filing of plaint and hence plaint is the actual starting point of all pleadings in a case. 
2. Service of Summons : Summons is an instrument used by the court to commence a civil action or proceedings and is a means to acquire jurisdiction over party. It is a process directed to a proper officer requiring him to notify the person named, that an action has been commenced against him, in the court from where process is issued and that he is required to appear, on a day named and answer the claim in such action.
3. Appearance of parties : On the day fixed in the summons the defendant is required to appear and answer and the parties shall attend the court unless the hearing is adjourned to a future day fixed by the court, if the defendant is absent court may proceed exparte. 
4. Ex-parteDecree : A decree against the Defendant without hearing him or in his absence or in absence of his defense can be passed .If an exparte decree is passed and the defendant satisfies that he was prevented by sufficient cause then he has remedies.
5. Interlocutory Proceedings : The period involved between initiation and disposal of litigation is substantially long. The intervention of the court may sometimes be required to maintain the position as it prevailed on the date of litigation. In legal parlance it is known as "status quo”. It means preserving existing state of things on a given day. In that context interlocutory orders are provisional, interim, temporary as compare to final. It does not finally determine cause of action but only decides some intervening matter pertaining to the cause. 
6. Written Statement (Order 8) : The defendant is required to fiie written statement of his defense at or before the first hearing or such time as may be allowed If defendant disputes maintainability of the suit or takes the plea that the transaction is void it must be specifically stated. A general denial of grounds alleged in the plaint is not sufficient and denial has to be specific. 
7. Production of Documents: . On this stage both parties have to file documents in court which are in their possession or power. If parties relay on some documents which are not in their possession in that case they have to apply to court for issue of summons to authority or persons in whose possession these documents are. 
8. Examination of parties (Order 10) : Examination of parties is an important stage after appearance. At first hearing of the suit the court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement. Such admissions and denials shall be recorded.
9. Discovery and Inspection (Order 11) : The purpose of discovery and inspection of document and facts is to enable the parties to ascertain the facts to be proved. With the leave of the court the plaintiff or defendant may deliver interrogatories in writing for examination of opposite parties which are required to be answered and which are related to the matter. 
10. Admission (Order 12) : Either party may call upon the other party to admit within seven days from the date of service of the notice, any document saving all just exception. 
11. Framing of Issue (Order 14):The job of framing issues is exclusively assigned to a judge. Issues are framed considering provisions of order 14 rule 1 of C.P.C.
12. Summoning And Attendance Of Witnesses (Order 16) : On the date appointed by the court and not later than 15 days after the date on which issues are settled parties shall present in court a list of witnesses whom they propose to call either to give evidence or to produce documents.
13. Hearing Of Suits And Examination Of Witnesses (Order 18) : The plaintiff is entitled to have first right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of relief
14. Argument :As soon as evidence of both side is over then the suit is kept for argument. Once the evidence has been submitted and cross-examination is conducted by the plaintiff and defendant, both sides are allowed to present a summary of their case and evidence to the judge in the Final argument session.
15. Judgment (Order 20) : Judgment means the statement given by the judge on ground of which a decree is passed. The court after the case has been heard shall pronounce judgment in open court either within one month of completion of arguments or as soon thereafter as may be practicable, and when the judgment is to be pronounced judge shall fix a day in advance for that purpose.
16. Preparation of Decree (Order 20 rule 6, 6A) : Once the judgment is delivered by a judge a decree is to be prepared by concerned clerk. Including all the personal  details submitted, particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.  
17. Appeal, Review, Revision : 

• 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. 
• 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.
• 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 
• 4. 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.

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INVESTIGATION TO TRIAL IN CRPC

Criminal Case From Investigation to Trial- The stages evolved

 It is true that crimes and criminals are considered as a terror amidst social life, their family and relatives are also isolated and seen with an eye of vicious flu that could be a threat. The crime and its punishment are  decided by the procedures established by criminal law. Before we illustrate the stages evolved it is atmost necessary for us to know few terms like compoundable & non compoundable offences   https://adityapedialegal.blogspot.com/2020/08/compoundable-non-compoundable-offence.html  bailable & non bailable, https://adityapedialegal.blogspot.com/2020/08/bailable-and-non-bailable-offences.html  cognizable & non cognizable   https://adityapedialegal.blogspot.com/2020/08/cognizable-and-non-cognizable-offences.html police and judicial custody https://adityapedialegal.blogspot.com/2020/08/police-custody-vs-judicial-custody.html  and summon & warrant https://adityapedialegal.blogspot.com/2020/08/warrant-and-summons.html which we have explained in the previous blogs .

there are various stages in a criminal case. Lets understand 27 Stages Of Criminal Cases In India Under Criminal Procedure Code, 1973.

A. Pre-trial stage

B. Trial stage

C. Post-trial stage

A.   Pre-trial Stage

1. Commission of an offence (cognizable or non cognizable)

2.        A. Information to police.

B. Complaint to magistrate.

A. Information to police :

    a. Information of cognizable offence.

    b. Information of non cognizable offence.

a. Information of cognizable offence :

Under Section 154 of the Code of Criminal Procedure, a FIR or First Information Report is registered. FIR puts the case into motion. A FIR is information given by someone (aggrieved) to the police relating to the commitment of an offense.

b. Information of non cognizable offence :

In case of non cognizable offence N.C.R (non cognizable report) is registered by police under section 155 of Cr.P.C. but the police cannot start investigation or arrest the accused without the order of a Magistrate having power to try such case.

 B. Complaint to magistrate –

Section 2 (d) of the Code of Criminal Procedure defines the term 'complaint as any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. On receipt of a complaint a Magistrate has several courses open to him.

He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200, CrPC Thereafter if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203, Cr PC. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204, Cr PC.

However, if he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding (Section 202, Cr PC).

He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding.

3. Investigation by Police :-  Police conduct investigation for

1)  For collection of evidence;

2)  Interrogation statement of accused;

3) Statement of witnesses;

4)  Scientific analysis / opinion if required.

During this time, at any stage decided by investigating agency, accused persons can be arrested.

4. Anticipatory Bail :- Upon registration of FIR for cognizable criminal offence the accused may make an application for anticipatory bail u/s 438 CrPC in session court or high court.

 If anticipatory bail is granted then the accused cannot be arrested. If anticipatory bail is rejected then the accused can be arrested without warrant.

5. Arrest of the Accused :- In case of cognizable offence police can arrest the accused without warrant. However in case of non cognizable offence prior approval of magistrate is necessary.

6. Production of accused to magistrate :- Within 24 hours of the arrest the accused shall be produced before a magistrate having jurisdiction to try such cases.

7. Remand :- Whenever an accused is arrested for any offence and police cannot complete investigation within 24 hours then such person is produced before a magistrate for seeking extension of police or magisterial custody.

8. Final report u/s 173 -After investigation is completed:- The police after completing the investigation have to file a final report under section 173 of the CrPC.If investigating agency feels a prima facie case is made out, charge sheet is filed in Court through the public prosecutor. If police feels that no prima facie case is made out, a final report filed in Court.

9. Cognizance of Offence by Magistrate :- After filling of charge sheet the next stage is taking cognizance of offence by magistrate under section 190 of the Criminal Procedure Code.

10. Service of summons/warrant to accused and Process to compel appearance

11. Appearance of accused before court & engagement of advocate.

12. Filing bail application/ furnishing surety.

13. Decision is taken by the Court after hearing the public prosecutor and the counsel for defence:

A. On question of Charge sheet:

1.  Court can reject charge sheet, in which case the accused is discharged. Or,
2.  Court can accept that a prima facie case is made out, frame the charges, and post the case for trial. Case goes to next stage.
3.  Court can reject the final report, and direct the police to further investigate the case. Case goes back to the Stage of investigation.

14. Framing Of Charge :- After considering the police report and other important documents the accused is not discharged then the court frames charges under which he is to be in trial.

15. Conviction on plea of guilty :- If the accused pleads guilty, the court shall record the plea and may, at discretion convicts the accused.

16. If the accused pleads not guilty. Case is posted for trial.

B. Trial stage

B. Trial stage

17. Commencement of trial -. Trial may be -

a. Sessions trial

b. Warrant trial

c. Summons trial

d. Summary trial

18. Prosecution evidence:- After the charges are framed, and the accused pleads guilty, then the court requires the prosecution to produce evidence to prove the guilt of the accused. The prosecution is required to support their evidence with statements from its witnesses. This process is called "examination in chief". The magistrate has the power to issue summons to any person as a witness or orders him to produce any document.

19. Statement of the accused:- Section 313 of the Criminal Procedure Code gives an opportunity to the accused to be heard and explain the facts and circumstances of the case. The statements of accused are not recorded under oath and can be used against him in the trial.

20. Defence evidence:- An opportunity is given to the accused in a case where he is not being acquitted to produce so as to defend his case. The defense can produce both oral and documentary evidence. In India, since the burden of proof is on the prosecution the defense, in general, is not required to give any defense evidence.

21. Final Arguments:- Public Prosecutor and the defence counsel present their arguments.

22. Judgment and sentence by the Court:- The final decision of the court with reasons given in support of the acquittal or conviction of the accused is known as judgment.

23. Arguments on sentence:- When the accused is convicted, then both sides are invited to give arguments on the punishment which is to be awarded. This is usually done when the person is convicted of an offense whose punishment is life imprisonment or capital punishment.

However when the sentence is pronounced in a summons case, the parties need not argue on the amount of punishment given. The sentence is the sole discretion of the judge.

24. Judgment of Court passing sentence:- After the arguments on sentence, the court finally decides what should be the punishment for the accused. 

C. Post-Trial Stage

25. Appeal (within specified period of limitation)/Revision :- Appeal can be filed by party aggrieved by judgment on acquittal / conviction /sentence. On notice being issued to the opposite parties, arguments are placed before Appellate court by defence counsel and the public prosecutor. Or,

25 .A. Revision Application :

Where there is right of appeal provided but no appeal is filed,  then in its discretion of the Sessions Court or the High Court if it can entertain a revision to prevent miscarriage of Justice occurred by the orders of the lower court.

26. Judgment of the Appellate Court or Court having revisional jurisdiction.

27. Execution of Sentence.

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