Lawyer

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A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law."
In many civil law countries, prosecutors are trained and employed as part of the judiciary; they are law-trained jurists, but may not necessarily be lawyers in the sense that the word is used in the common law world.[63] In common law countries, prosecutors are usually lawyers holding regular licenses who simply happen to work for the government office that files criminal charges against suspects.

R.V. Bhasin Vs State of Maharashtra IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPLICATION NO.1421 OF 2007

This is an extract of Judgment---“The applicant, who is an advocate, is the author of a book entitled “Islam – A concept of Political World Invasion By Muslims” (“the book”). In exercise of powers conferred by sub-section (1) of section 95 of the Code of Criminal Procedure, 1973 (“the Code”) the Government of Maharashtra issued a notification dated 9/3/2007 (“the Notification”) and declared that every copy of the book as well as of the translation thereof shall be banned and forfeited to Government.
In Nawabkhan, the Supreme Court set aside the externment order passed against the accused on the ground that there was a failure to give him a hearing under Section 59 of the Bombay Police Act. Section 59 of the Bombay Police Act contemplates a hearing. Section 95 of the Code does not provide for a hearing.
Manzar Khan, Manzar Khan the appellant was a constituted attorney of Oxford University Press India which published a book entitled Shivaji Hindu King in Islamic India authored by Prof. Laine. The police registered FIR against the appellant and Prof. Laine under Sections 153, 153-A read with Section 34 of the IPC inter alia on the ground that the offensive paragraphs of the said book contained scurrilous attack on Shivaji Maharaj and the circulation of the said book has resulted in causing enmity between various communities and has led to violence and disharmony. While quashing the FIR, the Supreme Court observed that the gist of the offence under Section 153-A of the IPC is the intention to promote feelings of enmity or hatred between different classes of people.
In Gopal V. Godse, G.V. Godse, the petitioner was the brother of Nathuram Godse, assassin of Mahatma Gandhi. The petitioner was arrested along with Nathuram Godse for murder of Mahatma Gandhi and was tried along with him. He was sentenced to life imprisonment. He was released from jail on 3/10/1964. He wrote and published a book titled “Gandhi-hatya Ani Mee”. On 6/12/1967, Governor of Delhi issued a notification under Section 99-A of the Code of 1898 forfeiting every copy of the said book on the ground that it contains matter which promotes feelings of enmity and hatred between Hindus and Muslims, the publication of which is punishable under Section 153-A of the IPC. On 1/2/1968, the Government of Maharashtra republished the notification of the Delhi Administration. The petitioner challenged the said notification under Article 226 of the Constitution of India and under Section 99-D of the Code of 1898. The Special Bench set aside the notification. The Special Bench observed that the High Court cannot sustain an order of forfeiture on grounds other than those mentioned in the said order. The High Court cannot add to the grounds given by the State in the notification, but can simply review the book on merits, to determine if it is satisfied with the grounds given in the order of forfeiture.
In Harnam, a Constitution Bench of the Supreme Court was considering somewhat similar provisions of the Code of Criminal Procedure, 1898 (“the Code of 1898”). The Government of U.P. had passed an order under Section 99-A of the Code of 1898 forfeiting two books on the ground that they contained matter, the publication of which was punishable under Sections 153-A and 295-A of the IPC. The Supreme Court set aside the notification on the ground that for a forfeiture notification to be valid, there must be an opinion of the Government and the Government has to state the grounds of its opinion.
legal principles from the above judgments- “a) The Notification must state the grounds of the Government’s opinion. (Harnam, Narayan Das, Lalai Singh Yadav) b) A formal authoritative setting forth of the grounds is statutorily mandatory. Appendix cannot make up for grounds of opinion. (Lalai Singh Yadav) c) Mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. (Narayan Das) d) Grounds must not be stated at learned length. In certain cases a laconic statement may be enough while in others more detailed reasons may be required. Grounds may be brief but cannot be blank. (Lalai Singh Yadav) e) Grounds of opinion must mean conclusion of facts on which the opinion is based. Grounds must necessarily be the import or the effect or the tendency of the matters contained in the offending publication either as a whole or in portions of it, asillustrated by passages which Government may choose, (Narayan Das’s case where the Supreme Court referred to the Calcutta High Court’s judgment in Arun Ranjan Ghose with approval). f) The High Court must set aside an order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion, it cannot be satisfied that the grounds given by the Government justified the order. If in such case, the High Court upholds the order, it would mean that the High Court itself made the order which the High Court cannot do. (Harnam) g) The High Court must set aside the order of forfeiture if it is not satisfied that the grounds on which the Government formed it’s opinion justify that opinion. (Harnam) h) The validity of the order of forfeiture would depend on the merits of the grounds. It is not the duty of the High Court to find out for itself whether the book contained any such matter whatsoever. The High Court cannot make a roving enquiry beyondthe grounds set forth in the order. (Harnam) i) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited. (Baragur) j) The matter charged as being within the mischief of the relevant sections of the IPC must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (Gopal Godse, Special Bench, Bombay High Court.) k) Section 295-A of the IPC does not penalize any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens. There must be a malicious or deliberate intention to outrage the religious feelings of a class of citizens. (Ramji Modi, Balwant Singh, Manzar Khan, Bhagwati Charan Sharma Nagpur High Court, Gopal Godse Special Bench, Bombay High Court.) l) Intention of the author has to be gathered from the language, contents and import of the offending material. (Baragur, Gopal Godse Special Bench, Bombay High Court). m) If the purpose of writing the book was a historical research based on a number of reference books and other material, it would be difficult for the State to contend that simple narration of history would promote violence, enmity or hatred. (Varsha Publications, Special Bench, Bombay High Court.) n) If the allegations made in the offending article is based on folklore, tradition or history something in extenuation could perhaps be said for the author. (Baragur) o) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A. (Gopal Godse, Special Bench, Bombay High Court). p) Section 95(1) of the Code requires that the ingredients of the offences should appear to the Government to be present. Section 95 does not require that it should be proved to the satisfaction of the Government that all requirements of punishing sections including mens rea were fully established. (Baragur, Nandkishore, Special Bench of Patna High Court). q) The onus to dislodge the prima facie opinion of the Government that the offending publication comes within the relevant offence including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof. (Nandkishore, Special Bench of Patna High Court, approved in Baragur.) r) It is not necessary to prove that as a result of the objectionable matter enmity or hatred was in fact caused between the different classes. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred. (Gopal Godse, Special Bench, Bombay High Court.). s) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time. (Gopal Godse, Special Bench, Bombay High Court.) t) Whether the objectionable matter is meant for limited circulation, whether it is to cater to ignorant, illiterate inflammable mob or educated people would be a relevant consideration. (Bhagwati Charan Sharma – Nagpur High Court). u) The effect of the words must be judged from the standards of reasonable strongminded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. (Ramesh v. Union of India, AIR 88 SC 775, Manzar Khan, Bhagwati Charan Sharma – Nagpur High Court.)”
There can be no debate over the legal propositions. But, the law does not require verbatim reproduction of the section. In our opinion, the Notification does not lack the basic ingredients. The Notification identifies the classes of people who are likely to be affected by the book as Muslims and non-Muslims. It quotes the derogatory references to Muslim religion and inter alia states that the said references are likely to create hatred against Muslims in the minds of non-Muslims thereby promoting enmity between classes.
Freedom of speech and expression is a cherished right of every citizen. Every person has a right to express what he/she feels about any issue which according to him/her needs to be debated upon or brought before the public eye. Freedom of expression would also include freedom to criticize. Indian democracy has survived because of the protection its Constitution has granted to its people to express freely their views on affairs of the State and on other issues concerning religion, culture, civilization, literature and personalities, which are beyond the mundane affairs of the State. This list is merely illustrative and not exhaustive. Fearlessness is the hallmark of a vibrant, democratic and secular society like ours. While we have a right to criticize 80 each other, the criticism has to be healthy and not malicious. It must not lead to creating ill-will and hatred between different communities. Freedom of expression must be well utilized, it must lead to sensible dialogue but not senseless destruction of lives and property and breach of public order.
In Lalai Singh, the Supreme Court while stressing the importance of freedom of speech and expression observed that our Constitution makers respected Mill’s 81 famous statement from his essay “On Liberty” as under: “If all mankind minus one were of one opinion and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power would be justified in silencing mankind”. The Supreme Court then quoted Voltair’s inspired assertion : “I disapprove of what you say, but I will defend to the death your right to say it”. (Attributed to Voltair in S.G. Tallentyre. The Friends of Voltair 1907). Having quoted the above passages, the Supreme Court turned to passages from Gitlow v. New Yor (1924) 69 Law ed 1138, which were quoted by Dr. Ambedkar in the Constituent Assembly. We may reproduce them: “It is a fundamental principle long established, that the freedom of speech and of the press, which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose or an unrestricted and unbridled licence that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom”. “That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, finding to correct public morals, invite to crime or disturb the public peace, is not open to question ....”

In this connection, he has relied on an unreported judgment of the Supreme Court dated 30/8/1999 in Shiv Kumar v. Hukum Chand & Anr. In that case, the appellant/complainant wanted the counsel appointed by him to conduct the prosecution in the Sessions Court. The public prosecutor had consented to it. The High Court rejected the prayer. After considering the relevant provisions of the Code, particularly Section 301 thereof, the Supreme Court endorsed the High Court's view after observing that the prosecution in a Sessions Case cannot be conducted by anyone other than the public prosecutor. The Supreme Court observed that if a private counsel is allowed a free hand to conduct a prosecution he would focus on bringing the case to conviction even if it is not a fit case where the accused could be convicted. That is the reason why Parliament has subjected his role strictly to the instructions given by the public prosecutor.”

Gangula Mohan Reddy Vs State of Andhra Pradesh IN THE SUPREME COURT OF INDIA, CRIMINAL APPEAL NO. 1301 of 2002

As Deliverd by Hon'ble Dalveer Bhandari, J. “Appellant was convicted by the Assistant Sessions Judge, Nagarkurnool under Section 306 of the Indian Penal Code. According to the case of the prosecution, the appellant, who is an agriculturist, had harassed his agriculture labour (servant) deceased Ramulu by leveling the allegation that he had committed theft of some gold ornaments two days prior to his death. It was also alleged that the appellant had demanded Rs.7,000/- from the deceased which was given in advance to him at the time when he was kept in employment.
The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. ‘Sui’ means ‘self’ and ‘cide’ means ‘killing’, thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types: Degradation of corpse of deceased by burying it on the highway with a stake through its chest. Forfeiture of property of deceased by the State.
This penalty was later distilled down to merely not providing a full Christian burial, unless the deceased could be proved to be of unsound mind. However, currently there is no punishment for suicide after the enactment of the Suicide Act, 1961 which proclaims that the rule of law whereby it was a crime for a person to commit suicide has been abrogated.
In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under section 309 of IPC.
a judgment of this Court in Mahendra Singh & Another v. State of M.P. 1995 Supp. (3) SCC 731. In the case of Mahendra Singh , the allegations levelled are as under:“My mother-in-law and husband and sister-in-law (husband’s elder brother’s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.” The court on aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under section 306 IPC merely on the basis of aforementioned allegation of harassment of the deceased is unsustainable in law.
In the instant case, the deceased was undoubtedly hyper sensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24 had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word “instigation” and “goading”. The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
In order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.”

Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618.

“Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”

right

is a 'right' something that must be provided or something that simply cannot be taken away?---amartya sain

ANIL KUMAR JAIN Vs MAYA JAIN CIVIL APPEAL NO 5952 OF 2009

Respondent (s)The short point for decision in this appeal is whether a decree can be passed on a petition for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955, when one of the petitioners withdraws consent to such decree prior to the passing of such decree.
In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13 and 13-B of the Hindu Marriage Act, 1955.
The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other Courts can exercise such powers. The other Courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties.

Abbott vs. Sullivan reported in (1952) 1 K.B.189

‘the Principles of Natural Justice are easy to proclaim, but their precise extent is far less easy to define”

PUNNU RAM v. CHIRANJI LAL GUPTA (DEAD) BY LRS. AIR 1999 SC 1094

the only question involved is whether the factors laid down in Section 19(4) of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter referred to as "the Act') are to be read as cumulatively or alternatively.
High Court was right in holding that the factors which are mentioned in clauses (a) and (b) of sub-section (4) of Section 19 are to be taken into account as alternative factors.

LAL CHAND v. RADHA KRISHAN AIR 1977 SC 789

The fact that Section 11 of the Code of Civil Procedure cannot apply on its terms, the earlier proceedings before the competent authority not being a suit, is no answer to the extension of the principle underlying that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arise as between the same parties and thirdly, the issue now sought to be raised was decided finally by a competent quasi-judicial tribunal. The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. Were it permissible to bring suits of the present nature, the beneficial jurisdiction conferred on the competent authority by the Slum Clearance Act would become illusory and meaningless for, whether the competent authority grants or refuses permission to execute a decree for eviction, it would always be open to the landlord to enforce the ejectment decree by filing a substantive suit for possession. Verily, the respondent is executing the eviction decree by instalments, now under the garb of a suit. Apart from the fact that the suit is barred on account of principles analogous to res judicata, it is plainly in violation of the injunction contained in Section 19(1)(b) of the Slum Clearance Act, if regard is to be had to the substance and not to the form of the proceedings. 19.

C.R. ABROL v. ADMINISTRATOR UNDER THE SLUM AREAS (1970) R.C.J 899

The twin objects of the Act as spelt out in its long title is “the improvement and clearance of slum areas, and the protection of tenants in such areas from eviction.” While the rest of the Act is concerned with the improvement and clearance of the slum areas, Chapter VI thereof is concerned with the protection of tenants in slum areas from eviction.
The protection given by Section 19 is available only to tenants. The Act does not define either “landlord” or “tenant”. It is clear, therefore, that the relationship of landlord and tenant has to be determined according to the general law.
In our view, therefore, Section 19 applies only to proceedings between the landlord and tenant.
Section 19 has given jurisdiction to the Competent Authority to decide a certain question. Jurisdiction would be made largely infructuous if a mere denial of the relationship by the alleged tenants could put the Competent Authority out of action and unable to proceed further. Therefore the second course which is the only possible one in the circumstances, and which must be adopted by the Competent Authority, is to determine whether the relationship of landlord and tenant exists between the parties.