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Friday, 22 November 2019

Key differences between IPC and CrPC

As citizens of India, it is important to be well versed with the laws of our country, more so, when it comes to society at large. The criminal laws impact not just individuals but the entire society. The Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) are two of the most important legislation governing crimes in India. Besides these, the Indian Evidence Act, 1872 is the third legislation under criminal law in India.

The Indian Penal Code (IPC)

The Indian Penal Code is the official criminal code of India, which was drafted way back in 1860. It’s objective is to provide a general penal code for the country. It has 511 sections across 23 chapters, providing the list of crimes along with their definitions and punishments. The IPC has been amended several times and is now supplemented by other Acts. Its jurisdiction extends to the whole of India except the State of Jammu and Kashmir.

Here is the detailed overview of the important provisions of the CrPC –

Chapter 1 – Introduction (Section 1 – 5)
Chapter 2 – General Explanations (Section 6 – 52A)
Chapter 3 – Of punishments (Section 53 -75)
Chapter 4 – General Exceptions (Section 76 – 106)
Chapter 5 – Of Abetment (Section 107 – 120)
Chapter 5A – Of Criminal Conspiracy (Section 120A and 120B)
Chapter 6 – Of offenses against the State (Section 121 – 130)
Chapter 7 – Of offences relating to the army, navy and air force (Section 131 – 140)
Chapter 8 – Of offences against the public tranquillity (Section 141 – 160)
Chapter 9A – Of offences relating to elections (Section 171A – Section 171I)
Chapter 10 – Of contempts of the lawful authority of public servants (Section 172 – 190)
Chapter 11 – Of false evidence and offences against public justice (Section 191 – 229)
Chapter 12 – Of offences relating to coin and government stamps (Section 230 – 263A)
Chapter 13 – Of offences relating To weights and measures (Section 264 – 267)
Chapter 14 – Of Offences Affecting The Public Health, Safety, Convenience, Decency And Morals (Section 268 – 294A)
Chapter 15 – Of Offences Relating To Religion (Section 295 – 298)
Chapter 16 – Of Offences Affecting The Human Body (Section 299 – 377)
Chapter 17 – Of Offences Against Property (Section 378 – 462)
Chapter 18 – Of Offences Relating To Documents And To Property Marks (Section 463 – 489E)
Chapter 19 – Of The Criminal Breach Of Contracts Of Service (Section 490 – 492)
Chapter 20 – Of Offences Relating To Marriage (Section 493 – 498)
Chapter 20A – Of Cruelty By Husband Or Relatives Of Husband (Section 498A)
Chapter 21 – Of Defamation (Section 499 – 502)
Chapter 22 – Of Criminal Intimidation, Insult And Annoyance (Section 503 – 510)
Chapter 23 – Of Attempts To Commit Offences (Section 511)

The Code of Criminal Procedure (CrPC) –

The Code of Criminal Procedure is the main legislation on the procedure for the regulation of criminal law in India. The CrPC details the procedure for the investigation of the crime, presenting criminals before the court of law, collection of evidence, determination of guilt or innocence of the accused, imposition of penalties or punishments etc. It further lays down the hierarchy of the courts competent to try criminal lawsuits. In descending order it is the High Court at the top followed by Sessions Court, First Class Judicial Magistrate, Second Class Judicial Magistrate and Executive Magistrate. There is a limit affixed for sentences which these courts can pass against the accused. The Supreme Court is the apex court, and it has the ultimate power. The code was enacted in 1973. At present, the CrPC contains 484 sections cut across 37 chapters. It also has two schedules and 56 forms.

Here is the detailed overview of the important provisions of the CrPC –

Chapter 1 – Preliminary (Section 1 – 5)
Chapter 2 – Constitution of Criminal Courts and Offices (Section 6 – 25)
Chapter 3 – Power of Courts (Section 26 – 35)
Chapter 4 – Powers of Superior Officers of Police (Section 36 – 40)
Chapter 5 – Arrest of Persons (Section 41 – 60)
Chapter 6 – Processes to compel Appearance (Section 61 – 90)
Chapter 13 – Jurisdiction of the Criminal Courts in inquiries and trials (Section 177 – 189)
Chapter 14 – Conditions requisite for initiation of proceeding (Section 190 – 199)
Chapter 15 – Complaints to Magistrates (Section 200 – 203)
Chapter 16 – Commencement of proceedings before magistrates (Section 204 – 210)
Chapter 17 – The Charge (Section 211 – 224)
Chapter 18 – Trail before a court of session (Section 225 -237)
Chapter 19 – Trial of warrant-cases by magistrates (Section 238 – 250)
Chapter 20 – Trial of summons-cases by magistrates (Section 251 – 259)
Chapter 21 – Summary Trials (Section 260 – 265)
Chapter 22 – Attendance of persons confined or detained in prisons (Section 266 – 271)
Chapter 23 – Evidence in inquiries and trials (Section 272 – 299)
Chapter 24 – General provisions as to inquiries and trials (Section 300 – 327)
Chapter 25 – Provisions as to accused persons of unsound mind (Section 328 – 339)
Chapter 26 – Provisions as to offences affecting the administration of justice ( Section 340 – 352)
Chapter 27 – The Judgement (Section 353 – 365)
Chapter 28 – Submission of death sentences for confirmation (Section 366 – 371)
Chapter 29 – Appeals (Section 372 – 394)
Chapter 30 – Reference and Revision (Section 395 – 405)
Chapter 31 – Transfer of criminal cases (Section 406 – 412)
Chapter 32 – Execution, Suspension, Remission and Commutation of Sentences (Section 413 – 435)
Chapter 33 – Provisions as to bail and bonds (Section 436 – 450)
Chapter 34 – Disposal of Property (Section 451 – 459)
Chapter 35 – Irregular Proceedings (Section 460 – 466)
Chapter 36 – Limitation for taking cognizance of certain offences (Section 467 – 473)
Chapter 37 – Miscellaneous (Section 474 – 484)

Major Difference between IPC and CrPC –

The IPC provides a substantive list of all crimes and lays down the punishment for each one of them. For example, Section 378 defines Theft as “Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.” The punishment for the offence of theft is spelt out under Section 379 in the following words, “Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” On the other hand, CrPC is a procedural law, and it lays down the ways or methods to be followed in a criminal case. So if a person is charged with ‘theft’, it is the CrPC which provides further details as to how the investigation would be carried out, how evidence will be collected etc. So CrPC concerns itself with the procedural aspect of the crime.
The primary purpose of IPC is to provide a general penal code for India which prescribes punishments to wrong-doers. The primary goal of CrPC is to consolidate the criminal law in the country.
The Indian Penal Code is a substantive law whereas, the Code of Criminal Procedure is procedural law.

CONCLUSION –

The Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act are the three primary legislation governing criminal law in India. They continue to play an important role in the court of law for the effective administration of justice. Besides, there are other legislations such as the Prohibition of Child Trafficking Act, the Juvenile Justice Act, which supplement the three main legislation. Both the IPC and the CrPC are pan-India in nature and extend to the whole of the State. Jammu and Kashmir are beyond their jurisdiction. IPC is the only substantive law here, and the Indian Evidence Act and the CrPC are the procedural laws.

Monday, 23 September 2019

10 Doubts About Private Limited Company Need To Know About Companies Act 2013 You Should Clarify

Introduction To Companies Act 2013

The term ‘company’ implies an association of a number of persons for some common object or objects. In fact, the purposes for which people may wish to associate are multifarious. But companies act 2013 where the term ‘company’ normally refers to the associations for economic purpose i.e., to carry on a business.

In legal terminology, a company means a company incorporated or registered under ‘the Company Act, 2013’ or under any of the other Companies legislation.[i] In its legal form, the law creates an artificial entity i.e. a company. It has a separate identity independent of its members.
Hence, This artificial legal person like any other ordinary human being:

has many rights and
incurs many liabilities.

Basically, Companies are of various types such as:

One Person Company (OPC)
Private Limited Company
Public Limited Company[ii]
Company Without Share Capital (Charitable Company).[iii]

Aforesaid first three types of company are private in its nature. Means they are a private company while the ‘public limited company’ is not a private company.

A company is registered initially as a private company may be converted into a public company. Such conversion may be by choice, or by default or by operation of law.[iv]

However, the conversion of a company does not affect the legal identity of the company.

Meaning of Private Limited Company

As per Section 2(68) of the Companies Act, 2013, “private company” means a company having a minimum paid-up share capital of one lakh rupees or such higher paid-up share capital as may be prescribed and by its article

(a) restricts the right to transfer its share;

(b) limits the number of its members to two hundred; and

However, After the 2015 amendment of Companies Act, the restriction of minimum capital requirement is waived off for all types of companies.

Let us now discuss the implications of each of these restrictions on the company i.e Private Limited Company.

Restriction on the right of members to transfer their shares

The articles of association(AoA) of a private company must specifically have a provision restricting the right of the members to transfer their shares. It means that the shares of a private company are not as freely transferable as those of the public companies. But it does not mean that the shares of a private company cannot be transferred at all. Further, the AoA generally provide that whenever a member of a private company desires to transfer his shares, he must offer them to the existing members at a price to be determined by the directors.

Restriction on the maximum number of members

A private limited company is also required to limit the maximum number of its members to two hundred. It means that the number of members in a private company can be between two and two hundred.

While counting the members, the following are not to be included:
i) persons who are in the employment of the company and by virtue of their employees happen to be members of the company, and
ii) persons, who, having been in the employment of the company, were members of the company while in that employment and have continued to be members after the employment ceased.

Where two or more persons hold one or more shares of the company jointly, they shall be treated as a single member for the purpose of counting the number.

Prohibition on the invitation to the public

This restriction implies that a private limited company must not issue a prospectus or any other public invitation, directly or indirectly to the general public so as to invite them to invest in its shares or debentures.

The public may include any section of the public whether selected as members or the debenture holders of the company or as customers of the person issuing the prospectus, or in any other manner.

In simple words, it means that a private company cannot issue an invitation to the public. It has to make its own private arrangement to raise its capital.

[i] S. 2(20) of Companies Act, 2013.

[ii] S. 3 of Companies Act, 2013.

[iii] S. 8(1) & (2) of Companies Act, 2013.

[iv] S. 14(1) of Companies Act, 2013.

[v] S. 4(1)(a) of Companies Act, 2013.

5 Things You Needs To Know About 2018 Amendment To The Companies Act, 2013 These Companies Act Is Effective From 7th May 2018

These companies amendment act is effective from 7^th May 2018.

Changes in section 2 (Definition) under Companies amendment Act

Associate Company (S. 2(6)): “significant influence” shall now be mean control of at least 20 percent of the Total voting powers (earlier it was total share capital) or control of or participation in business decisions under an agreement. Joint Venture: Earlier joint venture was not defined. Now Joint venture is defined as a joint arrangement whereby the parties that have joint control of the arrangement have rights to the net assets of the arrangement;
Subsidiary Company (S. 2(87)): the exercise or control of more than one-half of the total voting power (earlier share capital).

Insertion of Section 3 in Companies amendment Act –A: If at any time the number of members in a company is reduced below the requisite level (7 for a public company and 2 for private company) and the company carries on business for more than six months, then after six months, each member shall be severally liable for the whole debt of the company contracted during that time.
Section 12 (Registered office of the Company) in the Companies Amendment Act: Earlier the time limit to have a registered office was before the fifteenth day of its incorporation. Now the time limit is within thirty days of its incorporation.
Prospectus (Section 26) in Companies amendment Act: SEBI in consultation with Central Government is empowered to prescribe the contents of the prospectus. Clause a, b, c is omitted (Name, Address of the registered office, opening and closing of the issues, capital structure and auditor’s report on profits/losses need not be provided)
Private Placement (Section 42) under Companies amendment Act:
A company can make a private placement of securities.
PP can be made only to a selected group of people who have been identified by the board, and such person shall not be more than 50.
Section 54 (Sweat Equity Shares) under the Companies Amendment Act: Now the companies are permitted to issue sweat equity shares within the period of one year from the commencement of business.
Section 77 and Section 78 (registration of charges): The amendment does not require registration of such charges as may be prescribed in consultation with the RBI.
Section 90 (Significant Beneficial owner of the company): the person who is the significant beneficial owner has to give a declaration to the company. The person alone or together, or through person or persons have a beneficial interest of not less than 25 % shall be considered of having a beneficial interest in the company. This provision will be applicable to all the companies and the company has to register them as a significant beneficial owner.
Section 92 (Annual Returns) under Companies amendment Act: The central Government is now empowered to prescribe a form of Annual Return. It is now mandatory for the company to provide for the entire annual report on the website of the company. Section 93 omitted so now the registrar need not be informed when the stake of promoter’s change.
Section 96 (Annual General Meeting): For unlisted Companies, the Annual General Meeting can be held anywhere in India with the consent of all members either in written or electronic mode in advance.
Section 100 (EGM): The wholly-owned subsidiary of a company incorporated outside India has been allowed to hold its extraordinary general meeting outside India. Such Companies or subsidiaries can hold EGM at any place where they want in the world.
Section 101: Now a meeting can be commenced with a shorter notice period if 95% of voting power consents to such notice.
Section 123 (Declaration of Dividend): The BoD may declare interim dividend during any financial year at any time during the period from closure of financial year till holding of any of annual general meeting out from surplus in profit & loss account or else out from profits of fiscal or the financial year for which such dividend (interim) is required to be stated or out from the profits generated in such financial year until quarter prior the date of declaration of the dividend.

Wednesday, 18 September 2019

Most Effective Ways To Overcome Rectification Deed - All You Need To Know

What is Deed of Rectification

Amendment or Confirmation deeds are otherwise called Rectification deeds. They are entered between two parties to redress any blunders made in a past deed. These blunders may incorporate a typing mistake, an incorrectly spelled name, a blunder in the property depiction, or some other mistake in the execution of the reports. These oversights can be later redressed through a Rectification or Confirmation deed.

Following are the conditions under which rectification deeds are made

(a) The mistake must be real.

(b) It must be coincidental, not deliberate.

Section 17 of the Indian Registration Act, 1908—-

The Indian Registration Act, 1908 governs Rectification deeds. As indicated by Section 17 of the Act, any deed affirming any interest for an immovable property should be enlisted. The affirmation might be given either by passive consent, by impediment, or by deeds. Rectification deeds attract stamp duty. If the main document is registered or to be registered, then it mandatory for the corresponding confirmation deed to also get registered.

The content of a Deed of Rectification

a) Name and address of the parties involved.

b) Details of the original deed and description of the rectification to be made.

c) Must have clear and concise in language to avoid future complications.

d) Should not alter the scope of the original document or violate any regulations.

e) Must not deprive the party of their rights.

The procedure involved in Rectification deeds

The parties must first mutually agree to the deed and then proceed to a duly executed document.

The parties are required to pay rectification deed registration charges and stamp duty as per the laws of the State. Charges are Rs/-100 for each.

The deed then has to go to the sub-registrar’s office where the original deed has been duly registered.

If by any chance there is an error of any kind in the rectification deed, a supplementary rectification deed shall be executed by paying stamp duty and registration charges, provided that the error must be genuine, inadvertent and not intentional in nature. The parties must agree to the same thereof.

A rectification deed can rectify only factual errors and not those which involve errors of law such as,

a) Deficient stamp duty
b) A jurisdictional error of Sub-Registry office
c) The basic character of the transaction e.g. Sale transaction cannot be corrected as Gift
d) It is meant to rectify defects in the original deed NOT to change the nature of the transaction OR Intention of the parties involved

In case the parties involved do not agree to the said rectification or amendment of the documents executed, the aggrieved party may file a suit under Section 26 of the Specific Relief Act, 1963. The court, by virtue of its power, can direct the rectification of an instrument if the deed does not express any real intention of the parties.

Format

DEED OF RECTIFICATION

This DEED OF RECTIFICATION is executed at this the day 2004 between

s/o residing at

hereinafter referred to the RECTIFIER/VENDOR which term includes its successors and assigns of the ONE PART;

AND

s/o residing at

hereinafter referred to as PURCHASER which term includes his heirs, executors, administrators, representatives and assigns of the OTHER PART

WHEREAS the property more fully described in the Schedule hereunder was sold by the Rectifier/Vendor in favour of the purchaser herein in and by sale deed dated and registered as Document No. of Book1 volume filed at pages to on the file of the Sub Registrar of hereinafter referred as the Principal Deed.

WHEREAS in the Principal Deed dated in line of page No. and inline

of page the Survey number of the property was wrongly typed as instead of .

WHEREAS this typographical error has come to the knowledge of the above said Purchaser and requested the Rectifier/Vendor to rectify the same.

NOW, THIS DEED OF RECTIFICATION WITNESSETH AS FOLLOWS:

That is the Principal Deed dated in line of page No. and in line of page No. the Survey number of the property conveyed is wrongly typed as is rectified as

by this Deed of Rectification.

That as rectified as aforesaid, the Principal sale Deed shall remain in full force and effect.

That no consideration has been received by the RECTIFIER/VENDOR for executing this Deed of Rectification.

SCHEDULE OF PROPERTY

(As in the Principal Deed)

SCHEDULE OF PROPERTY

(Rectified by this deed of Rectification)

Present Market Value of the Property is Rs.

In Witness whereof the RECTIFIER/VENDOR and the PURCHASER have set their hands on the day and month year first above written in the presence of

WITNESS RECTIFIER/VENDOR

PURCHASER

No Time Limit—-

There is no time bar for the execution of a rectification or correction deed. At any point in time, when a mistake is discovered, a rectification deed may be executed.

Hence, these deeds are a kind of correction templates which give ample room for the parties to understand and change any error, be it a wrongly spelled name or an error in typing, which might have occurred accidentally.

Original blog is published at Legodesk for all your legal quires you could get instant support and help online.

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Tuesday, 17 September 2019

10 Small But Important Things To Observe In Attested Documents : Procedure In India

If in the case of self-attested copy, you should sign the photocopy.”

Attest is a legal term that exemplifies to the fact that a person swears word or asseverates the fact of something. Attestation may be contrived by demeanor witness to the decapitation of a document by signing his/her signature on the document. Some attestations swear to the veracity of the content of the document and others swear to the honesty of the document signatures.

On the other hand, attestation is called Apostille when it is required on document destined for use abroad. All states require slightly two witnesses to demonstrate that a velleity was signed and self-confessed to be decisive.

There is repudiation in some states for a hankering written in one’s own handwriting. Attest is a legal term that exemplifies to the act of a person’s swear word to or asseverates the truth of something.

Attestation may be made by demeanor witness to the decapitation of a document by signing one’s signature on the document. Some attestations swear to the veracity of the content of the document and others swear to the honesty of the document signatures.

All states require slightly two witnesses to demonstrate that a velleity was signed and self-confessed to be decisive. There is repudiation in some states for a hankering written in one’s own handwriting.

Attest may also refer to the giving of attestation in court by demeanor witness or asseverate something to be true, authentic, or correct. For example, in order to view convinced sensitive information, a person can be required to sign a form verifying to the fact that the person fathom the purpose of dropping this information they know that it is unlawful to use the information obtained from the database to execute a crime, discriminate against or hound any subject person of the records. When your eyewitness a document, you are verifying that, affirming and certifying that the person, whom you set surveillance on, sign the document. You are only accepting that you have seen it being signed by the person whose name is on the signature line.
Attestation is enforced if eyewitness must be present at the inscribing of a legal document. The eyewitness then corroborates that they noticed the legal signing of the document by laying their own signatures on the document.
The signing of the drive more often than a required bystander to authenticate, as every state needs at least two splurges to attest or the annals. The signal of the power of advocate and indoctrinated types of pledge also generally requires the observer to attest to them.

So thereby, the witness who verify served no idea other than to verify they supported all other sections harbingering their names to the document.

A verifying official should also attest to the legal exactness and credibility of a document by tracing his/her name on it. This is mainly done when copies of the document that needs eyewitness signs must be made.

Documentation Clause Law & Legal Definition

Attestation Clause refers to a plan at the end of a gizmo where the bystander certifies that the gizmo has been carried out before them, and the way of the execution of the same.
It states that the gizmo has been finished in the aspect prescribed by law in the existence of the witness who places his/her signature in the nominated space. The attestation invigorates the suspicion that all the legal requirements for beheading the intention have been contented.
When there is an attestation clause to a velleity, endorsed by witnesses, the premise, though meager, is that the intention is in an unadorned state and it needs to be removed by some extraneous situation.
An attestation clause is intermittently erect in legal documents that must be endorsed if they are to be credible, for example, a desire or an accomplishment.
The usual attestation clause to a will is: “Endorsed, Fixed, Bring Out and stated by the above-named CD and for his last desire and testimony in the existence of us, who includes subscribed our names as the spectator peril, in the existence of the said divisor, and of each other.