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My Law Note Book

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About “My Law Note Book”

My Law Notebook is an initiative for sharing ideas, knowledge, and legal updates for young aspirants of law.

Our goal is to be precise and provide to-the-point content for clearing basic fundamentals of law for clear understanding of various subjects like: Evidence Law, criminal Law, Civil Law, Taxation Law, Contract Law, etc.

We also provide services to companies, organisations and firm in both legal as well as taxation field.

Hope you guys will find this blog useful.

My Law Note Book

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“Stages of criminal cases: Investigation, Inquiry, and trial”

Criminal cases are normally categorized in 3 stages, as:

1. Investigation: Here “investigation” is used in its ordinary dictionary sense which includes collection of evidences, ascertainment of facts, search for relevant data , etc.

Normally, Investigation starts just after registration of FIR and ends with filling of police report, but the stage of registration of FIR is not included in investigation stage.

Investigation is conducted by police officer or by any person (other than magistrate). Magistrate can only direct an investigation but cannot intervene in this.

2. Inquiry: Inquiry is a stage where court applies its judicial mind and it involves taking of cognizance of the case as this involves application of judicial mind.

Inquiry is specifically conducted by court/magistrate or on their instance and not by police officer himself.

Inquiry is different from trial as trial presupposes the idea of offence but Inquiry doesn’t presuppose the offence and it may be related to other proceeding such as security proceeding.

The stage of Inquiry ends just before framing of charge.

3. Trial: Though trial is not defined anywhere but the definition of inquiry u/s 2(g) of CrPC that inquiry and trial stages are mutually exclusive and they never overlap each other.

Trial stage starts the moment charge is framed and ends with judgement.

At this stage court takes the evidence, call the witnesses, evaluate and finally decides the case.

All three staged which are mentioned above are not necessarily followed in every case like investigation stage is skipped in some kind of cases. But there cannot be only trial stage as for that cognizance has to be taken and cognizance is taken at the inquiry stage.

“Inherent power of high court u/s 482 of crpc”

Inherent power of High court is-

  • to give effect to any order under the code of criminal procedure,
  • To prevent abuse of the process of any court, or
  • To secure ends of justice.

This provision is not introducing any powers rather it is just acknowledging the powers of high court which it has per-se inherent in it, which can be traced from the following maxims –

  • Ex debito justice” – In the interest of justice,
  • “Non liquet” – in the absence of law,
  • “Qualdo lex aliquot ali sui concedit comidere bidthe et id sine quo res ipse itse non protest” – where law gives something to any person it will also give him without which that something cannot be achieved.

So, section 482 is just an declaratory provision.

Here it is specifically given to high courts only and not to subordinate courts because in criminal matters right to life & personal liberty is involved which require more exprience. Though magistrates have ancillary and incidental powers under this code but not inherent powers u/s 482 crpc.

Inherent powers are not in conflict with the provisions of the code but it is here to protect ends of justice and this is why the word ‘nothing’ is used instead of ‘notwithstanding’ in the provision.

“Essence of criminal law is to maintain the balance between societal interest and individual interest”

The code of Criminal Procedure,1973 is procedural law which lays down the procedure to be followed by the criminal courts of a country in order to administer the substantive law.

This act came into force from 1st April, 1974.

A crime is considered a wrong against the society and societal interest lies in punishing the culprit via curtailing his right to life & liberty (which is guaranteed under article-21 of the Constitution of India) so that society can live peacefully without any fear of criminal act by accused person.

But at the same time individual (accused) interest has to be taken care of because the accused has to be presumed to be innocent until the guilt is proved and law doesn’t allow to punish any innocent without fair trial. In order to safeguard the interest of individual, principle of natural justice has to be followed which consist of reasonableness, fairness, and non-arbitrariness, etc.

So, the balance is finely maintained between societal and individual interest by providing one set of proceedings against the accused and another set of proceeding for the safeguard of accused.

“Members may come and members may go but the company can go on forever”

Characteristics of Company

Perpetual succession: – An incorporated company never dies. Perpetual succession therefore, means that the membership of a company may keep changing from time to time but doesn’t affect its continuity. In spite of the total change in the membership the company will be the same entity with the same privileged and immunities, estates and possession. Even the death or insolvency of all the members doesn’t affect the corporate existence of the company. Company take birth in the eyes of law by registration and end by winding up.

“Members may come and members may go but the company can go on forever”

“The members’ liability becomes limited or restricted to the nominal value of the shares taken by them or the amount guaranteed by them”

Characteristics of Company

Limited Liability: – The privilege of limited liability for business debts is one of the principal advantages of doing business under the corporate form of organisation. Members, even as a whole, are neither the owner of the company’s undertaking nor liable for its debts. The members’ liability becomes limited or restricted to the nominal value of the shares taken by them or the amount guaranteed by them. No one is bound to contribute anything more than the nominal value of the shares held by him.

A company can be limited by any of the following three forms:-

  • Limited by shares: in this liability of the members is up to the unpaid nominal value of the share held by them. If his shares are fully paid up, he has nothing more to pay.
  • Limited by guarantee: in this liability of the members is limited to such an amount as the member may undertake, by the memorandum of association of the company, to contribute to the assets of the company, to contribute to the asset of the company. The liabilities of the members to pay their guaranteed amount arise only when the company goes into liquidation and not when it is going concern.
  • Company limited by guarantee can be of two types:-
  1. With share capital: In this twofold liability of members arise firstly when the amount which remain unpaid on the shares whenever call upon to pay and secondly to pay the amount payable under the guarantee when company goes into liquidation.
  2. Without share capital: In this liability of members arise only to pay the amount payable under the guarantee when company goes into liquidation.
  • Unlimited: There is no limit on the liability of the member that means liability could extend to the entire personal property of the members to meet the debts and obligations of the company. But this amount are not liable to the creditors directly but it is towards the company so long it is a going concern, unlike in the case of partners of a firm; and in the event of its winding up, only the liquidator can ask the members to contribute to the assets of the company.

“The members’ liability becomes limited or restricted to the nominal value of the shares taken by them or the amount guaranteed by them”

“A company is an Artificial Person having a personality which is distinct from the members constituting it”

Characteristics of Company

 

Separate Legal Entity / Independent Corporate Existence: –

Unlike any other form of business, company has its own existence in the eyes of law which is distinct from the members who compose it. In any other form of business there is no independent existence in the eyes of law from the person who compose it.

Law consider company an artificial person which has a personality distinct from the person constituting it. No one can say that he is the owner of the company. The company carries the business; its liabilities are the companies’ liability.

Case Law: – Salomon v Salomon & co. Ltd.

“A company is an Artificial Person having a personality which is distinct from the members constituting it”

Characteristics of Company

Characteristics of Company:-

  1. Separate Legal Entity
  2. Limited Liability
  3. Perpetual Succession
  4. Separate Property
  5. Transferability of Shares
  6. Common Seal
  7. Limitation of Action
  8. Contractual Rights
  9. Capacity to sue and be sued
  10. Separate management
  11. Voluntarily Association for Profit
  12. Termination of existence

Definition of company

Definition of company:-

[Relevant section- 2(20) of The Companies Act, 2013]

According to sec-2(20) of The Companies Act, 2013 “Company means a company incorporated under The Companies Act, 2013 or under any of the previous laws related to companies.”

(Example of previous companies law – the companies act, 1956)

Meaning of “company”

Meaning of company:-

The word “company” is derived from the Latin words (com = with or together; and panis = bread or meal).

Company = an association of persons who took their meals together.

An association of persons may be:-

  • Incorporated association: – A single person distinct from individual(s) constituting it. The incorporated association owns its existence by
    • Special Act of parliament: – for e.g. – Life Insurance Corporation of India, damodar valley corporation.
    • Companies Act: – for e.g. – Tata Iron Steel Co. Ltd., Hindustan lever Ltd.
  • Unincorporated association: – Mere collection or aggregation of individuals. For e.g.- trading partnership which is governed by partnership Act.

 

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