Saturday 14 November 2020

Questions and answers on law Part 14

Q.1:-Whether a special court under Pocso Act can grant Anticipatory bail to an accused charged with section 8 of pocso act?

Ans:-Section 8 of POCSO Act Whoever commits sexual assault shall be punished with the imprisonment of either description for a term which shall not less than three years but which may extend to five years, and shall also be liable to fine.

In my opinion, as this offence is punishable with imprisonment for more than three years, it is non bailable and application for anticipatory bail is maintainable. Caselaw on the point is 

With Section 8 Of The Pocso Act vs In Re: Azad Paswan @ Ajad Pasoyan & ... on 15 January, 2020 

Any other view is welcomed

  Q.2:-Whether taluka legal aid committee can entertain a pre-litigation application in respect of subject matter of which is not within the jurisdiction of civil judge junior division and judicial magistrate first class?

Ans: In my opinion, the TLA committee can entertain a pre-litigation application of subject matter which is not within the jurisdiction of CJJD because in pre-litigation dispute is settled by parties. There is no question of the passing of the decree by CJJD. If an award is passed by CJJD in that proceeding, It will be enforceable as per S 21 of The Legal Services Authorities Act,1987.
Any other view on this point is welcomed.

Q.3:- Single recording in marathi as per Maharashtra criminal manual amendment 2019

Ans:- Criminal Manual, Chapter VI, Para 18(1) :

Subject to the statutory alternatives in the matter of recording evidence as contained in Section 275 and 276 of the Code of Criminal Procedure, 1973, as far as possible, the Sessions Judges and Judicial Magistrates should record memorandum of evidence in English in all cases and proceedings.

This para was deleted by following amendment in criminal manual.

Q.4:- Whether appellate court can suspend sentence in economic offence if accused is convicted for five years?

Answer :In my opinion, the Appellate Court can suspend the sentence even in the cases where conviction is qua economic offences. Economic Offence cannot be a ground for rejection of such application for suspension of sentence. At the most, a condition to deposit a lump sum can be imposed in such cases.

Any other view is welcomed.

Q. 5:- Whether a condition in a will that "if a party engage in inter caste marriage would be disqualified" a valid condition?

Ans:-Section 127 in The Indian Succession Act, 1925

127. Bequest upon illegal or immoral condition.:- A bequest upon a condition, the fulfilment of which would be contrary to law or to morality is void.

When inter caste marriage are permissible under law. This condition in the will is illegal and against law. Hence this condition is void.

Q.6:-  Whether appellate court can exercise power vested under Order 39 of C.P.C in regular appeal?
Ans: Scope of section 107(2) Code of Civil Procedure is wide enough to confer power to pass such order.
Sub-Section (2) of Section 107 of CPC provides that appellate court shall have same power and shall perform as may be the same are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
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