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Published : January 18, 2013 | Author : naiana
Category : Criminal law | Total Views : 11715 | Rating :

  
naiana
I am Naiana Jain, Student 3rd year, BA LLB(Hons.) from Institute of Law, Nirma University
 

Changes In The Laws Of Arrest

Meaning Of Arrest
Hals bury defines that- “Arrest consists of actual seizure or touching of person’s body with a view to his detention. The mere pronouncing of the word arrest is not an arrest unless the person sought to be arrested submits to the process and goes with the arresting officer. However, it may amount to an arrest, if in the circumstances of the case, they are calculated to bring to a person’s notice that he is under compulsion and thereafter submits to the compulsion.”

In State of Punjab vs. Ajaib Singh, arrest is defined as “Arrest means a physical restraint put on a person as a result of allegation of accusation that he has committed a crime or an offence of quasi criminal nature.”

If the person to be arrested submits to the custody of the police officer or other person making the arrest, the word or action, his arrest is complete. If, however, he does not so submit the person executing the arrest warrant can touch his body or confine him and this will complete the arrest.

The word arrest, when used in its ordinary and natural sense it means the apprehension or restraint or the deprivation of one’s personal liberty.

The question whether the person is under arrest or not depends on the legality of the arrest, on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with the criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of the criminal offence.

Need For Arrest
For securing attendance of an accused at trial- When a person is to be tried on the charge of some crime, his attendance at the time of trial becomes necessary. If his attendance is not likely to be ensured by issuing a notice or summons to him, probably his arrest and detention is the only effective method for securing his presence at the trial.
As preventive or precautionary measure- If there is imminent danger of the commission of a serious crime (conizable offence), arrest of the person intending to commit such a crime may become necessary as a prevent measure.
For obtaining correct name and address.- Where a person, on being asked by a police officer, refuses to give his name and address, then under certain circumstances, it would be proper on the part of police to arrest such a person with a view to ascertain his correct name and address.
For removing obstruction to police.- Whoever obstructs a police officer in the execution of his duty would be and should be liable to be arrested then and there by such a police officer. This is essential for effective discharge of police duties.
For retaking a person escaped from custody.- A person who has escaped from lawful custody should be arrested forthwith by the police.

Crpc Provisions And Their Changes
Section 41 to 60 of Chapter V deals with “Arrest of Persons. Broadly speaking, arrest may be classified into two categories namely, (i). Arrests under warrants issued by a court; and (ii). Arrests without warrants issued by a court. This Chapter has changed various times, by the legislature by changing the old law to new law known as Code of Criminal Procedure, 1973. This statute is further amended three times in 2005, 2008 and 2010.

Guidelines By Judiciary
The Supreme Court over the last more than two decades has been to circumscribe the vast discretionary power vested by law in Police by imposing several safeguards and to regulate it by laying down numerous guidelines and by subjecting the said power to several conditional ties. The effort throughout has been to prevent its abuse while leaving it free to discharge the functions entrusted to the Police. While it is not necessary to refer to all of them for the purpose of this working paper, it would be sufficient if we refer to a few of them (which indeed reaffirm and recapitulate the directions and guidelines contained in earlier decisions).

In Joginder Singh’s Case wherein the following rules have been formulated:-
(a) An arrested person being held in custody is entitled if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare, told, as far as practicable that he has been arrested and where he is being detained.

(b) The police officer shall inform the arrested person, where he is brought to the police station, of this right.

(c) An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.

The Guidelines of D.K. Basu case has been given by Supreme Court which are taken into consideration and to be strictly followed. It states that:

“We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention, till legal provisions are made in that behalf, as preventive measures:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

3. A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest ocr is detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Ilaqa Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11. A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

Incorporation Of Guidelines Of Supreme Court By Inserting Various Sections
SECTION 41- A, 41- B, 41- C, and 41- D
This clause inserts new Sections 41-A, 41-B, 41-C and 41-D. Section 41-A provides that the police officer may, in all cases where the arrest of person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he committed a cognizable offence to appear before him.

Section 41-A Notice of appearance before police officer-:
(1) The police officer may, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officers are of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent Court.

Section 41-B Procedure of Arrest and duties of officer making arrest-: Every police officer while making an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

Section 41-C Control room at districts-:
(1) The State Government shall establish a police control room—
(a) in every district; and
(b) at State level.

(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.

(3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.

Section 41-D Rights of arrested person to meet an advocate of his choice during interrogation

When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

SECTION 50-A
Section 50-A Obligation of person making arrest to inform about the arrest, etc., to a nominated person-:

(1) Every police officer or other person making any under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may as may be disclosed or nominated by the arrested person for the purpose of giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station.

(3) An entry of teh fact as to who has been informed of the arrest of such person shall be made in a book to be kept in teh police station insuch form as may be prescribed in this behalf by the State Government.

(4) It shall be the duty of teh magistrate before whom such arrested person is produced to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied within respect of such arrested person.

SECTION 53- A
Section 53-A Examination of person accused of rape by medical practitioner-:

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of this person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and”.
(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

SECTION 54
Section 54 Examination of arrested person by medical officer-:

(1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is made:

Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.

(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.

(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.

SECTION 54 A
Section 54-A. Identification of person arrested-:

“Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction may, on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.”

SECTION 55-A
Section 55-A Health and Safety of arrested person-:

It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.

SECTION 60-A
The insertion of new section 60-A with a view to prohibiting arrest except in accordance with the Code or any other law for the time being in force providing for arrest.

Section 60-A. Arrest to be made strictly according to the Code-:

No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest

Amendments In Various Sections
SECTION 41
Section 41: When Police may arrest without warrant. (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person:-

a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or

c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

f) who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or

g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

h) who, being a released convict, commits a breach of any rule made under subsection (5) of section 356; or

i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of person specified in section 109 or section 110.

Changes-:
1. Legislative changes-: This section is amalgamation of old Sections 54 and 55.

2. Cr.P.C. (Amendment) Act, 2008 (5 of 2009), Section 5(i), for clauses (a) and (b)-:

(a) who commits a cognizable offence in the presence of a police officer.

(b) Against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizance offence punishable with imprisonment for a term which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-

i. the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

ii. the police officer is satisfied that such arrest is necessary-

a) to prevent such person from committing any further offence; or

b) for proper investigation of the offence; or

c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment to more than seven years and the police officer has reason to believe on the basis of that information that such person has committed the said offence.

3. Cr.P.C. (Amendment) Act, 2008 (5 of 2009), Section 5 (ii), for sub-section (2)-: Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.

4. Cr.P.C. (Amendment) Act, 2010, Section 2-:

"Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

SECTION 46
Section 46 Arrest how made-:

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Changes-:
1. Legislative Change-: This section corresponds to Section 46 of the old Code with omission of sub-heading “resisting endeavour to arrest” according in sub-section (2) of the old Section 46.

2. Cr.P.C (Amendment) Act, 2008 (5 of 2009), Section 7-: Proviso to sub-section (1) of Section 46 was inserted as-:

“Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.”

3. Cr.P.C. (Amendment) Act, 2005 (25 of 2005), Section 6-: Sub-section (4) of Section 46 was inserted.

SECTION 53
Section 53 Examination of accused by medical practitioner at the request of the police officer-:

(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting, at the request of a police officer not below the rank of sub-inspector, and for- any person acting in good faith in his aid and -under his direction, to make such all examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

[Explanation. – In this section and in sections 53A and 54,-

(a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;

(b) “registered medical practitioner” means a medical practitioner who possess any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 and whose name has been entered in a State Medical Register.]

Changes-:
1. Legislative change-: This is a new section and has been added on the recommendation made by the Law Commission.

2. Substitution by Cr.P.C. (Amendment) Act, 2005, Section 8. Substitution Explanation read as under:

“Explanation.- In this section and in section 54, “ registered medical practitioner” means a medical practitioner who possess any recognized medical qualifications as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956, and whose name has been entered in a “State Medical Register.”

Conclusion
The amendments are on hold due to sustained opposition by some of the beneficiaries of arbitrary arrests, the lawyers. They consider this “anti-lawyer” as they will lose a huge revenue stream due to the cut back in bail applications, once the gazette notification is issued.

Regardless, please remember that the CrPC amendment to Section 41 is the codification of Joginder Kumar Vs State of UP and D.K Basu Guidelines. These judgments clearly states that an arrest is an exception and that an arrest should only be made in heinous crimes and that too only after an investigation and must be justified.

We the people of India were losing faith in system in view of corrupt judiciary and barbaric police. This CrPC Amenment is great revolution after RTI which would curb the fraud practice of pro-criminal law. I mean to say criminal elements are using this stringent law to entrap innocent.
~~~~~~~~~~~~~~~~~
Bibliography
1. AIR 1953 SC 10
2. N Tangiri v. State of UP, AIR 1961 All 542
3. Osan Beevi v. Joint Secretary Govt. of T.N., AIR 1984 NOC 103 (Mad)
4. Joginde Singh v. State of U.P., (1994) 4SCC 260
5. D.K. Basu v. State of West Bengal, AIR 1997 SC 610
6. Inserted by Cr.P.C.(Amendment) Act, 2008 (5 of 2009), Section 6
7. Inserted by Cr.P.C. (Amendment) Act, 2005 (25 of 2005), Section 7 (w.e.f. 23/06/2006)
8. Inserted by Cr.P.C (Amendment) Act, 2005 (25 of 2005), Section 9 (w.e.f. 23/06/2006)
9. Substituted by Cr.P.C (Amendment) Act, 2008 (5 of 2009), Section 8 (w.e.f. 31/12/2009)
10. Inserted by Cr. P.C. (Amendment) Act, 2005 (25 of 2005), Section 11
11. Inserted by Cr.P.C. (Amendment) Act, 2008 (5 of 2009), Section 9 (w.e.f. 31/12/2009)
12. Inserted by Cr.P.C. (Amendment) Act, 2008, Section 10.
13. W.e.f. 31/12/2009
14. Substituted by Cr.P.C. (Amendment) Act, 2005, Section 8
15. Kelkar R.V., Criminal Procedure, Ed. 4th, Eastern Book Company.
16. Sohani’s Code of Criminal Procedure, Ed. 20th, Vol. 1, Butterworths.
17. http://ipc498a.wordpress.com/2009/01/18/crpc-amendment-is-new-law-no-more-498a-arre... (Last Accessed on 12/01/2013)
18. http://www.lawcommissionofindia.nic.inreports177rptp2.pdf (Last Accessed on 12/01/2013)
19. http://www.humanrights.asia/resources/journals-magazines/article2/0102/some-recommen... (Last Accessed on 12/01/2013)
20. http://www.law-essays-uk.com/resources/sample-essays/criminology/code-of-criminal -pro... (Last Accessed on 12/01/2013)
21. http://terminatorak.wordpress.com/2011/09/26/sub-implementation-of-crpc-amendments-2..... (Last Accessd on 12/01/2013)
22. http://sanesociety.wordpress.com/2009/01/08/the-code-of-criminal-procedure (Last Accessed on 12/01/2013)

Authors contact info - articles The  author can be reached at: naiana190392@legalserviceindia.com




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