Moot Court Pre Trial Preparation and Trial Proceedings

A Report Submitted to Dibrugarh University As a Part of the Practical Paper (0905) (MOOT COURT PRE-TRIAL PREPARATION AND TRIAL PROCEEDINGS)

In Partial Fulfillment of the Ninth Semester, B.A.LL.B Course, 2011

By

TEZOSWIE DOWARAH 9th Semester Examination Roll No. D.U. 58/06 Registration No. 00829 of 2006-2007 of Dibrugarh University

Centre for Juridical Studies Dibrugarh University

ACKNOWLEDGEMENT The Bar Council of India plays important role in the development of legal education in India. For this purpose it has been conferred with various powers. Section 7 of the Advocates Act provides that the functions of the Bar Council of India shall be to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils and to recognize Universities whose degree in law shall be a qualification for enrollment as an advocate and for that purpose, to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf. It is a matter of pleasure that the Bar Council of India has taken the legal education very seriously and has given due emphasis on the practical training. In the new syllabus for the LL.B. degree four practical training papers, have been introduced with the object to provide the law students the professional knowledge. Moot Court, Pre-trial preparations and participation in the trial proceedings is one of them. As a part of B.A.LL.B., Course, I had the opportunity to work out on the practical paper

(0905)

‘MOOT

COURT

PRE-TRIAL

PREPARATION

AND

TRIAL

PROCEEDINGS’. While I set the work in operation, first, I had to take help of Mr. Baharul Islam, Lecturer, Centre for Juridical Studies, Dibrugarh University. I am very grateful to my teacher Baharul Islam for his kind guidance and supervision on my activity. I am also grateful to Deepom Baruah Lecturer i/c, Lecturer Dinamoni Thakuria, Lecturer Diptimoni Baruah, Lecturer Ganga Upadhyay Centre for Juridical Studies, Dibrugarh University, for their valuable suggestions. Moreover, I am also grateful to all the teaching personnel who very frequently offered their suggestions to carry out the work. I am also thankful to all those nonteaching staff of the Centre for Juridical Studies, Dibrugarh University, for their encouraging words and keen interest and affection shown to me from the beginning of the work. I cannot keep apart expressing my thanks to Mrs. Manashi Borah, Advocate Dibrugarh Bar Association, Dibrugarh for her kind guidance in observation of ‘Procedure and Practice of Trial Proceedings (Civil and Criminal)’ and Observation of ‘Interview Techniques and Pre- Trial Preparation’. I also extend my thanks to Dibrugarh District & Session Judges’ Court, Dibrugarh Legal Service Authority, Dibrugarh District Bar Association.

I

I must convey my gratitude to my parents for their encouragement and assistance in completion of the work. I also express my thanks to the other members of my family and my friends who helped me in each and every step towards the completion of the work.

Tezoswie Dowarah

II

CONTENTS Page

ACKNOWLEDGEMENT

I.

REPORT

01-82

MOOT COURT

03-66

1.1

MOOT COURT NO. 1 (CIVIL MATTER)

03

1.2

MOOT COURT NO. 2 (PUBLIC INTEREST LITIGATION)

21

1.3

MOOT COURT NO. 3 (CRIMINAL MATTER)

48

II

III

I

CASE OBSERVATION

67-72

2.1

CRIMINAL

67

2.2

CIVIL

70

INTERVIEW TECHNIQUES AND PRETRIAL PREPARATION

73-82

3.1

INTRODUCTION

73

3.2

OBSERVATIONS

77

3.3

COMMENTS

82

REPORT Development of legal education system is necessary for development of legal works, policies, system etc. By this intention the legislature enacted certain legislation through such statutes. According to the Section 7 of the Advocates Act provides that the function of the Bar Council of India shall be to promote the legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils and to recognize Universities whose degree in law shall be a qualification for enrollment as an advocate and for that purpose, to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf. In the new syllabus for the LL.B. degree four practical training papers, have been introduced with the object to provide the law students the professional knowledge. Moot Court, Pre-trial preparations and participation in the trial proceedings is one of them. This written submission contains the reports of Moot Court, observation of the Procedure and Practice of Trail Proceedings (Civil and Criminal), observation Interview sessions of clients by an advocate and preparation of documents and court papers by the advocate and procedure for filing of the suit/complaint/petition etc. To organize artificial court for the law students is called moot court. It is a kind of a debate on the specific case decided by the court or specific subject or issued or an imaginary case prepared for this purpose. There are three moot courts organized in the department. The case of first moot court is civil in nature. It is an appeal case of divorce petition in the High Court. In the second moot court, a PIL (Public Interest Litigation) was given. Which is related which the Act of Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 and Medical Termination of Pregnancy Act, 1971. A Criminal Case filed under Section 302 and 34 of the Indian Penal Code, 1860 was given in the third moot court. Participation in the moot court helps us to develop our legal and presentation skill, preparation of arguments. It also enables us to learn the art of persuasion, gives us confidence to speak before the people. We also observe the procedure and practice of trial proceedings (criminal and civil) in the Dibrugarh District and Session Judges’ Court by the guidance of an advocate of Dibrugarh 1|Page

District Bar Association. In the observation of civil case, an appeal suit in the Hon’ble Court of Civil Judge (Junior Division) I, Dibrugarh, against a previous decree of, eviction of tenant under the Assam Urban Areas Rent Control Act, 1972 was observed in where examination of witnesses, arguments presented by advocate and the judgment given by the court were observed and noted by observation of the said suit in various times and different dates. A criminal case related with the Section 324 of Indian Penal Code, 1860 also observed in where the examination of witness, arguments of the advocate appearing on behalf of the accused person and the court judgment were observed in different dates. This observation works help us to know about the practice and procedure in the court. Interviewing the clients is an art and only the experience will enable a person to understand it fully. Interview sessions with the clients whose cases are related with civil and criminal matters are also observed. A client who claims maintenance and a person (client) who wants to file a suit for eviction of tenant from his house were observed. The preparation of documents and court papers by the advocate and the procedure for filing of the suit/complaint/petition etc. were also observed at the lawyers office and in the court. It enables us how can a case is prepared before the trial is started. It is called as Pre-Trial. By preparation of this report, it can be this practical paper, and practical woks help us to develop our legal skills and education and also give us knowledge about the procedure, practice in the court, rules of the professional ethics as prescribed by Advocate Act and the rules of Bar Council of India. It helps us to understand about the interview techniques as well as the pre trial process.

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MOOT COURT

MOOT COURT NO. 01 MEMORENDUM ON BEHALF OF RESPONDENT MOOT COURT NO. 01 A Civil Case under the Section 13 of the Hindu Marriage Act, 1955 and MERORIAL ON BEHALH OF RESPONDENT Section 19 of the Family Court Act, 1984 Civil Case under the Section 13 of the Hindu Marriage Act, 1955 and Section 19 of the Family Court Act, 1984

Submitted to Baharul Islam

Tezoswie Dowarah

Submitted to

Counsel Appearing on behalf of the Respondent

Lecturer Baharul Islam

Tezoswie Dowarah

Centre LecturerFor Juridical Studies

Advocate

Appearing on behalf of the Respondent

Dibrugarh University Centre For Juridical Studies Dibrugarh University

3|Page

IN THE HON’BLE GAUHATI HIGH COURT OF JUDICATURE, GUWAHATI Dated: 29th November, 2010 CIVIL SUIT NO. 84 of 2010

SRIMATI RUKMINI CHOUDHURY BORAH D/O. Late Ramchandra Choudhury, age: 26 years Dispur, Guwahati, District: Kamrup, Assam

…………….. Appellant

Versus SRI ABHIJEET BORAH S/O Sri Nilakanta Borah, age: 30 years Dispur, Guwahati, District Kamrup, Assam.

………..

Respondent

Appeal filed in the Gauhati High Court, Guwahati under the Section 19 of Family Courts Act, 1984 and Section 96 of the Civil Procedure Code, 1908 before Hon‟ble Gauhati High Court, Guwahati

(Tezoswie Dowarah) Advocate Appearing on behalf of the Respondent 4|Page

TABLE OF CONTENTS

LIST OF ABBREVIATIONS INDEX OF AUTHORITIES i.

Books

ii.

Dictionaries

iii.

Manuals and Digests

STATUTES CASE-LAWS STATEMENT OF THE JURISDICTION OF THE COURT STATEMENT OF FACTS ON BEHALF OF THE RESPONDENT STATEMENT OF PLEADINGS PLEADINGS ON BEHALF OF THE RESPONDENT PRAYER FOR RELIEF EVIDENCE OF WITNESSES ON AFFIDAVIT

5|Page

LIST OF ABBREVIATIONS

A.I.R.

All India Reporter

Bom.

Bombay

C.A.

Court of Appeal

Ori.

Orissa

USA

United States of America

H.C.

High Court

p.

Page

edn.

Edition

S.C.

Supreme Court

S.C.C.

Supreme Court Cases

S.C.R.

Supreme Court Review

Vs.

Versus

6|Page

INDEX OF AUTORITIES

BOOKS

 Agarwala R. K., Hindu Law, 22nd edn., Central Law Agency, Allahabad, 2010  Dr. Kesari U. P. D., Modern Hindu Law, 5th edn. Central Law Publications, Allahabad, 2006  Mathur D. N., The Code of Civil Procedure, 1st edn., Central Law Publication, Allahabad, 2009  Lal Batuk, The Law of Evidence, 18th edn., Central Law Agency, Allahabad, 2010 DICTIONARIES AND ENCYCLOPAEDIAS

 Bakshi‟s, The Law Lexicon, Vol.2 2005 edn., (Ashoka Law House, New Delhi), 2005,

MANUALS AND DIGESTS  The AIR Manual  Supreme Court Cases

7|Page

STATUTES

 Hindu Marriage Act, 1955

 Family Court Act, 1984

 The Code of Civil Procedure, 1908

 Indian Evidence Act, 1872

8|Page

CASE LAWS

 Smt. Sanghamitra Singh vs. Kailash Chandra Singh, AIR 2001 Ori 151

 Bipin Chander Jaisinghbhai Shah vs. Prabhawati, 1956 SCR 838

 Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi, AIR (2002) 2SCC 73

 Mr. Ajay Sayajirao Desai vs Mrs. Rajashree Ajay Desai, AIR 2005 Bom 278

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STATEMENT OF THE JURISDICTION OF THE COURT The Appellant, SRIMATI RUKMINI CHOUDHURY BORAH, firstly filed a plaint for Divorce in the family court under Section 13 (i-b) of the Hindu Marriage Act, 1955 on the ground of „Desertion‟, but the Family Court refused to grant such order of divorce due to lack of sufficient and appropriate ground. Therefore she filed an appeal for divorce against the judgment of the family court under Section 19(1) of the Family Court Act, 1984. But according to the Section 19(3) of the Family Court Act, 1984 every appeal must file within a period of thirty days from the date of the judgment or order passed of a family court. In the sub-section (5) of the same section it is stated that except as sub-section (3), no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. When the Family court refused to grant divorce due to non-appearance of reasonable cause and ground for desertion the appellant filed an appeal in the Gauhati High Court under Section 19 of the Family Court Act, 1984 against the judgment of the Family Court which was passed on 31st July, 2010. The appellant filed the appeal on 20th October, 2010. Therefore the appeal is barred by law and is liable to be dismissed on the ground of delay in filing the appeal before the High Court without the reasonable cause for delay.

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STATEMENT OF FACTS ON BEHALF OF THE RESPONDENT Most respectfully sheweth: 1. That emigrant Sri Abhijeet Borah, working in the United States of America. His parents are live in Dispur, Guwahati, Assam. 2. That Family of Sri Abhijeet Borah and Srimati Rukmini Choudhury Borah had a good relationship since long past and so both of them knows each other from their childhood. 3. That their families wanted to establish a marital relation between themselves. Both Sri Abhijeet Borah and Srimati Rukmini Choudhury Borah also agreed with this decision. 4. That on 7th October, 2006 married took place between themselves in Guwahati. 5. That at the time of marriage Smt. Borah was a student of Post Graduate Course and she interest to proceed her study in her mother home and it was already stated that Sri Borah, working in USA. Sri Borah did not object his wife interest and allowed her to continue her course. So that, an understanding was made between themselves that Sri Borah would allowed his wife that is Smt. Borah proceed her Post Graduate Course and after that he will take her to USA, after completion of her degree, which is supposed to be completed on June, 2009. 6. That their marriage consummated in Guwahati during the stay of the groom for a month after the marriage. 7. That Sri Borah went to USA to join his service and Smt. Borah was continuing her studies in her mother‟s home. There has been often letter and telephonic communication between them. 8. That Srimati Borah completed her course in October, 2009 and the boy came to Guwahati in November, 2009 to take his wife. But her visa was not ready immediately due to the action of the authority. 9. That during his stay in Guwahati in November, 2009 they have physical contact i.e. sexual relation between themselves. 10. That after a few days later Srimati Borah filed a Divorce suit on the ground of desertion under Section 13 (1) (i-b) of The Hindu Marriage Act, 1955 in the Family Court and stated that Sri Borah deserted her and did not want to take her with him to USA. The Family court refused to grant divorce due to non-appearance of reasonable cause and ground for desertion. So that appellant filed an appeal in the Gauhati High Court on 20th October, 2010 under Section 19 of the Family Court Act, 1984 against the judgment of the Family Court which was passed on 31st July, 2010. 11 | P a g e

STATEMENT OF PLEADINGS You‟re Lordship for the convenience of the Hon‟ble Court I have divided my contentions into five issues:

1.

THERE WAS NO ACTUAL DESERTION

2.

THE APPELLANT IS NOT DESERTED BY RESPONDENT.

3.

NOT GETTING OF VISA IS NOT A FAULT ON THE PART OF THE

RESPONDANT

4.

BOTH THE SPOUSES HAS NO INTENTION TO BRING COHABITATION

PERMANENTLY TO AN END.

5.

THE APPEAL IS BARRED BY LAW.

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PLEADINGS ON BEHALF OF THE RESPONDENT CONTENTION I – THERE WAS NO ACTUAL DESERTION On 7th October, 2006 married took place between appellant and respondent in Guwahati. At the time of marriage Smt. Borah was a student of Post Graduate Course and she interest to precede her study in her mother home and Sri Borah, working in USA. Sri Borah did not object his wife interest and allowed her to continue her course. So that, an understanding was made between the appellant and the respondent when they started their marital life that Sri Borah would allowed his wife that is Smt. Borah precede her Post Graduate Course and after that he will take her to USA, after completion of her degree, which is supposed to be completed on June, 2009. In the Explanation of the Section 13 of the HINDU MARRIAGE ACT, 1955 stated that in the sub-section (i-b), the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. Where the spouses live separately under an understanding it cannot amount to desertion. Here both parties are consented on their understanding. CONTENTION II – THE APPELLANT IS NOT DESERTED BY RESPONDENT. The appellant is not deserted by the respondent. The respondent has the intention to reside with the appellant therefore he came to Guwahati in November, 2009 to take his wife (Appellant).

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In the case Smt. Sanghamitra Singh vs. Kailash Chandra Singh, AIR 2001 Ori 151, it was held that „Desertion‟ is not the withdrawal from a place of abode, but from a state of things. The intention to snap the tie of sacrosanct marriage for all times to come has to the apparent from the conduct. If a spouse abandons the other for a temporary period under certain circumstance without intending to cease the cohabitation permanently, it will not amount to desertion. CONTENTION III -- NOT GETTING OF VISA IS NOT A FAULT ON THE PART OF THE RESPONDANT It is not a fault of the respondent for not getting visa for his wife (appellant). The respondent already fulfills all necessary condition for applying the visa. But due to the process and procedure of the concern authority and the system the visa was not ready at the time. CONTENTION IV -- BOTH THE SPOUSES HAS NO INTENTION TO BRING COHABITATION PERMANENTLY TO AN END. According to the Section 13(1) (1-b) of the Hindu Marriage Act, 1955, the two elements are essential for „Desertion‟: a) the factum of separation and b) the intention to bring cohabitation permanently to an end. But here during the defendant stayed in Guwahati, in November, 2009, and before filing the petition they did have physical contact i.e. sexual relation between themselves. By this it is proved that both parties have the intention to live together and never intention to bring cohabitation permanently to an end. In the cases Bipin Chander Jaisinghbhai Shah vs. Prabhawati, 1956 SCR 838 and Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi, AIR (2002) 2SCC 73, it was stated that the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period; The clause lays down the 14 | P a g e

rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. Mr. Ajay Sayajirao Desai vs Mrs. Rajashree Ajay Desai, AIR 2005 Bom 278, the court held that it is thus clear that the reasons assigned by the husband for his wife not being ready to live with him having been found false the husband cannot be given advantage of his own wrong and granted decree of divorce on the ground of desertion and particularly when the wife is prepared to live with him unconditionally. In our opinion, the petition of the husband, on the ground of desertion also fails. Accordingly, the appeal is dismissed with costs. CONTENTION IV -- THE APPEAL IS BARRED BY LAW According to the Section 19(3) of the Family Court Act, 1984 every appeal must file within a period of thirty days from the date of the judgment or order passed of a Family Court. In the subsection (5) of the same section it is stated that except as sub-section (3), no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. When the Family court refused to grant divorce due to non-appearance of reasonable cause and ground for desertion the appellant filed an appeal in the Gauhati High Court under Section 19 of the Family Court Act, 1984 against the judgment of the Family Court which was passed on 31 st July, 2010. The appellant filed the appeal on 20th October, 2010.

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PRAYER FOR RELIEF

In the light of facts stated, arguments advanced and authorities cited, It is submitted that the Hon’ble Gauhati High Court, Guwahati be pleased to dismiss the appeal for Divorce on the ground of Desertion by appellant.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

TEZOSWIE DOWARAH ADVOCATE Appearing on behalf of the Respondent .

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Court Fee

Rs. 1.10

IN THE HON‟BLE HIGH COURT OF JUDICATURE, GUWAHATI Dated: 31-10-2010 CIVIL SUIT NO. 84 of 2010

SRIMATI RUKMINI CHOUDHURY BORAH

……

Appellant

Versus SRI ABHIJEET BORAH

……

Respondent

EVIDENCE OF RW-1 ON AFFIDAVIT I, SRI ABHIJEET BORAH, Son of Sri Nilakanta Borah, aged about 30 years. Hindu by religion, a resident of Dispur, Guwahati, Dist. Kamrup, Assam do hereby solemnly affirm and declare on oath as follows: (1) That I am the Respondent in the suit and I am fully acquainted with all the facts and circumstances of the case and I am competent enough to sign and swear this affidavit. (2) That I am the husband of Srimati Rukmini Choudhury Borah, Daughter of Late Ramchandra Choudhury, aged about 26 years. Hindu by religion, a resident of Dispur, Guwahati, Dist. Kamrup, Assam solemnized marriage on 7th October, 2006 in Guwahati. 17 | P a g e

(3) That an understanding was made between the appellant and me when we started our marital life and would allowed my wife (Smt. Rukmini Choudhury Borah) precede her Post Graduate Course and after that I will take her to USA, after completion of her degree, which is supposed to be completed on June, 2009 and accordingly on November, 2009 I came to Guwahati to take my wife. (4) That I also took all necessary condition for application of visa for my wife (Smt. Rukmini Choudhury Borah) to take her to the United States of America with me. (5) That during the 3 years period we often communicate to each other by posting letter and telephone and during my stay in Guwahati in November, 2009 we have physical contact and continue our conjugal life with each other. (6) That the statements made by the appellant in her appeal and which are contrary to my above statements are all false.

SOLEMN AFFIRMATION I, SRI ABHIJEET BORAH, Son of Sri Nilakanta Borah, aged about 30 years. Hindu by religion, a resident of Dispur, Guwahati, Dist. Kamrup , do hereby take oath and state of solemn affirmation that the contents of para 1 to 6 above have been drafted by my counsel as per the information given by me and the same has been read over to me in my vernacular and after understanding the same I hereby state a nd declare that they are true to my personal knowledge and believed to be true and correct. Hence verified and signed at Guwahati on this 31st day of October, 2010.

Identified by :-

(Advocate)

DEPONENT

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Court Fee

Rs. 1.10

IN THE HON‟BLE HIGH COURT OF JUDICATURE, GUWAHATI Dated: 31-10-2010 CIVIL SUIT NO. 84 of 2010

SRIMATI RUKMINI CHOUDHURY BORAH

……

Appellant

Versus SRI ABHIJEET BORAH

……

Respondent

EVIDENCE OF RW-2 ON AFFIDAVIT I, Sri Nilakanta Borah, son of Late Khageswar Borah, aged about 60 years, Hindu by religion, a resident of Dispur, Guwahati, Dist. Kamrup, Assam do hereby solemnly affirm and declare on oath as follows: (1) That I am the father of the respondent SRI ABHIJEET BORAH. (2) That I am the Respondent in the suit and I am fully acquainted with all the facts and circumstances of the case and I am competent enough to sign and swear this affidavit. (3) That SRI ABHIJEET BORAH, my only son, has been serving in USA and our family property is situated in Dispur, Guwahati, Assam.

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(4) That I know Smt. Rukmini Choudhury Borah (Daughter-in- Law), Daughter of Late Ramchandra Choudhury, aged about 26 years. Hindu by religion, a resident of Dispur, Guwahati, Dist. Kamrup, Assam and also know her family. There is a good terms between two families. (5) That my son Abhijeet Borah and Smt. Rukmini Choudhury Borah loved each other and marriage took place under both their interest and consent of two families and marriage was solemnizes under the customs of Hindu religion in Guwahati on 7th October, 2006. (6) That at the time of marriage Smt. Rukmini Choudhury Borah was a student of Post Graduate Course and she wanted to precede her study in mother‟s home. Therefore an understanding was made between the appellant and my son (respondent) when they started their marital life and would allowed his wife (Smt. Rukmini Choudhury Borah) precede her Post Graduate Course and after that my son will take her to USA, after completion of her degree, which is supposed to be completed on June, 2009 and accordingly on November, 2009 he came to Guwahati to take his wife. SOLEMN AFFIRMATION I, Sri Nilakanta Borah, son of Late Khageswar Borah, aged about 60 years, Hindu by religion, a resident of Dispur, Guwahati, Dist. Kamrup, Assam do hereby take oath and state of solemn affirmation that the contents of para 1 to 6 above have been drafted by my counsel as per the information given by me and the same has been read over to me in my vernacular and after understanding the same I hereby state a nd declare that they are true to my personal knowledge and believed to be true and correct. Hence verified and signed at Guwahati on this 31st day of October, 2010.

Identified by :-

(Advocate)

DEPONENT

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MOOT COURT NO. 02 MEMORENDUM ON BEHALF OF PETITIONER A Public Interest Litigation Filed under Article 32 and 139A of the Constitution of India

Submitted to Baharul Islam Lecturer Centre For Juridical Studies

Tezoswie Dowarah Counsel Appearing on behalf of the Petitioner

Dibrugarh University

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IN THE HON’BLE SUPREME COURT OF INDIA, DELHI Dated: 10th December, 2010

WRIT PETITION NO. 2777 OF 2010

21st Century Women’s Rights Organization Regd. Office: M. G. Road, Chandigarh Punjab ………………….. Petitioner Versus

Union of India (Trough Chief Secretary) J. N. Mishra Official Address: 1st Floor, Civil Secretariat New Delhi

………………… Respondent

Public Interest Litigation Filed under Article 32 and Article 139A of the Constitution of India before the Supreme Court of India, Delhi

(Tezoswie Dowarah) Counsel Appearing on behalf of the Petitioner 22 | P a g e

TABLE OF CONTENTS

LIST OF ABBREVIATIONS INDEX OF AUTHORITIES

(i) Books (ii) Dictionaries (iii) Manuals and Digests

STATUTES CASE-LAWS STATEMENT OF THE JURISDICTION OF THE COURT STATEMENT OF FACTS ON BEHALF OF THE PETITIONER STATEMENT OF PLEADINGS PLEADINGS ON BEHALF OF THE PETITIONER PRAYER FOR RELIEF EVIDENCE OF WITNESSES ON AFFIDAVIT

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LIST OF ABBREVIATIONS

A.I.R.

All India Reporter

Mad.

Madras

C.A.

Court of Appeal

O.P.D.

Out Patient Department

USA

United States of America

H.C.

High Court

p.

Page

edn.

Edition

S.C.

Supreme Court

S.C.C.

Supreme Court Cases

S.C.R.

Supreme Court Review

Vs.

Versus

PNDT Act

Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act

PIL

Public Interest Litigation

JMFC

Judicial magistrate First Class

Cri LJ

Criminal Law Journal

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INDEX OF AUTORITIES

BOOKS  Prof. Rai Kailash, „The Constitutional Law of India‟, Allahabad, Central Law Publications, 2005.  Jain M. P., Indian Constitutional Law, (5th Edition), New Delhi, Wadhwa & Company, Nagpur, 2008  Dr. Agarwal H. O., „International Law & Human Rights‟, (13th Edition), Allahabad, Central Law Publications, 2006  Dr. Kapoor S. K., „International Law & Human Rights (Nutshell)‟, (14th Edition), Allahabad, Central Law Agency, 2008  Dr. Chandra U., „Human Rights‟, Allahabad Law Agency.  Batra Monjula, „Woman and Law and Law relating to Children in India‟, (2nd revised Edition), Allahabad Law Agency, 2003  Rao Mamta, „Law relating to Women & Children‟, (1st Edition), Lucknow, Eastern Book Company, 2005  Mishra O. P., „Law relating to Women & Child‟, (3rd Edition), Allahabad, Central Law Agency, 2006  Prof. Mishra S. N., The Code of Criminal Procedure, 1973 with Probation of Offenders Act & Juvenile Justice ( Care & Protection of Children) Act, 16th edn., Central Law Publications, Allahabad, 2009  Prof. Mishra S. N., Indian Penal Code, 17th edn., Central Law Publications, Allahabad, 2009.

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 Dr. Agarwal H. O., International law & Human Rights, 13th edn., Central Law Publications, Allahabad, 2006  Lal Batuk, The Law of Evidence, 18th edn., Central Law Agency, Allahabad, 2010

DICTIONARIES AND ENCYCLOPAEDIAS

 Bakshi‟s, The Law Lexicon, Vol.2 2005 edn., (Ashoka Law House, New Delhi), 2005,

MANUALS AND DIGESTS

 The AIR Manual  Supreme Court Cases

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STATUTES

 The Constitution of India  The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994  The Medical Termination of Pregnancy Act, 1971 

The Indian Medical Council Act, 1956

 The Code of Criminal Procedure, 1973  Indian Evidence Act, 1872

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CASE LAWS

 Roe vs. Wades, 1973  V. Krishnan v. G. Rajan alias Madipu Rajan, (1994) 1 Mad LW (Cri) 16,  D. Rajeshwari v State of Tamil Nadu, 1996 Cri.L.J 3795

 In Komalavalli v. C. R. Nair, (1983) Mad LW (Cri) 190: (1984 Cri LJ 446)  R v Bourne [1939] 1 KB 687

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STATEMENT OF THE JURISDICTION OF THE COURT A Public Interest Litigation (PIL) was filed by 21st Century Women‟s Rights Organization under Article 32 of the Constitution of India and the petition was signed by Miss Rekha Dutta, a journalist of a reputed national daily news-paper. In this petition, the petitioner brought the matters relating to Right of Mother vs. Rights of Unborn and the Constitutional validity of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. Both Dr. Nalini, a gynecologist who conducts the sex determination test and Gurpreet Kaur approached before the Punjab and Haryana High Court against the issuance of summons by Judicial Magistrate First Class due to the complaint filed by Miss Soma in the court of Judicial magistrate First Class. Dr. Nalini approached the High Court for quashing of the complaint under Section 482 of the Code of Criminal Procedure, 1973. Gurpreet Kaur filed a separate writ petition alleging violation of her fundamental right and the Constitutional validity of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. After filing the Public Interest Litigation by 21st Century Women‟s Rights Organization both Dr. Nalini and Gurpreet Kaur moved before the Supreme Court under Article 139A of the Constitution of India to transfer both the matters before the Punjab and Haryana High Court to itself. According to the Article 139A of the Constitution of India, Supreme Court can transfer certain cases (1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the

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Supreme Court is satisfied on its own motion or on an application made by the Attorney-General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment. (2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

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STATEMENT OF FACTS ON BEHALF OF THE PETITIONER Most respectfully “Sheweth” 1. That Gurpreet Kaur was the daughter of a retired Indian Army personnel Col. Vijaypatsinh Batra. Her family consists of two girls and one boy along with her parents. 2. That Gurpreet Kaur completed her B.Sc. with first class and wanted to pursue her masters. However, the elders of the family were not in favour of her continuing her education because of the customs prevailing in their community. The menace of dowry was rampant in their community. The belief of the elders was that if Gurpreet Kaur pursued her masters, her advancing age would be a hindrance to finding a suitable match, and if she was very highly qualified, they would have to find a more qualified husband for her resulting in more dowry required to be paid. Gurpreet Kaur had no option but to accept the hardcore reality of life that despite prohibitive laws dowry is still rampant in their community. 2. That Gurpreet Kaur was then married to Yuvrajsinh Khtirana, the son of an affluent businessman, who owns a big toy factory. Col. Batra had to spend more than 25 lakhs on this wedding. 3. That four months of her marriage, her mother was diagnosed with Leukaemia. The treatment involved expensive medicines and chemotherapy. Since Col. Batra was not left with enough money after spending a huge amount on the wedding of Gurpreet Kaur, Mrs. Batra was treated in adequate facilities for such treatment and therefore could not be cured. Her younger sister, despite being of a marriageable age, was unable to get married due to the inability of Col. Batra to pay. The youngest brother, Harbhajan was a brilliant student and was eligible to get admission in medicine which he had always dreamt about, he had to opt for a homeopathy course due to financial constraints. 4. That Gurpreet Kaur often cursed herself as she was of the opinion that she was solely responsible for her family miserable financial condition. 5. That after a few months later Gurpreet Kaur delivered a baby girl who was named Khushi. She and her husband were very excited at the new arrival in the family but her mother-in-law was not so happy. She often said that in their entire family only male children had been born and Gurpreet had broken the tradition of the Khurana family. 6. That After 21/2 years, Gurpreet Kaur delivered another female child and found a marked change in the attitude in her husband also. Both her mother-in-law and husband along with other family members frequently heaped taunts and insults on her.

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7. That the life of Gurpreet Kaur turned sour. Abuse from the in-laws and even her husband became a routine. There were occasions of physical abuse too. 8. That the business tension of Yuvrajsinh made him an alcoholic and physical abuse became a daily routine for Gurpreet Kaur due to her fault that she could not deliver a male child to continue the legacy of the Khurana family. 9. That Gurpreet Kaur became pregnant for the third time. She was already under tremendous pressure due to the poor financial condition of her parents and was now worried about the deteriorating financial condition of her husband. Her mother-in-law had given her an ultimatum that she had to deliver a male child or else she would be thrown out of the house. She could overhear the conspiratorial whispers between her mother-in-law and father-in-law that if she delivers a third female child, they would throw her out of the house and would seriously consider the remarriage of Yuvrajsinh. Therefore Gurpreet Kaur was mortally scared of delivering a third female child as she was sure that neither she nor her female children would be accepted by her husband and in-laws. 10. That Dr. Nalini, gynaecologist and school classmate and a strong crusader of the „Save the girl child campaign‟, informed Gurpreet Kaur that termination of pregnancy on the ground of the gender of the foetus is now an offence under the Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, in short the PNDT Act, when she during her routine check-up with the gynecologist pleaded that she would not deliver a third female child to save her life and family. 11. That looking at the pitiable condition of Gurpreet Kaur, Dr. Nalini, like any human being who has the slightest sensitivity towards another human being, agreed to conduct a sex-determination test. She had a portable ultrasound machine in her clinic and called Gurpreet Kaur to her clinic after the regular OPD hours for sex determination of the foetus and after performing the necessary tests she inform Gurpreet Kaur about the gender of the child. 12. That Ms. Soma one of the staff members of Dr. Nalini's clinic heard the conversation informed the local police. But they did not take any action due to which she instead of going before the Superintendent of Police filed a complaint before the Judicial Magistrate First Class who issued summons against Dr.Nalini and Gurpreet Kaur 13. That both Dr. Nalini and Gurpreet Kaur approached the Punjab & Haryana High Court against the issuance of summons. Dr. Nalini approached the High Court for quashing of the complaint under Section 482 of the Code of Criminal Procedure, 1973 and Gurpreet Kaur filed a separate writ petition alleging violation of her fundamental right and the Constitutional validity of the PNDT Act was also challenged by Gurpreet Kaur in the said petition and claimed that it is the right of the mother to decide whether she wants to be the mother of the child that she is carrying. 32 | P a g e

14. That in the same time due to the publicity of the case Rekha Dutt, a journalist in a reputed national daily newspaper and also a member of a women‟s organization called 21st Century Women‟s Rights Organization, discussed that what they could do for women, which could also bring them name and fame apart from improving the conditions of women. 15. That on support of this Ms. Dutt published an article titled, „Right of Mother v/s Right of Unborn‟ which was received well by the readers and a section of the people started voicing their opinion about allowing prospective mothers to go in for pre-natal sex determination to avoid making their life miserable in their matrimonial home. 16. That the said organization also filed a Public Interest Litigation (PIL) on the same issue under Article 32 of the Constitution of India before the Supreme Court. 17. Dr. Nalini and Gurpreet Kaur also moved before the Supreme Court under Article l39A of the Constitution to transfer both the matters before the Punjab & Haryana High Court to itself and the Supreme Court under Article 139A of the Constitution of India transferred both the matters to the Constitutional Bench due to the issues involved questions of Constitutional importance and same questions of law.

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STATEMENT OF PLEADINGS You‟re Lordship for the convenience of the Hon‟ble Court the contentions are divided into four issues:

1.

WHETHER SECTION 4(2) AND

SECTION 6 AND OTHER RELEVANT

PROVISIONS OF THE PNDT ACT ARE CONSTITUTIONALLY VALID OR NOT?

2.

WHETHER IT IS A RIGHT OF THE MOTHER TO TERMINATE PREGNANCY

UNDER THE PROVISIONS OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 OR NOT?

3.

WHETHER

JMFC,

CHANDIGARH

HAD

JURISDICTION

TO

TAKE

COGNISANCE OF THE OFFENCE OR NOT?

4.

WHETHER CAN A DOCTOR WHO IS DUTY BOUND TO DISCLOSE ALL

MATERIAL FACTS RELATING TO THE HEALTH OF THE PATIENT AS PER MEDICAL ETHICS AND ALSO AS PER THE GUIDELINES PRESCRIBED BY THE MEDICAL COUNCIL OF INDIA, BE PUNISHED UNDER ANY ACT FOR PERFORMING HIS OR HER DUTY OR NOT?

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PLEADINGS ON BEHALF OF THE PETITIONER

CONTENTION I – WHETHER SECTION 4(2) AND

SECTION 6 AND OTHER

RELEVANT PROVISIONS OF THE PNDT ACT ARE CONSTITUTIONALLY VALID OR NOT? According to the facts of the case Gurpreet Kaur has two female children. Gurpreet Kaur is desirous of having a male child to save her life and family from breaking down. She has also interest to enjoy the love and affection of both, son and daughter simultaneously and their existing children can enjoy the company of their own brother while growing up and also give pleasure to the family at large if she is allowed to select sex of their child and have a son. According to the Section 4(2), Section 6 and other provisions of the Act violates the rights of the pregnant women. According to the Article 21 of the Constitution of India provides the right to life and personal liberty. It also includes the right of privacy. But the provisions of the PNDT Act, 1994 violates the rights guaranteed by the Constitution of India. Each woman has the sole right to make decisions about what happens to her body - no one should force her either to carry or terminate a pregnancy against her will. Most abortions i.e. termination of pregnancy are carried out on the grounds of safeguarding the woman‟s mental health. Other are situations where abortions is done to safeguard the life of a fetus, as it would involve risk if pregnancy is carried, it might damage the fetus resulting in danger to the life of the mother. If abortion is banned, or just more restricted, we would return to the days of „back-street abortions‟. In the past this has been accompanied by wild claims of the risk to women‟s health from these procedures. The women resort to some unhygienic measures to abort the fetus. Act of performing an abortion i.e termination of Pregnancy to save the mother‟s life when occurs, however, the rationale is not that the fetus is seen to have less value than the mother, but that if no action is taken both will die. Aborting the fetus at least saves the mother's life. 35 | P a g e

If suppose abortion is banned, a woman does not want to carry her pregnancy, she would carry it and then abandon the new born child. This would be more dangerous to the life of the baby. Thus, it is better to terminate the pregnancy at an earlier stage. Article 16 of the Convention on the Elimination of All form of Discrimination Against Women, 1979, provides that States parties shall take all measures to eliminate discrimination against women in all matters relating to marriage and family relation. Women shall be provided the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means enable them to exercise their rights. Roe vs. Wades (1973) became one of the most politically significant Supreme Court decisions in history, reshaping national politics, dividing the nation into “pro-choice” and “prolife” camps, and inspiring grassroots activism. This is a landmark United States Supreme Court decision establishing that most laws against abortion violate a constitutional right to privacy, thus overturning all state laws outlawing or restricting abortion that were inconsistent with the decision. It also held that State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman‟s approach to term. From the above points it can be said that PNDT Act violates the mother‟s right to life and personal liberty.

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CONTENTION II – WHETHER IT IS A RIGHT OF THE MOTHER TO TERMINATE PREGNANCY UNDER THE PROVISIONS OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 OR NOT? Under the Medical Termination of Pregnancy Act, 1971 termination of pregnancy is allowed under certain circumstances. Under Section 3 of the said Act states that termination of pregnancy is allowed when the pregnancy is terminated in good faith, that the continuance of the pregnancy would involve a risk to the life of the pregnancy woman or of grave injury to her physical or mental health. In the Explanation-I it is stated that Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. In the sub section (3) of the same Section states that in determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-sector, (2) account may be taken of the pregnant woman's actual or reasonable foreseeable environment. In such circumstances pregnancy may be terminated as prescribed by the provision of the Act.

Gurpreet Kaur was under tremendous pressure due to the poor financial condition of her parents and was now worried about the deteriorating financial condition of her husband. Her motherin-law had given her an ultimatum that she had to deliver a male child or else she would be thrown out of the house. She could overhear the conspiratorial whispers between her mother-in-law and father-in-law that if she delivers a third female child, they would throw her out of the house and would seriously consider the remarriage of Yuvrajsinh. Therefore Gurpreet Kaur was mortally scared of delivering a third female child as she was sure that neither she nor her female children would be accepted by her husband and in-laws. These circumstances affect her mental condition. She used to take psychiatric medicine to relief from mental pressure. Gurpreet Kaur was physically abused by her Husband and in laws due to not delivering a male child to continue the legacy of the Khurana family. When she checkup her health before Dr. Nalini, she found such symbol of physical torture. Her neighbour also saw certain ill treatment over Gurpreet Kaur by her family. 37 | P a g e

In V. Krishnan v. G. Rajan alias Madipu Rajan, (1994) 1 Mad LW (Cri) 16, and on the strength of this decision, he would contend that the pregnancy can be terminated, with the consent of the pregnant woman, if the pregnancy was caused by rape and that if rape is alleged by the pregnant woman, the Court shall bound to presume that there would be a mental anguish or grave injury to mental health. In the case D. Rajeshwari v State of Tamil Nadu, 1996 Cri.L.J 3795, the court held that unwanted pregnancy become mentally ill and the continuance of pregnancy has caused great anguish in her mind, which would result in a grave injury to her mental health therefore the Court granted the permission to terminate the pregnancy. It was already stated in Roe vs. Wades (1973) that the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, includes a woman‟s qualified right to terminate her pregnancy. Therefore it can be considered that it is a right of the mother to terminate pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971. CONTENTION III -- WHETHER JMFC, CHANDIGARH HAD JURISDICTION TO TAKE COGNIZANCE OF THE OFFENCE OR NOT? According to the facts of the case, it is a cognizable case. Miss Soma informed the local police about conduct of the sex determination test in the clinic. But after 20 days of the police inaction she instead of going before Appropriate Authority or Superintendent of Police filed a complaint before the Judicial Magistrate First Class and accordingly JMFC issued summons against Dr. Nalini and Gurpreet Kaur. In the instant case, there is no reference of the Statute under which the complaint was file. In the Section 28 of the PNDT Act provides Cognizance of offences. According to it No court shall take cognizance of an offence under this Act except on a complaint made by— (a) the Appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or

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(b) A person who has given notice of not less than thirty days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court. (2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. In the Section 17 (3) the appropriate authority shall be the rank of the Joint Director of Health and Family Welfare who has the function to investigate complaints of breach of the provisions of this Act and take immediate action. In Section 154(3) of the Criminal Procedure Code, 1973 any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to the subsection (1) i.e. every information relating to the commission of a cognizable offence may send the substance of such information, in writing and by post, to the Superintendent of Police. Therefore under section 482 of the Code of Criminal Procedure, 1973, Dr. Nalini approached before the Hon‟ble High Court of Punjab and Haryana for quashing of the complaint under issuance of summons. Therefore the Judicial Magistrate First class has no jurisdiction to take cognizance of the offence. According to the Section 28(2) PNDT Act Judicial Magistrate First class has the power only to try the offence while it is brought before it through Appropriate Authority. The Code of Criminal Procedure specially mentioned that in case of cognizable offence only the police can take cognizance of the case. So, here the Judicial Magistrate First Class did some ultra vires act relating to procedure.

CONTENTION IV -- WHETHER CAN A DOCTOR WHO IS DUTY BOUND TO DISCLOSE ALL MATERIAL FACTS RELATING TO THE HEALTH OF THE PATIENT AS PER MEDICAL ETHICS AND ALSO AS PER THE GUIDELINES PRESCRIBED BY THE MEDICAL COUNCIL OF INDIA, BE PUNISHED UNDER ANY ACT FOR PERFORMING HIS/HER DUTY OR NOT? A doctor is duty bound to disclose all material facts relating to the health of the patient as per Medical Ethics and guidelines prescribed by the Medical Council of India.

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Guyrpreet Kaur was suffering from mental pressure by the pregnancy which affects her mental health. Due to this Dr. Nalini performed her duty in good faith. In R v Bourne [1939] 1 KB 687 case, it was stated that if the doctor is of opinion, on reasonable ground and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck the court is entitle to take the view that the doctor who under those circumstances and in that honest belief, operates, is for the purpose of preserving the life of the mother. In Komalavalli v. C. R. Nair, (1983) Mad LW (Cri) 190: (1984 Cri LJ 446) case, the relevant portion of the said judgment is as follows :“On going through the affidavit filed by the petitioner and after hearing her and her counsel, we are satisfied that the petitioner has been impregnated against her will and that unless the pregnancy is terminated the petitioner will suffer traumatic and psychological shock. Hence, we grant permission to the petitioner to terminate her pregnancy. This is subject to the condition that qualified Gynaecologists examine her and find that the pregnancy can be terminated without detriment to the petitioner‟s life and safety.” By these reasons a doctor who performs his duty under these circumstances is not liable to be punished.

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PRAYER FOR RELIEF

In the light of facts stated, arguments advanced and authorities cited, It is submitted that the Hon’ble Supreme Court of India, Delhi be pleased to declare and adjudge: 1. The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 violates the fundamental rights of the women and contrary to the provision of the Constitution of India and therefore constitutionally the PNDT Act is invalid. 2. It is right of a mother to terminate her pregnancy under The Medical Termination of

Pregnancy Act, 1971. 3. Judicial Magistrate First Class has no jurisdiction to take cognizance of the offence and therefore the order of issuance of summons is liable to be quashed sue to the not following the procedure prescribed by law. 4. A doctor who is duty bound to disclose all material facts relating to the health of the patient as per Medical Ethics and guidelines prescribed by the Medical Council of India is not liable to be punished under any Act for performing his or her duty.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

TEZOSWIE DOWARAH COUNSEL FOR THE PETITIONER. 41 | P a g e

Court Fee

Rs. 1.10

IN THE HON‟BLE SUPREME COURT OF INDIA, DELHI Dated: 10-12-2010 WRIT PETITION NO. 2777 OF 2010

21st Century Women‟s Rights Organization Regd. Office: M. G. Road, Chandigarh Punjab

…………………..

Petitioner

Versus Union of India (Trough Chief Secretary) J. N. Mishra Official Address: 1st Floor, Civil Secretariat New Delhi

………………… Respondent

EVIDENCE ON AFFIDAVIT I, Sri Prakash Jain, Secretary, 21st Century Women‟s Rights Organization, Regd. Office: M. G. Road, Chandigarh Punjab do hereby solemnly affirm and declare on oath as follows: (1) That I am fully acquainted with all the facts and circumstances of the case and competent enough to sign and swear this affidavit.

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SOLEMN AFFIRMATION I, Sri Prakash Jain, Secretary, 21st Century Women‟s Rights Organization, Regd. Office: M. G. Road, Chandigarh Punjab, do hereby take oath and state of solemn affirmation that the contents of para 1 above has been drafted by my counsel as per the information given by me and the same has been read over to me in my vernacular and after understanding the same I hereby state a nd declare that they are true to my personal knowledge and believed to be true and correct. Hence verified and signed at New Delhi on this 10th day of December, 2010.

Identified by:-

(Advocate)

DEPONENT

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Court Fee

Rs. 1.10

IN THE HON‟BLE SUPREME COURT OF INDIA, DELHI Dated: 10-12-2010 WRIT PETITION NO. 2777 OF 2010

21st Century Women‟s Rights Organization Regd. Office: M. G. Road, Chandigarh Punjab

…………………..

Petitioner

Versus Union of India (Trough Chief Secretary) J. N. Mishra Official Address: 1st Floor, Civil Secretariat New Delhi

………………… Respondent

EVIDENCE OF PW-1 ON AFFIDAVIT I, DR. Nalini, w/o of Mr. Hardev Singh, aged about 28 years, Sikh by religion, gynecologist by occupation, a resident of Chandigarh, Punjab do hereby solemnly affirm and declare on oath as follows:

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(1) That I am fully acquainted with all the facts and circumstances of the case and I am competent enough to sign and swear this affidavit. (2) That I am the doctor of Mrs. Gurpreet Kaur, Daughter of Col. Vijaypatsinh Batra, aged about 28 years, Sikh by religion, a resident Chandigarh, Punjab regularly checkup the health of the Gurpreet Kaur at the time of Pregnancy. (3) That in the checkup time I found herself suffering from mental pressure and also found such other sign of physical torture in her body.

SOLEMN AFFIRMATION I, DR. NALINI, w/o of Mr. Hardev Singh, aged about 28 years, Sikh by religion, gynecologist by occupation, a resident of Chandigarh, Punjab, do hereby take oath and state of solemn affirmation that the contents of para 1 to 3 above have been drafted by my counsel as per the information given by me and the same has been read over to me in my vernacular and after understanding the same I hereby state a nd declare that they are true to my personal knowledge and believed to be true and correct. Hence verified and signed at New Delhi on this 10 th day of December, 2010.

Identified by:-

(Advocate)

DEPONENT

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Court Fee

Rs. 1.10

IN THE HON‟BLE SUPREME COURT OF INDIA, DELHI Dated: 10-12-2010 WRIT PETITION NO. 2777 OF 2010

21st Century Women‟s Rights Organization Regd. Office: M. G. Road, Chandigarh Punjab

…………………..

Petitioner

Versus Union of India (Trough Chief Secretary) J. N. Mishra Official Address: 1st Floor, Civil Secretariat New Delhi

………………… Respondent

EVIDENCE OF PW-2 ON AFFIDAVIT I, Pritam Kaur, w/o Mr. Gurdeep Singh, aged about 36 years, Sikh by religion, a resident of Chandigarh, Punjab, do hereby solemnly affirm and declare on oath as follows: (1) That I am one of the neigbour of Gupreet Kaur‟s family. 46 | P a g e

(2) That I noticed that in-laws and the husband of Gurpreet Kaur often torture her mentally and physically for not giving a male child to her family (3) That I noticed that Gurpreet Kaur, when talked with me, was in deep mental depression due to her marital life. She also informed me about her mental pressure.

SOLEMN AFFIRMATION I, Pritam Kaur, w/o Mr. Gurdeep Singh, aged about 36 years, Sikh by religion, a resident of Chandigarh, Punjab, do hereby take oath and state of solemn affirmation that the contents of para 1 to 3 above have been drafted by my counsel as per the information given by me and the same has been read over to me in my vernacular and after understanding the same I hereby state and declare that they are true to my personal knowledge and believed to be true and correct. Hence verified and signed at New Delhi on this 10th day of December, 2010.

Identified by:-

(Advocate)

DEPONENT

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MOOT COURT NO. 03 MEMORENDUM ON BEHALF OF ACCUSED A Criminal Case Filed under Section 302 and 34 of the Indian Penal Code, 1860

Submitted to Baharul Islam Lecturer Centre For Juridical Studies

Tezoswie Dowarah Advocate Appearing on behalf of the Accused

Dibrugarh University

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IN THE COURT OF THE SESSION JUDGE, DIBRUGARH Dated: 27th December, 2010 SESSION CASE NO. Cr/2777 OF 2010

State of Assam (Trough Chief Secretary) J. N. Mishra Official Address: 1st Floor, Civil Secretariat ………………….. Complainant

Dispur, Guwahati, Assam Versus 1. Debojit Mahanta, s/o. Lt. Puna Mahanta, age-55 years Vill. Sesa, P.S. Borbaruah, Dibrugarh, Assam 2. Junmoni Mahanta, w/o. Debojit Mahanta, age- 48 years Vill. Sesa, P.S. Borbaruah, Dibrugarh, Assam

…………… Accused

3. Rajib Mahanta, s/o. Debojit Mahanta, age-17 years Vill. Sesa, P.S. Borbaruah, Dibrugarh, Assam 4. Rana Gogoi, s/o. Chandra Gogoi, age- 35 years Vill. Sesa, P.S. Borbaruah, Dibrugarh, Assam

A Criminal Case Filed under Section 302 and 34 of the Indian Penal Code, 1860

(Tezoswie Dowarah) Advocate Appearing on behalf of the Accused 49 | P a g e

TABLE OF CONTENTS

LIST OF ABBREVIATIONS INDEX OF AUTHORITIES (i) Books (ii) Dictionaries (iii) Manuals and Digests

STATUTES CASE-LAWS STATEMENT OF THE JURISDICTION OF THE COURT STATEMENT OF FACTS ON BEHALF OF THE ACCUSED STATEMENT OF ISSUES ARGUMENTS ON BEHALF OF THE ACCUSED PRAYER EVIDENCE OF WITNESSES ON AFFIDAVIT

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LIST OF ABBREVIATIONS

A.I.R.

All India Reporter

p.

Page

edn.

Edition

S.C.

Supreme Court

S.C.C.

Supreme Court Cases

S.C.R.

Supreme Court Review

Vs.

Versus

IPC

Indian Penal Code, 1860

Cr. P. C

Code of Criminal Procedure, 1973

Cri LJ

Criminal Law Journal

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INDEX OF AUTORITIES

BOOKS  Prof. Rai Kailash, „The Constitutional Law of India‟, Allahabad, Central Law Publications, 2005.  Jain M. P., Indian Constitutional Law, (5th Edition), New Delhi, Wadhwa & Company, Nagpur, 2008  Prof. Mishra S. N., The Code of Criminal Procedure, 1973 with Probation of Offenders Act & Juvenile Justice ( Care & Protection of Children) Act, 16th edn., Central Law Publications, Allahabad, 2009  Prof. Mishra S. N., Indian Penal Code, 17th edn., Central Law Publications, Allahabad, 2009.  Lal Batuk, The Law of Evidence, 18th edn., Central Law Agency, Allahabad, 2010

DICTIONARIES AND ENCYCLOPAEDIAS

 Bakshi‟s, The Law Lexicon, Vol.2 2005 edn., (Ashoka Law House, New Delhi), 2005,

MANUALS AND DIGESTS

 The AIR Manual  Supreme Court Cases

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STATUTES

 The Constitution of India  The Code of Criminal Procedure, 1973  Indian Evidence Act, 1872

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CASE LAWS

 State of Maharashtra v. Dyanoba Bhikoba Dagade, 1979 Cri LJ 277

 Nandini Sathpathy v. P. L. Dan, AIR 1978 SC 1025  Smt. Selvi & Others V. State Of Karnataka & Another, Criminal Appeal No. 1267 of 2004

 Jadumani Khanda v. State, 1993 Cri LJ 2701

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STATEMENT OF THE JURISDICTION OF THE COURT

A charge was filed under Section 302 and 34 of the Indian Penal Code, 1860 against the Accused No. 1, Accused No. 2, Accused No. 3, Accused No. 4 in the Hon‟ble Session Court, Dibrugarh by the Barbaruah Police. Under Section 26(a) of the Code of Criminal Procedure, 1973 any offence under the Indian Penal Code may be tried byi) the High Court, or ii) the Court of session, or iii) any other Court by which such offence is shown in the First Schedule to be tri-able. According to the Section 28(2) of the Indian Penal Code, 1860 a Session Judge or Additional Session Judge may pass any sentence authorized by law, but any sentence of death passed by any such Judge shall be subject to confirmation by the high Court. In the First Scheduled of the Code of Criminal Procedure, 1973 classify various types of offences. In Chapter XVI of this Schedule classify the offences affecting the human body and in this category, for the offence of murder (Section 302), the punishment is death, or imprisonment for life and fine. It also defines it as a cognizable and non-Bailable offence triable by the Court of Session.

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STATEMENT OF FACTS ON BEHALF OF THE ACCUSED Most respectfully “Sheweth” 1. That on receiving a telephone call, the Officer-in-Charge of the Barbaruah Police Station recorded an entry in the Tooka Bohi (Daily Dairy Report) that two dad bodies were lying on the berm of the by-pass of Sesa in a pool of blood on 01.05.2009 at about 1.00 A.M. and accordingly a police party headed by Inspector Gopal Das dispatched to the spot. 2. That the police party found the two dead bodies, one of male and other of female and found that the deceased appeared to have been done to death by sliding their throats and after an ocular examination of the bodies revealed, that in addition to the injury to their throats, a large number of lacerated wounds, abrasions and contusions had also been inflicted on various parts of bodies of the deceased. 3. That the Police registered FIR No. 10 dated 01.05.2009 at P.S. Barbaruah u/s 302 IPC and intimated the Investigating Officer at the spot about the particulars of the FIR and the police prepared a site plan, showing the location of the dead bodies; lifted the blood soaked earth; searched the area for the weapon(s) of offence and thereafter, sent the bodies for postmortem after preparing the inquest reports of the two deceased. 4. That the villagers from the nearby villages Sesa and Kotoha identified the deceased girl as Surabhi Mahanta from Sesa village and the boy was identified as Amit Pegu of village Kotoha. 5. That the postmortem report revealed that the deceased boy, Amit Pegu was aged about 22 years and, Surabhi Mahalna, a girl was aged about 19 years and the cause of death, as per the postmortem report, was shock and hemorrhage, on account of multiple injuries and it confirmed also that Amil Pegu and Surabhi Mahanta had been murdered by slitting their throats with a sharp edged weapon and before their murder; a large number of grievous and simple injuries on various parts of their bodies were inflicted. 6. That after the forensic analysis it was found that clothes removed from the bodies of the deceased and the blood stained earth lifted from the spot was human blood bearing three different blood groups - blood group A+ relating the boy Amit Pegu; blood group B+ relating to the girl Surabhi Mahanta, and blood group O+ did not relate to either of the deceased. 7. That on further investigation, it was found that Amit Pegu and Surabhi Mahanta belonged to different castes but wanted to get married against the wishes of the parents of Surabhi Mahanta who

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belonged to higher caste and who threatened to kill Amit Pegu and his family members and therefore Amit Pegu and Surabhi Mahanta eloped and got married at a Mandir. 8. That the local community leaders had called a meeting and put pressure on the family members of Amit Pegu and Surabhi Mahanta to either dissolve their marriage or face a social boycott. 9. That the police arrested Accused No. 1 and Accused No. 2 parents of the girl Surabhi Mahanta, her younger brother Accused No. 3 and a community leader Accused No. 4 on finding a prima facie case against them for offences punishable under Sections 302 and 34 IPC. 10. That the police filed an application under Section 53 of the Code of Criminal Procedure before the Magistrate to direct Accused No. 3 to give his blood sample and after granting the permission by Magistrate, the police to request the Chief Medical Officer to draw a blood sample of Accused No. 3 by use of such force, as may be necessary and the report received from the forensic laboratory disclosed that the third sample of blood bearing the blood group O+ matched with the blood group of Accused No. 3. 11. That as the police tailed to locate the weapon(s) of offence or find any eye witness or witnesses, they filed an application before the Magistrate, praying that they should be allowed to conduct a narco-analysis test on the accused Accused No. 3 and Accused No. 1 and accordingly the Magistrate allowed this application. 12. That the statements made during narco-analysis, the police recovered a knife said to be used in slitting the throats of the deceased on the basis of statement of Accused No. 3 and heavy sticks used to inflict other injuries found on the person of the deceased on the basis of statement of Accused No. 1 and after forensic analysis it was found in the report that the knife carried traces of ante-mortem human blood bearing blood group A+ and B+ and no blood was found on the heavy sticks recovered by the police and allegedly used by the accused persons for causing injuries on the bodies of the deceased. 13. That the police also recorded the statement of one Raghu Pegu, a Mising, aged about 75 years and a resident of village Kotoha, to the effect that on midnight of 30th April and 1st May, 2009, he had seen Accused No. 1 and Accused No. 3 near the place of recovery of dead bodies and on the basis of this evidence, the police filed a final report.

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STATEMENT OF ISSUES You‟re Honour for the convenience of the Hon‟ble Court the contentions are divided into four issues:

1.

WHETHER MAGISTRATE UNDER SECTION 53 OF Cr. P. C. HAVE THE

POWER TO GRANT PERMISSION TO TAKE BLOOD SAMPLE OF ACCUSED OR NOT?

2.

WHETHER NARCO ANALYSIS TEST IS CONSTITUIONALLY VALID OR NOT?

3.

WHETHER STATEMENT MADE UNDER SECTION 161 IS ADMISSIBLE OR

NOT?

4.

WHETHER THE INVESTIGATION DONE BY THE POLICE IS PROPER OR

NOT?

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ARGUMENTS ON BEHALF OF THE ACCUSED

CONTENTION I – WHETHER MAGISTRATE UNDER SECTION 53 OF Cr. P. C. HAVE THE POWER TO GRANT PERMISSION TO TAKE BLOOD SAMPLE OF ACCUSED OR NOT? According to the Section 53 of the Code of Criminal Procedure, 1973, a medical examination will be done at the request of a police officer not below the rank of a Sub-Inspector. 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 reasonable necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. The section shows that the police officer not below the rank of a sub-inspector can request a registered medical officer to medically examine a person who is arrested. In the entire section, there is no mention at all whatsoever of the Magistrate who is trying a case in which a person arrested is tried or is to be tried. In the present case, for medical examination of Accused No. 3- Rajib Mahanta, the police filed an application under Section 53 of the Code of Criminal Procedure before the Magistrate to direct Accused No. 3- Rajib Mahanta to give his blood sample and accordingly the Magistrate granted permission to the police to request the Chief Medical Officer to draw a blood sample of Rajib Mahanta by use of such force, as may be necessary. In the case State of Maharashtra v. Dyanoba Bhikoba Dagade, 1979 Cri LJ 277, it was held that a Magistrate has no authority under Section 53 to pass an order allowing a medical practitioner to extract blood of the accused. Investigation is a task of the police and such functions must be performed by them only.

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It is abundantly clear that the Magistrate, who passed the impugned orders, had no authority under the provisions of Section 53 to compel the accused to allow the medical practitioner to extract blood from their persons. CONTENTION II – WHETHER NARCO ANALYSIS TEST IS CONSTITUIONALLY VALID OR NOT? The application of Narco-analysis test involves the fundamental question pertaining to judicial matters and also to Human Rights. The legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual‟s rights, liberties and freedom. Subjecting the accused to undergo the test, as has been done by the investigative agencies in India, is considered by many as a blatant violation of Art. 20(3) of the Constitution. It also goes against the maxim Nemo Tenetur se Ipsum Accusare that is, „No man, not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of‟. If the confession from the accused is derived from any physical or moral compulsion it should stand to be rejected by the court. The main issue thus is the question of its admissibility as a scientific technique in investigations and its ultimate admissibility in court as forensic evidence. Article 20(3) Constitution of India and section 161(2) code of criminal procedure states, “No person accused of an offence shall be compelled to be a witness against himself” and “Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture” respectively. In the case of Nandini Sathpathy v. P. L. Dan, AIR 1978 SC 1025 it was held that no one could forcibly extract statements from the accused that have the right to keep silent during the course of interrogation or investigation. An accused person cannot be coerced or influenced into giving a statement pointing to her/his guilt. In the present case police filed an application before the Magistrate, praying that they should be allowed to conduct a narco-analysis test on the accused no. 3- Rajib Mahanta and accused no. 1Debojit Mahanta. The Magistrate allowed this application. The police recovered a knife and heavy sticks pursuant to the statements made by accused during such test. The Police sent the weapons to 60 | P a g e

the forensic laboratory. As per the report received from the forensic laboratory, the knife carried traces of ante-mortem human blood bearing blood group A+ and B+. But, No blood was found on the heavy sticks recovered by the police and allegedly used by the accused persons for causing injuries on the bodies of the deceased. The police forcibly do this test on the accused persons without their voluntary consent or willingness and only the basis of suspicion, they prosecute the accused persons. Regarding the validity & constitutionality of Narco analysis test, recently in the case Smt. Selvi & Others V. State Of Karnataka & Another, Criminal Appeal No. 1267 of 2004, the Hon‟ble Supreme court of India held that narco, polygraph & brain mapping test is „unconstitutional'. It was held that no individual can be forced and subjected to such techniques involuntarily and by doing so it amounts to unwarranted intrusion of personal liberty. The court further went to declare that the investigation techniques were an unconstitutional invasion of privacy enshrined in article 21.S.C while allowing a batch of petitions against these tests noted “in our considered opinion ,the compulsory administration of the impugned technique violates „the right against self-incrimination‟, the court has recognized that the projective scope of Article 20(3) of Constitution of India extends to the investigation stage in criminal cases and when read with section 161(2) of the Code of Criminal Procedure it protects accused suspects as well as witness who are examined during investigation.” The narco analysis test has been largely criticized on the ground that it is not 100% accurate. The experts believe that “some 50% of all individuals are suggestible even while fully conscious, meaning they can be made to believe events that never actually occurred.” Narco analysis test is a restoration of memory which the suspect had forgotten, this result may be doubtful if the test is used for the purposes of confession of crimes. Suspects of crimes may be, under influence of drugs, deliberately withhold information or may give untrue account or may give untrue account of incident persist. What a person says in a state of hypnotic trance depends on a lot of factors, including their personality, how awake they are, how strongly they want to deny certain facts and so on. Dr. Andrade says “under narco analysis when inhibitions are lowered a lot of unconscious mind may say things that he wished were true and not that were necessarily true.”

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Therefore such Narco analysis test which is done without the voluntary consent of the accused person is constitutionally invalid. CONTENTION III -- WHETHER STATEMENT MADE UNDER SECTION 161 IS ADMISSIBLE OR NOT? In the present case, during the investigation the police also recorded the statement of one Raghu Pegu, a Mising old man, aged about 75 years and a resident of village Kotoha, who stated that on midnight of 30st April and 1st May, 2009, he had seen Rajib Mahanta and Debojit Mahanta near the place of recovery of dead bodies. On the basis of this evidence, the police filed a final report. Mere seen of two persons nearby the spot at that day is not a proper ground of belief that only those two persons are murderer. Because he did not see them at the time of murder and he is not an eye witness of the case. Mere suspicion is not a ground for beyond reasonable doubt. The investigating officer recoded his statement under the Section 161 of the Criminal Procedure Code. In the case Jadumani Khanda v. State, 1993 Cri LJ 2701, it was held that statements recorded by the investigating officer under Section 161 cannot be used as substantive evidence before court. Therefore, the statement of Raghu Pegu, made under section 161 is not admissible.

CONTENTION IV -- WHETHER THE INVESTIGATION DONE BY THE POLICE IS PROPER OR NOT? The investigation of the police in the present case is not proper and they did not follow the proper procedure of investigation. It is said due to the following grounds: 1. The investigation officer only tests the blood group of the Accused No. 3- Rajib Mahanta by medical officer. But, mere matching of blood group is not substantive evidence of the murder case. Because many people have O+ blood group in his body. This blood group is not rare one. 2. The police also failed to find any eye witness or witnesses. Only on the basis of suspicion the police arrested the accused persons and framed the charges.

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3. The police did not do finger print test when they seized the weapon. Because As per the report received from the forensic laboratory, the knife carried traces of ante-mortem human blood bearing blood group A+ and B+. No blood was found on the heavy sticks recovered by the police and allegedly used for causing injuries on the bodies of the deceased. Only matching the blood group is not a proper evidence. 4. In the investigation police found a fact that the local community leaders also put pressure on the family members of Amit Pegu to either dissolve their marriage or face a social boycott. Therefore it may happen that such murder was caused by the family members or other relatives of the Amit Pegu or other persons. But, in the investigation police only suspect the family members of Debojit Mahanta and community leader Rana Gogoi. But Police did not suspect or take any statement or relevant evidence on the part of the family of Amit Pegu or his relatives or other villagers. Even though police did not take any evidence from nearest villager about the murder when the body of the deceased are found in the river bank of Sesa. 5. Police did not find any evidence against the accused no. 2- Junmoni Mahanta, accused no. 4-Rana Gogoi. Then why police arrest these people without any reasonable cause, it is also notable. On that day, Rajib Mahanta resided in his grandfather‟s home who lives in Dibrugarh, where he succumbed to injury in his palm when he used to cut fire wood. Rajib Mahanta told this fact at the time of investigation. But in the police report this fact is not mentioned.

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PRAYER

In the light of facts stated, arguments advanced and authorities cited, it can be stated that the four accused person are innocent persons and police arrest these persons as susceptive belief without reasonable and proper evidence. It is therefore prayed before Hon‟ble Court to release or acquit the four accused persons on the ground of benefits of doubts.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

TEZOSWIE DOWARAH ADVOCATE FOR THE ACCUSED.

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Court Fee

Rs. 1.10

IN THE COURT OF THE SESSION JUDGE, DIBRUGARH Dated: 27-12- 2010

CASE NO. 2777 OF 2010 State of Assam (Trough Chief Secretary) J. N. Mishra Official Address: 1st Floor, Civil Secretariat Dispur, Guwahati, Assam

……………….. Complainant

Versus 1. Debojit Mahanta, s/o. Lt. Puna Mahanta, Vill. Sesa, P.S. Borbaruah, Dibrugarh, Assam 2. Junmoni Mahanta, w/o. Debojit Mahanta, Vill. Sesa, P.S. Borbaruah, Dibrugarh, Assam 3. Rajib Mahanta, s/o. Debojit Mahanta,

….. Accused

Vill. Sesa, P.S. Borbaruah, Dibrugarh, Assam 4. Rana Gogoi, s/o. Chandra Gogoi Vill. Sesa, P.S. Borbaruah, Dibrugarh, Assam

EVIDENCE OF AW-1 ON AFFIDAVIT I, SHRI PRAKASH MAHANTA, s/o Late Sashidhar Mahanta, aged about 75 years, Hindu by religion, a resident of Jakai Village, Dibrugarh do hereby solemnly affirm and declare on oath as follows:

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(1) That I am fully acquainted with all the facts and circumstances of the case and I am competent enough to sign and swear this affidavit. (2) That I am the maternal Grand Father of Rajib Mahanta, s/o. Debojit Mahanta, Vill. Sesa, P.S. Borbaruah, Dibrugarh, Assam. (3) That on 30th April and 1st May, 2010 my grandson, Rajib Mahanta resided in my home at Jokai Village, Dibrugarh, where he succumbed to injury in his palm when he used to cut fire wood.

SOLEMN AFFIRMATION I, SHRI PRAKASH MAHANTA, s/o Late Sashidhar Mahanta, aged about 75 years, Hindu by religion, a resident of Jakai Village, Dibrugarh do hereby take oath and state of solemn affirmation that the contents of para. 1 to 3 above have been drafted by my counsel as per the information given by me and the same has been read over to me in my vernacular and after understanding the same I hereby state and declare that they are true to my personal knowledge and believed to be true and correct. Hence verified and signed at Dibrugarh on this 27th day of December, 2010.

Identified by:-

(Advocate)

DEPONENT

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OBSERVATION OF TRIAL PROCEEDINGS (CIVIL AND CRIMINAL)

Mrs. MANASHI BORAH, Advocate, BAR ASSOCIATION; DIBRUGARH.

To Whom It May Concern

This is to certify that Shri Tezoswie Dowarah, a student of Ninth Semester, B.A. LL. B. Course (Examination Roll No. D.U. 58/06, Registration No. 00829 of 2006-2007 of Dibrugarh University) of Centre for Juridical Studies, Dibrugarh University, has completed his practical work of observation „Procedure and Practice of Trial Proceedings (Civil and Criminal)‟ as a Part of the Practical Paper (0905) – “Moot Court, Pre-Trial Preparation and Trial Proceedings” under my guidance. His performance is found to be satisfactory. I wish him all success in future.

Date: 17-01-2011

Advocate Dibrugarh Bar Association, Dibrugarh

Observation of Procedure and Practice- ‘the Criminal Case’

1)

Name of the Court:

In the Court of Judicial Magistrate First Class, Dibrugarh

Date of filing of the case:

03-09-2010

Name of the Complainant:

State of Assam

Name of the Accused:

Sankar Karmakar

Nature of the case:

Criminal

Case No. :

G. R. No. - 936/08

FIR Case No.:

85/10 (Police Station, Lahuwal)

Subject Matter:

Under Section 324 of Indian Penal Code, 1860

Facts of the case In the present case, an FIR was made by Sri Hemanta Kujur, s/o Sri Karik Kujur on 20-08-2010 at 11:00 a.m. at the Lahuwal police station against the accused person Sankar Karmakar. The officer in charge of the police station registered the case under section 324 of Indian Penal Code. According to the statement in the FIR made by Sri Hemanta Kujur, he was the secretary of the Kujur Sangha, Modarkhat, Lahuwal Dibrugarh. Mr. Sankar Karmakar lives nearby the land of Kujur Sangha. On 20-08-2010, at about 9:30 am, Sri Hemanata Kujur, and the president of the Sangha Sri Nana Kujur found that Sri Sankar Karmakar hoeing the land of Sangha. Henta Kujur protest against the work of Karmakar which creates a dispute between themselves. By that time Sri Sankar Karmakar attacked Hemanta Kujur with his hoe and also ran after Nana Kujur with his hoe. After registering the FIR the police officer at 12:30 p.m., went to the place where cause of action arises. After examination of the whole situation the police officer arrested the accused person Sri Sankar Karmakar, and also took the statement of one neighbour namely, Jayanta Tanti who saw the situation and present him as eye witness of the case. The police also present the examination report of the registered medical practitioner A. K. Singh, in where it was stated that Hemanta Kujur was injured by a dangerous weapon. The police refer the case in the Hon’ble court of Judicial Magistrate First class. In the present case three witnesses were presented namely Sri Hemanta Kujur, Sri Nana Kujur and Sri Jayanta Tanti. The Court fixed the date 07-10-2010 for first hearing. The case was filed under section 324 of the Indian Penal Code, 1860 which stated that voluntary causing hurt by dangerous weapons or means.

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Date: 07-10-2010 Hearing No. 1: Taking Evidence (Examination of three witnesses) Witness No. 1 (Statement of the Hemanta Kujur): Hemanta Kujur stated before the court that he was the secretary of the Kujur Sangha. On 20-08-2010 Sri Sankar Karmakar attacked Hemanta Kujur by his hoe due to the dispute arises between them. The reason of dispute was he protests the action of the Sri Sankar Karmakar who lives nearby the land of the Sangha and that day hoeing the land of Sangha. He also stated that the incident arose at the public place. Sri Nana Kujur, President of the Kujur Sangha and Jayanta Tanti were the eye witness of the whole situation. When the accused advocate asked him that in where the incident took place and when the incident arose, whether any people present in there. Sri Hemanta Kujur answered that the incident was took place on the road and many people present at that time because it was a public place. Witness No. 2: (Statement of the Nana Kujur): Nana Kujur stated before the court that he was the President of the Sangha also present in the time of occurrence of the incident. In that day he and Sri Hemanta Kujur protest the action of the Sri Sankar Karmakar who lives nearby the land of the Sangha, Sri Sankar Karmakar attacked Sri Hemanta Kujur by his hoe and also ran after him. He saved his life by ran away from the place. He also stated that the incident took place on the road at the land of Sangha. Witness No. 3: (Statement of the Jayanta Tanti): In this present case the statement of the Jayanta Tanti was noticeable. Because he was present by the prosecution as main eye witness present at the time of occurrence of the cause of action. Jayanta tanti stated that he lives nearby the land of the Sangha. But he did not know anything about the incident. Even he is not a literate person. The police took his thumb impression on the blank paper when they examine the place. Date: 26-10-2010 Hearing No. 2 Argument presented by the advocate of the accused person (Defence Statement) In the present case the advocate appearing on behalf of the accused person (Sri Sankar Karmakar) argued following statement: 1. In the present case the witness no. 3 (Jayanta Tanti) stated before the honorable court that he did not know anything about the incident took place on 20-08-2010 at 11:00 a.m. The police took his thumb impression on the blank paper when they examine the place. The prosecution presented him as the main eye witness of the case. But they failed to proof the incident. 68 | P a g e

2. The Secretary and the President of the Kujur Sangha filed such false FIR because they have personal interest on the land of Sri Sankar Karmakar. They always demanded some portion of the land of Sri Sankar Karmakar. Therefore they registered such false FIR against the accused person (Hemanta Kujur) to create fear in the mind of Sri Sankar Karmakar. 3. The witness no. 1 (Hemanta Kujur) and witness no. 2 (Nana Kujur) stated that the incident was took place on the road at the land of the Sangha. They also stated that many people present at the time of occurrence of the cause of action because it was a public place. But in the present case the prosecution failed to produce any other witness as eye witness except one eye witness i.e. Sri Jayanta Tanti. But he also stated that he did not know anything about the incident before the honorable court. 4. In the present case the police could not seized any dangerous weapon like hoe but only mentioned that Sri Sankar Karmakar attacked on Sri Hemnta Kujur by his hoe. The advocate appearing on behalf of the accused prayed before honourable court to release the accused person who was an innocent person on the grounds of registering a false case against the accused person i.e. Sri Sankar Karmakar and on the basis of benefit of doubts. Date: 08-11-2010 Judgement: The Court of Judicial Magistrate First Class released or acquitted the accused person i.e. Sri Sankar Karmakar after examination of the whole case and finding him as an innocent person and not violates any provision of law.

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2)

Observation of the Civil Case

Name of the Court:

In the Court of Civil Judge No. (Junior Division) I, Dibrugarh

Date of filing of the case:

28-08-2005

Name and Address of the Plaintiff:

Sri Baijnath Baitha, s/o. Late Bhuran Baitha, Chabua Town, Dibrugarh, Assam

Name and Address of the Defendant: Madan Mohan Shah, s/o. Late Gaurisankar Shah, Chabuah Town, Dibrugarh Assam Nature of the case:

Civil

Title Suit No. :

84 of 2005

Subject:

Assam Non Agricultural Urban Areas Tenancy Act, 1955 Facts of the case

In this suit, the plaintiff claimed for declaration of the plaintiff’s title and interest in the suit land as a statutory tenant under the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 as amended up-to date and that he is not liable to be evicted under that Act. The plaintiff also claimed for declaration that the ex-parte decree passed against him on 27-072005 in the Title Suit No. 122 of the 1997 of the Court of the Munsif No. 1 at Dibrugarh, District, Dibrugarh, Assam, is not executable against him in respect of the suit land. The plaintiff claimed for permanent injunction restraining the defendant from executing the said decree dated 27-07-2005 passed in the Title Suit No. 122 of the 1997 of the Court Munsif No. 1 at Dibrugarh, District, Dibrugarh, Assam, in respect of the suit land. Date: 27-09-2010 Hearing No. 1: (Examination of the Plaintiff Witnesses) Witnesses No. 1: (Sri Baijnath Baitha) The plaintiff and the witness no. 1 examined by the court. He stated before the court that there are three brothers in their family namely Baijnath, Jugadi and Rameswar. They lived together. Firstly his elder brother Rameswar came to the place with his wife. But he stated that he cannot include other family members in this case. He was evicted from the land and now he lives in the MES Tiniali, Chabua. In 1997, under the Title Suit No. 122/97, the decree holder Madan Mohan Shah evicted them. He also stated the defendant has two plot of land in Chabua (Dag No. 49 ad 50). He did not know when his elder brother came to chabuah. A person namely Shandhi Hazarika gave Rameswar that plot of land. The defendant came afterwards. The defendant Madan MohanShah filed a suit 70 | P a g e

against me under the Title Suit No. 122/97. In that suit, the ex-parte decree was passed against me due to absence. He also stated he also submitted before the court the Khajana Receipt Copy given to Sri Madan Mohan Shah. He also stated that it was not true that he did not pay any khajana to Madan MohanShah for the disputed land. He stated that proof document copy presented by Madan Mohan Shah was false. The decree granted in favour of Madan Mohan Shah on the disputed land was illegal. Witness No. 2(Judagi Dhobi): The plaintiff’s witness no. 2, Sri Judagi Dhobi stated before the court that he and his brother Baijnath lived together. He stated that he was an illerate person and he did not know what was written in the affidavit. He also did not know whether the plaintiff gave weitten statement or whether the plaintiff gave any application agaisnst the ex-parte decree passed under suit No. 122/97. He stated that the ex-parte decree passed in favour Madan Mohan Shah in the Title Suit No. 177/97 was not legal and valid. Date: 25-11-2010 Arguments presented in favour of the defendant (Madan Mohan Shah) by the advocate: The Advocate appearing on behalf of the defendant stated following points: 1. False statement appears when PW-1 was cross examined. In the plaint and the affidavits it was stated that about 1948 the disputed land was demised jointly to Rameswar Baitha (The elder brother of the plaintiff) and him. But when the witness no. 1 i.e. plaintiff Baijnath Baitha was given his statement before the honourable court, then, he stated that he did not know when His elder brother Rameswar Baitha came to the said land. He also stated that he came after Rameswar Baitha. 2. In the plaint and in the affidavit, the plaintiff stated that after taking possession of the land they out of their own resources fenced around the entire land and built permanent house of pucca structure immediately (made within 5 years) of the demise of the said land to them. But they are failed to prove it. 3. In the plaint and affidavits the plaintiff stated that the Chabua Town Committee which came into being on 21.02.1961 duly recorded the said permanent structures of their residence and holding No. 24 was allotted in the name of Plaintiff, Ward No. C of Chabua Town Committee and the plaintiff duly paid the revenue respect of the land involved. But they did not proof such statement before the Honourable Court. 4. The plaintiff also stated in the plaint and the affidavits that he paid the rent to the defendant in his own name and the defendant accepted it without any objection. But he did not present any documents and proof regarding this statement.

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5. The plaintiff stated that he was a statutory tenant under the Assam NonAgricultural Urban Areas Tenancy Act as amended up-to date in respect of the suit land. But he was not a tenant. 6. In the affidavits the plaintiff stated that in the midst of the proceedings of the said case there was talk of the compromise of the case and it was left with the lawyers of the parties to affect the same, with the case being adjourned for the purpose. He solely dependent upon his advocate to affect the compromise and to inform him the result of the same. The In this case he should have been vigilant law help, those who are vigilant. The plaintiff how can expected this. It was his duty to keep touch with his advocate. The advocate is not support to affect the compromise in his absence and inform him result. Date: 23-12-2010 Judgment: The Hon’ble Court of Civil Judge No. (Junior Division) I, Dibrugarh dismissed the appeal and validate the judgment and decree passed in the Title Suit No. 177 of 1997 by the Court of Munsif No. 1.

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OBSERVATION OF INTERVIEW TECHNIQUES AND PRE-TRIAL PREPARATION

Mrs. MANASHI BORAH, Advocate, BAR ASSOCIATION; DIBRUGARH.

To Whom It May Concern

This is to certify that Shri Tezoswie Dowarah, a student of Ninth Semester, B.A. LL. B. Course (Examination Roll No. D.U. 58/06, Registration No. 00829 of 2006-2007 of Dibrugarh University) of Centre for Juridical Studies, Dibrugarh University, has completed his practical work of observation „Interview Techniques and Pre- Trial Preparation‟ as a Part of the Practical Paper (0905) – “Moot Court, Pre-Trial Preparation and Trial Proceedings” under my guidance. His performance is found to be satisfactory. I wish him all success in future.

Date: 17-01-2011

Dibrugarh Bar Association, Dibrugarh

INTRODUCTION Dealing with the client plays important role in the success of a lawyer and therefore it should be paid due attention. Interviewing the clients is an art and only the experience will enable a person to understand it fully. When an aggrieved person comes to the advocate, he is just like a patient who comes to the medical practitioner for treatment. Therefore, the advocate should give patience hearing to him and try to encourage him to reveal him everything that is within his knowledge. He should hear all the matters spoken by the client and thereafter he should examine every document produced by the client. He should apply the relevant law to the facts gathered from the client and thereafter he should give his advice. He should make honest and fair appraisal of the chances of success of the case and advice the client accordingly. Dealing with the clients plays important role in the success of a lawyer. Soft, decent and fair dealings with the clients make a lawyer popular amongst the client. If the lawyer takes advantages of the ignorance and illiteracy of his client, it will not pay him in the future. It will soon make him unpopular amongst the Client and also among the members of Bar and Bench. Losing the faith of the clients will prove injurious to his practice as a lawyer. In dealings with their clients the lawyers must be fair and honest. He must furnish true and correct account of all the moneys that he receives on behalf of his client. A lawyer must be prompt in his correspondence to his clients. He should try to have contact with his client and inform them about the developments in their cases. He should make honest and fair appraisal of the chances of success of a case and advise the client accordingly. He should not advise the client that he will get success while in fact he is fully aware that the client has no chance to win. The adverse opinion given by him may displease the client but his appraisal of the chances of success will enhance his reputation as a lawyer in the long run. The advocate should give patient hearing to the client and note down all the facts disclosed by him and thereafter find out the relevant facts and relevant facts should be noted down. The events should be arranged and noted down in the order of the dates. The documents produced by the client should also be carefully studied. Thereafter the statutory law should be collected thereon. It must be ascertained as to the law applicable to the case. It is better to state the relevant statutory provisions and thereafter give the judicial decisions in support of the interpretation adopted. Thus, the precedent should be cited after stating and explaining the relevant statutory provisions. Before presenting the judicial decisions in support of the case, they must be carefully examined and the advocate must be ensured that they are in favour of his client. 73 | P a g e

Some lawyers try to avoid the discussion with the client. This is not good. Sometimes the intelligent client may provide valuable suggestion which may be helpful in winning the case. The facts of the case, the statutory provisions along with the relevant sections and the relevant cases should be noted down properly so that they may easily be presented before the Court at the time of hearing of the case. An advocate should keep ready the decisions which support him but he should study the authorities that his adversary is likely to cite. It is better to begin with the statutory provisions relevant to the case. The statutory provisions should be interpreted properly and the judicial decisions should be cited to support the interpretation adopted. The best and most relevant cases should be selected and cited. It is better to pick out the most relevant passages from the report and place them before the Judge. After the determination of relevant facts and judicial decisions, the relevant evidence should be collected. In collecting the evidence it should always be kept in mind that the evidence should be collected not only to support his case but also to prove that the evidence produced by the adversary is untrue. The stress should be on the quality of the evidence, rather than the quantity of the evidence. As far as possible, the primary evidence should be selected. In dealings with the client an advocate must have in mind the rules of the Bar Council of India dealing with his duties towards his client. The Rule makes it clear that an advocate is bound to accept any brief in the Courts or tribunals or before any other authority in or before which he proposes to practice at fee consistent with his standing at the Bar and the nature of the case. An advocate is required, at the commencement of his engagement and during the continuance thereof makes all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client's judgment in either engaging him or continuing the engagement. Besides, the rule provides that an advocate shall not act on the instructions of any person other than his client or his authorized agent. An advocate shall not stipulate for a fee contingent on the result of litigation or agree to share the proceeds thereof. The Rule makes it clear that an advocate shall not adjust fee payable to him by his client against, his own personal liability to the client which liability does not arise in the course of his employment as an advocate. An advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. The Rule provides that an advocate should keep accounts of the client’s money entrusted to him and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective 74 | P a g e

dates and all other necessary particulars. Where moneys are received from the client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses and during the course of the proceedings, no advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees. Where any amount is received or given to him on behalf of his client, the fact of such receipt must be intimated to the client as early as possible. The Rule also, provides that a copy of the clients account shall be furnished to him on demand provided the necessary copying charges are paid. An advocate is required by the Rule not to lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. However, it has been made clear that an advocate shall not be held guilty for breach of this Rule if, in the course of a pending suit or proceeding and without any arrangement with the client in respect of the same the advocate feels compelled by reason of the Rule of the court to make a payment to the court on account of the client for the progress of the suit or proceedings. These are some of the rules made by the Bar Council of India. In civil matters the Code of Civil Procedure and Indian Evidence Act are essential for institution of suit. The evidence may be oral or documentary. Section 59 of the Evidence Act provides that all facts, except the contents of the document, may be proved by oral evidence. The general rule is that hearsay evidence is no evidence. However, there are certain exceptions to the rule, e.g., Sections 18 to 24, 32, 33, 34 and 35 of the Evidence Act. Section 60 of the Evidence Act enacts the general rule that hearsay evidence is no evidence. However there are certain exceptions to this general rule and the sections of the Evidence Act related to the exceptions are 18 to 24, 32, 33, 34 and 35. These sections should be read carefully and their provisions should always be kept in mind while preparing the case. Sections 61 to 90 of the Evidence Act deal with the documentary evidence. These sections should be read carefully. Section 61 of the Act provides that the contents of documents may be proved either by primary or by secondary evidence. Section 62 of the Evidence Act provides that primary evidence means the document itself produced for the inspection of the Court. Explanation 1 to section 62 provides that where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only each counterpart is primary evidence as against the parties executing it.

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Explanation 2 to section 62 provides that where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest, but, where they are all copies of a common original, they are not primary evidence of the original. The primary evidence is thus the best evidence. In the eye of law affords the greatest certainty of the fact in question. The secondary evidence should be given in the absence of the primary evidence. Suit is instituted by the presentation of a plaint or in such other manner as may be prescribed. In every plaint facts are required to be proved by affidavit. Thus, suit is commenced by presentation of the plaint. The statement of a plaintiff regarding his claim is taken as a plaint. Actually through the plaint the plaintiff presents his case along with cause of action, etc. After the plaint being filed the party against which it has been filed is also given an opportunity to admit or deny the facts stated in the plaint and present his own case. This is called written statement. The pleadings, thus, may be taken to mean plaint or written statement. The provisions of the Civil Procedure Code deal with the pleading in civil matters. Every pleading is required to contain a statement in a concise form of the material facts on which the party filing the plaint relies for his claim or defence. A plaint must not contain the evidence by which they are to be proved. Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers. After a suit being duly instituted a summons may be issued to the defendant to appear and answer the claim. It may be served in the manner prescribed. On the other hand in criminal matters the investigation, inquiry and trial proceedings etc. are regulated by the Code of Criminal Procedure and Indian Evidence Act. In Criminal cases the complaint is one of the manner in suits the Magistrate takes cognizance of an offence. Actually in criminal case complaint is what a plaint is in a civil case. In preparation of complaint, name of the court, case no., year, name of the parties, nature of complaint, facts, relief, signature, annexture are required to be paid due attention. As a part of the practical paper ‘Moot Court, Pre-Trial Preparation and Trial Proceedings observation’ I also visited the chambers of an advocate and observe the interview techniques and pre-trial preparation in civil and criminal matters of an advocate while dealing with a client.

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OBSERVATIONS 1. Basic Information Name of the Client: Mrs. Arundhati Sarma Religion: Hindu Address of the Client: Jaya Nagar, Moran Town, P.O. Moranhat-785670, DistrictDibrugarh, Assam. Name of the Advocate: Mrs. Manashi Borah, Advocate, Dibrugarh Bar Association. Nature of the Case: Criminal (Claiming Maintenance by wife under Section 125 of Criminal Procedure Code, 1973) On 3rd December, 2010, Mrs. Arundhati Sarma came to the chamber. The age Mrs. Sarma is as about 40 years. His husband name is Mr. Ajay Sarma, who is an employee of State Bank of India, Moran Branch. The advocate asked her what happened in her life. Mrs. Sarma said that Mr. Ajay Sarma and she got married on 08th October, 2006. Both of them lives in the area of Jaya Nagar, Moran Town in a rented house which rent is almost 2000 Rupees. Both of them maintain her conjugal life and there life was running happily. On 2nd May, 2008, a female baby also came to their life. Mr. Sarma did not want a female child. From this a break down period of their life was started. Day by day their marital life was going to a miserable condition. Mr. Sarma lived separatly from his wife and children in Peoli Nagar, Moran Town. Mrs. Sarma was not an employee and she always wants to live with Mr. Sarma. Mrs. Sarma was an orphan since born. Mrs. Sarma does not maintain herself as well as her baby. She also did not pay rent to the landlord who demand the rent for the house and said her that if she did not able to pay rent, then she must leave the house. Mr. Sarma did not pay any amount as allowance to maintain to his wife. Therefore she came to the advocate chamber to get justice and save her life as well as her baby. After hearing of the story of life of Mrs. Sarma, the advocate asked her certain queries regarding the case: Q. No.1. What procedure follows in solemnizing the marriage? Ans. They solemnized their marriage by customary rituals and register their marriage in the Court of Dibrugarh. 77 | P a g e

Q. No. 2. Whether she has any documentary proof of their marriage? Ans. She told that she has certain documentary proof like their marriage cards and photographs. Q. No. 3 What is the full address of her husband and how much salary he earns fro his job? Ans. She told that her husband is now lives in Peoli Nagar, Moran Town, P. O. Moranhat-785670, Dist. Dibrugarh, Assam. He earns about 35000 per month from his job in the State Bank of India, Moran Branch. Q. No. 4 How much amount she claim as maintenance allowance? Ans. She said that she claims 10000 Rupeees as maintenance. As because of she lives in a rented house which rent is Rs. 2000, and her other cost like maintenance of her baby, and other expenses of her day to day life. After this the advocate told her to come on the 5th December, 2010 with the documents which she has had. The advocate claims a nominal amount for the filing the case in the Court of Chief Judicial Magistrate, Dibrugarh. The advocate did not claim any money as her professional fees because the client’s economic condition is too poor and the advocate wants to give justice for her client. The advocate advise Mrs. Sarma to file the case in the Lok Adalat if she is unable to pay the required cost for filing the litigation in the court and maintain the general procedure. Pre-trial Preparation for filing of Complaint On 5th December, 2010 Mrs. Sarma handed over the copies of the relevant documents and other necessary materials of proof. After observation of all the documents the advocate prepares the case and prepares the application for claiming maintenance. 1. The advocate firstly prepares an application for claiming maintenance. The advocate firstly writes the name of the court. The complaint is filed before the Court of Chief Judicial Magistrate, Dibrugarh District and Session Judges’ Court, Dibrugarh. The advocate informed me that complaint must be made to a Magistrate. This distinguishes it from FIR (First Information Report). The FIR is given to a police officer and not to a Magistrate. The complaint may be made orally or in writing but it must contain allegation that some person, whether known or unknown has committed an offence. 78 | P a g e

After the name of the court, she mentioned the number and year. 2. Secondly, the advocate mentioned the name of the parties and their full addresses. 3. The nature of the complaint is state after the name of the parties. The nature of the offence along with the relevant section (Section 125 of the Code of Criminal Procedure, 1973) is also mentioned in the Complaint. 4. After indicating the nature of complaint the facts relating to the event are stated clearly. 5. After stating the facts of the case, the relief sought to be obtained from the court is also mentioned. 6. After that the advocate takes the signature of the claimant (Mrs. Arundhati Sarma). The complaint is also signed by the advocate. The advocate also prepares the affidavits for it. 7. The advocate also attached the necessary evidences (documents) to the complaint. Thus the claim of Maintenance of Mrs. Arundhati Sarma, in the form of complaint is prepared and filed before the Court of Chief Judicial Magistrate, Dibrugarh District and Session Judges’ Court, Dibrugarh.

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2. Basic Information Name of the Client: Mr. Lalit Mudoi

Religion: Hindu

Address of the Client: Tiloi Nagar, P.O. Moranhat-785670, District- Dibrugarh, Assam. Name of the Advocate: Mrs. Manashi Borah, Advocate, Dibrugarh Bar Association. Nature of the case: Civil On 16th December, 2010 Mr. Lalit Mudoi came to the chamber of the advocate. He age is about 65 years. He was a retired teacher. Mr. Mudoi came to the chamber due to a particular matter related with his land which is situated in the Tiloi Nagar, Moranhat. Mr. Mudoi stated that he was an owner of a house situated in that land. He lets out the house on hire to Mr. Jugal Kishor Gogoi, age 35 years two years back which rent is about 1200 Rupees (Including all taxes and other expenses). The tenant Mr. Jugal Kishor Gogoi sub-let a part of its holding to Mr. Shyamal Kumar Das without the permission of Mr. Lalit Mudoi (the owner) at the monthly rent of Rs. 1300. The tenant also failed to pay rent for last 8 months. Mr. Mudoi, on the other hand in need of the holding for his own personal use and occupation, he served a notice upon to Mr. Jugal Kishor Gogoi, Mr. Shyamal Kumar Das terminating their tenency and directing them to vacate the house. The tenants did not comply with the notice, did not vacate the hose, and did not pay rents. Therefore Mr. Lalit Mudoi came to the said advocate chamber for justice and returns back his property. After hearing of the facts of Mr. lalit Mudoi, the advocate asked him certain queries regarding the case: Q. No.1. Whether any agreement is present or not? Ans. The owner said that there was an agreement between tenant and himself. Q. No.2. Did he have any proof of documents related with his ownership? Ans. The owner said that he has the Jamabandi copy in his name, Khajana receipt. Q. No.3. When the tenant sub-let a part of holding to Mr. Shyamal Kumar Das? Ans. He answered that Jugal Kishor Gogoi sublets the holding to Mr. Shyamal Kumar Das an about 6 month’s back without permission obtain from him. After this the advocate told his client to come on the 20th December, 2010 with the documents which he has had. The advocate claims a nominal amount for the filing the case in the Court and her fees for the case.

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On 20th December, 2010 the client handed over the copies of the relevant documents and other necessary materials of proof. After observation of all the documents the advocate prepares the case. Pre-trial Preparation for filing of suit: In civil cases a suit is required to be instituted by presentation of a plaint or in such other manner as may be prescribed. In every plaint facts are required to be proved by affidavit. In the present case the advocate after observation of all the documents prepare the plaint for filing the suit in the Court of Munsif. The plaint is contained, the name of the court where suit is brought, the name, description and place of residence of the plaintiff and defendant, the facts constituting the cause of action and when it arose. The facts showing that the court has jurisdiction. The relief which the plaintiff claims i.e. eviction of the defendant from his land and house also included in the plaint. A statement of the value of the subject-matter of the suit for the purpose of the jurisdiction and court fees (according to the Indian Court fee Act) is also mentioned. The subject matter of the suit is immovable property, therefore a description of the property, its sufficient identification, its Dag no., record of settlement of survey also mentioned in the plaint. The evidentiary documents like jamabandi copy, khajana receipt and all other documents are attached with the plaint. The affidavits are also prepared. The advocate takes signature from the plaintiff on the plaint and affidavits. She also put her signature in the necessary are of the plaint and affidavits. After that he filed the title suit in the above mentioned court. Thus the advocate prepares the suit for filing before the court.

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COMMENT

After observation of the works of the concern advocate, it is found that she follows all necessary norms and duty of an advocate in advocacy profession. She heard all the matters spoken by the clients and thereafter he should examine every document produced by the clients. She applied the relevant law to the facts gathered from the client and thereafter she gave advices. She made honest and fair appraisal of the chances of success of the case and advice the client accordingly. The advocates dealt with the client very softly, decent and fairly which make her popular amongst the clients. The advocate gave patient hearing to the client and note down all the facts disclosed by her and thereafter find out the relevant facts and relevant facts should be noted down. The events were arranged and noted down in the order of the dates. The documents produced by the client also carefully studied. Thereafter the statutory law collected. It is better to state the relevant statutory provisions and thereafter give the judicial decisions in support of the interpretation adopted. The advocate also did not demand high money as her professional fees if the client’s was economic condition is not good. The advocate has well-developed chamber. She collected lots of books such as legal books, case laws reports etc. Telephone, Internet facilities also have in her chamber. The advocate also informed to the clients about the recent development of Lok Adalat system (the alternative dispute resolution system). The advocate also prepares the necessary documents for filing the suit or complaint or petitioner in proper manner. After prepare of whole the documents, she informed the clients about the preparation of the documents and also what were written in the application plaint or complaint, petition etc. It is essential for the clients to know about his application filed before the court. In the observation of the whole work of the above mentioned advocate it can be said that the advocate follows all the rules of professional ethics under the Advocates Act and the rules of the Bar Council of India.

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