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Miscarriage of JusticeLeaving aside issues of evidence and proof, one possible definition of "miscarriage" in the context of criminal justice will now be suggested, and it is one which reflects an individualistic rights-based approach to miscarriages of justice. A miscarriage occurs as follows: whenever suspects or defendants or convicts are treated by the State in breach of their rights, whether because of, first, deficient processes or, second, the laws which are applied to them or, third, because there is no factual justification for the applied treatment or punishment; fourth, whenever suspects or defendants or convicts are treated adversely by the State to a disproportionate extent in comparison with the need to protect the rights of others; or, fifth, whenever the rights of others are not effectively or proportionately protected or vindicated by State action against wrongdoers or, sixth, by State law itself.
These six categories, which revolve around themes of breach of rights of suspects/defendants, the disproportionate treatment of suspects/defendants or the non-vindication of the rights of victims, might be termed direct miscarriages. In addition, it may be possible to derive from their infliction a seventh, indirect miscarriage which affects the community as a whole. A conviction arising from deceit or illegalities is corrosive of the State's claims to legitimacy on the basis of its criminal justice system's values such as respect for individual rights. In this way, as well as the undesirable fate of the individual, the "moral integrity of the criminal process" suffers harm. Moreover, there may be practical detriment in terms of diminished confidence in the forces of law and order leading to fewer active citizens aiding the police and fewer jurors willing to convict even the blatantly "guilty". It is arguable that this indirect form of miscarriage can exist independently as well as contingently in two respects. One is that a breach of "the principle of judicial legitimacy" should be of concern even if there is an accurate and fair determination of guilt or innocence. Secondly, it still produces a great moral harm even if, so far as the individual is concerned, there is a mistake but no real harm is inflicted (say, when a person imprisoned for life is wrongfully convicted soon afterwards of a minor motoring offence). It is therefore argued that the State itself should avoid actions or processes which might damage the integrity of the system. Consistent with this concern, lawyers, whether acting for prosecution or defence, are reminded that they are not the ciphers of their clients but owe duties of integrity to the system.
In summary, there are four points to infer from the definitions of "miscarriages" adopted in this chapter. Firstly, the meaning is not confined to miscarriages in court or in the penal system. Miscarriages can arise on the street when the police unjustly exercise their coercive powers, as may be increasingly the case if the rationale of criminal justice is switched from conviction to surveillance. Secondly, miscarriages can be institutionalised within laws as well as ensue from failures in the application of laws. Thirdly, a miscarriage of justice must involve a shortcoming for which there is a degree of State responsibility. In these days of private security services and prisons and other forms of "hollowing out" of government, it is not essential that an official agency was involved in the proximate cause of the miscarriage so long as the function leading to the miscarriage was of a public nature and sanctioned by the State. But deceit, neglect or violence by private persons or bodies may inflict gross hardship and unfairness yet are not necessarily attributable to any deficiency in the criminal justice system. We do not normally assign the phrase "miscarriage of justice" to a breach of contract or a trespass - unless a public agency was to blame or the State failed to offer any system for resolution or redress. The fourth point is to reiterate what was asserted at the outset: justice and failures of justice should primarily be defined with respect to rights. This last claim will now be explored further, but, if substantiated, will imply a strong duty on the part of the State to be vigilant about miscarriages and to be willing to rectify them, even if at some cost to aggregate happiness and traditions of utilitarian calculus.
The best way to keep your legal problems from becoming destructive and expensive is to start with reliable information. Legal services help line has been set up to help you to reduce conflict and to keep you out of lawyers offices and out of court. We are here to enlighten you to deal with your legal problem with confidence and maturity.
Ask yourself the following questions
1. Isn't there some good way to get through it easier and cheaper ?
2. What can put you in control and make your legal problem smoother, cheaper, faster, less aggravating and less painful ?
3. When, why and how to approach lawyer ?
4. What to ask your lawyer ?
5. Why one shouldn't go off to a lawyer without any information or preparation ?
6. Want to know what happens when you go into a lawyers office and you don't know anything ?
7. How to know what should you ask your lawyer ?
8. How to gain your lawyer's respect ?
9. How to control the legal gain to your advantage ?
Few points you should ask a lawyer1. Ask your lawyer his experience in this field
2. Ask him whether he handled matters similar to yours.
3. What could be the possible out come of your case.
4. Whether you have any alternatives in solving the matter.
5. How long could it take to solve the matter.
6. Ask him about his fees. What could be the total expenses
7. How will he keep you informed of the progress of your case.
8. Ask him what kind of approach will he take to solve the matter.
9. Who else will work in your matter.
What are The professional obligations of a lawyerAll lawyers have to maintain the code of conduct as prescribed :All lawyers have to maintain the code of conduct as prescribed : Privileges, ethics, rules of professional conduct: lawyers have high standards and lots of duties to uphold. Your lawyer must represent you ethically, zealously and within the bounds of the law.
Here are some basic ethical and professional rules your lawyer must follow:
Your lawyer must competently analyze legal issues and exercise knowledge of the law applicable to your case. He or she must communicate with you in a timely and effective manner.
Your attorney owes you, as the client, a duty of loyalty. Your lawyer cannot simultaneously represent you and as well as another client with legal interests that conflict with yours. An example of an obvious conflict would be representation of both the plaintiff and the defendant in a law suite.
Your lawyer is required to follow your directions in handling your case until and unless those directions given by you are illegal.
Your lawyer is under the duty to keep your personal property separate from his or her own property, and must keep your money in an escrow account. So that any time you demand it, your lawyer must return your money or property.
Your lawyer may have other responsibilities to you, depending on your case and the ethical rules that apply in your jurisdiction.
Are your discussions with your lawyer confidential?Yes.When you speak with a lawyer about a legal matter, your communications with that lawyer are privileged. This means that subject to some very limited exceptions, and unless you grant permission, your lawyer cannot disclose to a third party any information that you provided. Yes. When you speak with a lawyer about a legal matter, your communications with that lawyer are privileged. This means that subject to some very limited exceptions, and unless you grant permission, your lawyer cannot disclose to a third party any information that you provided.
What is Contempt of Court?Under the Contempt of Courts Act, 1971, contempt means civil and criminal contempt. Willful disobedience to any judgment, decree, direction, order, writ or other process of a Court, or willful breach of undertaking given to the Court would amount to civil contempt under the Act. Publication of any matter by words that may be spoken or written, or by way of visible representations or otherwise or the doing of any of the following acts, would amount to criminal contempt:
the doing of any act which scandalizes or tends to scandalize the authority of any Court;
the doing of any act which lowers or tends to lower the authority of any Court;
the doing of any act which prejudices or interferes or tends to interfere with the due course of any judicial proceeding;
the doing of any act which interferes or tends to interfere with the administration of justice in any other manner;
the doing of any act which obstructs or tends to obstruct the administration of justice in any other manner.
Under the Act, Court would mean to include Tribunal, if such Tribunal is entrusted with judicial functions. However arbitrators cannot be brought within the scope of the word 'Court' and cannot be held to be 'Court', unless such arbitrators are appointed through the Court.
However the following cannot be held to be contempt:
innocent publication and distribution of matter;
fair and accurate report of judicial proceedings;
statements made in good faith, concerning the Presiding Officer of any subordinate Court (Court subordinate to the High Court) to any other subordinate Court or to the High Court;
in certain cases, publication of information relating to proceedings in chambers or in camera.
Few tips to bounce back from bankruptcyIf you follow these tips given below you can become debt-free and stay debt-free. Money is power nothing less nothing more. Our thoughts about money generally falls under three categories:
1. We spend most of our time and energy worrying about and talking about our money problems. This is where you will find most of us complaining I' am not going to have enough money to.
2. The next step is to elevate our thinking by setting goals for our self. This second category is where we spend most of our time saying things like "I want to achieve this goal I have set, but I have this money problems
3. The next category is where we say things like "I have this goal, and it may be very tiny goal, but it is my goal and this is my next step I am going to take to make this goal a reality. "This is where we want you to be if you are already there congratulations
If not follow the following tips
a. Release things that take up space in your life
b. Pay what you can
c. Release people from what you owe them
d. See the highest good for everyone
e. Give thanks for your debts
f. Don't brag about your plans
g. Pride shouldn't stand in the way of your prosperity
h. Be patient with your self
i. Learn from your experience
How to change your lawyerEvery client has a right to discharge his or her lawyer at any time for any reason or no reason at all, irrespective of the fact whether or not any money is owed. Off course you will continue to owe your formal lawyer for time spent working on your case.
If your lawyer is not performing to your satisfaction, you may wish to send a letter (keep copies the letter) stating all very specifically what needs to be changed. In spite of your discontent expressed to your lawyer there is no improvement, then you may start looking for another lawyer.
Something's cannot be changed: for example, when you loose trust and confidence in your lawyer or nothing is worse than filling trapped in a bad relationship with your lawyer. Then the only way out is to change your lawyer.
As par Ed Sherman for practical divorce solution If your spouse has an attorney, it would be unwise to fire your old attorney until you have another, and your new attorney will arrange the transfer. However, if your spouse has no attorney, you can consider taking over the case yourself. If you discharge your attorney to take over yourself, do it in writing and keep a copy of the letter. If the attorney has filed documents in court, you must also file a Discharge of Attorney naming yourself as the new attorney "In Pro Per" or "Pro Se," which means that you represent yourself. We have a Discharge of Attorney form that you can copy and use. Copy or print it, fill it out, sign it, make three copies. Have someone (not you) mail a copy to your ex-attorney, your spouse and your spouse's attorney, if any. That person signs the Proof of Service at the bottom, then you file it with the court clerk. Send a letter to your ex-attorney politely explaining that you have taken over your own case and request that all files and papers be immediately forwarded to you. An attorney cannot ethically delay turning over files and Documents merely to pressure you into payment of amounts owed. Failure to promptly forward files as you request is a breach of the attorney's ethical duty to you. In case of unreasonable delay, fire off a letter of complaint to the local and State Bar associations with copies to your old attorney. Meanwhile, you can always get copies of court documents from the court clerk.
First Information Report (FIR)The information given to a police officer and reduced to writing as required by the following sections is known as the "first information" and the corresponding report is understood to mean the "first information report (FIR)" Section 154(1) of the Code of Criminal Procedure provides that every information relating to the commission of a cognizable offence (i.e. an offence for which a person may be arrested even without warrants), if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, be read over to the informant, every such information whether given in writing or reduced to writing, shall be signed by the person giving it, substance thereof shall be entered in a book in a prescribed manner.
S154 (2) provides that a copy of the information as recorded under sub section (1) shall be given free of cost to the informant.
S154(3) provides that if the information is not recorded by the police officer,the informant can approach the Superintendent of Police by sending him the substance of the information by post. Such officer can investigate the case himself or direct an investigation by his surbodinate officer.
Where any information disclosing a cognizable offence is laid before the officer-in-charge of a police station, he has no option but to register the case and thereafter start investigations.
The principal object of the FIR from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty.
The word "information" means something in the nature of a complaint or accusation, or at least information of a crime, given with the object of putting the police in motion in order to investigate, as distinguished from information obtained by the police when actively investigating a crime.
In determining whether a report is or is not a FIR, regard should be had to the following:-
It should not be vague or indefinite but an information of facts showing commission of a cognizable offence enabling the police or giving scent to take up investigation.
It may be given by any one, not necessarily the person aggrieved or by someone on his behalf.
It need not name any one as offender or witness; nor need it state the circumstances of the commission of the crime. It is the first information, which sets the police in motion.
No duration of time is fixed as reasonable for giving information to the police. Mere delay, therefore, in lodging the FIR is not necessarily, as a matter of law, fatal to the prosecution. Where delay in filing the FIR in a rape case had taken place, the Court was satisfied by the explanation that since the honour of a family was involved, the complaint was delayed.
FIR does not constitute substantive evidence (cannot be used as evidence in itself), and it can, however, be used as a previous statement for the purpose of corroboration or contradiction of its maker. The FIR can in no means be utilised for contradicting or discrediting other witnesses.
FIR by the Accused to the police stands on the same footing as an information by another person except that the confessional part, if any, must be excluded.
S 155 deals with information relating to the commission of a non-cognizable offence (arrest with a warrant). S155 (1) provides that a police officer receiving information of a non-cognizable offence must enter the substance of it in a book kept in such form as the State Government may prescribe and then refer the informant to the Magistrate.
The word "offence" includes an intended offence or offence imminently likely to take place S155 (2) provides that a police officer must not investigate a non-cognizable case without an order of a Magistrate having the power to try the case or commit it for trial.
Court has held that a Magistrate should not order investigation in a non-cognizable offence arbitrarily and capriciously. He must apply his mind to the facts and see whether there are reasonable grounds for believing that an offence has been committed.
DISCLAIMER: This discussion is general in nature and is not intended to and does not create a lawyer/client relationship. This discussion should in no way be relied upon or construed as legal advice, particularly since most legal outcomes are highly dependent on the facts of a particular case or situation. This discussion is provided on the condition that it cannot be referred to or quoted in any legal proceeding; if this condition is unacceptable to you, immediately delete this email and do not keep a copy of it in any form. The reader or recipient is strongly urged to consult with a lawyer for legal advice on these matters. Any reliance on the discussion information by someone who has not entered into a written retainer agreement with the lawyer providing the discussion information is at the reader's or recipient's own risk.
Child Custody law in India: Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
In any proceeding under this Act, the court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible and may, after the decree,
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