25 May 2020
POLICE IS friendly with us charge sheet not filed yet in 380 IPC. then which report we pray to file to police that accused become acquittal or in best favor for accused FINAL REPORT OR FALSE REPORT OR CLOSER REPORT. in FIR had wrote recovery had made complainant is also in our favor. but some reason he can not make settlement he said i will help you
25 May 2020
Closure Report is best for the accused, the notice of which shall be sent to the complainant at that time and if he is in your favour then he may also make a statement to the effect that he accepts the closure report and do not want to file any protest petition against such closure report.
26 May 2020
Closure reports are even filed in the cases/FIRs lodged under section 302 IPC even though the same are non-bailable, non-compoundable. It is the investigation of the IO which prevails and not the the allegation leveled in FIR. If nothing is found against the accused, he is liable to be discharged.
26 May 2020
It is really disappointing that the expert of the stature of Mr. Raj Kumar Makkad is suggesting ways and means to defeat justice and fair play.
In my considered opinion, the persons with the mindset as the author who proclaims themselves to be above the Law and its Rule and they can get anything and everything done by overawing the public authorities ought to kept out of bounds of this platform and they ought to informed accordingly.
All the suggestions emanating from this public platform ought to be in furtherance of Justice and Rule of Law, not tainting or derailing it.
26 May 2020
It is surprising the read the comments of one of the experts that I am permitting the persons like the author who don't care for Law. I have not called the author to post his query here and have even not persuaded all other experts to reply favourably to him strictly in consonance with his mindset but alleging only against me shows something otherwise.
The author is not dependent upon our advice as the complainant is also with him. Kindly read facts again for that purpose. Once complainant is ready to make compromise then what shall we do? Can we replace ourselves with the complainant and shall become personally parties to the said litigation?
27 May 2020
The police has registered FIR u/s 380 IPC on considering the allegations of complaint . It is a matter of investigation by IO, who can not (untill it is intentional due to any consideration) ignore the facts and has to submit his report. The report of IO has to be scruitinized by SHO and SP/ACP before for forwarding to the Court, which reduces chance of mal-practice/ extranous consideration (although it can not be ruled out). Recovery of property from the possession of accused can not be ignored by IO/SHO and higher officials which hasto be approved by PP/ APP before submission of final report/ closure report, as the case may be. Although complainant may consider to compromise but it can not be done before filing of charge sheet (but not on filing closure report) in the Trial Court. Accordingly, I, respectfully differ with the opinion and advise of expert Sh. Raj Kumar Makkad.
27 May 2020
There is only one option open to the accused if desires honorable acquittal - he should settle the issue with the complainant by expressing his genuine remorse and assurance in avoiding such activities in future and seeking his pardon. Then he should approach the High Court under Section 482 CrPC expressing the same sentiments and the respondent confirming the same. If so, the High Court may discharge him at his direction. However, the tone and tenor of this posting (as well his earlier posting} suggests that the author harbours no such regret or remorse.
27 May 2020
There is no requirement to show remors or pardon here rather this is a requirement before the complainant. I can safely be concluded that this might have been adopted by the author/accused which ultimately has led the complainant to make an amicable settlement with him. The course of section 482 IPC can definitely be adopted but here the sole question on the part of the author is ti know which way is favourable for the accused-closure report or final report. When the expert has to reply within boundaries then there is no necessity to cross the borders.
Yes, there are boundaries and those boundaries ought not be crossed. But those boundaries are those of Professional Ethics, which are best expreesed in the following resolutions of David Hoffman:
1. I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that “if a river swell beyond its banks, it loseth its own channel.”
15. When employed to defend those charged with crimes of the deepest dye, and the evidence against them, whether legal or moral, be such as to leave no just doubt of their guilt, I shall not hold myself privileged, much less obliged, to use my endeavors to arrest or to impede the course of justice, by special resorts to ingenuity, to the artifices of eloquence, to appeals to the morbid and fleeting sympathies of weak juries, or of temporizing courts, to my own personal weight of character–nor finally, to any of the overweening influences I may possess from popular manners, eminent talents, exalted learning, etc. Persons of atrocious character, who have violated the laws of God and man, are entitled to no such special exertions from any member of our pure and honorable profession; and, indeed, to no intervention beyond securing to them a fair and dispassionate investigation of the facts of their cause, and the due application of the law. All that goes beyond this, either in manner or substance, is unprofessional, and proceeds, either from a mistaken view of the relation of client and counsel, or from some unworthy and selfish motive which sets a higher value on professional display and success than on truth and justice, and the substantial interests of the community. Such an inordinate ambition I shall ever regard as a most dangerous perversion of talents, and a shameful abuse of an exalted station. The parricide, the gratuitous murderer, or their perpetrator of like revolting crimes, has surely no such claim on the commanding talents of a profession whose object and pride should be the suppression of all vice by the vindication and enforcement of the laws. Those, therefore, who wrest their proud knowledge from its legitimate purposes to pollute the streams of justice and to screen such foul offenders from merited penalties, should be regarded by all (and certainly shall by me) as ministers at a holy altar full of high pretension and apparent sanctity, but inwardly base, unworthy, and hypocritical–dangerous in the precise ratio of their commanding talents and exalted learning.
27 May 2020
As per Model Code of Conduct for lawyers, as a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.
In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.
Thou noen of the experts here is/are the lawyer for the author but even then nothing stands violated by any one including me in the light of the rules as mentioned above.
02 June 2020
Thanks, Mr. Makkad. I may be permitted to supplement above suggestions by the observations of the Apex Court in Court in O.P. Sharma v. High Court of Punjab & Haryana:
“An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system…Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules."
Certainly, legal professionals are not expected to condone and applaud the audacity of any person to overawe the public officials to save and secure himself from the rigours of law.
I have full regard with the verdict of Hon'ble Supreme Court of India, you cited and there are also similar judgments which do pronounce that a lawyer is an officer of the court and his primary duty is towards the Rule of Law. None can differ with this settled proposition of law but question is that where do I violate while performing my duty and what is the relevance of the cited judgment with the way of my reply? Preaching like a saint and providing specific reply of specific question are two different things. A lawyer is not a saint and moreover, we here are even not performing the duty of lawyer rather have been provided permission by site Admin to reply directly to the authors though replies visible on the site. No yardstick of a particular expert can bind others to reply as per his whims and wishes.
02 June 2020
I think this matter should be go ended here as nothing fruitful is likely to come with the enhancement of the unnecessary discussion on the ethics of the lawyer which are otherwise not meant for him.
03 June 2020
The matter should be closed now. What is the use to extend the same when the author is satisfied with the replies of the experts and he has also paid his gratitude towards all? Nothing should be taken as personal.
You are requested avoid multiple, repeated and inane postings which are making the threads cumbersome. Such postings are interfering with and crowding out other experts from making meaningful suggestions.
04 June 2020
Requirement of the query is that we all should try to earn maximum marks by lingering on the query by our relevant or irrelevant replies as much long as possible. An expert may go on writing-I do agree, Repeat that this is best for you, You said......then I said and so on.